The appointment of Máire Whelan, the former attorney general (AG), to the Court of Appeal has raised a number of questions that arise from the fact that she herself, in her role as AG, had a key part to play in the judicial appointments process.
Applications from lawyers who wanted to become judges were invited by the Judicial Appointments Advisory Board (Jaab)in January.
Ms Whelan was a member of the board and under the relevant legislation would have had to withdraw from any consideration of any appointment for which she herself had made an application. It is believed she did not make an application to Jaab.
On March 22nd last Garrett Sheehan retired as a judge of the Court of Appeal. It is understood before this occurred, Jaab considered whether it had among its applicants suitable candidates.
It is not known if Ms Whelan withdrew from discussions on this matter. It is not known when Ms Whelan decided that she would like to be appointed to the role. If she had not decided until recently, there would have been no reason for her to excuse herself .
Exceptional circumstances
Sources with knowledge of Jaab said it is the view of the most senior members of the judiciary that it is only in exceptional circumstances that a practicing lawyer, as against an experienced judge, should be appointed to the Court of Appeal .
Ms Whelan is an experienced barrister and has been AG since 2011. However, her suitability for the position would not have been considered by Jaab, as she had not put her name forward.
While the Department of Justice has said it was told by Jaab that there were no suitable candidates for the vacancy, sources with knowledge of Jaab say they believe that this was because the board would have decided the position should be filled from the High Court.
The Chief Justice, Susan Denham, chairs Jaab and its membership includes the president of the Court of Appeal, Seán Ryan. In any debate on the matter, these would have been the most important contributors.
If Ms Whelan was at the meeting, then she would have been party to any debate.
The Department of Justice has confirmed that the then minister for justice Frances Fitzgerald wrote to Jaab on April 12th, seeking recommendations for the filling of a number of judicial vacancies, including the position in the Court of Appeal.
Suitable for promotion
Meanwhile, Ms Whelan, as part of her duties as AG, had to consider which serving judges might be most suitable for promotion to the vacancy.
It is understood at least three High Court judges had made it known that they were interested.
It is part of the AG’s role to consider whether judges who have not expressed an interest in being promoted should be approached .
It is not clear if the Cabinet knew expressions of interest had been made by High Court judges. It is the norm that only one name goes to Cabinet.
Ms Fitzgerald recommended to Cabinet that Ms Whelan be appointed to the Court of Appeal. The AG herself was still in the room when the Cabinet, which has put reform of the judicial appointments process in its Programme for Government, approved the recommendation.
