Charles Flanagan (Laois, Fine Gael) | Oireachtas source

Judicial independence is at the core of the proper judicial role in any free society. This very independence is guaranteed by Article 35.2 of the Constitution which provides that judges are to be "independent in the exercise of their judicial functions and subject only to this Constitution and the law". The appointment of judges to our courts is of fundamental importance to the administration of justice. We are most fortunate that we have in Ireland a strong, independent, impartial and well respected Judiciary. The Irish Judiciary has served this country extremely well and, as I stated in the Dáil last Wednesday, it is now and has always been one of the great successes in our history. Members of the committee will be aware the matter has been discussed in depth over the past two weeks, having been addressed by the Taoiseach during Leaders' Questions on 20 June and 21 June 2017 and during a two-hour debate held in the Dáil on 21 June 2017. I have nothing new to add to the information provided last week other than to continue to underline what has been said a number of times by the Taoiseach and others about the appointment of Ms Justice Máire Whelan to the Court of Appeal that we have appointed a suitable person who was appropriately qualified using procedures that were at all times correct. That being said, I emphasise that judicial appointments 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 constitutional function cannot be transferred or delegated. It is a normal feature of Government in common law jurisdictions.

On 5 January 2017, the Judicial Appointments Advisory Board sought by public advertisement applications from practising barristers and solicitors eligible for appointment to the Supreme Court, Court of Appeal, High Court, Circuit Court and District Court. A vacancy for an ordinary judge of the Court of Appeal arose following the retirement of the honourable Mr. Justice Garrett Sheehan on 23 March 2017. In response to a request from the then Minister for Justice and Equality, the Judicial Appointments Advisory Board reported on 16 May 2017 that it was not in a position to recommend a person for appointment to the vacancy in the Court of Appeal. I remind the committee that section 20 of the 1995 Act provides that all proceedings of the board and all communications to the board are confidential. From time to time in the past, the Judicial Appointments Advisory Board has reported that it is not in a position to recommend any candidates as suitable for appointment as a judge. The Government, in nominating a person to the President for appointment to judicial office, is not limited constitutionally to the consideration of the outcome of an appointments board process but is obliged under the 1995 Act to first consider the names of any persons recommended by the appointments board, something which did not arise in this instance since there were no such recommendations. The Minister for Justice and Equality brings a recommendation to Government in the same way that any other Minister would make a recommendation on appointments to important public roles in the area of Government for which they are responsible.

At its meeting of 13 June 2017 Government decided to nominate the then Attorney General, Ms Máire Whelan, Senior Counsel, for appointment as an ordinary judge of the Court of Appeal in accordance with Article 13.9 of the Constitution to advise the President on appointments to judicial office. The Government acted entirely within its constitutional powers and responsibilities in making this nomination. I wish to point out that successive Governments have nominated judges since the foundation of the State. Furthermore, several Attorneys General have been appointed directly to the Bench, as might be expected given their seniority and expertise as the senior law officers in the State.

On 19 June 2017 Ms Justice Máire Whelan was appointed by the President as a judge of the Court of Appeal. I wish to remind the committee that Government, in making the decisions necessary to nominate people for judicial appointments, is performing a profound function under the Constitution and one which is at all times fundamental to our separation of powers and to the maintenance of independence and public confidence in our Judiciary. The effectiveness of the performance of this function by successive Governments has been illustrated by the extraordinary quality of the Judiciary and the public respect in which the relevant people and their independence are held. Indeed it would not be appropriate to comment any further on specific nominations to judicial office, which are decisions made by the Government and subject to Cabinet confidentiality under Article 28.4.3o of the Constitution. The Government has sole discretion under the Constitution to nominate persons of its choosing, providing they are qualified and eligible for appointment as a judge. In this case, a suitable person who was appropriately qualified was appointed to fill a judicial vacancy lawfully using a process that was at all times correct. I have no doubt that Ms Justice Whelan, having regard to her qualifications expertise and extensive experience, will make a valuable contribution to the work of the Court of Appeal.

Where existing judges of the High Court or any other court put forward expressions of interest in a vacancy to the Attorney General all such submissions are considered and are treated in a confidential manner for obvious and good reasons. While of course such expressions of interest are always considered, constitutionally, the Government cannot be bound by any such expressions of interest in exercising its prerogative to advise the President on a judicial appointment. It is in accordance with the law and the Constitution for the Government to nominate a person to the President to be appointed a judge of any court. This of course includes the Court of Appeal, providing the person is eligible and qualified. It is also in accordance with the law and the Constitution for the Government to nominate for appointment an eligible and qualified person who is not already a judge, even if there are existing judges who have expressed interest in the appointment. As stated on several occasions in recent times, the Government is satisfied that all necessary procedures for judicial appointments were followed in the appointment of Ms Justice Máire Whelan to the Court of Appeal. I am satisfied that Ms Justice Whelan will make a valuable contribution to the work of the court.

I wish to briefly turn to the Government's commitment to significantly enhance the judicial selection model. The Bill dealing with judicial appointments is winding its way through Second Stage in the House and will come before the committee shortly. Among other issues, the Bill deals with the matter of the promotion of serving judges, which is currently outside the remit of the Judicial Appointments Advisory Board. Members of the committee will be aware of the process. I look forward to engaging extensively with the committee at the earliest opportunity subject to the scheduling of the Bill by the committee.

I wish to comment on matters germane to the current debate. An important feature of the new Bill is ensuring that the process for judicial appointments is open, fair, transparent and accountable and that it promotes diversity. At the same time the protection of the principle of judicial independence remains central. The Bill will reduce the number of suitable candidates proposed by the commission for each vacancy to three from the stipulated minimum of seven in the current system. The Bill provides the commission with 13 members. I figure all members of the committee were in the Chamber last evening and I imagine Senator Ó Donnghaile is, as always, well-briefed on the issues to hand. More important, as far as the new commission is concerned, merit is provided for in the new legislation as the criterion for selection and recommendation. Subject to that, the Bill provides for the objectives that the Judiciary should be equally comprised of men and women and that it should reflect diversity across society and within the population.

I looking forward to hearing the observations of the committee in the coming period and dealing with any outstanding issues that members may believe have not been addressed. I will do so in accordance with the long-standing principles for debate and discussion of issues under consideration.