Barry Ward (Fine Gael) | Oireachtas source

I do not agree with the amendment. I understand where Senator McDowell is coming from but I feel he has created a very forced scenario, which he has reinforced by suggesting there will somehow be a judicial veto. I do not think that is the case, which is why the Minister has strived to have a small commission with a balance between judicial and lay figures. Senator McDowell has put this together in a not unmischievous way. When he was Attorney General he would not have thanked a Senator for standing up in the House saying his advice should be published. The purpose of Attorney Generals' advice is not that it be debated in this House or the public domain; it is legal advice to the Government as the Attorney General's client. That is why it remains confidential and there is not a requirement to publish it. Otherwise, it would be second-guessed by everyone. Legal advice from the Attorney General or an individual practitioner is always subject to interpretation. That is the nature of law. It is not a science but something that is subject to interpretation. The only interpretation that counts is that of the court.

I do not agree with the Senator when he contrives a scenario in which a group of four judges exercise what he calls a judicial veto on the appointment of people. I do not envisage that happening, although I accept what he says on the possible contradiction arising from it. He is trying in his amendment to ascertain the supremacy of the Constitution but that is, as has been said, a given.

If I am wrong in this, I am open to correction. Article 35.1 provides for the power of the President to appoint judges. He or she does so on the advice of the Government. That power in the Constitution will not be not undone by this Bill. I do not agree that all of the provisions of the Bill are necessary, which is why I have tabled amendments to many of them. Perhaps it is because I practise law in this country that I have a greater faith in the way the system operates than others do.

Underpinning this legislation is a supposition that the Government should not be as involved in the appointment of judges as it is. As I said on Second Stage and already on Committee Stage, it must be a fundamentally political activity to appoint judges, not because judges should be political - they are not political, in fairness to them - but because they are a branch of Government. The democratic element of their appointment comes from the fact that the representatives of the people, through the Executive, appoint them to their position, albeit it is difficult to remove them from that position thereafter. The people have their say through the Government and Executive at the point of appointment.

I disagree with Senator Martin's suggestion that it is not for this House to fetter the Government. That is exactly the job of this House. Everything the Government does must be done under the conditions put in place by-----