The message is remarkably clear. In 98 pages of spare and lucid prose, the judges have delivered the most comprehensive repudiation of the system by which they are appointed.
Largely absent are the qualifiers, caveats and rolling waves of sub-clauses so beloved of lawyers; instead, the argument is blunt and refreshingly to the point. The current system of judicial appointments is “unsatisfactory” and “demonstrably deficient”. Judges should be chosen on merit, and political allegiance should have no bearing on appointments – two principles, the document states, that should be set down as essential pillars of any new system. Ireland urgently needs a judicial council, proper education and training for judges, and a rigorous appointments system that attracts high quality applicants and retains public confidence in the administration of justice.
“It is increasingly clear”, the judges say, “that the relative success of the administration of justice in Ireland has been achieved in spite of, rather than because of the appointment system.”
Passionate defence
The judges' submission is ostensibly about appointments. But there is a second way to read it: as a passionate defence of judges and their place in society. In recent years, as stories about their pay and pensions have generated endless discussion, judges have found themselves at the receiving end of some sharp and pointed criticism. Unlike politicians, who have daily opportunities to argue their case in public, judges mostly nurse their sense of grievance in private. Interventions such as yesterday's give them a rare opportunity to put their case.
The document reflects on how the administration of justice has, in broad terms, been one of the successes of the State, and goes on: “This is not to ignore individual personal failings, but such individual lapses also serve to highlight the fact that the history of the Irish judiciary has largely been one of diligent work, often with poor resources, carried out by persons who have demonstrated on a daily basis high qualities of integrity, fairness and learning, and in doing so have sought to administer justice in hundreds of thousands of cases ‘without fear or favour, affection or ill will’ towards any litigant.”
Underlying much of the judges’ critique is the view that the best, most experienced candidates are being and will be deterred from applying for the bench – not only by a bizarre appointments system glossed with a veneer of independence but by the fact that they can earn much more in private practice. Since 2008, the submission states, there have been seven distinct changes to the pay and pension provision of judges, all of them adverse.
Question of pay
"The cumulative effect is severe. The take-home pay of a new High Court judge for example is 50 per cent of an equivalent in 2008, and is now for example very considerably less in gross and even more so in net terms than comparators in other common law countries."
You can buy the argument or dismiss it, but the hypothesis should at least be tested: any review of the appointments system should look at whether there has been a noticeable fall in the number of high-calibre people applying for vacancies. If so, then that raises some pretty serious public policy questions.
It galls the judges that, among the issues that Minister for Justice Alan Shatter sets out in his call for submissions on reform, the idea of ensuring strong candidates apply to join the bench does not merit a mention.
Moreover, they are generally unimpressed with Shatter’s “flawed and deficient” consultation. It is regrettable, they argue, that there was no prior consultation with the judiciary on the methodology and structure of the process and that no proposals have been put forward by Government for discussion purposes.
“Most fundamentally of all, however, the process itself is being initiated by a member of the Executive, and will apparently be decided upon by the Executive without further discussion. This is not consistent with the principles of the European Network of Councils for the Judiciary, Council of Europe, or international best practice.”
The judges say a high-level body should be appointed to carry out research, receive submissions and develop detailed proposals in a “structured, principled and transparent way to make a radical improvement in the judicial appointments process in Ireland”.
The judges have pulled off a clever manoeuvre here. By coming out as the most enthusiastic champions of meaningful reform, they have claimed the initiative and set the terms of a debate that is only just beginning.
REPORT – KEY RECOMMENDATIONS
As a matter of principle, political allegiance should have no bearing on appointments to judicial office. This should underpin any new appointments process.
The merit principle should be established in legislation.
A properly resourced judicial education system should be established without delay.
Ireland urgently needs a judicial council, with responsibility for representation of the judiciary, an independent disciplinary process, judicial education and the judicial involvement in the appointment process.
The number of candidates for a single judicial post submitted by the Judicial Appointments Board for Governmental decision should be reduced to three (for now there is no limit).
The appointments board should be empowered to rank candidates and to designate any particular candidate as “outstanding”.
The board should be specifically empowered to inform the Government when it considers that there are either no, or not sufficient candidates of sufficient quality.
Changes of pension provisions for entrants to the judiciary should be reviewed to assess the benefit, if any, to the State, and their impact on the quality of candidates for appointment to the judiciary.