Charles Flanagan (Laois, Fine Gael) | Oireachtas source

The real difficulty here is that Senator McDowell approaches this matter in a most adversarial way. He sees a shoot-out in the commission and controversy, differences of opinion, rows and votes at every remove. He sees the Attorney General being outvoted and a showdown happening, with the Attorney General being led in handcuffs from a Cabinet meeting. We have been treated to this type of hyperbole for the past number of weeks but I do not think it has a basis in reality.

I would have thought the commission would reach consensus on the appointment of judges and the names to be put forward to the Government to advise the President. I would also have thought that three names could be reached for the shortlist after due consideration. Senator McDowell, however, talks about a vote and a divide, with the Attorney General being outvoted and having to come back to Government to overturn a poor decision made by the commission. I am not sure the extent to which the Judicial Appointments Advisory Board votes on the number of candidates put forward but I would be surprised if there were handbags at dawn every other day at its meetings.

From the very beginning of this debate, Senator McDowell's disposition has been one of adversarial conflict in respect of all amendments but I do not see the situation in the same way. I see the commission as being in a position to advise the Government and to assist and offer guidance in the process of reaching a consensus on the matter of judicial appointments. I see the Attorney General as bringing expertise and experience to Government and using that expertise and experience to advise the Government on the matter of the shortlist. The Attorney General will be in a position to make a positive contribution to Government on the matter of the names that might be before Government but it would not be desirable if, as in Senator McDowell's scenario, the Attorney General was to be outvoted at every remove. It would not be advisable for an Attorney General to seek the power to tell fellow committee members that, while he or she may be in a minority, he or she will get back at them through Government and get the name of his or her person put forward to the President. The Attorney General is in a unique position to bring expertise to the Cabinet table and to participate in the process.

Senator McDowell is right to say Attorneys General are consulted on all appointments, which is right given their unique experience and expertise. I do not believe it is appropriate for the Attorney General to have a veto over all other members but that is, in effect, what Senator McDowell is arguing for. The Attorney General would be in a position to upstage all other members and undermine the commission at every remove but I am not sure that is in the best interests of the commission. It is important that the Attorney General has the same obligations, the same authority and the same requirements under the legislation as other members of the commission. I do not see the Attorney General being compromised or unfairly treated, nor do I see his or her role, function and powers under the Constitution being interfered with by the legislation.

Senator McDowell asked who would inform an unsuccessful candidate who might, ultimately, have been one of the three whose names went forward to Government. Section 43(5)(h) contains a requirement on the part of the commission to ensure standards are applicable and that they conform to good practice.Of course the commission would be informing the unsuccessful candidates, having regard to the obligation to ensure the good and proper standards of the commission in meeting its obligations under the Bill. I do not believe that in the normal course of events, the kind of conflict described by Senator McDowell will be front and centre in every aspect of the commission's deliberations. I do not envisage that there will be the type of adversarial voting that he sees as being endemic in the context of the commission. The manner in which the Judicial Appointments Advisory Board has arranged its statutory obligations and functions in the past will ensure there will be a level of consensus between the lay members of the commission and the lay chair of the commission. This process will be enhanced by ensuring the presidents of the Judiciary will be on the commission. This will ensure a consensus can be forged. I believe that will happen before the Government reaches its conclusions on the matter of the policy decision regarding the three people to be recommended by the commission for further consideration by the Government, including the Attorney General who has a role and function as a member of the Government.