Judicial Appointments and nomination of former Attorney General, Ms. Máire Whelan S.C. for appointment to the Court of Appeal
Ceann Comhairle, we are most fortunate to have in Ireland a strong, independent, impartial and well-respected Judiciary. Enshrined in Article 35.2 of the Constitution is the important principle that “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.”
I want to call on Deputy Martin and the Fianna Fáil party to withdraw the recent attempts in this House to denigrate the character and calibre of the former Attorney General who is now a member of the Court of Appeal.
The comments suggested that she is somehow of inferior character and ability when compared to others who have been appointed to positions in the Superior Courts while the party opposite was in Government.
The comments impact on the constitutional separation of powers which exist in this State.
Does Deputy O’Callaghan share these views? Does he associate or disassociate himself with the views of his leader. If he shares those views, we must surmise that Fianna Fáil’s real objection to this nomination is that the former Attorney General does not meet some unknown criteria his party applied to these situations. The Deputy has a choice. He should inform the House what those criteria are or disassociate himself from the comments of his leader.
Ceann Comhairle, at its meeting of 13 June 2017, Government decided to nominate the then Attorney General, Ms. Máire Whelan S.C., for appointment as an ordinary judge of the Court of Appeal, pursuant to its prerogative under Articles 13.9 and 35.1 of the Constitution to advise the President on appointments to judicial office.
Ms Justice Máire Whelan was subsequently appointed by the President as a judge of the Court of Appeal.
Let me set out, again, for the information of Deputies some points in relation to this appointment:
The Constitutional prerogative on advising the President on judicial appointments lies with the Government alone. It is in accordance with the law and the Constitution for the Government to recommend a person to be appointed a judge of the Court of Appeal, providing they are eligible and qualified, whether or not that person’s name has been put forward by the Judicial Appointments Advisory Board.
The Government is obliged under Section 16 of the 1995 Courts and Court Officers Act to first considerpersons recommended by JAAB. However, the Government is not obliged to follow the recommendations of JAAB nor could it, constitutionally, be required to do so.
In accordance with practice, I referred this vacancy to the Judicial Appointments Advisory Board and in this case, as has already been stated publicly, the JAAB was not in a position to recommend any applicant for appointment to the Court of Appeal vacancy.
Where existing judges of the High Court or of any other Court put forward expressions of interest in a vacancy to the Attorney General all such submissions are considered and are treated in a confidential manner for very good and very obvious reasons.
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 in accordance with the law and the Constitution for the Government to nominate a person to the President to be appointed a judge of any Court. This includes the Court of Appeal, providing they are eligible and qualified.
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.
These are the Constitutional prerogatives set down for the Government. If the Deputies across favour a change in the constitution in this area they should outline the alternative they favour.
I have six years’ experience of working with Máire Whelan as Attorney General. She is a talented lawyer and a person of the highest integrity and qualities.
• She has directed and overseen the legal work of this State during a period of economic and social change.
• She has designed, unpicked and managed the legislation required during difficult periods.
• She has done so with skill, professionalism and admirable temperament.
She does not deserve to have her character questioned in this House.
The breadth and depth, the gravity, relevance, complexity and significance of her six years’ experience as the Constitutional legal advisor to the Government, advising on complex matters of legal and constitutional importance, ensures she is absolutely qualified.
Ceann Comhairle, this Government has committed to significantly enhance the judicial selection model. On 30 May 2017, the Government approved the publication of the Judicial Appointments Commission Bill, which fulfils the Programme for Government commitment to introduce legislation to replace the Judicial Appointments Advisory Board with a new Judicial Appointments Commission.
Work on the new legislation will now move forward under the guidance of my colleague the new Minister for Justice and Equality Charlie Flanagan T.D. I would ask the Fianna Fáil Deputies to support the Bill.
To conclude I want to once again reaffirm what the Taoiseach said earlier - a suitable person was appointed by a lawful process.
No matter how much the opposition tries to make this into an issue different from that, what happened here was that a suitable person who was appropriately qualified was appointed to a vacancy lawfully using a correct process.
Finally I call on the Deputies opposite to disassociate themselves from the comments of their leader who attempted to play the woman and not the issue.