Charles Flanagan (Laois, Fine Gael) | Oireachtas source

This is not the first occasion on which we have been entertained with the concept of a judge being interviewed on his or her ideological stance, preferences or disposition. Senator McDowell knows well that in no place does the Bill provide for the type of question that may be asked in an interview, if there is an interview at all. I do not accept that the concept of interviewing judges is as repugnant as the Senator leads us to believe. I have listened to his comments on the amendment which I do not propose to accept in its current form. However, without agreeing with the substance of the Senator's argument, I acknowledge that there may be some merit in introducing a safeguard to ensure there cannot be the type of scenario envisaged by him cannot. As I said, there is no reference anywhere in the Bill to permitting the line of questioning evidenced by him. However, in advance of Report Stage, I will consider including a safeguard to ensure there will not be the line of questioning referred to by him.

I urge Senators to consider the situation in other common law jurisdictions. I agree with what Senator Boyhan said about appointments. It is not necessary for me to say, once again, that, as far as I am concerned, appointments by the Government are being made strictly on a meritorious basis, as has been acknowledged in the House. However, there is a need for reform along the lines set out in the Bill. It is almost 25 years since the current system was inaugurated and it would benefit from the reform envisaged in the Bill. I do not accept that an interview of a District Court judge for a fundamentally altered position, namely, that of a High Court judge, should be out of bounds, as Senator McDowell wishes us to accept. I see every reason an interview could, in some circumstances, be of assistance to the board in conducting an assessment of legal knowledge, skills and competence. It would be a weakness in the Bill if we were to enact it without reference to the facility to hold an interview. Looking at the situation in Scotland, for instance, it is common practice for an interview to take place to fill a vacancy the appointments board may wish to fill for a sheriff or an equivalent judge at district level. The Bill should make provision for such an interview process to take place where the board deems it to be appropriate. If, for example, it is interviewing a senior judge for another senior position, it might be appropriate for the interview to be conducted by the legal members of the commission, or for the panel to include judicial representation. As I said, I will not accept the amendment in its current form, but I am happy to look at the Senator's proposal further and consider what safeguard might be introduced.

Regarding the idea that the testing element of the process be derived from the published statement and the skills and attributes identified within it, I see every reason this should be important in the context of the process, rather than what Senator McDowell is proposing, not only this evening but over several months, where the sole basis of the interview would be the ideological disposition of the candidate and where he or she might fit on a spectrum. I do not accept that that will be the case. I expect that there will be a range of issues, as we discussed previously, in the areas of skills and attributes which will, in effect, provide the basis of the interview in terms of questions, queries, observations or otherwise.

I was asked last week by Senator McDowell to get back to him on the question of whether the Government opposed the particular amendment on Committee Stage in the Dáil which sought to insert a provision whereby candidates would be ranked in order of preference. I agree with the Senator that this is an important issue. I confirm that my recollection of proceedings was correct, namely, that I did oppose the amendment on Committee Stage in February last year. However, because the Government did not hold a majority, the amendment was carried. In fact, two related amendments, Nos. 133 and 149, both in the name of Deputy Clare Daly, were also carried on that occasion, introducing the principle that the commission would be able to rank its selected candidates in order of preference. The introduction of this new element of ranking was considered to be of importance, having regard to the issues of concern covered in the advice of the Attorney General, issues that had been aired previously during pre-legislative scrutiny. I considered the matter very carefully, in consultation with the Attorney General, and looked at options that might be employed in dealing with the amendments on Report Stage in the Dáil. That consideration ultimately resulted in the tabling of several amendments on Report Stage designed to make it clear that any order of preference would not limit the advice the Government might give to the President under the Constitution.The Dáil readily agreed to two such amendments to insert such provisions, which might be regarded as savers, in what are now section 40(3) and section 41(4). The record of the Dáil of 31 May last year sets out the rationale behind those amendments and the need to maintain the constitutional role of Government, and to ensure that, under no circumstances, will that constitutional role be adversely interfered with, much less undermined. It is important that appropriate savers are evidenced in the Bill when enacted, having regard to the constitutional difficulties that might arise.

As far as more general savers are concerned, I intend to table an amendment on Report Stage with a view to inserting a more general saver that will be applicable to the Bill as a whole. This would state clearly and unambiguously that nothing in the Bill may undermine the constitutional prerogative of Government to advise the President on the matter of appointments made to judicial office. I have said this before but it is worth saying it again, particularly having regard to issues raised repeatedly by Senator Boyhan and others. In addition to specific safeguards and savers, a general statement may well be important in the context of the need for a broad safeguard in respect of the constitutional function and the duty of Government to exercise its broad discretion in advising the President as to appointments to judicial office.