Appointing Judges

In the last month the Fine Gael/Labour government has appointed its first five judges; two to the High Court, three to the District Court.

All five had strong links with either Fine Gael or Labour.

Despite Alan Shatter, the Minister for Justice, previously attacking Fianna Fail for appointing its supporters to the bench the government seems happy to carry on in similar fashion. (See this Dail debate from 2000 where Shatter asks John O'Donoghue, then Minister for Justice, if the reason for the delay in appointing a judge was because he couldn't find a "card carrying member of Fianna Fail" in the shortlist given to him.)

Last month I wrote a piece analysing (subscription required)

the Judicial Appointments Advisory Board (JAAB) which plays a role in the appointments of judges.

Basically the JAAB gets to create a list of suitable candidates (at least seven, if there are that many interested) and the government gets to pick who it wants from this JAAB list. The government can, if it so pleases, ignore the list and pick any lawyer it wishes. For any government to suggest that political affiliations or contacts play no role in the appointment of judges is laughable.

The appointed judges may all be suitably qualified and approved by JAAB but getting the final nod is at the behest of the parties in power.

Recently The Sunday Times won a significant Freedom of Information victory by forcing the Department of Justice to release six letters (available at the end of this post in .jpg format) it has on record where politicians successfully lobbied the serving minister for justice to have certain lawyers appointed to the bench.

All these judges were appointed after being approved by the JAAB.

Interestingly the judges opposed the release of the letters suggesting if they were made public it would affect their security and they also mentioned their "judicial independence". Richard Oakley, news editor of the Sunday Times in Ireland, has blogged in detail on this FOI case.

While all of these lawyers are undoubtedly suitably qualified, the letters show how lobbying is a part of the appointments process. The JAAB actually prohibits canvassing of its members but this doesn't apply to the lobbying of Minister of Justice or ministers and TDs of government parties.

I'm confident this lobbying still goes on but the politicians are crafty enough now not to commit anything to paper which could come out under FOI.

PS. The third of the letters below was written by Mary Coughlan on behalf of Miriam Reynolds who passed away in 2009. Judge Reynolds' name is somewhat obscured in the letter released under FOI.