Sunday 21 January 2018

Varadkar gets away with first 'stroke' as controversial appointment of former AG as judge goes ahead

FF backs off threat of 'nuclear option' amid fears of election

Former AG Máire Whelan will be appointed a judge today. Picture: Collins
Former AG Máire Whelan will be appointed a judge today. Picture: Collins

John Downing and Ryan Nugent

Taoiseach Leo Varadkar has brushed aside all protests and is forging ahead today with the controversial appointment of the former attorney general as a judge at the Court of Appeal.

Fianna Fáil has blinked in its first confrontation with the new Taoiseach and backed off its only option of withdrawing support and effectively causing an immediate general election.

A party source described this as the "nuclear option" it could not exercise on this occasion and on this issue.

Procedures used to make the appointment have been roundly condemned by all parties and caused Independent ministers in Government to raise belated concerns. The appointment, while respecting the letter of the law, bypassed an independent appointments board, which has been used since 1995.

The former attorney general (AG), Máire Whelan, will this morning be formally appointed to the appeal court by President Michael D Higgins. Officials insisted that it was always the practice to formalise judges' appointments very promptly after a Cabinet decision.

"As the Taoiseach has always indicated, the Government intends to go through with this appointment," a spokesman said last night.

On Saturday, Mr Varadkar himself remained adamant that the appointment was lawful and would happen. The new Taoiseach directed questions about concerns of an early election back to Fianna Fáil.

"Everybody knows that Fianna Fáil has the power to bring down the Government if they choose to do so. That's a question you'd have to ask them," Mr Varadkar said.

Procedures used to push through the appointment have been condemned by all parties except Fine Gael. Labour leader Brendan Howlin, whose party backed Ms Whelan's appointment as attorney general, praised her ability - but insisted the way the appointment was done was wrong.

Fianna Fáil yesterday continued to be scathingly critical of the way the appointment was put through. But its justice spokesman Jim O'Callaghan signalled that there would be no change in his party's view that it would not cause an election over this issue.

Fianna Fáil leader Micheál Martin also markedly moved away from the question of an election. He emphasised that Ms Whelan herself could move to defuse the issue by standing aside.

But last night Áras an Uachtaráin announced that President Higgins would formally make the appointment, as one of three judge appointments, at 10.30am today.

The appointment was the final act of the outgoing Taoiseach, Enda Kenny, at his last Government meeting on Tuesday. Independent TD and Transport Minister Shane Ross, who championed stronger independent procedures to appoint judges, raised an objection but allowed the appointment to go through.

Mr Ross's Independent Alliance later said it wanted the matter reviewed. The Alliance and another Independent minister, Denis Naughten, are to raise the matter at tomorrow's Cabinet meeting.

Tánaiste Frances Fitzgerald yesterday backed the Taoiseach's move to face down the Opposition. She insisted that judicial appointments are not part of the Government's 'supply and confidence' agreement with Fianna Fáil - and that it is up to the Opposition party how it wants to deal with the issue.

Mr Martin piled pressure on former attorney general Ms Whelan to withdraw from her position at the Court of Appeal - following controversies over her appointment.

It is understood that the Department of Justice was made aware of three High Court judges who declared an interest in the same position, while Ms Whelan was also at the Cabinet table when the decision was made on her appointment.

However, former justice minister Ms Fitzgerald argued strongly that Ms Whelan "behaved absolutely appropriately" throughout the appointment procedure.

"Clearly judicial appointments are not part of that 'supply and confidence' agreement. It is up to Fianna Fáil to decide how it wants to deal with a whole range of issues," Ms Fitzgerald said.

"I can't comment on actually what took place in Cabinet.

"But at all times the attorney general behaved absolutely appropriately," Ms Fitzgerald said.

Irish Independent

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