Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

The Supreme Court is the highest court in the land. It is essential that those who are appointed to it come through a rigorous process in order that any vacancies are filled by those most qualified to do the job. That is why process is important. The Judicial Appointments Advisory Board, otherwise known as JAAB, is a vetting process. It is all about considering if a barrister or solicitor has the skill set to make a good judge. Once JAAB establishes if an applicant or applicants meet that criterion, the name or names of those applicants go on a list and they are deemed to be eligible to be appointed. That is very important. This is not a recommendation to appoint. The Minister should not keep saying that it is. As we know, judges do not apply through this process. I presume that is because they already do the job. They have a track record of doing the job, so they do not have to be vetted for their ability to do a job they are already doing. Judges apply directly to the Minister for Justice and the Attorney General, both of whom know the names of those who apply through this route.

I listened very carefully to what the Minister had to say in her interview on "Six One". She said that, following her appointment to the justice portfolio in June, she looked at the JAAB recommendation – I underline the use of the word "recommendation" again - and other expressions of interest. I note the Minister keeps calling it a recommendation. Why is she doing that? That is a cover.

Following that, she told us that she spoke to the Taoiseach, the Tánaiste, the Minister, Deputy Eamon Ryan, and the Attorney General. We know she did not tell them that some judges specifically applied for this vacancy. She said a recommendation was made after this discussion and a name was given to Cabinet. She said that only one name is ever given to Cabinet. That does not mean that the Taoiseach, the Tánaiste and other coalition party leaders would not be fully briefed on who applied and the process used to establish who is the best fit for the job. The Minister said in the interview: "Considering Justice Woulfe's name was delivered through the JAAB, that is the name that was given to Cabinet." That is a direct quote from the Minister. She emphasised that Séamus Woulfe's name came through an official process which was chaired by the Chief Justice himself, giving the impression that this was a recommendation. JAAB was the only official process in all of this but, as I keep saying, it is a vetting process not a recommendation to appoint. However, that process has become superior to any informal application process, through which those with judicial experience apply.

The Minister was appointed as Minister for Justice on 27 June 2020. I want to concentrate on a few things that happened before that date. On the Order of Business on 17 November, the Taoiseach, Deputy Micheál Martin, said:

I and the Leader of the Green Party, Deputy Eamon Ryan, prior to the formation of the Government, were told that Mr. Justice Woulfe ... The bottom line is very simple and very straightforward. We were simply told that Mr. Justice Woulfe would come through the Judicial Appointments Advisory Board. That is it. As far as I am concerned, he came through the board and was recommended as being suitable for the position. He was an outgoing Attorney General and, in my view, was qualified for the position. In the aftermath of the formation of the Government, as Taoiseach I had no difficulty with the Minister for Justice bringing his name forward. I had no difficulty in supporting that nomination.

On 19 November, the Tánaiste said:

I am pretty sure it was the week before the new Government was formed that the party leaders discussed whether Séamus Woulfe would be reappointed as Attorney General or whether there would be a new Attorney General. We decided collectively that there would be a new Attorney General and that Séamus Woulfe would not be reappointed as Attorney General and at that point, for transparency and information, I informed the other leaders that there was a vacancy, that Séamus Woulfe had been recommended by the Judicial Appointments Advisory Board, JAAB, as suitable for that vacancy, and that was the end of the conversation.

In a nutshell, the Taoiseach told us the decision was made in advance of Deputy McEntee being appointed as Minister for Justice. He said that because Séamus Woulfe was the outgoing Attorney General and came through JAAB process, he would get the job. The Tánaiste pretty much said the same. It is as simple as that. The decision was made. There was only one name considered. The other CVs did not need to be considered. Judicial experience did not matter. That is what a political appointment looks like, yet the Minister would have us believe she went off, worked away on this on her own, went through all those eligible for promotion to the Supreme Court, including several judges who applied specifically for the role, and came to the conclusion that the former Attorney General was the best person to fill the vacancy, and that she was completely oblivious to the fact that it was a done deal. As I pointed out, it is a problem that she is using the cover of JAAB as a recommendation rather than a vetting process. If I am wrong, the Minister needs to address the following questions. What criteria did she use to evaluate the applications? Who else was involved? What value was put on track record and judicial experience? When did the Minister become aware that some judges had specifically applied for this job? I also want to know if the Minister discussed the matter with the Tánaiste, the former Minister for Justice and Equality or the former Attorney General at any point before she brought the name forward. Was she told who was to get the job?

I want to go back to the Taoiseach. One thing I find very strange in all of this is that the Taoiseach made such an issue of the importance of judicial experience when he was in opposition in 2017. This was in the context of the outgoing Attorney General, Máire Whelan, being appointed to the Court of Appeal. His central point was that she lacked any judicial experience, yet there was no issue with a very personalised debate on the floor of the Dáil. Anyone looking back at that debate will acknowledge that it is very different from today's debate.

Yet when an appointment was being made to a higher court, the Supreme Court, judicial experience was not a valued criterion for the Taoiseach or the Tánaiste. The Minister would have us believe that there was a fair and equal consideration of all applicants. The Minister received a hospital pass and is being put in the firing line. She is defending the process by which the appointment was made when we all know full well there was no process.

Just as the Minister has been put in this position, the Opposition has been taken for fools. The nonsensical suggestion that the Minister would come in and use the normal ministerial Question Time to deal with this was not only an insult but a dangerous precedent. Those who applied other than through the JAAB process must be questioning what was the point. I put some questions about this to the Taoiseach in July but they were ruled out of order. I was told that under Standing Order 44, there was no official responsibility to Dáil Éireann for some of the matters I raised relating to the criteria for appointment.

We need a judicial appointment process that truly reflects the separation of powers. The Social Democrats are of the view that cannot be done with the involvement of the political strand and there must be total separation, with appropriate checks and balances. That requires a referendum and we must end this kind of nonsense.

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