Michael McDowell (Independent) | Oireachtas source

No. Senator Norris might reflect on the following point. Anybody who knew about him knew that the views that he laterally expressed, which led to controversy as regards his presidency of the Law Reform Commission and the like, were views that developed after his appointment because he had a particular path of personal development in regard to religious matters and religious organisations, which nobody would have predicted ex ante. The circumstances which led him to the controversy to which Senator Norris refers certainly could not have been anticipated by an interview process at the outset.

I will not detain the House much longer on this subject but I do recall that he advanced the view at a debate at which I was speaking in UCD, at which time he had become more clear in his controversial views, that natural law consisted of one fundamental principle - do good and avoid evil - and that all laws were in fact subsets and workings out of that principle. The problem with that was that when one defines good and evil there are circular definitions because good is that which one should do and evil is that which one should not do. To say that as a law one should do good and avoid evil was merely to engage in a definitional circumlocution. In any event, he believed, absolutely, that natural law came from God and was superior to man-made law. The Supreme Court has very strongly steered our constitutional jurisprudence away from that particular outlook.

I have no doubt that after Judge O'Hanlon espoused those views as President of the Law Reform Commission and a serving judge who was deputed to be President of the Law Reform Commission, the Government of the day, had his name arisen for consideration for appointment to a further position on, say, the Supreme Court, would certainly have taken those matters into account, as it would have been entitled to do. This does not mean that a judicial appointments commission is entitled to ferret out such predispositions as part of a process where men and women who are not judges come before it and seek recommendation for appointment to judicial office.

If the question posed by Senator Norris is whether a judicial appointments commission could not legitimately inquire of the matters which are referred to in this amendment, my response is that it could not do so because it would be trespassing on the discretions given to the Government of the day to whom alone the political judgment as to the suitably of a candidate on these grounds is given. The members of the judicial appointments commission are not constitutionally invested with the function of making those decisions or expressing views on those matters. To bring it down to much more plain and less abstract propositions, if anybody went before the judicial appointments commission and was asked about, for instance, his or her sexual orientation or asked questions which tended to explore that issue, he or she would rightly feel that a group of people who were not elected and were not selected by reference to these matters was attempting to invade the governmental discretion on these issues. I stand over this amendment and its necessity.