Unpacking the latest in the Maire Whelan controversy: proposed judicial appointments bill panned, government at risk

The controversial appointment of Maire Whelan to Ireland’s Court of Appeal continues to ruffle the country’s new government.  This week, Transport Minister Shane Ross proposed a bill to create a new Judicial Appointments Commission.  The new commission would have a majority of non-lawyer members, and would be chaired by a non-lawyer.  The commission would select final nominees, who would then be chosen by the government.

The bill immediately came under fire from Fianna Fail, the political party whose support is necessary to uphold the government’s confidence and supply agreement. The proposal was also publicly criticized by prominent members of the judiciary.

Fianna Fail’s justice spokesman, Jim O’Callaghan, stated that his party would oppose the bill in the upcoming vote, and would seek to repeal it even if it passes.  Fianna Fail went further, stating that the Whelan appointment breached established practice and that “trust is definitely damaged.”  The party is openly speaking about already selecting candidates for new elections, and has warned that any further controversies will indeed spark a general election.

Meanwhile, Chief Justice Susan Denham and the chief judges of the country’s major courts have written an letter to Taoiseach Leo Varadkar, claiming that the new proposal would have “serious implications for the administration of justice.”  And High Court President, Justice Peter Kelly, described the bill as “ill-conceived” and “ill-advised.”

The Association of Judges in Ireland wrote their own letter critiquing the proposal.

“The rationale for a lay majority and a lay chairman has not been explained. It is hard to imagine any other walk of life in which the majority of those involved in an appointment process would be required to come from outside the ranks of those serving in the area,” it said.

In addition, the judges’ association complained that there will be no representative of judges from the District Court and the Circuit Court on the Ross-proposed Commission, even though “the overwhelming majority of cases to come before the courts” are heard before both of them.

Varadkar shot back, stating that the government is fully behind the bill and that respect between branches of government “really has to apply in both directions. Both judges and politicians need to respect the separation of powers and ensure there is a decent distance between the judiciary and the Oireachtas [legislature].”

Notwithstanding the controversy, the government has stated that it expects the bill to pass.