Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Apologies have been received from Senator Frances Black. Deputy Clare Daly will be with us momentarily; she had to go to the Dáil Chamber. I ask everybody present to please switch off all mobile phones as they interfere with the sound recording system in committee rooms. Before we commence, I indicate to members that we will go into private session again to discuss a very brief matter at the conclusion of this particular public session.

The purpose of today's meeting is an engagement with the Minister for Justice and Equality, Deputy Charles Flanagan, to discuss the manner in which the Government recently nominated the former Attorney General, Ms Máire Whelan, to fill the vacancy on the Court of Appeal. I welcome the Minister and his officials to the meeting this afternoon, which is the Minister's second with us today. I record our thanks to him for acceding to our request. The format of the meeting is that the Minister will be invited to make an opening statement which will be followed by a questions and answers session. I am obliged in the normal course, but very especially in the circumstances of the matter under address, to caution members they should be aware that under the salient rulings of the Chair, members should not comment on, criticise or make charges against a person outside the House, or an official by name or in such a way as to make him or her identifiable.

Before we begin, I give members a cautionary reminder that the Judiciary is independent under the Constitution and the Oireachtas has always respected the separation of powers. I request all members, therefore, to be measured in their contributions and to uphold the principle of mutual respect between the Houses of the Oireachtas and the Judiciary. While this does not preclude debate or raising the matter of the process and manner of a new judge's nomination and appointment, members should not stray into the areas of a judge's personal qualifications or suitability for any given position. I ask members to refrain from making remarks that reflect on the professionalism or competence of a member of the Judiciary. I now invite the Minister to make his opening statement whereupon I will give members the opportunity to ask questions.

Charles Flanagan (Laois, Fine Gael)
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I thank the Chairman. I am pleased to accept the Chairman's invitation to attend this meeting to discuss the recent appointment of Ms Justice Máire Whelan as a judge of the Court of Appeal.

One of the members is indicating.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am indicating to speak at the end of the Minister's contribution.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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At the end of the Minister's contribution.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is the Chairman's practice to take notifications from individuals who wish to ask questions.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Absolutely.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am just notifying the Chairman.

Charles Flanagan (Laois, Fine Gael)
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Judicial independence is at the core of the proper judicial role in any free society. This very independence is guaranteed by Article 35.2 of the Constitution which provides that judges are to be "independent in the exercise of their judicial functions and subject only to this Constitution and the law". The appointment of judges to our courts is of fundamental importance to the administration of justice. We are most fortunate that we have in Ireland a strong, independent, impartial and well respected Judiciary. The Irish Judiciary has served this country extremely well and, as I stated in the Dáil last Wednesday, it is now and has always been one of the great successes in our history. Members of the committee will be aware the matter has been discussed in depth over the past two weeks, having been addressed by the Taoiseach during Leaders' Questions on 20 June and 21 June 2017 and during a two-hour debate held in the Dáil on 21 June 2017. I have nothing new to add to the information provided last week other than to continue to underline what has been said a number of times by the Taoiseach and others about the appointment of Ms Justice Máire Whelan to the Court of Appeal that we have appointed a suitable person who was appropriately qualified using procedures that were at all times correct. That being said, I emphasise that judicial appointments are made, in accordance with Articles 13.9 and 35.1 of the Constitution, by the President acting on the advice of the Government. This constitutional function cannot be transferred or delegated. It is a normal feature of Government in common law jurisdictions.

On 5 January 2017, the Judicial Appointments Advisory Board sought by public advertisement applications from practising barristers and solicitors eligible for appointment to the Supreme Court, Court of Appeal, High Court, Circuit Court and District Court. A vacancy for an ordinary judge of the Court of Appeal arose following the retirement of the honourable Mr. Justice Garrett Sheehan on 23 March 2017. In response to a request from the then Minister for Justice and Equality, the Judicial Appointments Advisory Board reported on 16 May 2017 that it was not in a position to recommend a person for appointment to the vacancy in the Court of Appeal. I remind the committee that section 20 of the 1995 Act provides that all proceedings of the board and all communications to the board are confidential. From time to time in the past, the Judicial Appointments Advisory Board has reported that it is not in a position to recommend any candidates as suitable for appointment as a judge. The Government, in nominating a person to the President for appointment to judicial office, is not limited constitutionally to the consideration of the outcome of an appointments board process but is obliged under the 1995 Act to first consider the names of any persons recommended by the appointments board, something which did not arise in this instance since there were no such recommendations. The Minister for Justice and Equality brings a recommendation to Government in the same way that any other Minister would make a recommendation on appointments to important public roles in the area of Government for which they are responsible.

At its meeting of 13 June 2017 Government decided to nominate the then Attorney General, Ms Máire Whelan, Senior Counsel, for appointment as an ordinary judge of the Court of Appeal in accordance with Article 13.9 of the Constitution to advise the President on appointments to judicial office. The Government acted entirely within its constitutional powers and responsibilities in making this nomination. I wish to point out that successive Governments have nominated judges since the foundation of the State. Furthermore, several Attorneys General have been appointed directly to the Bench, as might be expected given their seniority and expertise as the senior law officers in the State.

On 19 June 2017 Ms Justice Máire Whelan was appointed by the President as a judge of the Court of Appeal. I wish to remind the committee that Government, in making the decisions necessary to nominate people for judicial appointments, is performing a profound function under the Constitution and one which is at all times fundamental to our separation of powers and to the maintenance of independence and public confidence in our Judiciary. The effectiveness of the performance of this function by successive Governments has been illustrated by the extraordinary quality of the Judiciary and the public respect in which the relevant people and their independence are held. Indeed it would not be appropriate to comment any further on specific nominations to judicial office, which are decisions made by the Government and subject to Cabinet confidentiality under Article 28.4.3o of the Constitution. The Government has sole discretion under the Constitution to nominate persons of its choosing, providing they are qualified and eligible for appointment as a judge. In this case, a suitable person who was appropriately qualified was appointed to fill a judicial vacancy lawfully using a process that was at all times correct. I have no doubt that Ms Justice Whelan, having regard to her qualifications expertise and extensive experience, will make a valuable contribution to the work of the Court of Appeal.

Where existing judges of the High Court or any other court put forward expressions of interest in a vacancy to the Attorney General all such submissions are considered and are treated in a confidential manner for obvious and good reasons. While of course such expressions of interest are always considered, constitutionally, the Government cannot be bound by any such expressions of interest in exercising its prerogative to advise the President on a judicial appointment. It is in accordance with the law and the Constitution for the Government to nominate a person to the President to be appointed a judge of any court. This of course includes the Court of Appeal, providing the person is eligible and qualified. It is also in accordance with the law and the Constitution for the Government to nominate for appointment an eligible and qualified person who is not already a judge, even if there are existing judges who have expressed interest in the appointment. As stated on several occasions in recent times, the Government is satisfied that all necessary procedures for judicial appointments were followed in the appointment of Ms Justice Máire Whelan to the Court of Appeal. I am satisfied that Ms Justice Whelan will make a valuable contribution to the work of the court.

I wish to briefly turn to the Government's commitment to significantly enhance the judicial selection model. The Bill dealing with judicial appointments is winding its way through Second Stage in the House and will come before the committee shortly. Among other issues, the Bill deals with the matter of the promotion of serving judges, which is currently outside the remit of the Judicial Appointments Advisory Board. Members of the committee will be aware of the process. I look forward to engaging extensively with the committee at the earliest opportunity subject to the scheduling of the Bill by the committee.

I wish to comment on matters germane to the current debate. An important feature of the new Bill is ensuring that the process for judicial appointments is open, fair, transparent and accountable and that it promotes diversity. At the same time the protection of the principle of judicial independence remains central. The Bill will reduce the number of suitable candidates proposed by the commission for each vacancy to three from the stipulated minimum of seven in the current system. The Bill provides the commission with 13 members. I figure all members of the committee were in the Chamber last evening and I imagine Senator Ó Donnghaile is, as always, well-briefed on the issues to hand. More important, as far as the new commission is concerned, merit is provided for in the new legislation as the criterion for selection and recommendation. Subject to that, the Bill provides for the objectives that the Judiciary should be equally comprised of men and women and that it should reflect diversity across society and within the population.

I looking forward to hearing the observations of the committee in the coming period and dealing with any outstanding issues that members may believe have not been addressed. I will do so in accordance with the long-standing principles for debate and discussion of issues under consideration.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Go raibh maith agat, a Aire. We will now open up to members. I have two indications, namely, Deputies Jim O'Callaghan and Jack Chambers.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Minister for coming in. I agree with the Minister that it is important for Members of the Oireachtas to respect the separation of powers. The three organs of government, the Judiciary, the Legislature and the Executive, must respect each other. Of course there are responsibilities on each of those organs as well to try to hold other organs to account. The reason we invited the Minister before the committee was because we, as members of the Legislature, want to hold the Executive to account for a decision that was made on 13 June last by the Executive. Fortunately, we will not be straying anywhere into the judicial arm of government in our questioning, nor should we.

In the time of the Minister in government, how many times has the Government nominated a lawyer to judicial office without that lawyer being recommended by the Judicial Appointments Advisory Board?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Aire, please respond to the individual questions as they are posed. Deputy O'Callaghan has put forward a question. We accommodate two different styles, either individual questioning in repetition or collective address. Different members have different approaches to this matter. Please proceed if you are in a position to respond to Deputy O'Callaghan's first question.

Charles Flanagan (Laois, Fine Gael)
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In my time in government there has been one appointment by the Government that was not made following a Judicial Appointments Advisory Board recommendation or by the elevation of a serving judge to a higher court.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Was that the time when the former Attorney General was appointed following the decision made on 13 June?

Charles Flanagan (Laois, Fine Gael)
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I am not making any further comment on issues that have been under consideration by Government. I have answered the question.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am not trying to have a row with the Minister. It is a matter of public record that every time a judge is nominated by Government for appointment the end of the Government notice states that the person was recommended for appointment having gone through the Judicial Appointments Advisory Board process. I do not think there is any dispute between us. Is it not the case that the only time in the Minister's experience in government when that did not happen was in respect of the nomination on 13 June?

Charles Flanagan (Laois, Fine Gael)
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No, I said that during my time in government there was one such decision made by Government.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The Minister is not prepared to state that it was the nomination on 13 June. Is that correct?

I have some other questions. Did any High Court judges express interest in this vacancy on the Court of Appeal?

Charles Flanagan (Laois, Fine Gael)
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I think the record will show that there were a number of expressions of interest. I am not in a position to go into any further detail on the identity, names or numbers of those involved for reasons that have already been stated on the record of the House and from which I have no wish to depart. What I can say is that any nominations were given due and appropriate consideration in accordance with time-honoured practice and the law.

Any nominations were given due and appropriate consideration in accordance with time-honoured practice and the law.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I agree with the Minister and under no circumstances will I go into names, identities or numbers. Did the people who expressed interest do so in writing?

Charles Flanagan (Laois, Fine Gael)
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Whether existing judges of the High Court or any other court put forward expressions of interest to the Attorney General in regard to the matter of a vacancy in the Court of Appeal is confidential, which is important for reasons that would be well known to the Deputy, having regard to his practice at the Bar.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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May I take it from the Minister's comments, to assure the public, that the individuals from the High Court who applied had their applications considered by the Government?

Charles Flanagan (Laois, Fine Gael)
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I can say that any issues that were before the Government in the matter of this appointment were given appropriate consideration in accordance with the law and practice.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The Minister mentioned in his statement to us and previously in the Dáil that the Judicial Appointments Advisory Board reported to the Minister for Justice and Equality on 16 May in respect of the vacancy in the Court of Appeal. When did the Department seek a recommendation from the Judicial Appointments Advisory Board in respect of the Court of Appeal?

Charles Flanagan (Laois, Fine Gael)
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My understanding is that on 12 April the then Minister for Justice and Equality wrote to the appointments board seeking a recommendation to fill current and pending vacancies in the Court of Appeal and other courts.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The former Minister wrote to the board on 12 April and the Judicial Appointments Advisory Board replied on 16 May. I am fully aware the Minister was not in office at the time. On 23 May we know the Government nominated seven people to fill vacancies and pending vacancies on the High, Circuit and District Courts. Will the Minister explain why the vacancy on the Court of Appeal was not put on the Government agenda for 23 May?

Charles Flanagan (Laois, Fine Gael)
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I am not in a position to give an explanation that would warrant my intervening on the matter of Cabinet confidentiality and the decision-making process. For the benefit of the Deputy, I add that I was appointed Minister for Justice and Equality on 14 June. That is not an issue I can address.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In fairness, I appreciate that Deputy Flanagan was not Minister for Justice and Equality at the time. Would he agree that it was unusual that the Minister who received a recommendation or non-recommendation from the Judicial Appointments Advisory Board on 16 May in respect of the Court of Appeal vacancy then did not put that Court of Appeal vacancy on the agenda of the Government on 23 May?

Charles Flanagan (Laois, Fine Gael)
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No, I would not say it was at all unusual. I will repeat what was stated by the Taoiseach last week in the House and lest there be any doubt, I reaffirm once again that the correct and proper procedures were followed in nominating a judge to fill the vacancy, as was the case on the date to which the Deputy refers in respect of other courts and vacancies.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Did the former Attorney General apply for the vacancy on the Court of Appeal?

Charles Flanagan (Laois, Fine Gael)
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Is that with regard to the judicial appointments board?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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No. We know she did not apply to the judicial appointments board. I am asking the Minister did she apply to the Government.

Charles Flanagan (Laois, Fine Gael)
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I am not in a position to disclose any application that came before the Government. I made that clear earlier with respect to expressions of interest for and on behalf of any member of any court. I am not at liberty to go into any detail on the matter of any applicant other than to say that all and any applicants that were to be considered were dealt with in accordance with the law.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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If somebody is nominated by the Government for a position, I presume the person would have applied for that position. Will the Minister not confirm to the committee that the successful candidate applied to the Government to fill the vacancy?

Charles Flanagan (Laois, Fine Gael)
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I can say that the correct and proper procedures were fully adhered to and followed at all times.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The Minister had no difficulty stating that members of the High Court had applied for this vacancy. Why is he reticent about stating the successful candidate applied for the vacancy?

Charles Flanagan (Laois, Fine Gael)
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I am not going into any detail on numbers and the nature of applications or from whom the applications were tendered. The Deputy will be aware that the Government is fully entitled to nominate a person of the Government's choosing, strictly in accordance with the terms and conditions of the Constitution.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I accept that fully.

Charles Flanagan (Laois, Fine Gael)
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As I stated, this is provided that any applicant or interested party is eligible and expertly qualified.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The Government indicates there is now a parallel scheme of appointment for lawyers other than the application through the Judicial Appointments Advisory Board. It is incumbent on the Government to make other lawyers aware of this parallel scheme. That is the reason I asked if the successful candidate was nominated. I ask it again. Was a written application received from the successful candidate?

Charles Flanagan (Laois, Fine Gael)
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The Deputy may ask the same question in a number of ways or on a number of occasions but I am not in a position to depart from the current strictures in respect of Cabinet confidentiality that will not allow me deal in any detailed way, or to the Deputy's satisfaction, with issues about which he is asking. I can point out the provisions of the 1995 Act, with particular reference to the role and function of the Judicial Appointments Advisory Board and the Constitution in the manner in which judges are appointed under our Constitution. With the greatest of respect, I will not get into the matter of numbers, names and identities for reasons well known to Deputy O'Callaghan.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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We disagree on that and I will not probe the Minister any further on it. Has the Minister asked his officials whether the Judicial Appointments Advisory Board informed the Department it believed a sitting High Court judge should fill the vacancy?

Charles Flanagan (Laois, Fine Gael)
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The judicial appointments board met in response to the invitation of the then Minister for Justice and Equality, who wrote to it on 12 April. The board met within four weeks, on 10 May, to consider applications for nomination as a judge in the various courts, including the Court of Appeal. On 16 May, the board responded in writing to the Tánaiste and Minister for Justice and Equality, noting the board had decided not to recommend any applicants for the vacancy in the Court of Appeal.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Was there any informal communication from the Judicial Appointments Advisory Board to the Department stating its preference was for a sitting High Court judge?

Charles Flanagan (Laois, Fine Gael)
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I will make two points in response. I reiterate that I was appointed Minister for Justice and Equality on 14 June and I did not have any knowledge of that. Even if I did, I refer the Deputy to section 20 of the 1995 Act, which states quite clearly that all proceedings of the Judicial Appointments Advisory Board and all communications are deemed confidential.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I have two more questions. As an experienced politician, does the Minister think it appropriate that the successful candidate stayed in the Cabinet room when her candidacy was being discussed by the Cabinet?

Charles Flanagan (Laois, Fine Gael)
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As an experienced politician, I am quite satisfied all proper procedures were followed fully in accordance with the law.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I wish to confirm a matter. The Minister spoke about the Judicial Appointments Commission Bill 2017 that is currently on Second Stage. Will the Minister confirm that if that legislation had been enacted, nothing in it could stop what happened on 13 June from being repeated?

Charles Flanagan (Laois, Fine Gael)
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I point the Deputy to the Constitution and the powers of Government to appoint judges. The Deputy will be aware of the provisions of the Act in so far as nominations for judicial office may be considered. I look forward to the co-operation of this committee and Members of the House in enacting the legislation. I remind Deputies of Article 39 of Bunreacht na hÉireann in respect of the powers and functions conferred by the President exercisable and performable by him on the advice of Government and the manner in which the powers may be exercised by Government in respect of the appointment of members to judicial office.

Jack Chambers (Dublin West, Fianna Fail)
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In his reply to Deputy O'Callaghan, the Minister referred to time-honoured practice in respect of judicial appointments. We know the time-honoured practice relating to the Judicial Appointments Advisory Board, JAAB. Can the Minister give us the time-honoured practice relating to the procedure in the most recent Court of Appeal appointment?

Charles Flanagan (Laois, Fine Gael)
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The time-honoured practice for persons holding the office of Attorney General goes back to 1953 and the appointment to the Supreme Court of the late Cearbhal Ó Dálaigh.

Jack Chambers (Dublin West, Fianna Fail)
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I did not ask for a history lesson. I asked for the procedure.

Charles Flanagan (Laois, Fine Gael)
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The time-honoured practice was not departed from.

Jack Chambers (Dublin West, Fianna Fail)
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Can the Minister detail what it is?

Charles Flanagan (Laois, Fine Gael)
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It concerns the Constitution. The practice goes back several decades.

Jack Chambers (Dublin West, Fianna Fail)
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I want to know the clear procedure that was followed.

Colm Brophy (Dublin South West, Fine Gael)
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On a point of order, is it appropriate for any Deputy on this committee not to allow somebody to answer a question? Should the Chair not take action in this matter? I was under the impression this was a two-way flow and I cannot see how we benefit-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It is intended to be. I understood that Deputy Jack Chambers was clarifying the question he had posed. I viewed it as appropriate and I ask the Deputy to proceed.

Jack Chambers (Dublin West, Fianna Fail)
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I will clarify my question. I do not want a history lesson on previous judicial appointments. I am asking the Minister to detail clearly the parallel process undertaken with this judicial appointment. He referred to time-honoured practice. We know the procedure and the statutory framework for the JAAB process. Can he detail the due process to which he and the Tánaiste have repeatedly referred?

Charles Flanagan (Laois, Fine Gael)
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I would not wish to give any Member of the House a history lesson but going back over several decades, referenced in academic sources, the practice has been that the Minister for Justice, in consultation with the Taoiseach, brings a name to Cabinet for nomination. It has always been the case that the personal privacy of applicants, for obvious professional reasons as well as, dare I say, commercial reasons, is maintained. I am not going to depart from that practice now. This approach is essential to the maintenance of the independence of our Judiciary, which is highly valued, not just by me but all members of this committee, in the context of the separation of powers and our democratic institutions under law.

Jack Chambers (Dublin West, Fianna Fail)
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The Minister referred to additional expressions of intent from existing judges. Can he detail when the expression of intent was made from the Attorney General to Government?

Charles Flanagan (Laois, Fine Gael)
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Additional to what?

Jack Chambers (Dublin West, Fianna Fail)
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When was the expression of intent made by the Attorney General?

Charles Flanagan (Laois, Fine Gael)
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The Deputy said I had made reference to additional expressions of interest. I am not sure what he means by that.

Jack Chambers (Dublin West, Fianna Fail)
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Expressions of interest were made by existing judges for the vacant-----

Charles Flanagan (Laois, Fine Gael)
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Sorry?

Jack Chambers (Dublin West, Fianna Fail)
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Expressions of interest were made by existing members of the Judiciary. The Minister referenced additional applications.

Charles Flanagan (Laois, Fine Gael)
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Expressions of interest, in the shape of numbers, identities or their nature, have never been published.

Jack Chambers (Dublin West, Fianna Fail)
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The Minister referenced them.

Charles Flanagan (Laois, Fine Gael)
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I am not going to depart from the current legal position on that. As I said to Deputy O'Callaghan and in response to questions in the House, the Government reserves the power to, and is entitled to, nominate a person of its choosing provided two conditions are fulfilled, namely, that the person is eligible and that he or she is qualified. That has been the position and it is the position in this case.

Jack Chambers (Dublin West, Fianna Fail)
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There seems to be a lot of discussion on section 18 of the Courts and Court Officers Act 1995 and on how it relates to the Attorney General. Can the Minister tell the committee what this entails for an Attorney General applying for such a position?

Charles Flanagan (Laois, Fine Gael)
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I am sure the Deputy will be aware of section 18.

Jack Chambers (Dublin West, Fianna Fail)
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I am. How would an Attorney General have to act under the law according to section 18?

Charles Flanagan (Laois, Fine Gael)
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They would have to be a suitable candidate, be eligible and exhibit certain expertise. In the case of the appointment recently made by Government, these were evinced in a totally appropriate way. If an eligible person does not apply to the board there is still nothing, constitutionally or otherwise, to prevent or interfere with Government nominating that person as long as the person is entitled to be nominated and is eligible. Section 18 is only applicable if a person in the role of Attorney General makes an application to be a judge.

Jack Chambers (Dublin West, Fianna Fail)
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Is the Minister saying that no application was made?

Charles Flanagan (Laois, Fine Gael)
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The Government acted entirely within the law and the powers, functions, obligations and duties that are applicable in these circumstances.

Jack Chambers (Dublin West, Fianna Fail)
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If an Attorney General ceases to be in that position, he or she ceases to be a member of JAAB. Is that correct?

Charles Flanagan (Laois, Fine Gael)
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I am not getting into hypothetical situations as to what might happen if an Attorney General is in any form of opposition. The board may or may not make certain recommendations. In this case the formal letter from the appointments board, dated 16 May to my predecessor, noted that the board had decided not to make any recommendation for the vacancy in the Court of Appeal.

Jack Chambers (Dublin West, Fianna Fail)
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When was the Minister, when Minister for Foreign Affairs and Trade, made aware of a potential appointment to the Court of Appeal?

Charles Flanagan (Laois, Fine Gael)
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I attended the meeting of Cabinet.

Jack Chambers (Dublin West, Fianna Fail)
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Did the Minister not have prior notification or knowledge?

Charles Flanagan (Laois, Fine Gael)
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I would not have expected to have any previous or prior notification in my capacity as Minister for Foreign Affairs and Trade.

Jack Chambers (Dublin West, Fianna Fail)
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So the Minister had no knowledge.

Charles Flanagan (Laois, Fine Gael)
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No, I would not have expected to have knowledge.

Jack Chambers (Dublin West, Fianna Fail)
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Is it the case that the Minister would not have expected to have knowledge or that he had no knowledge?

Charles Flanagan (Laois, Fine Gael)
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I had no knowledge nor would I have expected to have knowledge.

Jack Chambers (Dublin West, Fianna Fail)
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Did the former Attorney General remove herself from the previous meeting of JAAB where a notification was given to Government-----

Charles Flanagan (Laois, Fine Gael)
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I do not have any knowledge nor, indeed, would I have any reason to have knowledge as to the proceedings within JAAB. I would point to what I said earlier, which is that the deliberations of the board are conducted in a way that is very much removed from Government, which, in the circumstances, is perfectly understandable and is prescribed by law under the 1995 Act. As Minister for Foreign Affairs and Trade or in any ministerial capacity, I would not have detailed knowledge of, or access to, minutes of the board regarding who was present or not, or its deliberations. That was agreed by the House as far back as 1995.

Mick Wallace (Wexford, Independent)
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When Deputy O'Callaghan asked the Minister about the former Attorney General remaining in the Cabinet room as her candidacy was discussed and whether it was a breach of fair procedure, the Minister said it was perfectly lawful and he was fine with it. It may have been within the law but can he argue that it was fair procedure?

Charles Flanagan (Laois, Fine Gael)
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I am not in a position to disclose any detail that might place me in a position of contravening Cabinet confidentiality.

Mick Wallace (Wexford, Independent)
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I am not asking the Minister to contravene Cabinet confidentiality. While we are in agreement it was within the law for the former Attorney General to be in the room, does he think that is a fair way to carry out business of this nature?

Charles Flanagan (Laois, Fine Gael)
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I am quite satisfied, as I said in response to the same question from Deputy O'Callaghan, that the former Attorney General behaved appropriately at all times during the process and that Government followed the matter of this judicial appointment in accordance with the law.

Mick Wallace (Wexford, Independent)
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The Minister stated: "... the JAAB reported on 16 May 2017 that it was not in a position to recommend a person for appointment to the vacancy in the Court of Appeal." The former Attorney General was a member of the board. Did the board give an explanation as to why they were not in a position to recommend anybody?

Charles Flanagan (Laois, Fine Gael)
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The letter indicated that they decided not to make any recommendation. Reasons for such recommendation or going behind anything that might disclose the process leading to a decision are not issues that I would be apprised of or would expect to be involved in as a member of the Executive.

Mick Wallace (Wexford, Independent)
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The Minister said: "The Government acted entirely within its constitutional powers and responsibilities in making this nomination". I fully agree the Government acted within its constitutional power regarding what it did but in the context of responsibilities, does it not have a responsibility to the people of Ireland? Does he think the Government acted in a responsible manner on behalf of the people by behaving in this way with this appointment?

Charles Flanagan (Laois, Fine Gael)
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I acknowledge that I as a member of Government have duties under the law and under the Constitution and I am satisfied that I have at all times discharged these duties fully in accordance with the law.

Mick Wallace (Wexford, Independent)
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Does the Minister accept that he has responsibilities to the public?

Charles Flanagan (Laois, Fine Gael)
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Of course I do. I am responsible to the public in the same way as every member of the committee and every Member of the House.

Mick Wallace (Wexford, Independent)
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Does the Minister think the public is happy with the manner in which this was dealt with?

Charles Flanagan (Laois, Fine Gael)
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I am quite satisfied as a member of Government that both my Government colleagues and I acted fully and strictly in accordance with the law.

Mick Wallace (Wexford, Independent)
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All this happened before we began to debate the reform of judicial appointments. Given the proposed legislation is expected to go some way towards addressing the issue of political interference in how judges are appointed, does the Minister think it is a little ironic that the Government parties in the manner of this appointment before we debated the depoliticisation of judicial appointments made as politicised a decision as one could invent?

Charles Flanagan (Laois, Fine Gael)
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No, having regard to the fact that Government acted entirely in accordance with the law in the manner in which this appointment was considered. The consideration by the Houses of the commission Bill was agreed in the programme for Government and the Bill is going through the House as we speak. I do not wish to pre-empt any debate in the committee or in the House. As Minister, I had the privilege of introducing the Bill last night and I look forward again to discharging my duty during the debate. I am not in a position to say when and if the Bill will be enacted but I look forward to the full co-operation of committee members. As I said by way of public comment last week, it is my hope that every Member who has an interest in the issue will have an opportunity to make a contribution during its passage through the House and I will not pre-empt "whens" or "ifs" as far as the matter is concerned.

Mick Wallace (Wexford, Independent)
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The Minister also stated that in the appointment of Ms Justice Máire Whelan to the Court of Appeal, the Government appointed a suitable person who was appropriately qualified using a correct process. Given the Minister is prepared to make comment on her suitability and her qualifications, it is fair to ask the following question: is it of concern that the Fennelly commission saw fit to ask her back four times due to contradictions in her evidence and that Mr. Justice Fennelly concluded in the interim report that he did not believe her version of events? Is the Minister still prepared to stand over his statement? Did the Minister read the Fennelly report?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I know where the Deputy is going with this but I have to remind him of the caution I issued at the beginning. I ask him to exercise the greatest care in the construct of his questions. We have to recognise, and we have to respect, that the former Attorney General is now a member of the Judiciary serving on the Court of Appeal and that the separation between ourselves and the Judiciary is something that we must respect.

Mick Wallace (Wexford, Independent)
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I understand that and I respect that. I will not comment on what kind of job she will do as judge.

I will not stray into that, but the Minister raised the issue of her suitability before she became a judge as to whether she was appropriately qualified. We read the Fennelly report and her role in that is shocking. I do not even want to go into the Siteserv or the children's referendum aspects. I am not talking about her role as a judge now. The Minister raised her suitability and her appropriate qualifications before she was appointed. Does the Minister have no concerns about the Fennelly report in particular?

Charles Flanagan (Laois, Fine Gael)
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At the outset the Deputy said he felt I would not comment on the suitability of the candidate. That is not the case. I am going to comment on the suitability of the candidate. As far as I am concerned, the Attorney General was an entirely suitable candidate. I refer the Deputy to section 4 of the Courts (Supplemental Provisions) Act of 1961, as amended by the 1995 Act, which deals with the question of qualification, eligibility and suitability. In terms of the decision of the Government to nominate the current Attorney General to office, it is clear that matters such as the significance of her experience as Attorney General and constitutional and legal adviser to Government were important considerations lending considerable weight to the provisions of the 1995 Act. Further, I refer to the skills and expertise of the Attorney General in providing advices over a number of years, in very difficult and challenging circumstances, to the Government of 2011 to 2017 in terms of the economic, social and political issues it faced. She provided advice on a diverse range of matters-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I want to caution that if we drift into an area that speaks only to one's view of the suitability, capacity etc. of the candidate based on experience, I have to apply it fairly across the board. I am trying to avoid the situation because I do believe that we need her. That is my personal belief. As Chairman, I have to ask the Minister to hold at that particular point, as in fairness I have already asked Deputy Wallace. The address today is primarily in regard to the methodology and I ask members to please assist me with that. I return to Deputy Wallace.

Mick Wallace (Wexford, Independent)
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This is my last question. It is pretty much accepted that public trust and confidence in politics in Ireland has been eroded over a number of years. Would the Minister agree that the manner in which the Government has handled the appointment of Máire Whelan to the Court of Appeal has further eroded public trust and confidence in the way we do politics?

Charles Flanagan (Laois, Fine Gael)
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I would not agree.

Clare Daly (Dublin Fingal, Independent)
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I will be brief, and I apologise for missing the Minister's opening remarks; I had a question in the Chamber. I hope I will not ask questions that other members have asked already. If I do, I can read the Official Report later. I have a couple of brief questions. First, we know the Chief Justice and the President of the Court of Appeal wrote to the former Taoiseach and the Minister for Justice and Equality last October asking for the Court of Appeal vacancies to be filled. They were told at that time that there would be no new appointments until the new legislation and procedures were put in place. What changed between October of last year and last week that allowed an appointment to be made under the old system in these circumstances, particularly given that the courts were about to go into recess?

Charles Flanagan (Laois, Fine Gael)
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It was not the old system. It was the current system, and the system that still obtains. My understanding is that there was some public comment on the matter of considerable pressures being brought to bear on the court by way of a number of vacancies not being filled. Although I was not party to any such discussions, I understand that certainly in the public arena a certain anxiety was raised that perhaps some outstanding appointments would be made, and I understand that some of those were duly made.

Clare Daly (Dublin Fingal, Independent)
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That is the precise point I am making. I called it the old system. We can call it the existing system, but it was precisely that system that the Chief Justice was told last October would not be used to implement any new appointments, yet between October and last week, something happened. I am wondering if the Minister has any knowledge of what that was because the Government, the Cabinet or whoever took a different tack by using this method.

Charles Flanagan (Laois, Fine Gael)
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I understand there were some developments since last October that pointed to a need to fill some vacancies, and Government acted accordingly to ensure that those vacancies were filled.

Clare Daly (Dublin Fingal, Independent)
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Does the Minister know what those circumstances were? I am wondering what happened in between.

Charles Flanagan (Laois, Fine Gael)
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I know there were a number of retirements.

Clare Daly (Dublin Fingal, Independent)
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There were at the time as well, in October. That was precisely the point.

Charles Flanagan (Laois, Fine Gael)
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I would point particularly, and going back to the Chairman's point about the particular circumstances, to an event on 23 March when a vacancy arose in the Court of Appeal following the retirement of Mr. Justice Garrett Sheehan. That was the issue around which the subsequent debate took place.

Clare Daly (Dublin Fingal, Independent)
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I am sorry if this question was asked earlier but how many people have been appointed outside a Judicial Appointments Advisory Board, JAAB, recommendation, apart from existing High Court judges or judges who are outside that process anyway? How many were appointed outside of the JAAB process in the lifetime of this Government and the previous Government, or even earlier? I can only ask the Minister to account for this Government's term of office. Since 2011, how many people have been appointed outside of a JAAB recommendation, apart from current judges who are obviously excluded from that process?

Charles Flanagan (Laois, Fine Gael)
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That is an issue that was raised by Deputy O'Callaghan earlier. I referred at that stage to there being one such appointment. That is the case.

Clare Daly (Dublin Fingal, Independent)
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When we talk about the existing process and normal procedures being used, would the Minister not accept that that answer means that this was not a normal situation, even under the existing procedures, and that what happened was extraordinary in that it only ever happened on one other occasion and that it is not the norm, even under a flawed or a system that is about to be changed?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I would make one point of clarification. The word "other" had not been used in either of the responses to Deputy O'Callaghan or to Deputy Daly. The Minister's response on each occasion was that one such appointment took place. I am only pointing out that the Deputy has to listen carefully.

Clare Daly (Dublin Fingal, Independent)
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Fair play to the Chairman. We have had a long day so this-----

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I have been listening, yes.

Clare Daly (Dublin Fingal, Independent)
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Is the one inclusive of the present one?

Charles Flanagan (Laois, Fine Gael)
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When the Deputy talks about it being, to use her words, unusual, I have to point to section 18 of the 1995 Act to which I made reference earlier. I again refer to the current constitutional prerogative wherein Government makes these decisions in accordance with the law.

Clare Daly (Dublin Fingal, Independent)
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I am aware of the law, but that does not alter the fact that what we are now seeing is that other than on this one occasion nobody - I thought there was one other but I take it from the Chairman's helpful intervention that is not the case, has ever been appointed in this way outside the scope of a JAAB recommendation.

It is a fact, therefore, and not an inference on my part that this is an extraordinary circumstance and such an appointment has not been made previously within existing procedures. The facts bear out that contention.

Charles Flanagan (Laois, Fine Gael)
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No, I point to the positions of many Attorneys General over a long period and the suitability, eligibility and subsequent appointment of Attorneys General to serve as a member of the Judiciary going back to 1953.

Clare Daly (Dublin Fingal, Independent)
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Since the Minister took office, no one has been appointed a judge outside of a Judicial Appointments Advisory Board recommendation. That is a fact.

Charles Flanagan (Laois, Fine Gael)
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In my time in office, there has been one such appointment.

Clare Daly (Dublin Fingal, Independent)
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I assume the Minister is referring to the recent appointment. In terms of the letter of 16 May in which the Judicial Appointments Advisory Board states it would not make a recommendation, the Minister's answer to the question asked by Deputy Chambers was not clear. Was the then Attorney General a signatory to the letter or was she involved in any way in that decision? What role did the she have in that process?

Charles Flanagan (Laois, Fine Gael)
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While this point is not directed to Deputy Daly, I also referred to this matter in the context of the questions asked in plenary session of the House last week. Under the 1995 Act, the proceedings at the Judicial Appointments Advisory Board are confidential. This is provided for in the Act and I am not in a position to provide Deputy Daly with the detail of what transpired or was undertaken or discussed or the manner of the discussion at the Judicial Appointments Advisory Board, including who was present, who signed the letter, who spoke and who did not speak. In accordance with the law, I am precluded from discussing this issue. In addition, I do not have any knowledge of such proceedings.

Clare Daly (Dublin Fingal, Independent)
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Two separate issues arise. The first is whether the Minister is precluded from commenting and the second is whether he has any of knowledge of the matter. If he is stating that the information is confidential and he does not know the answer, I am prepared to accept that.

Charles Flanagan (Laois, Fine Gael)
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I can state that both scenarios are correct. I do not have any knowledge of the proceedings precisely because the law does not allow such knowledge to be imparted to me.

Clare Daly (Dublin Fingal, Independent)
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In that case, it would be fair to conclude that, as far as the Minister is aware, it is entirely possible that the former Attorney General was part of the proceedings that led to the Judicial Appointments Advisory Board contacting the Cabinet to state it would not recommend anyone for the position.

Charles Flanagan (Laois, Fine Gael)
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In all sincerity, it would be unfair and unwise of me to speculate as to what took place at a meeting of the Judicial Appointments Advisory Board. I have no intention of entering into such speculation.

Clare Daly (Dublin Fingal, Independent)
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Based on the procedures the Minister outlined, the scenario I presented is entirely possible. I am wondering what happened in the period between the letter from the Judicial Appointments Advisory Board going to Cabinet on 16 May and the statement at the meeting of 13 June in which the Government decided to nominate the then Attorney General to the Court of Appeal. I would like a little more information about how that came about or what steps took place between 16 May and 13 June. Did the Attorney General turn up at the Cabinet meeting to be informed that the Cabinet intended to nominate her to fill a vacancy? Was she asked if she would like the job and did she respond that she would be delighted to take the job and thank the Cabinet? Who initiated the discussion on such a fundamental career change for the then Attorney General? Did someone ask her whether she would like the job or did she offer herself for the job? How did it come about that the nomination was made on 13 June? What steps occurred in the period between 16 May and 13 June?

Charles Flanagan (Laois, Fine Gael)
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The normal circumstances occurred in so far as a memorandum was brought to Government by the Minister for Justice and Equality, as has been the case previously. The Government is entitled to nominate a person of its choosing provided two conditions are met, namely, that the person is eligible and available in accordance with the law and that the person is qualified. The matter was given appropriate consideration in accordance with the law. As I stated in response to Deputies' questions, under the strict rules of Cabinet confidentiality, it is not possible for me to enter into any discussion of any form of the detail other than to assure members that the appointment took place fully in accordance with the law.

Clare Daly (Dublin Fingal, Independent)
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The Minister described these circumstances as normal, whereas we have already established that the circumstances were far from normal. I am not asking the Minister to divulge what happened at the Cabinet meeting. He indicated a memorandum arrived at the Cabinet meeting nominating the then Attorney General for the position. I am trying to find out what happened before that and how the name came to be submitted. Did the applicant go to the Minister or did the Minister go to the applicant? Was it a marriage of convenience because the real game in town was to get a new Attorney General to suit a change of leadership in the Fine Gael Party or was it to do with the position? If I were sitting at a Cabinet meeting and someone nominated me for a new job, I presume I would have been told beforehand that I would be nominated, as otherwise how would anyone know if I was available for the position? Who contacted whom between 16 May and 13 June?

Charles Flanagan (Laois, Fine Gael)
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Lest there be any doubt, when I referred to normal circumstances, I was speaking about the manner in which appointments are brought to Cabinet. As Minister for Foreign Affairs and Trade, I do not have any knowledge of any issues that may or may not have been discussed between 16 May, when the Judicial Appointments Advisory Board wrote to the Tánaiste noting that the board had decided not to recommend any applicant for the vacancy, and the subsequent act of 13 June. I was appointed Minister for Foreign Affairs and Trade on 14 June. I would never be involved in any deliberations on any of these issues, nor would I have any expectation to be involved in such deliberations.

Clare Daly (Dublin Fingal, Independent)
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Would the Minister not be concerned? We are left with this gaping hole in that we do not even know how the nomination came about. It is clear that I will not get an answer to my question. I do not want to stray into the issue of qualifications but the Minister referred to the person being eminently qualified. Would the fact that the person in question does not have any experience as a trial judge not be a point of concern? Does the Minister accept that among the legal profession and Judiciary there was a view that a precedent had been set, albeit relatively recently given that the Court of Appeal is a relatively new court, in that no non-High Court judge had been appointed to a the Court of Appeal previously? Does he accept, therefore, that there was a presumption among potential applicants that the role would be filled by a High Court judge and that this was a reasonable expectation considering it had always been the case, even if the court is relatively new? Would that not be a fair assumption to make? Would this presumption and the particular nature of the job not have stayed the hand of people who would otherwise have been interested in applying for the position? They will have assumed the only people who would be appointed to the court would be High Court judges.

Charles Flanagan (Laois, Fine Gael)
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Given that I do not have the facts within my own knowledge, nor would I expect to have them within my own knowledge, I very much regret that I am not in a position to state what did or did not happen between the dates mentioned by the Deputy. However, in fairness to the Tánaiste and Minister for Justice and Equality I can point to an answer she gave in the House when she was asked if she had discussed the vacancy in the Court of Appeal with the former Attorney General prior to 23 May. She stated categorically that she did not discuss the vacancy and I accept that statement.

On the matter of forming assumptions, in the circumstances it would be unwise and unfair to the process if I were to make any assumptions about issues that may or may not have happened other than to say once again that practising barristers who are not already members of the Judiciary have been appointed in the past to the superior courts.

The Government, and I as a member of Government, were concerned about the matter of availability and eligibility to serve and about the question of qualification. I was satisfied that, in the discharge of my duties and in the circumstances, both of these conditions were adequately met.

Clare Daly (Dublin Fingal, Independent)
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I was talking about the Court of Appeal and only High Court judges being appointed. I am not going to keep going around in circles but could I have some clarification on a point I may not have heard right? In the reply on the Dáil record, where the Tánaiste was quoted as not having any contact, what is the significance of 23 May?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Seven judges were nominated by the Government to the High Court, the Circuit Court and the District Court.

Clare Daly (Dublin Fingal, Independent)
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Did the Tánaiste have no contact prior to the 23 May? There is no information to enlighten the committee as to what happened before 13 June, which was when the Court of Appeal nomination was made. Presumably that is a sort of confirmation that between 23 May and 13 June some communication took place.

Charles Flanagan (Laois, Fine Gael)
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No, it certainly is not. It would be a misrepresentation of my position for any Deputy to draw that conclusion and I ask that Deputy Clare Daly would not. With regard to the earlier question, I have been informed that one Circuit Court judge was appointed to the Court of Appeal in 2014.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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That was a sitting judge.

Clare Daly (Dublin Fingal, Independent)
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There is probably not much point in going around in circles on this matter, but presumably the Minister was at the meeting. I know he says that it would be wrong of us to draw any assumptions but does the Minister believe it is credible that somebody would attend a meeting where a nomination was made via a memo and the recipient of the nomination had no prior knowledge of it? That is not really credible, is it?

Charles Flanagan (Laois, Fine Gael)
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I am not going to speculate on opinion or otherwise and in accordance with the law nor am I in a position to make any comment around any issue that may or may not have been discussed at Cabinet or the manner of this discussion.

Clare Daly (Dublin Fingal, Independent)
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I think the Minister knows that it is not really credible that someone would sit at a meeting and say, "Do you know what? I am going to put you forward for this job." One would know even by the body language of the person and if they had never heard of the nomination before, they would be floored. Clearly the matter would have to have been discussed beforehand and it would be helpful to know who approached who, but I appreciate that we will not get the answer to that today.

Charles Flanagan (Laois, Fine Gael)
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I can categorically state, in my own knowledge, that I was not party to any discussions, nor could I expect to be. Again, I come back to the constitutional and legal point that the manner in which these appointments are made - under current law and under the current Constitution - is on the advice of Government to the President as to the appointment of a person who is deemed after due consideration to be both qualified and eligible. This is the key issue here in terms of the decision-making process. If the law wishes to be changed in that regard, I too am a Member of the Legislature and there are issues that may have to be addressed in the wider arena of a constitutional referendum, but it is something over which I do not have any immediate control. It may be an issue that this committee, at a future date, might engage in by way of recommendation to Government or Parliament or otherwise. I am satisfied that I and my Government colleagues act within the current law and that we have acted in a manner which is entirely consistent with the law as is currently stated.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Deputy Daly. There are no other members showing. On behalf of the committee I thank the Minister and his officials for their attendance at here today and for engaging with the committee on this very important matter.

The meeting will suspend for one minute before we deal with one item in private session. I appreciate the committee's co-operation.