Michael McDowell (Independent) | Oireachtas source

I believe that is unconstitutional, but it is a contrived opinion of mine. To me, there is absolutely no excuse. Senator Bacik has just arrived in the Chamber.For her information, I point out that the Minister has clarified that once the Bill comes into operation, it will be prohibited for a member of the Judiciary to communicate to the Government his or her willingness to accept promotion or appointment to the Court of Appeal or the Supreme Court and the only method of communication with the Government by a sitting judge regarding a willingness to serve in that way would be by making an application to the commission. I believe that is manifestly unconstitutional. The Government has not merely a right, but a duty to consider all people, particularly sitting judges, who are eligible to serve and willing to accept an appointment to one of those courts. It is manifestly unconstitutional to set up an advisory commission, which turns into a censorship device such that the Government is prohibited from knowing that a particular judge is willing to serve on either of those courts.

One of the fundamentals of the Constitution is that it is an executive function of the Government to advise the President on such matters. It is not merely a right; the Government has a duty to do so. The Government must consider its options, but in order to do so it must be informed of what those options are. One cannot state it will have discharged its function if the only way under this new regime that it will become aware that Mr. Justice Michael McDowell, a member of the High Court, wishes to be considered for a vacancy in the Court of Appeal or the Supreme Court is via Mr. Justice McDowell making an application to the appointments commission, which then decides whether the Government is made aware of that name having been put forward. According to the Minister, the commission, including the Attorney General, will be prohibited from telling the Government that a judge applied but was not included on the shortlist. A first year law student in King's Inns would know that is unconstitutional. One cannot do that to the Government. One cannot state that the only names it will be lawful for the Government to be told are the names chosen by people outside of Government, the majority of whom are not judges, although that is irrelevant, and that the choices will, therefore, necessarily be curtailed.

The fig leaf saving this Bill from manifest unconstitutionality on another front is that it is accepted in the Bill that the whole procedure does not prevent the Government from appointing an eligible person off its own bat. However, that fig leaf does not apply if the legislation provides that the Government cannot know the identities of wiling candidates other than the three put forward on a shortlist. Given the Government attitude to my amendment, I am being asked to assent to legislation which is manifestly unconstitutional. I have no doubt on this matter. There are occasions when lawyers query the constitutionality of various matters. As I have stated, I do not claim infallibility on this issue. However, this is manifestly unconstitutional if it has the meaning for which the Minister has contended. This House should not be asked to accept legislation that, in the view of its Members, is unconstitutional.

It is a forlorn hope, but I would love to see a memorandum detailing the Attorney General's reasons for this being constitutional. His opinions are never circulated and, having been Attorney General, I see good reason for that, but I would love to see the arguments as to why the provisions for which the Minister is contending comply with the Constitution. I would love to see set out in writing why the points I am making are wrong because, to me, they are manifestly right.

Ultimately, I hope the Bill will be tested by the Supreme Court on an article 26 reference because these issues are such that on ordinary locus standi rights to challenge legislation, it would be difficult to work out who would challenge it. Are we inviting a disappointed High Court judge to take a legal action pointing out that he or she was not recommended or appointed and is disappointed with the process? Perhaps a case will be taken by an ordinary citizen who thinks that the Judiciary would be improperly composed if this legislation should come to pass and that a decision of the Court of Appeal was invalid by reason of the improper constitution of the court. An Article 26 reference would be entirely appropriate in this case.

The Minister's stated that I am being overly broad in stating that ordinary positions in the Court of Appeal and Supreme Court should be comprehended by a special process. Let us remember one fundamental fact mentioned by Senator Norris - I am glad he reminded me of it - namely, that every member of the High Court iscapable ex officioof functioning as a member of the Supreme Court or the Court of Appeal and every member of the Court of Appeal is capable ex officio of functioning as a member of the Supreme Court. That does happen. I have been in court when judges have been, so to speak, brought up to make up numbers for particular reasons. If that is the law as things stand and the Bill does not seek to change that, it is amazing that a judge cannot be a permanent member of the court but can be a temporary member for a particular case and be entirely suitable for that purpose by virtue of being a High Court judge without having been recommended by this external group of people.