Michael McDowell (Independent) | Oireachtas source

The section that is proposed to be amended would read:

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.

Even without the word "firstly", the legislation still requires the Government to put on the table the recommendations of the judicial appointments commission but it does not require the Government to ignore its own strong preference, on a temporary basis, or to prevent the Minister for Justice from proposing somebody else. If the Minister is proposing somebody else, only to be told he or she must first consider the appointment of other people, it will mean, effectively, that his proposal cannot be lawfully made. That is why I think this is unnecessary.

Although it is in the Judicial Appointments Advisory Board legislation, it is not something that is going to be challenged on the grounds of unconstitutionality, which is something I had in mind when tabling this amendment. A Government Minister is not going to go to the courts to get this out of the Bill but we are enacting a new law. The question is whether we are trespassing on the prerogative of the Executive by telling it the order in which it may consider matters coming to the Cabinet table. My view is that the Oireachtas is not entitled to tell the Government the order in which it disposes of its business, nor is it entitled to lay down laws for Cabinet procedure. Under the Constitution, the Cabinet and the Executive meet and act as a collective authority and they decide their own procedures, much as each House of the Oireachtas decides its procedures. There have been many cases where the Legislature has expressly recognised the right of each House to adopt its own rules and Standing Orders and many statutes make committee procedures conditional on each House of the Oireachtas adopting those Standing Orders. In this case, the proposal is to tell the Government how it should conduct its business at Cabinet meetings, which I find offensive in principle. It is an unnecessary intrusion onto the discretion of the Government as to how it conducts its business. I do not think the section means anything very different without the word in question.It does not mean that it is an open invitation to Government to wholly disregard the recommendations of the-----