Major controversy brews over judicial appointment in Ireland

A significant political controversy appears to be brewing in Ireland after the outgoing Taoiseach (prime minister), appointed Attorney General Maire Whelan to a seat on the country’s second highest court. Minority parties in the government, including Fianna Fail and Sinn Fein, have charged that the appointment violated established procedures. It also appears that Whelan never sought the post.

Some quick background: Ireland’s newest government was formed just this past week, with Varadkar (of the Fine Gael party) becoming the new Taoiseach. The current government operates under a Confidence and Supply Agreement, with no single party holding a majority of the Parliament (Dail)’s 158 seats. It is less integrated (and consequently more fragile) than a coalition government, in that minority parties agree to support the government on budgetary issues and no-confidence votes, but do not obtain cabinet positions.

The immediate past Taoiseach, Enda Kenny, apparently appointed Whelan to the Court of Appeal during his final cabinet meeting before the change in government. But the appointment was rife with procedural irregularities. Whelan was still serving as Attorney General in Kenny’s Cabinet at the time, and never formally asked for the appointment. Moreover, it appears that Whelan never left the room while the Cabinet and Taoiseach debated her nomination. Finally, the appointment was not carried out through the government’s Judicial Appointments Advisory Board. There is some debate about whether the Board could not find a qualified nominee — some are saying that the lack of a single nominee led the Cabinet to consider Whelan, while others assert that at least three judges on the High Court (the court immediately below the Court of Appeal) were interested in the position.

No one seems to question that Whelan is qualified for the post. Rather, the dispute is entirely procedural.  A spokesman for the Fianna Fail party suggested that the appointment, if not rescinded, could spark a parliamentary crisis: “There is a provision within the confidence and supply agreement which said there should be no surprises. This is clearly a surprise that was sprung not just on Fianna Fáil but on the whole political system last Tuesday at a time when they thought they could sneak it through. It is my view that it would be a breach of agreement if this stands without the satisfactory explanations and assurances.”

Labour leader Brendan Howlin said of Whelan, “I know she would meet any objective test for appointment to that position but that is the difficulty. On the face of what we know, there seems to have been no objective test and no opportunity for anyone else to apply for the position. That’s just not right.”