Leaders' Questions

Last week in my speech on Deputy Varadkar's election as Taoiseach, I raised the question of the appointment of the former Attorney General, Ms Máire Whelan, as a judge to the Court of Appeal. I said then that if the Taoiseach wished to do more than just talk about changing politics, he had an opportunity to do so in the context of this squalid appointment. I asked that the Taoiseach address the controversy and explain to the Dáil what and when he knew about it because this appointment was the first in nearly a quarter of a century that a former Attorney General was appointed in such a manner.

It was without precedent since the enactment of the 1995 Act. In fact, it circumvented that Act and as the editorial in the Irish Independent today stated, "Whatever about the letter of the law ... the spirit of the law certainly wasn't adhered to." The former Attorney General attended the Judicial Appointments Advisory Board, JAAB, meeting in May and knew from that meeting that the essential criterion was that the person to fill that vacancy should be a High Court judge with experience in such high level judicial matters. The former Attorney General never indicated to JAAB that she had an interest in the vacancy; she should have. There was no documentation in advance of the Cabinet meeting and no notice to Ministers that such a controversial appointment was to be made. It was slipped in at the last minute of the last meeting of the outgoing Cabinet. Incredibly, the former Attorney General failed to absent herself from the meeting when her appointment was proposed by the outgoing and incoming Tánaiste, who was central to all this. The meeting, apparently, burst into applause.

This was an insider appointment and it stinks to high heaven. The controversies in which the former Attorney General was involved, particularly that relating to the damning findings made in the Fennelly report, were ignored in the consideration of the applicant's suitability.

No one was told by the Tánaiste that three High Court judges had applied. Who were they? Were their applications considered seriously? No, they were not. To add insult to injury, the Taoiseach decided on Sunday evening, with indecent haste, to instruct the President to appoint the following morning to pre-empt accountability to the Cabinet. Two Ministers had indicated that they wanted a review, namely, the Minister for Transport, Tourism and Sport, Deputy Shane Ross, and the Minister for Communications, Climate Action and Environment, Deputy Denis Naughten. The Taoiseach also did it to pre-empt accountability to this House. In so doing he arrogantly dismissed the concerns of his Cabinet colleagues and arrogantly ignored the imperative on him in terms of accountability to the House in this appointment. Prior to making it, the Taoiseach also failed to respect those who had facilitated his election as Taoiseach.

I have some specific questions for the Taoiseach which I will put quickly.

The Deputy is out of time.

When was the Taoiseach told specifically that this appointment was to be made? Did the Tánaiste alert him, as incoming Taoiseach, that she was bringing forward this appointment? He said yesterday that he had regrets. Why did he not stand up and resist the appointment at the time it was put to him and in the manner it was so put? Would he do it all over again?

First, I refute absolutely any suggestion that I instructed the President to do anything of the sort. I understand there was a story in one of the newspapers this morning that is not true and is without foundation. The arrangements made for the appointment of Ms Justice Whelan were made by officials in accordance with the long-standing procedures to confirm three judges, one being Ms Justice Whelan and the others being two judges of the High Court. There was no question of any pressure being placed on the President to make the appointment on a specific date. My only involvement was to indicate availability in my diary to attend the ceremony. As Deputies will know, over the years it has been commonplace for judges to be confirmed by the President, sometimes within days and usually within a week or two.

Ms Justice Whelan is uniquely qualified for the role she now holds. She is a barrister with decades of experience. She was Attorney General for six years across two Governments. She was across some of the most complex cases ever dealt with by any lawyer, including the unwinding of the FEMPI Acts, the legislation required to provide for marriage equality and to deal with the X case, as well as the Protection of Life During Pregnancy Bill. I do not think there is any controversy about her qualifications for the job she now holds.

There is controversy about the process followed. As I have said, the process is lawful and provided for in the Constitution, specifically Article 13. There are precedents for it and I will go through some of them, if Deputy Micheál Martin so wishes. Correct procedure was followed and all expressions of interest were forwarded to the Minister for Justice and Equality who considered all of them, as well as the possibility of an expression of interest from the Attorney General. The Minister determined that the Attorney General was the stand-out candidate for the post and, therefore, made a nomination of one person to the Cabinet. That is standard practice: if there is one vacancy, there is one nominee and if there are two, there are two. It has never been the case that the Cabinet considers shortlists or lists of six or 12 people who are deemed to be less suitable or unsuitable. It was all done in line with normal procedures.

In terms of precedent, I draw the attention of Deputy Micheál Martin to some other cases that are not the same but bear similarities. For example, Frank Clarke was appointed to the High Court without going through the Judicial Appointments Advisory Board. As barristers, Adrian Hardiman and Donal O'Donnell were appointed directly to the Supreme Court, but they did not have the experience of being Attorney General. They were actually appointed directly to a higher court than the Court of Appeal. Of course, John Murray was appointed to the European Court of Justice, moving from Attorney General to a high position in the European Court of Justice and, to the best of the information we have available, no application process was followed. I do not criticise these appointments. They were all good appointments. The people concerned are all very well qualified, but the appointments all had one thing in common: Deputy Micheál Martin was around the Cabinet table when they were made.

The Taoiseach told us about it as if he did not have much to do with it.

Let us be clear. None of the three people was ever in the position of Attorney General. With the greatest of respect to the outgoing Attorney General, Máire Whelan-----

What about John Murray?

I am not talking about him. Máire Whelan is no Frank Clarke, no Adrian Hardiman and no Donal O’Donnell.

(Interruptions).

That is chauvinist.

The Taoiseach strains credibility by putting her in the same league as the individuals he has named. I did not want to raise that but it is factually the position.

Can we have order, please?

A Cheann Comhairle-----

I also put to the Taoiseach, and may I say to Deputy Doherty she is not Leader.

What Deputy Martin has just said about a lady of eminence is outrageous. She is not even here to defend herself. It is not fair.

You will get your turn.

Deputy Martin should withdraw the remark.

It is an outrageous comment.

The Minister, Deputy Doherty must allow Deputy Martin have his say.

It is an important point. Suitability to office is important. It is very important to make the point. I am not going to take a cosy consensus or some insider consensus from people who want to ordain it otherwise.

I do not wish to do that. The precedent here is to remind the Taoiseach that Máire Whelan was Attorney General. Since the 1995 Act, no Attorney General was appointed in such a manner as she was appointed. Would the Taoiseach please accept that truth? He should stop trying to play fast and loose with the rules. People who play fast and loose with the rules get sent off the pitch sooner rather than later.

Oh, God, look who is talking.

That is the bottom line. I put it to the Taoiseach that this did not adhere to the 1995 Act in terms of how the appointment was made. The Attorney General should have alerted the JAAB to her interest in the vacancy.

Deputy, you are way over time. Please conclude.

I asked the Taoiseach a specific question. When was he told that this appointment was going to be made? He is the incoming Taoiseach. He is about to appoint Deputy Frances Fitzgerald as the incoming Tánaiste. She is also the outgoing Tánaiste. Could he give us a simple answer? When was he told about this?

First, I had understood up until now that Deputy Martin's difficulty was with the process, not the qualifications of the candidate.

Hear, hear. Now you play the woman. It is a disgrace.

Deputy Martin has let himself down.

(Interruptions).

It is not a good thing for this House that it is now discussing whether an individual who is now a judge is competent to hold that office. I would argue that she is equally competent to somebody like John Murray, who was appointed directly from being Attorney General to the European Court of Justice-----

Discussing a person. It is a new low.

Answer the question.

It would be different if you had followed proper procedure but you have not.

They skipped the procedure.

Face your own past.

It is an own goal.

Like other line Cabinet Ministers, I saw the memo on the morning of the Cabinet meeting but I was aware the evening before that it might be a possibility, given that there was a vacancy in the Court of Appeal. I did not have any role in putting the memo before the Government.

That it might be a possibility?

Could the Taoiseach be a bit more transparent?

The evening before.

I want to raise the fiction of new politics with the Taoiseach. A week ago, he was elected by 57 Deputies while 50 Deputies voted against him. Some 44 Fianna Fáil Deputies abstained in keeping with that party's supply and confidence agreement with Fine Gael, of which we have just seen lots of evidence. The Taoiseach represents 36% of the Dáil. He has no popular mandate. That is the new politics according to him and the Fianna Fáil leader.

Since his election, the Taoiseach has been at the centre of controversy over the appointment of former Attorney General, Máire Whelan, to the Court of Appeal. I cast no aspersions on the ability of the former Attorney General. My issue is with the process or lack thereof. Yet the Taoiseach has defended the appointment and the process. He stands over it and, indeed, pressed ahead and requested that the President ratify Ms Whelan's appointment yesterday morning. Now there are reports that he has decided to have the process of this appointment reviewed.

This controversy has overshadowed the Taoiseach's appointment of three super junior Ministers when he is permitted to appoint only two. This is more new politics. Super junior Ministers are paid an extra €15,829 for attendance at Cabinet meetings. In the past, a brand new allowance was invented to top up the salary of the former Chief Whip, Deputy Regina Doherty, to attend Cabinet meetings. When Deputy Paul Kehoe was Chief Whip he was paid a bonus for this privilege.

Clearly, where there is a will, there is a way, but it is hardly new politics. In his republic of opportunity, I am sure the Taoiseach will look after his new super-duper junior Minister, Deputy Mary Mitchell O'Connor. Meanwhile, last month there were 8,154 citizens on trolleys in our hospitals, which is a 25% increase on the figures for last year, 92,000 families languish on local authority waiting lists, there are almost 5,000 homeless adults and 2,708 children are in emergency accommodation. What is new about the politics that creates this inequality and stress in the lives of citizens? What is new about Fianna Fáil's fake outrage? What is new about the soldiers of destiny marching up to the top of the hill, their brass necks glistening in the sun?

I think the Deputy did that for a long a long time.

When it comes to the crunch, of course, they simply roll over. The hard undeniable reality is that this Government remains in power because of Fianna Fáil-----

Has the Deputy a question?

What is that all about? Is it not cynical and self-serving?

Thank you, Deputy.

It is not about ending poverty and homelessness, creating decent public services, uniting Ireland or facing up to the challenges of Brexit; it is about sustaining the status quo. Does the Taoiseach agree that these new politics are a sham?

I think we may need to amend Standing Orders to allow for an additional part to Leaders' Questions where the Deputy and the leader of Fianna Fáil can question each other. To answer the questions the Deputy put to me, the mandate I have comes first from the people in Dublin West, the people who voted for me and allowed me to be a Member of this House, then from my party and then from this Dáil. Every Taoiseach in the history of the State has been elected by the Dáil. That is the system we have in this country. In due course this Government will seek a popular mandate but for the foreseeable future we will focus on getting the business of Government done and improving people's lives.

The Deputy and his party also have a mandate. His party had very successful elections to the Northern Ireland Assembly and it elected seven MPs to Westminster. I would ask the Deputy to consider validating his mandate by doing all that he can to ensure the Northern Ireland Executive is back up and running and the assembly is sitting and to consider using the mandate he has at Westminster to influence the outcome of Brexit. It seems Sinn Féin is very keen on elections. There were elections in Northern Ireland, there were elections for Westminster and the Deputy's party wants elections here as well, but what it does not want is responsibility. It does not want to be in government. I appeal to the Deputy to honour the electoral mandate he has by ensuring his party members take up their positions in the Northern Ireland Assembly and in the Executive.

(Interruptions).

Let me be very frank about the controversy around the appointment of Máire Whelan to the Court of Appeal. This is definitely not the issue I would like to have dominated my first week as Taoiseach. I do not want there to be any further controversy while I am Taoiseach about any judicial appointments in future, so things will change.

The Taoiseach did more than enough about that.

First, we will prioritise the judicial appointments Bill. That Bill will be brought into the Dáil next week.

The Government will not have to comply with it.

If the Dáil and Seanad have to sit into July and into the recess-----

The Taoiseach is now saying he is allowed to ignore that.

-----we will do that in order to get this Bill passed so that-----

A Deputy

How many more Garda stations will be reopened-----

-----we change this process in order that any judge who wants to apply for a higher court will have to go through Judicial Appointments Advisory Board, JAAB, which is currently not the case.

So the Taoiseach got it wrong.

We will make these changes and make sure there are no future controversies about judicial appointments.

The Cabinet secretary will carry out a review of Cabinet procedure so that we minimise the number of occasions on which a memo is brought to Government at very short notice.

Minimise the number of strokes.

If I may say so, that is in some way an acknowledgment that the process that was used was inappropriate. It makes a change for a leader of Fine Gael to accuse Sinn Féin of being in favour of elections, a rather interesting turn of phrase. I want to find out more about these new politics. The Taoiseach said that the North and Brexit would be his Government's priorities. He went to Downing Street yesterday and I understand he was thrilled.

A Deputy

About sliding down the bannisters.

He informed us, as he and Theresa May spoke on the way in, that he told her that it reminded him of that scene in "Love Actually" where Hugh Grant did his dance down the stairs.

It is not exactly in keeping with the spirit of Michael Collins. The Taoiseach went on to tell us he was very reassured by Theresa May that any agreement between the Conservatives and the DUP would not impact on the Good Friday Agreement. That is not new politics, that is nothing but the same old story.

Thank you, Deputy.

The Taoiseach has no reason to believe any assurance from the British Prime Minister. A Taoiseach standing up to the British Government on all these issues on which it is currently in default - issues of equality, unity and rights, which the British Government is denying people - would really be new politics. Could the Taoiseach explain to the Dáil why he did not do this?

I know the Deputy does not like the fact that I made reference to "Love Actually" yesterday on my first visit to Downing Street.

I have not been there as often as Deputy Adams has. I follow him on Twitter and I am aware that he is more a fan of Richard Curtis's later works such as "About Time". If so, I suggest it is about time that power sharing was restored in Northern Ireland and that he went about making sure that was the case.

I had a very good meeting in Downing Street yesterday with the Prime Minister, Theresa May. We met tête-à-tête, just the two of us, and then we met in a group for almost an hour. We covered a large number of issues. One of the issues we covered in some detail was the agreement that she has not yet made with the DUP, but intends to make, around confidence and supply. She assured us that agreement would not impact on the impartiality or the co-guarantor arrangement as required.

I was not assured.

I have no reason not to believe her assurance.

She is in breach of guarantees now.

It is an assurance that we will have to hold the British Government to.

I call Deputy Howlin.

Last week the Taoiseach unveiled his new Cabinet. It included an unprecedented number of Ministers of State with the right to attend at Cabinet. Within 24 hours, it emerged that one of these four Ministers of State could not receive the corresponding allowance without a change in the law. The Labour Party made it clear that we would oppose any such legislation and others likewise, and it is abundantly clear that such legislation could not pass this Dáil.

Over the weekend the situation got worse. It has emerged that the payment of a third such allowance to the Government Chief Whip from last year was also unlawful. The Whip was paid an allowance of €15,829 for her role as Government Whip. No such position exists under law. It is clear from the documents released under freedom of information that the allowance was paid to the Government Whip on the understanding that the Government Whip was actually being paid for her responsibilities as Fine Gael Whip. This might seem like a technical and minor matter, however under the law no allowance can be paid to a party Whip, if that person is a Minister or a Minister of State. This means that one cannot pay such an allowance to the new Government Chief Whip. It also means that an illegal overpayment has been made to Deputy Doherty. This is a mess that was started by the Taoiseach's predecessor, but in seeking to create additional jobs for Fine Gael Deputies in this House, he has made it worse. Several simple questions arise. First, does he accept that an illegal payment was made to the Government Chief Whip over the last year and more? Second, does he intend to recover this overpayment, since this House is well aware of the Taoiseach's diligence in ensuring that people who are overpaid by the State make full recovery? Third, does he accept that only two of those he appointed as super juniors can be paid for that role? Finally, how is it to be determined which two of the four are to be paid such an allowance?

First, it is longstanding practice that the Chief Whip had a Chief Whip's allowance, just as there are allowances for the assistant Government Whips and there are allowances for party Whips. I do not accept that the payment of a Chief Whip's allowance or any allowances paid to Whips in this House is somehow illegal but I will examine the matter further -----

The Taoiseach will find that I am right.

-----and make whatever changes or recoveries are necessary if what the Deputy says is correct.

I am very pleased that the Minister of State, Deputy Mitchell O'Connor, will remain at the Cabinet table. She has been an excellent Minister in the time gone by and is enormously suited to the Department of Education-----

Why did the Taoiseach drop her then?

She has experience as a school principal and a master's degree in education. My intention is that all Ministers of State who attend the Cabinet - four Ministers of State attend the British Cabinet, so it is not unprecedented - should-----

(Interruptions).

May we have order?

My intention is that all Ministers of State who attend the Cabinet should be paid the same salary, but if this requires legislation, it will not be priority legislation.

We will not vote for it; we will vote against it. Do not bother.

The priority legislation in education will be legislation such as the Technological Universities Bill, not legislation relating to payments for any politician.

The Act is crystal clear. An allowance is payable to party Whips, but such an allowance is not payable - it is crystal clear in the Act - to someone who is a Minister or Minister of State. An allowance was payable to a Minister of State who may attend Cabinet separately, and two such allowances can be paid under separate legislation, but the Taoiseach has four Ministers of State attending Cabinet. In order to accommodate a third last year, his predecessor created this new Government Whips allowance which does not exist in law. That is the simple fact of the matter. Unfortunately, a significant overpayment is being made to a member of his Government. My simple question is whether he will ensure that the law is complied with and this overpayment recouped? Furthermore, is it his intention to then have four Ministers of State attending Cabinet, two paid an allowance and two not?

As I mentioned earlier, it has been a long-standing practice that the Chief Whip is paid a Chief Whip's allowance.

That has been the case for many previous Governments-----

When two were paid an allowance. There is a law-----

The assistant Government Whips, as the Deputy knows, also get allowances. However, of course we will comply with the law if there has been an overpayment. If so, yes, absolutely, such an overpayment would have to be recouped. I will have to examine the situation and understand it fully. The interest of the Ministers who sit around my Cabinet table is not in salaries and allowances, so I will not prioritise any legislation to afford an allowance that does not already exist. The focus of this Government will be on getting through legislation that matters to the people. I will not introduce legislation at an early stage to provide any additional allowances to any politician.

A Thaoisigh nua, power is a privilege that should and must be exercised in a manner that is open, accountable and compliant with the democratic process, including the relevant legislation behind a given decision. That democratic process gave us the Dáil we have today, with no overall majority for either of the bigger parties and with the strong message from the electorate that they did not want more of the same empty promises, empty rhetoric and exercise of power for power's sake. Unfortunately, that is exactly what the Taoiseach nua has given us and the people: a decision to appoint a new judge to the Court of Appeal, to appoint the Attorney General and in circumstances surrounded by secrecy and a deliberate ignoring of the legal framework set up in 1995 because of a previous debacle to govern that appointment.

From what we know of the process, one name alone was brought to the Cabinet by the former Minister for Justice and Equality, and that name was unanimously accepted by the Taoiseach's colleagues both in Fine Gael and the so-called "Independent" Alliance, and all done in the presence of the applicant judge herself. Not only was there no objection from any member of the Cabinet to this procedure; what is appalling and alarming is the Taoiseach's contemptuous disregard for issues raised by the Opposition and by the people since then. He has been disingenuous, and when I say he, I mean he and his colleagues, with the information he has given us. The former Minister for Justice and Equality confirmed that the JAAB had nobody to recommend, no suitable candidate.

While that may be true, there was an utter failure to place that statement in context and state the JAAB did not advise on the appointment of judges to higher office. As well as that, there was a deliberate ignoring of section 18 of the legislation which had specifically been brought forward to avoid a debacle such as this. It allows for the Attorney General to go forward but he or she must make this known. There has been a deliberate ignoring of a conflict of interest on the part of the former Attorney General and a deliberate lack of information on the interest of three candidates in the High Court positions.

Under the Constitution the Taoiseach has the power to appoint judges. However, when it shows such contemptuous disregard for existing legislation and where the minimum requirement of the former Attorney General stepping outside the room was ignored, it is a cause for alarm. The Taoiseach has failed to give replies and obfuscated, evaded and confused by referring to qualifications, which were never an issue. The process he adopted was faulty. I ask him, on mature reflection, to acknowledge that it was faulty.

The appointment was appropriate. I am glad that the Deputy agrees that qualifications are not an issue in this case and that the former Attorney General is uniquely qualified for this important role. It is a controversy about the process followed. The process was lawful and is provided for under Article 13 of the Constitution. We have separate, independent legal advice, not legal advice from the former Attorney General, which states the appointment was lawful and that correct procedure was followed. The procedure is as follows: barristers apply to the JAAB which makes a recommendation. Other judges apply to the Attorney General and the information is then passed to the Minister for Justice and Equality who considers all expressions of interest and makes a recommendation. As is the case for all appointments, including judicial appointments and appointments to chair and sit on State boards, the Minister comes to the Cabinet with a recommendation. The Cabinet is not given a shortlist for any such position. We do not sit around the Cabinet table discussing the merits and demerits of six or seven people and why someone is the lesser candidate for any job. The normal procedure is that a Minister comes to the Cabinet table with a nomination - one nominee if there is one post, two nominees if there are two posts and so on. That procedure was followed. I acknowledge, however, that it is not the best way to appoint judges and it is something I want to change. That is why I have given a commitment in the House that we will fast-track the judicial appointments Bill.

The Taoiseach fast-tracked the appointment yesterday.

The Bill will outlaw canvassing by anyone, including politicians, for people to be appointed as judges. It will require all judges to go through the JAAB. Currently, none of them does if they are seeking higher judicial office. It will also ensure the new board will have a lay majority and a lay chairman because if there is to be less political involvement in the appointment of judges, we do not want to have too much judicial or legal professional involvement. We want a majority of the board to be lay people, with a lay chairman. I have given a commitment to fast-track the Bill through the Houses and hope I will have the support of all parties in the House in doing so because we can resolve this matter once and for all by putting through this important legislation. I hope I will have the support of the House and the Seanad in so doing. We will, therefore, not have a situation where we will once again have a controversy about a judicial appointment in this way.

I fully understand the cynicism of the public. Once again, the Taoiseach has refused to answer the question. He has obfuscated and talked about new legislation. The absence of legislation was not a problem in this case; there is legislation in place. The kernel of the issue is that the Taoiseach failed to comply with it and to give an explanation as to why he had not complied with it and why section 18 of the 1995 Act, as amended, had not been acted on. It is a simple question: why was that provision not complied with? It is not a question of new legislation and it is despairing to think we need another debacle to force the Government to push ahead with new legislation. Will the Taoiseach acknowledge to the Chamber that he regrets what happened and that the procedure followed was not appropriate? Will he give an explanation as to why section 18 of the 1995 Act was not complied with?

Finally, it is significant that when the Taoiseach made his first speech to the Dáil after being elected, he chose not to elaborate on any of this but he did make a significant point that he agreed with the token Opposition and the leader of Fianna Fáil that he would come to some agreement with him to silence the true voices of opposition in this Dáil.

First, I believe I did answer the Deputy's question and I can only answer it again. It is the prerogative of the Government and the authority of the Government to appoint judges.

That is not what I asked.

To change that would require not just legislation but also a referendum to take away the power of the Government to appoint judges, as provided for in our Constitution, in Bunreacht na hÉireann, at Article 13.

He could appoint his brother.

That is the power of the Government and to change that would require a referendum.

That is a terrible defence, a weak defence.

Allow the Taoiseach to respond, please.

This appointment was entirely lawful, as I have said previously.

As regards section 18 of the 1995 Act, this relates of course to a meeting of the JAAB that occurred back in May. I cannot speak for Ms Justice Whelan, but it does stand to reason, to me, that perhaps back in May she was not interested in this position because she was still Attorney General.

Deputy Varadkar was not interested in being Taoiseach back then.

How was Ms Justice Whelan, or Máire Whelan as she was at that time, to know when the former Taoiseach, Deputy Kenny, would step down, who would replace him and whether that person would want her to continue as Attorney General?

The Taoiseach was the one pushing him out.

It is entirely reasonable for me to accept that, back in May, the Attorney General wished to continue as Attorney General.