Judicial appointments board ‘gave discretion back to politicians’

The board that advises government on the selection of judges has divested itself of its power in that process by a dramatic shift in how it interprets its remit, a conference has heard.

The Judicial Appointments Advisory Board (JAAB) was established in 1995 as a means of reducing ministers' discretion over the selection of judges. The board receives applications for judicial posts and sends government a list of candidates who meet a set of minimum criteria.

It is required by law to recommend at least seven people for each vacancy, unless fewer than that express an interest or qualify for the role.

Drawing on unpublished doctoral research on the selection process between 1982-2007, however, lawyer Jennifer Carroll said a major change in the board's own understanding of the law in the early 2000s resulted in government regaining the discretion it had relinquished in setting up the board.

She said that interview evidence showed that in the period after the board was constituted under Chief Justice Liam Hamilton in 1995, it took the provisions of the statute literally and recommended in and around seven names for each vacancy as it saw fit.

In the early 2000s, however, the board “dramatically changed” its processes, as it feared there was a risk, by only recommending seven names, that the board was unconstitutionally encroaching on the government’s function. Instead, it was argued internally, the board should “weed out” those who were demonstrably unsuitable and allow the government to decide from there.

Speaking at the Garret FitzGerald summer school at UCD at the weekend, Dr Carroll said this was “a huge change in the role and function of the JAAB”. It meant that government would from then on receive up to 20 names for superior court vacancies and up to 90 for District Court vacancies, thereby giving politicians much wider discretion. “I say the [board], consciously or unconsciously, through this changed process, divested itself of its power in the judicial selection process in Ireland,” she added.

Speaking at the same event, Mr Justice John Mac Menamin of the Supreme Court said there was a need for greater public discussion on the major changes that might potentially flow from the EU Charter of Fundamental Rights and Freedoms.

He said the debate on its implications had hitherto been largely confined to judges and European lawyers and suggested political scientists, philosophers and economists could give useful perspectives on the context of how constitutional rights had been vindicated in the past.

“I think the issue here is profoundly important to the medium and long term, because it impinges on the way our judicial system and legal system will operate in the future, especially in the context of the constitutional principle of the separation of powers,” he said.

Mr Justice Mac Menamin said that, in this context, one question was the extent to which “principles” set down in body of the charter were enforceable by the courts, and where the lines were to be drawn between the roles of judges and politicians.