The establishment of a forum to facilitate discussion between judges and the Government on matters of common interest is a welcome development that may serve to reduce tension, provide necessary reassurances and put an end to megaphone diplomacy. The separation of powers and the independence of the judiciary are vital elements under the Constitution, designed to protect and advance the common good. But the Government also has a duty to control expenditure during a national economic crisis.
Determined efforts have been made by Chief Justice Susan Denham and by Tánaiste Eamon Gilmore to repair relations through the involvement of the Attorney General Máire Whelan. The appointment of Government secretary general Martin Fraser to a so-called Working Group for Renewal – and the absence of Minister for Justice Alan Shatter from that body – suggest a willingness by Taoiseach Enda Kenny to be more receptive. That political concession reflects the potential seriousness of the rift. Announcing details of the forum, Mrs Justice Denham adopted a conciliatory tone. She praised the energy and commitment of her colleagues on the bench and their increased productivity. And, while acknowledging "issues of serious concern" she recalled many constructive meetings with both the Taoiseach and the Minister for Justice. It was a useful beginning to what are likely to be difficult discussions.
The reported accusation by Mr Justice Peter Kelly that the Government was dismantling the independence of the judiciary “brick by brick” and that communication had collapsed came as a shock to the public and suggested a full-blown constitutional crisis. The origin of the complaint related to past cuts in pay, pensions and conditions and proposed further reductions. More convincing concerns involved judicial appointments and the role of county registrars in insolvency cases.
It is hardly coincidental that the Association of Judges of Ireland was established following a referendum that granted this Government power to reduce judicial pay. Eighty per cent of the electorate agreed this should happen in the public interest, but only in proportion to cuts imposed on other public servants. Since then, the judges have sought – and been denied – a pay system that would be independent of Government. It is worth recalling that, for decades, a Review Body on Higher Remuneration in the Public Service set pay levels for all judges, ministers and senior officials. No complaints of interference were heard as those groups rose to be among the best paid public servants in Europe.
There is certainly a need for change: for the establishment of a judicial council that would make members more accountable; for a more independent appointment system and for a longer working year.