Michael McDowell (Independent) | Oireachtas source

I did say that amendments Nos. 1 and 3 were similar. They are, of course, slightly different in that amendment No. 3 refers to line 13 of the administrative reprint on page 7, "To enable, through other procedures, the making of recommendations in respect of appointments to senior judicial offices that do not fall within the remit of the foregoing body". The amendment is to insert the word "advisory" there. I take on board the point that the Minister has made that the senior appointments committee is later described as advisory.

I want to emphasise the following, which is worth emphasising in the context of the overall nature of this commission and what is constitutionally permissible and what is not. The Minister has just said that the Government is free not to make an appointment on the advice of the commission. The true situation goes one stage further: the Government is free to make an appointment which is not recommended by the commission. That is the important point that must be borne in mind. If there were any doubt about that, the House should have regard to section 51, which appears on page 33 of the administrative reprint. It states that, "Where the Government decides to advise the President to appoint any serving judge who is a member of any of the Superior Courts to any vacancy arising in those Courts, the Minister shall notify the Commission of that decision and the Commission shall have no further function in relation to that appointment."

This is important for the purpose of underlining public understanding of the Bill. It should be clearly understood that this Bill, as amended on Committee Stage in this House, now not only by silence does not attempt to interfere with the constitutional prerogative of the Executive but section 51 makes it absolutely clear that it is the constitutional prerogative of the Executive to make appointments to the superior courts without the intervention of the commission at all. The commission can be told that it has no function and the Government is making an appointment of a serving judge to any position in any of those courts. That is an important philosophical and constitutional value to be emphasised and it is in that light that the two references to the recommendations being advisory are proposed to the Long Title, to make it very clear, lest anybody say at any time in the future that the Government was acting unlawfully or improperly by not accepting the recommendations of the commission, that it was at no point obliged, and could not be obliged, to act on the recommendations of the commission.

In that context, I believe that the inclusion of the word "advisory" in the two places contemplated by amendment No. 3 is an improvement to the Bill and does not detract from it. It is more honest than the claims that have been made by people that this Bill takes the appointment of judges away from the elected members of the Government and hands it to the commission. Those claims were not made by the Minister who has been meticulously honest in acknowledging that what others claim is being done by this Bill is not, in fact, being done. It should be clearly and unequivocally stated, at every relevant point in the Bill, including in the Long Title, that that is not so.

It is in that light and spirt that I have proposed amendments Nos. 1 and 3.