The Chief Justice, Mrs Justice Susan Denham, has expressed an implied criticism of the Irish system of judicial appointments in endorsing a declaration by European judicial councils, writes CAROL COULTER
EARLIER THIS month a meeting of European judges took place in Dublin which excited little attention, as its proceedings were in private. However, it ended with a declaration, endorsed by the Chief Justice, Mrs Justice Susan Denham, which if heeded could have a major impact on how judges are appointed here in future.
The declaration from the European Network of Councils for the Judiciary (ENCJ), representing the collective bodies for judges throughout the EU, said judicial appointments should be based only on merit and capabilities, and made by bodies totally independent of governments and the political system.
In endorsing the report, Mrs Justice Denham distanced herself from the system of appointing judges in Ireland, where judges are directly chosen by the government of the day, usually (though not necessarily) based on a list presented by the Judicial Appointments Advisory Board (JAAB).
This is the first time a serving senior judge has expressed an implied criticism of the existing system. It comes after a rash of appointments to the bench by the Fine Gael-Labour Coalition, the majority of whom had links with one or other Coalition party.
Last November the Government appointed six judges, five of whom had Government links. Mr Justice Michael White, promoted from the Circuit Court to the High Court, was a former Workers’ Party election candidate, and Mr Justice Kevin Cross was a son-in-law of former Fine Gael minister Patrick Lindsay and a donor to Lucinda Creighton’s election campaign. Last month the Government appointed another five, including John O’Connor, a member of a well-known legal family in Co Mayo with Fine Gael links, and Iseult O’Malley, active in the Labour lawyers’ group.
No one suggests any of the new appointees are not eminently qualified for the posts, but the appointments showed the essentially political nature of the system.
The ENCJ declaration endorsed a report from that body on judicial appointments which sets out criteria greatly at odds with the current Irish system.
It requires a clearly defined and published set of selection competencies against which candidates for judicial appointment should be assessed. Any reports or comments from legal professionals used in the process should be recorded in writing and available for scrutiny, it said.
Diversity in the range of persons appointed should be encouraged, though the report does not endorse the establishment of quotas or any departure from the overriding principle that appointment should be based on merit.
It recommends that procedures for recruitment or promotion of judges should be in the hands of a body independent of government and free from government influence. This body should make its decisions in an open and transparent way where all candidates are assessed against published criteria, and the whole process should be open to scrutiny by the public, according to the report.
In contrast, the JAAB, as it states frankly in its annual reports, “does not have any function in deciding who should be appointed to judicial office. . . [and] does not give any indication of the relative merits of persons” whose names it forwards to the Government. Its sole function is to establish whether applicants meet a general set of criteria on suitability.
These include an appropriate degree of competence and probity, suitable character and temperament, agreeing to training that might be recommended and providing a tax clearance certificate.
Provided these rather vague criteria (apart from the tax clearance certificate) are met, an applicant’s name can go forward to the Government, which then chooses those it asks the President to appoint formally.
The minimum number of candidates the JAAB is asked to put forward for each position is seven. The chances of some or all of the seven having the appropriate political connections are high.
The power to appoint judges is cherished by Irish governments, but this is increasingly out of step with European practice. Direct government appointment has been abandoned in the UK.
Under the Constitution, the judiciary is independent, and this is a value cherished by its members and, it has to be said, by most politicians. However, the system of political appointment undermines the public perception of judicial independence. Not only would change enhance it, it may bring on to the bench some talented lawyers who fly below the political radar.
JUDICIAL APPOINTMENTS: HOW OTHER COUNTRIES DO IT
FRANCE
A special college, the national school for magistrates, trains judges. Following a competitive examination, aspiring judges and magistrates undergo 31 months of intensive training there. Lawyers with five years’ experience may sit the entrance examination.
After qualification and starting on the lowest rung of the judicial ladder, judges may advance with promotions decided by the superior council of magistrates.
GERMANY
Those aspiring to practise law either as judges or lawyers must enter a special two-year training programme after graduating in law from university. Those with the best results may then apply to enter the judiciary, where they are subjected to a probationary period of five years.
NETHERLANDS
There are two routes into the judiciary in the Netherlands, which again is based on the civil service concept. One consists of a six-year programme of judicial studies after the completion of a law degree. The other involves working in a law firm for six years and applying for a judgeship. In both, candidates must undergo an examination in law and psychological testing. Candidates are then interviewed by a selection committee made up of lawyers, prosecutors, government and university officials, and some representatives of other professions.
ITALY
The system is essentially based on the French model, though the training is less rigorous and until 2005 there was a common route into a judicial and prosecutorial career. Judges are appointed, promoted and assigned by the high council of the judiciary, elected by judges, senior lawyers and university law professors.
OTHER EU STATES
Similar systems of appointment, with special educational institutions, exist in other EU member states, all of which have judicial councils that play a major role in the appointment, education and training of judges.
Most member states also have constitutional courts, which are separated from the ordinary courts and consider constitutional issues. These questions generally do not come from the ordinary courts by way of appeal, but are referred by judges seeking a constitutional interpretation.
Members of constitutional courts are normally appointed through the political system.