Seo an tuarascáil chuimsitheach agus an clár ar ghlac an Coiste Gnó faoi choinne inniu, amárach agus Déardaoin. Tuesday's business shall be No. 8, motion re Renewal of Certain Provisions of the Offences Against the State (Amendment) Act 1998; No. 9, motion re Criminal Justice (Amendment) Act 2009; and No. 2, Health and Social Care Professionals Bill 2017, Order for Second Stage and Second Stage. Private Members' business shall be No. 111, motion re trade and foreign direct investment, selected by Fianna Fáil.

Wednesday’s business shall be No. 14, pre-European Council statements; No. 2, Health and Social Care Professionals (Amendment) Bill 2017 - Second Stage (resumed); and No. 15, Planning and Development (Amendment) Bill 2016 - Report and Final Stages (resumed). Private Members' business shall be No. 112, motion re building standards, regulations and home owner protection, selected by the Social Democrats and Green Party Group.

Thursday’s business shall be No. 2, Health and Social Care Professionals (Amendment) Bill 2017 - Second Stage (resumed if not previously concluded); and No. 16, Heritage Bill 2016 [Seanad] Second Stage (resumed). No. 10, Sláintecare report by the Committee on the Future of Healthcare, will be debated in the evening slot.

I refer Members to the first revised report of the Business Committee dated 15 June 2017.

In relation to this week's business, it is proposed notwithstanding anything in Standing Orders that any divisions to be taken this week shall be manual.

In relation to Tuesday’s business, it is proposed that motions re Renewal of Certain Provisions of the Offences Against the State (Amendment) Act 1998 and Criminal Justice (Amendment) Act 2009 shall be moved and debated together but decided separately by two questions. The debate on the motions shall conclude within 40 minutes and speeches shall be limited to a single round from a Minister or Minister of State and the main spokespersons for parties or groups or a Member nominated in their stead, which shall not exceed five minutes each and all Members may share time. Any division demanded shall be taken immediately.

In relation to Wednesday’s business, it is proposed that pre-European Council statements shall commence immediately after Taoiseach's Questions and be followed by questions to the Minister for Health and will conclude after 85 minutes. The statements shall be limited to a single round from a Minister or a Minister of State and the spokespersons of parties or groups or a Member nominated in their stead, which shall not exceed ten minutes each, with a five minute response from a Minister or Minister of State, and all Members may share time.

In relation to Thursday’s business, the debate on the Sláintecare report shall adjourn, if not previously concluded, after two hours.

There are three proposals to be put to the House. Is the proposal to have manual divisions this week agreed to? Agreed. Is the proposal for dealing with today's business agreed to?

It is not agreed. Given the fact that last week I asked that there be proper accountability to the House for the appointment of the former Attorney General, Máire Whelan, to the Court of Appeal and given the manner in which the Taoiseach and the Government decided to ram through the appointment yesterday morning in advance of the Dáil convening, I am of the view that the business of the House cannot proceed as originally agreed, particularly in view of the recent questions we put to the Taoiseach and the nature of his replies. For example, it is only today, a week later, that we were told he knew in advance, from the evening before, that the appointment was to be made. It was the first I had heard of it. In fact, the impression is given in this morning's newspapers that the Taoiseach only found out on the morning of the Cabinet meeting, just like everybody else, but we now know that somebody spoke to him the evening before. Who was it? In short, I wish to ask the Taoiseach more detailed questions, as I am sure other Members of the House wish to do also.

We cannot have the debate now.

I am giving the rationale for opposing the order as proposed, as I am entitled to do. It is also important to correct the record of the House regarding the former Attorney General, John Murray. He was appointed in 1992, three years before the 1995 Act was implemented. When I say this is the first time in nearly a quarter of a century that an Attorney General has been appointed in this manner, the Taoiseach knows quite well that I am referring to the period since the 1995 Act.

We cannot have the debate now.

We must have honesty, frankness, less obfuscation and less clouding of the truth. All we seek is the truth. I propose, notwithstanding anything in Standing Orders, that at 5 p.m. other business be suspended to provide for statements on and questions concerning the nomination by the Government of the former Attorney General, Máire Whelan, to serve in the Court of Appeal. The order of speakers would be as follows: the Taoiseach and the Minister for Jobs, Enterprise and Innovation who would speak for 15 minutes each to explain the full details of the procedures applied in considering the nomination, including ensuring a fair process for other applicants and the content and intent of section 18 of the Courts and Court Officers Act 1995; and representatives of other parties and groups who would speak for 15 minutes. Following the conclusion of statements the Taoiseach and the Minister for Jobs, Enterprise and Innovation would answer questions for a further 45 minutes. At the conclusion of questions the House would vote on motions to refer the matter to the Select Committee on Justice and Equality.

I might need advice on this, but it is my understanding the Deputy cannot introduce a motion of that nature. He can seek to vary the arrangements proposed, but I do not believe he can introduce such a motion.

It is just an amendment of the proposal.

Okay, we will come back to it.

We add our voice to the call for a debate on the appointment of Máire Whelan to the Court of Appeal. The controversy blew up since the last meeting of the Business Committee and gained momentum over the weekend. It is only right and proper that there be a full debate and an opportunity to ask questions in the House. It is not good enough that we go back and forth during Leaders' Questions. More is required. Men and women on the street see this as a case of jobs for the boys and girls. The Government should not be allowed to get away with having jobs for the boys and girls without there being a proper debate and an opportunity to put questions in the House.

Given that the leader of Fianna Fáil cannot move the motion he has outlined and that he has protested so much in the past about others doing this, the issue should be referred to the Business Committee.

I agree that we should have a debate this evening, if possible, and a vote on the matter. It might have suited Deputy Micheál Martin better to have discussed these matters before the formation of the Government, rather than talking about denying us and other Members speaking time. He seems to have become preoccupied with it and took his eye off the ball. However, he is not in a position to criticise Máire Whelan and others. Fianna Fáil was well used to appointing judges when it wanted as it did all the time.

I am well aware of it. I was with Fianna Fáil long enough. I know the way it operates.

With regard to Tuesday's business, two pieces of business have been proposed, motions regarding the Renewal of Certain Provisions of the Offences Against the State (Amendment) Act 1998 and Criminal Justice (Amendment) Act 2009 shall be moved and debated together. In order to deal with this particular issue, Deputy Martin needs to put forward not an entirely separate proposal but an amendment to this-----

Yes.

What is the Deputy proposing to amend?

I propose to amend the Order of Business and that the sequence in which business is taken-----

One cannot go against the Order of Business. Could I ask-----

I believe one can. On quite a number of occasions in recent weeks, we have amended the order as put forward by the Business Committee. It seems extraordinary to me now that an attempt is being made to suggest we cannot. I just wish to amend the order as proposed. The House is entitled to do this.

The House sets its own business.

The House sets its own business and it is entitled to do this. I am amending the Order of Business so we can take-----

The House is quite entitled to order its business but the Deputy must specify. Does he want to take time from what is proposed in order to provide an alternative?

Yes.

I support the amendment. It is very important. I acknowledge that Deputy Micheál Martin wants the time to be shared in the way he is suggesting because it is important that we hear from smaller parties. In this instance, it is particularly important that we hear from the Independent Alliance and that it have time to outline what it needs to say-----

-----and also the Minister for Communications, Climate Action and Environment, Deputy Naughten, in respect of what has to be said in response to what the Taoiseach said earlier. The one difference between the examples he cited and the current example is that the appointment of Mr. Justice O'Donnell was discussed in advance of the Cabinet meeting with other elements of Government. The key issue on this occasion is that the other members of the Government did not have the faintest idea what was about to happen when they walked into the Cabinet committee meeting. They need to explain what they knew, when, where and how. That is the failing and that is why the precedents cited by the Taoiseach do not actually make sense.

One of the pieces of business scheduled for tonight is the renewal for another year of the Criminal Justice (Amendment) Act 2009. Under the legislation, it is required that the Government bring a report on the operation of that Act. I do not want to take up too much time on this. In essence, that report amounts to four pages, double spaced, which, in fact, tells us no case was sent forward to the non-jury Special Criminal Court last year and no one was charged under the provisions. We need to have a debate on that matter rather than simply rubber-stamping this. I raised this issue last year. I ask that, instead of using the time to debate what is proposed tonight - I know it is time sensitive - the matter be referred to the justice committee so that we could have a debate tomorrow in regard to the matter. On the notion of our simply taking what is outlined as a rubber-stamping exercise, what I propose would free up the time tonight to have statements or questions on the matters raised by other Deputies.

For clarification, Standing Order 27B states quite clearly: "The Government shall have the prerogative to determine the business to be taken in Government time." We are talking about Government time. It also states, "The Opposition shall have the prerogative to determine the business to be taken in private members' time". This is where our difficulty arises. Could I ask what the Government's position is?

I indicated I wished to contribute.

Mea culpa.

On a point of order, why was this business not thrashed out by the Business Committee? That is what that committee is for.

The appointment was made on Sunday and nobody was consulted-----

That is what the Whips are there for.

I was not consulted by the Government-----

That is what the Whips are there for. This is eating into the time of Dáil Éireann and that is wrong. This should be sorted out before we come in here in a workmanlike way. That is what we want in order that, when we come into the Chamber, we know what we are doing and we know what the Order of Business is. That is why the Business Committee is there. An emergency meeting of the committee should have been called so as not to be addressing this inside the Chamber. I say that with the utmost respect to the Opposition and to the Government. This sort of nonsense should not happen inside the Chamber.

I might also point out to Deputy Martin that "A motion to suspend or modify Standing Orders may only be moved by a private member during the time fixed for taking private members’ business." That is Standing Order 200. I call the Taoiseach.

Just to pick up on what was said earlier, I repeat that I did not know the appointment was going to be made until the morning of the Cabinet meeting when the memo-----

Please, Deputies.

We are going to have a very long number of months and years if, every time I stand up, I am being interrupted half way through my first sentence. Just to say-----

The Taoiseach keeps carrying on as he has for the last two days.

Let us please conduct ourselves with a bit of decorum. We have asked the Taoiseach to respond in respect of Deputy Martin's quite reasonable proposal-----

The Taoiseach is confused.

He is not confused. Will the Deputy just give the man a chance to answer?

He sounds it.

As I said, I did not know the appointment was going to be made until the Cabinet meeting when the memo was presented, but I was aware the day before or the evening before that it might be a possibility, because anyone who follows these issues would know that there was a vacancy at the Court of Appeal and a former Attorney General might be the kind of person to be nominated to that. That is no secret because it was in the newspapers last week. I think it was in The Irish Times, in fact.

The Taoiseach has good contacts there.

Deputy Martin's proposal is not something that I can support-----

What is the Taoiseach saying? I do not understand.

-----for a number of reasons. First, I do not think it is right that the Dáil should be discussing judicial appointments. Judicial appointments speak to the separation of powers. I would ask that we get some advice from the Clerk of the Dáil-----

It is the power of Government that is in question here and we are holding it to account. That is exactly our role.

-----or others on this as to whether it is a breach of the separation of powers-----

It is the power of Government that is in question.

-----for us to be discussing an individual judicial appointment in this House.

With regard to Deputy Ryan's question as to who knew what, when, where and how, I again remind the House of Cabinet confidentiality. Even if they wished to do so, Cabinet Ministers are not at liberty to discuss what happens at Cabinet meetings or what happens when it comes to Government memos.

They never have a problem if it is a journalist.

Unless we are ordered to do so, we are not in a position to breach Cabinet confidentiality and we are not going to do so.

The Taoiseach was a good man for a leak, was he not?

There is obviously an opportunity in Private Members' time for the Opposition to discuss anything it wants. The Judicial Appointments Commission Bill will be discussed next week, which will be an opportunity for the House to discuss judicial appointments in general, but I would counsel against this House discussing an individual judicial appointment. We have two justice motions that are time sensitive and they do need to go through today.

The arrogance of the Taoiseach is quite astounding. He has now given the revelation as to why he rammed this through on Sunday.

The Deputy is getting into and talking about-----

No, through the point I am making-----

No, wait now.

I am going to come to the point.

Sit down a second please, Deputy.

I will of course, a Cheann Comhairle.

We are talking about a procedural process.

Yes, and I am going to come to procedure.

We do not want to get involved in a debate about the substantive issue.

Of course. However, in talking about the procedure, I want to give the rationale as to why I am pursuing this. My whole purpose of tabling the amendment was in the context of an attempt being made to avoid accountability to the House with regard to the appointment of the former Attorney General to the Court of Appeal. That was the design all along. I said to the Taoiseach last week on the record of the House that he has an opportunity to do more than just talk about changing politics and that he should tell the House why this appointment was made, account to the House and explain to the House. That never happened last week. We had a full expectation that it would happen this week. Instead, what happened? There was an attempt to pre-empt that accountability by getting it sorted out on Sunday so that it was announced at about 6 p.m. that the Attorney General was to be appointed the following morning in order that the Dáil could never discuss it. The Taoiseach has the nerve and the arrogance to stand up and say that he would counsel against Members even discussing it because they would, what, embroil the Judiciary in controversy? With the greatest respect to the Taoiseach, he has embroiled the Judiciary in controversy by the manner of his appointment of the former Attorney General to the Court of Appeal.

Hear, hear.

No confidence?

Procedurally, we have no objection to giving up our Private Members' time to facilitate the Taoiseach and Tánaiste to make statements about this matter and to be questioned about it. I would accede to that.

Is the Deputy proposing that this be taken in Fianna Fáil's Private Members' time this evening?

Yes.

The details must be worked out by the Business Committee.

In order to be helpful in the matter, I suggest that as soon as this particular session is over, we would convene an immediate meeting of the Business Committee to make the necessary arrangements.

This is by no means arrogance on my part. There is a separation of powers in this State. There is a long-standing precedent that whatever about the general issue of judicial appointments, we do not discuss-----

It is the Taoiseach's power we are questioning.

I ask the Deputy to allow the Taoiseach to proceed.

Can we let the Taoiseach answer?

There is a long-standing precedent that we do not discuss specific individual appointments in this House. I do not recall-----

It is impossible to have accountability if people are not allowed to speak. That is real arrogance.

I do not think the behaviour generally is very edifying and I do not think the public looking in would be enormously impressed. Let us try to work clearly and calmly through the proposal. Deputy Micheál Martin has a proposal that he is now relating to his party's Private Members' time. We must take advice as to what may be appropriately taken by way of a motion. If Members are amenable, we will convene a meeting of the Business Committee, take the advice required and consider how to proceed.

When?

On the matter of the forthcoming meeting of the Business Committee, I wish to advise the Ceann Comhairle and other Members of the order as proposed initially by the Government Chief Whip. I certainly do not question the bona fides of Deputy Howlin but there is an urgency regarding the matters pertaining to the Offences Against the State (Amendment) Act 1998. In fact, it is more than urgency. We have an obligation to discuss this issue in plenary session and that obligation is that this issue would be debated today. I would urge the Business Committee to take this into due consideration.

Let us not start the whole thing again.

I raised this issue last year. I know there was a different Minister for Justice and Equality at the time. There is a legal requirement on the Act because this is a fundamental constitutional shift. I know it is due to be taken today but I am saying it should not be taken today. We need some debate in this House. Under the Act, a report is to be presented but it is not a report. A tokenistic four pages are presented that say nothing in substance. We need a proper debate on this matter, possibly next year if we cannot do it this year, so that we will not face a situation where there is a legal imperative to pass it and where there will be some chance for the Oireachtas Committee on Justice and Equality to properly look into these matters to ensure that we do not face a situation where the Act itself could be challenged in court.

The only fear I have about this event is that if we give two hours to debating this issue this evening, the appointment will still stand but we will be interrupting very important business that is already-----

The appointment will still stand. We will give over two hours to debating it and at the same time, the appointment will stand.

I agree with Deputy Howlin but I believe we must go ahead with the Minister for Justice and Equality's request that the matter be taken this evening, as we always have done in the past.

Subject to the business committee meeting at 4 p.m., is the proposal for dealing with today's business agreed to? Agreed. Is the proposal for dealing with Wednesday's business agreed to? Agreed. On proposed legislation, I call Deputy Martin.