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Flanagan told Chief Justice in February that Supreme Court vacancy was a matter for the next government

Correspondence relating to the matter has been released under a Freedom of Information request.

Image: Leah Farrell

THE JUSTICE MINISTER had advised Chief Justice Frank Clarke in February that the task of filling the vacancy at Supreme Court was a matter for the next government.

Correspondence released to TheJournal.ie under a Freedom of Information request shows that several Justice Department officials concluded that the judicial appointment was a matter for the next government, and expressed surprise at the timing of Clarke’s request.

One remarked that it would be “unusual” for an outgoing government to make judicial appointments during an election campaign.

The Chief Justice sent a letter to the then-Minister for Justice Charlie Flanagan on 4 February – four days before the general election – asking that the Supreme Court vacancy left after Mary Finlay Geoghegan retired last June be filled. 

Main pic Source: FOI/Justice Department

The Chief Justice stated in his letter that Ms Justice Mary Irvine had been nominated to chair the CervicalCheck tribunal, and so he had agreed with her that she wouldn’t be assigned to deal with “any substantive new matters”.

He also noted that there is the question of “any possible retirement which might occur over a similar timescale”. He said these fed into him raising the possibility of filling the Supreme Court vacancy. 

One civil servant said that the letter from the Chief Justice “seems to be something of a try-on”, and that it wasn’t clear why “circumstances are now suddenly so urgent that a decision which requires a due process cannot await the formation of a new administration”.

Guidance from the then-Secretary General to the Government Martin Fraser stated that “it is not considered appropriate to make any significant policy decisions or appointments… unless absolutely necessary”.

This guidance was included in the first drafts of the Minister’s response to Chief Justice Frank Clarke, but was removed before the final response was sent.

The final letter sent on 18 February also indicates that Justice Minister Charlie Flanagan requested that the Judicial Appointments Advisory Board – a group that vets candidates who are not already sitting judges – would meet to discuss candidates for the vacancy.

Flanagan wrote that this was “simply to facilitate judicial appointment procedures at whichever point in the future it may be progressed”.

Flanagan Source: FOI/Department of Justice

In Chief Justice Frank Clarke’s response on 21 February, Clarke said that he had arranged for the JAAB to meet on 9 March (Clarke is a member of this board). 

Clarke said that he fully understood the “sensitivities” around the role of government at that time, and added that the purpose of his 4 February letter was to have the possibility of appointing another Supreme Court judge added to the agenda of the existing government, or any subsequent government.

The week that Seamus Woulfe was picked

After a coalition government was agreed between Fianna Fáil, Fine Gael and the Green Party on 26 June, and a Cabinet revealed the day after, correspondence between Justice officials hints at the new government’s actions around the appointment of a new Supreme Court judge.

On Monday 6 July, it was expected that the Supreme Court appointments would be brought to Cabinet, according to this correspondence, but it was delayed for several days.

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On Friday 10 July, a request was made for a memo about appointments to the Supreme Court, the Court of Appeal, and the Circuit Court, “ready for submission to the Government agenda on Monday morning”.

On Wednesday 15 July, a press release was issued confirming that Seamus Woulfe would be nominated to the Supreme Court by the Government.

The following day, on 16 July, the Government Secretariat from the Department of the Taoiseach asked the Justice Department:

“Please confirm, by return, the names Minister McEntee brought to Cabinet re judicial appointments.”

One Justice official noted that expressions of interest had been logged, but that they were not aware “of the names brought to Cabinet by the Minister”.

On Friday 17 July, Seamus Woulfe was sent “a cover letter and information pack” in relation to his appointment to the Supreme Court. 

Separate correspondence from that same day notes that Seamus Woulfe “is available ASAP” to begin his work as a Supreme Court judge, and “would prefer to be appointed by the end of the month if possible”.

Seamus Woulfe was officially appointed as a Supreme Court judge on 23 July at a ceremony at Áras an Uachtaráin with the President Michael D Higgins, Taoiseach Micheál Martin, and Attorney General Paul Gallagher. 

With reporting from Stephen McDermott

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