November 28, 2010 - Brief Counsel cited by The Sunday Times
28/11/2010
Mark Tighe, writing in today's Sunday Times, cites Brief Counsel's Hugh Kennedy when discussing lobbying of politicians by senior lawyers seeking appointment to to the judiciary. The full text of the article appears below.
Letters show Fianna Fail TDs lobbied to appoint judges
Batt O'Keeffe applied the most pressure, writing seven separate letters to the justice minister advocating the appointment of particular lawyers
Mark Tighe
Published: 28 November 2010
Twenty-three Fianna Fail politicians have lobbied the justice minister over the past 12 years to have particular lawyers appointed as judges.
Extensive political lobbying in the judicial appointments system is revealed in correspondence obtained through the Freedom of Information (FoI) act. It shows that Batt O'Keeffe, the enterprise minister, applied most pressure, writing seven separate letters to the justice minister advocating the appointment of lawyers as judges.
O'Keeffe wrote the seven letters between 2000 and 2004 when John O'Donoghue and Michael McDowell were in the Department of Justice. Yesterday his spokesman said: "Any letters the minister wrote to members of the government were on the basis of the calibre and experience of suitably qualified candidates for appointment to the bench."
Mary Coughlan, the tanaiste, Bertie Ahern, the former taoiseach, Dick Roche, the minister for Europe, and Tom Kitt, the former government chief whip, made two representations each in support of lawyers who were hoping to become either district or circuit court judges.
The appointments process has always been shrouded in secrecy. Under a scheme created in 1995, lawyers can apply to the Judicial Appointments Advisory Board (JAAB), which provides the government with a shortlist of suitable candidates for each vacancy. The government can decide to appoint a judge from this list, or someone else.
Hugh Kennedy, director of Brief Counsel, a legal services procurement firm, said details of the representations released under FoI were damaging for the judiciary and lawyers.
"I don't really blame the politicians in question because this sort of tawdry stuff, making representations on behalf of every Tom, Dick and Harry, is what they spend their entire time doing," he said. "However, the lawyers in question really should know better then to cause damage to the reputation of our independent judiciary when it emerges that some have been appointed to the bench after lobbying members of particular political parties.
"It also tends to make a mockery of the JAAB's statutory role. Widespread cronyism and granting of favours between senior lawyers and politicians could also explain why simple and necessary reforms of the legal professions have been continuously ignored and blocked by ministers for justice, to the detriment of Irish consumers and the state."
Because the Department of Justice has withheld the names of the lawyers from the letters, it is not possible to tell if O'Keeffe was lobbying for the same solicitor or barrister in each of his seven letters.
While it was known that politics played a role in securing judicial positions, the letters show some barristers vigorously pursue Fianna Fail TDs. The Department of Justice said that out of 42 political letters it received since 1998, just four were lobbying on behalf of candidates who were subsequently appointed to the judiciary.
In O'Keeffe's first letter, in November 2000, he told O'Donoghue that he would like to recommend that a named lawyer "be considered favourably for a position as a district court judge as soon as possible". He states that he knows such positions will be available soon.
In a letter sent in May 2001, O'Keeffe tells O'Donoghue that he would "be obliged" if he considered a named lawyer for a circuit court position. A month later O'Keeffe sent O'Donoghue a copy of a letter written by the lawyer and asks for his request to be considered "favourably".
In October 2001, O'Keeffe wrote that a barrister "is very anxious" to be appointed a circuit court judge. The Cork TD says that he knows there are two vacancies in the Cork area and asks O'Donoghue to consider the lawyer for one of the positions "at the earliest possible date".
In March 2002, O'Keeffe wrote that a lawyer had contacted him about his "desire" to be a Cork circuit court judge when a named judge retired. He again asked for this request to be considered "favourably". In May of that year he wrote that a judge was retiring that week in Cork and asked for a barrister to be considered favourably for the position.
The last letter from O'Keeffe was from 2004 to McDowell and asked that a woman lawyer be appointed as a district court judge.
One representation made by Bertie Ahern to O'Donoghue in 1999 came after a request from Jackie Healy-Rae, an independent Kerry TD, who wanted someone appointed to the district court. At that time Ahern's government was relying on Healy-Rae for support in the Dail.
Coughlan lobbied O'Donoghue twice in 2001. In September she wrote: "You may recall I contacted you on behalf of [name withheld] whom I recommended as a circuit court judge." She asked for the woman to be considered for appointment.
In a letter in November 2001 Coughlan wrote again on behalf of a woman saying: "I feel that she would be a more than suitable candidate."
In 2006, four years after O'Donoghue left the Department of Justice, he wrote to McDowell to lobby for a lawyer to get a circuit court judge position. The department stamped the letter "very urgent".
A letter written in 1999 by Jim McDaid, then the minister for tourism, states that he is "under tremendous pressure" from a lawyer who wants to become a district court judge. Mary O'Rourke wrote in the same year on behalf of a lawyer, saying "I can most strongly vouch for her estimable qualities".
Only one representation was received on behalf of a lawyer seeking to be appointed to the High Court. It was made in 2001 by David Andrews. "[Name withheld] possesses both the intellectual probity and practical application that are required of a member of the superior courts," he wrote.
The Fine Gael finance spokesman Michael Noonan also made representations to McDowell.
Feargal Quinn, an indepen-dent senator, wrote to Dermot Ahern in 2008 asking him to think favourably of a female lawyer whose "proud father is hoping she will succeed".
(Copyright The Sunday Times).