A piecemeal approach to the appointment of an unlimited number of judges should not be allowed, writes Gay Mitchell
The method of appointment of judges remains something of a mystery. Those who are interested in appointment, and who are otherwise qualified, apply to the Judicial Appointments Advisory Board which then, as a general rule, sends at least seven names to the Government for consideration, as provided for in the Court and Court Officers Act, 1995, section 16.
Where fewer than seven persons apply or where the board is unable to agree recommendations, the names of all applicants are submitted to the Minister for Justice.
This legislation has created the myth of non-party political selection, but in reality, with at least seven names to pick from, the Government's man/woman almost always gets the job. The Oireachtas should repeal this provision to protect the judiciary from being associated, however inadvertently, with what has become a political smokescreen.
The membership of the Judicial Appointments Advisory Board includes the Chief Justice (chair); the Attorney General; the president of the High Court; the president of the Circuit Court; the president of the District Court; a nominee of the Bar Council; a nominee of the Law Society, and three others. The Oireachtas does not vet these appointments so the representatives of the people in the Oireachtas are not consulted.
On June 22nd last the Government, according to a press announcement, sanctioned the appointment of eight new judges "to speed up the hearing of cases in the High Court, Circuit Court and District Court". Speaking in the Dáil the following day, I pointed out that "the number of judges has doubled since 1960. They are as capable of being corrupt as any politician, journalist, civil servant or other person, and the expansion of the judiciary in this way is unacceptable. The House should conduct an independent assessment of that."
Such an assessment should not be presented by the Minister for Justice or the Attorney General. The Dáil's own constitutional servant, the Comptroller and Auditor General, should be asked to make it.
The Government also announced that provision to appoint the new judges would be made by an amendment to the Civil Liability and Courts Bill which is currently before the Dáil. This major amendment to the Bill, announced outside the House, is to be rushed through the Dáil and Seanad in a matter of days before the summer recess.
No case has been made to Dáil Éireann for these additional appointments, and there has been no independent assessment of need. Furthermore, the leader of the Bar, the Attorney General, sits at Government. The Minister for Justice is himself a senior counsel and many members of the Government are personally close to, and friendly with, judges and senior legal figures. There is nothing particularly wrong with this but there is something wrong with the process which leads to a never-ending increase in the number of judges without any independent assessment of need being presented to Dáil Éireann, and with the reasonable suspicion of specialist pleading by lawyers.
In 1961 there were four Supreme Court judges, six High Court judges, eight Circuit Court judges and 38 District Court judges, a total of 56. In 2003 there were seven Supreme Court, 27 High Court, 30 Circuit Court, and 52 District Court judges, a total of 109.
Now posts for eight new judges are to be created. Additional posts were created by increments in each of the years 1973, 1977, 1979, 1981, 1985, 1991, 1995, twice in 1997, 2002 and 2003. All of this has been done with no significant change in work practices and without any accountability to the Oireachtas for the resources provided.
Judges are, and must remain, independent in the exercise of their duties. However, it is a matter for Dáil Éireann to allocate from taxpayers' funds the resources it deems necessary to fund public services.
Lawyers, and other insiders, regularly suggest that the number of judges here is low compared to other European states. Whether they are comparing like with like I simply do not know, but, as a member of the Dáil I should know.
The judiciary is not only increasing numerically, but, more than any other institution, it blurs the distinction set out in the Constitution in relation to the separation of powers between the institutions of the State.
I believe, for example, it was a mistake on the part of the Justice Committee of the Oireachtas to allow itself to be called before the court in the Abbeylara case. I do not suggest that issues of natural justice should have been brushed aside, rather the Oireachtas committee should have asked for the permission of the Dáil and Seanad before agreeing to such an appearance, thereby making it clear that the summoning of Oireachtas committee members to attend at court is not a routine affair.
The Constitution sets out the rights and duties of each institution. It does not accord overall superiority to any one institution and no institution should be allowed assume such superiority.
Furthermore, the growth in the number of judges should bring with it new provisions for greater transparency in the way they conduct their business. The resignation of two senior judges in the recent past left many questions unanswered. What is the relationship between counsel and judges? What actually takes place in judges' chambers? What ethical provisions are in place to ensure that judges are beyond question in the execution of their duties?
Some court practices appear to be as out of date as wigs and gowns. Clearly more reform is needed. And the Government of the day should no longer be allowed a piecemeal approach to the appointment of an unlimited number of judges. Those who claim we need more judges should have their case assessed on the basis of an independent report which should include an examination of procedures and practices in our courts.
Gay Mitchell TD was recently elected a Member of the European Parliament for Dublin