Michael McDowell (Independent) | Oireachtas source

No. If we enact this law, it will be unlawful for anybody to tell the Government the names of the judges who wished to be considered by the Government for appointment but who were forced into the judicial appointments process and left off the shortlist that goes to the Cabinet. There could not be anything starker as an unconstitutional proposition than that.

With the original Judicial Appointments Advisory Board, JAAB, the word "advisory" meant what it said, in that the Government was taking advice from a body. In this legislation the word "advisory" is dropped because the Minister for Transport, Tourism and Sport, Deputy Ross, thinks that this commission is more than advisory in nature. Perhaps it is more than advisory because under the proposed terms of the Bill, it will be the keeper at the gate as regards the information going to the Government. The Minister says that it is clear that the power of the Government under the Constitution to appoint somebody unrecommended remains untrammelled, but it is not untrammelled if the Government, through this legislation, is deliberately kept in the dark as to its choices. It cannot be that the Government's constitutional power still exists if it is playing blind man's buff, trying to work out what other judges might be interested in being appointed to the Court of Appeal or the Supreme Court.

It is not that this is a sudden revelation to me but it is now starkly before us as to where we are going and where we are being led with this legislation. We are being asked to walk into an unconstitutional cul-de-sac. The Minister should at least accept the fact that I said on many occasions that when we reached amendment No. 90, I would be proposing a different way of doing business which is designed to save this Bill from being deemed unconstitutional. It is designed to stop members of the Judiciary having to engage in a beauty parade before the judicial appointments commission to be appointed to courts where they are ex officiocapable of serving without any such process.It is unconstitutional, in my view, to have a group of people vet the applications of judges by reference to criteria by which the Government is not bound if, at the same time, the law is that the Government cannot be informed, either directly or indirectly, of the willingness of those judges to accept office in a more senior court. I make no apology for wanting to extend this provision to ordinary judges of the High Court because those judges can be asked by the Chief Justice to serve in the Supreme Court for a particular case. The same applies to the Court of Appeal. One may be brought up, sat beside these judges and asked to serve. What business does this proposed appointments commission have in telling the Government that somebody who is capable, by virtue of the fact that he or she serves on the High Court day in, day out, of functioning on the Supreme Court, should or should not be selected to these positions? As a group of people, all High Court judges are entitled to serve in those courts if called upon to do so. The provision is inexplicable and it is wrong.

The Minister has said that he is considering bringing in some amendment in this area on Report Stage. We know what happened. He had a special committee in the Dáil which effectively took this proposal off the table by leaving the section in place and providing that everything goes back to the judicial appointments commission. If the Minister is merely telling us that he is a bad loser in the Dáil and wants to put back in a provision the Dáil rejected, that does not deal with the points this amendment deals with, which is the idea that ordinary judges of the High Court who are ex officiocapable of functioning as judges of the Supreme Court should, notwithstanding that fact, submit themselves for scrutiny of their suitability for appointment by a body which is not the Government. One of the problems I have with the Minister saying that he might deal with this on Report Stage and that he may take advice on this - in effect, saying that anything could happen - is that it leads to uncertainty, which is unsatisfactory. If this goes to the heart of the Bill and the heart of the issue of its constitutionality, which I say it does, the idea that we are being told that the Minister is contemplating going some way back towards recovering the position he lost in Dáil Éireann is not good enough. The problem with Report Stage is, as we know, that unless the section or the amendment is recommitted to Committee Stage, we will have a process in which there are a few contributions and the whip will be imposed and the proposal will go through. That is not satisfactory either.

I am not minded to be bought off with the statement that the Minister, as was said, might think about it for longer and that he might do something about it on Report Stage. This is too serious for that. He cannot say that he may do something about it and that he will tell us what he is thinking of doing later, but not today. If the Minister is serious about a Report Stage amendment, he should tell us what it would be. If he does not, I cannot see why anyone in this House would withdraw his or her objection to the Bill as it is currently drafted.