Michael McDowell (Independent) | Oireachtas source

Then what is it to do? Is it to state it will make its own appointment, as it did not think much of those three? How will it make that appointment? Will it tap somebody on the shoulder and tell that person it intends appointing him or her? Will it know whether an individual has already been appointed and rejected by the commission? We do not know because this is left deliberately vague but we will be teasing out whether it is the case.

The Minister is saying that his safety valve of constitutionality is that nothing in this proposed legislation interferes with the right of the Government to make appointments that are not recommended by the commission. That is almost meaningless because the Government will not know who is available, will not itself be able to explore who is available and will not be able to suggest to somebody who is not short-listed that it thinks he or she is the man or the woman for this job and it would like him or her, for instance, to be on the Supreme Court. If one keeps saying all of that to the Government, then what is left of its constitutional right to make a non-recommended appointment? If the Government cannot even know what cohort of people it is dealing with and if it cannot know whether the person in question has any interest in being a judge, then how is it going to exercise its right to make an appointment? That is the nonsense that lies at the heart of this legislation. It is based on one proposition, namely, there seems to be contempt for the proposition that the Executive in Ireland, under the Constitution, has rights and duties. One of the rights and duties the Executive has, and I use the terms "right" and "duty" jointly, is to make the best appointment it believes is possible and is open to it.