Michael McDowell (Independent) | Oireachtas source

Section 47(1) states, "The name of a person may be the subject of a recommendation to the Minister by the Commission notwithstanding that the person is a member of the Commission, but this is without prejudice to the following provisions of this section." Section 47(2) states, "Subsection (3)has effect where a person, who is a member of the Commission, has made an application under section 39as respects a particular judicial office and a reference, in either subsection, to the particular function is a reference to the function of the Commission of selecting and recommending persons in relation to that judicial office. Then section 47(3), which is the kernel of the section as proposed by the Minister, states, "The person shall take no part in the performance by the Commission of the particular function and, accordingly, shall neither attend any meeting of it held for the purpose of the performance of the particular function nor cast any vote in relation to any decision falling to be made by it for that purpose."

In passing, regardless of the amendment that I am now moving, it occurs to me that section 47(3) is, in any event, a cast too wide. It prohibits a person who has made an application from attending any meeting of the commission held for the purpose of considering the particular appointment, but he or she could be doing more than one thing at a meeting. It is something that the Minister might consider in any event.

The underlying principle of my amendment is that no member of the commission should be required to submit an application to the commission in any circumstance whatsoever. There is no reason an ex officioperson who is on it - not the Chief Justice who would not apply but the President of the High Court and the President of the Court of Appeal - should be required to apply to his or her colleagues on the commission and be included or excluded by them from a shortlist.The reasons that we advance for it are as follows: first, on the process, let us imagine if the President of the High Court sought a-----