There has 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 judge 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.

Hear, hear.

Hear, hear.

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-----

Good process.

-----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.