When he is formally appointed chief justice in the coming days, Mr Justice Frank Clarke will become the 12th person since the foundation of the State to occupy that important office. In taking over from Mrs Justice Susan Denham, he inherits a bigger, busier and more complex courts system than any of his predecessors. But Mrs Justice Denham leaves behind a structure that, largely due to her own efforts, has been significantly enhanced and modernised, not least through the establishment of the Court of Appeal and opening of a new criminal courts complex in Dublin.
Yet the incoming chief justice faces a multitude of challenges, some of which go to the heart of our justice system and its role in serving the community. The establishment of the Court of Appeal in 2014 altered the shape of the superior courts and enabled the Supreme Court to all but eliminate the huge backlog of cases that had built up in the system. But there are signs that the new appeals court is itself struggling to cope with the volume of cases it receives. It urgently needs more judges.
The creation of the Court of Appeal has also changed the nature of the Supreme Court itself. For the first time in its history, it can choose which appeals to hear. While it can hear a range of cases of major importance, the court is evolving into something more akin to a continental-style constitutional court. That sharpening of focus is welcome. But the court’s voice could be made more coherent, and its jurisprudence arguably more consistent in the long run, by reducing its membership, which expanded to 10 judges when the backlog was at its heaviest. That could be done by not replacing Mrs Justice Denham and not filling the two other vacancies on the court, leaving it with seven judges – the number it typically selects for the biggest cases.
A chief justice is not only the senior judge of the Supreme Court. He or she is also head of the judiciary. As such, Mr Justice Clarke will lead a judicial corps in which, after years of bruising confrontation with government, morale is low and turnover has been exceptionally high. He will also be expected to take the lead in modernising court procedures and improving access to court information, where reform is badly needed.
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Many of the changes that are most urgently required in the legal system are the responsibility of Government. But Mr Justice Clarke, who had a long association with Fine Gael, will enjoy considerable political capital in the early stages of his tenure. He should use it to press and encourage Government to enact the vital and long-delayed Judicial Council Bill, which will set up a regime for training and disciplining judges. He also has the opportunity to take a lead on perhaps the most significant problem with the legal system: the prohibitive costs that make access to justice an ideal that remains very far from being realised.