Friday 15 December 2017

Ex-AG must consider her position - Martin

FF leader: 'judiciary undermined'

Máire Whelan Photo: Laura Hutton/
Máire Whelan Photo: Laura Hutton/

Jody Corcoran and Mark O'Regan

Fianna Fail leader Micheal Martin has significantly increased pressure on the former Attorney General Maire Whelan to withdraw from her proposed appointment to the Court of Appeal, stating last night that she should "consider her position".

Yesterday, however, Taoiseach Leo Varadkar said: "The decision is made - and the decision stands."

But Mr Martin told the Sunday Independent last night it was his understanding that Ms Whelan had attended a meeting of the Judicial Appointments Advisory Board (JAAB) at which the proposed appointment was discussed and that she did not, as obliged, indicate that she had an interest in the position.

The Sunday Independent understands that meeting took place a few weeks ago, in May. It is not known, and could not be established last night, whether Ms Whelan had an interest in the position at that point. She could not be reached for comment yesterday.

In a statement that dramatically ups the ante, the Fianna Fail leader said that the "debacle embroiling the judicial system" could "ultimately undermine its stature".

He described the situation as "very serious" and said that the Government had to "respond in a proper manner".

These latest developments have the potential to turn the controversy into a full-scale political crisis.

Earlier yesterday, Mr Varadkar repeated that the decision to appoint Ms Whelan was "entirely in line with the law". Asked whether he was concerned the controversy could lead to the collapse of the Government, he said: "Ultimately that's a matter for Fianna Fail. Everybody knows that Fianna Fail has the power to bring down the Government if they choose to do so, that's a question you'd have to ask them."

Asked last night whether the controversy had the potential to threaten the confidence and supply agreement underpinning the government, Mr Martin said: "I am not in the business of delivering ultimatums in day one of the new Government. So, we will take this one step at a time.

"What I am saying now, quite clearly is that this row has the potential to undermine the stature of the judiciary and that Ms Whelan should consider her position."

Fianna Fail's position significantly increases pressure on Ms Whelan and the Government, as Mr Martin will be unable to stand over an appointment he believes has the potential to undermine the judiciary.

He said that the former Attorney General needed to clarify three issues, and added that the former Justice Minister, Frances Fitzgerald, now the Minister of Jobs, Enterprise and Innovation, also has an issue to clarify.

In relation to Ms Whelan, he said it was his understanding that she had attended a meeting of the JAAB at which the vacancy on the Court of Appeal was discussed and that she did not indicate she had an interest in the position at that meeting "in contravention of the 1995 Act".

This is understood to be a reference to the Courts and Court Officers Act, section 18 (3) which states: "Where the Attorney General wishes to be considered for appointment to judicial office, he or she shall withdraw from any deliberations of the Board concerning his or her suitability for judicial office."

The Court of Appeal vacancy arose on March 22 last following the retirement of Judge Garrett Sheehan.

According to Mr Martin's version of events, Ms Whelan attended a meeting of the JAAB board after that date. Yesterday it was learned that board meeting took place in May.

The board of the JAAB consists of the Chief Justice, who is the chairperson; the President of the High Court; the President of the Circuit Court; the President of the District Court; the Attorney General; a practising barrister nominated by the Chairman of the Bar Council; a practising solicitor nominated by the President of the Law Society; and three people appointed by the Minister for Justice.

The potential, therefore, exists that the most senior judges in the country may be drawn into the deepening political and legal crisis surrounding the Government.

The Independent Alliance, which has two members at Cabinet, did not raise a formal objection to the proposed appointment of Ms Whelan when it was decided last week, but three days later called for a "review" of the process after the controversy erupted.

Yesterday, Mr Martin said Ms Whelan also needed to clarify whether three High Court judges had written to her as Attorney General to express an interest in the Court of Appeal position, whether she made such expressions of interest known to the Justice Minister, whether she had informed the Cabinet that three judges were interested in the position, or whether the Cabinet had agreed to her appointment "in the blind".

He said it was also Fianna Fail's view that Ms Whelan should have "stepped out of the Cabinet meeting" when the Government came to discuss the appointment and that she should clarify whether or not she had absented herself.

Mr Martin said Minister Fitzgerald also needed to clarify whether she was aware that three High Court judges had expressed an interest in the Court of Appeal position.

On Friday, Fianna Fail's Justice spokesman, Jim O'Callaghan, insisted there was a provision within the confidence and supply agreement which stated that there "should be no surprises".

He said: "This is clearly a surprise that was sprung not just on Fianna Fail 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."

But yesterday, Mr Varadkar said he strongly disagreed with Mr O'Callaghan's "assessment" of the situation.

"First of all, the confidence and supply agreement that we have with Fianna Fail doesn't require that we run appointments by Fianna Fail, whether they're judicial appointments or public appointments.

"It doesn't require that, nor could it.

"And the clause that refers to surprises is no policy surprises. This isn't a policy decision, it's a public appointment."

"There are surprises in Government every day," said the Taoiseach.

Sunday Independent

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