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Judges misgivings on Judicial Appointments Bill

misplaced, Dil told

Thursday, June 29, 2017
Daniel McConnell and Juno McEnroe
Judges misgivings about the Governments Judicial
Appointments Bill are misplaced, the Dil heard last

Cronyism is rife in the current system of appointing

judges, which is also highly politicised, opposition party
TDs told the Government.
Michael Harty, an Independent TD in Clare, said he
supported the new bill being presented, saying the
judiciary needs to respect the separation of powers
between it and the Oireachtas.
Mr Harty said the bill should not come as a bolt from the
blue as it has been in the programme for government for
14 months.
The judiciary should also have concerns for the
separation of powers. Fears expressed by the judiciary are
ill-conceived. Ill-advised, and unfounded, he said.
Junior Minister Finian McGrath said the bill was a key
demand of his Independent Alliance in last years
Government formation talks.
I support the items in the bill that the commission will
have a lay chair and a lay majority. But more importantly I
want to focus on what experience they will have, he said.
They will not be a bunch of random strangers pulled off
from the street.
Mr McGrath said the lay people must have some
qualification to be considered to sit on the commission.
Earlier, Justice Minister Charlie Flanagan insisted the
Government acted within the law and current procedures
in promoting former attorney general Mire Whelan to the
Court of Appeal.
Mr Flanagan was quizzed at the justice committee
yesterday about the recent decision to promote Ms
Whelan to the court, but refused to go into any details,
citing Cabinet confidentiality as well as the privacy of the
board tasked with promoting figures to the bench.
He confirmed that former justice minister Frances
Fitzgerald had written to the Judicial Appointments Board
on April 12, notifying it of a vacancy in the Court of Appeal
that needed filling.
Mr Flanagan said the board met on May 10 to consider
applications, including for the Court of Appeal, but on May
16 told the minister that no suitable applicants were
It has been reported that three judges applied for the post,
but Mr Flanagan would not provide specifics of the boards
decision, saying this was confidential.
He did confirm there had been other interest in the
Fianna Fils Jim OCallaghan highlighted how the board
had recommended seven names for promotion to the
courts on May 23 and asked why this had not included
someone to fill the Court of Appeal post.
At a Cabinet meeting on June 13, it was decided Ms
Whelan would be promoted to the Court of Appeal.
Mr Flanagan, throughout questioning yesterday,
maintained that the Government had discretion under the
Constitution to appoint judges.
He said that during his entire time in Government, there
had only been one situation where someone was
promoted without being recommended by the
appointments board. He would not say if this was when Ms
Whelan was promoted.
He insisted that correct and proper procedures were
followed in filling the Court of Appeal vacancy.

Shortall accuses
Govt of rushing
judicial bill to
'mollify' Ross
Updated / Thursday, 29 Jun 2017

Rsn Shortall said the legislation is being rushed to

mollify Shane Ross
The Judicial Appointments legislation has
been "rushed" in a Government "attempt to
mollify" Minister for Transport Shane Ross
and ensure he maintained his silence on
the appointment of Mire Whelan to the
Court of Appeal, the Dil has heard.
The claims were made by Social
Democrats TD Rsn Shortall during
tonights second stage debate on the
Judiciary Appointments Bill.
The bill provides for the setting up of a
Judicial Appointments Commission made
up of a lay majority, including the
The change in process to nominate judges
was one of the key priorities for Mr Ross
and the Independent Alliance during the
Programme for Government talks.
Mr Ross secured a commitment from Fine
Gael to bring in new legislation in the area.
The Government plans to proceed with the
bill as it stands, despite criticism from
Fianna Fil and senior members of the
Ms Shortall said the Social Democrats will
not be supporting the bill.
But she said that it is only a small reform
and in so far as it goes, it is to be
She said the legislation was rushed in
recent weeks in an attempt to mollify
Minister Ross to ensure that he maintained
his silence over the appointment of the
former attorney general to the Court of
Appeal, in case the re-opening of the
Stepaside Garda station was not enough.
She said this is no way to produce
legislation and do business.

Independent TD Danny Healy-Rae was

critical of the way the Chief Justice could
be set aside by a lay person who does not
know anything about the administration of
He said the current system is very
transparent and he cannot see why there
is a need to change the system he said we
need to protect the quality, independence
and due diligence of the judiciary.
He asked, "Who are the majority going to
be? Who is going to select these people or
appoint these people?"
Independent TD Seamus Healy described
the appointment of a lay majority and a lay
chairperson as "eminently sensible" but
the real problem with judicial
appointments is at the Cabinet.
He said we have seen this with Ms
Whelans appointment to the Court of
Appeal and it is at this level where the
least transparency applies.
Minister of State with Responsibility for
Disability Finian McGrath said radical
reform of the current system of judicial
was a key demand of the Independent
Alliance during the government
negotiations and it is part of the
Programme for Government.
He said the bill is very progressive, radical
and fresh and cannot understand why
members of the opposition are not
supporting it.
Earlier, Fine Gael Alan Farrell criticised
Minister Ross for pushing through the bill.
He said: "It is very clear to me there are
priorities in the Department of Justice, but
I do not believe this bill is one of them",
adding that he does not believe the bill
should be rushed, guillotined or passed
without a great deal of amendment.

Mr Farrell said it would be appropriate that

the Chief Justice be chair of the judicial
appointments commission.
The Fine Gael backbencher says there
needs to be a greater debate and
discussion about the bill.
There have been no instances where
integrity, independence or calibre of
judges has been called into question, he
said, adding that "the narrative in terms of
criticising the judiciary is an extremely
populist one".
He said that he believes the bill will create
ideological difficulties which he shares
with members opposite him in the Dil.
Fianna Fil TD Margaret Murphy O'Mahony
earlier said it is very disappointing that
one TD can hold the Government over a
barrel when there are other priorities.
However, Sinn Fin TD Peadar Toibn said
"the champions of the status quo are those
who are on the inside themselves".
He said that you would swear from some
commentary that the expertise of the
judiciary has been deleted from this
process, when that is not the case.
Mr Ross opened today's debate on the bill
by talking about the difficulties of getting
a simple reform through the Oireachtas
and away from the "bastions of official
He said the Government is committed to
getting the bill through the House.
He added that the bill was a compromise,
saying "this is a Government bill and it is
not radical enough".
He disputed comments from the Fianna
Fil leader Michel Martin that he has "a
vendetta against the legal profession".
He said that his family is steeped in a legal
tradition and he has no grudge or axe to
grind with these people.
Stark warning of judge choice disasters as
ministers clash over reform bill
Wednesday, June 28, 2017
Elaine Loughlin, Juno McEnroe, and Daniel McConnell
Many unsuitable people will be appointed judges if the
Government pushes through controversial legislation, the
Dil has heard.

The stark warning comes as the Government is set to defy

judges and press ahead with the Judicial Appointments
Bill, which minsters clashed over at Cabinet yesterday.
Independent ministers Shane Ross and Finian McGrath are
said to have taken issue with Justice Minister Charlie
Flanagan over his explicit criticisms of their reform-based
The two Independent TDs made their unhappiness known
at Mr Flanagans comments in recent days, where he
criticised populist politicians for putting judges in the
It is understood that Mr Ross led the charge, with Mr
McGrath backing him up, demanding that Fine Gael stick
to a deal agreed more than a year ago.
Last week, the Irish Examiner revealed how, following a
heated row with Mr Varadkar, Mr Ross had to be talked off
the ledge by Foreign Affairs Minister Simon Coveney.
In the Dil, Mr Varadkar said no threat to leave
government was made to him and he restated his denial
that he attempted to put pressure on President Michael D
Higgins to fast-track the appointment of Mire Whelan to
the Court of Appeal.
During a debate on the bill, which began last night and will
continue today and tomorrow, Fianna Fil justice
spokesman Jim OCallaghan claimed the bill, which will see
a lay chair and lay majority on the commission tasked with
appointing judges, is a bad piece of legislation.
He said the bill is being promoted by one or two
members of Government who really dont know what they
are talking about.
Mr OCallaghan argued that having a board dominated by
lay people who make paper-based decisions does not
bring the same insight, knowledge, and experience as
I know many people who on paper would look like they
would make excellent judges but if appointed they would
be a disaster, he said.
Under fire in the Dil, the Taoiseach defended the
legislation, claiming it follows best international practice.
Fianna Fil leader Michel Martin said there is no
compelling rationale for the changes, which he said were
being rammed though.
He also claimed that, deep down, we know that the vast
majority of Fine Gael Deputies do not agree with this bill.
However, Mr Varadkar said the rationale behind the bill is
We want these appointments to be less political in the
future, we want them to be more transparent, and we do
not want any profession to be self-regulating or self-
appointing, he said.
Citing England and Scotland, he said having a lay
chairperson is not unusual and is the modern way of
making appointments.
He added that this was now the case in both the private
and public sector and that no profession should be self-
regulating or self-appointing.
When hospital consultants, for example brain surgeons,
cardiac surgeons and geriatricians, are selected in HSE
hospitals the chairman of the interview board comes from
the Public Appointments Service and is not a doctor, said
Mr Varadkar.
Earlier, more judicial figures added their voices to
concerns about the proposed reforms.
Former Supreme Court judge Catherine McGuinness
claimed the move for a non-legal person to chair the new
appointments commission was a kick in the teeth for
Chief Justice Susan Denham. However, if the chief justice
was to chair the new commission, as opposed to a non-
legal expert, this could go a log way to addressing
concerns of the judiciary, Ms McGuinness told RT.
Former president of the High Court Nicholas Kearns
compared the proposed bill to a group of judges selecting
an Irish football team.
An unprecedented intervention by the countrys top
judges, led by Justice Denham, this week saw a joint
warning by letter to Mr Varadkar that the new system
would have serious implications for the administration of
News: 4
Gerard Howlin: 10
Chief Justice is an insider
so cant be chair Ross
Ross says appointments bill is not
radical enough for him

Shane Ross.
Kevin Doyle and Cormac McQuinn
June 29 2017
Transport Minister Shane Ross has doubled down on the
insistence the Chief Justice cannot chair the new
appointments commission for judges, describing the office
holder as an "insider".
The minister, who has championed the controversial
Judicial Appointments Bill, said it has received pushback
from "predictable quarters" but at a larger volume than he
Among those opposing the move to create a new
appointments commission, with a lay chairperson and a
lay majority, are the country's top judges and Fianna Fil.
But Mr Ross said the bill was not actually as radical as he
had hoped.
"After 30 or 35 years in this House and the other House, I
am beginning to learn that the difficulties of getting mild
reform through the Houses and away from the bastions of
Official Ireland is a much harder project than I had
anticipated," he said, adding: "This is not radical enough
for me."
A key complaint from those opposing the changes is that
the Chief Justice will not chair the new commission.
Former Supreme Court judge and president of the Law
Reform Commission Catherine McGuinness said this was
a "kick in the teeth" for the judiciary.
Among those opposing the move to create a new
appointments commission, with a lay chairperson and
a lay majority, are the countrys top judges and
Fianna Fil. Photo: Laura Hutton/
But Mr Ross told the Dil: "The Chief Justice will not be in
the chair for a very good reason. The chair is the most
powerful position and it should not be an insider who is in
the chair, in any position of this sort, in any walk of life.
"It is an institutional decision and not a personal one
about anyone. It is to give the lay majority independence
and a stamp of credibility and authority to judges when
they are appointed. We should not be frightened of this."
However, in the first public sign of disquiet among Fine
Gael TDs over the legislation, Dublin-Fingal TD Alan
Farrell admitted he is not convinced a lay person should
chair the commission as this could damage the authority
of the Chief Justice in the public mindset.
"I have concerns regarding the chair of the commission in
that the Chief Justice would not be chair. My main issue in
that regard is that the Supreme Court is the highest in the
land and has the final say in terms of the interpretation of
the law in line with the provisions of our Constitution.

Concerns: Alan Farrell. Photo: Tom Burke

"I believe we cannot, and should not, implement any
legislation that may detract from the importance of the
Supreme Court, which is a branch of our democracy, in
undermining that role in any practical way or in terms of
public perception," he said.
Mr Farrell suggested the bill should not be rushed through
before the Dil's summer recess, as planned by Taoiseach
Leo Varadkar.
"I believe there are very few bills that warrant being
pushed through at such a pace. This bill should not be
rushed, nor should it be guillotined or passed without a
great deal of amendment," he said.
The new legislation's passage through the Oireachtas now
looks unlikely to be completed before the Dil rises in mid-
July after the Joint Committee on Justice and Equality
refused to give it priority status.
Comment: There's no justice in Ross shunning the
experts in favour of his vapid populism
Fianna Fil member of the committee Jack Chambers said
a decision was taken "not to allow the Government to
railroad it through the House".
Meanwhile, Justice Minister Charlie Flanagan has
confirmed that just one judge has been appointed without
being recommended by the existing Judicial
Appointments Advisory Board (JAAB) during the time he
has served in government.
However, he refused to say if it was former attorney
general Mire Whelan, citing "Cabinet confidentiality".
Fianna Fil member of the committee Jack Chambers said a decision was
taken "not to allow the Government to railroad it through the House".
Meanwhile, Justice Minister Charlie Flanagan has confirmed that just one
judge has been appointed without being recommended by the existing
Judicial Appointments Advisory Board (JAAB) during the time he has
served in government.
However, he refused to say if it was former attorney general Mire Whelan,
citing "Cabinet confidentiality".

Kings Inns monopoly on

training barristers should be
Boyd Barrett claims situation ensures well-
vetted elite decides who joins legal system
People Before Profit TD Richard Boyd Barrett said third-level
institutions such as UCD, NUI Galway and Trinity College and
others should be allowed to train barristers. FIle photograph:
Dara Mac Dnaill/The Irish Times

Marie O'Halloran
Updated: Tue, Jun 27, 2017, 22:12

The monopoly of the Kings Inns society should be ended

and all universities should be permitted to train barristers,
the Dil has heard.
People Before Profit TD Richard Boyd Barrett said there
was no proper statutory basis for the operation of the
Kings Inns, which ensures that a very small, well-vetted
elite decide who gets to be a barrister and controls the
legal system and who is kept out.
He said third-level institutions such as UCD, NUI Galway
and Trinity College and others should be allowed to train
The Dn Laoghaire TD also said the idea that we should
not criticise judges has to end. They should be allowed to
criticise us politicians. Ive no problem with that.
But Green Party leader Eamon Ryan believed the Judicial
Appointment Commission Bill could have the effect of
viewing judges as the enemies of the people, which
Minister for Justice Charlie Flanagan vehemently rejected.
Mr Ryan said he heard Taoiseach Leo Varadkar cite the
British legal systems method of selection as an example of
why the appointments system should be changed and he
was slightly concerned that an Irish parliament is looking
to Britain as an example for its legal system.
The Dublin Bay South TD said no argument had been
made as to why it had to be a lay chair rather than the
Chief Justice.
The TDs were speaking during the first of three days of
debate on the controversial Bill which reforms how
members of the judiciary are appointed.
The Bill replaces the existing board that appoint judiciary
with a commission of 13 representatives with a lay
majority and a lay chairperson. The commissionwill
recommend three nominees for any position rather than
the current seven.
Purely political
Solidarity TD Mick Barry said that judges themselves had
described the system of appointments to the judiciary as

He said High Court judge Mr Justice Peter Kelly described

the appointment of judges to the Supreme Court as
purely political and he said Judge Michael Pattwell had
described his own appointment as political.
Mr Barry said it cost 12,560 to do a years study at Kings
Inns and there are very few ordinary people who can
come within an asss roar of that.
He pointed out that the average salary of an Irish judge
was three times the European average so how can they
not have an elite outlook?.
He mentioned 79 unemployment blackspots in the State
and asked how many children from those areas would
have the opportunity in life to go on to serve on the
Independents4Change TD Mick Wallace said the
controversy over the appointment of former attorney
general Mire Whelan to the Court of Appeal showed that
the real problem of patronage was within the Cabinet
rather than in the commission.
He said most cases were heard in the District and Circuit
Courts and he believed the Presidents of District and the
Circuit Courts should be added to the commission, which
might give judges a majority but would be a compromise
for having a lay chairman.
Independents4Change TD Clare Daly described the Bill as
much ado about nothing and the worst example of a
political soap opera carried out at the expense the
common good.
She said there was already a judicial appointments Bill in
place which had gone through to the second stage, from
Fianna Fil justice spokesman Jim OCallaghan.
Independent TD Michael Healy-Rae opposed the Bill and
described it as using a sledgehammer to crack a nut. He
added that there were only 10 or 12 judicial appointments
a year and I think there are far more pressing issues that
need to be dealt with.

Social Democrats TD Catherine Murphy said the Bill was

being portrayed as if having a lay majority and chairperson
was a silver bullet that will magically reform our judicial
However, while she did not believe the legislation was
perfect it is a move designed to bring the judicial system
out into the light and make it more diverse, but it
required significant amendment.
Ms Murphy said the impression was being given that the
lay members of the commission are randomers who will
just be picked off the street and that section of the
legislation had to be amended.
Independent TD Mattie McGrath praised Minister for
Transport Shane Ross, who proposed the Bill, and said he
vigorously supported reform of how judges are appointed.
He said he had to declare an interest because he had been
before the courts and I didnt find that experience very

The Honorable Society of King's Inns (HSKI) is the

institution which controls the entry of barristers-at-law into
the justice system of Ireland. The full title retains the
historical spelling variant "honorable" in preference to the
contemporary Hiberno-English spelling of "honourable"
Motto - "Nolumus Mutari"
"We shall not be changed"

Judges told by Taoiseach to respect political powers

Taoiseach Leo Varadkar has warned two of Irelands most
senior judges that they must respect the independence of
Government to perform its duties, insisting separation of
powers between the groups works both ways.
Monday, June 26, 2017

Mr Varadkar hit back at the judiciary after Chief Justice

Susan Denham and High Court President Peter Kelly
became embroiled in a damaging row with Transport
Minister Shane Ross over Government plans to reform
judge appointments.
In a speech to the Dublin Solicitors Bar Association on
Friday night, Mr Justice Peter Kelly took aim at Mr Rosss
Judicial Appointments Bill, which is expected to be passed
by the Dil this week, describing it as ill-conceived and
ill- advised.
The rare comment by a senior judge on political issues
followed that of Chief Justice Denham, who last week said
the separation of powers inevitably means the judiciary
is a system of checks and balances... of other branches of
The remarks have been seen as a clear attack on the
imminent bill, which seeks to ensure that judicial
appointments are in future made by an independent lay-
majority body.
While the comments were backed by Fianna Fil justice
spokesman Jim OCallaghan, who said last night he will
repeal the bill if in office, Mr Varadkar warned that judges
must respect the independence of Government and
insisted the separation of powers works both ways.
Asked about Mr Justice Peter Kellys ill-conceived and
ill-advised comments, while attending an Eid celebration
at the Islamic Cultural Centre in Clonskeagh, Dublin, Mr
Varadkar said: Im very conscious of the separation of
powers that exist between the Oireachtas and the
judiciary, and Im very minded of the Chief Justices
comments on that very matter only last week.
That really has to apply in both directions. Both judges
and politicians need to respect the separation of powers
and ensure there is a decent distance between the
judiciary and the Oireachtas.
The Government is fully behind it [the new bill]; its going
to be in the Dil next week and we hope to have it
enacted before the summer.
That will bring about a major reform of the way judges
are appointed, making it much more transparent and also
ensuring all applications go through the new appointments
board, which hasnt always been the case.
Mr Varadkars decision to openly criticise comments made
by two of Irelands most senior judges, while not
unexpected, is likely to cause fresh friction in the
immediate aftermath of Mire Whelans Court of Appeal
His confirmation that Government will push ahead with
plans to put the Judicial Appointments Reform Bill to a Dil
vote later this week is also likely to further antagonise
Fianna Fil, which staunchly opposes the move.
On RT Radios This Week programme, Mr OCallaghan
said if his party get a majority after the next election he
will repeal the legislation.
Describing the new bill as deeply flawed, he said: This
Government needs to listen to other individuals and it
needs to listen to well-informed individuals.
Meanwhile, Fianna Fil finance spokesman Michael
McGrath warned Fine Gael is inevitably risking a general
election if it makes another error like the Whelan
appointment fiasco.
While Mr Varadkar yesterday denied relations between the
parties have become putrid, Mr McGrath said on RTs
The Week in Politics that Fine Gael cant afford for any
more examples like this to emerge and that the trust is
definitely damaged.
Within Cabinet, Transport Minister Mr Ross confirmed he
threatened to resign and bring down the Government over
the controversy, as first revealed last week in the Irish

Leo Varadkar
urges judges not
to block his
Catherine Sanz, Niamh Lyons
June 26 2017, 12:01am,
The Times

Mr Justice Peter Kelly said that reforms were progressing

with undue haste

Leo Varadkar has sent a warning shot to

the judiciary by urging judges not to
interfere in the legislative work of the
The taoiseach made the remarks after Mr
Justice Peter Kelly, president of the High
Court, suggested over the weekend that
the government was moving with undue
haste in its attempts to transform
appointments to the bench.
It is the second row in relation to the
judiciary in Mr Varadkars first fortnight
as taoiseach.
Shane Ross, the Independent Alliance
minister, has backed legislation that
would reform the judicial appointments
system. The taoiseach has assured him
that the bill, which will establish a new
appointments board with a lay majority
and lay chairman, will be passed before
the Dil recess next month.
Speaking at
Judge rules debtor being
pursued by bank should get
full hearing
Ruling may make it more complicated for banks to get
summary judgment orders
June 29, 17
Colm Keena

Ms Justice na N Raifeartaigh

The High Court has made a ruling which may make it

more complicated for banks to get summary judgment
orders against people who owe them money, including
home owners.
In a case where AIB was seeking summary judgment
against Marino Motor Works Ltd, the holding company
of Barrys of Bantry, a car dealership and repair business
in Co Cork, Ms Justice na N Raifeartaigh has ruled in
favour of the defendant and said the matter should go to
a full hearing.
This was because the court found that neither it nor the
defendant were in a position to check the claims of the
bank in relation to the accumulated interest, which the
court heard constituted a significant proportion of the
total debt being sought.
The bank was seeking summary judgment of 728,388
arising from loans issued in 2002 and 2008 to Marino
Motors and to Mairead and Sean Barry.
The court heard the Master of the High Court had
instructed the defendants accountant, Brian Weakliam,
to conduct a review of the accumulated interest, but the
bank said it did not have to give the information being
sought by the accountant.
Mr Weakliam, a former accountant with AIB, said it was
unusual that interest on two accounts was accumulating
in one account and that this made it difficult and
complex to check the interest charges involved. The
procedure was specifically provided for in the terms for
the loans, the judge noted.
Ms Justice N Raifeartaigh, in an unreported ruling on
Tuesday, said it was with some reservation that she was
deciding the case was not suitable for summary
It was not because there was an error in the interest
calculation, but because neither the court nor the
defendant were in a position, with the information
available, to check.
Doomed to failure
She also accepted a second argument that there were
grounds for a counter-claim by the defendant that the
actions of the bank had contributed to the financial
difficulties of the business, which culminated in it losing
the Opel dealership, which in turn contributed the
difficulties in meeting loan obligations.
She said she did not underestimate the difficulties of
any defendant bringing such a claim home successfully.
However she was not in a position to conclude that the
defendants case was doomed to failure.
Gary Fitzgerald BL, who represented Marino Motors,
said the ruling would mean that in future banks would
have to give more information as to how they arrived at
their interest calculation.
This could allow for more challenges to how those
calculations had been conducted, something that could
be availed of by commerical and retail banking
customers against whom banks wanted to have orders
issued on a summary basis.
Good morning folks.
Here is some wonderful news from the courts.
It is not a 'one size fits all!'
No case is!
However, it is an excellent achievement for the Irish
Barrister Gary Fitzgerald,... (But more on that later)
The substance of the article implies that this ruling may
make it a lot more difficult for banks to 'fast track' people
through the courts in the future.
Dont be afraid of the legal language, because in time, you
will learn to understand it.....
So WHY would you hand your home over so easily?!!!
Watch this space!!
"Gary Fitzgerald BL, who represented Marino Motors, said
the ruling would mean that in future banks would have to
give more information as to how they arrived at their
interest calculation.
This could allow for more challenges to how those
calculations had been conducted, something that could be
availed of by commercial and retail banking customers
against whom banks wanted to have orders issued on a
summary basis."

Shane Rosss quixotic

crusade on judicial jobs Bill
nears its end
Minister for Transport has expended much of his political
capital on a niche issue
Wed, Jun 28, 2017, 05:30

Pat Leahy
Minister for Transport Shane Ross has thundered against
cronyism everywhere in Irish life, but sees it as an especially
pervasive influence in the appointment of judges. Photograph:
The determination of the Minister for Transport to
change the way judges are appointed is one of the most
consistent policy themes of the current Government.
Many people inside and outside Government wonder at
the wisdom of Shane Rosss crusade, but few can doubt
his determination and persistence.
He has forced it on to the Governments agenda,
demanding its inclusion in the programme for
government and maintaining constant pressure to
ensure the Bills delivery, despite the opposition of the
Department of Justice, the judiciary and significant
elements of Fine Gael.
This is how coalition governments work: the smaller
partner picks a few issues and demands their delivery.
Rosss choice may be quixotic, but it is definite.
The Bill began its legislative journey in the Dil on
Tuesday night, and debate continues on Wednesday. It is
due to be debated again on Thursday, and the Cabinet on
Tuesday reaffirmed its intention to have the Bill signed
into law before the summer recess in later July.
This is a highly accelerated timetable than what would
be normal especially for sensitive legislation against
which there is a lot of opposition and it should be
remembered that the Government does not command a
majority in either the Dil or the Seanad. Passing the Bill
is not, actually, within the Governments power: it
depends on Opposition support. But Ross insists he has
a commitment that the Government will do everything in
its power to pass the Bill, including extending the Dil
term by a week if necessary. It is clearly an immediate
priority for the coalition.
Niche issue
But why? Why has Ross made what is at best a niche
issue into such a priority, expending so much of his
political capital on it?
Of all the pressing problems faced by Ireland, few people
would have identified the appointment of judges as
being among them.

Michael McDowell has suggested that Rosss crusade

stems from an unsatisfactory court case against him in
the 1990s. Rosss office declined to comment, but it
seems a thin explanation. Ross himself places his
determination to change the way judges are appointed to
his crusade against cronyism an issue that has been
one of the touchstones of his political life, and before
that his career as a campaigning journalist.
His detractors fairly point out that he has a record
himself of appointing close associates to jobs, and his
championing of Stepaside Garda station was a classic
example of parish-pump politics.
Ross has thundered against cronyism everywhere in
Irish life, but sees it as an especially pervasive influence
in the appointment of judges. At the weekend, in
comments that reflect his statements on the issue since
his entry to Government, he said all judges are currently
politically appointed and insisted the forthcoming Bill
would finally end this rotten system.
But very few people in Government, and nobody in the
legal profession, actually believes it is a rotten system
stuffed with political placemen; actually, as Ruadhn
Mac Cormaics book on the Supreme Court has recorded,
the courts have been used as an instrument of social
change in Ireland.
Besides, even under the new legislation, judges will
continue to be appointed by politicians because the
Constitution places responsibility for the nomination of
judges (they are formally appointed by the President) in
the hands of the cabinet. The act cannot change that.
While the history of appointments to the bench of the
district and circuit courts certainly demonstrate that the
political allegiance of lawyers may well be an advantage,
that is a harder case to prove (with the exception of a
small number of appointments) in the case of the High
Court and the Supreme Court. Judicial and legal sources
say that a much more pressing problem for the
administration of justice at present is the difficulty in
getting the best lawyers to offer themselves for judicial
Proponents of the reforms suggest that they would say
that, wouldnt they.
But it is clear from recent senior judicial appointments
that it is no longer the practice as it was in the recent
past for many of the very top lawyers to go on the
bench for the last phase of their careers.
Constant hostility
There are several reasons for this, including financial
ones. But the constant hostility from Government is
universally cited by both judges and lawyers as a reason
for the difficulties in recruitment and people at the
highest level of the judiciary are deeply worried about it.
As Jennifer Carroll MacNeill has pointed out, Irelands
judiciary is internationally very highly regarded for its
independence from the political system. Of all the
problems in the legal system chronic inefficiency, the
astronomical cost of legal proceedings and the
consequent in accessibility to legal remedies for many
people the manner of the appointment of judges rates
pretty far down most peoples list.
But most people are not in the Cabinet.
Update on Judicial Appointments
Posted on June 27, 2017 by admin
Dr Laura Cahillane
Given that today the Dil will begin its consideration of the
now controversial Judicial Appointments Commission Bill
and given the amounted of heated discussion on topics
such as the lay element of the commission, I will attempt
to provide some clarity on the proposals here.
Yesterday, the Association of Judges of Ireland issued a
statement in which they criticised the proposal to include
a lay majority on the new commission, and to include a lay
chair thereby depriving the Chief Justice of this position.
The judges are also unhappy that the Presidents of the
Circuit and District Courts are to be left out of the new
body. The statement alleged that the proposals do not
accord with international standards however this is not
entirely accurate. Three jurisdictions which are common
comparators with Ireland all have reformed their
processes for appointing judges in recent times and all
have either an increased, equal or a majority of lay
representation on their appointments body and all have a
lay chair. In Ontario, the Canadian jurisdiction which is
often pointed to as a suitable model, out of the 13
members of its Commission, there are 7 lay members
including the chair, 3 judges and 3 lawyers. So, a lay
majority and a lay chair. In England and Wales there 15
Commissioners: 6 lay including the chair, 6 judicial, 2
lawyers and 1 non-legally qualified judicial member. While
the lay representation is smaller here, it is still significant
and the chair is a layperson. Scotland provides for equal
lay and legal representation with 6 of the 12 members to
be lay persons, including the chair. So we can see that a lay
chair is a common trend along with a significant lay
representation on the body.

The judges and the Bar Council have also stated that no
explanation for this reform has been provided. So why is
increased lay participation on a judicial appointments
body considered a good thing? Primarily, it is a device
used to increase diversity on the bench and to ensure
public confidence in the fairness of the system. Studies
internationally have shown that when judges dominate
such bodies, the new appointments are almost always self-
replicating and it is very difficult for women or minority
candidates to be appointed. (In fact the current process in
Ireland has been described by an insider as being akin to
an exclusive golf club admissions process.) Increasing the
lay representation on such bodies generally leads to more
openness of views and increased participation in the
appointments process.
Baroness Prashar, who is a crossbench member of the
House of Lords and was the first chair of the Judicial
Appointments Commission in England, has made the
following comment on lay membership of the
You do not just have a lay member on the panel to
increase transparency and to satisfy public perception:
they all bring something Once you were on the
Commission, there was very little distinction between the
judicial and the lay members. The Commission was a
very robust body, and it worked extremely well. Lay
members add real value, and what I valued most was their
independence of mind.
Of course it is essential that the judiciary has a role in the
appointments process and that the Chief Justice and
Presidents of the Courts are involved in selecting
candidates. Judges understand the qualities necessary
for particular positions and are able to provide an
informed assessment of an individuals experience, skills
and abilities. However, judges will naturally, and through
no conscious process, prefer individuals who are similar to
themselves and it is argued that having greater lay
involvement in the selection process is the most
appropriate way of avoiding the problem of self-
replication within the judiciary.
Of course, this also raises the question as to why diversity
is desirable in the Judiciary. This was something which, in
their submission to the Department of Justice on reform
of judicial appointments, the judges felt was a non-issue.
Also Senator Michael McDowell SC, who has been one of
the main critics of the new Bill, recently commented
publicly that he doesnt understand this desire for
diversity when we already have excellence in the
judiciary. However, this misses the point and it is
surprising that the argument for diversity even has to be
made today. While, there is not sufficient room in this blog
to explore the reasons for the need for diversity on the
bench, I would point the esteemed Senator to the excellent
research which has been carried out by academics such as
Erika Rackley, Clare McGlynn and the writings of Lady
Hale all of which
demonstrate that diversity is not about expecting different
decisions than those that are given now but about
providing equality of opportunity, democratic legitimacy,
which feeds into public confidence that judges are
representative of the community as a whole and can
understand a vast array of issues, and also about providing
diversity of opinion and divergent views. Furthermore, as
these academics have demonstrated, diversity is
compatible with the concept of merit.
Another claim which has been repeated on the airwaves in
recent days is that the inclusion of lay persons on the body
will mean that ordinary Joe Soaps will have control over
appointing judges. However, this is wild exaggeration and
it is up to the Oireachtas to decide on the criteria for the
appointment of such lay persons. In other jurisdictions,
these are usually people who have held high office,
successful business people, people who have had
experience in appointing others to high office, academics,
and generally people who are very well regarded. It is
envisaged in the proposed legislation that the lay persons
would have experience of the administration of justice and
it is possible to build in further requirements here.
Ultimately, the Oireachtas has the power to determine the
qualifications necessary for appointment to the board and
can easily assuage any fears here.
The other concern of the judges, on the exclusion of the
Presidents of the District and Circuit Courts, is perhaps
something which should be remedied in the proposed
legislation. It is in these courts where the vast majority of
appointments are made and so it makes sense that these
figures would wish to be involved. Although the Bill does
make provision for the Presidents to be consulted. From
what I understand, the reason they were excluded in the
first place was to maintain the balance of lay and legal
persons but surely it would make much more sense to
exclude the Attorney General, who would be involved in
the appointments process at Cabinet level in any case and
therefore would seem unnecessary to be included here
also. (Incidentally none of the jurisdictions mentioned
above include the Attorney General in their bodies).

It is clear that the judiciary is very exercised on this issue

as it is very unusual for them to speak out in such a
fashion and given that this is reform which is truly
necessary, perhaps some compromise is now needed in
order for the measure to pass. If the Government was
willing to sacrifice the lay majority and settle for equal
representation of lay and legal persons by including the
Presidents of both lower courts and excluding the Attorney
General, I wonder would this go some way towards
breaking the impasse?
Latest Controversy Demonstrates
need for Transparent Judicial
Appointments System
Posted on June 15, 2017 by admin
Dr Laura Cahillane
On Tuesday, as one of the final acts of Enda Kennys
Cabinet, the Attorney General was nominated to fill a
vacancy on the Court of Appeal. This, of itself, is not
overtly controversial (although note the Whelehan affair in
1994). However there are factors regarding this
appointment which should raise some eyebrows. First,
while Mire Whelan

seems to be well-regarded in legal circles, from a political

perspective, there has been much criticism of her actions
as Attorney General, the most serious of which centred
around her behaviour on the events which led to the
Report of the Fennelly Commission. What is most
worrying about this appointment however, is the lack of
transparency surrounding it.
The Judicial Appointments Advisory Board, which has the
responsibility of advertising for vacancies and
recommending candidates to the Government, apparently
reported that it could not recommend a single name for
the vacancy. This is highly surprising. Although as Ken
Murphy, director general of the Law Society, has pointed
out, appointment to judicial office does not have the same
allure as in years gone by and perhaps due to the reduction
in salary, the nonsensical pension requirements and the
general reduction in prestige, many eminent lawyers may
simply have decided they are better off where they are.
However, the most worrying aspect of this whole affair is
the story reported by Conor Gallagher in the Irish Times,
that at least three High Court judges had applied for the
In order to understand why this is problematic it is
necessary to understand how the judicial appointments
system works. The workings of the JAAB are outlined in a
previous post here and the origins of the body are set out
here. One issue which has always been conspicuous is the
lack of any input from the JAAB when the vacancy is the
presidency of a Court or if the vacancy is filled by the
promotion of a lower judge by the Government.
Presumably this is part of the unreasonable fear which has
manifested itself in numerous different ways that the
JAAB will somehow trespass on judicial independence or
even on the Governments constitutional power of
appointment. Instead, the Government makes this
appointment, with the advice of the Attorney General. In
fact, according to a report by the Judiciary, in October
2013, the Chief Justice wrote to all members of the
Judiciary regarding elevation to higher courts and senior
judicial appointments. She advised judges that if any
serving judge wished to express an interest in another
judicial position such as elevation to a higher Court, or
appointment as President of a Court when a vacancy
arises, then expressions of interest should be made in
writing by way of letter to the Attorney General. Herein
lies the major problem. The person to whom judges are to
apply for an appointment, has herself been appointed and
we have been given no information on how this whole
process operated. This is very worrying.

While it may be the case that Mire Whelan was the most
suitable candidate for the position, a process such as this
where everything is shrouded in secrecy serves only to
damage public confidence in whole system. In 1994, the
controversy surrounding the appointment of the Attorney
General to the position of the President of the High Court
brought down the Government, and while the current
situation is unlikely to cause such repercussions, it does
raise some serious questions about favouritism and
cronyism in the appointments process and it underlines
the need for action on judicial appointments reform.
The Judicial Appointments Commission Bill, which has
been a pet project of the Minister for Transport Shane
Ross, was finally published two weeks ago. It is difficult to
know whether the recent Cabinet reshuffle and change in
the Ministry for Justice will have any effect on the
progress of this Bill. The Bill itself is quite detailed and
while there may be further details yet to be worked out as
it makes its way through the Houses of the Oireachtas, it is
a massive improvement on the system which currently
exists and is generally to be welcomed. The main features
of the Bill include a new Judicial Appointments
Commission of 13 members, of whom 7 will be laypersons,
including the chairperson. Following a selection procedure
(which is not specified but the Bill states that the
Committee may do such other things as it considers
necessary in relation to selecting persons), the JAC will
recommend 3 persons to the Minister for any judicial
vacancy. Much of the rest of the Bill is concerned with the
formation of the JAC itself and the establishment of an
office etc and in general, the procedures are left to be
decided by the JAC once it is established. It is
disappointing that the Bill did not go further in specifying
selection processes such as interviews or role plays, as
happens in England and Wales for judicial appointments.
Also, while certain changes are made to the eligibility
requirements such as the addition of legal academics with
4 years practice experience, the opportunity is not taken to
amend the vague eligbility criteria already in existence to
the effect that a candidate must be suitable on grounds of
character and temperament. However, it is a positive sign
that section 7 recognises the compatibility of merit with
diversity in judicial appointments.
One significant point which is relevant to the current
controversy is the issue of the status of the
recommendation made by the JAC to the Government.
Section 48 of the proposed Bill states that In advising the
President in relation to the appointment of a person to a
judicial office the Government shall firstly consider for
appointment those persons whose names have been
recommended to the Minister. It does not state what
would happen should the Government refuse to nominate
one of the recommended names but Section 50 does
provide that the appointment to judicial office will be
published in Iris Oifigiil and the notice must include a
statement that the name of the person was a
recommended name (if that has been the case). Section 51
also requires the Minister to lay before the Oireachtas at
the end of each year, a statement containing details on the
appointments made in that year including their experience
and whether or not they were recommended by the JAC.
In other jurisdictions, there is a requirement that if the
Government refuses to accept the recommendation of a
nominating body that it must publish stated reasons for
doing so. It appears that these sections are a light version
of this requirement but it certainly adds to the
transparency of the system and makes it more awkward
for the Government to depart from the recommendations.
However, the bottom line is that under the current system,
and even under the system

which would be created by the proposed Bill, the

Government retains discretion to appoint a candidate of
its choice since that role is given to it by the Constitution
and an amendment would be needed in order to reduce
the influence of the Government in the judicial
appointments process. However, while it would be difficult
to challenge the current appointment in law, serious
questions need to be answered, particularly regarding the
High Court Judges who may have applied for the position
and the circumstances regarding Mire Whelans
involvement in the whole affair.

Senior judges
express concern
over appointments
Updated / Monday, 26 Jun 2017

The Judicial Appointments Commission Bill goes

before the Oireachtas shortly
Chief Justice Susan Denham and the
presidents of the Court of Appeal, the High
Court, the Circuit Court and the District
Court have written to Taoiseach Leo
Varadkar to express their concern on
proposed judicial appointments legislation.
The Chief Justice said they had written the
letter in view of the "serious implications
for the administration of justice".
Earlier, the body representing the majority
of judges in Ireland described the
measures contained in the Judicial
Appointments Commission Bill as
"seriously flawed".
The Association of Judges in Ireland,
which represents the majority of judges in
the Supreme Court, the Court of Appeal,
the High Court, the Circuit Court and the
District Court, took the unusual step of
issuing a press release on its website this
It said it was reluctant to comment
publicly on issues of controversy but had
decided to do so on this occasion because
of the depth of its concerns.
In the statement, it said the judiciary was
not opposed to the introduction of changes
in the system of appointing judges.
But it said the proposals that would shortly
go before the Oireachtas are seriously
The statement said the proposals did not
accord with international standards and
would not depoliticise the system of
judicial appointments.

The association said the rationale for a lay

majority and a lay chairman had not been
It said it was hard to imagine any other
walk of life in which the majority of those
involved in an appointment process would
come from outside those serving in the
area to which the appointments are being
It also expressed concern that no member
of the District Court or Circuit Court was to
be a member of the commission, even
though those courts together deal with the
overwhelming majority of cases coming
before the courts.
The statement said the Office of the Chief
Justice was diminished by the requirement
that he or she would be precluded from
being chairperson of the commission.
It said the association was concerned the
proposals may damage the judiciary as an
institution. It also said a flawed
appointments system could discourage
suitable applicants from coming forward. It
said that would be damaging to the
judiciary and to the State as a whole.
The association said neither it nor its
officers would be commenting further.
This afternoon, Minister for
Transport Shane Ross told RT News he
fully understands the resistance to reform
from a strong legal lobby.
However, the Independent Alliance
minister said he looks forward to a group
of non-political independent citizens
working with judges to select people
suitable for such important positions.
Minister for Justice Charlie Flanagan, who
will steer the bill through the Oireachtas
also recently wrote to Fine Gael TDs
saying he was disappointed by some of
Minister Ross' comments about the
However, in a briefing document to his
party tonight, he stressed the bill was
significant and would modernise the
process of nominating judges.
Former minister and AG criticises bill

Meanwhile, former attorney general and

minister for justice Michael McDowell has
said the bill is ill-conceived and ill-advised.
Mr McDowell was echoing comments made
last week by the President of the High
Court, Justice Peter Kelly, about the
attempt to change the process for the
appointment of judges.
Speaking on RT's Today with Cormac
hEadhra, Mr McDowell said it is a "foolish
illusion" to consider that this kind of
advisory body is best composed of people
"whose primary identifying characteristic
is that they do not know how the court
systems work on a day-to-day basis".
He added the Constitution states it is the
responsibility of the government of the day
to choose who is appointed to the courts
and which judges are appointed to the
Court of Appeal and Supreme Court, and
this role cannot be removed.
Mr McDowell also accused Mr Ross of
driving this policy from a personal
conviction, based on an unfortunate
experience Mr Ross had in the courts.
He said Mr Ross' claims that judges are
appointed based on cronyism are
completely untrue.

Judge urges lawmakers to

witness procession of
misery in courts
If legislators could see this misery, they might enact the
necessary and uncontroversial legislation as a matter of
urgency, Mr Justice Peter Kelly said
Thu, Jun 22, 2017, 07:31
Mary Carolan

Legislators should witness the procession of misery in the

courts resulting from their continuing failure over years to
enact laws necessary to address the lifetime care needs of the
catastrophically injured, the president of the High Court Mr
Justice Peter Kelly said. Photograph: Aidan Crawley
Legislators should witness the procession of misery in
the courts resulting from their continuing failure over
years to enact laws necessary to address the lifetime care
needs of the catastrophically injured, the president of the
High Court has said.
If legislators could see this misery, they might enact the
necessary and uncontroversial legislation as a matter of
urgency, Mr Justice Peter Kelly said.
He made the comments after approving a further
interim payment of some 1m to meet care needs of a
severely disabled boy, bringing to some 5m the
payments received to date under a settlement of his case.
The boys mother earlier become upset when telling the
judge how exhausted and drained she is due both to
caring for her son and preparing, due to absence of the
necessary legislation, for successive court hearings over
costs of his care.
She is constantly worried whether there will be enough
money to meet her sons very great care needs as a
previous interim payment was not sufficient.
She hoped this almost 1m payment, which includes a
higher sum for his care over the next three years, would
be adequate to pay for sufficient carers and mean she
would not have to rely on what the judge described as
the kindness of unpaid others to help her.
Becoming upset, she said her sons life had been robbed,
but despite his severe disabilities he is a happy and
bright child and she was determined he would get the
care he required.
A lone parent, her own life has also been ruined but she
was not seeking sympathy and just wanted her son to be
She would love if the court process was over as all she
wanted was a happy, healthy child. Im a better
person for having him but am worried about money.
Mr Justice Kelly told her she would take no comfort
from the fact he had seen many other mothers in the
courts in a similar position.
He wished legislators could see the procession of
misery resulting fron their failure over almost seven
years to legislate and hoped, by the time this case
returned to court in 2020, the necessary laws would be
enacted. There is at least a Bill before the Oireachtas,
although counsel had identified some deficiencies in
that, he added.
He told the woman he appreciated the burden cast upon
her and thanked her on behalf of her son, who cannot
verbalise, for the exemplary way she is discharging that.
Because the boy is a ward of court, his case was brought
before the judge by his counsel Denis McCullough SC for
approval of the latest interim payment of 1m. The
settlement offer was some 42,000 less than was sought
but they were recommending it for approval, and were
particulary happy it provides a greater sum to address
care needs over the coming three years than previous
interim paymnents had provided for, counsel said.
Mr Justice Kelly approved the settlement but urged the
legislature to urgently end the misery of such plaintiffs
and their families. The failure to do so also means a huge
expenditure of costs and time, he added.
The child, who cannot be identified by court order, sued
over the circumstances of his birth at a regional hospital
in 2006. He has cerebral palsy seriously affecting his
mobility and requires 24-hour care. He sued the HSE
and a consultant obstetricia,n alleging negligence in the
circumstances of his birth. Liability was previously
admitted by both defendants.
Previously the court was told by his counsel that had the
boy been delivered earlier, he would have been spared
his injuries.
Insider' Whelan
appointment 'stinks
to high heaven' -
Updated / Tuesday, 20 Jun 2017

Whelan appointment discussed during Leaders'

There have been angry scenes in the
Dil over comments made by the Fianna
Fil Leader in relation to the appointment
of former attorney general Maire Whelan to
the Court of Appeal.
Michel Martin described it "an insider
appointment that stinks to high heaven"
and to "add insult to injury" the
Taoiseach decided in haste to instruct the
President to appoint Ms Whelan.
Cabinet to review procedures after Whelan
Taoiseach Leo Varadkar denied any such
instruction and said Ms Whelan is qualified
for the role she now holds.
Speaking during Leaders' Questions, he
also said there were other cases that bear
similarities such as Frank Clarke who was
appointed to the High Court without going
through Judicial Appointments Advisory
Mr Varadkar said Adrian Hardiman and
Donal O'Donnell were appointed barristers
directly to the Supreme Court but they did
not have the experience of being attorney
generals but were appointed directly to a
higher court than the court of appeal.
The Taoiseach also said John Murray was
appointed to the European Court of
Justice, moving from Attorney General, to
a higher position in the European Court of
He said he did not criticise those
appointments, but they had one thing in
common - that the Fianna Fil leader was
sitting at Cabinet all those appointments
were made.
There were angry scenes when Deputy
Martin said Ms Whelan was no Frank
Clarke or Adrian Hardiman.
"You strain credibility by putting her in the
same league as the individual you have
named", he said.
Fine Gael Minister Regina Doherty
described his comments as "outrageous",
but Mr Martin said suitability to office was
important and he was not going to take "a
cosy insider consensus from those who
want to ordain it as otherwise".


Mchel Lehane
Taoiseach clarifies that he did not know of
Marie Whelan's nomination until cabinet
meeting but knew the night before it was a
2:58 PM - 20 Jun 2017
3 3 Retweetslikes
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The Taoiseach admitted that the
controversy "is not the issue I would like to
have dominated my first week."
He also said the new Judicial
Appointments Bill would be brought to the
Dil next week.
Sinn Fin leader Gerry Adams said the
controversy overshadowed the Taoiseach's
appointment of his new super junior
ministers and there was no new politics on
He also criticised Fianna Fail for their
conduct during the judicial controversy
saying that they had "marched to the top of
the hill, their brass necks glistening in the
sun" but then simply rolled over.
The Dil Business Committee is to meet at
4pm amid mounting calls for Dil
statements on Ms Whelan's appointment.
The Taoiseach said any debate will be be
limited given the separation of powers
between the judiciary and Government.
However, Fianna Fil described Mr
Varadkar's approach as arrogant.
The party wants statements on
Ms Whelan's appointment to take place
tonight during its Private Members' time.
Cabinet to review
procedures after
Whelan controversy
Updated / Tuesday, 20 Jun 2017 20:43

Mire Whelan was appointed as a judge to the Court

of Appeal yesterday
The Cabinet today agreed to a review of
procedures following a discussion over the
controversial appointment of former
attorney general Mire Whelan as a judge
to the Court of Appeal last week.
Ms Whelan was appointed yesterday, amid
criticism over the process of her
nomination and calls from Fianna Fil for
her to stand aside.
The review will be carried out by Martin
Fraser, Secretary General at the
Department of the Taoiseach.
A Fianna Fil motion on the controversy in
the Dil this evening has been withdrawn
after they failed to agree to question time
during the motion, as opposed to
It is understood they will seek to have time
for the issue to be discussed tomorrow.
The Social Democrats this afternoon
accused Taoiseach Leo Varadkar of putting
unseemly pressure on the President to
appoint Ms Whelan.
The party believes the appointment
breached protocols around the separation
of the Office of President from the
Joint party leader Risn Shortall said
former minister for justice Frances
Fitzgerald still has questions to answer
about how the appointment was handled.
Yesterday, Mr Varadkar said that the
appointment was appropriate and lawful.

Most did not have full facts over

appointment - McGrath
Minister of State with Responsibility for
Disabilities Finian McGrath this morning
said "the vast majority of people did not
have the full facts" when the Cabinet
approved Ms Whelans appointment to the
Court of Appeal.
Speaking on his way into the Cabinet
meeting, he said the Independent Alliance
did make its views known on the issue but
he could not say more because of Cabinet
Mr McGrath said it was only the
Independent Alliance and Minister for
Transport Shane Ross who had been
pushing for reform on judicial
Minister for Communications Denis
Naughten said legislation on judicial
appointments must be prioritised as it is
important that there is a transparent
The independent minister said that he has
secured a commitment from the Taoiseach
that the practice of "underarm memos"
where issues are brought to Government
without being flagged first will not be
He said there were a number last week
and the previous week and he raised it
with the Taoiseach's office and with Mr
Minister for Health Simon Harris has said
that he is very satisfied with the process
which led to the appointment of Ms Whelan
to the Court of Appeal.
Speaking this morning, Mr Harris said that
after a week of talking about it, it is time
to move on and address the major issues
affecting the Government.
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.