Harry Whelehan

Taoiseach Charles Haughey appointed Whelehan Attorney General of Ireland in the Fianna Fáil–PD coalition on 26 September 1991,[3] replacing John L. Murray, who had been nominated to the European Court of Justice. Whelehan was retained by Albert Reynolds after Haughey's resignation, and reappointed by the Fianna Fáil–Labour coalition after the 1992 general election.

Thomas Finlay retired as Chief Justice of Ireland in September 1994, and Liam Hamilton was promoted from President of the High Court to replace him.[10] In early 1994, when the government was considering forthcoming judicial appointments, Whelehan expressed an interest in becoming President of the High Court and a Judge of the High Court.[10] This was opposed by Tánaiste Dick Spring, leader of the Labour Party, Reynolds' coalition partner; negotiations on a quid pro quo were held in October 1994.[10] On 11 November 1994, while the Brendan Smyth controversy was still in the news, Reynolds appointed Whelehan to the vacancy, at a cabinet meeting from which Labour ministers were absent.[10] Mary Robinson, the President of Ireland, confirmed his appointment the same day, and he took his oath of office from the Chief Justice on 15 November.[11] Over the next two days he heard one case and part of another.[12]

In the Dáil on 15 November 1994, Reynolds summarised the report he had received from Whelehan. It was then alleged that an extradition case involving another paedophile cleric, John Anthony Duggan, had been resolved promptly in 1992 after considering section 50 of the Extradition Act.[13][8] Whelehan argued that, although section 50 had been considered in the Duggan case, it had not in fact been applied. Reynolds stated he regretted having appointed Whelehan, and The Irish Times reported that Whelehan's successor as Attorney General, Eoghan Fitzsimons, had tried to persuade Whelehan to resign his judgeship.[14] Whelehan rebuffed Fitzsimons, but resigned on 17 November to "keep the judiciary out of politics".[2][14] Reynolds ordered Fitzsimons to report on his predecessor's conduct of the Smyth case.[15]

The political damage caused the Labour Party to leave the coalition, though without forcing an election;[10][16] instead it formed another coalition with Fine Gael and Democratic Left.[17] Controversy over Reynolds' unilateral appointment of Whelehan led to the establishment of an independent Judicial Appointments Advisory Board to make recommendations for the government.[18]

The rules of the Bar Council of Ireland normally prohibit former judges from working in a court of a level the same as or lower than the court on which they sat.[12][19] In Whelehan's case, this would have meant he could not work in any court, as the President of the High Court is ex officio a member of the Supreme Court.[12] The Bar Council voted in favour of making an exception to the rule for his case.[12]

The Irish Independent in 2007 reported that the Judicial Appointments Advisory Board's recommendation of Whelehan for a judgeship had been rejected by Fianna Fáil governments.[2]

• Daniel, Ann (2012-11-12). "Ch.5: A Scandal of Church and State". Scapegoats for a Profession. Routledge. pp. 97–122. ISBN 9781136650680. Retrieved 18 December 2014.
• Oireachtas Sub Committee on Legislation and Security (1995). Inquiry into the Events of 11 to 15 November 1994. Government publications. Pn.1478. Dublin. ISBN 0-7076-1583-6. Archived from the original on 17 December 2014. Retrieved 17 December 2014.
• Whelehan, Harry (16 November 1994). Memorandum to the Taoiseach from the Attorney General : re: John Gerald Brendan Smyth (PDF). Official publications. Pn.1177.