Michael McDowell (Independent) | Oireachtas source

I want to underline what we are doing here. This ministerial amendment is largely to the same effect, though slightly grammatical inferior, to the amendment in my name and Senator Craughwell's. It uses the term "Government give" as if Government is a plural, when in fact the Government is a single institution, and it should be "gives". Nonetheless, we will not be petty about that. The purpose of the Minister's amendment is fascinating. On Committee Stage, I repeatedly made the point that it was unconstitutional to attempt to prevent the Government from appointing any eligible person to judicial office under this Bill. That is the constitutional law. Although I proposed a section in more or less the same terms on Committee Stage, and the Minister said he would consider the constitutional points I made, he nonetheless voted it down. Now he is back saying that, having reflected on the matter, presumably with the Attorney General's advice, he has come to the conclusion that it is requisite and needed as an amendment to safeguard the constitutionality of this legislation. That is fine. The Minister said that he expects that everybody will agree with him.

There are two issues to be put firmly on the record. The section that he now proposes must be seen in the context of section 51, which was also inserted and accepted by the him on Committee Stage. Section 51 states: "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." The Government is, therefore, entitled to appoint anybody serving in the superior courts to that vacancy and to ignore the commission completely. Section 51(2) goes on to state that where the Government proposes to do that, "the notice published in Iris Oifigiúilin accordance with section 50shall state solely that the person appointed was a serving judge of the relevant court at the time of his or her appointment".

If those two provisions are combined, it is clear that the Attorney General's advice and the state of the Bill, as amended by this, means that the Government of the day is perfectly entitled to appoint any eligible person to be a judge of the superior courts, and the Government's power to do so is in no way affected by this legislation. One then has to ask why we are establishing a quango, which will cost €500,000 a year to run, when the Government will have the power to say, "Thank you very much but on this occasion we are not bothering with the whole process." That is the gravamen of the Minister's amendment and what the Attorney General has advised him to include. Taken with section 51, it means that this entire process is largely redundant and that serving members of the Judiciary in particular, or any other eligible person, can be appointed by the Government of the day simply by doing so and the judicial appointments commission can be totally bypassed. The reason that I tabled an amendment on Committee Stage similar to this was to point out the futility and redundancy of the legislation.

I want to make another point in favour of the Minister. He has, since occupying his position, made very good appointments to the superior courts, including "promotional" appointments of serving judges within those courts. He has done that with the existing JAAB. He has appointed solicitors and barristers to be judges of excellent quality without the need for this ridiculous quango we are establishing, which, over ten years, will cost at least €5 million. At the same time, once the Bill becomes law in the shape that is emerging on foot of the guillotine motion this afternoon, if the Dáil does not amend it significantly when it arrives back there, any Government is free to say that it is making an appointment and is not involving the commission at all. What is this all about?