Michael McDowell (Independent) | Oireachtas source

Given that this phrase is already in the current legislation and has not, so far, caused much of a problem, I do not think it does cause much of a problem. Governments are free to choose a judge for a particular office at present and not to go near the commission in the first place but this legislation is a good deal more prescriptive. It states that the Government has to first consider the people who are recommended on a shortlist by the commission.

If the Government is really free to say it proposes to appoint Ms Justice So-and-So to be Chief Justice but tells the Minister for Justice and Equality that he or she cannot propose it until the Government has looked at the other three names, it would be an invasion of the Cabinet's right to decide in what order it deals with its business. A matter may have been the subject of a recommendation by the commission under a judicial appointments commission Act but the Taoiseach, the Tánaiste in the case of a coalition Government, the Minister for Justice and Equality and the Attorney General might say they have come to the view that the outstanding candidate is X and they do not propose to waste much time with the three names on the shortlist that they were given. It may be a minor point but telling the Cabinet the order in which it addresses those issues does not diminish the commission but it preserves the prerogative and the primacy of the Government's entitlement to make its own mind up on these issues, regardless of what is in legislation.

It is quite possible that the Minister for Justice and Equality will come into Cabinet and say he is proposing X and that he has the agreement of the Taoiseach. He could say he has consulted the Attorney General, as he is required to do under the Cabinet handbook, and that the Attorney General considered the person to be a very good appointee. He says that X is the best person for the job but to tell him he cannot consider the candidate until he takes out the report and goes through all the reasons offered for the appointment of somebody else would, in my view, technically be an impertinence on the part of the Oireachtas. Nobody knows if the Cabinet will consider such a matter after a prearranged agreement but if it is firmly of the view that the person it has in mind is the correct person to appoint, the obvious course of action is for Cabinet not to concern itself with the three names it gets from the appointments commission.