Merit-based selection process key, say judges
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.