Tánaiste Leo Varadkar told Minister for Justice Helen McEntee that he thought Séamus Woulfe would be a "good judge" during a conversation before she made a decision on an appointment to the Supreme Court, it emerged on Thursday.
During a question and answer session in the Dáil about her role in the process of appointing Mr Justice Woulfe to the State’s highest court, Ms McEntee insisted that, despite that conversation, Mr Varadkar “did not tell me that this was to be the case” that the former attorney general should be appointed.
She said: “I did not make the decision then.” She added that there were two subsequent Cabinet meetings in the interim before she brought a recommendation to the Government for the appointment of Mr Justice Woulfe.
Ms McEntee also told the Dáil that there were five expressions of interest for the Supreme Court vacancy from sitting judges. The Irish Times broke the story earlier this month that at least three sitting judges had shown interest in the position.
Ms McEntee told Sinn Féin justice spokesman Martin Kenny: “I did have a conversation informally with my colleague, with the Tánaiste. He informed me himself that there was a vacancy, that Séamus Woulfe had come through the JAAB [Judicial Appointments Advisory Board] process.
“I informed him that I was already aware of that. He also informed me, or I suppose gave a view, that he thought Séamus would be a good judge.”
The Minister later told TDs that “of course I took that on board”.
But she said: “I did not make a decision then because at that stage, I did not have all of the other names” showing an interest in the position.
She said she received those names in a draft memorandum on July 6th, and looked at all expressions of interests for the role, the one recommendation through JAAB, which was for Mr Justice Woulfe, and the other sitting judges eligible for this position.
She was originally informed of the vacancy by department officials during a briefing the day after her appointment as Minister at the end of June.
The Minister was on Thursday answering questions from the Opposition after statements from all parties and groups in the Dáil in the ongoing controversy over the appointment of the former attorney general to the court after it emerged that sitting judges had also expressed interest in the vacancy.
Ms McEntee staunchly defended her role in the appointment and insisted that she had acted at all times in accordance with the law.
Mr Kenny told her she was telling a “yarn” that there was a process involved in the decision and he claimed that she and Mr Varadkar had made the decision. It was a Fine Gael decision and the Taoiseach Micheál Martin was left out of the loop, he claimed.
But the Minister insisted that she had taken the time to look at the JAAB process and the list of judges. “Following that process I spoke to all the [Government party] leaders and based on their responses I made a recommendation.”
But Social Democrats co-leader Catherine Murphy said that the very fact that there was an informal conversation with Mr Varadkar was an “intrusion in the process” and that the Tánaiste was “pretty much saying ‘that I’d really like to see this person appointed’”.
She asked with whom else Ms McEntee had discussed the issue. The Minister said she had not discussed the issue with the previous minister for justice or with Mr Justice Woulfe. She had had an “informal” conversation with the Tánaiste but “he did not tell me that this [appointment] was to be the case”.
She said there was no specific criteria for her to look at in making the decision. There was no list, or “boxes that I tick”. She said: “I have to use my judgment and I do apply my own set of criteria.”
Ms McEntee said the expressions of interest from the five sitting judges went to the Attorney General’s office and then directly into her office.
Independent TD Catherine Connolly told the Minister that “you can imagine how this sounds” that five sitting judges send in their expressions of interest to the attorney general’s office when a former attorney general himself has an interest in being promoted, “and nobody reflects on that as a procedure and practice”.
Ms McEntee said that “the process is what it is”. She said she was working on an updating of the current process and legislation.
Ms Connolly also asked if Mr Varadkar had an opinion on the sitting judges who sought promotion. Ms McEntee said that “there were no further discussions about other names because at that stage I had not received other names”.
Labour TD Brendan Howlin said Ms McEntee was probably the first Minister for Justice in history to personally determine a Supreme Court nomination without reference to the Taoiseach, but she told him that other former ministers for justice “have very clearly said they never brought other names [of potential candidates] to the Taoiseach”.
Opposition pressure
The Government had yielded to a question and answer session after two weeks of Opposition pressure calling for Ms McEntee to address the process of the former attorney general’s appointment to the State’s highest court.
Ceann Comhairle Seán Ó Fearghaíl had told TDs that they may ask about the nature of the process of selection for appointment to the Supreme Court, the steps involved and how it was conducted. These are all objective issues and do not encroach on other branches of Government.
The Minister cannot be questioned on the relative merits of candidates or how they were evaluated, he said.
Mr Ó Fearghaíl said that matters related to Cabinet, including a Cabinet memo on the issue, could not be asked about because of Cabinet confidentiality.
Ms McEntee had previously said the JAAB recommended one person, Séamus Woulfe, for the position of Supreme Court judge.
She said only one application was made through JAAB, which made the recommendation in March.
Mr Justice Woulfe has been criticised for attending the Oireachtas Golf Society dinner in Co Galway in August attended by 80 people, with allegations that the event breached Covid-19 guidance.
Mr Justice Woulfe’s attendance at the event was the subject of a review by former chief justice Susan Denham, who found he should not resign. But a transcript of his interview with Ms Justice Denham sparked further controversy, culminating in Chief Justice Frank Clarke expressing the personal view he should step down.
This sparked a political crisis which led the Government to consider impeachment against him, bringing political pressure and focus on the initial appointment process.
Opposition comments
In opening remarks before the formal question and answer portion, Mr Kenny said that Mr Justice Woulfe’s name as a long-term Fine Gael activist had “miraculously” made its way to Cabinet as the nominee for the role.
The Sligo-Leitrim TD said this was a Fine Gael appointment, a “done deal”. He told Ms McEntee that it was “boxed off long before you ever took office Minister and then you signed off it. That is the reality and that is why we are here today.”
Social Democrats co-leader Catherine Murphy said the JAAB process was a “vetting process” for solicitors and barristers and it lists such applicants who meet the criteria and are deemed appointable, but this did not constitute a formal recommendation. She claimed Ms McEntee kept referring to a recommendation and accused her of using that as a “cover”. She said sitting judges apply directly for judicial appointments to the Minister for Justice.
Ms Murphy said judicial experience did not seem to be considered in this case “and that is what a political appointment looks like”. She added that Ms Entee seemed to be “completely oblivious” to the applications of sitting judges and she asked: “Were you told who was to get the job?”
Rise TD Paul Murphy said it was “outrageous” that after two weeks of ducking and diving by the Government to shield the Minister that Ms McEntee spoke for 10 minutes but avoided the central issue of on what basis she decided Mr Justice Woulfe should be appointed. He was appointed “because he is close to Fine Gael and was a Fine Gael activist”, Mr Murphy said.
People Before Profit TD Bríd Smith said that “all of our top judges are effectively political appointees”, and depended on which party was in power at the time of vacancies. She told other Opposition leaders they could express their outrage next week by supporting the Rise-Solidarity-People Before Profit motion to impeach Mr Justice Woulfe.
Ms Connolly said the Minister had got a “hospital pass” on the issue.
She questioned why it had taken so much effort to even get to this level of debate. “I put the blame squarely on the Taoiseach. I’m afraid he has learnt nothing, and he should be in answering questions.”
