Maire Whelan - Court of Appeal.

NUTLEY BOY

The more I hear of this matter in the media the more confusing it seems to become.

I have utterly nothing adverse to say about the lady herself and am wholly content to vindicate the presumption that her fitness to take up the appointment is utterly beyond question.

What is confusing me is the issue of process. As a matter of law what is the actual process involved in competing for a place as an ordinary judge of the Court of Appeal ?

P.S. I see that the appointment has been made this morning. However, my basic question remains as it relates purely to the legal aspects of matters - no political commentary please !

Grolschevik

Read something about it last year that makes me think the appointment is a bit out of the ordinary:

https://www.lawsociety.ie/globalassets/documents/gazette/gazette-2016/july-16-gazette.pdf#page=35

GM228

https://aji.ie/the-judiciary/appointment-to-judicial-office/

This pretty much sums it up. The positions are advertised by the Judicial Appointments Advisory Board (JAAB) and applicants must apply directly through them.

To note is that S17 of the Courts and Court Officers Act 1995 (as amended), provides that where the Government proposes to advise the President to appoint to judicial office a person who is for the time being, a Judge of the Court of Appeal, a Judge of the High Court, a judge or specialist judge of the Circuit Court, or a judge of the District Court, the provisions of section 16 of the Act which relates to the provision by the JAAB of a list of suitable candidates does not apply.

There may be changes to the system under the Judicial Appointments Commission Bill.

billy few mates

Shane Ross, champion of judicial reform is now calling for her to 'step aside' until the matter is resolved...

AlekSmart

Grolschevik wrote: »

Read something about it last year that makes me think the appointment is a bit out of the ordinary:

https://www.lawsociety.ie/globalassets/documents/gazette/gazette-2016/july-16-gazette.pdf#page=35

I must preface my post with a warning: I am not in any way connected with the Legal Profession. My posts are totally from a Laypersons Perspective.

That is an Excellent Link,with much of interest to observers of the current rather unusual situation.

Cabinet process.

It is something of a myth to say that the
government makes judicial appointments.
Very few members of Government are
even aware of the proposed appointment
until the name is announced at the Cabinet
table. There are only three or four people
in Cabinet who are involved in the selection
of judges. These ‘key decision-makers’ – the
Minister for Justice, the Attorney General,
the Taoiseach and the leader of a coalition
party (if any) control who becomes a judge

This mornings revelation,by Frances Fitzgerald,that there were(are) at least 3 other High Court Judges who were interested in the Appeal Court position,surely puts increased pressure on Maire Whelan in relation to her own understanding of the appointments procedure.

http://www.independent.ie/irish-news/politics/varadkar-gets-away-with-first-stroke-as-controversial-appointment-of-former-ag-as-judge-goes-ahead-35840372.html

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.

Whilst Minister Fitzgerald may be content with her own definition of "Appropriate" behaviour,Judge Whelan must surely be viewed in a somewhat more stringent light ?

Could there be a situation whereby one,or more,of the 3 other interested and well qualified High Court Judges,could decide to take the matter further,in terms of natural justice or open and fair behaviour ?

I feel that Judge Whelan herself is now the key figure in this situation,as the general public,really don't have any great expectations of their Government Ministers.

Fred Swanson

This post has been deleted.

GM228

Fred Swanson wrote: »

She is now a judge appointed by the President, it is going to be impossible to remove her.

Unless she resigns or the constitution is changed, and both scenarios are extremely unlikely.

coylemj

The FF justice spokesman Jim O'Callaghan explicitly stated at the weekend that they would not 'press the nuclear button' i.e. bring down the Government, that is why the appointment went ahead.

I hear now that FF want a Dail 'debate' on the matter so expect lots of soundbites, loud noises from SF and no doubt Claire Daly and Mick Wallace will take time off from climbing the fences in Shannon airport to get some air time out of it.

Meanwhile, Shane Ross is deciding which tie he will wear for the official reopening of Stepaside Garda Station.

Claw Hammer

This appointment is being used as a political football. The government has its choice of lawyer to act as Attorney General. Almost no lawyer would refuse it. The government therefore gets near the best there is. It would be a strange situation that the government wouldn't appoint its own lawyer to be a judge if that lawyer wanted the job.

AlekSmart

Claw Hammer wrote: »

This appointment is being used as a political football. The government has its choice of lawyer to act as Attorney General. Almost no lawyer would refuse it. The government therefore gets near the best there is. It would be a strange situation that the government wouldn't appoint its own lawyer to be a judge if that lawyer wanted the job.

But,but......this is not about "appointing it's own lawyer" at all.

It is about how that Lawyer,did not choose to advise her client (The Government),that with Three other well qualified individuals having expressed an interest in "Her" position,that best-practice would be,for her to withdraw from the deliberation at that stage.

That would,of course,not necessarily alter the Cabinet's decision at all,BUT,it would send a very clear message to the General Public regarding the Attorney General's understanding of what constitutes potentially dubious manipulation,which a system was specifically put in place to avoid.

With a form of Internal Affairs enquiry now under way,chaired by Sec General of the Dept of an Taoiseach,Martin Fraser,it would appear even more appropriate that Judge Whelan should step aside for the duration of that enquiry.

https://www.rte.ie/news/2017/0620/884046-maire-whelan/

Would this not seem like a logical and fair way of facilitating the enquiry process,or do we,yet again,proceed in the Irish manner of resolutely clinging to whatever position we have,irrespective of the storm raging around us ?

Even now,as the Cabinet Ministers are whipped into support mode,we learn other little tidbits,which,in turnserve to raise further questions...

Minister for Agriculture, Food and Marine Michael Creed has also said he is "absolutely" happy with how Ms Whelan's appointment was handled.

Speaking in Washington DC, Mr Creed said that in the discussion that has surrounded how the appointment was made nobody was "suggesting that she isn't up to the job" and nobody was suggesting "that the Government acted outside of the law".

He said Ms Whelan had an "excellent legal brain" and is "highly qualified" for the job.

He said the law currently stated that "it's the Government's prerogative to appoint judges and that's what happened".

He said there had been a "collective Cabinet decision" made last week.

If Judge Whelan was a contributor to that "collective Cabinet decision" last week,then the results of that Cabinet are tainted insofar as Fair Practice & Procedure or Natural Justice go.

I remain quite surprised that such a senior Legal personage as an Attorney General,would not have counsel'd extreme caution,regarding the obviously yawning chasm, into which that "collective Cabinet" was staring last week.

Victor

AlekSmart wrote: »

If Judge Whelan was a contributor to that "collective Cabinet decision" last week,then the results of that Cabinet are tainted insofar as Fair Practice & Procedure or Natural Justice go.

The AG is not a member of the cabinet and can't contribute, only advise.

Claw Hammer

AlekSmart wrote: »

But,but......this is not about "appointing it's own lawyer" at all.

It is about how that Lawyer,did not choose to advise her client (The Government),that with Three other well qualified individuals having expressed an interest in "Her" position,that best-practice would be,for her to withdraw from the deliberation at that stage.

That would,of course,not necessarily alter the Cabinet's decision at all,BUT,it would send a very clear message to the General Public regarding the Attorney General's understanding of what constitutes potentially dubious manipulation,which a system was specifically put in place to avoid.

With a form of Internal Affairs enquiry now under way,chaired by Sec General of the Dept of an Taoiseach,Martin Fraser,it would appear even more appropriate that Judge Whelan should step aside for the duration of that enquiry.

https://www.rte.ie/news/2017/0620/884046-maire-whelan/

Would this not seem like a logical and fair way of facilitating the enquiry process,or do we,yet again,proceed in the Irish manner of resolutely clinging to whatever position we have,irrespective of the storm raging around us ?

Even now,as the Cabinet Ministers are whipped into support mode,we learn other little tidbits,which,in turnserve to raise further questions...



If Judge Whelan was a contributor to that "collective Cabinet decision" last week,then the results of that Cabinet are tainted insofar as Fair Practice & Procedure or Natural Justice go.

I remain quite surprised that such a senior Legal personage as an ATTORNEY General,would not have counsel'd extreme caution,regarding the obviously yawning chasm, into which that "collective Cabinet" was staring last week.

Your main complaint is that a charade wasn't followed. Do you seriously think that if the Attorney General wants a judicial vacancy, that it makes
the slightest bit of difference if the Attorney leaves their own for five minutes while the remainder of the Cabinet considers the merits of the other interested parties?

AlekSmart

Claw Hammer wrote: »

Your main complaint is that a charade wasn't followed. Do you seriously think that if the Attorney General wants a judicial vacancy, that it makes
the slightest bit of difference if the Attorney leaves their own for five minutes while the remainder of the Cabinet considers the merits of the other interested parties?

Yes,you're correct,on reflection I accept that "Charades" is a game best played by the more refined members of society.

It's not as if there is'nt a bit of precedent either....
https://en.wikipedia.org/wiki/Attorney_General_of_Ireland

There had developed over the years a practice (of unknown origin) whereby the Attorney General of the day had his pick of possible appointments to the Irish judiciary upon his vacating the office of Attorney General; since Harry Whelehan's botched appointment to the presidency of the High Court (Ireland) in 1994, this practice appears to have gone into abeyance.

I suppose 23 years is long enough to be "in abeyance"...and most people's attention span is significantly less these days....;)