Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I do not accept Deputy Daly's contention that there are no constitutional issues here - in fact, there are very much so. The effect of amendment No. 134, in the name of Deputy Wallace, would require the Government to nominate for appointment one of the three persons recommended by the commission process - "require" being the operative word. I repeat that successive Governments down the years have not gone beyond the process as set down under the judicial appointments regime. I advise the committee of the position of successive Attorneys General going back to the mid-1990s. The position under the Constitution is such that the Government has discretion under the Constitution in advising the President on whom to appoint to judicial office.

Any attempt to interfere with, limit or fetter that discretion, either by an Act of the Oireachtas or otherwise, that might require the Government by law to appoint persons from a list of three is problematic. The Government must at all times remain free under the Constitution to choose a person other than a person among the names recommended by the commission.

I remind the committee that, under section 50, on the publication of a notice of appointment, and under section 51, on the requirement regarding the annual statement to the Houses, the Government must set out whether an appointment was made from the names recommended by the commission. Therefore, the Government is clearly accountable for its decision but it must be accountable in a way that does not in any way interfere adversely with the constitutional position, that is, that the Government cannot constitutionally be fettered by law in regard to the individuals it chooses to recommend to the President. The clear advice to the Government is that the acceptance of the amendment would not be in accordance with the requirements of the Constitution.

Similarly, amendment No. 137 would require the Government to nominate for appointment one of the persons recommended in the commission's process. Again, I envisage clear constitutional issues and difficulties, which have been adverted to by the Attorney General.

Amendment No. 150 seeks a change in regard to the advising of the President by requiring the Government to consider only those names recommended as opposed to considering those names first. Again, I envisage a constitutional issue. In no circumstances should the Government be restricted to considering only the names recommended because, under the Constitution, the Government enjoys full discretion as to whom it recommends for appointment. In this regard, I am drawing clearly on advices and statements of the current Attorney General and, indeed, successive previous Attorneys General.