President appoints ex-AG Máire Whelan as judge amid FF objections

President Michael D Higgins has appointed former attorney general Máire Whelan a judge on the Court of Appeal this morning despite ongoing controversy over the issue.

The appointment was rubber stamped by the president at a ceremony in Áras an Úachtaráin on Monday morning.

The Áras said in a statement: “At the request of the Government and in accordance with Article 35.1 of the Constitution, President Michael D Higgins today made the following appointments to judicial office: 1) Ms Máire Whelan to the Court of Appeal, 2) Ms Eileen Creedon to the High Court, 3) Mr Charles Meenan to the High Court.”

Taoiseach Leo Varadkar, the Attorney General Seamus Woulfe SC, Art O’Leary, Secretary General to the President and Martin Fraser, Secretary to the Government, attended the ceremony.

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Yesterday, Tánaiste Frances Fitzgerald defended recommending the “uniquely qualified” Ms Whelan to Cabinet but Fianna Fáil said this morning it wanted to know why Fine Gael was “arrogantly proceeding” with the appointment.

Ms Fitzgerald said correct procedures were followed in relation to “anyone else” who had made their interest in the position known. Three High Court judges had expressed an interest in the job.

The development has threatened the minority Government’s confidence and supply arrangement with Fianna Fáil, which will raise the issue in the Dáil tomorrow.

Ms Fitzgerald, who was minister for justice until last week’s reshuffle by Taoiseach Leo Varakar, was asked if it was appropriate for Ms Whelan to have remained at the Cabinet table while the nomination was announced. Ms Whelan had behaved “absolutely appropriately”, Ms Fitzgerald said.

“She’s uniquely qualified, very experienced, a very, very astute and excellent lawyer and I think she will do an excellent job on the Court of Appeal.”

Serving judges

Ms Fitzgerald said the vacancy was advertised by the Judicial Appointments Advisory Board (JAAB). “Various people applied but JAAB did not recommend any name through that process. Now they don’t deal with serving judges so if serving judges have an interest in a position there’s a separate procedure for them to apply and that then gets sent to the Department of Justice for the attention of the minister for justice.”

It is understood some members of the board were surprised that, in one of his last acts as taoiseach, Enda Kenny named Ms Whelan, who has no experience as a trial judge, to the Court of Appeal as they expected the role to go to an experienced High Court judge.

A source with the knowledge of the discussion at the board’s meeting last month confirmed Ms Whelan, a member of the board, did not express an interest in the Court of Appeal vacacny when it was discussed, though it is not clear whether she was then interested in it.

Deliberations

The Courts and Court Officers Act 1995 says, under Section 18, that where the attorney general wishes to be considered for appointment to judicial office, they should absent themselves from deliberations on the advisory board concerning his or her suitability. Ms Whelan could not be reached for comment yesterday.

Yesterday, Fianna Fáil continued to insist Ms Fitzgerald had questions to answer. The process “stinks of cronyism”, the party’s public expenditure spokesman, Dara Calleary, said.

“We want to know what happened the three High Court judges that expressed an interest in the same position. How were their applications dealt with? Were they interviewed? And the person with the answer to that is the Tánaiste, Frances Fitzgerald,” he said.

Meanwhile, the matter will be discussed at Cabinet tomorrow as Independent Alliance Ministers Shane Ross and Finian McGrath are also seeking a review of the nomination.

Mr Varadkar said the Cabinet had taken a unanimous decision about Ms Whelan and there would be no change.