Michael McDowell (Independent) | Oireachtas source

No, it means that where the commission nominates three candidates by majority, a minority can state its disagreement that the three candidates are suitable for appointment. It is not a licence to say that somebody else is more suitable for appointment. It allows the minority to say that a particular candidate is not suitable for appointment and to give the reasons therefor.

Consider a situation where the judicial members of the commission, who account for five out of a total of 17, have a strong view about the suitability of a certain person. If the Minister's Bill goes through the Government itself will never know that the five judicial members, namely, the Chief Justice, the President of the Court of Appeal, the President of the High Court, the President of the Circuit Court and the President of the District Court, share the view that one of the people on the shortlist of persons recommended to the Government is unsuitable for appointment. This is what the Minister is trying to enact. He should not cod himself that he is trying to enact anything else. He is trying to bring about a situation where all the judicial members could be of the view that somebody is wholly unsuitable and the Government would never have an inkling of this. Nobody could tell the Government, because it would be a breach of confidentiality and a criminal offence to impart to it that the five members of the Judiciary were of a different view. We are dealing with "transparency", a word that is sometimes used, sometimes abused and sometimes used to mean its exact opposite. To echo what Senator Bacik said, how can it possibly be a good idea to enshrine in law a series of measures whose result is that if the judicial members of the commission are wholly opposed to a particular appointment they cannot impart that information to the Government? That is wrong in principle.

I raise a point which has been touched on. This is the Government's constitutional choice. The Government is responsible for the decision to advise the President to appoint a person. It is the Government's duty to consider the suitability of such a person quite separately from the commission. That is a constitutional obligation on the Government. It cannot be a rubber stamp under our Constitution.The Government cannot state that the commission made a recommendation and that this is fine. Individually, it has to take responsibility for what it is doing. If the Government advises the President to nominate a particular woman or man to be a judge, it is its responsibility to ensure that it should be so. For that reason, it is entitled to the maximum amount of information, not the minimum, regarding what it is doing. It flies in the face of the constitutional requirement to enact legislation that would make it a criminal offence to tell the Government that the entire judicial component of the commission has stated that a person is unsuitable for appointment to the Judiciary. Leaving the Government under the utterly false impression that everybody in the commission is of the view that everything is hunky-dory with the recommendation is subversive of the constitutional order. It is strongly subversive of the constitutional order to attempt to put into law a mechanism whereby the Government cannot know the real views of the senior Judiciary, in whom one hopes it reposes some trust, regarding the suitability of any candidate where those members of the Judiciary have an objection that is not shared by majority because they constitute only five out of 17.

This is not just my view or that of Senators Boyhan, Craughwell and Bacik. In the past fortnight, the European Commission published the following about this Bill:

The proposed composition of the Judicial Appointments Commission, which - according to the amended proposal [not the first version of this Bill - the dog's dinner that came to us from another place - but this Bill, as now amended] - would comprise only five judges out of 17 (including a lay chairperson 'accountable to the Oireachtas') would not be in line with European standards (Council of Europe, 2010) and with the recommendation of the Council of Europe's Group of States against Corruption (Group of States against Corruption, 2018) which require that an independent and competent authority drawn in substantial part from the judiciary be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.

Let us look precisely at what the European Commission stated. Its objection was based on the requirement that an independent and competent authority drawn in substantial part from the Judiciary be authorised to make recommendations or express opinions that the relevant appointing authority follows in practice. Under this Bill, however, we have circumstances in which all the judges together comprise less than one third of the entire commission. Furthermore, we are now about to reject an amendment, if the Minister persists, that allows that minority of senior judges to warn the Government of its opinion on a candidate whose name is to be included on a shortlist. If the European Commission is listening, it should please hearken to my words. This is worse than its worst imaginings. It is to be a criminal offence to disclose to the Government that the judicial element of the commission objects strongly to an appointment that a majority is recommending to the Government. We are, therefore, flying in the face of what the Council of Europe, the European Commission and the GRECO report have stated in condemnation of this Bill.

I am not straying irrelevantly because I am of the view that this amendment really crystallises how egregious the departure from European standards actually is. Why do I say that? I say so because it prevents the senior Judiciary members from imparting to the Government their collective view that a particular candidate, selected by a non-legal majority, is unsuitable. Surely the Minister must hesitate when he contemplates that. Could it possibly be right to penalise, with criminal sanction, any person who informs the Government that the senior Judiciary members are of the unanimous view that one person recommended to the Government from a list of three is unsuitable? I cannot believe that the Legislature is contemplating doing such a thing. I am astonished that we would ever contemplate bringing about such circumstances. Time and time again in this debate - I make no apology for coming back to this - I have said this is compounded by the fact that the Attorney General, sitting at the Cabinet table with the Government, is, by way of a point of deliberate legislative policy enunciated by this Minister, equally prohibited from telling the Government the position of the senior Judiciary regarding the suitability of the candidate. I find it absolutely astonishing that this could be the outcome of this Bill.

Returning to what Senator Bacik said about consulting the Minister in a collaborative way, I would love to sit down around a table and ascertain, apart from the formality of this House, why the Government believes this is a good, defensible idea or an idea that for one minute should be tolerated by a parliament in a democracy. I fail to understand why this amendment is not being accepted. It would not bring about factionalism. It could not be deployed in favour of another person on the list. It merely affords a dissenting minority, and potentially the entire judicial component of the commission, the entitlement to inform the Government that it dissents from the recommendation being given and to give the reason it dissents regarding the suitability of a particular candidate that the majority wants to recommend.

I do not want to open old wounds but for the Minister to state that Senator Boyhan is somehow misinforming the House, being incorrect or spreading false information when he indicates that the Government is being leaned on by one of its members to proceed with this Bill. We all know the Senator is telling the truth. We all have seen it, to the point where telephone calls are made to Members of this House by a particular source demanding explanations as to why they are voting in a particular way.