Máire Whelan appointment described as ‘directly political’

The appointment of outgoing Attorney General Máire Whelan as a judge on the Court of Appeal has been described as “directly political” by Fianna Fáil leader Micheál Martin.

Ms Whelan’s appointment was announced by the Government on Tuesday, filling a vacancy arising from the retirement of Mr Justice Garrett Sheehan in March 2017.

Speaking in the Dáil after Taoiseach-in-waiting Leo Varadkar was nominated, Mr Martin said it was essential that the “controversy” was addressed.

“The excuse that there were no qualified applicants is clearly false given that the last application process closed nearly six months ago, and there was no public advertisement of this vacancy,” Mr Martin said.

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“Given the controversies which the outgoing attorney has been involved in and the findings of the Fennelly report, the rushed and unusual manner of the appointment to which Deputy Varadkar and all of his colleagues agreed is at best squalid.”

Ms Whelan was criticised by the Fennelly Commission, which examined the recording of phone calls at Garda stations and raised concerns about inconsistencies in her evidence in its report.

Mr Martin also said Minister for Transport Shane Ross had “now agreed to the most directly political appointment in nearly a quarter of a century”, despite having “once insisted on removing politics from such appointments”.

Mr Ross told Cabinet on Tuesday he disapproved of the way judges were appointed, a spokeswoman for the Independents in Government confirmed.

The Social Democrats said Ms Whelan’s nomination “smacks of hypocrisy and cronyism”.

The party’s co-leader Róisín Shortall said: “This naked political appointment is the height of hypocrisy from a government that is supposed to be introducing a law to take politics out of the appointment of judges.

“It is as far as you can possibly get from the government’s pledge to make judicial appointments transparent, fair and credible.”

Appointment process

While Mr Justice Sheehan retired from the Court of Appeal post in March 2017, the closing date for applications from practising barristers and solicitors with 12 years experience for appointment to the Court of Appeal was January 26th, 2017.

It is not clear from what the Department of Justice has said to date if candidates applied and were not considered appropriate, or if no-one applied.

The Department has said Minister for Justice Frances Fitzgerald had sought a list of suitable candidates, but the Judicial Appointments Advisory Board (JAAB) reported “it was not in a position to recommend a person for appointment to the vacancy”.

Ms Whelan was a member of the board by virtue of her position as Attorney General.

Ken Murphy, director general of the Law Library, said he would not comment on Ms Whelan’s new appointment.

However, he remarked: “There used to be two good reasons for a practising solicitor or barrister to consider seeking the career change of becoming a judge - the prestige and pension.

“But since the controversy and referendum on judicial pay, neither the prestige nor the pension are quite what they used to be. The attractiveness of the judicial career has diminished a little as a result.”

A referendum to reduce the constitutional bar on reducing judge’s pay was passed in 2011.

The vacancy notice on the JAAB website dated January 5th stated prospective candidates were asked to furnish a recent tax clearance certificate and were advised that they might be required to attend for interview “at the discretion of the Board”.

Canvassing was prohibited, the notice said. An application form could be downloaded, requesting references from two referees and 13 recent passport sized photographs signed by the applicant.

Applicants were also required to submit details of their “personal qualities” and “temperament appropriate to being a judge” in order to determine their suitability for judicial appointment.

Ms Whelan had served as Attorney General since 2011 and was originally a Labour Party nominee.

However, she was seen as being close to outgoing Taoiseach Enda Kenny, who reappointed her last year when Fine Gael formed a minority government without Labour.

Legislation to reform the judicial appointments process, demanded by Mr Ross, has been delayed repeatedly but he is hoping it will become law before the summer.

He wants the nomination of judges placed in the hands of an independent body with a non-legal chair.