Michael McDowell (Independent) | Oireachtas source

First, what Senator Boyhan has said is of some tangential relevance to the amendment. A total of 45 appointments have been made, many of them to the superior courts, and none of those applicants, to my knowledge, has ever been asked a question by a member of the Executive as to their attitude to a particular issue, how they would decide it, or what they make of a particular decision made by the Supreme Court six months ago, or three years ago, or five years ago. They have never been asked about their views on constitutional interpretation. There have been 45 appointments, more than half in the superior courts, and none of the appointees has ever been asked such a question.That being the case, I want to make absolutely clear that this Bill will not authorise the judicial appointments commission to evaluate applicants for the Judiciary by reference to their potential decisions in future. That is none of the commission's business. It concerns me that I do not see any signal of acceptance of this proposition by the Minister but I would be glad to hear his views on the matter. Does the Minister believe it would be legitimate for either a serving judge or an applicant for a position in the superior courts to be asked for his or her views on legal issues or on particular issues of law or legal controversy?

This raises a point to which Senator Norris adverted. What else should they be asked about? In turn, this goes back to my plea on the previous amendment. Why should they be interviewed at all? This goes back to the debate when I challenged Government party Senators to come up with a single relevant question that one would put to a judge to determine whether he or she was suitable for recommendation. The best answer I got was from Senator Noone. In an extreme stretch of the imagination she said that perhaps candidates could be asked whether there was anything about themselves that they would like to draw to the attention of the commission and that they had not managed to say in their curriculum vitae or application form. That was the best she could do. In fairness, she was being utterly honest and decent in saying that was the best question or topic she could think of in respect of a question that might be asked of candidates.

We are now in a situation where I want to make it absolutely clear that the decision on whether someone is conservative or liberal and should or should not be appointed on that ground is one for the Government alone. It is not a matter for the ex officiomembers, including the Chief Justice or a President of any of the courts or the Attorney General, although the Attorney General is free to advise the Government on these matters. It is certainly not a matter for laypeople. It is certainly not a matter for the two professional body representatives or a representative of the Irish Human Rights and Equality Commission to start fishing for the attitude of the candidate to human rights issues. That is not the function of an external commission. Even to allow the members of the commission for a minute to think that would be a permissible territory of interview of applicants is to reinforce the notion that it is they who are making the substantive decision on who gets on the Bench rather than the Executive.

This speaks to the fundamental constitutional falsity of this Bill. It is intended to create the impression that, to use the words of the Minister for Transport, Tourism and Sport, Deputy Ross, politicians should have no real function in determining who should be on the Bench. That is what this Bill was intended to do. The Minister, Deputy Ross, has stated the intent was to end what he called political cronyism. I do not believe there is political cronyism. Happily, Senator Boyhan did not enlighten us on who the particular people were on the list he got from the Courts Service today, but there are many fine people on the list. I do not believe for one minute that this Government has appointed any one of them on the basis of political affiliation or cronyism. They have all been merit-based appointments as far as I can see. Insofar as I can divine, they cross any political allegiance held in the past by any of them. I notice there is a considerable degree of cross-party appointment, to use that phrase, although I regard it as unfortunate. That was the case when Rory Brady and I functioned as Attorney General from 2002 to 2007. I do not believe there is cronyism.

The one thing I do not want as the price of appeasing the Minister for Transport, Tourism and Sport, Deputy Ross, and his desire to pretend absolutely falsely that politicians will have no further function in the appointment of judges is to create for a moment the idea among the public that those who go into what will necessarily be a confidential interview process will be asked whether they are liberal on the subject of gay rights or the right to life or where they stand on such issues or how they would approach a given category of case with the view to creating in the minds of the public the notion that the commission effectively vets people on their outlook and complies a shortlist based on interrogation of candidates with a view to working out whether they are on the liberal-conservative spectrum, the human rights-legislative rights spectrum or the Irish independence-European integrationist spectrum and so on. Candidates should not be asked such questions in private. Worse still, I do not want applicants for judicial office ever to think that if they went into an interview of this kind, whether they were sitting judges or would-be appointees to the Bench, that they would be viewed by the judicial appointments commission as meritorious based on their evinced attitude to such issues. Otherwise we will have political correctness gone mad. We will have people going in there saying they know the background of the five people on the interview panel or the representative from the human rights commission and will make the right noises and in consequence secure judicial office. That would be a complete subversion of the truth and of the right of the Executive to make its discretionary decisions on those issues without regard to what the Chief Justice thinks of those issues or whatever else.