A number of Government TDs have indicated that Minister for Justice Helen McEntee should answer questions in the Dáil on the appointment of former attorney general Séamus Woulfe to the Supreme Court.
Speaking privately, some coalition TDs indicated Ms McEntee should answer questions in the Dáil, if only to attempt to draw a line under the ongoing controversy. "I honestly think she should, she'd get over it," said a senior Fianna Fáil TD. "It would be easier if she just went in," the TD added. "Every time a judicial appointment comes up, she'll be asked that question."
The Government has resisted taking such a step, arguing that it risks endangering the separation of powers, and could potentially contaminate any impeachment proceedings that could still be brought through the Oireachtas.
However, the opposition and legal academics have criticised this view, arguing that the appointment of judges is a Government function for which it is accountable to the house. The Ceann Comhairle, Sean O Fearghail, has indicated that he would allow a debate to proceed if it focused narrowly on the process and didn't discuss the merits of appointing individuals.
A Fine Gael TD said: "It would just be more straightforward to answer a few questions on it and move it on. It seems that's where most colleagues believe it's at." Another Fianna Fáil TD said: "I think she should. Otherwise it will follow her around as an issue. She's well able to face the opposition."
The opposition has insisted that Ms McEntee should have told the three leaders that three judges had put their names forward. The same Fianna Fáil TD agreed this was an issue: “The only difficult question for her is why she didn’t tell the Taoiseach, Tánaiste, Minister Ryan and Attorney General that three serving judges had applied. Aside from that there’s no other issue. Government was entitled to nominate Woulfe irrespective of who else applied.”
Labour Party leader Alan Kelly has argued that under the cabinet handbook, Ms McEntee should have informed senior colleagues of the names of those who had applied, in advance of bringing a recommendation to cabinet. The cabinet handbook states that these parties "should be informed in advance of proposals to make [judicial appointments]".
‘Very clear process’
Several sources with knowledge of the process have indicated normal practice would be to indicate other interest in the role, beyond suggestions from the Judicial Appointments Advisory Body. On Monday, former Labour Party leader and Tánaiste Joan Burton said that when she was in office, she “would have expected to be briefed, to broadly have known and been aware of the names.
“I just find it odd the Minister for Justice and the Attorney General would not have taken both the Taoiseach and the Tánaiste of the day through any appointments.”
Another Fianna Fáil TD said “there should be no issue with her going into the Dáil to answer questions about it. Tell us how many applications there were, tell us the criteria you employ when taking a decision. I don’t see the issue.”
Ms McEntee has defended the appointment of Séamus Woulfe to the Supreme Court, saying she adhered to “a very clear process” before bringing his name to Cabinet earlier this month.
She said that when she was appointed as Minister, she looked at the recommendation that had been made by the Judicial Appointments Advisory Board – JAAB – which supported the former Attorney General's application for the role, as well as other expressions of interest.
Ms McEntee said that following these considerations, “I spoke with the Taoiseach, the Tánaiste, Minister Ryan and the [Attorney General]; on foot of that, a recommendation was made and a name was given to cabinet.”
A Green Party TD said that while they had concerns over the possibility of prejudicing other issues, “if the Ceann Comhairle believes it’s possible, then I thik the Minister should take it into consideration”.
Not all Government sources agreed that she should take questions. One Fine Gael TD said: “I don’t care how well you try to chair it, you’re going to cross lines.” Another Fine Gael source said: “There’s no issue around this – but there is troublemaking.”