Michael McDowell (Independent) | Oireachtas source

He ruled that a landlord with anti-Semitic outlooks could not be held to be unreasonable in refusing to allow a Jewish dentist to use the ground-floor rooms of her home in Harrington Street in Dublin because, as the judge put it, such prejudice was so notorious and ingrained that it could not be regarded as unreasonable. That is how the world was then, but it is not the same now.

The third concern is a person's ideological belief. I know of former elected members of the Workers Party who must, at one stage, have been of Stalinist orientation who were, nevertheless, selected for the Circuit Court. It seems to me that it clearly cannot be any of the commission's business to inquire into candidates' ideological viewpoint, to ask whether they are a liberal capitalist, a social democrat, a strong socialist, a nationalist or a strong something else. Surely it must be an absolute cornerstone of a fair, merit-based recommendation by a non-governmental body that the latter does not take those issues into account?

The final consideration relates to sexual orientation. We now have members of the gay and lesbian community on the Bench, but that has occurred naturally and is not a matter of public announcement one way or the other. It would be very strange indeed if any person could be asked for his or her sexual orientation or related questions when presenting for interview, filling out questionnaires or being evaluated by experts hired on a contractual basis. Information of that kind must be irrelevant to the question of whether the candidate should be short-listed for the consideration of the Government. Whatever the members of Cabinet make of the person after the short-listing is a matter for them, but it cannot be that a statutory body would have regard to such matters.

When Senator Norris says that the considerations to which I referred could or could not be relevant to the appointment of a person as a judge, I agree wholeheartedly that they could be. However, under our Constitution, the people who are entitled to pass that judgment are the members of the Cabinet and nobody else. That is my point.