Changes to judicial appointments will do ‘long-term harm’

The Government’s plan for changing how judges are appointed will do “long-term harm” to the administration of justice, a senior judge has said in the strongest public condemnation yet by the judiciary of the proposed measures.

Concerns previously expressed privately by Chief Justice Susan Denham to Taoiseach Enda Kenny ought to be taken with the utmost seriousness by the Government, Mr Justice Patrick McCarthy said. "There is no sign of that to date."

The judge, who manages the criminal division of the High Court, was speaking at a ceremony to mark the awarding of certificates to graduating solicitors at the Law Society building at Blackhall Place, Dublin.

The Law Society has come out in favour of the proposed measures, which would see a new judicial appointments commission being appointed in which there would be only two judges and which would have a chair that was not the Chief Justice.

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A Judicial Appointments Bill was to be brought to Cabinet this week but is not yet finalised. The proposed change is being championed by Independent minister Share Ross.

“Regrettably the Government’s proposals are wrong in principle and in practice will do long-term harm to the administration of justice because of the ill effects they will have upon the system of appointments,” Mr Justice McCarthy said.

He said the “harmful nature” of the proposals had motivated the Chief Justice, who is due to retire in August, to take the “exceptional step” of meeting the Taoiseach so as to express her “grave concerns”.

Strong reservations

Ms Justice Denham met the Taoiseach late last year and followed up with a letter outlining her strong reservations about the proposed changes.

Mr Justice McCarthy said a review of the appointments system started in 2014 had never been concluded. It would be better to complete this review as it would allow “the development of serious-minded, well-informed proposals, which these are not”.

There was a duty on each branch of government to have respect for the other. This was “not a nominal thing”, he said, and must be given real substance.

The exclusion of the Chief Justice from the chair of the proposed new commission “downgrades or marginalises that office” and is not in accordance with the respect the Government and the Oireachtas is obliged to have towards the judiciary.

It was hard to see the idea that the Taoiseach, Cathaoirleach or Ceann Comhairle would be “downgraded” from the chair of any similar body would be considered “for an instant”, he said.

“The fact that only one other judge will be a member of the commission and others present on sufferance only on an occasional advisory basis is further evidence of that lack of respect.”

The proposed commission would not have the required competence to do what is needed in terms of judicial selection “if the majority of members are lay members, the Chief Justice is not in the chair, and all of the presidents of the courts [Court of Appeal, High Court, Circuit Court and District Court] are not full members”.

While lay members would be able to bring useful insights, it was hard to envisage “any system of appointment in any walk of life which would give dominance to those with little or no experience of the essential criteria for appointment”.