Judicially Astute Rising Star

Kevin O’Higgins is principal of Kevin O’Higgins Solicitors. He is a former President of both the Law Society and the DSBA. He is a former editor of the Parchment

First time TD and lawyer, Jennifer Carroll MacNeill has hit the political road running and is keen to make her mark. Here she talks to Kevin O’Higgins about Judges, politics and the Law

No messing about here. I launched straight into the Woulfe crisis which has, since Judge Woulfe’s meeting with the Chief Justice in early October, engulfed the twin arms of State – the judiciary, on the one hand and the Executive on the other.

What did Jennifer Carroll MacNeill make of it all, I enquired, to which she demurred: “I can’t say anything”.

It was omerta and there was no going there. The Taoiseach had ordained that there be no loose commentary. To do so could jeopardise a potential impeachment process. Says Jennifer –

“It was a moment for cool heads and steady nerves. Rushing to judgment was not an option. Often the thing to do is to take a moment and reflect and not rush to make a comment which could potentially cause problems later on down the line.”

At the time of our interview the Government had come to the realisation that there were insufficient grounds for impeachment and that no further action

Often the thing to do is to take a moment and reflect and not rush to make a comment which could potentially cause problems later on down the line

would be taken. Meanwhile Rise TD Paul Murphy was indicating his intention to put down such a motion – yet with little indication that it will attract any support. Mr Justice Woulfe will likely resume his duties as a sitting Judge of the Supreme Court in February.

My interviewee is first and foremost a lawyer, having trained in Ronan Daly Jermyn and then Pearts. Jennifer then chose to undertake post graduate studies. She completed a PhD in politics in UCD where her work won her the coveted Basil Chubb Prize for the best politics PhD in Ireland.

Her entry into politics might, therefore have seemed inevitable, but it was far from such. She knew John Paul Phelan TD, then the Minister responsible for the Local Elections. “I need a woman to run for us in Killiney-Shankill. Will you run?” Jennifer was living in the area, was at that stage working in Government and with four weeks to the election decided to give it a go and was handsomely elected as a councillor to Dun Laoghaire Rathdown County Council.

“Swing-gate” then erupted. This concerned

My vision for the future of Ireland is to continue to work through Covid, rebuild a strong economy, full employment, at the centre of Europe and a compassionate country that supports its people

Maria Bailey, a Fine Gael TD in Jennifer’s constituency and related to a personal injuries claim brought by Ms. Bailey against a hotel following her fall from a swing. It got the full Joe Duffy treatment for weeks and ultimately Ms. Bailey was deselected. Fine Gael turned to Jennifer, then scarcely a wet week in politics, to run in place of Ms. Bailey in the Dun Laoghaire Constituency. She romped home albeit at the expense of her party colleague Mary Mitchell O’Connor.

But while Jennifer would appear to be a political novice, the reality is that she had been at the political coal face for over a decade. She had worked as legal advisor for Enda Kenny as Opposition Leader. Then as policy advisor to Frances Fitzgerald from April 2011 until June 2013. She worked for the then Minister for Justice and Equality Alan Shatter from September 2013 until his resignation in May 2014. She subsequently took a break from politics, not returning until October 2017 when she did a stint with then Minister for Housing, Planning and Local Government Eoghan Murphy, where she advised him on the National Planning Framework and the creation of the Land Development Agency until January 2019 when she left to work for a Public Relations firm for a brief period before her entry into elected politics in May 2019.

Politics aside, Jennifer is the foremost legal scholar on the science of judicial appointments. This had formed the basis of her PhD and subsequently a legal tome The Politics of Judicial Selection in Ireland (Four Courts Press 2015) – an unprecedented analysis of the politics underlying the appointment of judges in Ireland. It is enlivened by a wealth of interview material and she puts the Irish experience into a broad comparative framework. It tells the inside story of the process by which Judges have been chosen both in Cabinet and in the Judicial Appointments Advisory Board (JAAB) process over the past three decades and charts a path for future reform. Based on a large number of interviews with senior judges, current and former politicians, Attorneys General and members of JAAB, it relates the circumstances surrounding decisions about institutional change in meticulous detail, giving an excellent insight into the significance of the complex series of events that govern the way in which judges are chosen in Ireland.

So who better to be quizzed about the latest twist in the Woulfe controversy. This arises from the efficacy of the Minister apparently having four names for consideration for appointment to the Supreme Court, three existing Judges (being non JAAB) and Seamus Woulfe, who was successful. This aspect of the controversy is the apparent contention that the Minister is politically charged with allegedly not having shared the other names with her political

masters when the appointment was made. Perhaps all of this will by now have become clear. But in any event Jennifer was also not going there!

As to how Judges are appointed here Jennifer surmised that the perfect system may not exist. Some countries, such as the UK (including NI) have peeled away the political layer entirely but Jennifer does not favour this absolutist approach.

“We have a hybrid system here where politics, through the elected Government of the day, chooses the judges. That’s how democracy works and means that the Minister for Justice, through Government, can choose from a group of individuals already approved by JAAB, an independent body.”

She feels the system benefits from the political input and that after JAAB has done its job, the names going forward to Government have been vetted and are all suitable for appointment.

“It’s for the politicians then (or the Minister for Justice in particular) to then seek to address any imbalance as may exist in the composition of a particular court, in areas such as gender, specialism, race, religion, sexuality.”

In fact, I was struck by the comments of former Minister for Justice Alan Shatter from Jennifer’s book when he says – “I approached the matter on the basis of, not simply who were the best lawyers (for the particular Court) but where were the gaps in the judiciary – if a member of the judiciary who had retired had two or three specialities …. I tried, and I would religiously read all of the CVs …” His point was that JAAB does not have those considerations and that without the political ingredient (as in the UK), it would be arguably undemocratic and if a bad appointment is made there would be no political accountability.

Jennifer agrees but recognises that the system needs modification. While JAAB bemoans the fact that it has no resources to conduct interviews of potential judicial candidates she would welcome interviews. However, she doubts if it would be correct for judges on JAAB to conduct same on the grounds of awkwardness of dealing with unsuccessful candidates in the court room in the future. Yet she feels that the Public Appointments Commission would be well equipped to do so. She also feels that JAAB has sometimes taken liberties with its interpretation of the legislation.

That aside Jennifer was delighted with the recent nomination of 17 of our colleagues as Senior Counsel.

“Absolutely marvellous. It’s a terrific opportunity for colleagues at the top of their game to achieve parity with their senior colleagues at the Bar. The fact that some of those appointed

Jennifer Carroll MacNeill at a glance

AGE 40 FIRST ELECTED TO DÁIL 2020 CONSTITUENCY Dun Laoghaire FAMILY Married to former Irish rugby player Hugo MacNeill. They have one son AUTHOR OF The Politics of Judicial Selection in Ireland (2016), Four Courts Press

are not necessarily litigators is particularly to be welcomed as it is a recognition that those in high end advisory areas play as important a role.”

Is she politically ambitious? I ask, and if so what role would she covet the most – Minister for Justice or Taoiseach? She replies to the effect that having spent the last 15 years in some level of public service that this endeavour is very much where she is at.

In political terms, Jennifer is flat out but thoroughly enjoying it. Her work divide as between parliamentarian in the Dáil and constituency politician is a healthy 50/50 split – Monday, Friday and Saturday – doing constituency work and Tuesday, Wednesday and Thursday – in the Dáil where she takes the legislative role most seriously. She sits on a hatful of committees close to her heart including the Justice, and Good Friday committees while holding the Equality brief for Fine Gael.

“I am passionate about politics as a tool to improve social justice, opportunity and fairness. My vision for the future of Ireland is to continue to work through Covid, rebuild a strong economy, full employment, at the centre of Europe and a compassionate country that supports its people.”

Jennifer Carroll MacNeill may have come late into mainstream politics. In her short tenure to date she has impressed far and beyond her base. No surprise then that she is to the fore in the TV studios where she is calm and always well prepped – a strength honed from her lawyer’s training, no doubt. Clearly a politician of considerable substance if she has the staying power and desire to put up with its relentless attrition.

Sarah Lawn is an associate in the Employment Group at Arthur Cox

Sick Pay on the Horizon?

Earlier this year, following clusters of outbreaks of Covid-19 in meat plants and nursing homes, much was made of the fact that there is no statutory entitlement to sick pay in Ireland. However, Sarah Lawn says the recent launch of a public consultation process by the Department of Enterprise, Trade and Employment could mean that statutory sick pay is on the horizon for Irish employees

In September 2020, the Labour Party published the Sick Leave and Parental Leave (Covid-19) Bill 2020, which proposed that after four weeks’ service, employees would be entitled to up to a maximum of 30 days of paid sick leave in any 12 month period

Current Position There is no statutory entitlement to sick pay in Ireland. An employee who is unable to work due to illness or injury will be entitled to receive State paid Illness Benefit, after six days of absence, if they have made sufficient PRSI contributions. Illness Benefit rates are graduated according to an employee’s average weekly earnings in the relevant tax year. It was announced in Budget 2021, that the waiting period for the benefit will be reduced to three days from February 2021.

In March 2020, in response to the Covid-19 pandemic, the Government introduced the Covid-19 Enhanced Illness Benefit at a rate of €350 per week for any worker who is advised to self-isolate by a medical doctor or who has tested positive for Covid-19. From August 2020, this benefit has been available to the self-employed and workers living in direct provision who are required to self-isolate or who have Covid-19. The Covid-19 Enhanced Illness Benefit is available from the first day of an employee’s illness or self-isolation and is due to operate until 31 March 2021.

While there is no statutory obligation to pay sick pay, many employers across all sectors pay employees sick pay, either on a discretionary or contractual basis. Sick pay entitlements may also be set out in collective agreements. The duration of any such sick pay can vary significantly between organisations from a few days to a number of months and will usually involve an employer “topping-up” any State paid Illness Benefit.

There are no statutory rules in relation to operating a company sick pay scheme. The recent WRC decision in User Interface Designer v Engineering Company is, however, a useful reminder to employers to ensure that any sick pay scheme is operated fairly and does not breach the Employment Equality Acts 1998-2015. In this case, a former employee of an engineering company was awarded €20,000 after an adjudication officer found that her employer’s failure to pay her sick pay under its discretionary sick pay scheme was discriminatory on the grounds of race. The complainant, who was Croatian, was able to point to an Irish comparator who had previously been paid during her period of sick leave. Calls for Change In September 2020, the Labour Party published the Sick Leave and Parental Leave (Covid-19) Bill 2020, which proposed that after four weeks’ service, employees would be entitled to up to a maximum of 30 days of paid sick leave in any 12 month period where the employee is incapable of working due to illness or injury.

Further, on 8 October 2020, the Oireachtas Special Committee on Covid-19 Response issued a report recommending the establishment of a statutory sick pay requirement for low-paid workers, such as those working in nursing homes and meat plants. The Government voted to postpone debate on the Bill for six months pending a consultation, indicating that it planned to introduce its own bill on the matter, arguing that the Labour Party’s proposals placed an undue burden on employers. Launch of Public Consultation

On 11 November 2020, the Department of Enterprise, Trade and Employment launched a public consultation process on the introduction of a statutory right to paid sick leave for all employees. The Department is encouraging all employees and employers to engage with the consultation and to complete questionnaires by 18 December 2020. In circumstances where the Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar TD, has made a commitment to bring Ireland in line with other OECD countries by providing for a statutory entitlement to sick pay, it would appear that change is imminent.