Michael McDowell (Independent) | Oireachtas source

This section is definitely not agreed. In my view, this is a non-constitutional section that has no merit whatsoever. Section 51 purports that: "In advising the President in relation to the appointment of a person to a judicial office in the State, the Government shall only consider for appointment those persons who have been recommended by the Commission to the Minister under section 47." The reason I did not object to section 48 is that it does not concern constitutional appointments. The Constitution is very clear that, at present, and as recently as yesterday, the choice of persons to be the subject of advice to the President for appointment as judges is a matter for the Executive. Two matters arise here. Section 51(1) is strangely phrased because it states: "the Government shall only consider for appointment those persons who have been recommended by the Commission to the Minister under section 47." This is open to the construction that a person who was previously recommended by the commission to the Minister for a similar position in the same court could be the person who has been recommended by the commission. It is not narrowed down to the particular vacancy we could be dealing with. Even if that is not the case, and I presume it is not the intention, we will now be left in a different position. The Government is currently given discretion under the Constitution, but it is now to be left with the vestiges of discretion, curiously, when the number of persons on a short list is three. Looking back to section 47, however, if the commission takes the view that it cannot recommend three people and only recommends two or one, that is the only person the Government can appoint. The effect of that is to transfer, in respect of three, two or one people, the discretion of the Government in a reducing order to a group that is not contemplated by the Constitution, namely, a group of four judges and four laypersons appointed in the manner we have seen.

I will say two things about that. The judiciary in question are two presidents of courts and two elected judges who make up the four judicial members. That group of four judges will effectively, in the main, have a veto on anybody being recommended. As I understand it, one of them would be President of the District Court and the other would be President of the Circuit Court - I may be wrong about that - and the remaining two would be other elected judges, say, for a High Court appointment. The Minister of State might indicate whether I am wrong. Who would be the four judges who would determine a High Court appointment?