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Judicial disappointments

A meticulous assessment of the political and discretionary process of judicial appointments fails to deliver insider anecdotes

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Review by Michael Smith

Enda Kenny’s former legal adviser has published a book.

Jennifer Carroll MacNeill tells “the inside story of the process by which judges were chosen over the past three decades, both in cabinet and in the Judicial Appointments Advisory Board”. Barrister (and former solicitor), Dr Carroll Mac- Neill has worked as a lawyer in the public service, both within the Oireachtas as Legal Adviser in the Office of the Leader of Fine Gael and within Government as Special Adviser in the Department of Children and Youth Affairs and in the Department of Justice and Equality. Carroll MacNeill is married to Hugo, head of Goldman Sachs in Ireland.

Enda Kenny sees the book as “A defense [sic] of the basic principles of democracy … This book is indispensable for the makers of policy … invaluable … one of a kind”. He (Enda not Hugo) was speaking at the book’s launch.

The problem is that the book that needed to be written would not have been one Enda Kenny would have been comfortable with. This book should, but does not, spill the dirt on the cronyism that underlies all these appointments, notably including his. Since it does not, it is better categorised as “the outside story”.

There are of course different ways for a state to handle appointments to the vital third branch of government, the judiciary – involving more or less compromising roles for the other two, the executive and the legislative.

None of the machination is ideal as it results in undesirable transgression of the balance of powers. It would be an improvement if judges could be selected without the tainted hand of politics, or even humankind, in the process. Perhaps by some comprehensive futuristic algorithm!

According to Carroll: “Some systems are exclusively based on the preferences of the executive, some systems require approval of nominations by the legislature, some appoint judges according to a quota by different branches of the political system and some restrict the involvement of politicians to selecting among individuals who have been pre-screened by an independent body comprising judges and representatives of the legal profession”.

Interestingly, the US alone among common law countries has literally no requirements for appointment to its courts, though of course there is stringent scrutiny of Supreme Court candidates by the legislature including a Senate Judiciary Committee. In Ireland, tediously, judges must have 12 years (10 for the District Court) experience as a barrister or solicitor.

Carroll clearly has a very tidy mind and the use of consistently clear graphics is a boon to readers. For example she highlights the processes that have led to reform of judicial appointments in various countries showing, across a range of criteria, how relatively little consultation there has been in Ireland. Indeed the entire debate on reform took only two years, as opposed to years in the other countries she considered.

She notes the tradition of political appointments in both Ireland and England. Between 1800 and 1921 in Ireland over half of judges had sat in the House of Commons and nearly three quarters had been law officers ie apparatchiks like the Attorney General or Solicitor General. The tradition of allowing them the right of first refusal on judicial appointments that arise during their tenure also arises from that time.

In Ireland High Court, Court of Appeal and Supreme Court judges are now recommended by the Judicial Appointments Advisory Council and the Cabinet (ie the executive) makes the decision on advice from the Minister for Justice and Attorney General and with the consent of the Taoiseach. In practice of the ‘executive’ only the Taoiseach, Minister for Justice and leaders of any coalition partner, are involved in the selection. Unlike in England and Wales (where the Prime Minister selects the judge after nomination of one candidate by the Judicial Appointments Commission) and unlike Israel (where the Judicial Selection Committee selects the judge), the Irish government retains significant discretion to choose any person to fill a judicial vacancy.

This is because unfortunately, “over the 20 years of its operation, the advisory board did not use the range of powers given to it to assess judicial candidates, was not provided with sufficient secretarial or professional supports and suffered from a substantial absence of process and Oireachtas oversight”.

Worse, Carroll MacNeill says, the board made a “crippling“ change of strategy when it decided to change its process for recommending judges. Instead of performing a careful selection that would recommend the seven (or fewer) best candidates as provided in law, the board decided it would in the future simply approve all applicants deemed not to be explicitly “unsuitable”. The number of names recommended to government “increased substantially from about seven to roughly 20, 50 or 100 names for a High Court, Circuit Court or District Court vacancy respectively”. In Ireland this means the executive has almost free reign to appoint someone whose – real or perceived – politics they favour or, more pertinently, who favours theirs.

A Bill proposed by Sinn Féin recently would have reduced the number to three and added two members to the Board, another lay person and a Chairperson who would be the Chairperson (I believe she means Chief Commissioner) of the Irish Human Rights and Equality Commission, and the reasons for recommending the candidates would be published, something Carroll MacNeill considers risky.

Ireland gets the lowest score for political commitment to reform of all the countries she looks at. Even the debate on reform took two weeks as opposed to years in all other countries. And this poses the question why there was – nonetheless – reform. The answer – the centrepiece of this book – appears to be as a reaction to the collapse of the Fianna Fáil- Labour government in 1994. This had two causes. Labour wanted to appoint Donal Barrington to the vacant chief justiceship but he was on the European court and, apparently frustratingly for them, not entitled to be considered. Fianna Fáil wanted to appoint Liam Hamilton – the second most senior judge, the President of the High Court – who was perceived to have pulled punches on Taoiseach Albert Reynolds in his report for the Beef Tribunal.

When Hamilton was appointed with “grudging assent” from Labour, it created a vacancy for the Presidency of the High Court which Attorney General, Harry Whelehan, was nominated to. Whelehan had been damaged by a perception he was a conservative who had mishandled the controversial X abortion case by seeking to injunct a teenager, who had been raped, from leaving the jurisdiction to get an abortion, as well as by the fact that Whelehan’s office had dealt inadequately with particular allegations of child abuse. Reynolds made the appointment when the Labour leader was away, though Whelehan survived only a week.

As part of the barney over all this Labour and Fianna Fáil agreed a bill that would reform appointments. However, when the coalition fell and Labour went into government with Fine Gael it lost the zeal for the legislation: “Most of the members of the new government were neither publicly committed to, [n]or privately interested in”, reducing the government’s discretion in appointments. Reform was driven by raw “political necessity”.

Carroll MacNeill addresses at superfluous length how the bill drafted under the tension of a coalition under pressure was replaced by one drafted by the usual complacent forces. The principal changes were as to the number of people to be recommended to government which was increased from three-to-five to at least ten, a provision rendered ludicrous by the fact that as many as ten judicial positions were at the time up for grabs, and that the personnel on the Judicial Appointments Advisory Board would now include lay members and the Attorney General, to which Harry Whelehan was nominated.

Getting down to gold tacks, of the judges who replied to a 2004 survey and who did have a political affiliation at the time of appointment: 17% supported Fine Gael, 7% supported the PDs and 7% supported Fine Gael. This was a dramatic change from 1969 when the figures were 65% Fianna Fáil and 18% Fine Gael. In 2004 the judges believed the political decision was increasingly likely to be taken by the Minister for Justice.

This book is fascinating and meticulous but like the school swat who won’t take any risks that might make teacher look bad, Ms MacNeill O’Carroll won’t reveal the precise cosy cronyisms that underpin this corrupted system that her impressive insider experience must have, at least on occasion, exposed her to.

By Michael Smith