Michael McDowell (Independent) | Oireachtas source

The excuse that might be offered is that it is not that such a person would be unsuitable to be a member of the Supreme Court, but that the commission might believe that three other people were more suitable. That might be the excuse that is made for there being a shortlist of three among which he or she did not appear. I have thought the matter through, however, and even in that scenario, what is the President of the High Court to make of his or her fellow members of the commission if they say there are three people more suitable to be on the court than him or her, given that the following month the same President of the High Court may consider the suitability of other people for a similar vacancy? It is ridiculous. If we trust the President of the High Court ex officiosufficiently to say he or she is ex officioa member of the commission, it follows that the high degree of trust that automatically reposes in him or her as a member of the commission carries with it the entitlement not to be interviewed by his or her fellow commission members to assess his or her suitability. It further follows that it would confer on him or her the small but totally practical right to say that as a member of the commission and a holder of high constitutional office, rather than being interviewed by one's fellow members and putting them in the position of choosing to accept or reject, to short-list or not to short-list, he or she will indicate to the secretary to the Government that he or she is available to fill the position, rather than causing any embarrassment. What if the President of the High Court was appointed to be President of the Court of Appeal or an ordinary member of the Supreme Court?If that happened and it was printed in Iris Oifigiúil, would it matter a damn that the commission was or was not in favour of such a thing? Would anybody say it was a scandal that the President of the High Court had been made a permanent member of the Supreme Court on which he had in the past sat as an ordinary member at the invitation of the Chief Justice? Would anyone say it was a scandal because the commission and his fellow commissioners did not recommend him? What reality is there to that? If there is none, let us forget section 47 and take the honest, straightforward path of excusing the fellow commissioners from the embarrassment of having to assess one of their own number and put him in a competitive process to get on a three-member list with other people and simply allow a commissioner to indicate a willingness to serve. Let us leave it to the Government of the day to choose between those shortlisted and the commissioner who has indicated his willingness to be selected. Nothing could be more efficient, sensible and less open to criticism than such an arrangement.

What would be open to criticism, however, would be the opposite scenario in which the President of High Court put his name forward, was interviewed, considered by the other commissioners, placed on the shortlist and selected by the Government. People would say "Big deal". Would they seriously expect he would not be included on the shortlist? Let us be honest. Our amendment is a great deal more practical and a great deal more realistic. It is a great deal less worthy of smoke-filled rooms or dark scenarios than the Minister's proposal. The people would understand immediately that if the President of the High Court wished to be considered for ordinary membership of the Supreme Court, it would be more honest and straightforward to write to the Secretary of the Government and asked to be considered than to put the Chief Justice, the President of the Court of Appeal and fellow commissioners to the embarrassment of having to interview a person with whom they have been making choices before and with whom they will continue to make choices afterwards. It would be to pretend to go through the process of including or excluding the President of the High Court from a shortlist. I wonder which is the less credible scenario, my amendment or the Minister's section? I consider it ridiculous that the public are to expect that the President of the High Court has to be interviewed by fellow commissioners and shortlisted to be one of three in order for the Government to consider him for membership of a court on which is already ex officio entitled to participate when invited.