Máire Whelan controversy: how judges are appointed

Although the AG or advisory board can make recommendations, decisions rest with cabinet

Former attorney general Máire Whelan. Photograph: Cyril Byrne

Former attorney general Máire Whelan. Photograph: Cyril Byrne

 

The nomination of former attorney general Máire Whelan to the Court of Appeal has brought the existing system for nominating judges into focus.

The Court of Appeal is an appellate court, which was established in 2014 and sits in between the High Court and the Supreme Court. It is unusual for non-judges to be nominated to the Court of Appeal or the Supreme Court, as it is considered that experienced judges are more suited to deciding on appeals.

The Judicial Appointments Advisory Board was established to make recommendations to government about people who might be suitable for appointment as judges. It accepts applications from barristers and solicitors, which are then reviewed as to their suitability for positions that need to be filled.

In January, the advisory board posted an ad inviting applications for judicial positions in all of the courts. The closing date was January 26th, but the applications would be considered for any positions that arose in the course of the year.

Previously sitting judges who wanted to be promoted would make this aspiration known by way of informal lobbying, but when he was minister for justice, Alan Shatter, and Ms Whelan, put in place a structure whereby such expressions of interest should be notified to the attorney general’s office.

The best appointments

As well as considering the promotion of judges who have expressed an interest in moving to a higher court, the attorney general can suggest judges who have not expressed an interest as being suitable for particular promotions. Experts say that often this is the system by which the best appointments are made.

Both of these systems, one for the nomination of practising solicitors and barristers and one for the promotion of sitting judges, are confidential processes.

The membership of the advisory board includes the presidents of the five courts and others, and is chaired by the Chief Justice. The sitting AG is a member.

Section 18 of the Courts and Courts Officers Act 1995 provides that the advisory board may recommend the AG for appointment to judicial office, and, where an AG wishes to be considered for appointment to judicial office, he or she should not take part in any deliberations on the matter.

Fianna Fáil justice spokesman Jim O’Callaghan says this shows it was envisaged that an AG interested in becoming a judge would apply to the advisory board.

Cabinet decision

While it is the AG who receives expressions of interest from sitting judges, or canvasses sitting judges about whether they are interested in being promoted, the bringing to cabinet of recommendations as to who should be appointed a judge is a function of the minister for justice. This is usually done in consultation with the taoiseach and the AG.

While preparing recommendations, the minister will ask the advisory board if it has any suitable names for the envisaged appointment.

Under the Constitution, the government appoints judges. So all names submitted to cabinet, through the minister for justice, whether by way of the advisory board or by way of the AG, are in law only recommendations. The decision rests with the cabinet.

Independent minister Shane Ross, during the negotiations for the programme for government, secured a commitment to create a new system of judicial appointments.

The judiciary opposes the proposed new scheme, which will see an appointments board with a lay majority and a lay chair.