Michael McDowell (Independent) | Oireachtas source

That situation existed at the time because the legal adviser to the Government - the Attorney General - was expected to be in a position to advise the justice Minister about his proposal, while also advising the Cabinet about the suitability of the person in question. The Judicial Appointments Advisory Board was in existence at the time. Maybe this has gone out of the Cabinet handbook since then - I do not know - but it was in the handbook when I was in the Cabinet. That is the procedure which applies.

The Minister has said it was decided on foot of the public consultation process that all appointments should be made in the same manner. If that is the case, why did he propose a special committee for senior appointments in the original form of this Bill? That proposal somehow evaporated off - it was changed and emasculated - when amendments were made during the Dáil process. The fundamental point is that the Minister is contending that nothing in this Bill, if enacted, will curtail in any way the Government's capacity to make an appointment at its own discretion in accordance with the Constitution. That is a statement of fact because the Constitution is superior to this legislation, which means the Government cannot have this right taken away from it. I ask Senators to examine section 40(3), which acknowledges this fact in an elliptical manner. The subsection in question provides that: "Nothing in subsection (2)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." It is clear to me that this provision was included by the draftsman to acknowledge the constitutional realities. One can have 1,000 judicial appointments boards or commissions, but in the last analysis it is the prerogative of the Government under the Constitution to make its own decision quite independent of any advice that may come to it, however it is dressed up. Regardless of the millions of euro that are spent on the establishment of a different system, it remains the Government's constitutional prerogative, function and duty, if it considers it appropriate, to make its own decision in accordance with its own wishes on the matter.

Section 40(3) will not save this Bill from a challenge to its constitutionality if the other provisions of this Bill have the effect of causing the Government to make a decision entirely in the dark, except by reference to a shortlist it has received. It cannot be said that the Government still has the right to make an appointment of anybody it wants while simultaneously saying that it may not know who wants the position, who applied for the position or who has consistently been disregarded on the shortlist. This little subsection, which provides that "Nothing in subsection (2) [or, presumably, in the Act] shall be construed as limiting the advice the Government may give to the President", will not save this Bill from a challenge to its constitutionality.If the entire rest of the Bill does de factolimit the Government in giving advice to the President, then the Bill itself is unconstitutional. As to what Senator Norris said about me expressing my views, I am what I am. I do not claim to be infallible. The Minister is right; I have in the past been wrong about things being unconstitutional. The Minister is well aware that Attorneys General are not infallible. Much to one's surprise, the odd piece of legislation gets invalidated by the courts even though it was constitutional in one's judgment at the time of advising the Government. These things happen in the strangest ways. One might think that a prohibition on asylum seekers applying for employment was a constitutional provision, but the Supreme Court ruled that after a certain period of time it becomes excessive and disproportionate.