Charles Flanagan (Laois, Fine Gael) | Oireachtas source

Amendments Nos. 86aand 86bare twins. I am not satisfied, nor have I been convinced, that the deletion of section 40(3) improves the situation in any way. I remind Senators that the subsection was included by way of ministerial amendment on Report Stage in the Dáil. It was brought forward to reflect a measure of concern on the matter of the constitutional function, as has been addressed by the Senator for some time now.

The insertion of the subsection underscores, if not copper-fastens, the position in law. I reflected on and sought advice on the matter and I believe it is important that it specifically be inserted. Notwithstanding what the Senator said, I maintain that the order of preference, as mentioned earlier and as mentioned by Senators throughout this debate, would not limit the advice the Government will ultimately convey to the President under the Constitution, and it is important that we specifically state that in the legislation. I am happy, notwithstanding anything I have heard, to maintain my position that any ranking or order of merit of persons who may be recommended for appointment to office, and which may be submitted to Government, may interfere with and unlawfully fetter the discretion of the Government, as the Executive, to appoint a qualified person. I do not accept that the order of preference, the ranking or the recommendation could in any way be construed as being binding on a Government in a way that is contrary to the Constitution. We have had this time and again during the debate, namely, the anxiety on the part of Government to ensure that in no way is the constitutional position adversely interfered with.

I reiterate that I continue to listen carefully to the concerns of Senators. Despite what Senator Norris might think, I have listened carefully to the points he and others have made-----