Speech by Brendan Howlin TD on Statements on Appointments to the Court of Appeal

At the outset, I want to make one thing immensely clear.

I have known Ms. Justice Máire Whelan for many, many years. 

She is a person of integrity and passion, with a steely determination and an absolute commitment to leaving our nation a better place than she found it.

I knew her back when I was drafting the Civil Unions Bill in 2006.

Her immense experience in the area of family law was invaluable in helping us to draft the legislation that became the precursor for Civil Partnership legislation, which in turn preceded the Marriage Equality referendum.

I still knew her after Fianna Fáil had crashed the economy, and she had drafted the legal textbook on the NAMA legislation. 

Her knowledge of the complexities of property law and conveyancing were clearly apparent from that text.

And of course I came to know her immensely well indeed during my time serving in Government alongside her. 

Whistleblowing legislation; freedom of information; regulation of lobbying – these were all pieces of legislation I was able to get enacted with her help.

Outside my own Department there was the X case legislation; the wordings for the children’s rights and marriage equality referendums; and many, many other fine pieces of work. 

From dawn until late at night, she was available to the entire Cabinet as an adviser, a counsellor and, at all times, an expert legal opinion. 

I have the height of respect for her and I am absolutely convinced that she will make a very fine Justice indeed. 

Some people, who don’t seem to have read either of the Fennelly Reports, will tell you that she came out of those reports badly.

It is true to say that, in his first report, Mr Justice Fennelly appeared to raise a quizzical eyebrow at those in Government who reacted so swiftly and decisively when the Garda station telephone recording affair came to light. 

To categorise as ‘alarmist’ those who were alarmed, as the judge seemed to do in this first report, seemed to us at the time unfair. 

Particularly when you bear in mind that Judge Fennelly had decided to postpone until his second and final report any consideration of the question whether their fears of illegality were legally justified.

In the event, when you read his key findings on that question, you must conclude that the then Attorney General’s response was not just legitimate but that it was the only legitimate response. 

Those key finding of Judge Fennelly were –

 

• that the installation and operation of the telephone recording system in Garda stations up and down the country was not authorised by common law or statute law and was therefore illegal,

 

• that it operated in breach of the Constitution and of constitutional rights,

 

• that it breached the European Convention on Human Rights and

 

• that it also breached substantive European Union law and the EU Charter.

 

That there was, for decades, a scheme for surreptitiously recording telephone calls in Garda stations, without any official authorisation or legislative underpinning, amounts in anyone’s language to a wholesale violation of the law.

And it was quite properly a matter of utmost concern to the previous Government when this was discovered.

The quite incredible finding is that Gardaí at operational level somehow managed to maintain and operate a legally unsanctioned and unconstitutional recording system, unbeknownst not only to the Minister of the day but also to their own Commissioner and to senior management.

Even taken fully at face value, these findings point to a profound failure of governance, both within the Gardaí and in the parent Department.

There are some in this House willing to go further and to utterly traduce the reputation of any person in search of headlines.

To do so in the case of Ms. Justice Whelan is truly wrong.

I heard Deputy Micheál Martin do exactly that yesterday afternoon.

In listing off the judges for whom he has respect, one thing was immediately noticeable – they were all men.

And it has to be said, there has been more than a whiff of misogyny about some of the comments we have heard over recent days. 

And even more so, there has been a stench of political opportunism. 

Not for the first time, we saw over recent days Deputy Martin’s willingness to send out his own senior counsel onto Morning Ireland to march Fianna Fáil up a hill.

The confidence and supply agreement had been breached, we heard.

Not for the first time, by the way.

In December of last year, we were told the agreement had been breached over the failure to advance his Judicial Appointments Bill.

In April, we heard the agreement had been breached over water.

And this week, we heard it had been breached over this appointment.

Frankly, it has become embarrassing to hear Fianna Fáil’s successive claims of outrage;

Each of which is predictably followed, after a couple of days, by a quiet climb-down.

Whether over the Garda Commissioner, or this, Deputy O’Callaghan is sent off to play the part of the Grand Old Duke –

He marches Fianna Fáil up to the top of the hill, and then he marches them back down again.

While Deputy Martin decides what side of the issue he really stands on.

I have spoken warmly about Ms Justice Whelan this evening because I like her, and because I think she will make an excellent Justice.

But that does not mean that I think that the events that lead to her appointment to the Court of Appeals were in order.

I have said that I believe the lack of a transparent process was absolutely wrong.

It is unfortunate that her appointment as a judge has been overshadowed by a political row over procedure.

For 20 years and more, the Labour Party has been committed to improving openness and transparency in public life.

Arguably we have done more than any other party to seek to raise standards in public office; to make appointments and employments more transparent and accountable; and to prevent people from abusing power and positions of responsibility.

But to truly champion the highest of standards, we must do so on every occasion – even when we know and like the people involved.

Unfortunately, it seems that no objective test was applied in this case.

That has raised question marks about whether other qualified candidates had their applications handled in an objective and transparent manner.

And it has at least appeared to be linked to the reopening of the Stepaside Garda Station.

Which naturally raises further questions. 

Now that brings me on to another point I want to make this evening.

Minister Shane Ross used to sit on the opposition benches.

Whether in this chamber in opposition; in the other chamber; or in his long-running newspaper column – we all know what his reaction to an event such as this would have been.

But the arch-critic has now gone mute. 

Content to play the parish pump, with his much-vaunted principles cast aside.

As ever, Shane Ross sat on his hands when Cabinet made a decision.

When it then caused public controversy, he asked for a review.

So a review we will have, and Minister Ross can keep his principles. 

The Taoiseach should add Minister for Reviews to his title;

For all the difference they have made.

The Independent Alliance have secured several such reviews.

We had the review of cardiac services at Waterford Hospital;

The independent review of the Gardaí that never even started;

The independent review of the corporate tax system, which was supposed to be due by now but hasn’t appeared;

The review Minister Ross started around the Olympic ticketing scandal, which was due by the end of 2016 but has not appeared;

And now a review of how judges are appointed.

If people wanted reviews, they were right to vote for the Independent Alliance.

If they wanted action, they have been sorely let down.

A year on in power, they still have little concept of how Cabinet Government works.

They clapped through an appointment that they now oppose.

And we have ended up with competing bills in this House on the reform of judicial appointments.

What is clear is that it is time to draw a line under this soap opera.

Ms. Justice Máire Whelan has been appointed to the Court of Appeals.

I have no doubt she will do an excellent job.

Instead of grandstanding, I hope that this House will now draw a line under this latest debacle and ensure that appropriate legislation is passed that once and for all.

The Taoiseach promises to have this legislation before us next week.

We will have much to say on its’ contents.

It must also be accompanied by the Judicial Standards Bill.

If that fundamental change can be brought about, some good will come from this unfortunate saga.