What is the consequence of the judiciary successfully lobbying to change the Judicial Appointments Commission Bill?
The Bill updates and reforms the body used to screen judicial candidates and advises the government on the most suitable candidates for appointment. The point of difference between the Government and the judiciary on these reforms relates to the composition of the new Judicial Appointments Commission.
The Government favours a non-legal majority and chairperson and the judiciary favours the opposite. It is unfortunately binary. They are policy opposites. Interestingly, the Bar Council and the Law Society of Ireland, which represent barristers and solicitors, respectively, have taken opposing stances on the Bill too. And there are divergent views within the Oireachtas. All of that is part of normal policy debate. But at the end of the day, for reasons of basic separation of powers in the constitutional order, responsibility for changing the judicial selection system rests with the law-making majority in the Houses of the Oireachtas and not any other body – including, and indeed especially, the judiciary.
We depend on separation of powers to ensure that there is an independent and legitimate judiciary that can, through judicial review, constrain the acts of the law-making majority.
In order for this successful constitutional balance to work, there has to be a mutual understanding of, and respect for, the constitutional role of the other. Law-makers must respect the institution of the independent judiciary, its function in the constitutional order (which is to apply the law and to uphold the Constitution) and its constitutional authority to do so without any direct or indirect interference.
Similarly, though perhaps less discussed, the judiciary must respect the elected parliamentarians, their constitutional function (to enact, repeal and change laws) and their constitutional authority to do so. In reality, the focus has predominately been on the protection of the judiciary from the all-powerful legislature – protecting the guardians of vulnerable minorities from the “tyranny of the majority”.
Happily, the Republic has a very independent judiciary and this independence has been achieved by the careful and painstaking efforts of both politicians and judges over several decades.
As a former legal adviser to a political party I saw for myself, when supporting elected politicians on matters relating to court processes and court judgments, the great respect for the independence of the courts, even if politicians privately disagreed with outcomes. It is equally possible for the judiciary, or members of the judiciary, to overstep the bounds. We have to be continually vigilant about protecting separation of powers.
A hypothetical, though not exhaustive, list of infringements of the operation of separation of powers might include the following acts. It would be an infringement, for example, for law-makers to suggest how a judge should decide a case, use precedent, treat evidence or organise court lists.
Going on the same principle, hypothetical infringements by the judiciary would be suggesting the wording of constitutional referendums or suggesting a necessity to consult with the judiciary on legislative proposals. It would also infringe the separation of powers for judges to suggest a process for the development of legislation or suggest the formal of legislation not yet enacted by the Oireachtas.
Such infringements would occur equally whether or not they took place in private or in the media. An infringement that occurs in private still may place undue pressure on the other body. However, an infringement that is made public creates additional difficulties for the respective bodies and because of the potential impact on public confidence in the respective institutions of governance.
Ongoing lobbying
It is now apparent that the judiciary has engaged in ongoing lobbying of the Government on the composition of the Judicial Appointments Commission in private, and that engagement is now being brought into the public domain by speeches, comments and statements by individual judges and representatives of the judiciary.
The Government has responded – to a point. Compared to the scheme published and debated in January, the current Bill has a greater number of judges on the commission, involved in designing its new processes and involved at each stage of the selection process. But the Government has not been willing to cede its preferred policy position on the overall balance of the new commission. Nor should it. The implications of such a change, on the back of private and public lobbying by judges, are unwelcome.
The particular problem is this. What is the broader impact of the judiciary successfully lobbying to change the contents of the proposed Bill? Whether or not that was the cause of the Government changing the proposed legislation, the volume of lobbying and the strength of feeling expressed both privately, and now publicly, has left the judiciary in an impossible situation.
If the Government pays no further regard to the policy preference expressed by the judiciary, then the judiciary will have been on the wrong side of this now rather public constitutional squabble. If the Government capitulates to judicial pressure, then there will have been real damage done the to doctrine of separation of powers – making it more difficult for future legal advisors to political parties to dissuade politicians from making statements about judicial processes.
With the crucial exception of calling for the Oireachtas to legislate on matters affecting litigants in cases before them (as Mr Justice Peter Kelly rightly did last week in respect of legislation about catastrophic injuries) the judiciary simply does not enjoy the same freedom to comment generally on proposed legislation because of the very doctrine that is there to safeguard judicial independence.
The Irish judiciary is now and always has been one of the great successes of the State but it is walking toward a no-win position on this legislation. If it “wins” it will lose.
Dr Jennifer Carroll MacNeill, a barrister and political scientist, is the author of The Politics of Judicial Selection in Ireland. A former legal adviser to Fine Gael, and a former special adviser in Government, she has provided assistance to both the Department of Justice and the Law Society of Ireland on possible reforms of the judicial selection system.