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Updated 10.30pm
THE ROW OVER the appointment of Máire Whelan to the Court of Appeal persisted in the Dáil this evening, with the government again coming in for strong criticism from the opposition.
It was announced last Tuesday that Whelan would leave her post as Attorney General after six years, a day before Leo Varadkar took office as Taoiseach.
It was confirmed to Gavan Reilly of Today FM that she had not applied for the position.
The Cabinet approved Whelan’s appointment this week, leading to much criticism from the Opposition. However, the government has insisted all correct procedures were followed.
The controversy rumbled on this week, with the government promising to quickly bring through new legislation on judicial appointments.
This has done little to satisfy the opposition, however, with another series of claims and counter-claims across the benches this evening.
“Suitable person… lawful process”
The new Minister for Justice Charlie Flanagan spoke first.
The Minister said that the government appointed the best person for the job in Máire Whelan, as is its prerogative to do.
He said that he was surprised that experienced people were “bandying about information that x or y numbers of High Court judges may have expressed interest in the Court of Appeal vacancy”.
“Not only is that also covered by Cabinet confidentiality,” he said, “but, in fairness to any such member of the judiciary who had expressed such interest in respect of any such vacancy in the past, we are hardly going to lay out for political and public consumption the names and details of serving judges who have chosen to put themselves forward for more senior posts.”
He promised that the new bill was part of the government’s aim of “entirely reforming the judicial appointment system”.
Tánaiste Frances Fitzgerald also provided a robust defence of the government’s actions later on.
She said that she referred the vacancy to the Judicial Appointments Advisory Board but it was “not in a position to recommend any applicant”.
Where others expressed interest in the role, she said: “While of course such expressions of interests are always considered, constitutionally the Government cannot be bound by any such expressions of interest in exercising its prerogative to advise the President on an appointment.
It is also in accordance with the law and the Constitution for the Government to nominate for appointment an eligible and qualified person who is not already a judge, even if there are existing judges who have expressed interest in the appointment.
To conclude I want to once again reaffirm what the Taoiseach said earlier – a suitable person was appointed by a lawful process.
“The government circumvented the law”
In response, Fianna Fáil Justice spokesperson Jim O’Callaghan dismissed the claim that Cabinet confidentiality prevented the answering of essential questions on the matters.
“There have been hundreds of judicial appointments,” he said. “Only two people were appointed having not gone through the proper process. This happened yesterday.
The reason the law was changed is because it is known there is political controversy when an attorney general seeks judicial office. The government circumvented the law. It is laughable to suggest they followed the correct procedures.
He asked a series of questions on who in Cabinet knew in advance of the decision to appoint Whelan, why did no one else in Cabinet say this was unusual and who decided that Whelan’s name was the only one to be brought forward.
“This is a sorry saga, but the fault lies with government,” O’Callaghan concluded.
Questions for Fianna Fáil
Sinn Féin’s Mary Lou McDonald, meanwhile, said that Micheál Martin – who wasn’t present for the debate – had serious questions to answer based on a telephone call he had with the Taoiseach on the matter last Sunday.
She said: “The manner in which Máire Whelan was appointed bypassed the proper procedures for such appointments and we called on her to stand down in order to allow for a proper appointments procedure to take place.
Unfortunately, the Taoiseach had other ideas and he rushed through the trip to the park in order for Ms Whelan to receive the seal of office from the President.
“However, the revelation by the Taoiseach today of a phone call between himself and Deputy Martin on Sunday evening, in which Deputy Martin questioned Ms Whelan’s suitability for the position, suggests that the Fianna Fáil leader was trying to influence this appointment,” McDonald said.
She questioned whether Martin attempted to use his influence on the government to prevent Whelan being appointed, and asked if he believes the confidence and supply agreement gives him the authority to have a say on who gets appointed to the bench.
McDonald says that the appointment “stinks to the highest of heavens” and that Martin is only concerned that it wasn’t “his appointment”.
“He doesn’t have the right legally or constitutionally to intervene in that way,” she said.
“Unfortunate saga”
Before Labour Leader Brendan Howlin spoke, he was interrupted by a Fianna Fáil member criticising the “smear” made against Micheál Martin by McDonald.
Howlin said that he had no doubt that Whelan would do an excellent job in her role. “But that does not mean that I think that the events that lead to her appointment to the Court of Appeals were in order,” he said.
“The lack of a transparent process was absolutely wrong,” Howlin said.
Howlin was similarly critical of Fine Gael, Fianna Fáil and also the Independent Alliance in his statement.
“Frankly, it has become embarrassing to hear Fianna Fáil’s successive claims of outrage,” he said.
On the Independent Alliance, he said: “A year on in power, they still have little concept of how Cabinet Government works.
They clapped through an appointment that they now oppose.
He called for fundamental change to be brought in terms of legislation, and how such issues are approached in future to ensure that “some good will come from this unfortunate saga”.
“Not the right person”
Clare Daly said she wanted to “put a bit of balance on Howlin’s earlier eulogising” by saying that Whelan was not the best person for the job and criticised the judge for her statements to the Fennelly report.
She said that it was a “red herring” to say that the appointment was illegal:
This was a political appointment. If it was the correct process, why are ye in such a rush to change it? … How you have the brass neck to defend it is beyond me.
Bríd Smith said that, “at worst, it is dishonest to the people of this country”. She suggested that Whelan step aside from her role before giving evidence on garda whistleblowers to the Charleton Tribunal, and then resuming it again.
Eamon Ryan heaped on the pressure, adding that “we need answers” and that there “are perfectly valid questions that haven’t been answered yet”.
Mattie McGrath joked that Enda Kenny is probably sitting enjoying a drink or a cup of tea having left the new Taoiseach with a “nice mess”.
McGrath said he welcomed new legislation coming in, and got very heated on the matter.
“What about the ordinary people?” he asked. “Laws for the rich, but none for the poor. They have to take the medicine… These people [homeless] may be as well on death row waiting to get shelter.
The public are sick and tired of Fianna Fáil and the government… They haven’t the courage or conviction to cause an election… The truth hurts.
This statement caused mayhem to erupt in the Dáil with McGrath warned by the Ceann Comhairle.
He replied “New politics, my foot.”
Question time
Affairs got heated again when the floor was opened for questions.
Sinn Féin’s Jonathan O’Brien got into a war of words with Minister Charlie Flanagan, after asking how many others applied for the role.
When both looked to the Ceann Comhairle, he said it wasn’t his responsibility if the Minister answered the question or not.
Brendan Howlin, similarly, got heated with Frances Fitzgerald.
On each occasion, the government ministers refused to say how many people applied to the role.
When Fitzgerald was asked who in the government put forth the name of Whelan alone to government, she said that “all applications that were in the system were considered in due process”.
When Fine Gael TD Colm Brophy attempted to interject on Fitzgerald’s behalf, he was rebuked by the Ceann Comhairle.
The Ceann Comhairle angrily asked Brophy to withdraw the insinuation that he was denying government back benchers speaking time, which Brophy duly did.
A common theme from the opposition benches throughout this latter part was that Fitzgerald and Flanagan were refusing to directly answer their questions, who said on numerous occasions that the events at Cabinet were covered by Cabinet constitutional privilege.
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