Major reforms in how judges are to be appointed ruffle feathers in the Four Courts

Recently retired High Court judge Bernard Barton provoked the ire of some former colleagues when he declared that judges live in a “rarefied” atmosphere, and that it is “ridiculous” to suggest that they know what the public is thinking.

Many of his former colleagues on the bench were furious, with one angrily insisting: “That may reflect his reality, it doesn’t reflect mine.” However, whatever the situation of some individual judges, the reality is that many of the public are likely to agree with Barton.

Many judges hail from a privileged background and attended private schools but some appointments in recent years, including to the superior courts, suggest slow change may be under way.

Several recent appointees attended state schools, hail from “ordinary” backgrounds, do not live in mansions and are more rooted in their local communities, Four Courts observers argue.

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Judges may rightly rail against it but the public perception that the judiciary is a privileged elite frequently appointed on foot of their perceived political allegiances is widespread.

The opaque appointments system has contributed to that perception, one that may have coloured current proposed reforms that would exclude practising lawyers from the new Judicial Appointments Commission.

This week the Chief Justice, Donal O’Donnell, said it is “legitimate to question” why practising lawyers are being excluded from the commission, and why it should have an equal number of lay and judicial members.

With no indication, however, that the Government will modify a Bill hailed by Minister for Justice Helen McEntee as the “biggest reform to judicial appointments in decades”, judges may have to bow to the inevitable.

Constitution

In considering how judges are appointed, the first port of call is the Constitution, which confers on government the power to appoint judges. So far, it remains unclear to what degree that power might be restricted by the new legislation.

Research by Jennifer Carroll MacNeill, a solicitor and Fine Gael TD, for her book, The Politics of Judicial Selection in Ireland confirmed that judges were often appointed on the basis of their political allegiances, although precisely how remains unclear.

Change to past informality of appointments has come dropping slow. The Judicial Appointments Advisory Board (JAAB) was set up in 1995, but only after the crisis that erupted when attorney general Harry Whelehan was appointed to the High Court.

Even afterwards, the JAAB conducted no interviews with candidates and did little more than exclude unqualified or undesirable candidates from recommendation to government.

It would recommend at least seven names for a vacancy without ranking or assessment, leaving the Cabinet of the day free to choose from within or outside that list.

A separate route applied to judges seeking appointment to one of the State’s higher courts, as they could send an expression of interest directly to the attorney general and not apply to JAAB at all.

Carroll MacNeill’s interviews with former JAAB members offered an interesting insight into attitudes, with one member believing the system worked well, comparing it with the selection of members of one’s golf club.

Further attempts at reform from 2013, including a 2017 Bill proposed by then-minister Shane Ross, faltered for a variety of reasons, including strong opposition from judges to having a lay majority on the appointments body.

The pressure for reform mounted following the August 2020 Golfgate controversy surrounding Séamus Woulfe, who had been appointed directly to the Supreme Court a month earlier, shortly after completing his term as attorney general.

Reform was promised. However, the initial plans were criticised, since there was no obligation to interview candidates and five names, instead of three, would be sent to the Cabinet for each vacancy.

In March, the 2022 Judicial Appointments Commission Bill brought change: “We need a fair, rigorous and transparent process,” academics David Kenny, Laura Cahillane and Tom Hickey wrote. “[This] goes a long way towards providing one.”

Nine-strong commission

Under the legislation, a nine-strong commission will replace the JAAB. Chaired by the Chief Justice, it will have four lay members selected by the Public Appointments Service and four judges, with the Attorney General as a non-voting member.

And it lays down a need to interview candidates and detailed selection criteria. Three names, not five, will be recommended for a single vacancy. Every candidate will have to undergo training.

The academics and others remain unhappy that the attorney general remains a member of the commission, albeit a non-voting one, for reasons including the AG will inevitably be involved in the final selection at the Cabinet table.

Meanwhile, there are calls for more clarity continue to be made on how appointments will be handled in Cabinet once ministers are faced with a three-strong list of candidates from the JAC.

The Chief Justice, while welcoming the Bill as an improvement on what has gone before, is unenthusiastic about some of its proposals, as clearly shown in his carefully-worded 20-page address to an Irish Association of Law Teachers.

He particularly welcomed two key reforms – the creation of a three-strong shortlist, but also laying down that candidates be chosen on merit. And he noted that those recommendations were made by judges in 2014.

The system here, he said, appears to have been slow to accept a merit-based appointment process, adding that the perception of political influence is damaging, “even if it is an oversimplification”.

One only has to look at the US, Poland and Hungary to conclude that any arguments in favour of a system in which political allegiance has any influence on appointments “cannot be accepted today”, he said.

‘Significant dilution’

Questioning the need for an equal number of lay and judicial members on the JAC, he said the “significant dilution” of the judicial voice, coupled with the total exclusion of practising lawyers, has the potential “to weaken the process”.

While “absolutely in favour” of strong lay representation, it was “not obvious” why it had not been decided to have a majority of judges on the commission, the Chief Justice went on.

In addition, O’Donnell considered that there is a case for devising a separate procedure for the most senior judicial appointments, although the current proposals state otherwise.

The commission will include four judges, including the Chief Justice and the President of the court where the judicial vacancy or vacancies arise. The other two judges must include a solicitor, and one must be a woman.

However, the Chief Justice believes judges leave their solicitor or barrister background behind on appointment and should be regarded as judges simpliciter – not ‘solicitor judges’ or barrister judges’.

This view is widely shared in the Four Courts, although many solicitors remain concerned at the low number of solicitors appointed as superior court judges.

Urging dialogue on the reforms, the Chief Justice said his main concern is that there “has been no process under which these views are tested or contrary views put forward”.

When contacted this week by The Irish Times, the Association of Judges of Ireland (AJI), the judges’ representative body, said it was “aware of and agreed” with the Chief Justice’s remarks.

Frustration

His rare public intervention could have been prompted by frustration by the level of consultation offered by the Department of Justice, which involved one brief meeting between the Chief Justice and officials, and no consultation with AJI.

Many lawyers agree that reform is needed, but disputes continue about whether interviews of candidates are necessary and about the desirable level of lay involvement in recommending candidates.

“How is it appropriate that a candidate should go before an interview board including people who don’t even do the day job? That’s extraordinary,” said one source close to the judiciary.

“I totally agree the laity should be represented, the input they bring is invaluable, but not having a judicial majority is bizarre,” the individual told The Irish Times, speaking anonymously.

Independent Senator and senior counsel Michael McDowell, who has been involved in appointments as a former minister for justice and, later, a member of the JAAB, said he agreed with the Chief Justice’s “very mild” criticism of the proposed reforms.

It is “very important to have feedback on character” and those best placed to provide that are lawyers who actually know something about the candidate, he said: “A candidate can be great on paper but a total disaster in reality.”

Given the qualifications required, it is “illusory” to believe judges can be wholly representative of society, he said, though he noted the Rialto upbringing of former Chief Justice Frank Clarke, whose widowed mother worked as a secretary.

According to David Kenny, associate professor of law at Trinity College Dublin, O’Donnell’s concerns have been expressed previously “very rigorously” in formal submissions on behalf of the wider judiciary.

Valid concerns

The Chief Justice, Kenny believes, has some valid concerns and has a “good point” especially about the means being used to achieve a “proxy” representation of solicitors and barristers: “It’s an unusual way to do it, that’s fair to say.”

However, Kenny believes there can be too much focus on the precise make-up of the appointments body and insufficient focus on how to define “the notion of merit” and how the commission will go about that.

The legislation offers “a lot of improvement, says Kenny. Interviews and more rigorous selection rules were opposed in the past as unnecessary, or because they would deter some lawyers from applying. Neither were good reasons, he believes.

“The idea that the more practical experience a candidate had, the better, and that the best practitioners are best for high office is still a very strong, widely held view and was echoed in the Chief Justice’s address,” he said.

However, the best lawyers are not always the best judges, the Trinity academic believes, because judges “require a different set of skills, outlook and temperament” to those fighting cases.

The removal of the lay majority previously proposed by

and the putting of the Chief Justice back at the top, gives legal equality, he believes. “There is enough good in this Bill, as it stands, to make a difference.”