What is undermining the credibility of government is the maintenance of the unbelievable

26 November 2020

Statement by Brendan Howlin on Judicial Appointments Process in advance of Questions to the Minister for Justice.

Thank you Ceann Comhairle and can I say that I very warmly welcome todays exercise in proper political accountability. I think it is one of the core functions of this house to hold the executive to account in all their actions.

Minister. I’ve been privileged to serve in three coalition governments, two of which were with your own party Fine Gael. In each government all senior government appointments, were subject to cross party agreement after detailed discussions of all available and suitable candidates.

Few appointments receive greater scrutiny than the appointment of senior judges. So much so, in fact, that one government fell in 1994, on the basis of lack of cross-party agreement. While it is correct to say that the Minister for Justice proposals one name to government for appointment, it was never, never the sole or exclusive right of that minister to determine on their own who should be nominated.

The names of all suitable candidates were circulated and considered by the leaders of each party in government. Detailed papers were presented to each leader and a consensus eventually arrived at.

As I understand it Ceann Comhairle, your position Minister is that this process was set aside, that you alone made the decision and then presented that decision to the Taoiseach, Tánaiste, and Minister Ryan, as a done deal. That their advisors, party managers, they themselves, simply nodded through your personal choice. I think I’m fairly presenting your position.

From a decade’s experience in three governments I find that an absurd position.

To get listed on the cabinet agenda a memo would have to go through a vetting process involving all party leaders involved in government, and especially the Taoiseach.

Presumably, your officials prepared the memorandum for government, and in fact in your contribution today you said you received a draft memorandum in your office on the sixth of July.

Surely you were advised that the previous government led by Leo Varadkar had established a non-statutory advisory group outside of JAAB to assist with identifying eligible and qualified persons suitable for appointment as senior judges. That that committee was served as secretary by a representative of the Department of the Taoiseach?

Were you aware that that advisory committee recommended a number of persons to be considered for judicial office?

Did you have regard to the recommendations of this advisory committee in making your choice of who to propose to government to be nominated to the Supreme Court?

You previously stated Minister that you brought a memorandum to Cabinet proposing a judicial appointment to the Supreme Court and that that memo detailed one name only. The Taoiseach has also suggested that your memo did not contain the information that three sitting judges had expressed an interest in the position.

Although you tell the House today that the draft memorandum included details of the recommendations made by JAAB, expression of interest of serving members of the judiciary and all other judges eligible for the position, was that detail included then in your final memorandum as it was, as you indicated in the draft?

And in which case how is it that the Taoiseach was unaware of the others?

Did you check, if not listing the names was normal practice?

Did you examine the most recent judicial appointment memorandum brought only weeks before, by your predecessor to check what was normal practice?

And if it was appropriate to list all eligible candidates for the information of government?

The Cabinet handbook section 3.2.c states that every memorandum for government should ensure that all relevant considerations are brought to the attention of the government in making a decision, that information provided is complete and accurate, and that any qualifications are clearly stated – do you believe you fulfilled that requirement of the cabinet Handbook, in this instance?

If it was the case that political agreement had been reached between the government parties that the outgoing Attorney General should be appointed to the Supreme Court, I believe that that would be both legal and constitutional. In deference to yourself sir as Ceann Comhairle I’ll simply say, however, that it certainly wouldn’t be best practice.

If it was the case that you minister were simply left with a fait accompli on arriving into ministerial office, that there was already a political agreement about who should fill this vacancy – that I think would be politically understood, if not accepted or agreed with.

What is undermining your position and undermining the credibility of government is the maintenance of the unbelievable – that you or any Minister for Justice, experienced, or not, whether you were three weeks in the job or five years in the job, would take it upon yourself to appoint the outgoing Attorney General to the Supreme Court in preference to all other applicants including senior serving members of the judiciary without discussing the implications of that action with the leader of your own party, or the leader of the other parties in government, and especially and I underline for constitutional reasons, with the Taoiseach of day?

Or that any self-respecting party in government would simply exclude themselves or allow themselves to be excluded from such an important process. It simply doesn’t bear credibility.

As Richard Nixon discovered it’s not always the action that is your undoing, sometimes its the strain involved in presenting a version of events that to anybody who actually knows the process, or who simply follows politics or history is not credible.

Thank you.

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