Michael McDowell (Independent) | Oireachtas source

The European Commission heard the Minister's responses on a number of occasions. It is following this debate and it is clearly aware that we have amended this Bill to reduce the judicial element to less than one third of the proposed judicial appointments commission. The Commission has maintained its objection to and criticism of the Bill on the grounds set out. I am not a person who believes the Commission of the European Union is infallible but it is interesting to note that the Tánaiste spoke about Ireland being absolutely at the centre of Europe in its thought processes, etc. Nevertheless, the Commission has repeatedly told us that this Bill is not what it thinks is appropriate. We have increased the size of the proposed judicial appointments commission to 17 and fixed the number of judges at five, which is less than one third of the membership of the total commission. We have been repeatedly told by the European Commission that this is not a circumstance in which the Judiciary would be a "substantial" part of the body making the recommendations. It would be less than substantial and in a small minority. It would be less than one third of the entire body. The Commission has warned us repeatedly about this but we are ploughing ahead regardless. That is just an observation.

It is not a matter of having a faction within the judicial appointments commission. If the entire judicial component of this commission comes to the view that a person is not suitable, there is to be no mechanism whatever for those members to inform the Government. The Minister speaks about a desire on the part of some people to maintain a parallel process. I will put this in a constitutional context. The starting point is that the Government is free to appoint any person eligible for appointment in accordance with law and its own decision as to whether to advise the President to appoint a person to be a judge. It is the starting point under the Constitution that this is an executive function. The derogation that this legislation proposes from that constitutional principle is that there should be an advisory body whose opinions, in the case of judicial appointments, should be brought to the attention of the Government by way of shortlists. That does not detract from the constitutional right, prerogative and duty of the Government to make a decision by itself on the basis of its own judgment and on foot of its own responsibility as to who it should recommend to the President.

It is a simple matter and it is not a question of a parallel process. The purpose of this Bill seems to be to destroy all incoming information to the Government as to the real position and give a false view as to what the choices really are or who is really available. It also affects information to the Government as to whether there is dissent or consensus on any particular recommendation. It is what the policy of the Bill seems to be.

We can go back to what was included in the programme for Government and what was adopted collectively, satisfying one particular member of the Government in doing so. The programme indicated the shortlist should be as small as possible under the Constitution, meaning as few people as possible should be on it, and not more than three. There was some vague recognition that the Government had some rights in this matter but there would either be one, two or three persons on the shortlist according to the programme for Government. We now have three, which I presume arises from the recognition that there is a Constitution and an obligation to allow the Government to make its own decisions. This is not a question of a parallel process but rather maintaining the right of the Government to really know what is going on and not be dictated to by a commission through a starvation of information and the presentation of a false facade of unity about a particular shortlist.

We have discussed this adequately and the majority of people present now are of the view that this amendment should be obeyed. They may not be a majority in the House when the matter is put to a vote. Let us have no illusions as to what we are doing in rejecting this amendment. We are saying it will be a criminal offence to tell the Government that the five members of the Judiciary ex officioon this commission were of the minority view that one of the people recommended was unsuitable. It also indicates there should be no means whatever for that group to inform the Government of the reasons its members are of that view. Is this not a flagrant breach of the Council of Europe policy on the matter and GRECO recommendations, as well as a flagrant disregard of the European Commission's repeated reminders to us of those standards? More important, is this not a flagrant disregard of what the Constitution requires, which is that the Government be entitled and free to know all relevant factors when it comes to making a decision on who to appoint to the Bench, including the attitude of people whom it trusts and the Judiciary?It should be free to know these things. If it is not that, I do not know what it is. I have put the point to the Minister as strongly as I can. I will not prolong the matter any further. This is yet another flag as to why this Bill is unconstitutional and should be referred to the Supreme Court by the President.