Michael McDowell (Independent) | Oireachtas source

Under the Bill as currently drafted, if the Government rejects the three names sent forward to it, there is no provision for it to communicate that back to the commission and to ask it to compile a different list, by adding or subtracting somebody or coming up with three different names. There is no provision for that. I ask the Minister to confirm that I am right in saying that there is no provision for the Government to communicate to the commission that it is not satisfied with the three names put forward and asking for it to put forward other names. If I am right, the problem I am talking about is all the more obvious. In the circumstance that the Government rejects the three proffered names ranked in the order of the commission, what is the Government practically to do? Surely, it should be able to communicate, through the Attorney General or the Minister for Justice and Equality, with a person that it would like to appoint and ask if he or she is willing to take up the position. The Minister has gone so far as to say that is undesirable, but he has not said it is excluded under the Bill. Even if it were only undesirable and the policy of this Bill was to make it undesirable, we are left in the situation that, effectively, that the Government is the original submarine without a periscope in that it is told it has constitutional prerogatives and freedoms but it is given no means to ascertain how it might exercise them. I take it that I am correct that there is no provision for the Government to go back to the commission. If I am wrong, I would like to be referred to the provision in the Bill that provides that the Government could ask the commission to put forward other names because it is not satisfied with the names provided.

We are debating three amendments together and I would like now to speak to amendment No. 86e, which states:

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.

I cannot see what is objective about this proposal. If it is objectionable, it can only be that it runs against the spirit of the Act, or the letter of the Act. It seems to me there is no earthly reason this amendment should not be accepted.