WHY MÁIRE WHELAN’S APPOINTMENT TO THE COURT OF APPEAL IS CAUSING RIPPLES THAT COULD TURN INTO A TSUNAMI
WHO IS MÁIRE WHELAN? A Originally appointed attorney general when the Labour Party went into government – she was a former treasurer of the party – she was reappointed last year (much to the surprise of Fine Gael supporters). Before she became attorney general, Ms Whelan had never served as a judge but had worked as a barrister or senior counsel. As AG, she was centrally involved in a number of controversies, and was this week described in the Dáil as ‘probably the worst attorney general in the WHAT IS ALL THIS FUSS ABOUT? A One of the last things Enda Kenny did as taoiseach was to appoint Máire Whelan to the Court of Appeal – but the manner of her appointment has caused growing disquiet among independents supporting the Government, as well as Fianna Fáil. DOESN’T THE AG NORMALLY BECOME A JUDGE? A An Attorney General is the Government’s legal advisor and until 1995 it was not unusual for those who held this position to be appointed a judge after serving their time as Attorney General. However, this changed after Albert Reynolds made his Attorney General Harry Whelehan President of the High Court in 1994. The appointment ultimately led to the fall of Reynolds’s coalition government with the Labour Party. As a result, a new law was brought in by the next government – Fine Gael, Labour and Democratic Left – under which the Judicial Appointment Advisory Board was set up. WHAT IS THE JAAB? A The Judicial Appointments Advisory Board was set up after the fallout of the Harry Whelehan affair, so that the process of appointing judges would become more transparent. It compiles a list of candidates whom it deems suitable to be appointed as judges, but it is important to know that it can only recommend people who have never been appointed judges before. The Government does not have to comply with the JAAB’s recommendations and can appoint other candidates. Because the JAAB can only make recommendations about first-time-judges, serving judges looking for promotion cannot apply to the JAAB. Instead, they must write to the attorney general of the day, asking to be considered for promotion. SO WHY DOES IT MATTER? A Máire Whelan’s appointment to the Court of Appeal matters because it is the first time since the 1995 law was brought in that a former attorney general has been appointed to the bench. The MoS is revealing today that the JAAB – in a meeting which Ms Whelan attended – decided that the most suitable person to get
the job on the Court of Appeal should have served as a High Court judge. It came to this conclusion on the basis that if the person had never served as a High Court judge presiding over a trial, then they would not have the necessary legal experience to be appointed to the Court of Appeal. I HEARD THERE WERE THREE JUDGES LOOKING FOR THE JOB, WHO DID THEY APPLY TO? A If they applied, they applied to Máire Whelan because she was the attorney general and these judges don’t apply to the JAAB. DID MáIRE WHELAN TELL THE MINISTER FOR JUSTICE ABOUT THE THREE JUDGES? A It has been reported that Frances Fitzgerald – who was moved from the Department of Justice to the Department of Enterprise last week – was told that three judges had applied to Máire Whelan for the job. Spokesmen for the Department of Justice and Frances Fitzgerald said they could not respond due to confidentiality. Efforts to contact Máire Whelan proved fruitless yesterday, and a government spokesperson did not respond on her behalf. WHY DID SHE NOT LEAVE THE CABINET ROOM WHEN THE JOB WAS BEING DISCUSSED? A The Government says that as she was the only person recommended for the job, she didn’t have to. This is a little strange, however, since there is only ever one person’s name brought to Cabinet. And under the 1995 Act, which has the power to appoint an AG to the bench, if she had told the members of JAAB at a board meeting that she was interested in the post, she would have been obliged to recuse herself from any consideration of her for the vacancy. So it is curious that she did not do the same at a Cabinet meeting, which is in effect an even higher power. WHAT’S NEXT? A Máire Whelan’s appointment will be discussed at a Cabinet meeting on Tuesday. Independent TD Shane Ross has said that he is concerned as to how she was appointed, while Fianna Fáil have also raised questions. Fine Gael need the support of Independents such as Shane Ross, as well as the tacit support of Fianna Fáil in not voting against it, if they are to remain in power. However, newly elected Taoiseach Leo Varadkar has insisted that Máire Whelan’s appointment to the Court of Appeal will go ahead.