Dr.

Jennifer Carroll MacNeill BL

Reforming the Legal Institutions of the Republic
Judicial Selection in Ireland
UCD Garret Fitzgerald Summer School 2014

Good morning ladies and gentleman and thank you for the
opportunity to speak to you on this lovely Saturday morning. As
part of this sessions focus on reform of the institutions of law in
the republic, I want to speak about the institutional arrangements
for judicial selection in Ireland.
This is based on my PhD research recently completed in the
School of Politics in this university. For all of our benefit, I have left
out much of the more concentrated content, I am happy to discuss
that separately should anyone wish. Instead I want this morning to
tell you a story about how we came to have the judicial selection
system that we have in Ireland today. What is it, how did we get it
and are lessons we can learn from how it changed over time that
might help inform future institutional changes in the legal
architecture of the Republic for the 21
st
century.
I have to start with a confession. I am very interested in judges.
Unnaturally interested in judges. Who they are, what they do, what
they are supposed to do, what they say, what they are not
supposed to say and why all of that matters. Thankfully, for the
purpose of my research, it is not just me that is interested in
judges. They are an important group of the constitutional
governance, a unique group of law-makers, with extraordinary
powers but without a direct relationship with the people their
decisions ultimately govern. The decisions of judges can and do
override those of your elected representatives in the law-making
majority in parliament.
Judges have powers over the democratic process itself how
referendums are conducted and how parliament may be run.
Judges in Ireland have also made new laws in a variety of ways
including articulating new and previously unstated constitutional
rights for citizens, overturning statutes found to have violated a
constitutional right or held a wrong balance between competing
constitutional rights of citizens.
And thats what makes them interesting. When you think about
them in that context, who they are and how they got there
suddenly takes on a more particular salience.
This presentation focuses on the rules of how judges are chosen
and how and why these rules can change over time.
In Ireland, the politics of judicial appointment is, like in so many
other countries, the subject of periodic but perennial interest. Its a
simple enough political charge or newspaper headline you
always appoint your mates to the plum jobs.
But is it really true, and how does the whole thing work anyway
how can it be that the government in Ireland is open to this charge
at all given it makes judicial appointments from the
recommendations of an independent board?
In an effort to put some hard facts behind this charge, I completed
a study of the internal cabinet politics and processes of judicial
selection in Ireland over a 25-year period from 1982 to 2007. I
looked at what were the internal cabinet processes, who did what,
who gathered names to consider, who made the decisions, how
and why they made.
The key original data source for this study consists of twenty-eight
lengthy and detailed individual interviews with the people involved
in judicial selection between 1982 to 2007. These include people in
cabinet - 2 Taoisigh, 6 Ministers for Justice and 9 Attorney
Generals and people on the Judicial Appointments Advisory Board
(or JAAB) from 1995 (when it was established) to 2007. This
includes court presidents, representatives of the legal profession,
the Attorney General and representatives of the Minister for
Justice.
Today is the first outing of this data. And so we can see I hope for
the first time how the Judicial Appointments Advisory Board uses
its statutory powers and maybe shed light on the realpolitik in
Ireland behind how judges are actually chosen.
First however, I want to put some comparative context on this and
describe, briefly, three things:

Number One there are different ways of choosing judges
I do not say that one type is better than another, simply that they
can be different and that is ok. It is up to the law-making majority in
each country to make up its own mind on these things.

We focus here on senior judicial appointments, the kinds of judges
that can override governments and on common law systems like
us, (like Canada, England, Australia) where, like us, judges are
chosen by politicians from the ranks of senior lawyers as opposed
to other systems where you can become a judge straight out of
college and it is a career in itself, separate to legal practice.

I have categorised these systems based on the role and power of
government. There are two stages in filling a judicial vacancy
number one, nomination of an individual to fill a vacancy, number
two, ensuring that nomination is the person who actually fills the
vacancy.

The three systems are:
1. Executive Nomination and Appointment
2. Executive Nomination with Legislature Approval for
Appointment
3. Executive Nomination following recommendation of an
independent Judicial Selection Commission

In the first system, government controls both stages. Total power.
It is used in New Zealand, Australia and senior federal
appointments in Canada.

In the second, used for federal appointments in the United States,
the President can nominate but is dependent on another body (the
Senate) to confirm his nomination.

In the third, used in England and Wales, Scotland, Ireland,
Northern Ireland, Israel, someone other than the government
nominates one person or a number of persons for the government
to consider.

Obviously the more names given to the government to consider,
the more power and influence the government has on who
becomes the judge.


Number Two
From time to time there has been political pressure and debate in
these countries about the system for choosing judges should itself
change. Sometimes that pressure comes from government and it
asserts its intention to make changes in an election manifesto or
programme for government commitment (like Scotland and
England and Wales); sometimes from other forces that are
external to government such as on-going judicial (such as
Australia) or political controversy (Ireland) or the establishment of
a new court (New Zealand).

Sometimes this political pressure results in the system changing,
sometimes not. Canada, Australia and New Zealand all resisted
pressure to change the appointment processes. None of their
governments supported it.

What we see was that where political debate originated and was
sponsored by the government, we see evidence of the interest
of government in the policy planning process - lots of consultation
with stakeholders and robust policy planning. All of this was
evident in England and Wales, Scotland where the impetus for
institutional reform originated with the government.

I say that the circumstances that surround the decision to
introduce change of this kind can tell us something about the
nature of that change. We must remember change to the judicial
selection system can only arise with, at a minimum, the consent of
government in order to introduce new rules for a changed system
and to give appropriate institutional supports to that new system.
Absent government support or acquiescence, the rules just cant
change. Government has to be invested in it. If its not, I argue it
either wont happen, or wont happen in a way that meaningfully
reduces political discretion.

Number Three
In the huge majority of those countries that did introduce change,
the effect of that change was to reduce the political discretion of
the government to choose their favourite candidate for a given
judicial vacancy.

While isnt typical of governments to go around giving away power,
its not unheard of. There are lots of reasons why governments
divest themselves of power we see it often in the sphere of
regulatory governance, we talked last night about separating
interest rates from government but the fact that it happens to
something new is interesting and we want to understand the link
between the governments desires and intention and the actual
outcome of institutional change.


One country stands out from all of this analysis.

Ireland.

Ireland did introduce institutional change to judicial selection in
1995 but not in the same circumstances as its comparators, not
with the same political origins, not with any serious or comparable
form of planning or deliberation and definitely not in a way that
comparably reduced the power of government in judicial discretion.

So what happened in Ireland that is so different?

I have two principal explanations. The first is that the
circumstances in which it arose were different and the second is
that the statutory design was different. I argue that this is not a
coincidence.

Lets look at the Circumstances
The institutional change to the judicial selection system in Ireland
arose exclusively as the product of an ongoing conflict between
two government coalition partners in 1994 Fianna Fail and the
Labour Party. The coalition had been experiencing ongoing
distrust and turbulence that reached a boiling point and found
expression in the Labour Party being unhappy with two senior
judicial appointments made in quick succession the appointment
of Liam Hamilton to the position of Chief Justice and the proposed
appointment of Harry Whelehan to the position of the Office if the
President of the High Court. For different reasons the Labour Party
was unhappy with each of these appointments.

Crucially, it felt it had been left out of the decision-making and had
insufficient influence over the process within Cabinet.

It became a make or break issue for the government and required
urgent political resolution. Four cabinet members, Brian Cowen,
Noel Dempsey, Brendan Howlin and Ruairi Quinn went away to
Wicklow for a weekend and devised an agreed system for future
judicial appointments that would satisfy the Labour Party. The new
system was to be produced in legislative form before the
appointment of Harry Whelehan could progress.

There was no prior political commitment, no prior policy work done
in the Department of Justice and none of the usual policy
development processes exhibited by government on the
development of this institutional change. It was agreed by an
internal group in Cabinet, agreed by the Taoiseach and Tanaiste
as a means of resolving their political difficulties and produced in
legislation and introduced to the Dail in November 1994 by the
Minister for Justice within a matter of weeks of it being agreed.
Anyone familiar with the torture inherent in trying to get legislation
drafted and finalised will be properly astonished by that turnaround
time, but that was the nature of this particular Bill an urgent
political solution to an urgent political problem that threatened the
viability of the government. Ultimately, it didnt save the
government, which fell apart very shortly afterwards.

The new government formed in its place included the Labour Party
as a member along with Fine Gael and Democratic Left. The new
programme for government made a commitment to introduce the
changed judicial selection model. However, instead of simply
progressing the Bill that had been published with haste the new
government didnt return to the issue for a full year. In November
1995 the new government withdrew the 1994 Bill and replaced it
with its own version.

There were a lot of similarities between the two approaches to the
new judicial selection model. Both involved the establishment of an
independent body, comprised of court presidents and
representatives of the legal profession. This body would review
applications for judicial office and make recommendations to
government on suitable candidates.

This was brand new in Ireland in the following ways:
1. People interested in being a judge would have to put their
hand up and declare it in a formal process. This was a big
change for the judicial aspirant who might previously have
said nothing at all and just hoped, or made discreet (or not
discreet) approaches to members of government to express
their interest in becoming a judge.
2. It was a big change for members of the judiciary and legal
profession who would now have a role in the judicial
selection process.
3. It was a big change for government who had previously
absolutely unfettered discretion to appoint whomever they
wanted so long as that person met the minimum eligibility
requirements in relation to qualifications and experience,
which was set reasonably low in any event at a minimum
10/12 years experience as a practicing lawyer.

The question was how much could or should the Irish
governments discretion be constrained by the new arrangement.
Now constitutionally, it is the governments job to advise the
President on judicial appointments (as well as on a range of other
things). The governments discretion to do this could not be
fettered too much without a problematic read across on those
other functions or without changing the constitution. It would not, I
suggest, be possible for the government to be presented with a
single recommendation to which it was bound. It was of
constitutionally necessity that whatever the new arrangement was
to be that the government would retain a measure of choice
between candidates. But how much choice?

And this is where we start to see evidence of the importance of
drafting in institutional design.

Statutory Design
The first bill in 1994 said that the Judicial Appointments Advisory
Board would recommend not fewer than three and not more
than five names in respect of each vacancy. This would have
given the government some measure of choice, but dramatically
reduced to five the universe of possible appointees for the
government through this system.

In November 1995 the new government published their Bill which
provided that the Judicial Appointments Advisory Board would
recommend at least 10 names in respect of each vacancy. This
was a huge increase in the discretion of the government and there
was a predictable outcry from the opposition benches who,
correctly, pointed out that this was a marked increase in the
discretion of the government and what had happened along the
way that made the Labour party shift their position so
considerably?

As a reaction, the government reduced the number to at least
seven names in respect of each vacancy and that is what is in
statute today.

So seven. More than five, less than ten. Definitely a restriction on
government discretion in comparison to the unfettered discretion of
the first six or seven decades of judicial appointments in Ireland.

Yes, it is constitutionally necessary that the government have a
choice. But we can see from looking at the different statutory
iterations that different perspectives were taken on how far that
discretion could be reduced the first iteration, published at the
height of the political crisis, being as low as at least three and then
expanding over a year to at least ten and then at least seven.

Earlier, I talked about how it is important in understanding
institutions to understand the motivation for institutional change. I
said that this was especially important there that institutional
change was one that appeared to be counter-intuitive. I said that
the circumstances of the introduction of change in Ireland were
very different to those of other countries. It was political reaction
and political necessity rather than political desire for institutional
change. This is a neat example because you can track, through
the statutes, how Irish political commitment to reducing
government discretion changed and arguably waned in the period
November 1994 to 1995.


But that is only half the story. The government was to get a whole
lot more discretion back, without even asking for it - all because of
how the Judicial Appointments Advisory Board implemented the
legislation over time.

Lets take a quick look at the functions and powers of the JAAB in
the Courts and Court Officers Act 1995.

The function of the JAAB is to identify persons and inform the
government of the suitability of those persons for appointment to
judicial office.

The powers are also set out in statute. The JAAB is given very
broad powers to adopt such procedures as it sees fit to carry out
its functions. Some of these powers are named; the power to
advertise, the power to interview and so on and others are not
named but there is no express limitation on the powers of the
JAAB. They can adopt their own processes.

The operation of the JAAB in making recommendation is also set
out. On the request of the Minister, the JAAB should do the
following:
1. submit to the Minster the names of each person who has
informed them of their interest in becoming a judge,
2. recommend to the Minister at least seven persons for
appointment to judicial office,
3. provide the Minister with the particulars of the education,
experience and character of the persons who it is
recommending,
4. where there are fewer than seven people who express an
interest in becoming a judge, or, where the JAAB is unable
to recommend at least seven persons, then the JAAB
should inform the Minister of all of the persons who
have expressed an interest and such of those as the
Board considers suitable for appointment.

This is really important. It shows that the Board
a. has substantial statutory powers to engage in its work in
whatever way it sees fit, and
b. has the power to recommend whatever number of persons it
thinks suitable either at least seven, or less than seven if
thinks appropriate.

Why is this so important? Because now, with the data set, we can
say how those processes actually worked in that period 1995 to
2007. I want to say this first though. It is clear from what I have set
out that the institutional design gives the JAAB a really significant
role in judicial selection in Ireland. It gives them a clear tasks
identify people who are interested in becoming judges and then
perform an exercise of selection. The JAAB determines that some
people may be obviously unsuitable and excludes them from
consideration and deliberation and then makes a value judgment,
according to the standards set by the JAAB itself, that some of the
remaining candidates are more suitable than others and
recommend those candidates to government.

It seems straightforward enough.

Lets look at how that has worked in practice.

First, how has the JAAB used the statutory powers it has been
given to perform its function. Using the interview data we can see
that the Board has used the power to advertise, to cause
applicants to fill in prescribed application forms, obtain tax
clearance certificates and so on. We can see that the Board has
used the power to engage in soundings (where, typically, a
representative of the legal profession might discreetly make
enquiries as to what kind of person is so and so). We can see that
the Board has never used their power to interview (although the
Board by letter of the 31
st
of January of this year informed the
Minister for Justice that it now intended to begin using that power
although we have yet to see how that will work, and perhaps we
can discuss that in debate later).

In terms of process, the members of the JAAB receive the
applications in advance of the meeting. They meet and discuss the
applications. Typically the Chief Justice will speak first, followed by
the President of the High Court and so on. From interview data it is
obvious that the judiciary play a leading role on the Board with the
Attorney General and member of the legal professional
representative of the applicant and President of the court for which
they are applying also playing strong roles. Typically the lay
people, the representatives of the Minister for Justice, speak last
and in every way, play a very small role on the Board and have
little influence. This is due in large part to the fact that they simply
dont know the applicants in the same way as the other members.
This is crucial, as we will see later when we look at how similar
powers are used in Scotland. Being known to members of the
Board is essential for success at that meeting. Each application
form has a photograph on it to be sure everyone knows exactly
they are discussing.

I say this because in contrast, in Scotland, applications are
reviewed blind. Scotland is, in contrast to say England, a legal
system of similar enough size to that in Ireland and where people
are just as likely to be known in small network where they may be
well placed geographically or professionally. But the initial review
is designed to discount this. No names, no photographs. Just
qualifications and experience and no identifying detail. This is done
deliberately to help minimise the impact of favourably responding,
in that most natural human way, to someone we know and like. It
also evens the playing field for the lay members of the Judicial
Appointments Board for Scotland. The lay members in that Board
play a stronger role there there is a lay Chairperson, the lay
members speak first and applications are initially reviewed in this
blind way.

I dont have time to go into more details of the JAAB and its
operations any further except to make a few general points. It is
protected its confidentiality and that of its applicants well. However,
it is an opaque system without much evidence of serious
professional recruitment standards or practices. Candidates get no
feedback of any kind other than an acknowledgment. Its practices
can vary depending on who is sitting on the JAAB at a given time
and what they bring and the dominance of their personalities
relative to everyone else.

I want to make one final point about the JAAB that has not been
documented before and is essential in understanding the actual
realpolitik of the JAAB in the judicial selection process in Ireland
over time. This relates to the number of recommendations that it
makes to government of suitable persons for judicial appointment.

In 1995 when the new Board was constituted the Chairperson was
the Chief Justice, Liam Hamilton. Interview evidence from this
period (both in the JAAB and in government) shows that the Board
took the provisions of the statute literally and recommended in and
around seven names as it saw fit.

However, in the early part of the 2000s the Board dramatically
changed its processes. It was raised by a member of the Board
that perhaps they werent going about this process correctly and
that there may be a risk that by recommending seven names, as
the statute said, that the Board was, in an unconstitutional way,
encroaching on the constitutional function of the government to
perform the selection role of government. It was argued that the
approach that the Board should take instead was to weed out
those who were demonstrably unsuitable, and allow the
government to make the selection thereafter. The Board sought
and received legal advice on this point and the legal advice
acknowledged that there was a risk that this interpretation could be
correct. The Board, which, lets face it, is comprised of senior
judges and lawyers, considered this and decided to change its
processes and from that point, until the end of the interview period
in 2007, and its unknown thereafter, adopted a practice by which it
would recommend, instead of at least seven names (or fewer if
necessary) all those who were not unsuitable for judicial
appointment - as opposed to identifying the seven most
suitable.

This was a huge change in the role and function of the JAAB. The
consequence of it was that the government received very many
more names per vacancy than had previously been the case. Let
me put some numbers on this. Lets say 25 people apply for a High
Court job. Maybe 5, even 7 are totally unsuitable. The government,
instead of receiving seven names now receives 18 or 20 from
which they can choose their preferred candidate. It increases the
political discretion of the government far beyond the already
comparatively broad discretion retained in the statutory provisions.

But lets look at another court the District Court. We can see from
JAAB Annual Reports that you might have 100 or 120 applications
for a District Court appointment. Lets say a quarter are totally
unsuitable. Now, instead of recommending 7 names, the
government, based on the new standard adopted by the JAAB, will
receive 75 or 80 or 90 names. What does it matter at that number?
If the government couldnt find someone they liked in that number
it would be a strange situation.

I say the JAAB, consciously or unconsciously, through this
changed process, divested itself of its power in the judicial
selection process in Ireland. And that seems counter-intuitive.

I think it is important though that it be named in order to help
inform current and future debate about judicial selection in Ireland.
Yes, the statutory design of the new institutional model in 1995
was such that it retained more discretion for government than had
earlier been mooted in the 1994 Bill. But it was the JAAB, and not
the government, that ensured that government regained a very
large measure of political discretion in judicial selection.

Without acknowledging and addressing the reality of the
implementation of the Courts and Courts Officers Act 1995 over
time by the JAAB we cannot have any useful discussion about any
further reform of the judicial selection process. Certainly if I sat on
the Oireachtas Justice Committee I would have great difficulty in
making statutory change to a system that has operated very far
from the extant express statutory provisions. I suggest that prior to
any further discussion about statutory change, the JAAB publish
an account of its systems and practices over the near 20 years of
its existence as part of the judicial selection architecture. But
nevertheless, to depart so significantly from the statutory design,
without any reference back to the Oireachtas, is in my view itself
unsatisfactory and problematic in terms of transparency. Clearly,
the report
1
produced by the Judicial Appointments Review
Committee was an opportunity to do this as four members of that
committee are also the judicial members of the current JAAB. I
cannot explain why this was not done and why, in contrast, that
Committee made recommendations that mirrored powers the
JAAB already had (that of recommending three names) but was
not using.

The Judicial Appointments Review Committee also argued that
judicial independence would be best protected by a reduction of
the role of politics in judicial appointment. In doing so it relies on
the World Economic Forum Global Competitiveness Report 2013-
14
2
which states that Ireland is the 3
rd
most independent judiciary
in the world. The Judicial Appointments Review Committee argues
that this is in spite of and not because of Irelands judicial
appointment system which is demonstrably deficient. They do not
elaborate on how it is so deficient except to say that it is too
political. We have to decouple this notion that judicial
independence and systems are appointed are linked in developed
democracies. Unless the judge is seeking re-appointment or
reconfirmation, there is no connection. Looking at the same report
as the judiciary we can see that New Zealand is held to be the
most independent judiciary while it is the system of judicial
selection in which politicians have greatest power and discretion to
choose preferred candidates. England and Wales, which has the
least power for politicians, comes a good deal behind Ireland at
sixth in the world in terms of judicial independence.

So what does all of this mean? This conference is about the
institutions of the 21
st
century and what I have tried to do is use

1

http://www.supremecourt.ie/SupremeCourt/sclibrary3.nsf/(WebFiles)/51E71A71B9961BD680257C7000
5CCE2D/$FILE/A Preliminary Submission of J.A.R.C. 30.01.2014.pdf
2
http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2013-14.pdf
this case study to draw lessons for how we might think about
institutional design in the future.

Elements of institutional design may allow for institutional drift, as
we saw with the practices of the JAAB. This resulted in a functional
shift of the operation of that institution which may need to be
revisited but at least needs to be named and understood today as
the Department of Justice is currently considering possible
changes to the judicial selection system. This kind of functional
shift probably could not, I suggest, have happened if the statute
said at least three and not more than five names. Drafting matters.