Michael McDowell (Independent) | Oireachtas source

Section 43(2) reads: "An application for recommendation ... shall not be made ... otherwise than pursuant to an invitation issued under section 42."A section 42 invitation can arise only where the Minister requests the commission to make recommendations for appointment to a judicial office where a judicial office stands vacant or he or she reasonably anticipates that there will be a vacancy in a judicial office. If a judge retires or dies before retirement, that does not apply. When Deputy Charles Flanagan was the Minister, this whole process was gone through in this House, so I am not going to waste time on it again. It was very clear that what was in mind was that every single vacancy would have to be the subject of a request from a Minister and that the commission would issue an invitation to apply for a vacancy only upon getting a request from a Minister. The idea was such that anybody interested in being promoted at some point over the following one, two or three years, or another period, should send in an application. That is not the way it was done, and we were told it would not work that way, so I do not see why it is the case now.

With regard to what happens at the moment, the reason the problem I am raising is no difficulty is that no existing judge applies to JAAB for any job. No existing judge from the High Court is required to apply to JAAB to be appointed to the Supreme Court. That whole process does not exist. The JAAB process applies only to new applicants to the Judiciary.

This is going to cause chaos. It is going to slow the whole process down. We are only codding ourselves if we believe a process that involves an interview and the sending out of all the information to all the applicants about the process and all the rest of it is triggered only by a request from the Minister. An invitation to applicants must take place once the vacancy exists and a request has been made, so it has to start again for everybody.