Charles Flanagan (Laois, Fine Gael) | Oireachtas source

Amendment No. 88 corresponds with a Government amendment on Dáil Report Stage which was proposed and defeated in the other House, and is linked to amendment No. 89. The select committee passed two Opposition amendments, at the time Nos. 139 and 140, to section 44 of the Bill as initiated. The effects of those amendments are, first, to oblige the commission, when it has been unable to recommend a person for appointment, to re-advertise at three-monthly intervals until it is satisfied to recommend at least one person to fill the vacancy concerned and, second, to delete subsections (3) to (5), inclusive, of section 44 of the Bill as initiated, hence dispensing with the requirement that the commission, if it cannot recommend any names or recommends fewer than three names, provide to the Minister a statement of the name of every eligible applicant. My Report Stage amendment in the Dáil was unsuccessful in seeking to reverse the committee amendments and to reinstate the appropriate provisions of the Bill as initiated in what is now the section 42 before us.

I am unhappy with the state of affairs left in place as a result of the amendment carried by the Dáil committee. We have to acknowledge the original purpose was to deal with probably an exceptional enough event, which was the situation where the commission could only recommend fewer than three names, that is, one or two, or in certain circumstances, none. The general thrust of the provision is based on the corresponding provision in statute that provides for the work of the current Judicial Appointments Advisory Board. The 1995 Act envisaged a situation where it might not be possible to recommend the then prescribed number and, in these circumstances, the particulars of the eligible candidates were to be forwarded to the Government. In today's terms, it does not make sense to create a situation where a judge is urgently required to be allocated to essential court business but the Government is not provided with information that may allow it to nominate a person for appointment.

We are back to an anxiety on my part to ensure there is no delay. In such circumstances, if they arise, I believe it is important that the Government should exercise the constitutional prerogative to decide to appoint or, indeed, not to appoint a judge. That would be the case in any event under the Constitution but that decision can only reasonably be informed by consideration of the particulars of those who have applied and, consequently, been deemed eligible. It is proposed that amendment No. 88 revert the position to that of the Bill as published, which requires the commission to forward all the eligible names in specified circumstances. The alternative of retaining the measure as it stands would mean the Government would face two scenarios: first, having only one or two names to work from, with no formal additional information about eligible persons who have applied; and, second, not being able to proceed where the commission could not recommend any name and the commission re-runs the competition in a potentially endless loop at quarterly intervals. This may be in conflict with the choice requirement under the Constitution. I would ask Senator Craughwell in particular to support me on this because he is anxious to ensure we do not have delay and he is on record as supporting due process, but a process that is not in any way frustrated by delay.

I put this amendment on the basis that it would not be acceptable to have a situation where vacancies are left unfilled for a series of quarters while the commission runs repeat competitions to find people it might deem appropriate and suitable. That is my position on amendment No. 88. I will hear Senator Craughwell on amendment No. 88a and will then reply.

Amendment No. 89 is a drafting amendment to section 43 consequential on the addition to the Bill of the subsections referred to in amendment No. 88.