Michael McDowell (Independent) | Oireachtas source

I spoke to the Minister during the earlier stages of this debate about section 42(1), which states:

(1) The Minister may request the Commission to make recommendations for appointment or for nomination for appointment to judicial office, as the case may be, where— (a) a judicial office stands vacant, or

(b) he or she reasonably anticipates that there will be a vacancy in a judicial office.

It seems to me that the word "may" seems to confer discretion on the Minister on this matter, and that it will not be the duty of the Minister to make recommendations. When it is invited to do so, the commission will issue an invitation through advertisement for applications from persons who wish to be considered for selection. In those circumstances, the commission will issue information, as set out in subsection 4, in addition to the invitation by advertisement. Regarding the phrase "he or she reasonably anticipates that there will be a vacancy in a judicial office", and returning to the point we made earlier, if it is likely that an ordinary judge of the Supreme Court will be made Chief Justice, can the Minister at the same time seek applications to fill any vacancy that would arise from such an appointment or must the Minister wait until the vacancy has actually occurred? On one view of section 42(1)(b), the Minister could reasonably anticipate that there will be an appointment to the position of Chief Justice and, in all likelihood, there will be a vacancy in the Supreme Court. Alternatively, must the Minister bide her time and wait for the actual outcome of the first three-month process before shooting the firing pistol to fill any consequential vacancy?