Michael McDowell (Independent) | Oireachtas source

I am glad the Minister said what I suppose was blindingly obvious, which is that the Attorney General has been involved in the background discussion of the legislation. I am interested by what she said about international standards because they do vary. We only have to look to Washington to see one standard that is radically different from any other standard. We are the only major common law jurisdiction with a written constitution that provides for the mode of appointment of people to judicial office. The British can do whatever they like; the Canadians and Australians likewise. I am not sure about the position in Canada, which does have a written constitution, but I do not know on what basis the decision is made there so I must plead ignorance on that. However, if we are talking about international standards, we cannot talk about European standards because the vast majority of the European community is not a common law jurisdiction. The function of judges in European states is radically different from that in Ireland and common law countries. We have to remember that one of the most extraordinary features of our Constitution is that if a woman or man is appointed to the High Court, he or she has the right, subject to any appeal from his or heir decision, to invalidate by constitutional criteria any action of this House or of the Executive or combination of both.That is a massive power to give to an individual man or woman sitting in the High Court as part of his or her full and original jurisdiction. It does not apply in England. There is judicial review in England but it is not by reference to a written constitution, and we hear now that the Tories are beginning to get impatient with the exercise of the non-constitutional judicial review powers. Ours is the only common law country anywhere, with the exception of the US, where an individual member of the Judiciary is empowered to strike down any action of the Legislature or the Executive as part of his or her personal single jurisdiction. When people talk about applying international standards to the appointment of judges, no other member of the European community has a system like ours. They have constitutional courts and this, that and other, but none has a situation where an Act of Parliament can be annulled by a single judge on an afternoon in the Four Courts. In no other country can an Act be declared under the Constitution to be null and void because that judge has been persuaded by the arguments put before him or her.

I am, therefore, sceptical of people saying GRECO says this or the Long Title says that. Our system is fundamentally different. I recently attended a conference in Lisbon where a member of the French council of state, its highest court, gave us an insight into how that court actually works. It is almost like a permanent Article 26 court or a permanent attorney general looking at legislation. It is a different thing. The appointment of members of the judiciary in the civil law system is different from ours. We do not have the same system as them. Of course, eligibility and governmental discretion are not laid down in those jurisdictions in the same terms as they are here.

Is the Government to be amenable to anybody at all as to why it chose person A rather than persons B or C from a list? The answer is "No". Nobody would dream of saying it should divulge who was on the list, how it was they decided it was one of the three and why they discounted the other two. People talk about transparency in this House and I agree with Senator Ward. This is not a transparent process. It is a uniform process and I agree with the Minister that it is uniform in that she is saying every candidate for every judicial position must go through exactly the same procedure, but it is not transparent and can never be transparent. We can never ask the Government why it chose Senator Martin, say, rather than Senator Ward for a High Court appointment.