Michael McDowell (Independent) | Oireachtas source

I find myself in the same position as Senator Ward. I find myself put down as a co-sponsor of an amendment that has been proposed for a very different reason by Senator Higgins. I am very happy to co-operate with her in any sensible way but I want to put on the record that my signature to this amendment, and those of my fellow Independent Senators, is for the precise opposite reason to hers. There is a number of things I want to say on all of this. First, the Attorney General is a constitutional officer. The Attorney General is not some political hack put in by the Government simply to do its bidding. The Attorney General, on the contrary, is a constitutional officer who has functions under the Constitution, such as nominating counsel in Article 26 references. Much more than that, the Attorney General is the adviser to the Government on issues such as the constitutionality of proposals that come before the Cabinet for scrutiny or legislation. The Attorney General is the person who advises the Government as to whether proposals for legislation are compatible with the Constitution, with EU law or with obligations under the EU treaties. Having held the office, I know this to be the case. The Attorney General is the person who, on occasion, may be asked to vindicate the rights of individuals where they stand to be infringed, such as people who are being denied their rights. The Attorney General has a function to vindicate the rights in present circumstances, to uphold the laws of the State and to take injunctions against people who are infringing the laws of the State or the provisions of the Constitution. It is unfair to take the view that the Attorney General is a highly political person whose function is to do the political bidding of the Government. It is quite the reverse. Any person who has served in Cabinet will find that the Attorney General is the person who, more than anybody else at the Cabinet table, tells them what they cannot do rather than what they should do. There is a misconceived notion that the Attorney General is somehow a political figure whose judgment in relation to the appointment of judges is somehow suspect. It is the contrary.

I will go back to the point I made at the very outset of this debate. When I was Minister for Justice and Rory Brady was the Attorney General, a great many judicial appointments were made. We knew at the time that the great majority of them were people who did not come from the same political stable as did either he or I. The appointments were made on merit. They were made, first because the people involved were vetted in the great majority of cases by the Judicial Appointments Advisory Board and found to be worthy of appointment, and second, because they struck us as people who would improve the quality of the Judiciary. I make the point because there seems to be some notion, and I agree completely with Senator Ward on this, that the Government has no function in determining who becomes a judge. Even this Bill, however it is read, will put before the Government three names. Why allow the Government to select from those three names? What is the logic of that? If people were to be totally purist it should just be one name and the Government should not be given any choice, if the anti-political and anti-democratic viewpoint is correct.I believe that view is wholly incorrect and that the appointment of judges is, as Senator Ward said, a democratic function envisaged by the Constitution to be carried out by one of the organs of government, namely, the Government itself, through advising the President. What is the logic of allowing the Government to choose from a shortlist of three? If one thinks about it, why should it have any say at all? Is it in a better position than the judicial appointments commission to vet people's suitability on grounds of merit? This is where I have a fundamental problem with some of the provisions of this Bill.

If you concede the proposition that the Government has a constitutional right and duty to make appointments to the Judiciary in accordance with its judgment of the matter - and, constitutionally, you must - even if the Government is restricted to a shortlist of three, the principle is conceded that it is the Government, quaMinisters nominated and appointed by the will of the people through the Dáil, that decides which of the three people is to become Chief Justice or a member of whatever court the shortlist refers to. If that is right, certain things flow from it. One is that the Government is entitled to know which of the three people before it is best qualified and to take the advice of the Attorney General on that issue. If the Attorney General is the legal adviser to the Government, he or she is entitled and duty-bound to express a view as to the suitability or unsuitability of any of the three people on the shortlist before the Government if that view is relevant to the appointment which may follow.

There seems to be a complete schizophrenia on this matter. People think that the Government should somehow not have a role in determining who becomes a judge and yet we are enacting a Bill that states that it must have a role, although it must also be confined to three names put before it by another body. What Senator Ward said is 100% true. This democratic function envisaged by our Constitution is being heavily curtailed. Whether that curtailment is constitutional itself is a matter on which I have some views. It may be that the Attorney General now believes that the requirements of European law and our adherence to European law standards entitles the Legislature to confine the right of the Government to the appointment of persons recommended to it rather than to make appointments at large.

I will now come back to my point about the function of the Attorney General. If he or she is going to be on this commission at all, we cannot have the Attorney General sitting there like a eunuch in a harem, not allowed to say or do anything but just observing what is going on in the commission like some kind of constitutional voyeur. It makes no sense to have a member of a commission, especially a small commission of reduced size, sitting there and watching what everybody else is doing while not participating in any shape or form in the discussion, in the debate or in the decision made by that commission. It is interesting to note that the Minister's Bill allows the Attorney General to propose people for inclusion on the shortlist at the judicial appointments commission and to oppose people proposed by others. He or she is entitled to do all of that but, under the Minister's text, he or she is not entitled to vote on the issue. He or she is entitled to influence the debate and say whatever he or she thinks about the candidates. The Attorney General is entitled to suggest that one candidate is better than another but, having made that contribution, is not entitled to be part of the decision should the matter come to a vote. Where there is no vote, under the Minister's version of the Bill, the Attorney General is a full participant in the process. If the commission is operating on consensus, the Attorney General is as entitled as any other member of the commission to play a full part in the deliberative process and, it must be presumed, in interviewing and setting out rules or procedures.

Where I come from on this question - and this is why it is ironic that Senator Ward and I find our names appended to an amendment put down by Senator Higgins for an entirely different purpose - is that the Attorney General is a very suitable person to participate in the activities of the commission, especially because, once the shortlist gets to Cabinet, he or she is perfectly entitled to strongly support a given candidate over others and to tell the Cabinet that, in his or her view, those other candidates are simply not suitable. The Attorney General is perfectly entitled to do that. If he or she is entitled to do that when the decision arrives at Cabinet, I see no reason for it to be somehow wrong for him or her to participate in the process leading up to that point.

I will make another point. This is something that some of the critics who have committed themselves to paper, including the academics Senator Higgins mentioned, seem to have missed. If the names of three different people come before the Cabinet for appointment to the Supreme Court, it is not some kind of chemical or mathematical formula that is used to decide which of them the Cabinet should put on the Supreme Court. If the Cabinet wants a liberal Supreme Court, it will go for the person who appears most liberal. If it wants a more diverse Supreme Court, it will look at the three candidates by reference to diversity in making its decision. If the Cabinet wants a more conservative Supreme Court, it may appoint the person who appears the most conservative of the three people on the list. There seems to be a notion that the Cabinet is somehow apolitical - I use that word in the democratic rather than the party political sense - in deciding that it wants another woman, a liberal woman or a conservative man on the Supreme Court or that the balance of the court requires a certain type of appointee but that is an entirely political decision being made by the people the Constitution entrusts with it. Even if the Government has a shortlist to work from as a result of this legislation, the decision remains profoundly democratic, political and accountable. The Government will choose which of the three persons is appointed to the Supreme Court.

Who is appointed to the Supreme Court matters. We do not need the wild American kind of political Supreme Court constituted along ideological lines for this to be the case. Ideology with a small "i" and things like liberalism, conservatism and so on are entirely reasonable bases on which to choose between recommended candidates, especially when they come without any stated order of preference from the judicial appointments commission. There is another point that has to be made about the role of the Attorney General.Supposing that after five years, the Judicial Council is found to have constantly come up with one type of person rather than another. Suppose Senator Ward was a candidate and was constantly refused inclusion on the list going to the Government from the Judicial Council. Is it wrong that the Cabinet knows that this is happening? Is it wrong for members of the Cabinet to scratch their heads and say, "How come he's never on the preferred list? People come and go on the preferred list but he's never there. The four judicial people on the council seem to be vetoing that man for appointment to any of the superior courts or any court position." Is it right that the Government should know this is happening? Of course it is right. That is a point about this legislation. It is important that the Government should know who all the applicants were because it can then say, "Isn't it strange that Joe Bloggs or Josephine Bloggs never gets nominated by the judiciary. Have they a downer on him or her?"

I notice the Bill says that the commission can decide its own procedures but of the nine members of the Judicial Council, is there any right for three or four of them to insist that somebody's name at least gets to the Cabinet if five people say "No"? Is there something akin to proportional representation? Is there any right for a number of the members of this council to say, "We keep getting an application from Joe Bloggs or Josephine Bloggs. We think that person is suitable and a yet a majority on this commission keep saying "No" to that person." Is there no right for their nominee or the person they favour ever to be considered by Government just because they are in a minority? I wonder about the correctness of it. The Bill does not actually say that the composition of the list shall be determined by a majority vote in respect of each person. Is it permitted for the commission to accord to a minority the right to select at least one person in three if there is a division of opinion regarding which people are suitable to go to Government or must everything be decided by a majority so that there are separate votes on candidates A, B and C?

Section 51 states that in advising the President regarding the appointment of a person to judicial office in the State, the Government shall only consider for appointment those persons who have been recommended by the commission to the Minister under section 47. If a person has been recommended three times and is not on the fourth shortlist, which comes before the Government in respect of a particular vacancy, is the Government by reference to what is in section 51(1) entitled to say that this person has been nominated before and it is surprised to see that person is now off the list and that other people are being put on instead? Strictly speaking, that person is somebody whose name has been recommended by the commission in the past though not on this occasion. If that is what the Bill is supposed to say, it should say so. At the moment, it just seems to say that the Government can appoint any person whose name has been recommended, not is being recommended, for the particular vacancy. I would like the Minister to clarify this question.