Michael McDowell (Independent) | Oireachtas source

That is the Executive's primary function. If it does not agree with the three names that come forward on some short-listed basis from a commission, it is not merely entitled to reject them. It also can decide it can do better than that. What if it takes advice from the Attorney General, the Minister for Justice and Equality or whoever and decides it could do better? What if it decides that Mrs. so and so is a highly qualified solicitor or barrister or that Ms Justice so and so is a very impressive member of the Bench and it would like her to be on the Supreme Court or the Court of Appeal in preference to the three names it got? How is it to make that executive decision, which is its constitutional entitlement, duty and prerogative, if we circumscribe it all with hedges and camouflage to make it impossible for the Executive to know what has actually happened at this commission? How is it to do it? How can it possibly guess that Ms Justice so and so was an unsuccessful candidate, was passed over or has been passed over for four successive appointments by this group, when it might ask why, in the name of God, is she not getting a recommendation? Maybe it is because she is not interested at all. The Executive would not be entitled to know any of those facts. It would not be entitled to know whether she is interested in the promotion. It is not entitled to know whether she has applied. It is not entitled to know how many times she has been rejected.

That is what this legislation is all about. If the people who are proposing this legislation can see no constitutional problem with that, then in my view they disrespect the function of Government. We have a Constitution. We have a Legislature, which has constitutional functions. We have a separation of powers between the Legislature, the Executive and the Judiciary. One of the things that is enshrined in the Constitution is that the Executive is the body of people who bear responsibility, not merely on paper or as a rubber stamp for some commission but as a solemn obligation by reason of being elected members of Government by Dáil Éireann and of being part of the Executive, to exercise their collective judgment on the issue of who is or is not the best person available. The function simply cannot be delegated. It cannot be a subject of deferment or saying, "we don't know, these people tell us this is the best person". That is not good enough.If a Cabinet believes that the three people put forward for consideration are not the kind of people it wants on the Supreme Court, it is not merely entitled but, rather, duty bound to consider others who it considers more suited for appointment to the role, such as a stellar man or woman on the Bench-----