I propose to take Questions Nos. 726 to 734, inclusive, and Nos. 745 and 747 together.
I acknowledge the Deputy’s concern and wish to take this opportunity to assure him and the House that this appointment was made in full accordance with the Constitution and the law.
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 is a Constitutional function that cannot be transferred or delegated. The Constitutional prerogative on advising the President on judicial appointments lies with the Government alone.
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. In this particular case, the Chief Justice wrote to my predecessor on 4 February 2020 requesting that the Supreme Court vacancy arising from the retirement of Ms Justice Mary Finlay Geoghegan in June 2019 be filled. He cited emerging pressures including the establishment of the Cervical Check Tribunal.
The then Minister wrote to the Judicial Appointments Advisory Board (JAAB) on 17 February 2020. He asked the Board to furnish him with nominations for this vacancy, and the name of each person who had informed the Board of his or her wish to be considered for appointment.
The Minister also wrote 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 should a decision be taken to make an appointment at whatever point in the future that vacancy might be progressed. As the Deputy will note, the only judicial nomination made during the period of Government formation was to the post of President of the High Court, as this senior position has broader statutory functions. It should be noted that this appointment on 18 June then resulted in a second vacancy on the Supreme Court.
By letter dated 11 March, 2020, the JAAB advised that they had met on 9 March and decided to recommend one candidate, Mr Séamus Woulfe, SC, who was considered suitable for appointment to the Supreme Court.
Following my appointment at the end of June, I was informed by my officials of the vacancy to be filled on the Supreme Court and that the Chief Justice had written to my predecessor on 7 February seeking that the position be filled as soon as possible.
A draft Memorandum was submitted to my Office on 6 July, 2020. The submission included details of the recommendation that had been made 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. All of these were submitted to me and I actively considered them.
In line with the Cabinet Handbook, between 11 and 14 July I spoke with the Taoiseach, the Tánaiste, Minister Ryan and the Attorney General, 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. 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 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.
The Deputy will appreciate that discussions at Cabinet and with ministerial colleagues are confidential. Decisions made by Government and are subject to Cabinet confidentiality under Article 28.4.3 of the Constitution. The Government, as set down in law, has sole discretion under the Constitution to nominate persons of its own choosing, providing they are qualified and eligible for appointment as a Judge. This is the Government’s constitutional prerogative and the House can be assured that the government in making this appointment has acted in accordance with the Constitution and the law.
I intend to shortly bring forward proposals to introduce a new Judicial Appointments Commission, which will significantly reform the way in which judges are appointed.
The following was received from the Department under Standing Order 54 on 4 December 2020.