Michael McDowell (Independent) | Oireachtas source

That really does not explain anything. It 18 months' time or however long it takes to establish this commission, if this legislation survives an Article 26 reference, we do not know who the Minister will be. We are giving to whomever will be the Minister for Justice at that time, the right to appoint people before the establishment day to be members of the commission. Section 14 states:

(4) Subject to section 19(3)— (a) a lay member shall hold office for a period of 3 years from the date of his or her appointment, and

(b) where the lay member’s term of office expires with[in] the passage of time, he or she may be reappointed by the Minister to the Commission for one further ...[term] of 3 years without a further recommendation by the Public Appointments Service or a further resolution under section 13(6)

What this means is that the first raft of appointees, whether they are appointed before or after the designation date, can all be reappointed for a further term in the absence of any Public Appointments Service process. The Minister is asking us to take on faith that a future Minister will not, before the establishment date, appoint three members who, if that Minister remains in office, can be left there for six years without parliamentary scrutiny of any kind. Frankly, that is wholly unacceptable. The propaganda that has been delivered about the independence of these lay members is just propaganda, because they will be politically chosen. A Minister will choose four persons from, say, a group of 20 who have been approved by the Public Appointments Service to be the first four. If that Minister does that before the establishment day in order that the commission will be up and running from day one, those people can be reappointed by that Minister for a further three years without any Oireachtas scrutiny whatsoever. That is the long and the short of this. There is no way of escaping that. This is what we are being asked to put into law.

Of course, it is possible that a Minister would allow the establishment day to pass and then appoint laypersons. That is possible. However, it is equally possible - and, in fact, legislative licence is given - to do it the way I am talking about. If I were where the Minister for Justice is now, in three year's time or 18 months' time when this commission gets going, I would be able appoint four persons from the long list on a political basis chosen by me, and I can, as long as I remain in office for three years, ensure that they are not subject to any scrutiny for a combined period of six years. That is not necessary and it is wrong. If it is a good idea that the Houses of the Oireachtas should scrutinise who these laypeople are and if it is a good idea that they require approval before they are allowed to carry out the tasks laid out for them under this legislation, then it is a good idea for it to apply to everybody, regardless of whether they are chosen before or after the establishment day. Otherwise, we are giving whomever the Minister of the day is in 18 months' time six years to stack this body with four politically chosen appointees of lay persons.