Michael McDowell (Independent) | Oireachtas source

The situation is simply this: in this sequential cascade, or whatever one wants to call it - the sequence of appointments perhaps - a member of the Judiciary is obliged to submit an application form and is never told whether he or she is even shortlisted. The Bill is deliberately opaque on this. On a literal reading of the section, it would be an offence to reveal the shortlist to candidates. We have never had a satisfactory explanation as to why that is not the case.Every time a judicial vacancy becomes available in the superior courts, a judge will have to ask himself or herself, "Do I gird my loins yet again to fill out a new application form; do I attend yet again to be interviewed by people who I have no idea what they made of me on the last occasion, whether they thought I was good, bad or indifferent or if I was short-listed; was it that I had not established to the judicial appointment commission members my suitability to be short listed or was it that I was short-listed and the Government preferred somebody else on the list?" There is complete lack of transparency in that regard in this legislation.

With respect, the Minister was not fair to me or to Senator Craughwell in saying that trickle down or consequential vacancies were somehow over-dramatising the situation. They are not, they are the probability and the likelihood. It is more likely than not that that situation will apply. If that is the case, unless this amendment is accepted, every time there is a consequential vacancy, all of the members of the Judiciary will have to go through this process. They will have to submit a new application to be interviewed again and, at the end of that process, they will remain completely in the dark as to whether they were short-listed or not, whether the Government had made the decision that although they were short-listed they were not suitable for the job, or whether it was the commission that had determined they were not suitable, even to be included among the top three. That is why this amendment is of importance.

I am not talking about an improbable scenario. Rather, I am talking about what is likely to happen. The Minister should remember, before he accuses me and Senator Craughwell of talking about unlikely scenarios or dramatising the situation, that the proof of the pudding is in the eating. The Government of which the Minister is a member has never appointed or advised the President to appoint someone other than a sitting judge to a vacancy in the Supreme Court. The Minister has never, as far as I know, advised the President to appoint a person who is not a sitting judge to the Court of Appeal. I may be wrong on that and the Minister has done so on one occasion. We are not talking about improbable scenarios. It is annoying to be told that one is over-dramatising the situation when the Minister then says that the consequence of not accepting this amendment is that where there are consequential trickle down vacancies, which is the probable likelihood unless something dramatically changes, it will give rise to delays of three, six and nine months in repairing the vacancies to the courts. Someone has to take responsibility for that.