Tuesday 23 January 2018

Vote controversy poses fresh questions for AG

Attorney General Máire Whelan. Photo: Frank McGrath
Attorney General Máire Whelan. Photo: Frank McGrath
Niall O'Connor

Niall O'Connor

The re-appointment of Máire Whelan to the position of Attorney General (AG) in the recent Cabinet reshuffle caused significant disquiet among many Fine Gael backbenchers.

TDs felt that, on one hand, Enda Kenny was under no obligation to re-appoint the Labour Party's choice of candidate for the office back in 2011.

But senior Government sources are of the opinion Mr Kenny retained Ms Whelan in the position of the Government's legal adviser because of the good working relationship the pair enjoy.

That relationship has been tested over the past five years, but on each occasion, Mr Kenny swooped to the defence of his Cabinet colleague.

However, the expected decision by two Cabinet members to vote against the AG's legal advice in relation to Mick Wallace's bill has brought her position into question once again.

And so the long-standing tradition of the office of AG being "above politics" has been well and truly shattered in light of the many storms the government has had to weather.

Back in 2012, Ms Whelan, a married mother-of-one, faced a string of questions after the successful Children's referendum was challenged in the courts.

Read more: Leo Varadkar: Ignoring advice of Attorney General on issue of abortion would set 'difficult precedent'

Read more: ‘Attorney general’s advice is simply an opinion’ – Shane Ross denies tension on abortion a threat to Government stability

Specifically, questions were raised over the decision by Ms Whelan to sign off on the Government's information campaign, which was found by the Supreme Court to have breached rules relating to fairness and impartiality.

The controversy was particularly embarassing for the line minister at the time, now Tánaiste Frances Fitzgerald.

But the Taoiseach rushed to the defence of the AG's office - and the controversy was quickly defused.

But in September 2015, a completely different set of storm clouds gathered over Ms Whelan's office.

The Fennelly Commission found that Ms Whelan was a central character during the early stages of the events that led to the shock decision by former Garda Commissioner Martin Callinan to step down.

After initially suggesting the emergence of the tapes amounted to wholesale criminality, the AG later dramatically changed her evidence, instead claiming the recording of calls into and out of garda stations amounted to "potential illegality".

Mr Justice Nial Fennelly also found that the AG failed to even contact the then Justice Minister Alan Shatter about the emergence of the Garda tapes, partly because of remarks he made about Garda whistleblowers such as Seargeant Maurice McCabe.

It was also suggested that Ms Whelan was influenced by "tensions" between Mr Shatter and another minister - referring to Leo Varadkar - and that this played a factor in her not contacting Mr Shatter.

She also failed to contact Mr Callinan about the issue.

In relation to that decision, Mr Justice Fennelly stated that the AG had "discovered a matter of the gravest possible public concern" regarding An Garda Síochána and yet "no contact was made with nor inquiry made of either of the two people most obviously concerned and responsible."

"This had the unfortunate result that the relevant actors all went into the events... in almost complete ignorance of many of the relevant facts," Mr Fennelly added.

In November, the AG was again back in the spotlight.

This time, she faced strong criticism after it emerged the inquiry into the IBRC controversy could collapse but it was not given adequate legal powers.

The Government once again circled the wagons and protected the chief legal adviser to the State.

Irish Independent

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