Michael McDowell (Independent) | Oireachtas source

I move amendment No. 92a:

In page 31, line 28, after “Minister” to insert the following:“at any time in respect of the type of judicial appointment in respect of which the Government is advising”.

I wish to outline the purpose of this amendment. The House will appreciate that section 46 currently reads:

In advising the President in relation to the appointment of a person to a judicial office the Government shall firstly consider for appointment those persons whose names have been recommended to the Minister or, in the case of section 44 the Government in accordance with the provisions of this Act.

This amendment proposes to insert the words "at any time in respect of the type of judicial appointment in respect of which the Government is advising". Let us say, for example, that on a particular day the Government has a vacancy to fill in the High Court, the Court of Appeal or the Supreme Court. If it receives a list of three people and another vacancy arises shortly thereafter in the same court, as frequently occurs, then those people who were recommended will remain so. If judges A, B and C are on the shortlist of three for a vacancy in the Court of Appeal and another vacancy arises in that court, then judges A, B and C shall stand recommended, even if a shortlist is submitted with different names on it. This means that those on a shortlist will not fall off the edge simply because a different shortlist is drawn up by the appointments commission. Let us say that a person has applied and has been told that he or she has been recommended for appointment to the Court of Appeal and is on a shortlist. Then, within two months, another vacancy arises in the same court. In that context, it seems ridiculous to ask that a person who was recommended two months previously should resubmit an application and go through all of the hoops again in order to be considered first by the Government before anybody else. It seems quite absurd that we would force people to keep reapplying for jobs for which they have already been recommended. The other side of this coin concerns when the Government states that it had a shortlist of three very good people it believed to be very meritorious and that while it could have appointed any of them, it has appointed one. If a different shortlist is received in respect of a vacancy that arises two months later, it might ask what happened to judge A and judge B, particularly if it believed on the first occasion that they were really good candidates it was minded to appoint. The purpose of this amendment is to ensure that once an individual is recommended, he or she will remain so and that, when the next vacancy arises, we do not impose on a judge, of the High Court, for example, the obligation to reapply, resubmit all the relevant documentation, go to another interview and be vetted a second time round if he or she has already featured on a list.

There is another aspect of this that I find puzzling. It could arise in the following circumstances. If, for example, the Judicial Appointments Commission were to have regard to gender equality on a shortlist and then decided to have regard to it on a second, it might find itself having to delete somebody from the second list in order to keep the gender balance of its shortlist right. That seems unpleasant, foolish and wasteful of resources. Let me outline what I am suggesting. This applies to individuals who are judges and those who are not. Once somebody has gone through the system, has been found suitable and has been recommended to the Government for appointment, he or she should stand recommended and not fall off the edge by reason of non-inclusion on a subsequent list. That makes sense. If we do not accept this amendment and if we require applicants to reapply and go through all the hoops every time a vacancy arises, even though they were told they were recommended in the first instance, we will seriously discourage candidates from applying. I will give an example. Where a woman senior counsel applies to be considered by the Judicial Appointments Commission, is told she is one of three whom the Government has been told is suitable and recommended for appointment, and is not appointed, it makes much more sense to have the law state she stands recommended. Where there is another vacancy, she will have gone through all the hoops, her name will have been on the shortlist and the Government will have been informed by the commission that she is suitable and recommended but the Government could get a different list without her name on it and with that of some other female senior counsel, leaving it wondering what happened to the woman recommended to it two months previously. This amendment is to make it clear that the Government should not regard the fact that a person's name has fallen off the shortlist in favour of somebody else as a reason for that person not to be considered for appointment. I would be interested to hear the Minister's thoughts on that matter.