Brendan Howlin (Wexford, Labour) | Oireachtas source

I warmly welcome today's exercise in proper political accountability. It is one of the core functions of the House to hold the Executive to account for all its actions. I have been privileged to serve in three coalition Governments, two of which were coalitions with Fine Gael. In each Government, all senior Government appointments were subject to cross-party agreement after detailed discussions about all available and suitable candidates. Few appointments received greater scrutiny than the appointment of senior judges, so much so that one Government fell in 1994 on the basis of a lack of cross-party agreement.

While it is correct that the Minister for Justice proposes one name to the Government for appointment, it was never the sole or exclusive right of that Minister to determine alone who should be nominated. The names of all suitable candidates were circulated to, and considered by, the leaders of each party in the Government. Detailed papers were presented to each leader and they eventually arrived at a consensus. As I understand it, the Minister's position is that this process was set aside, that she alone made the decision and then presented it to the Taoiseach, Tánaiste and Minister, Deputy Eamon Ryan, as a done deal and that they, their advisers and party managers simply nodded through her personal choice. I believe I am presenting her position fairly.

After a decade of experience in three Governments, I consider that an absurd position. To get listed on the Cabinet agenda, a memorandum has to go through a vetting process involving all party leaders involved in the Government and especially the Taoiseach. Presumably, the Minister's officials prepared the memorandum for the Government. She said in her contribution today that she received a draft memorandum in her office on 6 July. Surely she was advised that the previous Government, led by Deputy Varadkar, had established a non-statutory advisory group outside of the JAAB to assist with identifying eligible and qualified persons suitable for appointment as senior judges. That committee was served by a secretary who was a representative of the Department of the Taoiseach. Was the Minister aware that this advisory committee recommended a number of persons to be considered for judicial office? Did she have regard to the recommendations of this advisory committee in making her choice of who to propose to the Government to be nominated to the Supreme Court?

The Minister stated previously that she brought a memorandum to the Cabinet proposing a judicial appointment to the Supreme Court, and that the memorandum contained only one name. The Taoiseach has also suggested that her memorandum did not contain the information that three sitting judges had expressed an interest in the position, although she told the House today that the draft memorandum included details of the recommendations made by the JAAB, expressions of interest of serving members of the Judiciary and all other judges eligible for the position. Was that detail included in her final memorandum, as it was in the draft? In either case, how is it that the Taoiseach was unaware of the others? Did the Minister check if not listing the names was normal practice? Did she examine the most recent judicial appointment memorandum brought forward only weeks before by her predecessor to check what was normal practice and if it was appropriate to list all eligible candidates for the information of the Government?

Section 3.2(c) of the Cabinet Handbook states that every memorandum for the Government should "ensure that all relevant considerations are brought to the attention of the Government in making a decision, that information provided is complete and accurate and that any qualifications are clearly stated". Does the Minister believe she fulfilled the requirement of the Cabinet Handbook in this instance?

If it was the case that political agreement had been reached between the Government parties that the outgoing Attorney General should be appointed to the Supreme Court, I believe that would be both legal and constitutional. In deference to you, a Cheann Comhairle, I will simply say, however, that it certainly would not be best practice. If it was the case that the Minister was simply left with a fait accomplion arriving into ministerial office, that there was already a political agreement about who should fill this vacancy, that would be politically understood, if not accepted or agreed with.

What is undermining the Minister's position and the credibility of the Government is the maintenance of the unbelievable, that she or any Minister for Justice, experienced or not, whether she was three weeks in the job or five years in the job, would take it upon herself to appoint the outgoing Attorney General to the Supreme Court in preference to all other applicants, including senior serving members of the Judiciary, without discussing the implications of that action with the leader of her party and the leaders of the other parties in government and, especially, for constitutional reasons, with the Taoiseach of day. I also question that any self-respecting party in government would simply exclude itself or allow itself to be excluded from such an important process. That simply does not bear credibility. As Richard Nixon discovered, it is not always the action that is one's undoing, sometimes it is the strain involved in presenting a version of events which, to anybody who actually knows the process or simply follows politics or history, is not credible.

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