David Gwynn Morgan argues that the the system we use to select our judges - the Judicial Appointments Advisory Board - is dangerously deficient
Curiously, the fall-out from the removal of a centuries-old monarchical relic - I mean the British Lord Chancellor - is casting a cold light on the system for selecting judges in this impeccably constitutional republic.
This summer, it was announced that the Lord Chancellor was to be terminated and with the office the practice of a cabinet member, in effect the minister for Civil Justice and Law Reform, simultaneously sitting as President of the Supreme Court (aka the House of Lords). Most people's reaction was "about time too".
But, the Lord Chancellor - more a lawyer than a politician (or at least with a foot in both graves) - was the keystone of the effective non-involvement of politicians in the selection of judges. And following his going, the British are busily debating how to design a realistic judicial appointments board. In doing this they are naturally studying developments elsewhere. But not Ireland.
The model system for selecting judges should combine an emphasis on legal expense and experience with respect for the fact that the elected government is ultimately elected and responsible and ought to be allowed some say, if only in extreme cases. How does the Irish system measure up to this standard?
The Constitution states that judges are appointed by the President, but (the sting is in the tail) on the advice of the Government. Pre-1994, this made for "a rather informal process pursued by successive Governments who were seen to appoint, almost invariably, their own supporters to judicial office" (as the all-party Oireachtas Committee recently summarised the system). However, this has certainly not led to a judiciary that is less than independent
The modern base-line for selecting judges should be taken as starting with the fall of the Government in 1994. The Attorney General's Department's nine-month delay in processing a warrant for the extradition of a suspected paedophile did not prevent the Taoiseach from appointing his Attorney to the post of President of the High Court. The Taoiseach, Mr Reynolds, cited to widespread surprise a "convention of the Constitution" (no less) to the effect that the Attorney General has first claim on any judicial vacancy.
The horrified reaction of the Labour partner in the then Coalition Government brought down the Government. As a response, the incoming Government had inevitably to bring in some reform - real or apparent - in the selection of judges. This led to the establishment in 1995 of the Judicial Appointments Advisory Board, which includes a majority of judges, representatives of the bar and solicitors and three lay people.
The board is a good example of pulling the wool over the public's eyes. The scheme does not apply where the post in question is the President (or principal judge) in any of the four levels of court; nor where the vacancy is filled by a judge from a lower court being promoted by the Government. Most striking of all, the board's power is confined to nominating a list of seven - yes that good biblical number, seven - candidates from which the Government may (though it is not legally obliged to do so) select the appointee.
The board came forward with some cautious proposals for reform in its first annual report, published in July. It stated first that: "It will be seen that, in the case of vacancies in the High Court or Supreme Court, the number of applicants has, on occasions, been relatively small." Yet if one looks up the number of applicants given at the back of the report they seem quite healthy, so that this remark may really be a coded comment on quality rather than quantity.
Next, the report states without any explanation or discussion: "The board has not to date availed of its power either to arrange for the interviewing of applicants or to consult with other persons concerning the suitability of applicants. It is satisfied, however, that it should avail of both these powers in the future." To this one can only say that it is surprising that these rather obvious methods have not been used; but better late than never.
The board, in its recent report, pondered, only to reject, two major changes. The first would have been to allow the board to rank the candidates whom it recommended in order of its preference. But the board said, reasonably enough, that this would come close to usurping the Government's constitutional role in selecting judges. The remaining proposal would have been to recommend that the Government reduce the minimum number of nominees below the figure seven. However, this proposal was rejected because it "would result in the exclusion of a number of candidates whom the board would otherwise have no difficulty in recommending." A rather strange reason.
While there is no prospect of reform immediately visible on the horizon, in the medium term it seems to me there could well be change. Two of the greatest imbroglios of the 1990s involved the judiciary: the appointment of the President of the High Court in 1994 and the Sheedy case of 1999. Partly in response to these episodes, we have the independent Court Services, which has had the legitimacy and energy, denied to the Department of Justice, to make essential improvements. In addition, we are promised a judicial ethics bill, in this Parliament. In other words, the system is not impervious to change.
It is also relevant that in cognate areas of selection for major public service positions, such as the chairmanship of Bord Pleanála, the Government is presented with a shortlist of only three names from which it must make its choice. Going further in the case of many senior civil service positions, the Government has surrendered its power to the Top Level Appointments Committee. Another indicator as to the way the wind is blowing is the outspoken comments of the board itself. It seems therefore likely that there will eventually be a reduction in the number of persons whom the board has to short-list. Probably to three.
The sceptical reader might ask: so why does this matter? The answer is that apart from the excessive involvement of the Government giving an appearance of lack of independence, there is a significant pragmatic reason. Because of the importance and difficulty (in several ways) of their work, judges of the High or Supreme courts have to be people of the highest calibre.
Yet given the restrictions on those who apply (high earnings at the bar; solicitors, substantially, and academic lawyers, entirely, excluded) it will not always be the case that seven such candidates will be available. Especially with the possibility of favouritism, the figure of seven thus leaves a danger the Government may select someone who is not of this exceptional quality.