Despite repeated requests from the Opposition, the Government has this week declined to have Minister for Justice Helen McEntee answer questions in the Dáil about the appointment process surrounding Judge Séamus Woulfe to the Supreme Court.
The Government’s stance is based on two arguments: that the Judicial Appointment Advisory Board’s recommendation of Judge Woulfe settles any questions on the matter; and that the separation of powers means that Government cannot or should not answer such questions. These arguments are misguided.
The Judicial Appointments Advisory Board (JAAB), set up in 1995, vets applicants for judicial office, considering their qualifications and suitability. It was established, following concerns about party-political rather than merit-based judicial appointments, to limit the government’s discretion on who to appoint as a judge. But research into its operation has shown that, in practice, the JAAB has done very little to limit government choices.
For more than a decade, the inadequacy of this system has been highlighted but the significant reforms required have not been forthcoming.
Major judicial offices, such as Chief Justice and Presidents of the Courts, are excluded from its remit. The JAAB process does not include judges applying for promotion, who apply directly to government.
Crucially, the JAAB never ranks candidates, or recommends particular candidates be given any post; it vets only if they are qualified and suitable for appointment. It recommends every qualified candidate and leaves the government to choose freely between them.
This is why Judge Woulfe’s recommendation by the JAAB says very little. The JAAB recommending Judge Woulfe means that it found him appointable, but it did not recommend his appointment over other candidates. That is simply not how the JAAB works.
The three judicial candidates who applied for the Supreme Court vacancy did not come through the JAAB process, but applied directly to government. That they were not recommended by the JAAB says nothing about their comparative merits for the position.
Moreover, appointment directly to the Supreme Court is very rare; it has happened perhaps three times in the past 25 years. Most Supreme Court vacancies are filled by promotion of judges from the High Court or Court of Appeal without JAAB recommendation.
In short, that the JAAB recommended Judge Woulfe does not answer the questions raised by the Opposition about this appointments process, because the JAAB had no role in considering the other candidates for the role. It says nothing about how other candidates were considered, or the reasons why they were not recommended to Cabinet.
Separation of powers
The Government’s other reason for refusing to answer questions about the appointment is also, in my view, mistaken. The Government has claimed that to allow such questions would be a violation of the separation of powers in commenting on matters concerning the judiciary.
But appointment of judges is a political matter, a power constitutionally granted to government and controlled (albeit minimally at present) by legislation passed by the Oireachtas. The government is accountable to the Dáil for the performance of its functions.
Holding the government to account for its action in appointments in no way threatens or undermines the judicial power or judicial independence. Indeed, the judicial appointments process – alongside the removal process – is one of the only checks and balances that our Constitution provides for democratic oversight of the judiciary.
Far from a threat to the separation of powers, these processes are a crucial part of our separation of powers. The legislature seeking to ensure they are fair and robust is a defence of the constitutional order.
The goal of appointments reform is not, as some suggest, to cut out politics entirely
If the House has questions it wishes to ask about the factors considered by the Minister, and the process she undertook, this serves the House’s role in holding Government to account for use of its powers. It is also relevant to the consideration of the Oireachtas of how it might reform the system of appointments in future.
The Ceann Comhairle, applying the ordinary rules and conventions of the House, can limit the debate to matters relevant and appropriate to the functions of the Oireachtas and avoid any inappropriate comment.
Judicial independence is one aspect of the separation of powers and an important constitutional value. But the obligation on the political branches to act as a check on the judiciary when appropriate is another vital aspect of the separation of powers which should not be overlooked, nor should parliamentary scrutiny of this process be impeded.
Urgent need of reform
The Government, defending this appointment, has highlighted that the opacity of this process was not unusual: normal practices were followed. But this simply serves as an indictment of our system of judicial appointments, which urgently needs reform.
The goal of appointments reform is not, as some suggest, to cut out politics entirely: government is vested with the power of appointment in the Constitution as a control on the judicial power. The goal, rather, is to create transparency and to guide this process, to ensure that relevant considerations of merit, temperament, and vision of the judicial role – not party politics – shape these crucial decisions.
A new judicial appointments commission could make strong recommendations to government based on clear and detailed criteria. The government could choose to depart from these recommendations, but the process would be transparent, and the government could be held to account for this decision.
Attempts during the last Dáil to overhaul the appointments system stalled due to concerns about the proposals, and our system remains wholly inadequate. We are reaping the consequences now.
Dr David Kenny is assistant professor of law at Trinity College Dublin, and is co-author of the Fifth Edition of Kelly: the Irish Constitution.