Alice-Mary Higgins (Independent) | Oireachtas source

To be clear, I have not removed the Attorney General altogether from the whole process and sent them out into the wilderness, which is what would come across from the contributions we heard. I am clear that the Attorney General has a role and, indeed, a political role as legal adviser to the Government. I refer to that part of the process whereby the Attorney General, as legal adviser to the Government and Cabinet, gives advice to Cabinet on a short list of candidates who have been put forward. It might be very good advice but none of us will know because we are not members of Cabinet and the advice given by the Attorney General is not information that is publicly available and shared. The advice given at that stage may contain all kinds of insights into the candidates. In the proposal, as such, it was mentioned that if there were circumstances where it was seen that worthy candidates were repeatedly refused or there was a pattern of obstruction of certain candidates, the Attorney General can report on that factor because they are there as a witness within the commission. As I said, I put forward amendments on Committee Stage to remove the Attorney General and change the maths and so forth generally within the commission. However, seeing as that was not accepted, this new amendment is simply looking to the role, so the Attorney General is in a position where they can report what kinds of factors have featured in the discussions or considerations of the commission. They would not be influencing that decision. As was acknowledged by Senator McDowell and others, it is not simply voting - voting is not the only way one influences a selection process. There are many other ways one can influence a selection process and it may indeed be by pointing out the past political party membership of a candidate and so forth. There is a question, given the separation of powers and that we want a Judiciary that does not simply match a Government that may come or go, but will be in that role for a long period of time through multiple governments, that perhaps it is appropriate that the appointment decision is still sitting with Government but the considerations should sit in a wider frame and be designed for a wider time period than the particular preferences of a particular Government of the time, which may or may not be communicated by an Attorney General to a commission as a sitting member.

My amendment is carefully worded. I am not saying that the Attorney General would not play a role in the process around the appointment of judges. I am saying that they should not in their capacity as a member of the commission. However, they have multiple roles, as was outlined. They have the constitutional role and, separately, they have their role as legal adviser to the Government. It is the fact that in that role of legal adviser to the Government, information and advice that is given is not something that we in the general Oireachtas or the public will have access to that I look to clarify. We have been told they are leaving one role at the door, supposedly, and taking up their different constitutional role when they go on the commission. However, it is to ensure that if we do not and cannot know what advice the Attorney General might give to Cabinet, we have a sense of what the input they gave in their other role, if they are taking up this other capacity, where they are going to be part of the commission and play a role there in drawing on their expertise as highest legal officer - I think that was the phrase - in the State and that we have that idea of the confidentially, which necessarily assigns to the Attorney General in their legal advice to Government, is not necessarily precluding us having some sense of what role the Attorney General is playing and the contribution they are making within the commission.

We are being told contradictory things. One is that the Attorney General being there ensures we do not have somebody recommended that the Government will say “No” to anyway. That is a concern, if we the Attorney General there creating a chilling effect on candidates being recommended because they are not going to be who Government might have preferred. That, again, implies a blurring of the lines. On the one hand, we have been told they are two separate capacities and two separate functions and, on the other hand, we have been told how they are anticipated to affect each other.

Therefore, my amendments are a reasonable compromise. The Attorney General is on the commission and can affect the workings of it, monitor the way that it is and be a flag to Government if there are concerns related to how the commission might have operated but is not in a position to unduly influence the creation of a short list which they then get to choose and give the advice on who on a short list should be selected. It is just too much power for one person. This is not disparaging Attorneys General or creating a concern around them. It is an incredible honour to be serving as an Attorney General. It is an incredibly important function of anybody in the State.

However, I am speaking as somebody who is not and probably will never be in Cabinet. I am looking to the situation whereby it is not a lack of trust of the individual and I would reject any of the implications that somehow say that I am implying that. It is around how currently, the way the role is designed, we do not have access to the advice that Attorneys General give. It is given as legal advice to the Government and that is quite separate from serving the State in its wider picture. The Government is not the State. That is an ambiguity that seems to come in. There does not seem to be a clarity around that all the time. The Government and the State are not the same thing. The State exists and continues to exist and Governments come into power and so forth. They are the Executive but we also have the Oireachtas. There is a whole set of checks and balances at work.

I am concerned there is not a clarity around the separation of the those functions, ensuring Attorney General can come in at the appropriate time. Again, I would reject the suggestions that I said they should have no role. I have been clear; none of my amendments have tried to remove their role in relation to legal advice or short list advice to Cabinet. However, I have tried to ensure they are not in two different roles at two different parts of the process.

Those are reasonable amendments. My amendment No. 10 tries to address that if we are going ahead with this idea that the Attorney General will play one role just as a chief legal officer of the State within the commission and then is going to flip over and be the legal adviser to Cabinet later on, the provisions around the legal adviser to Cabinet role, where there is all that necessarily appropriate confidentiality, should not necessarily constrain us having insight into the role that the Attorney General plays within the commission. That is why I am tabling amendment No. 10 around the functioning of the Attorney General.

Those examples that were given about what might be in that report are good examples of things we should know. Is the Attorney General always being ignored and railroaded past? Is the Attorney General seeking to repeatedly block the same candidates? Those are relevant things. If any of the scenarios that were outlined hypothetically were to be in play, that would be important information for us to know because they would have ramifications for the effectiveness of the functioning of the judicial commission. In that context, I will press these amendments. Amendment put and declared lost.