Michael McDowell (Independent) | Oireachtas source

Supreme Court, or whichever they are interested in. We cannot ask the Government and it cannot be compelled to answer it, and we are not entitled to know, as far as I can see, which of them was short-listed and which was not. I agree with Senator Ward and nobody is against transparency. When somebody stands up in this House and says he or she is a champion of opacity as opposed to transparency, that will be the day. I always recall Charlie McCreevy deriding openness, transparency and accountability, “the goddess OTA”. He said transparency, up to a point, is a nonsense politicians talk about and kneel before. There is not anything transparent about this. We will not know precisely how the process was decided. We will not see the marking sheets of the people who conducted the interviews, we will not see why the Government chose one of three and we will not see why, if there were ten applicants for a position as ordinary judge of the Supreme Court, why seven of them were found to be less meritorious than three.

It is not a question of transparency, and it is not a question of international standards either because the US system, which I do not suggest we should have, is radically different from ours in that the US Senate has to consider and approve, in the same way that the then Deputy, Shane Ross, once advocated when he was in opposition, a parliamentary vetting of every appointment by a committee in public. That was one of his more exotic ideas at one stage in support of his campaign against cronyism, as he saw it. We are not in that position. International standards can be Canadian, Australian or from New Zealand or wherever. To give an appalling example, the Indian constitution provides that the chief justice should be consulted on appointments to the higher courts in India, and the Indian supreme court - wait for it - ruled that the term "consulted" meant he had a veto. When the houses of parliament tried to challenge that, the supreme court went on to hold that this was one matter of such fundamental importance that the houses of parliament could not interpret the constitution in a way inconsistent with the views of the supreme court. I am making the point that if we look across the common law world even, there is not a single standard, and if we look across Europe, there is a radically different process involving judges of radically different powers.

I want to be clear about this lest anybody misunderstand what I was saying. I was not saying it was necessarily wrong that a judge should not be exempt from the same procedures as a non-judge in looking to be appointed or recommended. I was only referring to the question of eligibility as distinct from discretionary choice and making the point that any High Court or Court of Appeal judge is entitled to serve in the Court of Appeal or the Supreme Court and is deemed capable of doing so if he or she is invited to do so by the president of either of those courts. I have appeared before a High Court judge, acting up so to speak, in the Supreme Court and it is true they are eligible. No one can say, "Sorry, you haven't been appointed by the Government to be here." The statute states such a person can sit at the invitation of the Chief Justice. If they are all eligible to be appointed and to act as a judge, it seems that if we then say that to be appointed by the Government as a permanent member of the court as opposed to being invited by the President of the Court of Appeal or the Chief Justice to act on occasion in that court, a permanent position requires that the Government be restricted in whom it can appoint.It already has appointed the person in question, or the person stands appointed.