On Tuesday, the Government nominated the Attorney General, Máire Whelan, to the Court of Appeal to fill the vacancy on that court that existed since the retirement of Garrett Sheehan on March 22nd, 2017.
The circumstances of that nomination are deeply troubling and expose the hypocrisy that lies at the heart of a government that claims it wants to remove cronyism from judicial appointments.
To date, every member of the Court of Appeal bar one has been promoted from the High Court
The manner by which government nominates judges was changed back in 1995. Since then a Judicial Appointments Advisory Board (JAAB) recommends to government people who it believes are suitable and qualified to hold judicial office.
The Government can, however, lawfully appoint as judges people who have not applied to JAAB, although this has only been done on exceptional occasions.
There are five reasons why this nomination requires further explanation by Taoiseach Leo Varadkar’s “new” government, most of whose members were party to Tuesday’s decision.
First, in the aftermath of Tuesday's nomination, the Government stated the Tánaiste and then Minister for Justice, Frances Fitzgerald, had sought a list of candidates from JAAB for appointment, but that JAAB had stated "it was not in a position to recommend a person for appointment to the vacancy".
The clear impression this statement conveyed was that no suitable or qualified candidates were available. That impression was completely false because it ignored the reality that all 35 members of the High Court were qualified and most were available.
To date, every member of the Court of Appeal has been promoted from the High Court, the only exception being one promotion directly from the Circuit Court.
Existing judges who seek promotion to a higher court, such as the Court of Appeal, do not apply through JAAB.
Communicating interest
Instead, they communicate their interest in a vacancy by writing to the Attorney General. Presumably, JAAB did not recommend any person for this vacancy on the Court of Appeal because it believed it was a vacancy that should be filled by a High Court judge.
Second, we now know that three members of the High Court did in fact write to the Attorney General indicating their interest in the vacancy.
The Government needs to explain whether last Tuesday it was informed of these other qualified and suitable candidates when it deliberated on making a nomination.
All members of government would have been aware that for previous nominations there was a list of candidates from whom the successful candidate was chosen.
Did no one sitting around Cabinet even raise a question as to why only one name was being advanced? Did none of them enquire, even after the Attorney General presumably left the room when her nomination was being discussed, who were the other candidates?
Third, although the Government is lawfully entitled to nominate a person who has not gone through the JAAB process, there is a statutory provision in place regulating what should happen when an Attorney General expresses interest in a judicial appointment.
The reason for this statutory provision is because every Attorney General is a member of JAAB and, consequently, should have no involvement in deliberations in respect of their own candidacy.
Section 18 of the 1995 Act provides that where an Attorney General expresses an interest in a judicial appointment, he or she shall withdraw from any deliberations of the board concerning his or her suitability for judicial office.
Statutory provision
This statutory provision recognises that JAAB may recommend an Attorney General for appointment to judicial office. Why did no one in government inquire as to why the JAAB process was being circumvented when the existence of this vacancy had been known to everyone, including the Attorney General, from as far back as March 22nd?
It is also difficult to understand why the Attorney General did not express her interest in this vacancy to JAAB, as is clearly envisaged by the statutory scheme.
Ministers need to provide answers to these questions rather than presenting themselves as innocents abroad
Fourth, a central part of the programme for government, much trumpeted by Shane Ross, the Independent TD and Minister for Transport, is the proposal to change the law on judicial appointments.
Ross and the Government claim this is necessary to ensure greater scrutiny and less political patronage in the appointment of judges. Tuesday’s nomination exposes the utter hypocrisy of the Government on this issue.
How can a government that doesn't apply the current vetting system for judicial appointments seek to persuade the Oireachtas that a more rigorous vetting system is required?
Finally, and most disturbingly of all, is the legitimate concern that government approval of the nomination was part of horse trading at Cabinet linked to the opening of Stepaside Garda station in Ross's constituency.
The Taoiseach and his Ministers who sat around the Cabinet table need to provide answers to all of these legitimate questions rather than presenting themselves as innocents abroad who didn’t know what was going on at Cabinet last Tuesday.
Jim O’Callaghan TD is Fianna Fáil’s spokesperson on justice and equality