Michael McDowell (Independent) | Oireachtas source

That is what the Constitution requires. It is entirely unconstitutional to attempt to invade the Government's function in this matter, which is a democratically accountable function. It is a non-delegable function of the Government, given by the Constitution, to decide who should and who should not be on the Supreme Court.

There could be two equally capable lawyers but the Government might decide, on grounds of gender, that one should be on the Supreme Court. There could be two equally capable and honourable lawyers where one is a drastic social conservative and the other a drastic social liberal, and the Government could say it did not want one of them on the Supreme Court. It is not merely proper but is mandatory on the Government to exercise its own discretion in these circumstances. It is not an avoidable function and one cannot say people in an office block on the far side of town can come up with three people for the court. We cannot do that constitutionally. The people who devised this legislation would have had the backing of some members of the Judiciary but, while I do not want to be critical of the Judiciary, it sometimes talks about its own interests. The members of the Judiciary in question do not, however, have the last word on this.

The Minister has told us that it is the intention of this statute that members of the Government should be kept in the dark as to those who were willing to seek appointment to the Supreme Court but were not shortlisted by the process. He said the Attorney General, sitting at the Cabinet table beside the Taoiseach, should be prohibited by criminal law from disclosing that information to members of the Cabinet. To use a Trumpism, how bad and how sad a proposal is this? It will be a crime for the Attorney General to say he or she has a shortlist of three people but that Mr. Justice Norris is ten times better.