David Norris (Independent) | Oireachtas source

I thank the Senator very much.

This is a very important and significant amendment that has been tabled by Senator McDowell. It seems an obvious amendment to deal with separation of powers and the Executive's constitutional function. This is really where we are at. There are serious questions about constitutionality going through this entire debate and Senators McDowell, Craughwell and I have, I think, laid a trail as a result of which I believe and hope the President will refer this Bill to the Supreme Court. It is not the Oireachtas that appoints judges, it is the Government. That is a function which has been vested in the Executive by the Constitution and that will remain the case until and unless there is a referendum that changes that.

In a constitutional situation, where there is no question whatever but that it is the Government that appoints, the dangers of creating kangaroo courts where the Oireachtas acts as an effective overseer of judicial action, or exercises quasi-judicial functions, is a very topical and relevant issue following today's Supreme Court ruling. This has to be taken into account. There has been a very important action in the Supreme Court taken by Ms Angela Kerins and there is a decision today from the Supreme Court which is directly relevant to this amendment. The Supreme Court found the Dáil's Committee of Public Accounts, of which the Minister who is promoting this Bill, Deputy Ross, was a member, acted significantly outside its terms in reference in its dealings with the former chief executive of the Rehab group, Angela Kerins. The Supreme Court found it has the power to declare the actions of the Committee of Public Accounts unlawful. That is the nub of where we are at.

As a result of this decision of the Supreme Court today, the kind of interventions contemplated could be deemed to be unlawful and it is significant and interesting to note that the Minister for Transport, Tourism and Sport, Deputy Ross, was one of the members of the Committee of Public Accounts, the actions of which have been called into question by the Supreme Court. It shows a track record of him going outside the remit of the committee. This case is a perfect example of the dangers inherent in the Oireachtas jumbling its constitutional functions and powers and the proposed amendment seeks to ensure there is no repeat of these mistakes when it comes to judicial appointments. In other words, the judgment of the Supreme Court shows that the Oireachtas was in fact jumbling its powers and the Supreme Court has seen fit to rebuke the Committee of Public Accounts and hold that its actions are unlawful. That means it imperative that we ensure this does not happen again in respect of the Judicial Appointments Commission Bill 2017.

It is inevitable that if a constraint is imposed on the Executive that it must inform the Oireachtas whether it has or has not accepted the commission's recommendation for a judicial nominee but, instead of its own motion, recommends another candidate for the Judiciary, the judicial nominee would be sullied and unfortunately name abused, probably in the Dáil Chamber which is often like a dog fight in action and where there is no restraint in shredding people's reputations. That is another danger. I urge the Minister to take on board this amendment, which was very seriously put down by Senator McDowell.