Dr. Jennifer Carroll MacNeill:

In respect of canvassing, I will read out comments from different interviewees, including Attorneys General before and after 1995 and a Minister for Justice. Canvassing went two ways. People would canvass the Government for appointments and there was reverse canvassing when the Attorney General might go to the Law Library and say, "I cannot guarantee it, but if the Government was minded, would you be interested?" In respect of canvassing members of Government, it did not go well for the people who looked to canvass. A pre-1995 Minister for Justice said:

Often, the strongest lobbying is done for the least meritorious candidate. I remember one in particular for the District Court who was brought into the Dáil and brought to visit the different Ministers' offices. I recall it was very unfavourably commented on in Government.

Another Attorney General said:

It was preferable that it did not happen. I may have received only five or six letters in my time as Attorney General; very few.

There was also indirect canvassing by lawyers. A post-1995 Attorney General said:

I was certainly approached by barristers. "Have you given any thought to so-and-so?" "You know so-and-so. His time may have come." "What about so-and-so? His wife has a health thing, you know? I think he is keen to leave the rough and tumble behind." But it was very counterproductive within Government to approach Government and canvass in that way.

The other point is the canvassing of sitting judges for promotions and different ways in which they would do it, either by writing letters or by having a more or less discreet word in the ear of the Minister of the day. Again, it tends not to work. However, the issue of judicial appointments is very important. There has been an increase in the number of promotions between the Circuit Court and the High Court since the establishment of the Judicial Appointments Advisory Board. Promotions are outside the remit of the Judicial Appointments Advisory Board.

On the one hand, one might take the view that it is a threat to independence for judges to be promoted, as they might act in a particular way that is favourable to the Government. Yet we have always had promotions between the High Court and the Supreme Court without really thinking about it. We would have to be careful if we were to try to bring that measure into the Judicial Appointments Advisory Board, about the question of whom to promote from a given court and how that would work. There would be the sitting court presidents assessing that so-and-so wants to be promoted, and let us say so-and-so is not promoted, and they all know so-and-so looked to be promoted, but they made the decision that so-and-so was not okay. There would be a need to be careful about the operation of the board, and we need to think about how that works.

In respect of political appointments, I make the point that it varies considerably between District Court and superior court positions. One post-1995 Taoiseach said that when it comes to High Court appointments, at that level politics does not matter as the people tend to pick themselves. Other people took a different view which points to the importance of being known to the decision makers. A pre-1995 Minister for Justice said that, generally, Government appointments were made on observed merit, but if there were two equally meritorious candidates, then Fianna Fáil will appoint Fianna Fáil, Fine Gael will appoint Fine Gael and so on. The truth is that if you know people, you are generally more comfortable about appointing them. That was something that came up again and again from members of Government. Between two candidates of equal merit, they were much more comfortable appointing the person whom they knew personally because they could attest to that person's character and temperament in a way they perhaps could not for the other candidate.

All of the people who contributed to the study took the appointments process enormously seriously and were aware that, whoever they appointed to the High Court, their name was attached to that appointment for the period the person would be a judge. If a judge did something mad, that could come back reputationally to the person who appointed them, and that was important, so they took it very seriously. It is a natural thing to do and it happens within the Judicial Appointments Advisory Board as well. If a person is not known to them, that person has great difficulty in getting through that. As Dr. Cahillane said earlier in respect of geography, this has implications for the composition of the Judiciary and who gets through. The legal profession is very Dublin-based and the people who are known to the Judicial Appointments Advisory Board are more likely to be Dublin-based than not. Does this exclude very good candidates from the rest of Ireland? I do not know.