Coalition has scope to alter key parts of judiciary

Many questions remain over how new Court of Appeal will operate

The Four Courts in Dublin. The High Court has lost a number of prominent judges recently and will be further depleted within months. Photograph: Bryan O’Brien

The Four Courts in Dublin. The High Court has lost a number of prominent judges recently and will be further depleted within months. Photograph: Bryan O’Brien

Thu, Jan 9, 2014, 01:00

More than 15 vacancies are expected to arise on the superior courts in the coming months, giving the Government a rare opportunity to reshape key parts of the judiciary.

The changes will be felt first in the High Court, which has lost a number of prominent judges recently and will be further depleted within months, when Mr Justice Eamon de Valera and Ms Justice Maureen Clark reach retirement age. Later in the year, they will be followed by two more long-serving figures, Mr Justice Barry White and Mr Justice Daniel Herbert, who are also due to retire.

They are the ones we know about; speculation is rife that a number of other high-profile judges may step down before August 31st, which would allow them to benefit from a “grace period” open to public servants who wish to avoid a super-tax on their pensions above €115,000.

That would present real problems for the busy High Court, which has already had to absorb significant losses of late with the retirement of Mr Justice John Cooke, the sudden death of Mr Justice Kevin Feeney and the elevation to the Supreme Court of Ms Justice Mary Laffoy and Ms Justice Elizabeth Dunne.

Yesterday, President Michael D Higgins formally appointed Marie Baker SC and Bronagh O’Hanlon SC and solicitor Max Barrett to fill three of those vacancies.

Staying put
One person who is staying put, however, is the president of the High Court, Mr Justice Nicholas Kearns, who has told colleagues he intends to remain in his position until his retirement in 2016 so as to provide continuity during a period of major upheaval for the court.

That would appear to rule him out as a candidate for the post of president of the Court of Appeal, the new institution that will sit between the Supreme Court and High Court and is expected to begin hearing appeals in the autumn.

The senior judge on the new court will become an ex-officio member of the Council of State and will be the person to substitute for the Chief Justice on the Presidential Commission, the body that takes over the functions of the office of President of Ireland when the office is vacant or the head of State is unavailable.

In key respects, the plans for the new court remain something of a mystery. It is not known how much its judges will earn, how long they will remain in their posts, where the court will sit, or precisely how it will interact with the Supreme Court, which – the thinking goes – will gradually be allowed to develop into a constitutional court.

Neither is it clear who will sit on the new court.

The Government could choose to promote judges from the High Court or Circuit Court, but that would leave gaps in expertise elsewhere. It could appoint practising solicitors and barristers, which would inject new blood into the judiciary, but result in lawyers who have never served as trial judges deciding on appeals – a route that has been used sparingly, and then only to promote “star” barristers with specific skills or expertise, in the past. Another possibility is that one or two Supreme Court judges could be moved to the appeals court. Most likely it will draw from each of these sources.

But ultimately the Government must be hoping that top-calibre people show an interest in the vacancies – not a foregone conclusion given the low morale in the judiciary and the fact that lawyers can earn considerably more in private practice than they would on the bench. A number of prominent long-time senior counsel have made it clear they won’t apply.

Another question concerns the future shape of the Supreme Court. With Mr Justice Nial Fennelly due to retire before the summer, the Government must decide whether to replace him or begin the process of reducing the size of the highest court from 10 members to five – its long-term plan, once the court’s backlog of cases has been cleared.

Application process
Whatever happens, the raft of vacancies this year will shine a spotlight on the opaque and anachronistic system of judicial appointments.

At present, applicants for judicial posts apply to the Judicial Appointments Advisory Board, which sends Government a list of candidates who meet a set of minimum criteria.

“The JAAB is ridiculous,” one senior counsel said recently. “It’s a fig leaf. It’s a filter to make sure you’re not an axe murderer or a child abuser, but that’s it.”

The board has never interviewed candidates and does not rank them by merit. The Government is not even required to choose from its list, which leaves politicians with wide discretion.

Minister for Justice Alan Shatter has made clear he favours change, saying there is scope for “a much more transparent and accountable system”.

He has said there is a need for more diversity in the judiciary, and recently broached whether the process should be opened to applications from legal academics.

The Department of Justice has invited submissions to feed into an internal review on the issue, but the likelihood is that any new system will not be in place until after the Government has filled this year’s slew of vacancies and put a firm imprint on the profile of the senior judiciary.