Vincent P Martin (Green Party) | Oireachtas source

Transparency is a very easy word to say and I have not met anyone yet who was not into transparency. I would make a general point with reference to invoking Article 26 of the Constitution, that it is rare that that happens. Ideally, that would be a wonderful way of extrapolating the point on whether or not this issue is constitutional.

In the absence of that, this is an issue for an academic discussion at some stage as to the locus standi. That is why what we are doing today is so important because it would be difficult for people with the obviouslocus standi, who would have to think about it further, to mount a challenge that their rights were constitutionally breached whether that be in their capacity as a failed candidate, which is not inconceivable, to put such a challenge on such people’s shoulders, even if the decision was overturned, and for them then to serve on the Bench given the manner in which they got there.

Addressing Senator Ward, balances and checks are a vital component of the democratic process but if it is an imposition which crosses the line and is in breach of the Constitution, one obviously cannot go there. This is not a carte blancheunfettered right. The presumption of constitutionality takes effect after the promulgation and enactment of a Bill. It is only a Bill at the moment. Metaphorically speaking, if one considers this exercise as the building of a house and the putting of bricks in it, the builder, which is the legislator, would like to ensure that each brick he puts in would pass that test at a later date, would be a solid brick, would be put in with the very best due vigilance and diligence, would have one eye on what happens after the enactment, would like to be able to stand over the work of the Legislature, and that it is in compliance with the Constitution.

At worst, what Senator McDowell is saying could be dismissed - and I do not agree with this - as the conjuring up of a theoretical proposition. How can it be otherwise, however, because it has never been tested. Even if it is a conjuring up of something which may be enacted, it is a warning and the Senator may be flagging something that, in the interests of all, we would like to get right. I do not believe that a black-and-white approach is the way forward.

The Minister has been very good to come into the Chamber today to put her cards on the table and has made her intentions perfectly clear on this in respect of where the Constitution lies. That is why I look forward to it if the Minister is going to make any further remarks. If the issue was referred to the courts, that is a chance which would enable us to see a version of the Attorney General’s advice, as it would all come out then in open court in the Supreme Court. Notwithstanding that, we have a chief adviser and a constitutional officeholder of the Government who is in that very good line of predecessors, who are very ably qualified, and is a constitutional expert. I just hope that he has pushed this issue out far enough not to get caught with a legal ricochet or bullet - if the Members may excuse the language and figuratively speaking - in a challenge later. I trust him that he will not get caught and that he has pushed this every bit as far as he possibly can. I am not, however, 100% convinced that this issue has not, in fact, crossed the line. That is just my honest assessment of it as best I can make it.

As I have said, and as other speakers all agree, this goes to the very heart of who we are as a democratic society.We are talking about our judges. Other countries are in disgrace while we have a fantastic system. I am not speaking for others but there is a common theme from contributors who may come from the legal system because we bring our own experiences to it and we do not think it is broken at the moment. I caution that if something is not broken then it does not deserve radical surgery.