Michael McDowell (Independent) | Oireachtas source

I move amendment No. 96a:

96a. In page 32, between lines 17 and 18, to insert the following:“49. Where the Commission has in the previous three years recommended the appointment of any person to any type of judicial office, that person shall for the purposes of this Act also be deemed to be recommended to any judicial office of the same type except when the person has notified the Commission or the secretary to the Government that he or she no longer wishes to be considered for appointment to such an office.”.

In the context of our consideration of section 48 of the Bill, I and my colleagues moved amendment No. 95b. It was pointed out in the course of that debate that the assumption that somebody had applied in the past and had been recommended would not of itself justify the provision unless that person still wanted to be appointed to the position for which he or she had previously applied, and for which he or she had been previously recommended. In light of that discussion we have tendered a new section, section 49, to the Bill. The new section reads: "Where the Commission has in the previous three years recommended the appointment of any person to any type of judicial office, that person shall for the purposes of this Act also be deemed to be recommended to any judicial office of the same type except when the person has notified the Commission or the secretary to the Government that he or she no longer wishes to be considered for appointment to such an office." In my view this is a perfectly reasonable thing. The provision would hugely enhance the proper operation of this legislation were it, by any mischance, to be enacted. I say this because if somebody has been shortlisted in the previous three years and has been recommended to the Government for appointment to a particular position there should be no question whatsoever of their being publicly deemed to be a non-recommended person if the Government receives a different shortlist that does not contain his or her name within a short period of time of three years.Let us consider the case of, for example, a High Court judge who is successful in applying to the commission and is included on the shortlist of three that went to the Government. In the meantime, one of the other people on that shortlist might be appointed and this would mean that there would be two people who would not be appointed and who would be disappointed as a result. It seems strange that where another position arose within six months or a year, the Government could not say that the commission had recommended those two individuals for appointment to fill a similar vacancy and that, while it was disposed to appoint another candidate, they were not merely also-rans but were suitable for the job. It is also strange that those two individuals should somehow disappear off the list from which the Government would be expected to make its selection.

The arguments against such a provision are completely empty and specious. What harm could this amendment do? It could not create a situation whereby someone who was willing to be appointed would be given the position in unfortunate circumstances. This raises another question: is someone in that position, for example, a judge of the High Court, expected to continually reapply? Are people to be interviewed in respect of each appointment? Are they to be asked different questions? Are they to be asked if there is anything since they last applied for recommendation to the Government which should case the commission to take a negative view of his or her application? Is something of that nature envisaged? I am worried about the consequences if the commission is putting up a shortlist which is influenced by considerations such as gender. If the Government decides to appoint a female judge, will the next list also be the subject of gender influence such that the two males who were disappointed candidates on the previous occasion might be-----