Jury is out over Whelan Affair after ministers dodge questions
It’s tough to know what the Government’s motivations are over former AG Maire Whelan’s new Court of Appeal role, writes Eoin O’Malley
TANAISTE Frances Fitzgerald channelled her inner Theresa May last Wednesday night. Confronted with pretty basic questions of fact, she chose evasion, though starting each response with: “Let me be very clear.” She would then give something purporting to be an answer, which was anything but clear.
Instead of answers, she resorted to either faux outrage or constitutional protection. She expressed outrage at the suggestion that opposition TDs were denigrating judges. Even though they hadn’t, she kept going back to Micheal Martin’s remarks last Tuesday that Maire Whelan couldn’t be favourably compared to other eminent barristers promoted to the bench.
When asked basic questions about why Whelan didn’t recuse herself from the decision on her own appointment, Fitzgerald and the new Justice Minister Charlie Flanagan cited the doctrine of Cabinet confidentiality. While they are not allowed to discuss what is said at Cabinet, this constitutional provision was never designed to prevent the Oireachtas from monitoring the mechanics of how a decision was arrived at or question the decision itself.
When faced with questions about why the Department of An Taoiseach took the unusual step of issuing a warrant for the appointment of Whelan last Sunday night, asking that the appointment take place the following morning, the two ministers reverted to faux outrage, claiming the opposition was insinuating the President had been lent on.
It was a lesson in obfuscation, but it was inept. The Dail chamber was left with the impression the Government is hiding something.
If Leo Varadkar thought that quickly pushing through the formal appointment of Whelan to the Court of Appeal would make the problem go away he was mistaken. Problematically there’s a plausible story about why the Government would want Whelan out of the way; as a judge she can’t be compelled to appear in front of any new inquiry on the Garda whistleblower controversy. It’s not only conspiracy theorists who might conclude that this was the reason Enda Kenny and Fitzgerald were so anxious to put Whelan on the bench.
The question is whether the Government did so in an appropriate way. There is no doubt that the Government has the right to appoint who it wants, including the former attorney general, to the judiciary. The Constitution is clear on that. But it is also clear that the Oireachtas can and has put in place procedures to regulate that right.
Did the Government follow the procedures set out by the Oireachtas in the Courts and Court Officers Act, 1995? It isn’t clear for instance if the minister is obliged to ask the Judicial Appointments Advisory Body (JAAB) to advertise vacancies, or whether the Government can just appoint without any JAAB process.
It seems Frank Clarke, now in the Supreme Court, was appointed without any advertisement, which would suggest that governments don’t think they are obliged. But section 16.6 of the act states: “In advising the President in relation to the appointment of a person to a judicial office the Government shall firstly consider for appointment those persons whose names have been recommended to the minister pursuant to this section.”
This suggests that the Government is obliged to advertise vacancies through JAAB, something that was highlighted by Nora Owen, the minister who introduced the legislation in 1995. But even if the JAAB makes a recommendation, there is no obligation on the Government to nominate anyone from the JAAB list. It can go outside the list if it wishes, and at times has done so.
Because the Fitzgerald/Flanagan double act wouldn’t make a clear statement or actually answer questions last Wednesday night, we don’t know whether the minister directed the JAAB to advertise a vacancy. But it seems it did, because it advertised a vacancy in the Court of Appeal in January, even though there was none. It can anticipate vacancies, and so knowing Judge Garrett Sheehan was due to retire it advertised the vacancy.
Flanagan told the Dail that “JAAB reported on May 16, 2017, that it was not in a position to recommend a person for appointment to the vacancy in the Court of Appeal”. This is not that unusual. The Court of Appeal is the second highest court, so it would be normal to expect appointees to have prior judicial experience.
Evidently, the former attorney general did not apply to JAAB. She could have, and maybe she should have. Article 18 of the Act regulating the process of judicial appointments states, “the board may recommend the attorney general for appointment to judicial office”, and as the Attorney General sits on the JAAB, “where the attorney general wishes to be considered for appointment to judicial office, he or she shall withdraw from any deliberations of the board concerning his or her suitability for judicial office”. Had she applied she may have been recommended, but crucially she would not have been involved in the decision.
And here it gets more interesting. We know that she was involved in the decision, because ministers have said that she did not leave the Cabinet room. We are entitled to know how other potential candidates were considered. It has been reported that three High Court judges expressed an interest in appointment. Sitting judges don’t apply through the JAAB. Because it is essentially a screening process, it was reasonably thought that any sitting judge should be assumed to be qualified. Instead the Chief Justice’s guidance for judges wishing to be promoted is that “expressions of interest should be made in writing by way of letter, and not otherwise, and sent in confidence, to the Attorney General”.
So Fianna Fail’s Jim O’Callaghan asked: “Were letters expressing interest in the vacancy sent by members of the High Court to the Government? If so, who received them and when were they received?”
Those questions were never answered. All we were told was “expressions of interest by the judiciary, are dealt with appropriately and correctly”. Nor were the countless other questions from opposition TDs answered. All they got was outrage and Cabinet confidentiality. Whelan may be safely out of the way but, with the Government refusing to provide clarity, the Whelan Affair isn’t.
‘Whelan did not apply to JAAB. She could have, and maybe she should have’