Michael McDowell (Independent) | Oireachtas source

I move amendment No. 91g:

In page 31, between lines 24 and 25, to insert the following:"46. Where any three members of the Commission make a request to the Chairperson in regard to any person whose name is recommended by the Commission, the Commission shall also provide to the Minister a dissenting statement setting out the reasons that the requesting members are of the opinion that the person is not suitable for appointment to the judicial office concerned.

The purpose of this amendment is to insert a section immediately after section 45. The latter states:

The Commission shall, in respect of each person whose name it recommends to the Minister, provide to the Minister a statement setting out the reasons the Commission is of opinion that the person is suitable for appointment to the judicial office concerned.

The amendment states:

Where any three members of the Commission make a request to the Chairperson [which here refers to the chairperson of the commission as defined in the Act] in regard to any person whose name is recommended by the Commission, the Commission shall also provide to the Minister a dissenting statement setting out the reasons that the requesting members are of the opinion that the person is not suitable for appointment to the judicial office concerned.

As things stand, if this Bill were to be enacted in its present form, there could be a candidate who was strongly objected to by, say, all the judicial members of the commission who were strongly of the view that this particular candidate was an unsuitable person to be put on the courts and they could be outvoted. As the commission will operate on the basis of a majority vote and a casting vote, it is perfectly possible that a minority, whether it is members of the Judiciary or other people, would be outvoted and a statement would go to the Government in the name of the entire commission setting out why the candidate was suitable. The opposition to that person's appointment would be effectively silenced and gagged because of the confidentiality rules. The Government would only hear one side of the story - the reasons the person was considered suitable - and would not hear that there was strong opposition to that person and that a considerable minority of the commission believed the person in question was entirely unsuitable to be appointed and had reasons so to believe.

If one imagines how the system would work, where there was a strong division of opinion on the commission about the suitability of a person for appointment, the Government would only hear the reasons the person should be appointed. Those on the commission who had attended the interviews, examined the other candidates, gone through the written application form and all the rest of it, looked at the references provided for that person and had a strong view that was contrary to the majority commission opinion would be required, under the confidentiality obligations, to remain absolutely quiet about the matter and not say a word about it to anybody. The Government would then get the impression that the entire commission was of the view taken by the majority that the candidate was suitable for the reasons given. That cannot be right. It simply cannot be right that nobody on the commission can tell the Government that he or she is strongly opposed to a recommended candidate of the commission. There is nothing that one or more members of the Judiciary on the commission can do about it. They have to zip their lips and stay absolutely quiet because it was the view of the majority. They cannot tip off the Government of their view as to why that person is unsuitable.

One might ask if this provision would ever be employed and I hope it would not have to be employed. I hope the commission will operate on consensus and if there was a strong minority saying a candidate was unsuitable, I hope the majority would say that, in view of the strong view of the minority, the candidate would not be short-listed and the shortlist will be done on much more of a consensus basis than having a majority vote. Unfortunately, this Bill has been cast in the form that there are to be majority votes if there is a disagreement and the chairperson is to have a casting vote. In addition, the chairperson is to be a layperson and no member of the Judiciary can ever have the casting vote. That has already been put into this Bill and all amendments to try to shake that situation have been rejected.

I am strongly of the view that it would be very wrong to have a position in which a significant minority of members of the commission were completely opposed to an appointment and the Government could not be informed of that fact and, not merely that, but would gather the impression, because of what is in section 45, that the reasons given as to why the person was suitable represented the views of the commission in its entirety. This is hugely important because it is another instance of how this Bill is keeping the Government in blindfolds. The Bill is effectively keeping the Government in ignorance of the real situation. To compare that with the position of the Judicial Appointments Advisory Board, there is nothing to stop a member of the JAAB who is seriously distressed or greatly worried by a recommendation informing a member of the Government of that fact. There is nothing to stop the Chief Justice informing the Government of his or her misgivings about the wisdom of a recommendation from the Judicial Appointments Advisory Board. This Bill goes much further and makes it a criminal offence to disclose what happens at the commission and closes off the capacity of members of the commission to bring their misgivings to the Government's attention. It is part of a pattern of creating a complete cloak of secrecy through which the Government cannot see. It cannot see that any recommendation was heavily fought and strongly dissented. It is kept in the dark about that.

The Attorney General, who will sit as a legal adviser to the Cabinet, is prohibited from telling the Government that a particular candidate on the recommended shortlist from the commission was trenchantly opposed by, say, seven members of the 15-person commission. Those seven members might totally disagree with the recommendation of that person and the reasons given by the majority as to why the person is suitable. This amendment is designed not to facilitate just one person who is a crank or a permanent dissentient from alerting the Government to the situation. It is designed to have at least three people ask the chairperson for permission to put in a dissenting statement and state their grounds for opposing a particular recommendation. This particular provision is necessary and improves the Bill. It improves the capacity of the commission to function well. It improves the capacity of the Government to understand what is happening at the commission, that there are differences of opinion and that, in circumstances such as those envisaged here, there is strong disagreement.

On the other side of that coin, accepting this amendment would strip away the notion that the Government would be left under the illusion that a particular recommendation of the commission is a unanimous view and the reasons given are shared by senior members of the Judiciary. Let us imagine that. Section 45 states that: "The Commission shall, in respect of each person whose name it recommends to the Minister, provide to the Minister a statement setting out the reasons the Commission is of opinion that the person is suitable for appointment to the judicial office concerned." If a document of that kind arrives on the Cabinet table and a significant minority says this is completely wrong and strongly object to the recommendation of a person, how is the Government even to guess that has happened?How is it to even be alerted at all to the possibility that what looks, on the face of it, to be a unanimous endorsement of the person and a statement of why he or she should be appointed, is in fact illusory, and that this was not what had happened during the commission's deliberations? I ask the Minister to accept this proposal as it is necessary. The Minister may instinctively reject it but if he does so it will compound the wrong being done by the Bill, which is that it will keep the Government in the dark as to what really went on at the commission and what the strength of the recommendation was. It will also be in the dark as to whether the reasons for a person's nomination were unanimous or there had been significant dissent.

If the Government is to be kept in the dark, and given the false illusion that the reasons given represented the thinking of the entire commission, and there is no mechanism whatsoever for the Government to be alerted to a controversy as to this person's suitability, it falsifies the whole process and gives a phoney sense of unanimity. I ask Members to consider what would happen if a somewhat controversial appointment was made on the recommendation of a majority. The minority, including the senior Judiciary, will be taken by the public not merely to have acquiesced in this but to have supported it because they will not be in a position to signal any disagreement to the Government, to alert anybody to the fact that they disagree or to pull the emergency cord to say they have a problem with it. If the public sees a notice in Iris Oifigiúilstating that the person's appointment was recommended by the judicial appointments commission, they will assume that the members of the commission were collectively of that view and that there was no dissent. I ask the Minister to accept the spirit of this amendment so that a future Government will not to be lulled into a false sense of security on a majority verdict by the commission which it believes was a unanimous verdict. That would be misleading and unfair to a judicial officeholder who believed, in his or her heart, that the person being recommended was highly unsuitable to be a judge but who had not been able to convince his or her colleagues to that effect.