Michael McDowell (Independent) | Oireachtas source

It was an excellent intervention, if I may say so. I welcome that remark but the point is that the Constitution is what the Supreme Court says it is and it ultimately means what the Supreme Court says it means. Therefore everybody on any Supreme Court makes a declaration to uphold the Constitution and the laws. However, in the minds of different people who might or might not be appointed to that court, there could be very different conceptions of what the Constitution actually means with regard to, for example, the balance between freedom of speech on the one hand and the prevention of hate speech on the other. There could be very different views on where that balance lies. It is on that precise point that the Government has to make up its mind.

To come back to this commission, there cannot be a competition run by the Public Appointments Service designed to create a body which is to second guess the Government on such issues. It just cannot be done no matter who is put on this commission. If it was all judges, that would be bad. If it was all lay people, that would be bad. If it was all lay people of one kind or all lay people of another kind, it would be equally bad because those people would have no mandate from the people of Ireland to make decisions of the kind I have mentioned - value judgments about the kind of Supreme Court we should have and the direction the Constitution should take. They would have no mandate from the people. No statutory formula could confer on them a mandate which is reserved exclusively to the Government.

What we want to do with this amendment to section 7 is to state, clearly and unambiguously on order that nobody can be under any illusion as to what this Act is about later, that "Nothing in this Act shall be construed as limiting the advice the Government may give to the President with respect to the appointment by the President, under Article 35 of the Constitution, of a person to be a judge." I note that similar wording appears in section 40(3) of the Bill as it currently stands, which relates to the functions of the commission. However, because we are proposing that in certain cases a senior appointments committee should be involved, the provisions of section 40(3) are not sufficient because they refer only to the commission carrying out its functions. This particular amendment is intended to apply to the Act in its entirety. That also applies to amendment No. 110.

What I am asking this House to do is to echo the sentiments of the Minister and to ensure that this Act does not derogate from the constitutional entitlement and duty of the Government to use its own judgment on these matters. Insofar as the judicial appointments commission and the existing Judicial Appointments Advisory Board, JAAB, comes up with suggestions or advice, suggestions or advice are all they are. In the end, responsibility lies with each and every Minister, no matter how reluctant he or she may be, to decide who should be appointed as a judge. I ask the House and the Minister to accept this amendment.

I want to say one thing on that last subject. At this point I have no inkling as to which, if any, of the amendments tabled by myself, Senators Boyhan, Bacik, Norris or anybody else in this House in this debate are likely to receive a favourable view from the Minister. We have had no hint as we have gone through the first five amendments - and thank God we are moving forward-----