Appointing the judges

Sat, Feb 1, 2014, 14:10

The report submitted on Thursday by the judiciary – specifically the Judicial Appointments Review Committee – to Minister for Justice and Equality Alan Shatter pulls no punches. It is a remarkably cogent and blunt document that spares neither the Minister’s blushes in its complaints about his failure to consult, nor in its criticism of the institutions that are supposed to support the judiciary, most particularly the system of appointments .

Chief Justice Susan Denham, who chaired the committee, sums it up simply: “It is increasingly clear that the success of the administration of justice in Ireland has been achieved in spite of, rather than because of, the appointment system”.

The fig leaf remit of the current “independent” Judicial Appointments Advisory Board (JAAB) does little more, as one barrister put it recently, than ensure that the long lists of suitable candidates for the bench supplied to the minister do not include convicted axe murderers. The discretion is then entirely left to the Minister and Cabinet.

In practice that system has produced a fine, talented, and independent bench of which this country can be proud and which has a high international standing, but which is tainted by the perception, as the report says, “that to a greater or lesser extent, political connection with, or allegiance to, the parties then in Government, can favourably affect the appointment decision”. Judicial independence is a fundamental constituional value that is being undermined.

The report suggests suggests that an immediate remedy would be to put into law the principle of appointment on merit and a prohibition on taking political allegiance into account. And yet, as such discrimination is not anyway acknowledged, that might appear a rather token gesture.

More practically, the report argues convincingly that, pending a fundamental review, the Minister could immediately introduce simple changes that would address the issue by largely removing any political discretion in appointments: he could require the JAAB to limit its nominations to three per vacancy, and giving it the right to rank candidates and to designate any particular candidate as “outstanding”. Where it is proposed to fill a judicial position by internal promotion the candidates should also be subject to the advisory process of the JAAB.

Among its other welcome recommendations the committee returns to a well-ploughed field in arguing for the rapid establishment of a “properly resourced” judicial council with powers in relation to judicial representation, discipline, and responsibility for sorely lacking judicial education programmes.

The report’s plea that, in the interests of not deterring talented applicants for the bench, the Government should review its recent decision to cut judicial pensions , while understandable, is perhaps not politically realistic. It will do little to win friends among the public which, rightly or wrongly, perceives the whole legal profession as a bunch of paampered fat cats.

The report, a rare collective statement on the part of the judiciary, makes an important and convincing case, however. It deserves to be acted upon, and, given the imminence of some 15-plus vacancies on the bench, promptly.