Fianna Fáil justice spokesman Jim O'Callaghan has claimed the Government deliberately decided to evade the law in the manner by which it appointed Máire Whelan to the Court of Appeal.
“It circumvented the law and that is why it is laughable for the Government to suggest that it followed correct procedures,” he said during the two-hour late night Dáil debate on the controversy on Wednesday.
About 30 TDs attended the debate.
Mr O’Callaghan said “I’ve lost trust in this Government’s ability to have any responsibility for judicial appointments in the future”.
He said that “not only were correct procedures not followed but fair procedures were not followed”.
The attendance of the then attorney general Ms Whelan while the appointment was being discussed at Cabinet "tainted it", he said.
“It was not fair to other individuals who did not get their CVs considered that they weren’t allowed to be in the room.”
He asked where were the letters expressing interest in the position sent by members of the High Court and who saw them.
Minister for Justice Charlie Flanagan insisted proper procedures were followed, saying he was “surprised about experienced people bandying about information that x or y numbers of High Court judges may have expressed interest in the Court of Appeal vacancy”.
Mr Flanagan said: “Not only is that also covered by Cabinet confidentiality but, in fairness to any such member of the judiciary who had expressed such interest in respect of any such vacancy in the past, we are hardly going to lay out for political and public consumption the names and details of serving judges who have chosen to put themselves forward for more senior posts. Would we not rightly be castigated for doing that?”
Mr Flanagan said Maire Whelan was the best person to be appointed. He said the Government acted entirely within its constitutional powers.
Mr Flanagan said Cabinet confidentiality was a requirement of the Constitution and not a privilege for members of the Government for the time being.
Tánaiste and former minister for justice Frances Fitzgerald added her voice to the demand that Fianna Fáil leader Micheál Martin withdraw his remarks about Ms Whelan.
She said she was calling on Mr Martin and his party to "withdraw the recent attempts in this House to denigrate the character and calibre for the former attorney general who is now a member of the Court of Appeal''.
Ms Fitzgerald said the comments suggested Ms Whelan was somehow of inferior character and ability when compared to others who had been appointed to positions in the superior courts while Fianna Fáil was in government.
“The comments impact on the constitutional separation of powers which exist in this State,’’ she added.
Ms Fitzgerald said the Government was obliged under Section 16 of the 1995 Courts and Court Officers Act to first consider persons recommended by the Judicial Appointments Advisory Board (JAAB).
However, the Government was not obliged to follow the recommendations of JAAB nor could it, constitutionally, be required to do so, she added.
“In accordance with practice, I referred this vacancy to the JAAB and, in this case, as has already been stated publicly, the JAAB was not in a position to recommend any applicant for appointment to the Court of Appeal vacancy,’’ she said.
She said where existing judges of the High Court, or any other court, put forward expressions of interest in a vacancy to the attorney general all such submissions were considered and treated in a confidential manner for very good and very obvious reasons.
Sinn Féin deputy leader Mary Lou McDonald said she had observed the matter was not now a breach of the confidence and supply agreement which Fianna Fáil had with the Government.
She said there was no suggestion that anything unconstitutional had been done in Ms Whelan’s appointment.
“What has been said, and what is absolutely apparent, is that the Government deliberately and wilfully circumvented the law,’’ she added.
Labour leader Brendan Howlin said when in government with Ms Whelan he had been able to get legislation enacted with her invaluable assistance.
She had been involved, he said, in fine pieces of work.
“From the dawn until late at night she was available to the entire Cabinet as adviser, counsellor and, at all times, an expert on legal affairs,’’ Mr Howlin added.
He said he was absolutely convinced she would make a very fine judge indeed.
But, said Mr Howlin, the lack of a transparent process in Ms Whelan’s appointment was absolutely wrong.
“It is unfortunate that her appointment as a judge has been overshadowed by a political row,’’ she added.
Independent TD Catherine Connolly said legislation on the appointment of an attorney general states that “if she wants to be considered for appointment she must step outside the door”.
Ms Connolly said no new legislation was needed on the appointment on an attorney general to the judiciary because such legislation was already in place, “brought in specifically because of the debacle” linked to a previous attorney general’s appointment to the judiciary.
Independents4Change TD Clare Daly asked if the correct process for the appointment of the former attorney general to the judiciary was followed “why are you in such a rush to change it”.
She said the Chief Justice and the President of the Court of Appeal wrote to the Government last October and asked it to fill vacancies but were refused because a new system for appointing judges had to be put in place.
But suddenly just weeks before the summer recess at the last cabinet meeting of the former taoiseach “we get this appointment being rubber stamped”.
