Michael McDowell (Independent) | Oireachtas source

Yes, it could do that. It could come up with 12 and bring those names to the Minister. Subsection (5) states that "the Minister shall appoint lay members from among the persons recommended by the Public Appointments Service under subsection (2)." We now have a situation where the Minister, who is depriving the Government of the right to choose its own people for the Judiciary, accords the Minister of the day the right to select from all the people who pass the test of suitability at the Public Appointments Service appointment stage. The Minister can choose the people he wants to be the lay members of the commission. This is a fascinating aspect of this legislation. We take the discretion away from the Government and give it to the Minister. We take the discretion to appoint people as judges away from the Government, but the Minister is entrusted, by the people who drafted this Bill, with the right to decide who among all of the suitable lay persons will actually get appointed. Why are we doing that? If it is so transparent and independent, why does a political officeholder decide who the lay persons will actually be? There is an interesting little curlicue on that as well because if we look subsection (6) provides that "The Minister shall not make an appointment under subsection (5)unless a resolution approving the appointment has been passed by each House of the Oireachtas." Therefore, the laypersons' names will be brought to this House and we will have to decide whether we are happy with the Minister's selection. The same will happen in the Dáil. Wait for the little bonus cherry on top, however.

Subsection (9) provides that "A resolution referred to in subsection (6)[which is the resolution of both Houses of the Oireachtas] shall not be required in respect of an appointment under subsection (8)." Who are the subsection (8) appointees? They are the first cohort of people to be appointed as laypersons at the establishment day. The Government is going to be able, without any scrutiny from the Houses of the Oireachtas, to appoint all the laypersons prior to the establishment day and the Minister alone can do it. The first outing for this great commission of total transparency will be one where Government appointees - Government henchmen - get all the jobs because they are the people who the Government liked most among the laypersons approved by the Public Appointments Service. How much rank hypocrisy can we have that we have this claim that these people will be chosen entirely by the Minister, and it will be above board? Yet, if 50 people apply and 20 are approved as potential candidates, the Minister of the day has the right to look at the list of 20 and say, "I will choose four". The Minister brings a Bill before the Houses of the Oireachtas and says, "Of course, you will all have a right to reject my choices; except that for the first three years of the commission, it will be my cronies who operate this system alone." That is what this Bill states. It will be the Minister's four choices who are on that commission. They will be people who were politically chosen by a political appointee. The Minister will look at the 20 names or whatever it is that comes thorough and say those are the four people that Fine Gael, Fianna Fáil or the Green Party, or all three of them, would really like out of that list. They will be the people and the other Members of the Oireachtas will not have any opportunity to comment on it because they will be the first cohort of lay appointees. Therefore, far from being an apolitical system, we will have a cohort politically chosen by a politician. He or she will choose from among a cohort of people doubtless chosen apolitically. The Minister of the day will say, "There are ten or 12 people on the list before me but I am choosing the following four, and because this is the first go of this commission, nobody gets a right to veto me in either House of the Oireachtas."We are told that is supposed to make a clean, clear and transparent system to prevent the Government from using its own discretion. The Minister is given a discretion as to who he puts on to this commission. That is what we are voting for. This is a shocker, as people say.

It is brazen to say that we could not have a situation where the Houses of the Oireachtas would have any input into the first commission. That will be chosen in secret by the Minister from among the names. It really is brazen. I find it offensive to reason that subsection (9) comes in. Why can the Minister not ask Members of the Oireachtas to approve his nominees in public in respect of the first three years of this commission? The people who are there in the first three years will be eligible for reappointment without having to go back to the Public Appointments Commission, so one could have six years of the Minister for Justice's nominees being the four people involved. That is what we are going for here with our eyes wide open. It is really bad and it should not be permitted.

If it had been said that everybody appointed had to be approved by both Houses of the Oireachtas, that would be fine. At least that would be a political decision. The whips would be on with that. It is not as if we would all sit, the whips would be off and we would be able to make a choice. That is not going to happen. It is going be a party political, whip-driven choice as to who appears as the laypersons on this commission and it is going to be done in secret for the first commission. All of those people are going to be eligible for reappointment if the same Minister or his party is in office for the second time around. That is not worthy. Let us go back now to the GRECO and the Council of Ministers and let us see what the European Commission thinks about this little arrangement, under which there appears to be parliamentary scrutiny but there is not for the first outing, the Minister, a political person, appoints four appointees from a list and the only sanction on him is that somehow his Government supporters in both Houses of the Oireachtas might rebel and vote down his list. That is not apolitical; it is blatantly political. When I was Minister for Justice I could not have thought up a better scheme than this for ensuring my pals got on the Bench. It is disgraceful.

There is sanctimoniousness about the claim that this whole operation is making the system much fairer, more independent and impartial and much more in accordance with European standards. Are these European standards that a party political Minister for Justice chooses from among a wide range of people - his own appointees - whom the first commission can appoint in secret and, thereafter, the Minister uses the party whip to shove them through? That is supposed to be an advance. The Minister has the neck to come in here and say that appointing a practising barrister and a practising solicitor is diluting lay participation so that these four people can be politically appointed instead. It is disgraceful.