Michael McDowell (Independent) | Oireachtas source

What is to happen if there is no casting vote? Are they to say they cannot make their minds up on it and they cannot send a shortlist to the Government? Are they to reason it out among themselves or browbeat the Ward or Martin faction into withdrawing their positions? None of this is provided for in the legislation, which is worrisome. If we are giving an entity, namely, this commission, the effective capacity to tell the Government who it can appoint and who it cannot appoint, and if that is the sum and bottom line of this legislation, then the very least we are entitled to in this House is to know what happens in an eight-person commission when they divide four against four. We are entitled to know how that would be resolved.

The Minister cannot just walk away from Senator Ward's amendment or think that she will come back to it later; it is a hugely important point. It does not matter whether they are all judges or non-judges, an eight-person commission effectively has the right to tell the Government who it can appoint, and by exercising that power, to tell the Government who it cannot appoint. If it is not provided for in the legislation how an issue is to be resolved if they divide four against four then there is a fundamental defect in it because we are being asked to establish this body and to give it these powers, and we are not being fairly given an indication of how it is to exercise those powers in the event of an even disagreement among its members. As Senators and legislators we are entitled to have clarity on that issue and the legislation should make that clear, whether or not amendment No. 15 was moved.

We cannot avoid the idea of there being votes. If the Minister goes back to section 9 it states that the Attorney General shall be a member of this commission but that this is: "subject to subsection (3)". When one looks at subsection (3) one find that: "The Attorney General shall not, as a member of the Commission, have a right to vote on any matter coming before the Commission for a vote". The commission is now down to seven people in principle but if one person is not there and it is three against three, one is faced with the same dilemma. I am worried by that.

The Judicial Appointments Advisory Board was put in place by legislation drafted when Dermot Gleeson was Attorney General.What it provided for in relation to lists of people recommended was that, first, they had to have a minimum size, not just a maximum size. Apart from whether it was a good or bad idea, it did not say the Government shall only consider people on the Judicial Appointments Advisory Board list; it said that in coming to advise the President, the Government should first consider the names coming before it from the JAAB. I believe that is constitutional. In other words, it is putting into place a recommendatory role to which the Government is obliged to pay some attention, but when it becomes more than that - the Minister has clarified that it is intended to do more than that and to prohibit the Government, as a matter of law, from advising the President to appoint somebody who is not recommended, even though he or she is eligible - then I think a constitutional issue arises.

Reference has been made by my colleagues to the whole question of the presumption of constitutionality and who would have status to challenge the appointment of a judge or to challenge the substance of this legislation if it comes down to the rights of citizens to challenge legislation. I will make two remarks about that. If the President were to refer this to the Supreme Court so that the constitutionality of this effective veto for the judicial appointments commission could be tested, the Attorney General would then have to present himself or herself before the Supreme Court, or through counsel, and say these are the reasons I say this Bill is constitutional. He or she would have to make submissions then. I fully accept what Senator Ward says. I held the Office of Attorney General. As legal adviser to the Government, there is a privilege involved. One cannot have one's opinions just thrown around like confetti at a wake in Dáil Éireann just because somebody demands to see what the Attorney General did or did not advise the Government. I fully accept that principle, but this is a matter of fundamental constitutional importance. If there were an Article 26 reference, the Attorney General would have to make submissions and he or she would have to explain to the highest court in the land precisely why this is constitutional. Therefore, we are left with the possibility that the President, under Article 26, having consulted the Council of State, would put this matter beyond doubt. If it is not put beyond doubt, the question was raised as to who would have locus standithereafter to challenge the outcome. It could not be that one would have to be a disappointed applicant. The right to be tried by independent judges appointed under the Constitution is a right of every citizen. Any citizen, whose litigation came before any judge, be it in the District Court, Circuit Court, High Court, the Court of Appeal or the Supreme Court, is entitled to be assured that the constitutional rights of the Government in making the particular appointment of the judge before whom he or she is going to appear have been not merely done in a manner which is defensible but done in a manner strictly provided by the Constitution.

Senator Ward said I was trying to shoehorn something into this debate. I am trying to shoehorn a real discussion into this debate because this House emasculates itself by saying that people can have seven minutes or five minutes to speak on important constitutional legislation on Second Stage. This is a point of fundamental principle and it must be discussed. We are entitled to a clear view from the Government. We have got some clarity this afternoon - which is good - that notwithstanding the use of the word "may" in a later section, we are now saying it will be illegal for the Government henceforth to appoint somebody whose name does not appear on a list, even though he or she could be a senior judge already, for instance in the Court of Appeal, looking to be a member of the Supreme Court. It will be illegal to do that because this commission will not have included his or her name in a shortlist to be considered by the Government. I make no apology for raising this issue in the only effective way that the rules of this House permit, that is, to have a proper discussion where I can ask a question of the Minister rather than in a Second Stage speech to which there may or may not be a reply.

I fully accept a lot of what Senator Ward said, including that, in the end, any judge will be appointed by the President under the Constitution. That means nothing, however, if the President is obliged to operate on the advice of the Government and if the two Houses of the Oireachtas have chosen to exceed their powers by telling the Government they rather than the Government will establish a mechanism to determine on what basis that advice will be given.

The Judicial Appointments Advisory Board legislation, crafted by the former Attorney General, Dermot Gleeson, made it very clear not that there was a prohibition but that it was the expectation of the Oireachtas that the advisory board's shortlist should first be looked at before an appointment was made. If the President did refer this matter to the Supreme Court, the Attorney General would have to explain to that court why it is constitutional.

On a constitutional issue of such gravity and importance, when we are being asked to put the legislation in a position that it may be referred to the Supreme Court, it is not too much to ask to understand on what basis the Government has been advised that this is a permissible circumscription of the power of the Executive under the Constitution. It is a matter relating to the separation of powers. This is a point Senator Ward conveniently ignores. It is perfectly permissible under the Constitution – in fact, it is required under the Constitution – that the criteria for the eligibility of persons to be appointed judges are laid down by law. We cannot just go out onto the street and bring somebody down to the Supreme Court and say he or she is a Supreme Court judge because the Government appointed him or her this afternoon. That cannot be done. Once a person is eligible, and once the Houses of the Oireachtas have determined what eligibility means, especially when we are dealing with the position of an ordinary judge of the Supreme Court, for which 60 people would possibly be immediately eligible in conventional terms to apply, ignoring completely persons who were not judges already, members of the High Court and the Court of Appeal - we are now proposing to even extend it to the Circuit Court and to somebody with 12 years' experience in the District Court - what is the point, if they are all eligible, of having eligibility under the Constitution, if on top of eligibility there is disqualification? In substance, we are dealing with a system of disqualification of eligible people.We are saying that unless one gets a ticket from the judicial appointments commission, one is disqualified from appointment and is made ineligible, in effect.

Of course, we could go a long way down the road of saying that eligibility means the following things but, in the end, if we pervert the meaning of eligibility to mean, "decided to be suitable by somebody else other than the organ of State nominated by the Constitution", then eligibility is no longer the issue, discretion is the issue. If we give the Government’s discretion to a third party commission then we are entitled to see the arguments which are made for the constitutionality of such an arrangement.

I favour a system of transparency. I said it before in this House and I will say it again, when I was Minister for Justice where the current Minister is now, and Rory Brady was the Attorney General, we made appointment after appointment which had nothing to do with the person’s party political affiliation and was demonstrably disconnected from any such consideration.

I make this point, however, that it does not follow from that, that party politics should not influence appointment to the Judiciary. I agree completely with Senator Ward that judges, even if they had a party or partisan history, abandon it completely upon their appointment and take a declaration of office, which in effect prohibits them from having such a consideration because they are obliged to judge every case without fear or favour of any particular outcome. Once that declaration is made, that is fine, but we are very much in a situation - and I return to all of the hullabaloo that the former Minister, Shane Ross, kicked up about this - that in seeking to avoid what I believe was an unwarranted charge of cronyism, we are now putting in place something which alters the meaning of the Constitution as it was understood by the Attorney General, Dermot Gleeson, as it was put in place before. We are now putting a different mechanism in place which in effect says that the discretionary aspects of who should be on the shortlist, and therefore of whom may be made a judge, is transferred away from the Government to the commission.

I say that there is a serious constitutional issue to be determined there. I cannot put it any further but this is not a gimmick and is the only means by which this House can debate this issue. There is no other means on our rather ridiculous rules and procedures where a serious debate of this issue can happen except by tabling an amendment which brings the issue to the centre of the debate. I make no apology for doing that and all I wanted to do, and insist on doing, is getting an explanation in this House as to why this is constitutional because there is no presumption that it is.

The fact that Dáil Éireann did not raise the issue or that Members of that House did not bother themselves with it is no reason this House should not do so, and in fact it is every reason this House should address the matter and seek an explanation. This is not in respect of the advice the Government has received on the issue. I am not looking for the advice that it received from the Attorney General but I am looking for the arguments as to why this is constitutional, as to why a three-person shortlist is considered constitutional, and as to why it is considered legitimate to say that the fourth person, the runner-up, can be consistently and effectively disqualified, as a matter of other people’s discretion, from consideration by the Government.