Michael McDowell (Independent) | Oireachtas source

I will say a few things about the Schedule. I will not detain the House long. The Schedule deals with the constitution of the commission and sundry provisions relating to its procedures and staff. I will take the opportunity to reiterate that the Constitution adopted in 1937 accorded to the Government of Ireland, a democratically elected body, the right to choose from eligible people who should be judges. That is a cornerstone of our Constitution. Other people do not like it and have said from time to time that there should be a different way to select judges in Ireland. The former Minister for Transport, Tourism and Sport, Shane Ross, at one stage proposed a constitutional amendment whereby a committee of Dáil Éireann would approve judges and, believe it or not, a majority of the members of that committee would have to be drawn from the Opposition. That proposal went nowhere but when he eventually got into office he proposed the Judicial Appointments Commission Bill in its original form.

We are now putting in place a body, described in some ways in this Schedule, which is to be composed of four judges, four non-lawyers and the Attorney General, who is excluded from having a vote, implying the rest can vote. The outcome of this is that the four judicial members - two of whom will be elected by Judicial Council members having previously been a solicitor and barrister and two of whom will be officeholders from the Judiciary - will have a veto over the appointment of anybody as a judge in Ireland from now on. There is no provision for a casting vote for the chairman. Senator Ward tabled an amendment in respect of this but it was not acceptable to resolve a division of that kind, which means the Judiciary has a blocking vote on anybody being made a judge. These four judges also have a blocking role for anybody being promoted from one court to another. There is no way around that. The Minister of State has frankly admitted that if this Bill becomes law, and survives constitutional scrutiny and challenge, it will be unlawful for the Government to appoint anybody who did not get the nod from those four judges. That is what we are now entering into.

I do not know why it is thought that this legislation is necessary. I previously dubbed it a solution in search of a problem. Its clear effect is to provide that of the current Supreme Court, when a shortlist of three is drawn up for the position of Chief Justice, five members at the very least - and maybe, with legal and academic people or people from the Court of Appeal or the High Court, up to seven members - will become persons who cannot lawfully be appointed to become Chief Justice. I will simply say that flies in the face of the Constitution. To say that five members of the Supreme Court - a majority of members - can, by a decision of four other judges, become ineligible to serve as president of their own court is a breach of fundamental constitutional principle. Successive Attorney Generals have ignored this problem. It will have to be tested in the Supreme Court under Article 26 or through the ordinary courts at some stage, which it will be because any citizen would have locus standito challenge an Act of this kind that trammels the separation of powers in this way.

I believe the mumbo jumbo in the Long Title of this Act referring to European law is there to try to put a veil of respectability over what is fundamentally an unrespectable assault on the separation of powers. The Houses of the Oireachtas may believe they can by legislation curtail the right of a government, on this occasion, to a shortlist of three that excludes five members of the Supreme Court.A different, more malign Government - I have a document here which I am perusing at my leisure - will be able to do similar things. If this is found to be constitutional, it will be able to determine with much greater detail who and what kind of person will become a judge and the Government's role will perhaps be reduced still further. I want to clearly signal my complete disagreement with this legislation.

Attorneys General differ over time. The former Attorney General, Dermot Gleeson, advised the Government of the time regarding the Judicial Appointments Advisory Board. It was an advisory body, which did not deal with judicial promotions and did not bind the Government's hands to appoint any particular person or from any particular group of recommended people. That was his advice at the time. If I had been Attorney General then - this issue never arose when I was Attorney General - I would have advised the Government that this is unconstitutional and a violation of the separation of powers. You can appoint laypeople, for example, to a sentencing guidelines body and give the sentencing guidelines some kind of legal force. However, that in itself is an incursion on the judicial function. Here we are now with a situation whereby the Government is for the first time being told that it cannot look down the list of eight members of the Supreme Court and say we prefer that candidate because of his or her philosophical attitude to any of the three candidates that these four people have put before us, who may be drawn from the High Court or from wherever else, and we have a constitutional right to appoint any member of the Supreme Court to be Chief Justice. I believe that constitutional right cannot be taken away and cannot be legislated away.

This is a shameful day given that this legislation is proceeding in the way it has. I think it is fundamentally mistaken. The saddest irony of all is that it is even worse than the Bill the former Minister and Senator, Shane Ross, twisted the arm of the present Taoiseach to proceed with during the lifetime of the previous Seanad. This is even worse. We do not need a self-appointing or self-selecting Judiciary. We just simply do not need it. It is wrong. The Government is the democratic body which, under our Constitution, carries out that function. In every self-respecting common law jurisdiction with a written constitution anywhere in the world, it is the government of the day that makes these decisions. That includes New Zealand, Canada, Australia and even America, with congressional involvement. In any self-respecting common law jurisdiction with a constitution, it is to the executive to which that power is given. The constitution gave it to the executive and it cannot be legislated away unlawfully, in my view.