Michael McDowell (Independent) | Oireachtas source

Imagine if the President of the High Court was not on the shortlist and yet was supposed to participate in the commission thereafter, having been adjudicated on as unsuitable for recommendation to the Government, or less suitable than those who were shortlisted. The relationship between that officeholder and the rest of the commission would be severely tested by such an event. Supposing that the President of the High Court got the message that the rest of the commission did not think much of him or her, from the point of view of being appointed to the Court of Appeal or Supreme Court. That having happened, the President of the High Court is supposed to sit there quietly and adjudicate, in the company of everyone else, on other people's suitability for another vacancy in that court as if the rejection had not taken place. That is not a good idea. It is a very contrived situation.

Let us remember that we are dealing with the Attorney General and the presidents of the District Court, the Circuit Court, the High Court, the Court of Appeal and the Supreme Court, the latter being the Chief Justice. It would not apply to the Chief Justice because, presumably, he or she would not be applying for appointment to anything else, but it would apply to each of the others. There is something ridiculous about the commission sitting and adjudicating on the suitability of one of its own members to be a member of the Supreme Court.

Looking at it from another angle, if the President of the High Court is considered to be somebody suitable ex officio to express views about the suitability of other people, is it not remarkable that it could turn out that he or she was not suitable for the appointment themselves? I keep reminding us of this point, but the President of the High Court can serve on the Supreme Court and does so on occasion.The absurdity of saying that the President of the High Court could be voted off the shortlist to be sent to the Government by his or her colleagues becomes very apparent.

What is the remedy for this situation? The alternative is clear, and that is that an ex officiomember of the commission who is eligible for appointment and wishes to be appointed may indicate that fact to the secretary to the Government rather than going through the process of being interviewed by his or her colleagues and so on. That would apply to judicial office holders and the Attorney General. If the Attorney General wished to be considered for appointment, it would not make much sense for him or her to apply to fellow commission members with whom, if he or she failed to be appointed, he or she would be expected to carry on business as if nothing had happened when, alternatively, the Government, if it was minded to appoint the Attorney General, could do so without recourse to this process.

There is a kind of superficial attractiveness to the section as it stands because it looks very fair - "I am the President of the High Court. I will walk outside the room and not participate in advising on other appointments to the Court of Appeal while I am in that position." It looks "oh so fair" that that person simply excludes himself or herself from the process. However, he or she would be excluding himself or herself from a process in which he or she would beex officio normally involved. It is my strong view that the right remedy for this is as set out in the amendment, namely, that we would not ask a member of the commission to step outside the room and be interviewed by other members of the commission for a promotional appointment but, rather, simply allow that person to indicate to the Government his or her willingness to be appointed to the position and leave it at that. It is nonsensical to think that a member of the commission holding one of the senior positions would be interviewed by its other members. It would be far better to simply revert to the obvious solution, which is to allow the Government to appoint or decline to appoint a person who indicates an interest as it so wishes and without the absurdity of members of the commission interviewing each other, which proposal I consider grotesque.