Charles Flanagan (Laois, Fine Gael) | Oireachtas source

This is a very important issue. I do not propose to accept the amendment for the following reasons. The issue was the subject of public discourse prior to the arrival of this Bill before this committee. Ranking, exercising preference or advocating a particular order are not contemplated in the Bill.

The question of whether the names forwarded to Government ought to be given in the order of preference was discussed by the committee at the pre-legislative scrutiny stage in January 2017. There is an important constitutional issue set out in Articles 35 and 39 of the Constitution, where the President appoints judges only on the advice of Government. The concern was that ordering candidates in order of preference would place a limitation on the Executive obligations of the Government. It would interfere with discretion that Government must maintain. I see a real difficulty with a Government being bound by recommendations in a way that reduces its authority in terms of the exercise of choice or making an informed decision. That would unduly interfere with Government's prerogative in so far as tendering advice to the President.

Deputies will be familiar with the current procedure under the Judicial Appointments Advisory Board. It considered the issue of whether to recommend applicants in order of preference and in its 2002 report it set out the view that such an order of preference would place too great a restriction on what is the constitutional prerogative of Government to select judges. That was the view of the judges 15 years ago. I do not recall in the period since then any departure from that view. I ask the committee to be mindful of the constitutional issues involved and having full regard to those issues, I do not propose to accept the amendment.