Michael McDowell (Independent) | Oireachtas source

I listened carefully to what the Minister of State has said, which included the phrase "contrary to the rule of law". What rule of law? The Commission of the European Union is not competent to determine the law of the European Union. It is not its function to do so. Even though it may have rows with the Polish state about amendments to the manner in which Polish judges hold their office and the tenure accorded to them, the simple fact is that the Commission of the European Union has no function in directing that the discretion of the Irish Government under the Irish Constitution should be abrogated, diluted or confined in any way.The simple fact is the Commission of the European Union has no function in directing that the discretion of the Government under the Constitution should be abrogated, diluted or confined in any way, any more than the Council of Europe's views on this matter are binding on the State.

More fundamental than that, when the Irish people adopted the various European treaties, no competence whatsoever was given to the institutions of the European Union to tell the Irish people they must amend their Constitution by domestic law in order to comply with the Commission's view of what the rule of law entails. The Irish people never voted for the proposition that somebody in Brussels could tell them who could be appointed judges in Ireland.

Ireland is a member state only to the extent its Constitution permits it to be a member state. The European Union is not some superior body. It is a treaty organisation. Its court, the Court of Justice of the European Union, is a treaty tribunal. It is not a European supreme court and is not entitled to abrogate or overturn provisions of the Constitution unless and until the Irish people by referendum so decide. The mere fact it may suit the European Commission in its ongoing spat with Poland and Hungary to take up positions about what it names the rule of law is irrelevant. The rule of law in Ireland is the Constitution, subject to our EU obligations but not subject to desiderata developed by the Commission, to views expressed by councils of ministers or even the European Parliament, for that matter; nor is it subject to the views of European judges congregating together. They do not determine the nature or extent of the Government’s discretion in nominating Supreme Court judges.

As I wrote in the Irish Timesrecently, the effect of the legislation is as follows. Let us be very clear about what will happen on the next occasion there is a vacancy in the position of Chief Justice if this Commission is up and running and its statute has not been amended – which I hope it will be, if it ever becomes law. This group - the President of the Court of Appeal, the President of the High Court and two elected judges, probably a Circuit Court judge and a District Court judge - will come up with a list of three people of the eight or nine ordinary members of the Supreme Court, which may or may not be all members of that court. There could be a High Court judge or a Court of Appeal judge. It might be that the Government will be confronted with a shortlist containing only one judge of the Supreme Court. There is no reason the Bill should be otherwise interpreted. It is possible that only one member of the Supreme Court would be recommended. It is improbable, I suppose - maybe two and one from the Court of Appeal. The Government is being told, in effect, of the ordinary members of the Supreme Court eligible to be made Chief Justice, if it is two, that six people who sit on that court, day in and day out, may not be appointed.That is what this Bill means, and pretending that European law somehow requires that to be the case is scandalous and bogus. No concept of the rule of law and no documents being bandied about to keep President Duda and Prime Minister Orbán in check have the effect of saying that, in Ireland, henceforth, it could be the case that, of the eight ordinary members of the Supreme Court, the Government, legally, can appoint only one or two and that it would breach the law if it were to appoint any of the others. No document in Europe, whether it comes from the Council of Europe or the European Commission, warrants such a proposal. I do not trust the European Commission because it is concerned more with putting manners on the Poles and the Hungarians than with what we have had in this country, the longest continuous constitutional democracy in Europe, when other states were run as dictatorships of one kind or another. We have a Judiciary which has always been free, independent and impartial, and that has always been so by the operation of the constitutional provisions under the 1922 Constitution or the 1937 Constitution by a Government which is free to make its mind up on which person should get this job.

I look back over the history of chief justices. It is well known, since everybody concerned has now gone to meet their maker, that there was a time when the Government, under Jack Lynch, was concerned about the activism of the Supreme Court in constitutional matters. Two titans of that court, Mr. Justice Séamus Henchy and Mr. Justice Brian Walsh, were seen at the time to be very active in developing constitutional law. The Government at the time decided that it would appoint William O'Brien FitzGerald, Billy FitzGerald, to be Chief Justice. The reason he was chosen was that the Government wanted the court to take a more conservative line. Would he have been selected by this commission? No. Would the members of this commission be entitled to ask whether they are appointing a conservative or a radical? No. Can they ask any of the candidates to express their views as to how they would decide future cases? No. The Government, however, is entitled, in looking at all the candidates, to say, "We do not think that person has the same view of the development of the Constitution as we have".

It it easy to come in here and produce a pat proposition such as that the rule of law in the European Union being directed against the Poles and the Hungarians somehow involves telling us we can no longer appoint judges in the way we have done for a century - and it is a century - but there is no provision of the European treaties which entitles the institutions of Europe to have such a view. Well, they can have their views if they like, but there is no provision to impose them on other people. The Irish people were never, ever told at any time, in respect of any treaty put before them for their approval in a referendum, that one of the consequences of voting a certain way would be that somebody would stand up in the Oireachtas and say the European concept of the rule of law no longer permits the Government to select from among a majority of the Supreme Court a person to be Chief Justice but could restrict the Government to one, two or three persons, some of whom may or may not be members of that court.It is illogical and fundamentally straining language beyond its fair use to say that this is somehow imposed on us from outside or that the European Commission has a role in assessing our system or has found fault with it. It may express views, it may think it is far far better to have an independent, self-selecting Judiciary, but unfortunately the Irish people in 1937 chose a different way to select their judges. There is nothing in the European treaties which elevates to a mandatory rule or requirement that Ireland must now abandon the system that has given us one of the best, least corrupt, most impartial and most hardworking superior court judiciaries in the EU.

The final point I will make about Europe is that I would like to be shown anywhere else where a single judge, man or woman, sitting in the equivalent of the Four Courts, can invalidate by a decision an Act of Parliament or any Act of the Government by way of judicial review. I ask to be shown anywhere in Europe where that is permitted. The members of our Judiciary are given a much more fundamental and active role than any other judges in the EU. It is not possible to walk into some palais de justicein Lyon, or somewhere like that, and say "I want an Act of Parliament invalidated". There is a Conseil d'État, which is different thing, in France. It has a role in respect of proposals for legislation. None of those systems, however, allow one individual, man or woman, to hear both sides of an argument, hear the state, and then say a proposed Bill is unconstitutional and void. None of those countries have this. This is because the adversarial common law system accredits full and original jurisdiction to high court justices to determine the validity of laws, having regard to the constitution. Nowhere else is this available in Europe now. It is not even available in England. When we consider this point and the enormity of then coming into this Chamber and telling us the Europeans want us to change the way we appoint our judges, I must say I feel a sense of shame.