Appointment of judges remains a haphazard, opaque process

Few public appointment processes are more important, yet none is more haphazard or opaque.

Governments have wide discretion in selecting judges for appointment by the President, and while attempts have been made in recent decades to formalise the process, it remains cloaked in secrecy. Apart from the key Cabinet members involved – usually the Minister for Justice, Attorney General, Taoiseach and, in a coalition, Tánaiste – even most Government Ministers tend not to see how it works.

The only formal route into the judiciary is the Judicial Appointments Advisory Board (JAAB), which is chaired by the Chief Justice and includes the other heads of courts, as well as representatives of the legal profession and two government nominees.

The JAAB was a rushed response to a political crisis faced by a Fianna Fáil-Labour coalition in 1994, when the government came close to collapse over the so-called Whelehan affair, a row over the nomination of the then attorney general Harry Whelehan as president of the High Court. The shape of the system was hammered out in a hotel in Co Wicklow by four men – Ruairí Quinn, Brian Cowen, Brendan Howlin and Noel Dempsey – whose brief was to restore trust in the fractured coalition. Cowen himself admitted later that the process was "a charade" designed to fix "a temporary political problem".

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The JAAB advertises vacancies, considers applications from barristers and solicitors and makes recommendations to Government. But the list of caveats is long. The board can recommend multiple candidates and often puts forward a lengthy list of names without ranking them, resulting in lobbying of ministers by lawyers who make it through the JAAB process (and some who don’t). The board can interview candidates but has never done so, and while its procedures have shifted a little over time, it has long been regarded as a filter that removes only clearly unsuitable candidates. Ultimately, the Government is not required to pay any heed to the board’s recommendations; it is free to select someone who hasn’t even applied.

Promotion

A second type of appointment is the promotion of a sitting judge. This is by far the most common route into the Supreme Court or the Court of Appeal, the State's highest courts. Serving judges do not go through the JAAB and there is no equivalent application process for them. In 2013, in an attempt to bring more clarity to promotions and clamp down on lobbying of ministers, the then chief justice Susan Denham agreed with the Fine Gael-Labour coalition that judges seeking promotion could write to the attorney general "expressing an interest" in a position. The practice has been for those expressions of interest to be forwarded to the Minister for Justice, who is responsible for bringing judicial nominations to Cabinet.

Under the “Denham protocol”, the judges’ letters are kept on file and considered along with any names recommended by the JAAB and any other eligible judges. In the seven years since the Denham protocol was introduced, according to two sources, the procedure at Cabinet has varied. On some occasions, the name of the recommended nominee has been accompanied, in the memorandum for government, by a list of all names put forward by the JAAB along with the names of judges who have expressed interest in promotion. In recent years, however, it has become the norm for the memorandum to contain only one name – the preferred candidate – for each vacancy.

Ministers in successive administrations – most recently Shane Ross, minister for transport in the last cabinet – say there is almost no discussion of appointments at the Cabinet table. By that stage, the decision has been made.