There is a story lawyers love to tell each other about a colleague who found himself appointed to the High Court bench in recent years. He received a card from a friend congratulating him on his new role.
On the front of the card was a picture of the Four Courts. On the inside was a set of directions for how to get there.
For many barristers and solicitors it’s an anecdote that highlights their increasing despair at the standard of judicial appointments in years since the Government introduced large cuts to judge’s salaries and pensions.
If one is to believe some members of the legal profession, mutiny is not far off.
“It’s almost reaching crisis point at this stage,” said one particularly-exercised junior counsel. “It’s quicker to name the good ones than to list the bad ones.”
In the past becoming a High Court judge was seen as a way for the cream of Irish lawyers to give back to the system that had been so good to them
The public will not have heard much of this because lawyers are loath to publicly criticise judges, for obvious reasons. So the comments in the Seanad this week by Michael McDowell, a practising senior counsel, raised eyebrows among his Law Library colleagues.
Decline in quality
In his speech, the former justice minister and attorney general said the quality of judges has declined in recent years due to “economic factors”. He warned that if the current trend continued “we will suffer economically and internationally in the long run as far as our reputation is concerned”.
In the past becoming a High Court judge was seen as a way for the cream of Irish lawyers to give back to the system that had been so good to them. Although the salary was, and is, extremely generous compared to other professions, most top barristers and solicitors take a significant pay cut when they abandon their practices.
Judges such as Donal O'Donnell, regarded by some as the last great appointment, might have made four or five times his annual salary when he was a practitioner. One judge told The Irish Times that his income had been cut by 75 per cent when he became a judge.
"In the past [lawyers] sought appointment in their mid 50s, often at the behest of a spouse who wanted to have some family time," said barrister Fergal Foley. "They were willing to take a significant income drop in exchange for regular and certain payment and a guaranteed pension."
Mr Foley said since then some, though by no means all, of the appointments had been “awful”. He also put this down to the less attractive financial package on offer.
Pension misstep
When the government cut the salary of High Court and Circuit Court judges by a third in 2014, the ideal of senior legal figures doing their civic duty became too much of an ask for the big hitters. An even larger problem was the pension cuts which required judges to serve 20 years before being entitled to a full pension, up from 15 years.
“For a lot of people who are high in the professions, the thing that would attract them is if they become a judge at age 55 or 56, they would do 15 years and then retire at 70 with a full pension. But you can’t do that with the new rules,” one barrister said.
“So then you get applicants in their 40s, which is quite young to be a High Court judge. That was a savagely detrimental move. it was extremely damaging, poorly thought out and it should be reversed immediately.”
The economic crash also played a role. Many of the highest-earning lawyers made significant investments during the boom which were wiped out. Now they cannot afford to give up their earning power to sit on the bench.
For many, the cuts are not the main factor; it's what they symbolise. Judges just don't command the same respect and prestige that they used to. One barrister described it as nearly like every other civil service job. The efforts by the current Minister for Transport Shane Ross to reform the way judges are appointed, and the rhetoric about "insiders" and "cartels" he has employed, have compounded such feelings.
“The attack on the pay did more than diminish the economic value of the job,” said one high earning lawyer. “It reinforced a view that this was a devalued position. and hence the previous perception of prestige or value attached to it was significantly diminished.”
Last year District Court judge James Faughnan had to get an injunction to stop protesters who were unhappy with his decisions from gathering outside and his wife's business in Leitrim
Another put it in simpler, if unusually blunt, terms: "If you're a brilliant footballer and you get the call from Dundalk Town, you would say f**k off, I'm not interested. Unfortunately our bench closer resembles Dundalk than Man U."
Petty interference
This reduced status has been demonstrated in what some see as petty interference in how judges operate. Recently some new judges complained privately that they wanted to use the allowance given to them for a wig and gown to buy a laptop to use in court instead. They were told this was not allowed.
Added to this is a reduced respect among the general public for the role which has been highlighted by courtroom protests around the country by property debt activists. Last year District Court judge James Faughnan had to get an injunction to stop protesters who were unhappy with his decisions from gathering outside and his wife's business in Leitrim.
“A lot of judges were disturbed by that,” a barrister said. “You don’t have guards around the courts like you used to. They feel very vulnerable.”
There are also concerns among lawyers and judges about the current trend of promoting judges from lower courts rather than appointing them directly from the professions. In October 2014 the government promoted five Circuit Court judges to the High Court to fill the gaps left by those transferred to the new Court of Appeal. Promoting sitting judges used to be the exception rather than the rule and there are worries that it is fostering a sort of careerism in the lower ranks of the judiciary.
“The judge who keeps his or her keeps their head down and doesn’t make the controversial judgments, are they thinking they might get the nod before someone who makes waves and stands up to the HSE or the guards?” said a barrister. “That’s a worrying motivational factor.”
The pessimism is not universal. There has been a huge demographic shift in recent years in the make-up of judges in terms of both age and gender, although not so much in terms of socio-economic status. Since 2013, 11 out of the 24 new High Court appointees have been women, many of them well under 50 years old. Recently one new judge even had to take maternity leave.
“At least the new ones can use the Internet,” a solicitor said. “It’s really important to have diversity at that level. The latest crop have brought a bit of energy and means it’s not just a sea of elderly male faces. And that is needed, especially in the busier lower courts.
