Statement by the Minister for Justice on the appointment of
Mr Séamus Woulfe SC as a judge of the Supreme Court.
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26 November, 2020
I am happy to take this opportunity to update the House on the appointment by the Government of members of the judiciary.
Over the last century one of the great successes of the modern Irish state has been the Judiciary, which has consistently acted in a robust and independent fashion and earned the respect of fellow judges in Europe and around the world. Since I was elected to this House and especially since I’ve had the honour of serving as Minister for Justice, I have been acutely conscious of my overriding duty to uphold and vindicate the independence of the Judiciary.
And, as Minister for Justice, I will continue to do so throughout this debate.
I am happy to set out the details of this appointment for the information of Deputies. However, unlike previous Ministers who have answered questions in relation to judicial appointments, I come to the House today as a number of members have put forward an motion of impeachment.
This makes it all the more important that everyone in this House today is mindful of our responsibilities.
It is incumbent on all of us to uphold the independence and integrity of the Judiciary, and to not do or say anything which could undermine the courts, or any sitting judge or indeed undermine the separation of powers.
We do not have to look too far across Europe to see instances where the independence of the judiciary is questioned. I have participated in European Union meetings where that very issue was discussed.
It is important to first set out the process by which judges are appointed under the Constitution and the law. I know many members will already be familiar with this process, given the lengthy debates in this house in recent years over the judicial appointments legislation proposed by the last Government.
Appointments to the Judiciary 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 to advise the President on judicial appointments lies with the Government alone.
The Government takes this responsibility seriously and our objective at all times is to propose the best person to fill each judicial vacancy. I can assure the House that was also the case when the Government decided to nominate Seamus Woulfe S.C. to the Supreme Court.
As I outlined to the House in replies to Parliamentary Questions earlier this week, 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 the then Minister for Justice on 4 February 2020 requesting that the Supreme Court vacancy arising from a retirement in June 2019 be filled. He cited emerging pressures including the establishment of the Cervical Check Tribunal.
As he was obliged to do under the law, the then Minister for Justice wrote to the Judicial Appointments Advisory Board (JAAB) on 17 February 2020. In keeping with the usual practice, the Minister 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 then Minister also responded 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. Indeed, 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, a week before the new Government was formed, then resulted in a second vacancy on the Supreme Court.
It might be helpful to explain that the Judicial Appointments Advisory Board (JAAB) is an independent Board established under the Courts and Court Officers Act 1995 to identify persons and inform the Government of the suitability of applicants for appointment to judicial office. In line with the Cabinet Handbook, between 11 and 14 July I informed the Taoiseach, the Tánaiste, Minister Ryan and the Attorney General of my intention to propose Seamus Woulfe for the position, 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 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. These applicants are those who meet the eligibility criteria for the particular Court – set out in the Courts Act 1961 so 12 years as a solicitor or barrister etc for the Superior Courts. Serving judges are not currently required to apply to the JAAB.
It is worth noting too that Section 18 of the 1995 Act makes specific provision that the Board may recommend the Attorney General for appointment to judicial office. Where the Attorney General wishes to be considered for appointment to judicial office, he or she shall withdraw from any deliberations of the Board concerning his or her suitability for judicial office. This is the law.
By letter to my predecessor dated 11 March, 2020, the JAAB advised that they had met on 9 March and decided to recommend one candidate, Mr Séamus Woulfe, SC, whom it considered suitable for appointment to the Supreme Court. As requested by the Minister, and as required by the Courts and Court Officers Act, 1995, the JAAB indicated that there was one applicant considered for this post through the JAAB process, Seamus Woulfe, SC, and that there were no other applicants.
Deputies will note from the annual reports of the JAAB that this number is in keeping with previous such processes in relation to the Supreme Court, with one applicant for 2 Supreme Court posts in 2019, 1 application in 2017, and 1 in 2015 from those eligible to apply through JAAB i.e. those who are not currently serving judges.
Under Section 20 of the 1995 Act, all proceedings of the Board and all communications to the Board are confidential, so that is all of the information made available to me by the independent Board.
As I have mentioned, the outgoing Government made no judicial appointments other than dealing with the urgent appointment of the President of the High Court so, 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 4 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.
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. I believe that this practice is particularly important in relation to judicial appointments, as an open debate on the merits or otherwise of sitting judges, as well as others who have been nominated by the JAAB, would amount to a complete politicisation of the judicial appointments process, when one of the very great strengths of the Irish judiciary has been its non-political character and independence, unlike what we see in many other countries.
It is a solemn duty on the part of the Minister for Justice to propose to Cabinet someone who, in the opinion of the Minister, is the best person for the particular judicial vacancy. The government then decides. That is exactly what has happened in this case.
Turning to the future, it is fair to say that reform of the law in relation to judicial appointments has been ongoing for some years. Under the previous Government, the Judicial Appointments Commission Bill was published in 2017 and was debated at great length in the Houses of the Oireachtas. The reforms arose from a public consultations process on a review of the judicial appointments system in 2014. While the Judicial Appointments Advisory Board process was regarded as an innovation in its day, almost 20 years on from its establishment it was considered timely and worthwhile to review its operation, and indeed, the entire judicial appointments system to ensure it reflects current best practice. The need to ensure and protect the principle of judicial independence was a significant factor in this consultations process.
This Government has acted appropriately at all times through the current process, which we stand over, having adhered to the process and to the law. But this Government has never believed that the judicial appointments process currently in place is as good as it should be.
And that is why we built into our Programme for Government that we would bring new legislation to reform the process very quickly. It seems that we can all agree in this House that there is significant room for improvement in the current system. I am determined to lead that reform and quickly.
And I want to work with all Deputies to make sure that the new system is future-proofed to ensure that it meets the very highest standards that we expect in choosing our future judiciary, with the diverse backgrounds and skills, reflecting the society they serve. I know I can look forward to your support in this crucial task.
I will shortly seek the approval of the Government for a new General Scheme of a Judicial Appointments Commission Bill 2020 to provide for the establishment of a new Commission to replace the Judicial Appointments Advisory Board.
This will be reforming legislation and there will be ample opportunity for this House to discuss and debate what we need to do. I intend to lead this reform, to make it happen, and above all to make it work in the interests of our independent judiciary and the public we all serve. I trust in having your support to bring this about at the earliest opportunity.