Private Notice Questions. - Nomination of President of the High Court.

I understand the Minister proposes to reply to questions together and I will call the Deputies in the order in which they submitted their questions to my office.

I ask the Taoiseach, in regard to the statement issued after today's Cabinet meeting, when the vacant position of president of the High Court will be filled and if he will make a statement on the matter.

I have tabled my question to the Taoiseach and I presume he has done what he normally does, that is, transferred to other Ministers questions which he does not wish to answer.

I too address my question to the Taoiseach. He should have been man enough to take the question and throw some light on what is going on.

I ask the Taoiseach and the Minister for Justice the reason the Government has failed to fill the vacancy of the president of the High Court, which is an important constitutional office; when it is proposed to fill the vacancy; the reason for the delay; and if he will make a statement on the matter.

I ask the Taoiseach when it is proposed to nominate a person for appointment by the President as president of the High Court.

I propose to take these Private Notice Questions together.

The four-member Cabinet sub-committee announced by the Government on 5 October 1994 has recommended changes in the procedures relating to judicial appointments which will require legislative change. The Government has today indicated its agreement to these proposals. It is proposed to incorporate these changes in the Courts and Court Officers Bill which I will be bringing to the Government as a matter of priority. The proposed legislative changes will be announced in the ordinary way in due course.

When the legislative changes are approved by the Government an appointment to the presidency of the High Court will be made.

Is the Minister speaking ex cathedra, so to speak, on behalf of both partners in Government? Will she indicate if current vacancies, such as the vacancy for president of the High Court, will be filled under the proposed new procedure in the Courts and Court Officers Bill?

In response to the first part of the Deputy's supplementary question. I am speaking on behalf of the Government and second, that will be a matter for Government decision when the time comes.

What was the purpose of having the four wise men sit over a week to come up with what we were told would be a compromise when clearly no compromise has been reached and obviously the Taoiseach has had his way on this decision?

The four-member Cabinet sub-committee has looked at the way judicial appointments have been made in the past. During this time and over the past number of months, we have had in preparation in the Department the Courts and Court Officers Bill, which will in itself make wide-ranging and substantive changes in the operation of the courts. Incorporated in that legislation will be the recommendations made today by the four-member Cabinet sub-committee to the Government and accepted by it.

Deputy Mary Harney.

Will it be used to fill the current vacancy of president of the High Court?

Order, I have called Deputy Harney and she should respond to the Chair.

I was giving way to my colleague. We get on well on this side of the House.

There have been lots of changes.

Members opposite do not look too happy.

We do not need to get an airport hanger in which to meet.

We do not have to go to military bases to sort out our difficulties. Did the Cabinet sub-committee for peace and reconciliation recommend the name of the person who should be appointed to the presidency of the High Court? Is the Minister aware that last Tuesday the Taoiseach said "the only nominee whose name is now on the table is that of the Attorney General" and "the Attorney General is entitled to have this matter resolved as early as possible"?

It is not in order to quote at Question Time.

Does the Minister agree with the Taoiseach's comments?

I am not at liberty to say what the Cabinet sub-committee recommended because as the Deputy will know——

We will have to wait until Sunday.

A Deputy

It will be well leaked.

——I am governed by Cabinet confidentiality.

The only one.

Deputies opposite will not have to wait too long to see what those legislative changes will be but they know also — and Deputy Rabbitte is well aware — that proposed legislative changes are never heralded in advance of publication of the legislation.

The Minister must be joking.

Let us hear the Minister's reply.

It is like Gilbert and Sullivan "no, never".

Gilbert and Sullivan were in harmony.

Let me say, tongue in cheek, to Deputies Harney, Bruton and De Rossa that 20 months ago they would have been prepared to meet anywhere.

Deputy John Bruton.

The Minister did not answer my question.

I have called Deputy John Bruton and the Chair will be obeyed.

Is there a convention that any vacancy in the presidency of the High Court is offered on the basis of first refusal to the serving Attorney General? Is he to be appointed president of the High Court?

An unwritten convention has been operated——

That is the nature of a convention.

——by every Government, including Governments comprised of opposition Members whereby if the Attorney General opts for a judicial appointment, that is taken into account by the Government.

There is no such convention. That is a load of rubbish.

On the second part of the supplementary, I already answered other Deputies by saying that I cannot indicate who might be offered the vacancy for the presidency of the High Court. That will be a matter for the Government when the vacancy is to be filled.

Why was the Minister, as Minister for Justice, excluded from the Cabinet subcommittee set up to examine this matter——

The wrong sex.

——in view of the fact that she has been asked to answer questions on it here? Second, can I ask the Minister——

The Minister is from the west.

The interruptions are coming from the Deputy's side of the House.

This subject matter may be less amusing to those who are concerned to maintain the integrity of the legal system than it is to the Minister.

The Deputy mentioned it.

Does the Minister condone the leaking of Cabinet business prior to the Cabinet reaching agreement, by some of her colleagues in a way that seriously damaged the candidates for this position, including a person whose name was bandied about who had not even been asked whether she would be willing to serve as President of the High Court?

All of us in the Cabinet deplore the leaking of Cabinet business.

Even the ones who leak.

I need not comment any further on that. As to my exclusion from the Cabinet subcommittee, Deputy Bruton may not be aware that when Fianna Fáil and Labour, sat down to prepare a programme for Government, six people put that programme together and put it to both party leaders. In this instance, where a difficulty arose in a judicial matter — the Judicial Commission is part of the Programme for Government — four of the six people were asked to sit down and come up with a solution to the problem.

It is the Minister's Department.

Those four people have made recommendations which will be implemented by the Government.

I wonder why my constituency colleague, who is a lawyer, was dropped from that subcommittee and I also wonder——

I would like to support that too, Sir.

——why there were three Fianna Fáil members on the sub-committee. Is the Minister aware that in 1972, when a vacancy for Chief Justice arose, the serving Attorney General, Colm Condon, was not offered the position? Would the Minister further confirm that a serving Attorney General has not been offered the presidency of the High Court since the 1920s?

There is no convention.

That is a matter of fact.

Where is the convention, Minister?

Recognising the difficult position she has been put in by the Taoiseach and the Tánaiste, in having to answer questions on their behalf, will the Minister indicate whether the proposals by the Cabinet subcommittee will be published in the foreseeable future? Will she indicate whether a time limit has been placed on the deferral of the appointment of president of the High Court?

I apologise if I did not make it clear in my initial reply — I thought I did — that those proposals will be incorporated in the Courts and Court Officers Bill which is at the final stage of preparation in my Department, and we are talking about weeks rather than months. A limit has not been placed on the deferral of the appointment.

Will the Cabinet sub-committee draft that legislation?

Will the Minister agree that the recent controversy has made the position of the Attorney General untenable and will she advise the House whether both parties in Government support him continuing in his present Office and what the position will be if he is not appointed to the presidency of the High Court as the Taoiseach has publicly advocated?

The latter part of the supplementary question is hypothetical and I do not propose to deal with it. On the position of support for the Attorney General, he has the total support of both parties in Cabinet.

Ten out of ten for cheek.

Will the legislation proposed and announced by the Minister be drafted in the normal way by the Attorney General? Will she spell out to the House the interim arrangements made on the acting presidency in the High Court?

The new Courts and Court Officers Bill, which will take into account the proposals recommended by the Cabinet subcommittee, will be finalised in the Department of Justice and will then be forwarded to the parliamentary draftsman in the Attorney General's office for final drafting as is all legislation. The interim situation is as set down in section 18(2) of the Courts Act, 1981 which states:

If, during any period, the President of the High Court is unable owing to illness or for any other reason to transact the business of his office or the office of President of the High Court is vacant, all jurisdictions, powers, authorities and functions for the time being vested in him by virtue of his office......shall be exercised or performed by the senior ordinary judge of the High Court who is for the time being available.

That function has been performed by Mr. Justice Declan Costello since Mr. Justice Hamilton went to chair the beef tribunal.

Three years ago.

Why was Mr. Harry Whelehan considered unsuitable to be appointed as president of the High Court by some of the Minister's colleagues? Were any reasons given to her as to his unsuitability?

It is unhelpful at this stage to speculate about the Attorney General. He has a job to do, he is very active in conjunction with officials of my Department in reforming the law in relation to the Courts and Court Officers Bill. He has the full support of both parties in Government.

Deputies Flanagan and J. Bruton rose.

I will hear Deputy Flanagan. Is he offering?

My leader was following a definite line and I would not like to interrupt him.

A Deputy

Senior counsel and junior counsel.

I will bring this matter to finality shortly. Deputy Flanagan is offering.

In the event that I will not be allowed to give way to my party leader, in the light of what can be best described as the "Baldonnel Climbdown", will the Minister now agree that as with the report on the finding on the beef tribunal, the Taoiseach and the Tánaiste have been entirely vindicated in the matter?

It has become politically fashionable to rush to change the system of appointment of our Judiciary, a system which has served this State honourably and well since its foundation. Will the Minister agree with me that any change should not be taken as a reflection on the honourable, decent men and women appointed by Governments of all political hues, who have served this State since its foundation and that we should not rush to make changes just for the sake of change and compromise?

An exocet.


I accept totally that the changes made in the course of the Courts and Court Officers Bill should not be taken as a reflection on the serving men and women, or indeed their predecessors who are no longer serving on our benches.

As the Minister, Deputy Quinn might say: "If it ain't broken, don't fix it".

I cannot allow an inordinate amount of time to be devoted to questions on any given day. If Deputies are seriously offering I will hear them but I ask them to be very brief. I am bringing this matter to finality. A debate cannot ensue now. There are many other ways of dealing with this matter.

I have no wish to be either helpful or unhelpful to the Minister. Since we are asked to accept the Attorney General as someone who performs a constitutional function and since it has become public knowledge through no fault of this side of the House that some Members of the Government do not believe he is suitable to be appointed as a judge, it is reasonable to ask the reasons adduced to the Minister for the unsuitability of Mr. Whelehan. The Minister should give a straight and simple answer.

The Attorney General is supported in his functions by the two political parties in Government. I do not think anyone said the Attorney General was not suitable for appointment to high judicial office.


There was a genuine difficulty recognised by the Taoiseach and the Tánaiste in the Attorney General's appointment as president of the High Court. The recommendations by the sub-committee of the Cabinet accepted today by the Government will be included in the Courts and Court Officers Bill. When that has been done the Government will make an appointment to the High Court.

What was the difficulty?

He has a beard.

Will the current vacancy for president of the High Court be filled under the new procedures the Minister will introduce in the House?

The current vacancy will be filled when the Government decides it should be filled. I am not at liberty to say today how that vacancy may be filled.

Would the Minister accept that the Attorney General has been damaged and embarrassed by recent events and, as the Taoiseach said last Tuesday, he deserves to have this matter brought to an end quickly?

I agree the Attorney General deserves to have the matter brought to an end as quickly as possible. That is what we are endeavouring to do.

Has he been damaged?

Will the Minister confirm that the Labour Party turned on its heel and fled the field of battle last week when they heard that Fianna Fáil has their breakfast full of weetabix?

What about the Deputy?