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JAAB to be replaced as McEntee admits significant reform is needed
Justice minister Helen McEntee Pic: RollingNews.ie

26 Nov 2020 / justice Print

McEntee admits judicial appointments reform required

Justice minister Helen McEntee has spoken to the Dáil on procedures for the appointment by the Government of members of the judiciary.

She said that the current system is in need of significant reform, which she is determined to lead.

“I will shortly seek the approval of the Government for a new General Scheme of a Judicial Appointments Commission Bill 2020 to provide for the establishment of a new Commission to replace the Judicial Appointments Advisory Board (JAAB),” she said. 

Ongoing reform

The minister continued that reform of the law in relation to judicial appointments has been ongoing for some years, and that 20 years on, it is timely to review the JAAB process, and the entire judicial appointments system.

While the Government stood over its processes, it has never believed that “the judicial appointments process currently in place is as good as it should be”.  

The Programme for Government has laid out the need for reform, she said.

The justice minister said that one of the great successes of the modern Irish State had been the judiciary, which had consistently acted in a robust and independent fashion and earned the respect of fellow judges in Europe and around the world.  

“I have been acutely conscious of my overriding duty to uphold and vindicate the independence of the judiciary,” she said.

The minister continued that, unlike previous ministers who had answered questions in relation to judicial appointments, she was speaking to the House since a number of members had put forward a motion of impeachment. 

“This makes it all the more important that everyone in this House today is mindful of our responsibilities,” the minister said.

Integrity of the judiciary 

“It is incumbent on all of us to uphold the independence and integrity of the judiciary, and to not do or say anything which could undermine the courts, or any sitting judge or indeed undermine the separation of powers.” 

The independence of the judiciary is being questioned in some parts of Europe, she said.  

Appointments to the judiciary are made in accordance with articles 13.9 and 35.1 of the Constitution, by the President acting on the advice of the Government, the minister said.

This is a constitutional function that cannot be transferred or delegated.  The constitutional prerogative to advise the President on judicial appointments lies with the Government alone

"The Government takes this responsibility seriously and our objective at all times is to propose the best person to fill each judicial vacancy," she said.

“I can assure the House that was also the case when the Government decided to nominate Seamus Woulfe SC to the Supreme Court,” she said.  

“As I outlined to the House in replies to Parliamentary Questions earlier this week, it has been the practice to maintain a vacancy in the Supreme Court due to the reduction achieved in waiting times in that court in recent years.   However, this arrangement is kept under review."    

Emerging pressures

“In this particular case, the Chief Justice wrote to the then Minister for Justice on 4 February 2020 requesting that the Supreme Court vacancy arising from a retirement in June 2019 be filled. He cited emerging pressures including the establishment of the Cervical Check Tribunal. 

“As he was obliged to do under the law, the then Minister for Justice wrote to JAAB on 17 February 2020,” she said.

The then minister asked the board to furnish him with nominations for this vacancy, and the name of each person who had informed the board of their wish to be considered. 

The then minister also responded separately to the Chief Justice stating that this request of the JAAB did not pre-suppose the filling of the post – it was to facilitate the procedure whenever that vacancy might be progressed.

Statutory functions 

The only judicial nomination made during the period of Government formation was that of President of the High Court, a senior position that has broader statutory functions, on 18 June. 

This appointment then resulted in a second vacancy on the Supreme Court. 

“In line with the Cabinet Handbook, between 11 and 14 July, I informed the Taoiseach, the Tánaiste, Minister Ryan and the Attorney General of my intention to propose Seamus Woulfe for the position, following which I brought a Memorandum for the Government’s consideration on July 15 last, recommending a name to Cabinet for appointment by the President,” the minister said. 

“In this case, the recommendation was in line with the recommendation of JAAB, which is chaired by the Chief Justice, and includes the presidents of the four other courts, as well as members of the Law Society, the Bar Council, and a number of lay members.’ 

The process through which JAAB recommends applicants for consideration by Government is set out in part IV of the Courts and Court Officers Act 1995, as amended. 

The eligibility criteria currently are 12 years as a solicitor or barrister for the superior courts. Serving judges are not required to apply to JAAB.  

Section 18 of the 1995 act makes specific provision that the board may recommend the Attorney General for appointment to judicial office, the minister said.

Suitability

Where the Attorney General wishes to be considered for appointment to judicial office, he or she shall withdraw from any deliberations of the board concerning his or her suitability for judicial office. 

“By letter to my predecessor, dated 11 March 2020, the JAAB advised that they had met on 9 March and decided to recommend one candidate, Mr Séamus Woulfe SC whom it considered suitable for appointment to the Supreme Court,” the minister said. 

JAAB indicated that there was one applicant considered for this post through the JAAB process – Seamus Woulfe SC – and that there were no other applicants.

“Deputies will note from the annual reports of JAAB that this number is in keeping with previous such processes in relation to the Supreme Court, with one applicant for two Supreme Court posts in 2019, one application in 2017, and one in 2015 from those eligible to apply through JAAB – those who are not currently serving judges.

Confidential

“Under section 20 of the 1995 act, all proceedings of the board and all communications to the board are confidential, so that is all of the information made available to me by the independent board,” she said. 

The Chief Justice had written on 4 February asking that the position be filled as soon as possible. 

A draft memorandum was submitted on 6 July, including details of the recommendation by JAAB, expressions of interest from serving members of the judiciary, and all other judges eligible for the position.

The expressions of interest from serving judges were received over a number of years and retained on file for any current or future vacancy that might arise. 

“Whether or not existing judges put forward expressions of interest is a confidential matter for obvious reasons, and it is not the practice to release information that might identify any of those judges,” she said.  

“The practice in relation to appointments or nominations to positions made by Government is that only one name is brought to Cabinet by the proposing minister.

“I believe that this practice is particularly important in relation to judicial appointments, as an open debate on the merits or otherwise of sitting judges, as well as others who have been nominated by JAAB, would amount to a complete politicisation of the judicial appointments process, when one of the very great strengths of the Irish judiciary has been its non-political character and independence, unlike what we see in many other countries."

Solemn duty

“It is a solemn duty on the part of the Minister for Justice to propose to Cabinet someone who, in the opinion of the minister, is the best person for the particular judicial vacancy. The Government then decides. That is exactly what has happened in this case,” she said.

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