Selection Of Superior Judges In Ireland
"The structural arrangement of the EU has allowed massive irregularities and waste in EU funding and I have absolutely no hope that this situation will ever change unless the people withdraw their support for the present regime or the elitist oligarchy is removed."
Political Appointees v Justice
We are speaking at this Conference, I believe mainly of superior (High and Supreme Court) judges. Their calibre is of especially great importance to the polity because in Ireland we have, I believe, the most activist judiciary in the world . The reasons for this include the strong distrust in politicians and the people's concern for individualist values like property and reputation. The consequences of this judicial activism is writ large in such areas as: the strong value set on the rights established by the 1937 Constitution; the low value given to community interests; and the strong judicial-o-centric interpretation given to the Separation of Powers, a result of which many public functions must be assigned to judges. A British commentator in this field remarks apropos judicial activism : 'The notion of Platonic Guardians might seem to offer a brilliant short cut to individual, if not social, progress...But Platonic Guardians have to be people of exceptionally high calibre'. The reason why this remark resonates in Ireland is that it throws a sharp spotlight on the process by which judges are selected.
Before considering improvements, one ought to summarize the traditional system for selecting judges which prevailed unreformed until the mid 1990's. The Constitution states that judges are appointed by the President but (the sting in the tail) on the advice of the Government. It is well known that the Government has been concerned, often in the first place, with whether a candidate has the reputation of being a supporter of the government party or parties. Because of the strong culture of an independent judiciary and legal profession, this has not led to a servile judiciary; and examples are legion of cases in which the courts have handed down judgments inconvenient to the Government. Nevertheless it is certainly undesirable for appointments to the judiciary to appear to be part of the political spoils system in a way not seen in the United Kingdom, certainly since 1945.
Apart from anything else, in a small jurisdiction where barristers are better paid than all but the top few in the UK, the partial elimination of half the practitioners makes the size of the pool dangerously small, something which the Judicial Appointments Advisory Board has recently admitted. This is a general trait in Irish government ranging more widely than the judiciary, the political culture in Ireland has dictated that for instance the Irish EU Commissioner has always been from the governing party and that when the Taoiseach nominated eleven out of the sixty person Seanad (or upper house of the legislature) he seldom looks beyond his own party. Likewise, coming closer to home, until recently, 'State Work' - meaning prosecutions, defending judicial review cases - was confined to barristers who were thought to be friends of the governing party. Thus most barristers think it appropriate to indicate discreet but definitely their political allegiance.
In order to paint in the full picture, one ought to emphasise that the theoretical and practical independence of the Irish judiciary is well established. Governments have accepted such slaps in the face from the judges as the need to hold a referendum any time the EU is fundamentally altered. The classic late Seventeenth Century safeguards on judicial independence as regards tenure find a secure pedestal in the Constitution.
Indeed a recent episode suggested that they may go too far and that perhaps there is need for a more realistic system of judicial discipline than the remote possibility of resolutions of misconduct in both Houses of Parliament. Again in a typically activist decision in this field (Mc Menamin v Ireland,  2 ILRM 368) the High Court held that if the District Court Judges' pension scheme was not adequate then this of itself might violate the constitutional provision protecting the independence of the judiciary. The Government responded by improving the pension scheme.
Irish judicial history has nothing to show which is even remotely like, for instance: the Roosevelt court packing scheme, (1937); the Indian supersession of judges (1973); or the British Lord Chancellor's letter leading to the resignation of the President of the Employment Appeal Tribunal (1994). Undoubtedly the most major development has been the establishment of the Courts Service. Until this development, most of the personnel, accommodation, financial and other functions in respect of the courts were the responsibility of the Department of Justice. Then in 1998 these functions were transferred to the newly established Courts Service.
It's function is - to quote from the third report of the Denham Commission, which recommended its establishment: 'to manage the Courts...including the provision of support services to the judges, the provision of information...to the public, the provision, management and maintenance of Court buildings and the provision of facilities for users of the Courts.'
The Service has no function in respect of judicial appointments. But its very existence is likely over time to have an indirect effect on judicial selection, by virtue of separating the courts and judges from the Government.
The modern base line for selecting judges should be taken as starting with a political scandal in 1994. The Office of the Attorney General's nine month delay in processing warrant for the extradition of a suspected paedophile did not prevent the Taoiseach's (Prime Minister's) insistence from appointing his Attorney to the vacant post of President of the High Court.
The horrified reaction of the junior partner in the then Coalition Government brought down the Government. As a reaction, the incoming Government had inevitably to bring in some reform - real or apparent – in the selection of judges. They responded with the establishment in 1995, of the Judicial Appointments Advisory Board.
Given the ballyhoo with which it was established, in the aftermath of the fall of a Government, it is incredible that the mountain should have produced such a mouse. In the first place, the composition of the Board leaves a lot to be desired. It is top - heavy with judges and has too few lay-people. Secondly, the scheme does not apply at all to the selection of the Chief Justice or the Presidents of the other courts. Nor does the scheme apply where it is a judge from a lower court whom the Government selects. Most striking of all, the Board's power is confined to nominating a list of seven - yes seven! - candidates from which the Government may (though it is not legally obliged to do so) select the appointee. One should add though that in 1998, the Board's independence was demonstrated when the Government was on the point of appointing a candidate whom the Board did not consider suitable. The Board confidentially threatened to resign and the Government climbed down.
Only as recently as an Amendment Act of 2002, was the Board first required to produce an annual report. It came forward with some cautious proposals for reform in its Annual Report, 2002 (10 April - 31 Dec; the former date being the date of the passing of the Courts and Court Officers Act, 2002) published in July 2003. It stated first (at 23) that: 'It will be seen that, in the case of vacancies in the High Court or Supreme Court, the number of applicants has, on occasions, been relatively small.' Next, the Report states without any explanation or discussion (at 24): 'The Board has not to date availed of its power either to arrange for the interviewing of applicants or to consult with other persons concerning the suitability of applicants. It is satisfied, however, that it should avail of both these powers in the future' 'to indicate an order of preference. It is conscious, however, of the difficulties which might result from such a change, not least the question as to whether it would place unjustifiable constraints on the exercise by the Government of a function which is exclusively assigned to it under the Constitution.
Some reforms have been considered. First of all, the Constitution Review Group considered the possibility of open cross - examination (Pn 2632, 1996). They addressed the possibility of adopting the U.S. model. In the U.S. system, appointments to the Supreme Court are made by the President but must also be confirmed by the Senate, following a public questioning of the candidate before the Senate Judicial Committee. The Constitutional Review Group rejected this model on the following grounds (at 180-81):
The contemporary U.S. experience of public hearings... [shows that] such a process could create a situation where opposition groups or the media could attempt to discredit a candidate selected by the Government as a means of discrediting the Government. In addition, attempts have often been made to ascertain the value systems of candidates prior to appointment. This tendency is not helpful because it proceeds from an assumption that the candidate for judicial office ought to reflect in office some predetermined views considered suitable by those making the appointment. Finally, the intense public scrutiny of candidates is likely to deter the sort of people who would be suitable appointees.
The Judicial Appointments Advisory Board in its recent Report mentioned only to reject certain possible changes. Two major changes which would have required amending legislation, in the first place, to allow the Board to rank the candidates whom it recommended in order of its preference. But the Board said that would come close to usurping the Government's constitutional role in selecting judges. The remaining proposal would have been to recommend that the Government reduce the minimum number of nominees below the figure, seven. However this proposal was rejected because it 'would result in the exclusion of a number of candidates whom the Board would otherwise have no difficulty in recommending, the Board has come to the conclusion that the present minimum number of seven is appropriate'. A rather strange reason.
So it seems that the present position it appears is substantially unreformed and, in my opinion in need of change. However in the medium term it seems to me there could well be change. Two of the greatest imbroglios of the 1990's, drenched in media coverage and concern involved the judiciary: the appointment of the President of the High Court in 1994, which led to the fall of a government and eventually the setting up of the present Board; secondly the resignation of Mr. Justice Hugh O'Flaherty in 1999. This led on to a proposed constitutional amendment to alter the system for the dismissal of judges; though this amendment was eventually withdrawn because the Opposition refused to agree. In other words, the system is not impervious to change. And a vehicle for change - the presently unsatisfactory Board is in place. The zeitgeist is in favour of 'Openness, Accountability and Transparency'. A very relevant testimony to this is the way of in which - in cognate areas of selection, such as top civil service posts and the chairmanship of the Planning Board - the Government is presented with a short - list of only three names from which it must make its choice. A second indicator as to the way the wind is blowing is the relatively outspoken comments of the Board itself which have been quoted. Events in Britain - widely reported and followed on the smaller island (much more than vice - versa) also tell in the same direction. It seems to me very likely that in the next (say) ten years there will be a change to reducing the number of putative appointees whom the Board, may nominate. Then perhaps we shall start to wrestle with some of the more subtle and advanced issues with which this Conference is concerned.
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