Seanad debates

Tuesday, 5 February 2019

Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)

 

2:30 pm

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael) | Oireachtas source

I do not have much to add to what we have being saying over recent weeks. It seems Senator McDowell is very much exercised about two matters. The first concerns maintaining the constitutional integrity of the Government’s position, which is important. I have listened carefully over a number of weeks to what the Senator has had to say and I am satisfied there is no infringement or restriction on what is a constitutional requirement of the Government to be free to make a choice. I do not see where such a restriction might be evident in the legislation.

The second point concerns the role and function of the Attorney General being a member of the commission and also sitting in, as that officeholder does, at Cabinet meetings. I have pointed out previously that the Attorney General, like other commission members, is bound by statute, or by the terms of the legislation. The role of the Attorney General, as a commission member, continues to apply in the context of the consideration by the Government of the recommended names. My advice still is that the Attorney General would not be at liberty to say a candidate who is not recommended by the commission is, in the opinion of his office, more appropriate and suitable and, therefore, a better candidate for consideration. This, however, has no implications for the exercise by the Government of its constitutional power to advise the President on appointments. At the Cabinet, the Attorney General will still have an advisory role under the Constitution. I do not see inconsistency in that. Under the Constitution, the Government can, of course, decide whether to opt for a commission recommendation. Alternatively, it can decide to accept names but perhaps not in the order recommended. I am satisfied, therefore, as to the role of the Attorney General in the process. If, like Senator McDowell, Senators continue to be concerned about the maintenance of constitutional integrity on the part of the Government to ensure it exercises free will in forwarding the name to the President, I can, if it would help to reassure them, come back with a form of wording on Report Stage, but I have built in such a provision.I reject assertions that the enactment of this Bill, leaving aside amendments Nos. 86c, 86d and 86e, will in some way unduly restrict Government in a way that conflicts with its constitutional role and function.

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