Michael McDowell (Independent) | Oireachtas source

I move amendment No. 91h:

In page 31, line 27, to delete “firstly”.

This amendment is in the names of Senator Craughwell, Senator Boyhan and me. At present, section 46 reads as follows:"In advising the President in relation to the appointment of a person to a judicial office the Government shall firstly consider for appointment those persons whose names have been recommended to the Minister or, in the case of section 44,the Government in accordance with the provisions of this Act." This is modelled on an equivalent provision of the Judicial Appointments Advisory Board legislation about which I have often wondered. In what sense is it open to the Oireachtas, when the Government is considering the matter of how to advise the President, to tell the Government in what order it must deliberate on the subject? That is the case in the current provisions relating to the Judicial Appointments Advisory Board. As a matter of fundamental principle, it seems that it is for the Government to decide whether it will look to its own idea of who should, for example, be Chief Justice. It is for the Government to decide whether it will consider its own proposed name in the first instance and then consider the shortlist of the Judicial Appointments Commission before it makes its decision. It is a legislative impertinence for the Oireachtas to tell the Government, when it comes to advising the President to, for example, appoint someone as Chief Justice, to consider the people on the shortlist before it considers the person it has collectively decided is the right person. That is not leaving it as a choice for the Government as to how to regulate its business and approach the giving of advice to the President on judicial appointments.

Is it possible for the Oireachtas to tell the Government, when it comes to consider a question, that it must first consider this before it decides that? Is that the case in the context of any issue? If the Government chooses to propose a certain judge as Chief Justice, is it possible for the Oireachtas to ask it to consider a shortlist of candidates before it makes its decision? Can the commission ask the Government to consider the merits of three other candidates before considering the merits of somebody who the Government is disposed to appoint in the first instance? It is not within the competence of the Oireachtas to tell the Cabinet the order in which it must approach the candidates for judicial appointment. If the Government was fully of the view that a particular candidate was going to be appointed Chief Justice, telling it that it must consider the merits of the candidates the commission proposes before considering the merits of its preferred candidate seems to be invading the discretion that is given to Government. If the Government has a discretion to make appointments not recommended by the commission, this is telling it that, before it goes on to appoint somebody else, it must effectively reject the commission's appointments. That is what this means. If the Government must consider these people first, it must reject them before moving on to its own choices. That is an interference with the constitutional prerogative of the Executive to order its own business.

That is not a huge point, or one that I will die at the stake for, but it is important. The language of the Judicial Appointments Advisory Board legislation is somewhat unrealistic. I do not know if this persists, but there have been cases in which the Government has authorised the Minister for Justice and Equality or the Attorney General to approach a particular candidate and ask if he or she will take a position and tell him or her that he or she will be appointed if he or she is willing to accept the position. To say that, before it does this, the Government must consider all the other options is an invasion of its prerogative and discretion to make such decisions as it considers correct under the Constitution.

I will not speak at length about this matter. The point I am making is simple but I strongly believe that the word "firstly" performs no useful function here. The section without the word "firstly" would state, "In advising the President in relation to the appointment of a person to a judicial office the Government shall consider for appointment those persons whose names have been recommended to the Minister or, in the case of section 44,the Government in accordance with the provisions of this Act." The deletion of the word "firstly" would not fly in the face of the principle of this legislation and the Government is entitled to decide who it will consider first, when and if it wants to make an appointment, whether its own choice or that of the shortlist supplied to them.