Michael McDowell (Independent) | Oireachtas source

In addition to supporting the amendments that will be dealt with later in the context of subsections (2)and (3), I ask the Minister to consider indicating now that he will abandon the entire section. He does not have to make a report. People who are interested in the matter - for example, the legal correspondents of the newspapers - will be able to consult Iris Oifigiúiland discover who was appointed during the previous year. A parliamentary question submitted in the Dáil could include a request to the Minister to specify the names of people appointed to the Judiciary in each court in the previous year and there could be no objection to the Minister answering it.

In such circumstances, why do we have this amplified provision that deals with the particulars of the education, professional qualifications and experience of each appointee? It serves no useful purpose and that is why I am opposed to it. The reason the amendment we are discussing has been proposed is in order that the legislation will stipulate that "The Government shall not be obliged to publish the names of persons who have not been appointed to judicial office following their recommendation by the Commission. In other words, it will in no way be obliged to publish the names of unsuccessful candidates. The amendment also states, "Nothing in this section shall prevent the Commission from informing persons who have applied to it to be recommended for appointment to judicial office whether such persons have been recommended by the Commission to the Government for such appointment." The proposed new section 49(1) is intended to be inserted in substitution for the entirety of the existing section 49 and not merely the final two subsections, which, as Senator Norris stated, are clearly obnoxious and could only result in grave unhappiness and issues relating to the separation of powers.

I have made the following point in newspaper articles but I will make it again for the record of the House. It is the Government alone that takes responsibility for appointments to the superior courts. It is the Government's decision alone to recommend to the President that a particular person should be appointed. It is a decision which it has to make by reference to criteria which are perfectly sound such as whether, for example, someone is a notorious conservative or notoriously radical liberal. These are issues the Government is entitled to take into account. As I read it, however, the criteria which will be set out in the remainder of the legislation will never make reference to matters such as the outlook of the person in question, his or her history in deciding cases or any articles he or she may have written as a lawyer or as a person involved in public affairs. Those are the kinds of issues the Government could and should take into account, particularly if they are relevant to an appointment, but they are also the issues that the commission is not entitled to take into account as far as I can see. A point made to me by an individual I met related to one of the so-called pillars of this legislation, namely, that appointments should be made on merit. There are two qualifications on gender balance and representation of society as a whole. Merit is not a term of art or science. If one is to say someone is to be appointed on merit, is a conservative more meritorious than a liberal?