Independent Ministers demand review of Whelan appointment

Taoiseach insists proper procedures followed and candidate highly qualified for role

Máire Whelan served as attorney general for six years and was a close ally of former taoiseach Enda Kenny. Photograph: The Irish Times

Máire Whelan served as attorney general for six years and was a close ally of former taoiseach Enda Kenny. Photograph: The Irish Times


Taoiseach Leo Varadkar has stood over the appointment of former attorney-general Máire Whelan as an Court of Appeal judge, despite growing tensions with the Independent Alliance.

Insisting that the correct procedures were followed during the Cabinet meeting chaired by his predecessor, Enda Kenny, Mr Varadkar insisted that Ms Whelan was highly qualified for the role.

“Under Article 13.2 of the Constitution the Government, and only the Government, can appoint judges. The Tánaiste recommended Máire Whelan to Cabinet as the stand-out person for the vacancy,” he said.

However, ministerial colleagues have privately criticised Tánaiste Frances Fitzgerald for the controversy, which has threatened the confidence and supply arrangement with Fianna Fáil.

Independent Alliance Ministers are seeking a review of Ms Whelan’s nomination despite the fact that they agreed to it when at the Cabinet table on Tuesday.

Calling for a review, Minister for Transport Shane Ross said he was informed about Ms Whelan’s nomination moments before the meeting and was then quickly asked to agree to it.

While not questioning her suitability for the position, Mr Ross insisted Taoiseach Leo Varadkar needed to review the circumstances surrounding the decision and reveal the process.

“Finian McGrath and I will be raising this at the next Cabinet meeting,” said Mr Ross, though his public questioning of the decision has infuriated Fine Gael Cabinet colleagues.

“ The Independent Alliance is not satisfied at the manner in which this appointment was made and that is why we have sought to change it with a new judicial appointments Bill,” he said.

However, fellow Independent Alliance Minister Finian McGrath offered a signal that they will use the controversy as leverage to accelerate the introduction of a lay-dominated appointments board for judges. Mr McGrath said he has total confidence in Ms Whelan.


Earlier this year, the Judicial Appointments Advisory Board considered the vacancy on the Court of Appeal that was created when Garret Sheehan retired in March.

Most senior members of the judiciary believe that it is only in exceptional circumstances that a practicing lawyer, as against an experienced judge, should be appointed to the Court of Appeal .

So far, the Government has strictly controlled information about the handling of the appointment, refusing to say if Ministers were told that three High Court judges had expressed interest in the post.

Judges do not apply through the Judicial Appointments Advisory Board process. Instead, their expressions of interest are sent directly to the Attorney-General, who passes them on the Minister for Justice.

Fianna Fáil’s spokesman on justice Jim O’Callaghan said the nomination was a violation of the agreement between his party and Fine Gael and called on her to withdraw from the process.

Under the terms of the agreement between Fine Gael and Fianna Fáil there was a “no surprises” clause and Mr O’Callaghan believed “this was sprung on us all”.

However, he insisted the party would not “press the nuclear button” and call for an election .

Under the current agreement with Fine Gael, Fianna Fáil is notified of impending appointments but was not on this occasion.

The party will raise the issue in the Dáil when it meets next Tuesday for the first time since the reshaped administration led by Mr Varadkar took office.

Ms Whelan served as attorney general for six years and was a close ally of former taoiseach Enda Kenny.

Her appointment has not yet been ratified by President Michael D Higgins, but a Government spokesman insisted it would not be rowing back on the move.