Michael McDowell (Independent) | Oireachtas source

There is an aspect of section 47 that we have to consider carefully. It states:

(1) The Commission shall, following its consideration of applications in accordance with section 46, recommend to the Minister- (a) where there is one judicial office in the State to be filled in a court, 3 persons for appointment to that judicial office, and

(b) where there is more than one judicial office in the State to be filled in the same court, 3 persons and 2 additional persons for each second and subsequent vacancy for appointment to those judicial offices.

This means that if there were two vacancies in a court, it would be five people, and if there were three, it would have to be seven people recommended to the Government. Section 47(2) states:

Where the Commission cannot, whether by reason of the number of applicants or the operation of section 46, or both, as the case may be, recommend to the Minister the number of persons specified insubsection (1)(a)but can recommend a lesser number of persons to the Minister, it shall- (a) recommend to the Minister that lesser number of persons, and

(b) at the same time as making that recommendation, set out in writing the reasons it is unable to recommend the number of persons specified in that subsection.

If there are no applicants, that is dealt with by section 47(4). Section 47(5) states: "The Commission shall, at the same time as making a recommendation, or informing the Minister that it cannot make a recommendation, under this section forward the name of each person who made an application in respect of the vacancy concerned." Why is that provision required? Why is it required that the Government should be told who the runners-up are, especially if the number of recommendations does not make the number of three, five or seven as the case may be? Why is the Government informed of the identity of people who for some reason or another applied for the job and failed? Is it supposed to do anything about it? Is it to take any notice of this situation? Is it to note that such and such a person has been turned down? Does it have any discretion? If the commission thought that only two people were suitable for the job from among the applicants but there were four others and it outlined their names, can the Government even in those circumstances say it wants to appoint three people to fill the vacancies in this court and note that these people applied but were not recommended? Can the Government decide that from among them it should at least be able to choose to fill the vacancies?