Charles Flanagan (Laois, Fine Gael) | Oireachtas source

This amendment is important in the context of certain warnings from Senators over the course of the last 125 hours as to the constitutionality or otherwise of the legislation. Amendment No. 24 underlines the constitutional position in the form of a general saver to provide that the constitutional function of Government in the appointment of judges is firmly upheld. The amendment provides that nothing in this Act shall be construed as "limiting the power of the Government" with respect to the advice that it gives to the President regarding the appointment by the President, under Article 35 of the Constitution, of a person to be a judge. The amendment replaces two specific savers that had been included in the recommendations sections of the Bill.

I favour a more general saver, having listened to Senators. I was accused by Senator Norris of not listening but he has now left the Chamber. Having listened to Senators and having taken into consideration concerns raised by them which were focused on a combination of various provisions of the Bill, some of which were mentioned earlier this afternoon, I believe it is important that a general saver be included in the legislation. This belief is based on a number of factors. There was considerable debate on confidentiality provisions, on the question of canvassing or otherwise and on a no-canvassing rule, which Senators said called into question, at the very least, the genuine execution of the constitutional function to appoint judges and the necessary aspect of choice that was required.

I discussed the matter with the Attorney General. I have said previously that the Attorney General can discuss the recommended names, as appropriate, at Cabinet subject to the confidentiality requirements. In other words, the role of the Attorney General as a member of the commission continues to apply in the context of consideration by the Government of the names as recommended. I do not see any negative implications for the exercise of the Government's function, nor do I see any adverse consequences for the exercise by the Government of its constitutional power to advise the President on appointments. Indeed, in recent months Senators tabled an amendment relating to the Government's function under Article 35 of the Constitution. I said I would carefully consider the matter ahead of Report Stage and have done so. I table the current amendment in that context. It is tabled in response to arguments made by Senators. Again, I reject an earlier comment from Senator Bacik before she left the Chamber-----