Dáil Éireann Debate, Tuesday - 20 June 2017
889. Deputy Jim O'Callaghan asked the Minister for Justice and Equality the process that was put in place for the recent appointment to the Court of Appeal; and if he will make a statement on the matter. [29000/17]
Amharc ar fhreagra890. Deputy Jim O'Callaghan asked the Minister for Justice and Equality if he and his officials have satisfied themselves that section 18 of the Courts and Court Officers Act 1995 was followed in the most recent appointment to the Court of Appeal; the way in which it was applied; and if he will make a statement on the matter. [29001/17]
Amharc ar fhreagra891. Deputy Jim O'Callaghan asked the Minister for Justice and Equality the number of application processes which were gone through for the most recent vacancy on the Court of Appeal; if the vacancy was discussed in his Department with the then Minister for Justice and Equality; if there were concerns regarding the appointment process outlined; and if he will make a statement on the matter. [29002/17]
Amharc ar fhreagra893. Deputy Jim O'Callaghan asked the Minister for Justice and Equality if he has satisfied himself regarding the way the most recent vacancy in the Court of Appeal was filled; and if he will make a statement on the matter. [29004/17]
Amharc ar fhreagra895. Deputy Jim O'Callaghan asked the Minister for Justice and Equality the way in which appointments to the Court of Appeal have been filled since the Judicial Appointments Advisory Board was set up under the 1995 Act; if the most recent appointments differed from previous appointments; and if he will make a statement on the matter. [29006/17]
Amharc ar fhreagra896. Deputy Jim O'Callaghan asked the Minister for Justice and Equality his views on whether the most recent appointment to the Court of Appeal illustrates best practice; if it follows Government policy on State appointments; and if he will make a statement on the matter. [29007/17]
Amharc ar fhreagra897. Deputy Jim O'Callaghan asked the Minister for Justice and Equality if he or his Department were concerned when the Judicial Appointments Advisory Board informed them that they were not in a position to recommend a person for the vacancy to the Court of Appeal; if it was discussed; the actions which were taken to try to address these concerns within the process outlined under the Courts and Court Officers Act 1995; and if he will make a statement on the matter. [29008/17]
Amharc ar fhreagraI propose to take Questions Nos. 889 to 891, inclusive, 893 and 895 to 897, inclusive, together.
In accordance with Articles 13.9 and 35.1 judicial appointments are made by the President acting on the advice of the Government. This is a Constitutional function that cannot be transferred or delegated.
The Judicial Appointments Advisory Board (JAAB) was established under the Courts and Court Officers Act 1995 to identify persons and inform the Government of the suitability of those persons for appointment to judicial office. The process through which the Judicial Appointments Advisory Board recommends applicants for consideration by Government is set out in Part IV of the Courts and Court Officers Act 1995, as amended. The JAAB deals with applications from candidates for judicial office. Eligible judges who wish to be considered for promotion to the Superior Courts are not dealt with by JAAB; in such instances under non-statutory informal arrangements existing judges may make their wish to be considered for higher judicial office known to the Attorney General. Under section 16 of the Act, where a judicial office stands vacant or before a vacancy in a judicial office arises, on a request to do so by the Minister, the Board submits to the Minister for Justice and Equality, the names of the persons recommended for appointment. The Minister then bring the names to Government which decides on the person or persons to nominate to the President for appointment. The 1995 Act specifies that the Government shall first consider any nominations from JAAB in deciding on the person or persons to nominate to the President for appointment to judicial office.
On 5 January 2017, the JAAB sought, by public advertisement, applications from practising barristers and solicitors eligible for appointment to the Supreme Court, Court of Appeal, High Court, Circuit Court and District Court.
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. The Tánaiste and then Minister for Justice and Equality wrote to the Judicial Appointments Advisory Board on 12 April 2017 to seek a list of suitable candidates from the JAAB in respect of various judicial vacancies including the vacancy in the Court of Appeal.
JAAB reported on 16 May 2017, in accordance with the Courts and Courts Officers Acts 1995-2002, that it was not in a position to recommend a person for appointment to the vacancy in the Court of Appeal. From time to time in the past, JAAB has reported that it is not in a position to recommend any candidates as suitable for appointment as a judge. As the Deputy will know the Government, in nominating a person to the President for appointment to judicial office, is not limited constitutionally to the consideration of the outcome of a JAAB process but is obliged under the 1995 Act to first consider the names of any persons recommended by JAAB, something which did not arise in this instance since there were no such recommendations.
Section 18 of the Court and Court Officers Act 1995 provides that the Board may recommend the Attorney General for appointment to judicial office and that where the Attorney General wishes to be considered for appointment he/she will withdraw from any deliberations of the Board concerning his or her suitability for judicial office. However, I as Minister for Justice, am unable to comment further as Section 20 of the Court and Court Officers Act 1995 provides that all proceedings of the JAAB and all communications to the Board shall be confidential. The obligation on the Attorney General to exclude him/herself from deliberations is in relation to JAAB and applies only in the context of the 1995 Act and only where the Attorney General has asked JAAB to consider her/him for judicial office. There is nothing (nor constitutionally could there be anything) in this provision which could prevent the Government from nominating the Attorney General to a judicial appointment as long as the Attorney General is eligible and qualified.
At its meeting of 13 June 2017, Government decided to nominate the then Attorney General, Ms. Máire Whelan S.C., for appointment as an ordinary judge of the Court of Appeal, pursuant to its prerogative under Article 13.9 of the Constitution to advise the President on appointments to judicial office. Yesterday, 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.
Neither I nor my Department are aware of any meetings/discussions of the nature referred to by the Deputy other than the Government meeting on 13 June 2017 and the processes of the Judicial Appointments Advisory Board in relation to the vacancy which are subject to the statutory confidentiality requirement as set out above.
I can inform the Deputy that, when the Court of Appeal came into existence in 2014, a President and 9 ordinary judges were appointed, all of whom were serving judges: 9 were judges in the High Court and one was a judge in the Circuit Court. Since the establishment of the Court, one vacancy was filled in September 2016 with the elevation of a serving judge from the High Court. To date no judge has been appointed to the Court of Appeal through an application made to the Judicial Appointments Advisory Board.
I am satisfied that all necessary procedures regarding judicial appointment have been followed in this instance.
The Judicial Appointments Commission Bill, which was published on 1 June 2017 fulfils the Programme for Government commitment to introduce legislation to replace the Judicial Appointments Advisory Board with a new Judicial Appointments Commission. The aim of the reform of the judicial appointments process is to ensure that the system is transparent, fair and credible.
The Bill makes provision for a completely new system for selecting persons who wish to apply for appointment to judicial office, comprising a Commission with a lay chair and a lay majority. The proposed new system will, for the first time, include applications by serving judges for appointment to positions in higher judicial courts.
