Michael McDowell (Independent) | Oireachtas source

On the section itself, it occurs to me that even though the two amendments have been made, about which I am happy, the procedures committee is, regrettably, still effectively going to go through its entire process without consulting the Government in any shape or form. The Government is entitled to be consulted at a preliminary stage for the reasons I explained earlier. I am not happy that what the Minister pointed out about the obligation to consult him under section 54(3) is sufficient. The Government, under the Constitution, has the sole prerogative of advising the President as to who should or should not be made a judge. In those circumstances, it is strange indeed that while section 51 envisages other people being consulted at a preliminary stage in the drawing up of selection procedure statements and statements of requisite skills and attributes, the one body that the Minister has rejected as being entitled to be consulted is the Government itself.

The Attorney General is not a member of the procedures committee, ex officio, even though he or she is now, ex officio, a member of the commission itself. Therefore, the Government is kept in the dark under these procedures until such time as the consultation takes place under section 54(3). Even then, the language of that subsection is merely to impose upon the commission an obligation to "consult with the Minister". There is no obligation whatsoever to take on board any view of the Minister or the Government. By that stage, of course, the procedures statement will have been circulated for comment to outside bodies and the Government, apparently, will be the last to hear about it. That is not correct. The Government should be one of the first to hear of the proposed content of these statements rather than just being presented with them on a take it or leave it basis. Indeed, it is not even on a take it or leave it basis. It is on a take it basis at the end because the commission can just ignore the Minister or just consult him or her at the very end of the process when, effectively, a lot of things will have happened which will have committed the commission to a particular approach to the statements in question. I would much prefer if the proposed obligation to consult the Minister under section 54(3) was reconsidered and brought back to a much earlier stage, namely, the section 51 stage. At that point, the Government as a whole could consider the issues being considered by the procedures committee rather than waiting for that committee to come up with a draft which would be presented to the Government, under section 54, by a simple consultative process.

There is an argument to be made for the Attorney General to be, ex officio, a member of the procedures committee. However, because of the way this Bill developed, the Attorney General's presence on the commission at all was only an afterthought in the deliberations of the other House.It occurs to me that the involvement of the Attorney General should not simply be a minimal paper involvement. The Attorney General, as adviser to the Government, should be involved in the procedures committee because this is a matter of vital interest to the Government. Bearing in mind the time that is in it, I will report progress.