Michael McDowell (Independent) | Oireachtas source

I have heard what the Minister has said. What he intends this legislation to achieve is now clear. He intends that the Attorney General should be prohibited on pain of committing a criminal offence from imparting to the Cabinet the identity of unsuccessful candidates in the commission. The Minister says that this is appropriate because to excuse the Attorney General from any such obligation would somehow allow him or her to subvert the decision of the commission, assist the Cabinet in doing so or have a status different from the other members of the commission.

Looking to the Constitution for starters, the Attorney General is not just some officer of State. He or she is a constitutional officer of State whose function is to be the legal adviser to the Government. That is the function. The Attorney General is not like the chairman of the Revenue Commissioners or somebody who has just been appointed ex officioto this commission. He or she only holds the position of Attorney General because he or she is the legal adviser to the Government. Therefore, if we say that the legal adviser to the Government is to be ex officioa member of this commission, we must take the Attorney General as we find him or her under the Constitution, which is that he or she is the legal adviser to the Government and comes in that capacity and no other. The Attorney General is not like the chairman of the Revenue Commissioners, the Ombudsman or somebody else who is not a constitutional officer. He or she is being selected directly because he or she is the legal adviser to the Government.

The Minister has spoken about the undesirability of the Attorney General being in a position to, in effect, subvert a decision to which he or she was party but let us get the Constitution right on this. If the Attorney General was adamantly opposed to Michael McDowell, S.C., being on a shortlist and was outvoted by a lay majority, as is possible under this statutory scheme, to say that he or she is party to the decision is stretching things a long way. It involves saying that it is a decision to which the Attorney General is effectively handcuffed whether or not he or she likes it, opposes it or thinks it unsuitable. To say in that context, as the Minister now seems to be implying, that because the Attorney General will be on this commission, he or she effectively has a duty of loyalty to the decision of the commission even where the Attorney General has been outvoted and must not advise the Government to take a different course is to subordinate him or her completely and ignore his or her role as legal adviser to the Government.

Therefore, I do not accept the proposition now advanced by the Minister that this would create a two-tier membership. We are bringing a man or woman on to this commission ex officioto perform a function. By making the Attorney General an ex officiomember of the commission, the only person we are bringing on is the legal adviser to the Government itself. That is a constitutional status. The Attorney General has a constitutional duty to advise the Government on all matters relating to law. It has always been the case that the Attorney General of the day contributes to the debate on the suitability of a judge. I think the Minister candidly admits that there would be no problem with the Attorney General looking at the shortlist and saying it should be "A" rather than "C". In my view, there is no problem with that. That is a function the Attorney General has.

As I said on the last occasion, it may have changed in the meantime but it was certainly the case when I was Minister for justice that the Attorney General had to be consulted under the Cabinet procedures before the Minister for justice made a proposal. Why would that be among the Cabinet procedures if it was not the case that the Attorney General could advise the Government as to the merits of the Minister's proposal? I believe that to function properly as Attorney General, the individual in question should be free at a Cabinet meeting to express his or her views not merely as between the shortlisted people, particularly when it is quite possible that he or she will not have agreed with the composition of the shortlist in the first place, but to indicate to the Government that there are other people who are interested in the job, have not been shortlisted and in his or her view, are more suitable for appointment. I believe this function derives from the constitutional relationship of the Attorney General as legal adviser to the Government with the members of the Government itself and cannot be interfered with by statute. If the Attorney General is to be deprived of freedom to disclose to the Government what he or she knows to be the true situation regarding the shortlist, who was and was not on it and who was and was not available, that seriously impairs the right of the Government to know whether it is making the best appointment.

The Minister says there will be a two-tier membership if the Attorney General was to be excused regarding this obligation. First of all, it is a current obligation on the Attorney General that naturally flows from the fact that Cabinet procedures require the Attorney General to be notified of any proposal by the Minister in advance of and to consult with him or her on the appointment of any person to be a judge.It naturally flows from the constitutional function of the Attorney General that the occupier of that office should be free to give the Government his or her frank evaluation of the shortlist and of the Government's other options including persons who are willing to be appointed but who have not been shortlisted.

Section 40(3), which is about the obligation to consult the commission about a judicial vacancy, states, "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." That clearly is intended to recognise the fact that the Government is at large among eligible people to appoint them to judicial office, that the Government's right to appoint persons it considers suitable is a constitutional right, and that the Government's function in tendering advice to the President is a constitutional right and duty which the Government cannot delegate to anyone else. In the end the Government must be free to make its own decision on this matter.

The Minister then says that the Attorney General would be in a kind of a special category among the members of the judicial appointments commission if he or she was excused from the right to inform the Government of the true situation regarding applications from promotional positions and appointments in the Judiciary. The Attorney General, however, is in a special category by definition because the function of the Attorney General is to advise the Government on the suitability of persons to be appointed as judges. He or she is a special case and the Minister is putting a person in as a special case. It raises the question, if that is not the function of the Attorney General, if that is not his or her status under the Constitution, or if that status is irrelevant to membership of the commission itself, why include him or her? I strongly support the Attorney General's presence, but I know why. It is because the Attorney General should be in a position to tell the Government that certain people are not the best and that, in his or her view, there is somebody better. The Government should be entitled to say that it agrees or disagrees with the Attorney General as the case may be.

It does raise the question of why the Minister sought in the Dáil to have the Attorney General included. If the Attorney General is going to disagree with the commission and to be outvoted and then not be in a position to say that he or she was outvoted, he or she would be in a very compromised position in the Cabinet discussion on the matter. Some Ministers might say that they do not like the look of the shortlist while others might say that the Cabinet has to pay attention to it. They may ask the Attorney General what he or she makes of it and he or she will have to say that he or she cannot tell Cabinet who the unsuccessful applicants were because to do so would be a criminal offence and would break the clear terms of the statute. I cannot see what the function of the Attorney General is at all if he or she is put in that invidious position.

I suggest that there is a problem here. The first thing one should do is not to look at the terms of one's own Bill and say that this will be the law and that will solve the matter. One should look at the Constitution first and ask what the power of the Government is. The Bill itself acknowledges that the commission's recommendations cannot be binding on the Government and that, under the Constitution, the Government is free to make its own decision, including a different decision if it so wishes.

That is the first constitutional proposition. The second is that the Attorney General is the legal adviser to the Government at the time it makes its decision on that very point. The third constitutional issue is that the Government is entitled to have the advice of the Attorney General frankly and honestly given to it by reference not merely to the shortlist before it, but to its options outside the shortlist. It is entitled to be informed of the fact that persons whom some members of the Government might consider more suitable, and who the Attorney General might agree are more suitable, have consistently been excluded from shortlists submitted to the Government.

One cannot wriggle away from the Constitution and just say that this will be in the Bill. Nor can one say that, by the way, the Judiciary recommended something like this. The Judiciary did not recommend that the Attorney General should be prevented from frankly advising the members of the Cabinet about the other unsuccessful people. If members of the Judiciary did so recommend, they would have to put on their thinking caps because if the underlying truth is that the Government is free to go outside the terms of a commission report it must be the case that the Government is entitled to legal advice from the legal adviser to the Government about whether, in his or her view, the shortlist is appropriate or not. I do not see why we cannot just acknowledge that simple constitutional fact. I do not see what the problem would be in so doing.

The point is that one of the problems with legislation is that when it comes before the courts there is this double construction rule. If legislation is open to two constructions, one constitutional and one unconstitutional, and if it is challenged, the courts look at it and seek to give it a constitutional interpretation. That is clear. It is an established part of our constitutional jurisprudence. Here, however, we have a situation where the Minister is telling this House that he intends to put these restrictions on the Attorney General in respect of the advice that he or she can give to Cabinet and that he intends to do it through penal provisions in a statute. He intends the Attorney General to be no different from any other member of the commission in respect of the obligation of confidentiality.

It is utterly and completely wrong to force the Government into a situation where the Minister for Justice and Equality is at Cabinet making the proposal and says that he or she does not know who else was interested, where the Attorney General is sitting beside the Taoiseach at the Cabinet table and does know who else was interested, where the Cabinet is sitting around the table wondering whether the shortlist is the best that can be done, and where it is to be a criminal offence for the Attorney General to tell the Government that in fact there were five other people whom he or she considered to be better but that he or she was outvoted at the commission. I said on the last occasion that it seems to me to be unconstitutional and I believe it to be so.

Some people may think that this will become law and doubt that anyone will have locus standito challenge it thereafter, but I believe that any citizen, and particularly any lawyer who is an applicant for judicial appointment or who wishes or is eligible to be appointed, would have locus standi to challenge the constitutionality of this provision.The President would be well advised to put any Bill which contains these provisions before the Supreme Court for its adjudication on whether what the Minister says he intends the legislation to achieve is compatible with the Constitution. The law is as it is declared to be by the Supreme Court and I do not claim infallibility on these matters but these provisions, taken together are intended to spancel, compromise and diminish the constitutional role of Government and make it more difficult for it to avail of discretions which it is entitled to exercise under the Constitution and which cannot be taken away from it.