Barry Ward (Fine Gael) | Oireachtas source

Constitutionally, absolutely, but the suggestion was that we should not fetter the Government, while in fact we should. The Senator is right that constitutionally there is a trump card there but as legislators, it should be our job to put in place legislation that fetters, controls or manipulates the powers of the Government. That is why so much of what Ministers do must come back to these Houses and why Ministers are accountable to the Dáil. That is an important part of the checks and balances in our democratic system. It is not a separation between the Executive and the Legislature because the Executive controls the Legislature. It is not a separation of powers. I do not believe it is correct to go from there and suggest that, because these Houses or this Legislature, through this Bill, will restrict the ability of the Government to choose somebody without going through the process laid down in this legislation, it is such a fettering of the power of the Government as to render it unconstitutional.That is not correct because at the end of the day the constitutional power is for the President to appoint the judge on the advice of the Government and under Article 35 that power endures.

If I have understood it correctly, the point that Senator McDowell makes is that the Attorney General could not arrive into the Cabinet meeting next week and say that Mary Murphy would be a great Supreme Court judge, that there is a vacancy and that she should be put in and because the provisions in this Bill will prevent the Government from doing that we are somehow interfering with the constitutional prerogative of the Government. I do not agree that this would be a constitutional issue. One must look at all the legislation because a constitution only operates within the confines of law in real terms. Putting down legislation that defines a process that must be followed by the Government in the appointment of judges is not to fetter the constitutional discretion of Government in an unjustifiable way. In every Bill that has been passed by these Houses, establishing other judicial appointments boards and bodies for the appointment of judges or for any other appointment that the Government makes under the Constitution via the President or that the President makes on the advice of the Government, they have all fettered that discretion and corralled the powers of the Government into a particular channel or process. That is done for lots of legitimate legal and constitutional reasons. The reason, as I understand it, behind this Bill is to put in place a system of transparent processes that will hopefully lead to the appointment of the best candidate into judicial office. At the end of the day it leaves no question as to whether, for example, one individual, be it the Attorney General or another Minister or whoever, does not rock into the Cabinet meeting next Tuesday and say that Mary Murphy should be put into the Supreme Court. The purpose of this legislation is to establish a process that is transparent and clearly set down in law, and that is followed by the Cabinet and the Executive before that recommendation is made to the President for appointment under Article 35.

I understand the point that Senator McDowell is making and I also understand that it is part of his remit to challenge and raise these issues, as is all of our remits in this Chamber. However, he has shoehorned an issue into this discussion that would never arise, although that is not the point. The point is not whether it will arise but whether it could arise. What we have done in section 9 in establishing the membership of the commission is to have a body of people that is balanced and that has lay and judicial representation. I lament the fact that there is no professional representation and I have made that point already.

The other issue that potentially arises in that context is what I was trying to do in amendment No. 30. I am sorry that I stepped out and that the amendment fell but it was concerned with the casting vote in the event that there is a tie. Perhaps the Minister has an answer to that point that I am not aware of. The scenario that Senator McDowell envisages is not one that we have to fear because it is legitimate for the Oireachtas to decide that there is a process, that there are parameters and that there are restrictions on the exercise of the Government's power under Article 35 to advise the President in respect of judicial appointments.