Mick Wallace (Wexford, Independent) | Oireachtas source

I am obviously of the opinion that the Government is overstating the meaning of the constitutional provision with regard to its role in advising the President on the appointment of judges. The relevant article of the Constitution to which I understand the Minister to be referring is Article 13.9, which is a general provision on how the President exercises his powers and functions, not just in the appointment of judges. It states:

The powers and functions conferred on the President by this Constitution shall be exercisable and performable by him only on the advice of the Government, save where it is provided by this Constitution that he shall act in his absolute discretion or after consultation with or in relation to the Council of State, or on the advice or nomination of, or on receipt of any other communication from, any other person or body.

Therefore, all the Government is required to do according to Article 13.9 is advise the President in his appointment of judges. Nowhere does it state the Government, in advising the President, is in turn precluding itself from taking advice from a commission or from enacting legislation setting out a process restricting itself to just three names provided by that commission.

The ICCL submissions from 2014 suggest the Government should be restricted even further to receiving the three names ranked in order of preference, as we have been discussing. It should be obliged to nominate in order of that rank. In order to respect and not unduly fetter the Government's discretion, the proposed amendment leaves the Government the final choice of selecting one of the three names.

Reference was made previously to an article by Senator Michael McDowell, senior counsel, stating it is 100% clear that it would be unconstitutional to restrict the Government to picking only one of three names provided. A Bar Reviewarticle of 2017, by another senior counsel, states the opposite.

Senior counsel can only give their opinion as to whether something is constitutional or not but only the higher courts can hold or decide that something is constitutional or unconstitutional.

Did the Minister ever seek advice from the Attorney General, who would have had to seek an opinion from a senior counsel as to the specific question of whether it would be unconstitutional to restrict the Government's power of nomination to a list of three of names provided by the commission? If so, will the Minister tell us which senior counsel was used, the date of the opinion and whether the Government will publish it? I know the Government does not normally agree to that but given it is such a serious issue, perhaps it might on this occasion?