In observing the latest volte-face from the Law Society in relation to judicial appointments, it is difficult to see any motivating factor other than a desire to have more solicitors appointed as judges. However, the reason why more solicitors have not been appointed to the superior courts is simple: they have not been applying. Between 2002 and 2013, there were 201 applications by barristers for appointment to the High Court, compared with 52 by solicitors.
Since 2002, both branches of the legal profession, solicitors and barristers, have been eligible for appointment to the superior courts. The annual reports of the Judicial Appointments Advisory Board (JAAB) demonstrate that solicitor applicants for judicial appointments are heavily weighted towards the circuit and district courts. Barrister applicants, on the other hand, are heavily weighted toward the superior courts, reflecting their experience, expertise and their familiarity with practice in those courts. Of all judges appointed following JAAB recommendations since 2002, there were 65 barristers and 52 solicitors.
Candidate pool
Irish judges are of a very high quality, despite the fact that their terms and conditions have been assailed in recent years, and despite the fact that the appointments are made by politicians. If there is one thing wrong with the current system, it is that the Government can select from a large pool of recommended candidates. The notion that politicians pick judges will not change under the proposals favoured by the Minister for Transport, Shane Ross.
The proposed Bill overcompensates for the perceived influence of political connections in making appointments by proposing a lay majority
The Government is proposing to establish a new quango for the appointment of judges. This will presumably have to be paid for by taxpayers. This is both wrong and wrong-headed. In some years, very few appointments are made to the bench. In 2008, six judges were appointed in Ireland. In 2009, there were three appointments. In 2010, there were five. The current system is cost-effective. Rather than spend up to €1 million annually on a body that does very little work, why not devote those resources elsewhere or to supporting the judiciary.
The proposal for lay members on the new commission is to be welcomed and will contribute to the promotion of diversity. However, the proposed Bill overcompensates for the perceived influence of political connections in making appointments by proposing a lay majority.
The chairman is to be a lay member, appointed, like all the other lay members, by the Minister subject to the approval of both Houses of the Oireachtas following an open competition conducted by the Public Appointments Service. There is more emphasis and bureaucracy in the scheme for the appointment of the members of the commission than there is around the critical choice of the judges themselves.
No rationale for having a majority of lay people choosing judges has been identified. One is reminded of the New Yorker cartoon where a passenger on an aircraft is standing with a hand raised addressing the rest of the passengers saying: "Those smug pilots have lost touch with regular passengers like us. Who thinks I should fly the plane?"
Lack of understanding
The fact that the Chief Justice is a member of the commission also betrays a lack of understanding that those best placed to assess candidates for judicial office are the very people who have professionally assessed those candidates at work in courts over years or decades.
The World Economic Forum Global Competitiveness Report 2014-2015 ranks Ireland as number six in the world for the extent to which the judiciary is independent from influences of members of government, citizen or firms. Independent judges are the constitutional heroes of our democratic system. They stand between the citizens and the State, protecting them from abuses of power in a myriad of ways. The track record of the independence of the Irish judiciary since the foundation of the State is outstanding by any standards. Choosing our judges carefully on merit and safeguarding their independence are therefore critically important issues.
Ireland is currently engaged in a tussle with other European countries to entice business leaving the UK in the light of Brexit. The existence of an English-speaking, accessible legal system is a major influence in the decision about where to locate. The fact that we have an independent and efficient judiciary should also be part of the message.
It is not hard to understand the frustration of judges if they are criticised by a political class that retains control over their appointment
In recent times, some politicians have been quick to take a populist stance and criticise the judiciary, safe in the knowledge that judges are constrained in their ability to respond. It is not hard to understand the frustration of judges if they are criticised by a political class that retains control over their appointment. By all means let us improve the way judges are appointed, but the core issue should be about who makes the appointments, not how candidates are recommended.
Paul McGarry is chairman of the Council of the Bar of Ireland