Michael McDowell (Independent) | Oireachtas source

He was more conservative than some of the people who were seen as the front runners, very definitely. I say that with the greatest of respect to him and to his memory, but I know, as I have spoken to some of the people in government at the time, he was selected because of a concern that the Supreme Court was becoming hyperactive. Whether that was a justified concern or not is a totally different matter, but that was the Government's choice and it was nothing to do with some other group of people.

When looking at a decision of this kind, how can this commission evaluate whether the Government should appoint a liberal or a conservative to the Supreme Court? If it comes up with three liberals, say, or three people of one social outlook and the Government says it is not keen on that and would like to rebalance the Supreme Court in favour of a different approach, that is the Government's prerogative alone.It has nothing to do with whether there is a lay majority on the commission. It would apply equally if it was a self-selecting judicial college and I would have exactly the same objection. The real question is who the Constitution states makes the choice and whether this Bill now circumscribes the way the choice is made.

The Minister states that it is undesirable for the Government to make approaches to anyone. From where he does he get that idea? What is undesirable about a Government making an approach to somebody and asking if he or she is interested in being appointed to a vacancy in the Supreme Court? There is nothing undesirable about that but this is the result of the convoluted thought process at which we have arrived today. It has gone on for a long time and it has made perfect sense because it is a necessary outworking of the Government's discretion to find out whether that discretion can reasonably be exercised in one direction or another, or towards one candidate or another. For the Minister to state that it is undesirable for the Attorney General or the Minister for Justice and Equality to ask an individual, on behalf of the Government, whether he or she is interested in being appointed is absolutely misconceived. It is totally desirable for a Government to be able to that if it so desires.

I am not suggesting anything radical but this option is open to the Government; it has been frequently exercised and has led to good, rather than bad, appointments. If the Government's prerogative is preserved, as the Minister insists, it must have the necessary liberty to make inquiries and approaches in order to discover who is interested and what is going on in the judicial appointments commission, rather than be required to take its three recommendations on faith and without any knowledge as to how they were arrived at or who may have been overlooked for the shortlist.

This has nothing to do with the lay majority and I would be just as horrified if the Minister proposed that it should be an entirely judicial body. I would be just as horrified if the Government was left equally tethered by the legislation. This legislation constrains the Government, for the first time, in the context of whom it can appoint to vacancies in the Court of Appeal and the Supreme Court when it wants to appoint a judge. If it wants to appoint a serving judge, it should be free to do so. It should be free to know whether particular people were seeking that appointment and whether they would accept it. There is no logical reason to justify the rejection of the amendments that have been tabled other than on the basis of hostility to the Government doing it. It is fanciful for the Minister to state that it would only be in exceptional circumstances that one of three people, nominated by the judicial appointments commission, would not be favoured by the Government for appointment to the Supreme Court. There could be many serving members of the bench whom the Government would want but who are not on any list.