Trade union for judges in no one's interest
Opinion:Earlier this week, The Irish Times reported that a website for the Association of Judges of Ireland (AJI) had been launched. And, last month the Sunday Times quoted from emails from Mr Justice Peter Kelly of the High Court, AJI president.
Written to the Minister for Public Expenditure, they complain that in respect of “cost neutral early retirement”, judges were being treated less favourably than “those in the wider public service”. When no response had been received, the judge wrote again, threatening litigation. Shortly thereafter there was a meeting with the Minister, resolving the matter to the judges’ satisfaction.
This article is about neither of these episodes, but the appropriateness of the association’s existence at all. One may quibble about whether it should be called a trade union, but the fact is it is a group acting together to make claims over its members’ terms and conditions.
Moreover, the association is thought to be necessary despite the long-standing Judges’ Council, which is concerned with matters of reform and training. In short, if it looks like a duck and talks like a duck, one can probably safely assume it is a duck.
At this point, readers may object: citizens have a right to form associations in pursuit of group self-interests. Why should judges be in a different position? In the first place, it goes with the turf: judges are in a special position. They are expected to eschew standing for office or public controversy.
Usually, this special position is to their advantage. It brings salaries and pensions high in comparison with peers in other jurisdictions, genuine respect and buckets of flattery.
One of the most eye-catching features of the present episode is that, following the churlishness or sloth of departmental officials, litigation was threatened. Is there something odd about this? In the first place, an individual judge naturally has the same right as others to take legal action. What is different now is there is the possibility of a dispute between the Government and the association of which a judge(s) hearing it is a member. One way around the difficulty might be for the case to be heard by one of the 10 per cent of judges who are not members of the AJI. But this would be difficult to arrange in the High Court and probably impossible in the three- or five-person Supreme Court.
The kind of organised, semi-public disputation between government and judiciary, to which trade union- type tactics might lead, would be in no one’s interest.
Apart from the possibility of litigation, superior court judges have a good opportunity to “work to rule” because of the number of extra-judicial duties they undertake. For example, the requirement that judges chair tribunals is only a convention, not law, and co-operation at this point could presumably be withdrawn. At worst, we could descend to some equivalent of the open split, which led to the resignation of President Cearbhall Ó Dálaigh, following the minister for defence’s “thundering disgrace” remark. This could undermine public confidence in the judiciary.
A worse scenario would be if, while there was a dispute between the AJI and government, a case came to court involving government (perhaps even concerning vested rights in the public sector, which could be a precedent applying also to judges). Might government fear it would not get a fair trial?
Finally, the independence of the judiciary means a judge in court is free of all extraneous influences, whatever the source. Is there any danger the association might seek to put some pressure on the minority of judges who decline to join?
Some of these arguments may seem unlikely. But the practice of lawyers is to test radical changes, by reference to their possible effects.
All the reports emphasise that the chief justice and the president of the High Court were not members of the association. Why does this matter? If it is okay for other judges to be in the association, it is okay for the senior judges.
The answer perhaps is that in the past, questions regarding terms and conditions were settled between the chief justice and the minister for justice, on an informal and confidential basis.
Long term, the existence of the association may have the effect of undermining such arrangements.
Another feature of the association’s meeting with the Minister is that no minutes were kept. The obvious reason is that judges are different. And that is the whole point.
* David Gwynn Morgan is Emeritus Professor of Law at University College, Cork