A point that arises in this context - I have not located it in the Bill and perhaps the Minister could assist me - is whether the shortlist is to be kept secret in all circumstances. Is that provided for in the legislation?

Is a Cabinet Minister at liberty to say to Senator Ward, for example, that he is one of the three that may be eligible next time? Is a Minister entitled to have that kind of conversation? If Senator Ward is number 1, 2 or 3 on the list, is he entitled to know that?

I know he would.

I know there is no number 1, 2 or 3 on the shortlist but is somebody who is shortlisted entitled to know it? Is anybody else entitled to know it? Is it a secret and is it an offence to reveal it? That is a point I would love to know about and I do not see it in the legislation. Maybe it is there.

I follow that. A person will know whether they did or did not make the shortlist.

Most people who go to the trouble of applying and being interviewed would like to know what happened and whether they were or were not in the top three. Some people are so modest that they do not want to know whether they made the shortlist. Assuming that is the case is there some rule that the identity of the persons on the shortlist coming to the Government is to be kept secret except for communicating it to them?

Let me tease this out. If the three names are sent forward to the Minister for Justice where does it say in the Bill that the Minister for Justice is not entitled to tell anybody else who is on the list?

I fully appreciate what the Minister has just said but we need more clarity. The Minister gets a list of three names and goes to the leaders of the coalition parties in Government. Are they prohibited from asking any questions of anybody else as to which of the three is the better or more suitable candidate? I do not think it is in the Bill. This is not a fanciful thought. If I was the Minister, Deputy Eamon Ryan, and the names of three barristers or solicitors appeared in my hands would I be permitted to ask other…

Or forbidden, yes. It is a fairly important point because if there is no secrecy in this it will become known that Judge Lynn Ruane or whoever was rejected by the Cabinet.

Such a thing would happen. Let us not cod ourselves. If people ask others for advice as to which of the three should be appointed or what are the qualities of the three as far as the Government is concerned, such issues would involve who is liberal and who is conservative. If they are free to make those inquiries this will leak like a sieve. There is no point in codding ourselves that that will not happen. In what I call the Shane Ross Bill, I thought there was some prohibition on any leakages of this kind but I do…

Consultatively.

I appreciate there is a difference between canvassing and the process whereby the leader of a small party in coalition would receive three names from the Minister for Justice and say "I do not know these three people from Adam and I do not know between them, which of them is the best, because the Bill says there is no order". If I was the leader of a party in the Government I would certainly want to take soundings before walking into Cabinet to be told they are all on a list and they are all of equal standing, all …

I spoke to the Minister during the earlier stages of this debate about section 42(1), which states: (1) The Minister may request the Commission to make recommendations for appointment or for nomination for appointment to judicial office, as the case may be, where— (a) a judicial office stands vacant, or (b) he or she reasonably anticipates that there will be a vacancy in a judicial office. It seems to me that the word "may" seems to confer discretion on the Minister on this matter, and that it will not be the duty …

I do not think I am exaggerating when I say it is three months, but it certainly must be two months. You must put up your advertisements, give people a reasonable amount of time to consider whether they want to apply and give them time in which to get any requisite references. Then the list comes back. In the case of the District Court, for example, if there are 40 applicants, the first thing is whether all of them get an interview. I wonder if they do. That could take a long time to get through. Decisions then hav…

I move amendment No. 36: In page 28, between lines 28 and 29, to insert the following: “Right of Government to advise President 43. Notwithstanding the provisions of section 42, nothing in this Part affects, limits or inhibits the right of the Government in any case where it advises the President to appoint any member of the Supreme Court, the Court of Appeal, or the High Court to any judicial office in any of those courts to the vacancy thereby created without seeking any recommendation from the Commission.”.

It seems that the process of filling the position of Chief Justice will be carried out by the commission, normally where the Chief Justice is in office and will participate as one of the four judicial members of the commission making a decision, but if, for instance, there was a resignation or whatever, the next senior judge of that court would carry out that function. Am I correct in thinking that? Section 45(1)(a) envisages the Chief Justice making an application to the commission, and I presume that that would b…

I do not know whether the provisions of section 45(2) answer Senator Ward's query.

I think it does, in fact. On a slightly different point, in relation to subsection (4), the Judicial Council appoints a substitute member if one of its elected members is looking for promotion or whatever. Are they free to nominate any member to be a member of the commission? For instance, if the person for whom the substitution is made was originally a barrister, can he or she appoint a judge who was originally a solicitor as the substitute or does that balance still apply as between solicitor judges and barrister…

I do not quite see why it applies in section 45(4). It seems that the board of the Judicial Council is free to appoint anybody who is on the council.

That is when they are electing somebody. He or she has to be originally a barrister or originally a solicitor, but where the person is merely acting up for one occasion, does that balance have to be maintained?