Changes to the way judges are selected

Minister for Justice Frances Fitzgerald is to publish legislation in the coming months to change to way in which judges are selected for appointment.

Among the options being considered are whether the Judicial Applications Advisory Board (JAAB) should be required to recommend a smaller number of suitable candidates to Government, and whether ministers should be obliged to choose from that list. Such changes would reduce the Government’s discretion in the selection process.

Under a system put in place in 1995, the board receives applications for positions on the bench and sends a list of candidates who meet minimum eligibility criteria to the Minister for Justice. It does not rank applicants by merit and the Government has the freedom to ignore its recommendations and pick its own nominees.

In an interview with The Irish Times, Ms Fitzgerald said that while claims about political patronage in the current system were sometimes "overplayed" there was "room for development" in the system.

She said a key point that emerged during a recent consultation was a desire to ensure the judiciary retained its independence. Submissions also stressed the need for the judiciary to reflect the diversity of society and for appointments to be made on merit.

However, she added that Ireland had been "fortunate" in the quality of its judges and noted a recent Council of Europe report that found Ireland's judiciary to be among the most trusted public institutions in the country.

“I don’t rule out the JAAB developing further, and the interaction between Government and JAAB developing in other ways,” she said, adding that she planned to discuss the issue with the judiciary.

“In terms of the separation of powers, I’m completely fanatical about it. I think it’s incredibly important. That’s the bottom line. It’s a pillar of our society, and respect for it is so basic that it goes without saying.”

Relations between Government and the judiciary, which became extremely tense after the referendum on judicial pay in 2011, have grown warmer since Ms Fitzgerald replaced Alan Shatter at the Department of Justice last year.

She said her dealings with senior judges were “very positive and very professional” and that recent changes to the courts system, including the establishment of a Court of Appeal, had been “handled well all round”.

In the coming weeks, she will also publish a Judicial Council Bill, a long-discussed piece of legislation that will put in place a system for investigating claims of judicial misconduct. It will also provide for formal training for judges.

Last month, the Government published a final batch of amendments to the Legal Services Regulation Bill, a long-delayed overhaul of the legal sector that was instigated by the EU-IMF troika.

Ms Fitzgerald has retained most of the key elements of the Bill first published by Mr Shatter in 2011, but a proposal to allow lawyers join one-stop shops with accountants and other professionals has been softened.

The plan, strongly opposed by barristers, will now be subject to a six-month period of research followed by six months of public consultation. If that review results in a recommendation that multi-disciplinary practices (MDPs) should not be introduced, the Minister for Justice of the day will have the power to scrap the idea.

Critics have accused Ms Fitzgerald of giving too much ground to the Bar Council, the body that represents barristers. She firmly rejects that. In the three years since the Bill was published, she argues, developments overseas have provided useful pointers on MDPs. "I found out that it has taken seven years to roll out MDPs in England and Wales. That's an interesting point," she says. Moreover, taken-up was low in New South Wales in Australia, where they were also introduced.

“I also wanted to make sure the rights of consumers were protected . . . I wanted a bit more information on the impact on the market here and on consumers as well as the legal profession. I felt that hadn’t been worked out.

“I think it’s a completely reasonable case. You’re talking about different professional groups with different standards, different codes of conduct, particularly different financial arrangements. It’s quite reasonable to start teasing out all of that.”

Ms Fitzgerald adds that a separate proposal to allow solicitors and barristers to set up legal partnerships remains in the Bill. Also, barristers who work together from the same premises will in future be allowed to advertise themselves as such.

“I think the approach I have taken is very reasonable. I think it’s logical. It opens the door fully to partnerships and it says in relation to the multi-disciplinary partnerships: let’s look at the model, let’s see what impact it has on the market here.

“It’s nothing to do with being captured by anyone. It’s to do with an approach to the opening up of the profession in a way that makes sense.”

It’s tempting to see in this an implicit rebuke to Mr Shatter, who championed MDPs and whose pugnacious, confrontational public style contrasts with her own. It comes just months after Ms Fitzgerald removed surrogacy from the Child and Family Relationships Bill – a decision criticised by her predecessor, who had inserted those provisions.

She rejects that construction, stressing her respect for Mr Shatter and paying “full tribute” to his work on the Court of Appeal and other policies.

“Every minister takes their own approach. It’s well known that I have the height of respect for what Alan Shatter has done as a reforming minister. I wouldn’t take from that for a moment,” she says.

“I’m not comparing myself, and I don’t want other people to. I bring my very best thinking. . . It’s about taking the job as I find it and working on it.”