Michael McDowell (Independent) | Oireachtas source

The very point I made was that section 15(6) is in the terms to which the Minister has just adverted. Let us ask ourselves what the words "where there is no consensus on a question" actually mean. They mean that there is a group, in all probability, of people who are in a minority on this issue, and that it should be determined by a majority vote. That is the situation where a majority vote comes in. The Minister is now saying that where there is a dissenting minority and even where that dissenting minority includes the entire judicial component of this commission, the Government must be kept in the dark about the existence of a minority and the fact that the Judiciary is in that minority. This is wholly insupportable and wrong.

I ask the Minister to imagine if he is re-elected, reselected and renominated as Minister for Justice and Equality - as he richly deserves, perhaps, to be, I grant him that - in two years' time when this appalling legislation comes into operation, if such a thing happens, and if he received a report from this commission as Minister and presented it to his colleagues in government, and it said that these are the three people who have been recommended and the reasons for their recommendation and somehow afterwards he discovered that every single judge on the commission had said that he or she strongly disagreed with that person's inclusion on the short list, would he and his Cabinet colleagues not feel shortchanged? Would they not ask who in heaven's name put into the Bill for the commission a prohibition on the Government being warned that that was the true situation? When one thinks about it, it is a major responsibility to bear. The Minister is saying that there is to be no mechanism whereby the entire judicial component of the commission cannot intimate its dissent from a majority decision taken against them, they being, in numbers, less than a third of the commission as the EU Commission has warned us against. This is not some type of fantastic, exotic or improbable scenario that the Judiciary would say that a candidate was unsuitable or that there would be no consensus on an appointment or that a majority would say that someone was on the list and that they were suitable and the minority cannot tell the Government either that they dissented or the reasons for so doing. It is remarkable that this is being proposed now, in the 21st century, that this is a good idea and that the Government which, under the 1937 Constitution, bears the responsibility for judicial appointments, should be kept in such a state of abysmal ignorance as to the attitude of the Judiciary to a potential appointee. It flies in the face of the Council of Europe and the GRECO condemnation of this Bill and the EU Commission's recent reminder. They have not walked away from this. They have looked at the amendments that we have made to the Bill and have said that it is still wrong. Yet we still proceed with it.

There is another, less contentious, matter. Is there anywhere in the Bill, and I ask the Minister to point it out to me, that says this particular statement of recommendation shall itself remain secret? It does not fall under the confidentiality obligation in respect to the commission's own activities. It is a message that it sends to Government. It sets out certain reasons. Is there anywhere in the Bill, as currently drafted, that says that this statement of recommendation shall remain secret? Is it even subject, God help us, to freedom of information? I would like to have a clear answer to that.