The case for and against an angry judiciary

To exaggerate a case in pleadings is a common enough tactic by barristers, although it can prove to be counterproductive before some judges. Mr Justice Peter Kelly is one such. He has a reputation for sharply hauling down some of the more far-fetched presentations put before him in the Commercial Court.

Which makes it a little surprising that he should go so far as to describe the independence of the judicial system as “being demolished brick by brick” by the Government. Since the judge did not, apparently, release a script, we are at the disadvantage of having to rely on journalists’ reconstruction of his remarks at a business lunch last week. But if what has been reported is accurate, it is difficult to see evidence that would fully support such a dramatic assertion.

That the judges are hurting and that relations with Government are bad is not in doubt. The statement issued by the Association of Judges and the comments by Mr Justice Adrian Hardiman confirm that Mr Justice Kelly is accurately representing his colleagues' sentiments.

Even the mildest of them will cite what they see as Alan Shatter's hostile and dismissive attitude towards them and the apparent indifference of the Taoiseach to a breakdown in communications between judiciary and Government.

They are unhappy with the media too. Although the great majority of them voluntarily surrendered significant tranches of salary, they say, they got little acknowledgment of this from news media. While it is true that the majority of judges did voluntarily surrender a proportion of their pay, not all of them did. And some took their time about it. Inevitably media focus remained upon the recalcitrants.

The judges insist that their concern over pay is not about quantum. Broadly, judges’ pay equates to that of politicians. The chief justice has traditionally had parity with the taoiseach. Judges of the higher courts are paid the same as ministers, and so on. They say their concern is that there is no independent element in determining their pay, as in other common law jurisdictions. It is a fair point. Yet the people voted for the present arrangement in a referendum. If the judges have a quarrel, it is arguably more with the electorate than the Government.

If government has the capacity to amend judicial pay, it is argued, judges’ independence may be compromised. But the corollary proposition, that judges will always act independently if their pay is independently determined, is not immutable. There were cases in recent decades in which important judicial decisions appeared to reflect party political background. In other cases there appeared to be a desire to accommodate the expedient needs of government.

There is also concern among the judges about the establishment of insolvency courts and family courts. The insolvency courts, for example, may be staffed by personnel recruited from the ranks of county registrars. This would be a departure from the practice heretofore of appointing judges only from the ranks of professional barristers or solicitors. But it could be a very cost-efficient way of providing essential services and it would mirror practice in other European countries where there are direct professional routes into a judicial career.

Trained, professional judges may be recruited directly from among legal graduates. They discharge many functions, from directing serious crime investigations to adjudicating in matrimonial cases. Their pay is linked to middle grade civil servants rather than to high-ranking political figures.

The county registrar system nowadays is efficient, standardised and good value for the taxpayer. It would surely be remiss of the Government not to look to such a system at a time of financial stringency, rather than take on a cohort of functionaries with very high pay expectations.

Mr Justice Kelly was not quoted as referring to the possible implications of abolition of the Seanad, an issue which was taken up in the statement from the Association of Judges. If the Seanad is abolished, all that will stand between a judge and removal, the association says, will be a simple majority vote in the Dáil. This is not quite true. Even under present constitutional arrangements, there has to be “stated misbehaviour”. But it is an important point and it affords another very good reason to look at reform rather than abolition of the Upper House.

It is difficult at this point to see the “brick by brick” demolition of judicial independence that Mr Justice Kelly is reported as having described. The term surely goes too far. What is more readily apparent is a breakdown in communications and consultation between the judiciary and, in the first instance, the Minister who is their point of contact with Government and the administration. That, in itself, is serious enough.

Loss of pay; lack of consultation; morale at all time low. There is some irony in the similarity between the judges’ complaints and those of the Garda associations. These are difficult times for public servants at every level. Pay cuts are biting. Under-resourcing of services and functions diminishes confidence and pride in the job. There is a deep sense of not being appreciated that embraces teachers, health workers, and public servants in general.

The sense of demoralisation that Mr Justice Kelly describes is not unique to judges. Relatively high pay and elevated status are not a complete protection in the present climate of uncertainty and retrenchment. Public servants at leadership level feel under severe pressure with those at deputy and assistant secretary grade, in some cases, so daunted by the challenges ahead that they are unwilling to put themselves forward for promotion.

At times like this, Ministers need to extend themselves in listening, in supporting, in consulting. Political leadership is not just about taking decisions. It is about bringing people with you in difficult times, about persuasion and motivation. There are some skills that both Alan Shatter and Enda Kenny need to brush up on.

Conor Brady is a former editor of
The Irish Times .