Michael McDowell (Independent) | Oireachtas source

-----remove its discretion to the greatest extent possible and, through these statutory provisions, corner it into accepting the proposals of the commission in the form of a shortlisted candidate.

I must express my deep disappointment that these amendments are not being accepted because it betokens a concerted onslaught on the true constitutional position. The true constitutional position is that the Government alone makes these decisions. It may take advice from an expert body established by the Oireachtas but it cannot be corralled into a corner such that it must accept the advice of an institution established by legislation. If that is the true constitutional position, why is there such a reluctance to accept it and to give the Government some means of getting around the circumstances which could quite easily crop up in the application of this legislation? If the Government is not happy with any of three nominees shortlisted for a vacancy as an ordinary member of the Supreme Court, how could it be wrong for it to make inquiries regarding other people it believes would be preferable? The suggestion that the Bill provides that the Government could somehow ask the commission to reconsider its shortlist is simply not accurate. That is not provided in the Bill and it will not be in the Act if the Bill is passed. There is no provision whereby the Government can indicate it is not happy with the three nominees and require the commission to come up other nominees.

Curiously, the reverse is provided for in the Bill. Provision is made further on in the Bill for the commission to readvertise the position in a circumstance where it can only provide one or two nominees, or cannot provide any. That gives the commission the power to declare it is not happy with the quality of the candidates. However, the Bill does not provide an equivalent power to the Government. There is something wrong there. Surely, if the Government disagrees with the shortlist it must be entitled to remedy the situation and disregard the advice with which it disagrees. That is dealt with by amendment No. 86d.

Amendment No. 86e, which I have not yet addressed, provides: "Nothing in this Act affects, limits or inhibits the function of the Attorney General under Article 30 of the Constitution to freely advise the members of the Government at a meeting thereof in relation to the suitability for appointment to any judicial office of any person whether or not such person has been recommended by the Commission to the Government in respect of any judicial appointment."

If it cannot be accepted that the amendment accords with the policy behind the legislation, I am truly worried. How could one find objectionable the statement that nothing in the Bill affects, limits or inhibits the function of the Attorney General - the adviser of the Government in legal matters and on the law - under Article 30 of the Constitution to freely advise the members of the Government at a meeting thereof in regard to the suitability for appointment to judicial office of any person whether or not such person has been recommended by the commission to the Government in respect of any judicial appointment? It is extraordinary that it is suggested that that is somehow objectionable and cannot be accepted. If it cannot be accepted, that is because the Government wishes to create a false impression that the Attorney General may not offer such advice and that the Bill would affect the right to do so. I ask the Minister to explain why he deems amendment No. 86e unacceptable.