Monday 10 December 2018

Cabinet fury at AG judges 'gaffe'

Varadkar intervenes in 'dog's dinner' row over judges Bill

Leo Varadkar. Photo: INM
Leo Varadkar. Photo: INM

Jody Corcoran and Cormac McQuinn

Leo Varadkar was forced to intervene on Friday night to calm a furious Cabinet row after the Attorney General described proposed new laws to appoint judges as a "dog's dinner" and "unconstitutional".

The Sunday Independent has also been told that ministers were unaware in advance that the AG, Seamus Woulfe, intended to publicly criticise the Judicial Appointments Commission Bill.

It is understood, however, that the AG had previously flagged at Cabinet that several changes would have to be made for the proposed new laws to be constitutional.

Now the Opposition is lining up to torpedo the Bill, with Fianna Fail yesterday calling on Justice Minister Charlie Flanagan to "scrap" the legislation in light of the AG's warning.

The controversy has also pointed an uncomfortable spotlight on Mr Woulfe.

Yesterday, some Government sources maintained that he had "got carried away" and "spoke too freely" at a luncheon with journalists on Friday.

The legislation is being pushed by Transport Minister Shane Ross who told a "very tense" Cabinet meeting on Wednesday that there would be "serious consequences" if the Bill was not before the Dail this week.

In a remarkably frank critique, Mr Woulfe said it would be a "challenge" to ensure the Bill proceeded. It is understood this comment, in particular, incensed Mr Ross following commitments he had received from the Justice Minister last week.

Central to the proposed legislation, which is a Programme for Government commitment negotiated by Mr Ross, is to provide for a new Commission for Judicial Appointments to include a lay chair and lay majority that is not drawn from the legal profession.

As controversy over the AG's remarks developed yesterday, Justice Minister Charlie Flanagan told the Sunday Independent that this "key component" of the Bill would be "maintained and preserved". He said he expected the proposed legislation to be back before the Dail after Easter.

Last night Mr Ross said he was "very confident" after discussions with the Taoiseach and Justice Minister that the Bill would go ahead "at the fastest possible speed".

However, details emerged yesterday of how Mr Varadkar was forced to intervene after a furious Mr Ross protested at the AG's remarks.

Citing a series of amendments to the Bill, which have been tabled mostly by Fianna Fail, Mr Woulfe told a lunch hosted by the Association of European Journalists in Dublin: "The whole myriad amendments that they made now make the Bill a complete dog's dinner at the moment because a number of amendments were contradictory and inconsistent and unconstitutional."

In further apparently unguarded comments, he said: "Therefore that makes it a challenge to get the Bill to report stage very soon. I'm sure under our 'new politics', a deal will be done."

The Sunday Independent has now learnt that the Taoiseach left a European Council summit in Brussels on Friday and flew straight into a political storm. Government sources confirmed that there was a "flurry of phone calls" late into the night between Mr Varadkar, Mr Woulfe, Mr Ross and Mr Flanagan.

Another source said: "It's all sorted now. Let's just say Seamus got carried away at the lunch and spoke too freely. In fairness, he actually criticised the Opposition amendments to the Bill, not the Bill itself."

However, Mr Ross will now be on his guard and may threaten to walk out of Government if the Bill is further delayed.

Last week the Government agreed to the appointment of three judges despite strong opposition expressed by the Independent Alliance ministers at a "very tense" Cabinet meeting.

Mr Ross told the meeting that he would not facilitate any more judicial appointments under what he called a "rotten system". He said he expected to see the Bill in the Dail this week or, he warned, there would be "serious consequences".

However, the Opposition is now expected to move to exploit tensions at Cabinet over the proposed new laws.

Yesterday, Mr Flanagan told the Sunday Independent: "My job is to get the Bill on the statute books. The Government is committed to getting it through. There were almost 200 amendments, of which 65 were passed. Lengthy and wide-ranging debate has taken place over five days.

"The Bill is a key plank of the Programme for Government. The key components, the non-legal chair and non-legal majority aspect, will be maintained and preserved.

"I will honour the commitment given by Enda Kenny to Shane Ross. I've been speaking to Shane over the weekend and we will continue to work to have the Bill passed.

"I expect it'll be back in the Dail after Easter. In view of the Government minority status in the Dail and Seanad, we will work with others to secure the enactment of a reforming and workable piece of legislation."

He added: "Seamus Woulfe is playing a leading role in the Bill and we'll all work together to achieve a workable result."

Mr Flanagan's reference to a commitment given by former Taoiseach Enda Kenny to Mr Ross may be taken by some to indicate that Mr Varadkar's Government is not as committed to the legislation demanded by Mr Ross.

Furthermore, Mr Flanagan's statement that it is his "job" to "get it through" highlights that, while he must sponsor the Bill, the proposed legislation is not his idea.

The effect of the legislation would be to remove the appointment of judges from the control of the Law Library.

Yesterday, Fianna Fail Justice spokesperson Jim O'Callaghan, a barrister who particularly opposes 'lay chair' and 'lay majority' control over appointments, called on Mr Flanagan to scrap the Bill.

He warned that if the AG considered the Bill unconstitutional, the Government "needs to set it aside" and the process of drafting new legislation must begin again.

Mr O'Callaghan said: "The Attorney General is correct in describing the Government's Bill as a complete dog's dinner. The reason it is a dog's dinner is because the chef is Shane Ross. The Government's Bill is deeply flawed and will not achieve any genuine reform. In fact, its sole purpose is to appease one Cabinet minister.

"The comments by the Attorney General should act as a wake-up call for the Government, especially the remarks around the constitutionality of the legislation. Minister Flanagan needs to act on the concerns of the AG and scrap this legislation that has become a vanity project for one member of cabinet.

"It is not acceptable for a government to sit back and allow flawed legislation to be introduced in a bid to keep Minister Ross on board. The European Commission has already stated that the Bill does not conform to European standards, which specify that a substantial part of the members of the judicial appointments body should be judges.

"At no stage has the Government ever explained the public policy reason for reducing judicial involvement and replacing this expertise with people who have no knowledge of which candidates are suitable, or characteristics required, for judicial appointment.

"The intervention by the Attorney General should mark the death knell for this deeply flawed Bill. The Justice Minister needs to intervene immediately and scrap this deeply flawed legislation."

Last night Mr Ross accused Mr O'Callaghan of promoting the interests of the legal profession.

"The era of political patronage of the judiciary is coming to an end despite the efforts of the mouthpiece of the Four Courts in the Dail, Jim O'Callaghan," he said.

Sunday Independent

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