David Norris (Independent) | Oireachtas source

Yes, but 80 years ago is quite relevant. Nazism was ingrained but it did not make it reasonable. I think that statement is absolutely shocking. I was immensely heartened to hear from Senator McDowell that appointment to a senior judicial position is not employment. I always thought they got paid for it. I am delighted to learn that they do it for nothing. I thank the Senator for that wonderful news.

Senator McDowell raised the wonderful notion of questions tending to disclose sexual orientation. I wonder what they could be. Would they be, "Can you sing 'Over the Rainbow'?" and "Are you a fan of Gloria Summers?" Are those the sorts of questions that could be asked? I do not understand.

On the main point that Senator McDowell made, in my opinion the commission is perfectly entitled to ask questions and to establish the position. It is not making a judgment. As Senator McDowell said, it is for the Government alone to make a judgment and to make a decision on the appointment. It still has that discretion. There is no difficulty with that. The Government makes the decision. It is not up to the commission to stand in judgment or to rule out any applicant on these bases. It is a useful function for the commission to ask these questions and ascertain the facts and, acting on those facts, the Government makes its decision.That seems to me to be quite clear. However, there is a difficulty here with questions of sexual orientation and so on. Senator McDowell's amendment refers to the requirements of any statement made or published under the Part. I have difficulty with the term "publication". If the commission asks questions about private matters such as sexual orientation and so on, that should not be disclosed to the public. That is of no interest to the public. In fact, I do not think the sexual orientation of a judge is of the slightest significance or importance. There are good fairies and bad fairies, the same as in any population group. I have some concern about that.

Another point arises apart from that. The commission may seek information about the position of applicants on various matters. That is reasonable enough. This still leaves the decision-making capacity in respect of the appointment of the judge firmly in the hands of the Government. That is my position, but I would be happy to hear further from Senator McDowell on the matter if there is something I have missed or if I have misinterpreted things. I will make my point again. The commission establishes information. Acting on that information, the Government makes the decision. There is no attempt to take away the decision-making capacity of the Government.