Michael McDowell (Independent) | Oireachtas source

In respect of these amendments, it is my view that aspects of this legislation are unconstitutional. One of the particular aspects that I believe is unconstitutional is that this Bill seems to require members of the superior courts who have functions in respect of interpreting the law, and every judge has to do it to some extent, and constitutional interpretation functions as well to be judged and perhaps interviewed by reference to something to do with their suitability to be made judges. If this amendment and the other amendments are all rejected, as Senator Norris and Bacik have said, effectively, it is saying the Minister in charge of this legislation believes it will be legitimate for members of the commission and members of the Public Appointments Service, when looking at people who are volunteering to be made members of the commission and members of the public who are considering applying to be appointed to the commission, via the Public Appointments Service, to pursue agendas relating to the judicial function.

I said to the Minister in respect of one amendment yesterday that I believe this is entirely constructive but if he chooses to reject this amendment and the other amendments that are being discussed together, it underlines the fundamental question this legislation has never addressed. What are these laypeople to ask of candidates who currently sit on the Bench as to why they should or should not be appointed to the Court of Appeal or to the Supreme Court? What questions can they be asked? I challenge the Fine Gael Members and the Minister to come up with any sensible question that could be put to any of these judges other than a question relating to the performance of their judicial function that could in any way influence the commission in determining who to recommend to the Government.

I do not want to draw this out too long. If these amendments are rejected by the Minister, and I believe they will be, the clear implication is that members of the Judiciary will not be immunised, which Senator Bacik's amendment seeks to do, from interrogation on certain aspects of their judicial function. If the Government believes that members of the Judiciary should not be immunised from interrogation on these matters, I am of the view that the purpose of this process of requiring sitting judges of the superior courts to apply to this commission is unconstitutional.

For various reasons, I believe this is a fundamental flaw in this Bill. That members of the serving Judiciary should in some sense be assessed as to their suitability for - and I would put the following words in inverted commas - promotion to the Court of Appeal and to the Supreme Court by a group of people who are laypeople for the purpose of recommending them, I believe is unconstitutional. It is an interference with their intellectual and judicial independence that this should be permissible. No useful function can be served by asking serving members of the Judiciary to engage in some kind of beauty parade process before a judicial appointments commission to fill vacancies in the superior courts. If, as I pointed out yesterday, every single one of them is entitled to serve when invited on the Court of Appeal and the High Court, then all I can say is this underlines the constitutional frailty of this legislation. I would be happy to invite the President in the fullness of time, whenever we get to that point, to refer this issue to the Supreme Court as to whether it is permissible under the Constitution to require serving judges to submit to a valuation of this kind by a group of people who are permitted under the law to ask them questions of the kind these amendments are seeking to exclude.