Ministers should not be speaking about judges as ‘the enemy’

Former attorney general John Rogers made comments at barristers’ conference

Michael D’Arcy, Minister of State in the Department of Finance,  has spoken of taking on the judges, the legal profession and the insurance companies in his effort to address increasing insurance premiums. Photograph: Dara Mac Dónaill/The Irish Times

Michael D’Arcy, Minister of State in the Department of Finance, has spoken of taking on the judges, the legal profession and the insurance companies in his effort to address increasing insurance premiums. Photograph: Dara Mac Dónaill/The Irish Times

 

Government ministers should not be speaking about judges as “the enemy”, former attorney general, John Rogers SC, has told a barristers’ conference at the weekend.

During a session chaired by Mr Justice George Birmingham, President of the Court of Appeal, Mr Rogers said he had recently heard a Government minister speaking of “taking on” the judges.

Mr Rogers did not identify Michael D’Arcy, Minister of State in the Department of Finance, who has spoken of taking on the judges, the legal profession and the insurance companies in his effort to address increasing insurance premiums.

The former attorney general said that while ministers were of course entitled to speak, it was troubling when they began to use language such as “taking on” the judiciary.

“We can’t be in the position of turning the judges into the enemy,” he said.

Mr Rogers added he feared that the proposed new regime for the appointment of judges might be unconstitutional. The change is being pushed for by the Minister for Transport, Tourism and Sport, Shane Ross.

“The worst thing would be that they could adopt and pass a proposal that would be found to be unconstitutional, and there are many that say it is unconstitutional,” Mr Rogers said.

The conference in Co Laois, organised by the Bar Council, was focused on the position of plaintiffs and was addressed by Vicky Phelan, who told the assembled barristers and judges how “terrifying” it can be for people who find themselves before the courts.

Ms Phelan received €2.5 million in settlement of a case she took against a US testing lab over the alleged misreading of her smear tests under the CervicalCheck scheme.

Among those in the audience was Mr Justice Kevin Cross, who was the judge in her case. Ms Phelan thanked the judge for his conduct of the case and said she had “huge admiration” for him. She also said she had a very positive experience in so far as her legal team was concerned, and described them as a “dream team”.

Terrifying place

However she said that courtrooms could be a terrifying place for people who have never been in one before. “You might not see it but [a courtroom] is a scary place,” she told the assembled lawyers.

Ms Phelan, whose case took place in the Four Courts, said she found the layout of the courtroom intimidating and suggested that signs be put on seats to show who was sitting where. She also suggested that plaintiffs and witnesses might be brought on a visit to a courtroom, prior to the trial.

At the time she gave evidence she had just started on a new drug and was very unwell. The chair she had to sit on was very uncomfortable, and the angle at which she had to sit in relation to the barristers, meant it was difficult for her to “read” their body language. Ms Phelan, who is a former head of a literacy development centre, said others she had spoken with had found the language used in court difficult to follow.

Trying to follow what was happening was like trying to do “a dance where everyone else knows the steps”.

Ms Phelan suggested that plaintiffs and witnesses might find the experience of being in court easier, and be better able to give clear evidence, if the court process was better explained to them beforehand, and if they were brought on a tour of the courtroom prior to their hearing. She also suggested that the Bar Council might make a Youtube video which would explain to plaintiffs what they were going to experience.

Speaking from the floor, Mr Justice Cross said thanked Ms Phelan for the generous words she’d said about him. He called for the appointment of “a few more judges” so that medical negligence cases could be heard more speedily.