Michael McDowell (Independent) | Oireachtas source

I move amendment No. 97cb:

In page 33, between lines 20 and 21, to insert the following:"51. (1) The Commission shall, before publishing any statement under this Part, submit to the Minister a draft of such statement for consideration and approval by the Government.

(2) The Government shall consider any draft statement submitted to the Minister under this section and may approve of such statement as submitted or as modified by the Government.

(3) The powers of the Commission to publish a statement under this Part shall be subject to the approval of the statement by the Government.".

It seems to me that if the criteria and attributes of the judicial candidate for appointment are to be determined in accordance with Part 8 of this Bill, if a statement is to be published describing requisite skills and attributes, and if the independent commission is to be given the function of drawing up such a statement, there should also be a stage at which the Government to which the independent commission is acting as an advisory body is given the opportunity to comment on the attributes that the independent commission believes should apply to the appointment of judges.

The purpose of this amendment is to acknowledge that the advisory body is purely advisory. The commission is an advisory body under our Constitution and, because it is and because it is laying down the attributes, competencies, skills and characteristics required for appointment, the body to which advice is to be given should have some input into the criteria by reference to which selections are made. If, as I believe, it is the constitutional function of the Executive to make judicial appointments and if it is the case, as I believe, that a commission of this kind can only be purely advisory in nature, it seems strange that if the advisory body is going to advise the Government by way of shortlists on appointment by reference to statements of selection procedures and requisite skills and attributes, the body receiving the advice should have no input whatsoever in formulating the criteria by which the independent commission will draw up a shortlist and make recommendations. Surely the Executive, if it is going to receive advice, is entitled, under a statutory scheme, to signal to the advisory body at the very least its satisfaction or dissatisfaction with the fundamental criteria by which that body is operating.

This is designed, of course, to ensure harmony between the commission and the Government so the Government does not find itself looking at people selected by reference to published statements that it is not keen on, or does not find itself not really liking the content of the statements published but yet receiving the shortlist. It may find itself in the position of saying that if the body continues to submit recommended shortlists on the basis of the published criteria, it will simply exercise its constitutional function and simply appoint people off its own bat based on different criteria. Surely there should be some consultative process whereby, if criteria are being drawn up and the system is to work harmoniously, there is a process of approval for the draft statements to be formulated and published under this Part.

I presume the Minister will say this is an interference with the independence of the commission but the commission is not independent. The Constitution vests the function of choosing judges in the Executive, and it is the Executive that advises the President. The commission is not wholly independent in determining the criteria that will govern the drawing up of the shortlist, nor should it be, but it does not trench upon its independence to ask it to send to the Government in draft form the criteria it proposes should apply and for the Government to say that it does not agree with points A, B and C in the criteria, that it wants the commission to vary them, and that it wants to be advised by reference to the commission's draft criteria, as amended by it, the Government.We want to be advised by reference to the Minister's draft criteria, as amended by us. That process would be entirely transparent. If the Government of the day was abusing it in any way, it would be accountable to Parliament and accountable to the court of public opinion. If the criteria the Government wished to have varied in some way or another were in any way repugnant, that would be a matter of public knowledge. I do not believe a Government would act unreasonably. If an independent commission proposes A, B and C, a Government is unlikely to arbitrarily, maliciously or vindictively say it does not agree with the commission's particular statement of attributes, skills and so on.

I would prefer if the Bill acknowledged honestly that, in the last analysis, a role profile, such as section 50(1)(b) refers to, should be a matter publicly debated and the Government of the day should have something to say about it, not to be simply presented with a fait accomplifrom which shortlists are thereafter drawn up, when the Government is unhappy with the original criteria in the first place. That is the essence of this amendment.