Ceisteanna ó Cheannairí - Leaders' Questions

I have a number of questions for the Tánaiste concerning the appointment of the former Attorney General, Mr. Justice Séamus Woulfe, to the Supreme Court. The Government has so far adopted an approach of refusing to answer questions about any of this but this is a really important matter. It is not trivial. It is a job that carries with it a salary in excess of €220,000, which is paid by taxpayers. Those taxpayers have a right to know how Mr. Justice Woulfe was appointed and who really made the decisions. Refusing to answer the question simply will not cut it.

The Minister for Justice needs to come before the Dáil. Three years ago, when the Tánaiste was Taoiseach, the former Minister for Justice and Equality came to the Dáil and answered questions. There is no reason that it should not happen now. The Green Party leader said this morning that he had no objection to this. A Government Deputy said on the radio earlier that the Minister, Deputy McEntee, should come before the Dáil to answer questions. The entire Opposition is united in its demand for the Minister for Justice to come here to do that. She needs to do so without delay.

The Tánaiste also has serious questions to answer because in the vast majority of time that this issue was being dealt with by the Government, he was Taoiseach. Perhaps the Tánaiste will enlighten us about his role. We know that the only name to emerge from the Judicial Appointments Advisory Board, JAAB, process was that out of the outgoing Attorney General, Mr. Justice Séamus Woulfe. I am sure the Tánaiste will acknowledge that Mr. Justice Woulfe is a long-time member of Fine Gael, a close political ally and a friend. There were three other applications from existing judges. They were presumably well qualified and experienced. These would have in fact crossed the desk of the former Attorney General, Mr. Justice Woulfe. Did the Tánaiste discuss these with him? Did he discuss them as Taoiseach with the former Minister for Justice and Equality or as Tánaiste with the current Minister for Justice? He knew that Mr. Justice Woulfe emerged from the JAAB process because he told the Fianna Fáil leader and the Green Party leader, Deputy Eamon Ryan, that this was the case. The Taoiseach said as much yesterday. When did the Tánaiste tell them that it was the case? Why did he not tell them about the other three judges who were interested in the role? Was he the one who took the decision to nominate the former Attorney General to the Cabinet for this position?

Let us call a spade a spade. People believe it was the Tánaiste, as leader of Fine Gael, who reduced the number from four to one and brought that name before the Cabinet. It is for that reason that he is avoiding the Minister for Justice coming in here, being held accountable and being asked questions about the process. Is that not the case?

I believe the appointment of Mr. Justice Séamus Woulfe to the Supreme Court was a suitable appointment. He is now a serving member of the Supreme Court and I hope that nobody is questioning his suitability to be a Supreme Court Justice, recognising the separation of powers and the need to uphold the Judiciary. He had years of experience as a barrister and a senior counsel. He was an excellent Attorney General. He was competent, efficient and approachable, notwithstanding his recent issues. He is certainly not the first Attorney General to be appointed to a superior court, nor will he be the last. That is not just my opinion. That was the opinion of the Judicial Appointments Advisory Board, to which he applied. That board, chaired by the Chief Justice and including the presidents of the other courts, lay people, representatives of the Bar Council and the Law Society, all determined and agreed that Séamus Woulfe was a suitable person to appoint to the Supreme Court. Just as the Taoiseach said, that was enough for him, and it was certainly enough for me.

Under the Constitution, as I think everyone is aware, judges are nominated by the Government and appointed by the President. That is a power and a responsibility that cannot be delegated to any other body. In a democracy, it is right that judges are appointed by the democratically elected Government. I would not like to see a situation where judges are appointed by other judges, by themselves, or by an unelected committee of some sort. One needs to have a good process, a good advisory body to vet appointments and make sure they are appropriate and a system where people can apply to fill a vacancy. We need further reform in this area and the Government plans to do that. Ultimately the Government makes the decision on who will or will not be a judge, under the Constitution, and that cannot be delegated. It should not be changed, in my view, in a democracy.

As is the case with any senior public appointment that comes to the Cabinet, only one name is ever brought to the Cabinet. There have been one or two exceptions, such as the recent issue with the European Commissioner, where a man and a woman were asked for, but almost always, if not always, just one name is brought to the Cabinet. That applies to Secretaries General of Government Departments, chairs of State boards, to judges and to the Governor of the Central Bank. It would not be appropriate for 20 people sitting around the Cabinet table to pore over a shortlist of names, discussing the merits and demerits of each candidate. It would not be fair to them and it would probably discourage good people from applying. That is why I would counsel against having that kind of debate in this Chamber, with us discussing the merits and demerits of different candidates. Even if they are not named, that would be the wrong route to go down and would undermine the Judiciary, which we do not want to happen.

On debate happening in the Chamber, Sinn Féin has Private Members' time next week. It is open to Sinn Féin to use that Private Members' time next week if it wishes to. The Minister, Deputy McEntee, answered questions on this matter in a committee the other day. Sinn Féin is free to use its time to discuss this but I would counsel against a situation which its party leader was walking into during the week, where we would start to talk about different candidates and their merits and demerits. That would be a mistake. Listening to the comments of the Deputy's party leader this week, that was the road she was looking for us to go down. That would be wrong. It would undermine the Judiciary. It would not be an appropriate role for us, recognising the separation of powers.

The Tánaiste talks about the separation of powers. He was Taoiseach. He facilitated the then Minister for Justice and Equality coming here three years ago to answer questions on the process, not in Private Members' time. That is what the Opposition and the leader of my party are looking for. We asked the Tánaiste specific questions, but he did not answer one of them. When did he tell the leaders of Fianna Fáil and the Green Party that Mr. Justice Woulfe had come through the JAAB process? Did he know of the other three applications that came from the judges, since there was a secondary process? If so, who told him? If he knew, why did he not tell any other Cabinet colleagues? Did he discuss this issue with the former Minister for Justice and Equality or the current Minister for Justice? Will he accept that while one name may be recommended to the Cabinet, in the past it has been common that the list of other applicants was also presented to the Cabinet?

Will the Tánaiste stop obfuscating and trying to shy away from accountability? He stood in this Chamber two weeks ago and said there would not be a problem with giving the documents relating to the controversy over documents he leaked. Three weeks on, we do not have a shred of paper despite the Taoiseach, the Tánaiste and the Minister for Health saying that all of those documents would be made available. What is the problem? Is it not the case that the Tánaiste does not want the Minister for Justice to answer direct questions from Members of the Opposition because there is an issue regarding the process that Deputy Varadkar, as Taoiseach, was overseeing, rather than the merits of the candidate?

In almost ten years serving in the Cabinet, as others will be able to attest to, I have never seen a shortlist of names brought to the Cabinet for discussion about a judicial appointment or even the appointment of a chair of a State board. That is not the practice. One name is brought to the Cabinet, and that is the case for good reasons. I think this specific vacancy arose in the Supreme Court in February. It arose in the spring. At the time, I was the Taoiseach of what people described as a caretaker Government. We decided not to fill that vacancy. We thought it was appropriate to wait until a new Government was formed to fill that vacancy.

When Shane Ross was gone.

We could have filled the vacancy but chose not to.

I am pretty sure it was the week before the new Government was formed that the party leaders discussed whether Séamas Woulfe would be reappointed as Attorney General or whether there would be a new Attorney General. We decided collectively that there would be new Attorney General and that Séamus Woulfe would not be reappointed as Attorney General and at that point, for transparency and information, I informed the other leaders that there was a vacancy, that Séamus Woulfe had been recommended by the Judicial Appointments Advisory Board, JAAB, as suitable for that vacancy, and that was the end of the conversation.

Does the Tánaiste know if the other three judges-----

I will be happy to answer that question. As a person who was Taoiseach for three years and has been in government for a considerable length of time, like everyone in government or anyone who has ever been a justice spokesperson, I know the process. There is the list from the JAAB. There is a list of people who have expressed an interest in being promoted, and there is a third list of people who are eligible for promotion. I knew those lists existed. I did not know how many people were on them or the individual names.

There is been much talk on this issue. I want to make four very clear points here. First, the Tánaiste has mentioned the separation of powers. The very reason we have the separation of powers is why we need the Minister for Justice in here to answer questions, not in Private Members’ time but to take questions back and forward because the appointment of judges is an Executive function. The Executive is accountable to these Houses. To say that the separation of powers is any reason for not doing so, as has been stated by the Taoiseach, is bogus.

The second issue relates to confidentiality. Confidentiality, as I know having served in Cabinet, applies to the Cabinet room and to Cabinet papers. Outside of that, it is not confidential. Many of the questions we are asking are way outside of the Cabinet room. The point on confidentiality is also bogus.

I have heard also from the Taoiseach and indeed from the Tánaiste today that it would be somehow wrong for us to question the Minister for Justice on the process, not on the merits or demerits of any candidate, for which the Executive is accountable to this House, and because we could not be trusted. With all due respect, the very honourable gentleman sitting in the middle of this Chamber, the Ceann Comhairle, makes that decision, and not the Government. That is also bogus.

We have heard also the Taoiseach and indeed the Tánaiste say that because Mr. Justice Woulfe came through the JAAB process, that is all we need to know. JAAB makes a recommendation of those suitable, it does not make a recommendation, full stop. That is also bogus. We have four instances of bogus statements.

The Tánaiste and the Government have a very big decision to make under our Constitution. If the Minister for Justice does not come in here to answer questions, this Government does not have legitimacy and these Houses are not functioning. The Tánaiste is the Leader of Fine Gael which has a very proud history which I accept. My party served in government on seven occasions, and I had the privilege once. We know the way this works. This has to be upheld and the Minister for Justice not coming in here does not uphold the most precious document we have in this country. The Government may have a Dáil majority and may keep pushing this out, but it will not go away. The Government certainly does not have a moral majority. The Minister has to come in here. Will the Tánaiste ensure that she comes in here next week? Will he specifically answer questions on the following points? He was a Minister, Taoiseach and Tánaiste in governments that have appointed six Supreme Court judges. Was he consulted by the Minister for Justice on this appointment? Was he specifically aware that three other judges had applied? These are questions that he has still not answered. The Tánaiste should think very carefully about his answers.

I thank the Deputy. The Minister for Justice has acted correctly and appropriately and has upheld the Constitution in fulfilling her duties on this matter and every other matter. If this is genuinely about the process and not about the suitability of individual candidates, here is exactly what happened. When making judicial appointments the Minister for Justice considered recommendations from the Judicial Appointments Advisory Board and expressions of interest from serving members of the Judiciary and also a list of serving judges who had not expressed an interest in a vacant position but were also eligible for promotion. The three lists that exist, which we all know about, have existed for years, if not decades. Expressions of interest for court vacancies are sent to the Attorney General’s office on an ongoing basis and are then passed to the Department of Justice where they are kept on file for any current vacancies or future vacancies. Lists of serving judges who have expressed an interest in being promoted to a higher court are kept for each court, with the exception of the District Court, which being the lowest jurisdiction is not a court that a serving judges can get promoted into. The list of confidential expressions of interest is separate from the list of members of the Judiciary who are eligible for promotion but have not expressed an interest to the Government.

It is the standard practice with judicial appointments that the Minister for Justice considers recommendations from the JAAB, expressions of interest from serving members of the Judiciary and judges who are eligible for promotion who have not expressed an interest. On deciding to advise the President on whom to appoint to judicial office, the Government is obliged to first consider the persons recommended by the JAAB. Discussions at Cabinet and with ministerial colleagues are confidential and Cabinet confidentiality is a constitutional requirement. The Minister for Justice followed this process exactly and in accordance with the Cabinet Handbook consulted with me, the Taoiseach, the Attorney General and the Leader of the Green Party.

I ask the Tánaiste again whether the Minister for Justice will come in and answer questions. He knows that this is not going to go away. What the Tánaiste said there gives rise to a great deal of questions. First, we have had contradictory statements from both the Taoiseach and the Minister for Justice. When I asked him specifically when he, as Taoiseach, was consulted on this appointment he said, and I quote, that it was "likely" during programme for Government negotiations which took place when he was an ordinary Deputy. The Minister said that she told the Tánaiste and the Taoiseach before the appointment. On what date did that happen? Specifically, did the Tánaiste know and was he told that there were other judges who applied recently for this job? Please answer that question. Do not try to ignore it. Why, if he was told, was the Taoiseach of Ireland or the Leader of the Green Party not consulted?

Prior to this appointment, was any documentation shared with Cabinet members on the qualifications of judges to be appointed, that is, what would be a required to be a judge of, for example, the Supreme Court?

There is a Cabinet memo prior to the appointment being made. This is, of course, a confidential-----

Not the Cabinet memo.

-----Cabinet document. The Minister for Justice has answered questions on this. She answered them in committee yesterday-----

No, she did not.

No, she did not.

-----and I will read into the record of the Dáil exactly what she said because it is exactly correct:

The Chief Justice earlier this year identified that there was a vacancy within the Supreme Court. He asked the then Minister for Justice, Deputy Charlie Flanagan, to fill that vacancy. The process then ensued. The JAAB, which is an independent body chaired by the Chief Justice and on which the Presidents of the courts sit on it along with others, made a recommendation. Given that there was a new Government, that there had been an election and that there was an interim Government and Covid, that appointment was not made. Having been appointed [this is the Minister, Deputy McEntee] at the end of June, after a number of weeks, I looked at the recommendation that had been made and other expressions of interest that often come for any of these positions. Following that I spoke with the Taoiseach, the Tánaiste [that is me], the Minister, Deputy Ryan, and the Attorney General, and on foot of that, a recommendation was made and a name was given to Cabinet. There is only one name ever given to Cabinet. There was a clear process. As Minister for Justice I adhered to that process. The person who was appointed came through an official process.

That was the answer given by the Minister.

The Tánaiste has refused to answer a very legitimate question on the record of the Dáil.

I also want to raise the issue of the appointment of a Supreme Court judge and the process around that. The Government obviously has a role in the appointment of a judge but it is the responsibility of the Opposition to hold the Government to account. We should not be blocked in doing that. As has been pointed out already, there has been precedent in the discussion in this Chamber of an Attorney General who was appointed to the Court of Appeal only in recent years. We know that the vacancy arose in 2019 and that the Judicial Appointments Advisory Board met earlier this year in March.

We are aware that the role of JAAB is to vet for suitability and state who is appointable. It is not the role of the board to recommend appointments, nor does it put candidates in pecking order where there are multiple applications, yet the Taoiseach has told us repeatedly that there was one recommendation made to the Cabinet and that the recommendation came through the JAAB process. We are aware that judges do not go through the JAAB process, as we have already heard this morning, but we are aware that three judges specifically applied for the role. They are, in theory, considered by way of a parallel process. We are aware that most previous vacancies filled in the Supreme Court have been filled by those who have served as judges in lower courts. Was the Chief Justice taking it at face value that a parallel process would equally be considered when the appointment was being considered? Can the Tánaiste outline how the parallel process is handled and weighted, if judicial experience is to be considered? Who would have been involved in considering the two processes? What criteria would be followed? Did the Tánaiste ask whether, or know, three judges had applied? Did the former Attorney General know there were other applicants? If he did and was an applicant himself, did he declare a conflict of interest at any point in the process? I know it post-dated the appointment of the new Attorney General.

The Taoiseach has said constantly that there was one recommendation, which came through JAAB. He has been very specific about that. He uses the phrase, "one recommendation comes through JAAB". Is that the process? Does the Tánaiste concur with the Taoiseach? What happens to those who apply through the other process? Are they really considered? What status is given to the experience of people who have served as judges in respect of this process? How do we get the best outcome in filling the positions? Will the Tánaiste focus on what the Taoiseach has said during the week, that is, that there was one process and one name came through that process? Does he concur with that?

I thank the Deputy. Some of the questions she is asking me are questions of the Chief Justice and the former Attorney General. I cannot answer questions on behalf of other people. I certainly cannot answer questions on behalf of the Chief Justice, and I am not going to do so, but I will do my best to answer the questions the Deputy has asked of me.

I should point out once again that the Social Democrats, the Deputy's party, has Private Members' time next week. It has chosen to use it to discuss greyhounds. That is an important issue and the party is very entitled to use its time to discuss greyhounds. If it wished, however, it could use it to discuss this matter. It has chosen not to. It is important to point that out.

How does the process work? I am happy to tell the Deputy how it works. It works as it has worked for years, and it is not a secret. There are three tracks, essentially. The Judicial Appointments Advisory Board makes a recommendation. In this case, its sole recommendation was that Mr. Justice Séamus Woulfe was suitable for appointment to the Supreme Court. There is also a list of names of judges who have expressed an interest at some point in the past in being promoted. That is a rolling list. It could be a letter sent in a few weeks previously. It could have been sent in a few years previously. Third, there is a list of judges who are eligible for promotion but who have not expressed an interest in being promoted. Of course, as somebody who was Taoiseach for three years and in the Cabinet before that, I was aware of the existence of these three tracks. I was not aware of who exactly was on each list, or what their names were. I would never have been particularly aware of that in the course of my three years as Taoiseach. What happens is that the Minister for Justice looks at the three lists, discusses them with the Attorney General and makes a recommendation. The Minister discusses the matter with the Tánaiste, the Taoiseach and the other party leaders. The Minister is also supposed to discuss it with the Minister for Finance but, in practice, that rarely happens. After the discussions, the Minister brings one name to the Cabinet. The Minister, Deputy McEntee, did exactly what she was required to do under the Constitution and according to the Cabinet handbook. She has fulfilled her duties exactly as she should have.

It is really quite insulting to say Private Members' time should be used for this.

The Tánaiste knows that the way in which it rotates does not result in the kind of scenario we would want for questions and answers. He knows that. He knows there is a precedent because a former Minister, Ms Fitzgerald, came in here and answered questions. There was a back-and-forth exchange. Therefore, the Tánaiste should not insult us with the throwaway remark that it is our responsibility to deal with this in Private Members' time.

The Deputy knows it is not in order.

The Deputy is just worried about the greyhounds. He should not worry about this.

I note that it would be inappropriate-----

Deputy Catherine Murphy, without interruption.

Is my time being taken up by this?

The Deputy has two hours on Wednesday.

The reality is that we were told there was one process, and the one process was a JAAB process. To me, that sounds like everything else was binned and there was a foregone conclusion, which materialised because there was one process and individuals were excluded from it. That is the only thing we can take from what the Taoiseach said during the week. Does the Tánaiste concur with that?

I thank the Deputy. Quite frankly, it would be a bad idea for us in this Chamber to have a debate in which we discuss the merits and demerits of individual candidates.

It has already been pointed out that that is bogus.

That is inevitably where it would go. We heard what Deputy McDonald said yesterday, very much going into that space. Deputy Catherine Murphy touched on it herself in that she asked what the criteria were, whether there was a scoring system and other such questions. Inevitably, the discussion would get into the merits-----

-----and demerits of individual candidates. That is where it will go. There is a reason only one name comes to the Cabinet, that is, because it is not appropriate for 20 people, let alone 160, to be poring over a shortlist of three, four or five names. Inevitably, that would cause embarrassment for those who did not get the job or who got passed over. Inevitably, it would discourage people from putting themselves forward for good jobs. That is why only one name comes to the Cabinet and why we do not have a debate in Cabinet about the merits and demerits of individual appointments. It would not be appropriate for us to have it here either.

I want to talk about teachers, schools and whether schools should remain closed or open. There is a bit of a war on teachers, both in elements of the media and in some of the political statements being made. It is as if teachers are being told that the schools are safe, and that they should get over themselves, go in and do their work. There is considerable worry among teachers, however. I raised with the Tánaiste recently the question of the forgotten families, the hundreds of children who stay at home because they have vulnerable siblings or parents.

Another very worrying point was brought to my attention yesterday in an email I received from a primary school teacher:

I am 28 weeks pregnant and have been advised by my doctor to go on Health and Safety Leave as I am unable to social distance [at school]. My doctor is getting this advice from The Royal College of Obstetricians and Gynaecologists, The Royal College of Midwives and the Faculty of Occupational Medicine. In their produced document they state that women who are 28 weeks pregnant and beyond are at an increased risk of becoming severely ill should you contract COVID 19 [or, indeed, any other virus]. Therefore the clinical advice given is … particularly important for … women who are 28 weeks and beyond ….

However I was denied Health and Safety Leave by Medmark (Occupational Health Care for teachers) [a private company engaged by the HSE] as they state they are taking their advice from the HSE.

Why is the HSE advising against the professional advice of these organisations? Will the Tánaiste - the future and former Taoiseach - consider the circumstances of the very vulnerable who are at risk of contracting viruses and becoming seriously ill as a result? Will he try to get the HSE advice changed in line with best practice?

I started by saying there is a war on teachers. I believe that is absolutely true but there also considerable worry among teachers, principals and others over the circumstances in their schools. In the first instance, the definition of a close contact is very different for schools than it is for the rest of society. We are constantly being told that schools are safe and that teachers should go in, work and keep them open. We all want to keep schools open but we need to keep them open safely. They are not magical places and the staff cannot do it all by themselves. Yesterday, when Deputy Boyd Barrett raised this issue, the Taoiseach asked him to look to Denmark. We would love to be like Denmark, which has a pupil-teacher ratio of about 10:1. Ours is one of the highest in the European Union. Also, some 80% of our schools are not properly ventilated and we do not have the ability to socially distance. Therefore, this is a major issue. We need to calm down on the attack on teachers because it is not just a matter of teachers but also of parents and the children I mentioned. I would like the Tánaiste to address those issues.

Denmark is a fabulous and well-run country and has great public services. However, it does have a significantly higher incidence of the virus than Ireland does now. We need to bear that in mind. Notwithstanding the numbers in recent days plateauing rather than continuing to fall, we are the third lowest now in Europe. Only Iceland and Finland have a lower incidence of the virus than we do. That is testimony to the work that Irish people and society have done in reducing the transmission of the virus.

I believe teachers have done a fabulous job. They have done an amazing job in my view in recent months in getting schools open, keeping them open and in dealing with cases and clusters as they arise. I pay tribute to them for doing this work in recent weeks and months. I have visited a couple of schools in recent weeks and it has been really impressive to see the way our teachers and boards of management have created a new normal environment for children in which to get their education. We owe them a real debt of gratitude.

Schools are safe places for teachers and children. In a pandemic nowhere is 100% safe - not even a person's home is 100% safe. Yet, as far as things go, schools are among the safest places in which to be during this pandemic. That applies to the staff as well as the students. We need to reassure people of that.

Deputy Smith has raised a particular matter around HSE advice. I would be happy to look into that further. I do not know the details. I would have thought that if someone is advised by a doctor to take health and safety leave or sick leave during pregnancy, that would be enough. Certainly, when I was practising as a general practitioner, if a pregnant woman came into my surgery and I believed it was appropriate for her to take health and safety leave or sick leave, I would certify it. I have never come across it being second-guessed by someone else. If Deputy Smith wants to pass on some more details about that to me, I would be happy to have it explored and to see what the situation is.

I am happy to pass on the details. I did pass on information to the Tánaiste about the forgotten families. It was a week or two ago but I have heard nothing back. The Tánaiste said he would check it out, what is happening with these 500 children who cannot access online services from schools because they are not supposed to be at home according to the official policy of the HSE and the Department of Education. In fact, they are staying at home because they do not want to bring the virus back to vulnerable siblings or parents. That is a big issue. This alone indicates there is a problem in schools.

The example I have given the Tánaiste this morning indicates there is a problem with how Medmark is determining whether it is safe for teachers to go in. This probably stems from the HSE advice but there is no doubt that principals, teachers and parents throughout this country are concerned about contact tracing and whether what is determined as a close contact in the schools is being met sufficiently. I believe we have to look at it.

We have to look at the ratio of children to teachers as well. We have to look at the question of ventilation in our schools. I know of one school in Mayo where a representative for the union kicked up about the ventilation. Within days, those responsible put in the investment and they were able to improve it. That should be done in 80% of our schools. The question of sick leave for teachers has to be addressed.

I have received what Deputy Smith sent me relating to the forgotten families. I am engaging with the Minister for Education, Deputy Foley, to see if we can find a solution. I believe it is important for children who cannot attend school for health reasons to be provided for in some way, perhaps through an online access system or something like that. I did receive that and I am going to follow up on it with the Minister, Deputy Foley.

A great deal has been put in place to help schools manage the pandemic, not only all the extra funding and staffing but a dedicated telephone line that principals can use as well. It operates even at weekends. There are dedicated school teams in place to assist schools from a public health point of view. As well as that, there is fast-tracking of testing in some cases. I think a lot has been done to make our schools as safe as they possibly can be made during this pandemic. That should be acknowledged.

Deputy Smith makes a valid point on ventilation. We know that in this pandemic outdoors is safer than indoors and a well-ventilated environment is safer than a poorly ventilated environment. That is only common sense. I believe we will have to look at our public buildings and see what we can do to improve ventilation where possible. That might not always be possible, but where possible, we should try to do something.