Speech by Charlie Flanagan TD, Minister for Justice and Equality
Deputies let me remind you that since 1922 this State has had a robust and independent judiciary. I am pleased to underline the widely held view that the Irish judiciary is now and has always been one of the great successes in our history and is consistently among the top ten most independent judiciaries globally.
Judicial appointments are made, in accordance with Articles 13.9 and 35.1 of the Constitution, by the President acting on the advice of the Government. This Constitutional function cannot be transferred or delegated.
Government, in making the decisions necessary to nominate people for judicial appointments, is performing a very profound function under the Constitution and one which is fundamental to our separation of powers and to the maintenance of independence and public confidence in our judiciary. The effectiveness of the performance of this function by successive Governments has been illustrated by the extraordinary quality of our judiciary and the public respect in which they, and their independence is held. Fundamental to the making of any decision in this area by Government is the intent to nominate the best person for a particular judicial appointment and this is what happened this week when Máire Whelan was nominated for appointment as a Judge of the Court of Appeal.
A vacancy for an Ordinary Judge of the Court of Appeal arose following the retirement of the Hon. Mr. Justice Garrett Sheehan on 23 March 2017. In response to a request received from the then Minister for Justice, the Judicial Appointments Advisory Board reported on 16 May 2017 that it was not in a position to recommend a person for appointment to the vacancy in the Court of Appeal.
Last week, at its meeting of 13 June 2017, the Government nominated the then Attorney General, Ms. Máire Whelan S.C., for appointment as an ordinary judge of the Court of Appeal. The Government acted entirely within its constitutional powers and responsibilities in making this nomination. The Constitutional prerogative on whom to advise the President to appoint as a judge, rests with the Government alone.
On Monday, Ms Justice Máire Whelan was appointed by the President as a judge of the Court of Appeal. It would not be appropriate for me, as Minister for Justice and Equality, to comment any further on specific nominations to judicial office, which are decisions made by Government and are subject to Cabinet confidentiality under Article 28.4.3° of the Constitution. The Government has sole discretion under the Constitution to nominate persons of its own choosing, providing they are qualified and eligible for appointment as a Judge.
I might add, Ceann Comhairle, that I have been surprised in recent days to hear experienced Members of this House and people outside of us clamouring for Ministers and for Government to lay down the A to Z of what did or did not happen around the cabinet table or in the deliberations of cabinet leading to the decision made on the 13th of June. It is abundantly clear that such matters are covered by cabinet confidentiality under Article 28 of the Constitution. And also,to set the record straight, this cabinet confidentiality is a requirement of the Constitution, not a privilege of the members of the Government for the time being that they can choose to waive.
I am also surprised about experienced people bandying about information that x or y numbers of High Court judges may have expressed interest in the Court of Appeal vacancy and asking what happened to these expressions in the Government decision making process. Not only is that also covered by Cabinet confidentiality but, in fairness to any such member of the judiciary who had expressed such interest in respect of any such vacancy in the past, we are hardly going to lay out for political and public consumption the names and details of serving judges who have chosen to put themselves forward for more senior posts. Would we not rightly be castigated for doing that?
Countless times now I and others have stated that we are satisfied that all necessary procedures regarding judicial appointment have been followed in this instance and I am also satisfied that the new judge, given her qualifications and breadth of experience will make an invaluable contribution to the work of the Court of Appeal.
That is what has happened up to this point. Let me now refer to what the Government wants all of these processes to look like in the future on foot of a fundamentally reformed system heralded by the publication of the Government’s Judicial Appointments Commission Bill on 31 May 2017.
Deputies will be aware that on 30 May 2017, the Government approved the publication of the Judicial Appointments Commission Bill 2017 which has now been circulated to Deputies.
The Bill will deal with all judicial appointments including the promotion of serving judges which are currently outside the remit of the JAAB.
This legislation arises from a public consultations process on a review of the judicial appointments system in 2014. The need to ensure and protect the principle of judicial independence was a significant factor in this consultations process. It was also recognised that, while the Judicial Appointments Advisory Board process was a model of best practice in its day, almost 20 years from its establishment it was considered worthwhile to review its operation. The focus of the Bill is very much on the manner in which the selection, recommendation and appointment arrangements can be improved in a new statutory framework. I am keen to ensure that the entire judicial appointments system is enhanced to ensure it reflects current best practice, that it is open, transparent and accountable and that it promotes diversity.
The Bill is also intended to give effect to the commitments in the Programme for Partnership Government i.e. to replace the Judicial Appointments Advisory Board with a new Judicial Appointments Commission….to include a reduction in its membership, an independent chairperson selected by the Public Appointments Service (PAS) and approved by an Oireachtas Committee, and a lay majority including independent people with specialist qualifications; to reduce the number of suitable candidates proposed by the Judicial Appointments Commission for each vacancy to not more than three candidates.
Deputies will be aware that second stage of the Bill is scheduled for next week in the House. I look forward to debating with members the very significant and innovative measures Government has agreed to entirely reform the judicial appointment system.
The Bill provides for 13 JAC members ( 2 more than the General Scheme provided for) made up of 3 senior judges – the Chief Justice, and Presidents of the Courts of Appeal and High Court , the Attorney General, a Bar Council nominee, a Law Society nominee, 6 lay members recruited by PAS, and a lay Chair recruited by PAS. Working through a system of committees, the Commission will have a dual role of making recommendations for appointments, and by way of published statements, the ongoing development of selection procedures for judicial appointment and of the skills and attributes required of judges.
The Bill will reduce the number of suitable candidates proposed by the JAC for each judicial vacancy to three candidates from the stipulated minimum of 7 now under the JAAB system. Under the Constitution Government retains discretion to appoint but, in a replication of the JAAB provisions, the Bill provides that Government must have regard first to the JAC recommendations.
Most importantly, merit is provided for in the new legislation as the criterion for selection and recommendation and, subject to that, the Bill provides for the objectives that the judiciary should be equally comprised of men and women and that it should reflect the diversity within the population.
I am very much looking forward to making progress on this Bill in a constructive environment with the aim of putting in place a model of best practice.