Michael McDowell (Independent) | Oireachtas source

I happen to agree with the remarks made by Senator Ward and the Minister of State to a certain extent. I do make the point, though, that the vote we have just taken on my amendment No. 4 had the effect of, among other things, not merely restricting the capacity of any members of the legal profession to be members of the commission, but the amendment that I had tendered also took away the provision that the Attorney General should not have a vote on the commission. It is well worthwhile to point out that not every decision will be made by a vote. There may be a consensus, and the Attorney General, one way or another on the Minister's text, will be able to have an influence on the selection of people to feature on a shortlist and to exercise his or her opposition to the inclusion of somebody on a shortlist. That is the first thing I want to say.

The second thing is, there seems to be a fashion now to regard the Office of the Attorney General as somehow suspect. I find that it is media driven and mainly nonsensical. The Attorney General has many roles, one of which, under the Cabinet handbook, is to advise the Government on the suitability of a person's applying for judicial office. That role is at present provided for in the Cabinet handbook. The Attorney General must be consulted by the Minister for Justice before the Minister formally proposes, which is the procedure in Cabinet, the appointment of somebody as a judge. The Attorney General has that role in any event and is entitled to advise the Government in relation to the suitability of a person to be or not to be appointed as a judge.

It seems to me to be entirely redundant and counterproductive that somebody who has that role and is sitting as a member of the commission should not express similar views at the commission. If somebody is highly suitable or highly unsuitable in the view of the Attorney General, why should the Attorney sit there mute and silent while other people discuss the merits and when that person, if he or she is in fact nominated, either with the support or against the wishes or views of the Attorney General, will run into a strong headwind later at Cabinet? I do not see any reason the Attorney General should be forced into two entirely separate compartments, one of which is to sit at the commission and say nothing about his or her views as to the suitability of a candidate or the merits of one candidate over another, and then go into the Cabinet room and undo the work of his or her fellow commissioners by saying that, notwithstanding what happened in the creation of the shortlist, one of the members of that shortlist is somebody who should not be appointed and is not suitable for appointment to the relevant position, be it president of a court, membership of the Supreme Court, membership of the Court of Appeal or whatever.

That is a reason I strongly believe the Attorney General should be involved in the process. The Attorney General is at the moment involved in the Judicial Appointments Advisory Board process. It is a useful and beneficial presence for the Attorney General to see who is there and who is being recommended for appointment for that body, and to be able to go to Cabinet and say that person was either strongly recommended or weakly recommended, or that there were other persons far better than that person, in the Attorney General's view, who had been left out.

The second thing is that Senator Higgins is seeking a report on the involvement of the Attorney General in the activities of the commission, to be furnished by the Minister to the Oireachtas. I just do not know how that report would work out. Are we to be told that the Attorney General did or did not contribute, did or did not express opinions, or that the Attorney General's views were constantly overridden by a majority? Are we going to learn anything useful from a report being furnished to the Members of the Oireachtas without breaching completely the confidentiality of the discussions about the relative merits of the various persons applying for recommendation? Again, there is a deep-seated confusion. I am not saying this personally in respect of Senator Higgins, because other people have, as she has said, expressed similar views that somehow the independence of the appointments system is contaminated by the fact the Attorney General would have some views on the matter.

The Attorney General is a constitutional officer; let us remember this. This commission is subconstitutional. The Attorney General has a role under the Constitution, one of which is to advise the Cabinet on the suitability of people. That has existed since 1937. That role of the Attorney General is part of the basic and fundamental law of the land and it cannot simply be wished out of existence.It cannot simply be reduced to the point of meaninglessness such that the man or woman who is Attorney General has to sit in a room and say nothing while discussions are going on, which would be the case if Senator Higgins's amendment were accepted, or, alternatively, if the amendment I proposed and that was rejected had been accepted, that the Attorney General could not have a say, especially in a circumstance we discussed at great length on the previous occasion, whereby the Government is creating a deliberate deadlock on this commission. It is an eight-person commission. Four people can have one view of a candidate, four people can have another view and there is no way of resolving that issue. Why are we doing that? I do not know. If we had given the Attorney General a vote, there would at least be the opportunity of a 5:4 decision. However, the chairperson is not being given a casting vote and the Attorney General is not being given any vote at all under this hybrid legislation. The result is that we are moving towards a situation whereby four members of the Judiciary will have a veto over the appointment of anybody else to the Judiciary, any promotion within the Judiciary or any appointment of somebody to one of the high constitutional offices, that is, President of the Court of Appeal, President of the High Court or Chief Justice.

This is a sad enterprise. I see where Senator Higgins is coming from with her amendment but I do not agree with where she is coming from. It clearly originates, as did the academics' views to which she referred, from some view that the Attorney General, as a constitutional officer, is not a person who should have an input of any significance into the appointment of judges. The Attorney General can, of course, go to the Cabinet and say, "Here is a short list of three." However, what the Attorney General cannot do is say the short list is extremely defective. At least one reason for having the Attorney General on the commission is that he or she can report to the Cabinet people who are constantly applying to be judges and who, in the Attorney General's view, are being unfairly refused recommendation. Those are the waters we are sailing into. At least the presence of the Attorney General might alert the Government to the fact there is an agenda among the judges to select a particular type of person to be a colleague, which is, in the Attorney General's view, unhealthy, unwise or undesirable, or that particular persons seemed to be the subject of unfair evaluation by their colleagues. I reiterate that the four lay people are not going to be in as good a position as the four judicial people to come to a view as to the real merits of whether somebody should be recommended in the first place.

There is an old Woody Allen joke that in the beginning there was nothing and the Lord said, "Let there be light", whereupon there was still nothing but you could see it far better. We are now in a position that we are, in effect, creating a Bill that claims everybody should be appointed on merit, but merit is what the members of this commission consider it to be. I have made this point repeatedly. I will not dwell too much on it now other than to say that as between a liberal, a conservative, a social radical, a republican, a nationalist, a pro-European person or somebody else, merit does not matter. If it is to be taken into consideration, what does "merit" mean? If there are two highly intelligent women or men who are well capable of understanding the cases that come before them and acting very judicially in regard to those cases, but one of them is a conservative and social reactionary and the other is a radical and progressive quasi-revolutionary, how does merit decide which of them should be appointed? This shibboleth of appointment on the basis of merit raises the question constantly of what is "merit".

To revert to the particular role of the Attorney General, we are looking at a situation whereby he or she is not capable of saying to the other members of the commission that a particular person, in his or her view, is extremely unlikely to be appointed by the Cabinet for whatever reason. It might be because the person was madly pro-choice or madly pro-life or whatever. Perhaps it is a situation in which a person is applying for the first time to be a judge and he or she has a particular outlook on economic and social affairs or whatever. If the Attorney General cannot say to his or her fellow commissioners that this person is of such a mind-set that the Cabinet is extremely unlikely to appoint him or her, then what is the point of this whole enterprise?

I remind the House that the Minister's predecessor absolutely refused to deal with this issue. It must be dealt with at some stage. If the commission is going to interview people, can it deal with issues such as their philosophy, outlook, political stance and political record before being appointed to be a judge? Can commissioners ask questions during a commission interview process that deal with those issues? These are issues that tend to trench on the whole question of how one is going to, or is likely to, decide cases or what one's overall philosophy is likely to be. This process says there must be interviews, there must be independent people and they must make a decision on merit, but there is no guidance given to them on whether they can ask any question as to whether, for instance, in the ten years before somebody applied to be a judge, he or she was leading a radical political movement or a not-radical political movement or was taking a stance on social issues that would cause people in the street to wonder whether this person is suitable for judicial office. Is there an entitlement even to ask people about that? Is there an entitlement to ask whether a person is an active Marxist or an active member of Opus Dei or things like that? No, there is not, or I think not anyway, because there is nothing in the Bill that says there is such an entitlement. Surely somebody is entitled to know these things before a person is appointed?

We are just wishing all of this away in a kind of bland act of self-oblivion as to the realities of why people are or are not considered suitable to be judges in the first place or suitable to be appointed to high office within the Judiciary. The grounds on which those decisions are made are ones that are not capable of being properly dealt with by four judges. It is none of their business whether somebody was an active member of People Before Profit, for instance, before he or she applied to be a judge. The Judiciary will not decide those kinds of things but the Attorney General may say to his or her fellow commissioners, "I want to draw this aspect of that person to your attention." Those are the realities.

While I appreciate the sincerity of Senator Higgins in trying to remove all political aspects from the appointment of judges, such an appointment is a fundamentally political - not party political, but fundamentally political - duty and right of government, and it is exercised by reference to what are political issues in the sense of economic outlook, social attitudes and the like.The Attorney General is entitled, from the Cabinet handbook, both as a member of the commission and as the legal adviser to the Government, to be consulted on these matters and to make his or her views clear at all relevant stages. For these reasons, I am opposed to the amendments put forward by Senator Higgins.