The Sheedy affair puts judicial system into the political spotlight

When the British Prime Minister, Mr Blair, was made an honorary bencher of the Society of the King's Inns last November the Chief Justice, Mr Justice Hamilton, told him it was a non-political institution. But, he added, it had produced five of the nine taoisigh in the history of the State.

The Society of the King's Inns is the institution where all barristers in the State are trained. All the political parties in Leinster House have a generous proportion of barristers among both their TDs and party members. Until very recently, the only route into the judiciary above the level of District Court judge was through first becoming a barrister, and therefore for many years to come members of the Supreme Court will be alumni of the King's Inns.

The Supreme Court, especially in recent years, has made new law through interpretations of the Constitution which have had far-reaching social and political implications. The court's membership is therefore of great political as well as judicial importance. Four of its eight members are due to retire soon, opening up the opportunity for a major remaking of the Supreme Court.

Political control of such senior judicial appointments has been refined but firmly retained through recent legislative changes. The Court and Court Officers Act of 1995 brought in a number of significant changes in the process for appointing judges.

It opened up the judiciary to solicitors for the first time, allowing them to qualify for appointment as Circuit Court judges, leading to the possibility of promotion to the High Court, and ultimately even to the Supreme Court. It also provided for the establishment of a Judicial Appointments Advisory Board to advise the Government on the suitability of candidates for judicial appointment.

This was meant to introduce an element of transparency into the process of judicial appointments. Until then judges were appointed by the government of the day, and involved considerable behind-the-scenes lobbying. However, appointment to judicial office by a specific government did not always imply a political affiliation with it.

No one disputes the fact that the system produced a judiciary which, on the whole, served the State well, and, once appointed, judges rarely showed any political bias or influence in their judgments. This is all the more reason why the Sheedy affair, which involves allegations of improper influence, has sent such shock-waves through the legal system.

The Judicial Appointments Advisory Board consists of the Chief Justice, the Presidents of the High, Circuit and District Courts, the Attorney General, the president of the Law Society and the chairman of the Bar Council and three lay people - Mr John Coyle of Galway, Mr Tadgh O'Donoghue of Coopers Price Waterhouse and Ms Olive Braiden of the Rape Crisis Centre, the only woman on the board.

Those wishing to be considered for appointment as judges write to the board, and supply it with any information it may need. The board considers these applications and draws up a list of 10 people for each appointment, based on their meeting the statutory requirements and their general suitability for the position. The minister for justice may vary the number of names he requires.

However, the legislation does not require the government to appoint someone from that list, merely to "first consider" them. The decision on the appointment still rests with the government, which may or may not choose from the list. As far as political considerations go, it is likely that a list of 10 will normally contain a number of applicants linked to the government of the day.

The Judicial Appointments Advisory Board has no function in the appointment of the Chief Justice or the Presidents of the High Court, Circuit Court or District Court. Serving judges must first be considered for these positions, and the procedures of the board do not apply when a serving judge is promoted.

This means that the next senior judicial appointments to arise are very unlikely to be considered by the Judicial Appointments Advisory Board. Four of the eight Supreme Court judges are due to retire in the next year or so. It is likely that all will be replaced by judges of the High Court, though it is open to the Government to appoint a senior barrister directly to the Supreme Court. This happened in the case of Mr Justice Hugh O'Flaherty.

The Chief Justice, Mr Justice Hamilton, is due to retire when he reaches the age of 72 in January next year, and he could retire at the beginning of the legal year in October. Mr Justice Kevin Lynch, Mr Justice Henry Barron and Mr Justice Donal Barrington are all over 70 and within a year or so of retiring. Mr Justice Fred Morris, President of the High Court and the next highest judge in rank after the Chief Justice, is 69, and therefore unlikely to replace Mr Justice Hamilton.

Mr Justice O'Flaherty is a strong contender to become the next Chief Justice. Known to have strong Fianna Fail connections, he has had a distinguished career.

But his appointment is by no means inevitable. Other possibilities include the former attorney general, Mr John Murray, at present a judge of the European Court. If the present attorney general, Mr David Byrne SC, does not become EU Commissioner, following Mr Padraig Flynn, he could replace Mr Murray on the European Court, allowing the latter to come home to the top judicial job in the State.

Another judge with European experience is Mr Nial Fennelly, currently an advocate-general in the Court of Justice of the EU. His term ends in the summer of 2000, and Ireland does not have a permanent seat on this court. The Supreme Court needs at least one judge with European experience.

But this juggling might not work out for the Government. In that case it might appoint Mr Justice Ronan Keane, who is 67 and could serve for less than the full seven-year term. Now 61, Mr Justice O'Flaherty would still be young enough to step into his shoes in four or five years' time.

AS well as a new Chief Justice, the Government will need to appoint three more judges to the Supreme Court. It would be politic to appoint at least one woman. Ms Justice Mella Carroll is the most senior judge on the High Court, but it is rumoured she was offered a position on the Supreme Court before and did not want it. Ms Justice Catherine McGuinness and Ms Justice Mary Laffoy are both universally well regarded, and their appointment would be welcomed. "There's a case for appointing both of them," said one senior barrister.

Mr Justice Brian McCracken won widespread respect for his conduct of the payments-to-politicians tribunal, and is a likely contender for elevation. Mr Justice Michael Moriarty is equally proving his mettle in its successor, though his previous Labour Party associations may go against him. The PDs might want to see one of their supporters on the Supreme Court, but the most senior judge previously associated with this party, Mr Justice Paul Carney, is said to enjoy what he does, and does well, on the High Court.

A senior barrister who enjoys a bet said: "If I was betting on four it would be for John Murray to come home as Chief Justice, and then McGuinness, McCracken and Moriarty for the Supreme Court."