Dr. Jennifer Carroll MacNeill:

It is a very important point. The legislation gives the JAAB the capacity to recommend at least seven names in respect of each vacancy. "At least seven names" means either seven or more than seven, but the board is also granted the capacity to recommend fewer than seven where it takes the view that there are fewer than seven appropriate candidates to be recommended. In my research with the JAAB members from 1995 to 2007, it was very interesting to talk to people about how this capacity was exercised over time. In 1995, when Chief Justice Liam Hamilton was the chairperson of the board, they interpreted the legislation quite tightly and very few recommendations were made to Government. That is backed up by research evidence from members of the Government at that time.
However, in the early 2000s a member of the board raised a potential difficulty with its operation, namely, that by acting in this way the board was potentially unconstitutionally usurping the selection function of Government. It was argued that rather than making a selection of preference from the pool of applicants and identifying the preferred candidates to Government, the board should recommend all applicants who were not unsuitable. This was the opposite approach to what had been practiced before - weeding out the people who were demonstrably unsuitable and recommending everybody else to Government for appointment. The new approach meant that if, say, 20% of people were definitely unsuitable for whatever reason, of the 100 District Court applications, 20 would be weeded out and 80 sent to the Government from which list it could choose a preferred candidate.
This change dramatically widened the scope for Government discretion in judicial selection, if it wished to choose a preferred candidate from the list. It is counter-intuitive for the Judicial Appointments Advisory Board, which - by statute - had been given an extraordinary new role in judicial selection and had the capacity to make a selection decision, for example to choose seven or fewer applicants out of 90 or 100 for the District Court, and send that selection to Government. It is difficult, because there is an independent board, and as long as the Government makes selection decisions from the recommendations of that board, the Government cannot be accused of acting politically in its appointments. What is extraordinary is that the JAAB would have widened the discretion of Government in this way, essentially relinquishing the selection role it had been given without reference to this committee or the Oireachtas generally or to the Government.
The JAAB operated in that way from the early 2000s until the end of my research in 2007 and I am given to understand that it continued to do so for years afterwards. It was reported in The Irish Timesthat a decision was taken by the board this summer, 2014, to return to recommending a smaller number of names to Government. I do not know how many names, I only know what was reported. It is a very important point for this committee in its assessment of the Judicial Appointments Advisory Board, because a range of people, including myself in 2004, have argued that the number of names should be reduced from seven to three. That argument assumes the JAAB was actually recommending seven, which is not the case. This committee needs to look in a very detailed way at the operation of the JAAB over time. It has been in existence for nearly 20 years now and it seems reasonable that questions might be asked of it about its processes and operations.