Michael McDowell (Independent) | Oireachtas source

Yes. It is not open to the Chief Justice, as a functioning member of this commission - if it is ever established - to state that he or she is opposed to an appointment or does not favour a particular judge because he or she is a conservative or a liberal. That is and always has been the fundamental flaw with this legislation. That is why, when we raised the issue of what useful purpose an interview could serve, we concluded that it could only be to give the non-legal members of the commission an opportunity to eye these people up and form superficial conclusions about them in the course of conversation. It serves no useful function whatsoever.

The Courts and Courts Officers Act 2002 was enacted by the outgoing Government of the day in the wake of the controversy surrounding the Reynolds-Spring coalition due to a judicial appointment. That Act states that where somebody is already a judge, there is no need for him or her to have anything to do with the Judicial Appointments Advisory Board. The implication is that these people are already qualified and should not be the subject of any requirement to make applications to an outside body to determine whether they should be recommended for particular positions. The Judicial Appointments Advisory Board legislation specifically provides for interviews. The board has always had that opportunity to interview people who it does not know. The one thing the Judicial Appointments Advisory Board was at least acknowledged by its very title to be, was purely advisory in nature. It it has been a constant undertone to the political debate surrounding the legislation before us that it is more than advisory and that it is intended to produce particular results and to put before the Government choices which are embarrassing not to endorse.

I have listened carefully to the debate. I have listened to the Minister and Senators Conway and Noone and I note that none of them has come forward with any useful purpose that an interview, as opposed to a CV, could serve. I note the provisions in the Bill which state that a record should be kept of every interview. I presume that is with a view to ensuring that there is equality of treatment for interviewees. Otherwise, I cannot see what particular purpose would be served by preserving the marking scheme.

I do not believe there is an analogy between a competitive process such as that relating to Top Level Appointments Commission, TLAC, appointments in the Civil Service or to the appointment of CEOs of vocational educational bodies and the appointment of somebody to be an ordinary judge of the Supreme Court.I see no analogy whatsoever between the two. There is an absolute distinction in constitutional terms, and the Cabinet is under no obligation to conduct its duty of advising the President by reference to any particular statutory framework. I have made that point again and again. The Cabinet is free to appoint people from the serving Judiciary to the Court of Appeal and the Supreme Court, and is obliged to do so in accordance with its own judgment. It can take advice from anybody it wants but it must, in the last analysis, be free to decide, for example, that it wants liberals rather than conservatives, more women rather than fewer women, more men rather than fewer men, or anything else. That is entirely the constitutional prerogative of the Executive and it is not capable of being determined from the outside by legislation. I am disappointed that, in the absence of any explanation as to what useful purpose could be served by an interview process, we are failing to take the obvious step, which is to excuse sitting members of the superior courts, all of whom are capable of functioning in all of those courts as a matter of law, from submitting themselves to an interview process.

I have one final issue to raise, which the Minister referred to on a previous occasion. Under the Government's original Bill, the shortlist of three was supposed to simply set out three names. It was an Opposition amendment which inserted the provision about ranking the candidates in terms of preference. I did not have an opportunity to check the Dáil record, so I do not know whether the Minister opposed or accepted that amendment on Committee Stage. It is now being put forward as a feature of the Bill which answers some of the criticisms of it. Is this a road to Damascus type of conversion to the ordering of candidates in terms of the commission's preference?