On Tuesday, as one of the final acts of Enda Kenny’s Cabinet, the Attorney General was nominated to fill a vacancy on the Court of Appeal. This, of itself, is not overtly controversial (although note the Whelehan affair in 1994). However there are factors regarding this appointment which should raise some eyebrows. First, while Máire Whelan seems to be well-regarded in legal circles, from a political perspective, there has been much criticism of her actions as Attorney General, the most serious of which centred around her behaviour on the events which led to the Report of the Fennelly Commission. What is most worrying about this appointment however, is the lack of transparency surrounding it.
The Judicial Appointments Advisory Board, which has the responsibility of advertising for vacancies and recommending candidates to the Government, apparently reported that it could not recommend a single name for the vacancy. This is highly surprising. Although as Ken Murphy, director general of the Law Society, has pointed out, appointment to judicial office does not have the same allure as in years gone by and perhaps due to the reduction in salary, the nonsensical pension requirements and the general reduction in prestige, many eminent lawyers may simply have decided they are better off where they are. However, the most worrying aspect of this whole affair is the story reported by Conor Gallagher in the Irish Times, that at least three High Court judges had applied for the position.
In order to understand why this is problematic it is necessary to understand how the judicial appointments system works. The workings of the JAAB are outlined in a previous post here and the origins of the body are set out here. One issue which has always been conspicuous is the lack of any input from the JAAB when the vacancy is the presidency of a Court or if the vacancy is filled by the promotion of a lower judge by the Government. Presumably this is part of the unreasonable fear which has manifested itself in numerous different ways that the JAAB will somehow trespass on judicial independence or even on the Government’s constitutional power of appointment. Instead, the Government makes this appointment, with the advice of the Attorney General. In fact, according to a report by the Judiciary, in October 2013, the Chief Justice wrote to all members of the Judiciary regarding elevation to higher courts and senior judicial appointments. She advised judges that if any serving judge wished to express an interest in another judicial position such as elevation to a higher Court, or appointment as President of a Court when a vacancy arises, then expressions of interest should be made in writing by way of letter to the Attorney General. Herein lies the major problem. The person to whom judges are to apply for an appointment, has herself been appointed and we have been given no information on how this whole process operated. This is very worrying.
While it may be the case that Máire Whelan was the most suitable candidate for the position, a process such as this where everything is shrouded in secrecy serves only to damage public confidence in whole system. In 1994, the controversy surrounding the appointment of the Attorney General to the position of the President of the High Court brought down the Government, and while the current situation is unlikely to cause such repercussions, it does raise some serious questions about favouritism and cronyism in the appointments process and it underlines the need for action on judicial appointments reform.
The Judicial Appointments Commission Bill, which has been a pet project of the Minister for Transport Shane Ross, was finally published two weeks ago. It is difficult to know whether the recent Cabinet reshuffle and change in the Ministry for Justice will have any effect on the progress of this Bill. The Bill itself is quite detailed and while there may be further details yet to be worked out as it makes its way through the Houses of the Oireachtas, it is a massive improvement on the system which currently exists and is generally to be welcomed. The main features of the Bill include a new Judicial Appointments Commission of 13 members, of whom 7 will be laypersons, including the chairperson. Following a selection procedure (which is not specified but the Bill states that the Committee may ‘do such other things as it considers necessary … in relation to selecting persons), the JAC will recommend 3 persons to the Minister for any judicial vacancy. Much of the rest of the Bill is concerned with the formation of the JAC itself and the establishment of an office etc and in general, the procedures are left to be decided by the JAC once it is established. It is disappointing that the Bill did not go further in specifying selection processes such as interviews or role plays, as happens in England and Wales for judicial appointments. Also, while certain changes are made to the eligibility requirements such as the addition of legal academics with 4 years practice experience, the opportunity is not taken to amend the vague eligbility criteria already in existence to the effect that a candidate must be ‘suitable on grounds of character and temperament’. However, it is a positive sign that section 7 recognises the compatibility of merit with diversity in judicial appointments.
One significant point which is relevant to the current controversy is the issue of the status of the recommendation made by the JAC to the Government. Section 48 of the proposed Bill states that ‘In advising the President in relation to the appointment of a person to a judicial office the Government shall firstly consider for appointment those persons whose names have been recommended to the Minister.’ It does not state what would happen should the Government refuse to nominate one of the recommended names but Section 50 does provide that the appointment to judicial office will be published in Iris Oifigiúil and the notice must include a statement that the name of the person was a recommended name (if that has been the case). Section 51 also requires the Minister to lay before the Oireachtas at the end of each year, a statement containing details on the appointments made in that year including their experience and whether or not they were recommended by the JAC. In other jurisdictions, there is a requirement that if the Government refuses to accept the recommendation of a nominating body that it must publish stated reasons for doing so. It appears that these sections are a light version of this requirement but it certainly adds to the transparency of the system and makes it more awkward for the Government to depart from the recommendations.
However, the bottom line is that under the current system, and even under the system which would be created by the proposed Bill, the Government retains discretion to appoint a candidate of its choice since that role is given to it by the Constitution and an amendment would be needed in order to reduce the influence of the Government in the judicial appointments process. However, while it would be difficult to challenge the current appointment in law, serious questions need to be answered, particularly regarding the High Court Judges who may have applied for the position and the circumstances regarding Máire Whelan’s involvement in the whole affair.