Law expert says Government position on Seamus Woulfe debate is 'crazy'

Seamus Woulfe was recommended as a suitable candidate for the Supreme Court by the Judicial Appointments Advisory Board (JAAB), which is chaired by the Chief Justice.

A constitutional law expert says the Government's position on the Oireachtas questioning judicial appointments is "crazy".

Opposition politicians have called on Minister for Justice Helen McEntee to appear before the Dáil to answer questions on how former Attorney General Seamus Woulfe was appointed to the Supreme Court.

Judge Woulfe was recommended as a suitable candidate for the Supreme Court by the Judicial Appointments Advisory Board (JAAB), which is chaired by the Chief Justice.

Government sources have told the Irish Examiner that a Dáil debate on an appointment process would potentially prejudice other processes the Oireachtas may have to undertake, as well as potentially encroach on the functions of the courts.

However, David Kenny, Assistant Professor of Law at Trinity College Dublin, says the Government's stance is misguided.

"The Government has power under the Constitution to appoint judges and the idea they can't be questioned on that appointment because that threatens the judiciary is crazy," he said.

"Attempting to hold them to account is within the Oireachtas' power.

"There is an important line between the other branches of government and the judiciary but you can't turn that around to say that the Oireachtas can't hold the government to account - that doesn't make any sense.

We spent a decade debating this process and the idea the Houses can't scrutinise how the decision was reached seems wrong to me.

"To say you can't discuss that doesn't stand up. The appointment process on how the Attorney General was put onto the Supreme Court is a vastly important question of public appointment. To try and say otherwise is deeply problematic.

"The other allegation is that if you start talking about appointments people will prejudice themselves on other matters, such as impeachment, asking questions about the appointment says nothing about the other situation.

"It seems to conflate accountability with the separation of powers.

"It seems we're tying ourselves in knots to make sure we're following the rules. The concern legislators have on commenting on courts goes too far and the Oireachtas has a crucial oversight role and it shouldn't be taken away because it's regarding the judiciary. That hamstrings the Oireachtas."

Expressions of interest

The controversy over the appointment became more fraught when it emerged Taoiseach Micheál Martin was told that Seamus Woulfe’s was the only name recommended by the Judicial Appointments Advisory Board (JAAB) but Helen McEntee also had a number of expressions of interest from judges, who do not apply to JAAB for Supreme Court roles, instead they usually write to the Attorney General. 

The Taoiseach said the appointment to the Supreme Court was not discussed in the programme for government negotiations.

A spokesman for the Minister for Justice said: "As is standard practice with judicial appointments, the Minister for Justice, having considered expressions of interest from serving members of the judiciary; other judges eligible for the position; and the recommendation of JAAB, then recommended a name to Cabinet in line with the recommendation of JAAB."

It remains unclear if Ms McEntee discussed the appointment of the former Attorney General and Fine Gael member with any of her cabinet colleagues, and for this reason, opposition politicians say she must come before the Dáil.

Both the Tánaiste and Taoiseach's offices have not replied to queries about when they knew only Seamus Woulfe's name was being brought for cabinet approval.