Dr. Jennifer Carroll MacNeill:

I thank the committee for the invitation to be here today.

I am keen to be of whatever assistance I can be to the committee. It may be useful to set out my background in research on judicial appointments in Ireland and judicial selection systems generally in order that it might form the basis for further questions or discussions. I have been researching judicial appointments in Ireland for over ten years. In 2004, I conducted a study of the senior Judiciary in Ireland, a study which updated comparable work from 1969 on Irish judges and their backgrounds. In the context of this study I asked each participant from the Judiciary why they thought they were appointed and to outline their personal experience of the judicial selection process.
My follow-up research came to the topic from the other side and focused on the people making the decisions about whom to select for an individual judicial vacancy, in particular the key people in government between 1982 and 2007 and those on the Judicial Appointments Advisory Board from 1995 to 2007. I examined the internal Cabinet processes as well as who did what, who gathered names to consider and how and why decisions were made in respect of appointments. That period of analysis is useful because it allows us to test the impact of the establishment of the Judicial Appointments Advisory Board in the context of the 12 year period before it was established and in the 12 years afterwards in terms of its impact on the processes of Government.
Having created an independent statutory board to make recommendations, how did the board interact with the Government and its decision-making? Did the change really reduce the scope of Government, if it was so minded, to act politically? Another useful aspect of that research was that it gave me greater insight into the realpolitikof the judicial selection processes in Ireland and the actual operation of the Judicial Appointments Advisory Board, something that has not been well documented over time.
The research was situated in a comparative analysis of other common law judicial selection systems, including those in Canada, Australia, New Zealand, England and Wales, Israel, the United States, Northern Ireland and Scotland. It focused on senior judicial appointments, that is to say, the type of judges that can override governments, and in countries where, like Ireland, the appointments are made from practice as opposed to a career judiciary typical of the civil law system.
In examining these systems, I concentrated on the role of government in respect of judicial appointments and the nature of its power in that system. To what extent did government have discretion to appoint a preferred candidate? I also examined the circumstances in which political debate about whether to change to the judicial selection process arose. It came up from time to time in each jurisdiction, but for different reasons and with different sponsors and outcomes. The charge generally is that judicial appointments are too political – the inference being that governments make selection decisions based on political party patronage and that this is necessarily bad. Such charges are rarely specific or contextualised. For example, they do not take account of a government acting politically in appointing only women or only people or predominately people from an ethic or religious minority. It assumes that to act politically is associated with political party patronage, which may or may not be the case.
The reality of judicial appointments in Ireland is far more complex. The evidence from 1982 to 2007 suggests the matter is far more complex than making a simple statement that all appointments are political. It varies between courts from the District Court to the Supreme Court. A far more important factor in judicial selection from my research of governments and the Judicial Appointments Advisory Board is the person being known personally or by reputation to the decision-makers of the day. That is far more important than party political patronage although the two are not mutually exclusive.
Connected to the charge that a political judicial appointments process is bad is the charge that it presents a threat to judicial independence. Based on my research I believe there is no real connection between judicial appointment processes and judicial independence in established common law democracies where judges are appointed for a fixed term and need not seek re-election or reconfirmation in any way. Even prior to 1995, when the Government established the independent board to make recommendations, Ireland enjoyed a reputation of having an exceptionally strong and independent Judiciary throughout the six decades of its existence to that point. Furthermore, the World Economic Forum global competitiveness report ranked New Zealand as having the most independent judiciary globally. New Zealand has a judicial selection process that is entirely within the control of politicians. Ireland came further down the ranking in third place and England and Wales, where the selection process has almost no role for politicians, came sixth. Therefore, there is no direct relationship between the independence of the judicial institutions, the independence of individual members and the process by which they were appointed.
I have no wish to go over time. In conclusion I will suggest some points that may be helpful for the committee. We should consider the actual operation of the current statutory framework, the Courts and Court Officers Act 1995, which is operated and reviewed under the watch of this committee, how the relevant statutory powers have been interpreted over time and how the Act has been implemented by the Judicial Appointments Advisory Board. I can give the committee evidence from my interviews if it is helpful. The committee may be interested in the findings of my research on the role of politics in judicial appointments between 1982 and 2007 from the perspective of Government. It may be helpful to comment on some of the recent debate about reform of the Irish judicial selection process, including the recommendations made by GRECO last week as well as earlier recommendations in January from the judicial appointments review committee.