I might add that, even if the three to five continued to obtain, the Government would not be obliged to accept any of those candidates; it could make another selection. Irrespective of the number of names presented to it, if it deemed it proper, the Government could select another candidate for appointment where there might be a need in a court for a given type of experience. All of those factors must be taken into account by a Government in making any judicial appointment.
Indeed the way Members argue leads me to conclude that perhaps the manner in which some parties or some Members made such appointments in the past is really what concerns them. I am informing Members of the requisite limitations on this board under the Constitution. I should not have to lecture eminent lawyers, three of whom are present, and another Member who has legal training but, as she said, has not practised at the Bar or as a solicitor. I cannot go against the constitutional imperative on the Government in this respect.
Earlier Deputy O'Donoghue argued that solicitors and barristers might be slow to submit their names in the belief that their colleagues would know, might laugh at them — I think that was the expression he used — or ridicule them. If this board wishes to nominate and recommend more than seven names to Government, it should be able to do so. It has been suggested that up to 770 names may be submitted but everybody knows there will not be that number of applications for any judicial appointment, nor will there be that number of recommendations to Government. The board will have to consider the names of candidates, or of those with whom they consult or invite to submit their names under whatever procedure it decides and, thereafter other factors such as whether any of them is fully qualified for appointment. On occasions applicants may believe them to be qualified but their service as a solicitor or at the Bar may have been broken. In such circumstances, the Judicial Appointments Advisory Board will have to be satisfied that the requirements of section 5 (2), as amended, of the Courts (Establishment and Constitution) Act, 1961 are met in the case of any appointment to the High Court or Supreme Court.
Nobody said this board will have power to make judicial appointments and it would be wrong of me or anybody else to pretend that that was the case or was its objective. This is an advisory board and that is all it can be under the Constitution. Some Members say that seven nominees are too many and suggest it would allow the Government greater discretion than it should have. I might point out that three to five nominees gave the Government of that day all the discretion it needed. If the Government do not consider any of the three to five nominees suitable for appointment and/or submission to the President, it can select another candidate. We must remember that the appointment of judges does not take place in a vacuum. On the advice of that board, and in accordance with the needs of any vacancy, the Government must decide on and advise the President of the most suitable candidate. Whether Members like it or not, that will be the task of this advisory board and was its task in November 1994 whatever the political background to its establishment, to which I was not privy.
This will allow for names to be recommended to the Government and the remainder of the names to be given to the Government so it can see the range of names. I believe that is what Deputy O'Donoghue is looking for by saying that barristers would be shy of putting their names forward. This gives them a chance to be considered. I have said it over and over again and I am sorry to have to say it again, but it is an advisory board. I am not dressing it up as anything more than that; nor, indeed, did the last Government. It is an advisory board due to the imperatives of the Constitution.