Wednesday, 27 February 2019
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
We discussed the issue of confidentiality and the importance of not damaging a person's good name or reputation. We discussed recently the impact of the commission failing on its first attempt to find suitable candidates to recommend to Government for judicial appointment. I made the point at that time that if the commission had to go through a second round, speculation in the media, on social media, in politics and in the Law Library would become more and more prevalent the longer it took to find suitable people. We are trying to ensure that no pressure can be brought to bear on a Government or Minister to provide any insight into the commission's deliberations. We do not want names to be mentioned. For example, if a senior counsel is appointed to a senior judicial position for which a judge on the panel for appointment did not make it to the shortlist, what damage would that do to the judge's reputation and his or her position on the Bench? Similarly, what damage would it do to the reputation and practice of a senior counsel who was not rated for a judicial position?
Assuming the President is prepared to enact the legislation without referring it to the courts, I have no doubt that, as soon as more than one panel is required to fill a single vacancy, horrendous pressure will be applied to Ministers and the Government to answer questions on why it took two or three rounds to find a suitable judge. Speculation will be rife across the social system. The purpose of the amendment is to try to protect a Minister and Government from having to disclose anything about anyone. It is a tall ask because all those who are eligible may apply for a judicial position. There is a facility to bring in outside consultants to rank the candidates. Confidentiality is vital when consultants draw up a scheme to rank the candidates for the consideration of the commission. The commission will then choose three names from that list. Everybody will want to know who applied, how they fared and why some were rejected. We are trying to protect reputations and the Government.
My colleague, Senator Norris, referred to a case which seems, on the face of it, to have backfired on the Oireachtas. This is dangerous because the separation of powers is one of the most important tenets that we survive on. When the courts are adjudicating on what went on in an Oireachtas committee, it sets a bad precedent. It is not for me to criticise the Supreme Court and I am not for one moment doing that - it is doing its job - but if we leave ourselves open to that type of scrutiny, we risk damaging the Oireachtas to the point where nothing can be said or done. We cannot allow that to happen. I ask the Minister to consider accepting the amendment.