Reform needed in system of judicial appointment
LEGAL OPINION:IN 1874, ISAAC BUTT told the House of Commons that Irish judges ought to be appointed, “as in England . . . without reference to official or political claims”. Against this background, the Chief Justice may have been embarrassed at the international judicial conference held in Dublin this summer.
When the conversation turned to the selection of judges, colleagues from all other jurisdictions, even China, were able to report recent changes away from the traditional position of the sovereign (read government) making appointments, without control or consultation.
As the author of several impressive reports on the reform of the position of the judiciary, the Chief Justice must have been acutely aware that the coming of an Irish government and the passage of nearly a century and a half had changed little.
More recently, Mr Justice Kelly did not put a tooth in it, remarking in an interview that all judicial appointments in Ireland were “political appointments”.
This subject is often approached from the perspective of the need to have an independent judiciary. (This is usually understood as referring to independence of the government; though reports that an association of judges has recently been formed spark the comment that each judge should be focusing exclusively on the facts and law coming before the court and free of any extraneous influence, if necessary from the herd of other judges.)
In Ireland, there is no real danger to independence. But almost as important as independence is to have the very best candidates appointed to the judiciary. This seems unlikely if an element of allegiance to the parties in power is regarded as a relevant factor in appointments or promotions.
What is especially doleful about this is that, during the 15 or so years up to the advent of the present administration, there had been a notable improvement anyway in appointments to higher courts. I am speaking here not about the Judicial Appointments Advisory Board, which, since its brief is merely to prepare a shortlist of seven – yes, seven candidates – is mainly window-dressing. Rather, I am referring to the fact that advice to appoint only candidates who deserved it, regardless of political affiliations, had been accepted by governments.
Machinery establishing a proper system of judicial standards and discipline is dragging its slow length towards legislation. Well and good. But prevention is better than cure and selection is so much the more important stage.
Where is reform to come from? The Minister for Justice’s response to Mr Justice Kelly’s remarks was a dead-bat refusal to see that there was anything amiss. Last year, at the time of the judges’ pension amendment, the opportunity was missed to make a bigger and more significant set of reforms, including the selection system. The carefully spancelled list of topics to come before the People’s Convention go nowhere near this subject. Nor has it been raised by new Fianna Fáil, “We the People” or any of the other groups of constitutional reformers which sprang up last year.
Laypersons may well retort that this is an area, the significance and subtlety of which can best be appreciated by lawyers. Consequently lawyers should be leading the charge. There is much in this. When matters affecting the legal system are in contention (for instance, last year’s referenda, the abolition of juries in personal injuries actions or the establishment of the Personal Injuries Assessment Board), lawyers are very ready to roll up their sleeves. Why the strange silence from readers of this page on this one?
Another possible direction from which help may come is the international field. In previous cases we have seen the ECHR wielded to some effect on major issues which were resisting local pressure for reform. For example, the decriminalisation of gay activity; the lack of legal aid in civil litigation; judicial delay; or (in the UK) the lack of independence of temporary judges.
Article 6 of the Convention provides that “everyone is entitled to a . . . hearing . . . by an independent tribunal”. It could well be argued before the ECHR, perhaps in a case involving the Government, that especially in the light of the international trends noted and the precept that “justice must not only be done; it must be seen to be done”, the selection of judges by the Government does not meet this standard.
David Gwynn Morgan is Emeritus Professor of Law at University College, Cork.