Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

The Minister, Deputy Flanagan, and the Tánaiste have been Members of this House for a long time. In fact, they both were Members in 1994 when there was considerable political controversy about the appointment of an Attorney General to judicial office. On that occasion Fine Gael, then in opposition, demanded a debate into the appointment of the person to the presidency of the High Court. That debate took place on 15 November 1994. During that debate, Fine Gael stated, in my opinion, correctly, that there was no convention entitling an Attorney General to be appointed to any judicial office. Fianna Fáil, in government at the time, acknowledged that irrespective of whether there was a convention, it should no longer continue into the future. As a result of that political controversy, the Oireachtas decided in 1995 that the law should be changed. It was decided by the Oireachtas to reform significantly the system whereby judges are nominated and appointed in Ireland. As a result the Courts and Court Officers Act was enacted in 1995. It established a Judicial Appointments Advisory Board. The purpose of that board was to act as a recommending and filtering process. If individuals were interested in becoming a judge, they had to apply to that board for it to assess whether they met the qualifications and suitability criteria. If they did, their names were then recommended to the Government which, as the Minister, Deputy Flanagan, stated, has the constitutional power to nominate for appointment.

It is of particular note to recall that the legislation introduced in 1995 specifically included a provision about what should happen if the Attorney General is interested in nomination and appointment to judicial office. That makes sense because the reason there was the political controversy, the reason the law was changed, was because we had an Attorney General who had wanted to and did attain judicial office.

Since 1995, the Judicial Appointments Advisory Board has played a significant role in how judges are appointed in this country. It has had a beneficial role. It has been in existence for 22 years. During that period hundreds of judges have been appointed in this country. I have tried to calculate how many. It is difficult to do so but when I tell the House that there are 157 judges at present, I think Members will agree there must be between 200 and 300 persons who have been appointed to judicial office in this country since 1995. In those 22 years, every person who has been appointed to judicial office has gone through the Judicial Appointments Advisory Board, except for two people. We are talking about hundreds of judicial appointments and throughout that period, only two people were not appointed after having gone through the Judicial Appointments Advisory Board process. The first was in 2004, when a person who was not an Attorney General became available and, correctly, was grabbed by the Government immediately. There was no objection from any individual from any quarter to his nomination or appointment. The only other exception was in respect of yesterday's appointment.

However, yesterday's appointment was unique because it was an Attorney General who was appointed to judicial office. Do we not remember that the reason we got into the political controversy in 1995 was because it was an Attorney General who had sought office? Do we not remember that the reason the law was changed, and why section 18 was specifically included, was because it was known that there is political controversy when an Attorney General seeks judicial office? I listened to the Taoiseach earlier today stating that he was interested in history because it teaches us about the future. He must, if he has an interest in history, look back to see what happened 22 years ago and it is because of that that the decision of the Government eight days ago was so surprising. In short, what happened was that the Government deliberately decided to evade the law. They circumvented the law. That is why it is laughable for the Government to suggest that it followed correct procedures.

It is also important to note that if the Oireachtas establishes a statutory scheme which is to regulate or emphasise how the Government is to perform its functions then it is incumbent upon the Government to follow that statutory scheme. If it is the case, however, that there will be a parallel scheme whereby an Attorney General can apply for office, why cannot anyone else go by that parallel scheme as well? It is incumbent on the Government, if it is the case that there is this unknown parallel scheme, to publish it to make the public aware of it in order that other individuals can apply under that same scheme.

I say here today - this does not breach any principle of Cabinet confidentiality because it appears that the three judges who it is thought applied did not get their curricula vitae even considered by the Cabinet - it was grossly unfair on other individuals who applied for and who expressed an interest in this position that the Government did not even get to consider it. It is not correct for the Government simply to state that correct procedures were followed. Not only were correct procedures not followed but fair procedures were not followed. It is known that the former Attorney General was permitted by the Government to remain in the room while her nomination was being discussed. That tainted it with the perception of unfairness and bias. It is not fair to other individuals who did not get their nominations before the Government and who wanted to be considered that they were not permitted to be in the room.

A number of questions must be answered and I will set them out in the hope of getting answers from both the Tánaiste and the Minister for Justice and Equality. First, were letters expressing interest in the vacancy sent by members of the High Court to the Government? If so, who received them and when were they received? That does not infringe in the slightest any principle of Cabinet confidentiality.

Second, it is known that on 23 May, the Government nominated seven persons to fill vacancies on the High Court, the Circuit Court and the District Court. Some of those vacancies had not yet even occurred. In fact, one of the vacancies arises in October next. Why did the Government not fill the Court of Appeal vacancy on 23 May? We have just learned for the first time from the Minister, Deputy Flanagan, that JAAB informed the Government prior to that date that the board was not recommending any person for the Court of Appeal position. Why then was the Court of Appeal position not filled on 23 May?

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