OPINION:Several improvements could be made to the system of judicial appointments, writes DAVID GWYNN MORGAN
WHEN A subtle and, on the whole, successful institution, such as the superior courts, is being reformed, it is natural to hasten slowly. But, when circumstances have changed substantially, as they have, since the present terms of office for the higher judiciary were set down in the 17th century, the need for change becomes urgent.
Reforms have been tried and tested, over the past decade, in other common law jurisdictions: even in the United Kingdom, the medieval contraption of the Lord Chancellor has been dismantled.
But here, change has been slow. Take, first, the establishment of a complaints and discipline system, in respect of the judiciary. The process started with the Denham Working Group of 1998. The need for urgency became obvious, following the Sheedy (1999) and Curtin (2002-07) episodes. By last month, the council of all the judges had affirmed support for legislation to establish a modern system.
However, actual implementation has been made conditional on the provision of recording facilities in all courts. Given the economic climate, this could take many years. It might be better to introduce the system, on a progressive basis, as these facilities are provided in each court.
But, given that prevention is better than cure, probably the more important matter concerns the system for selecting judges, who each occupy, for 20 or so years, what are among the most influential, unelected, positions in the State. Here, progress has been equally halting. The basic constitutional position is inadequate: the President appoints; but the government selects. In an earlier era, those barristers who were well connected with the government party or parties and of adequate competence, stood an excellent chance of preferment. Barristers of a different persuasion, however suitable as judges, did not.
Reform came from a number of directions. The first was a growing feeling in and around the government that it was wrong for political preference to play a part in the selection of a judge. Another was an unexpected controversy arising out of the appointment of the former attorney general as president of the High Court. This appointment was made over the protests of the Labour Party, which was the junior partner in Albert Reynolds’ coalition government. The Labour ministers resigned; the government fell; and the incoming rainbow coalition established the Judicial Appointments Advisory Board. The board, which is made up largely of judges, is at present advertising for one judge on the High Court and another on the Supreme Court. But this board acts only as a shortlisting agency, in that its task is simply to recommend seven candidates who are deemed suitable for appointment, and the government selects from this list. Thus, the board weeds out inadequate aspirants, rather than selecting the best.
The best way forward would be to build upon the existing appointments board, which should be improved in five ways.
The first would be to make all solicitors eligible for appointment, which would significantly increase the number of possible candidates. Even if – to acknowledge the traditional argument proffered by the Bar – it is correct to say that most solicitors lack the necessary experience of court procedure to preside over a High Court case which involves hearing witnesses, this is no reason why solicitors should not be appointed to the Supreme Court.
Next, wider soundings should also be taken, so that better information on each candidate is obtained. Sources could include: professional bodies like the Bar Council, Law Society and provincial associations such as the Southern Law Association, as well as the Director of Public Prosecutions and Chief State Solicitor.
A major difficulty remains. It is plain that a judge should possess qualities of integrity, wisdom, independence, good judgment, humanity, open-mindedness as well as knowledge of the law. The presence of such qualities can be observed over a candidate’s 30 or so years of legal practice. But, a further quality is required, since their tasks involve substantial law-making, with all kinds of knock-on effects. This quality is something which it may be difficult to deduce simply from the evidence of whether an applicant had built up a successful career as an advocate, because the advocate is usually not concerned with the wider consequences of a decision.
Thus, there needs to be a way of ensuring that appointees possess an understanding of the needs of the society on which their judgments will impact, while not compromising their later independence as judges. One approach would be for the appointments board, which has a majority of judicial members and operates in private, to exercise, as it has not done yet, its power to interview candidates.
Fourthly, when (as is almost always the case) appointees to the Supreme Court are chosen from existing High Court judges, rather than directly from the Bar, the appointments board is not involved at all. The reason for this omission is that it is considered that it would be disrespectful to High Court judges, if the board were to be in a position to evaluate their candidacy for the Supreme Court. This reverence is unfortunate, because the exclusion of the board means that there is no counterweight to the view of the government and the attorney general.
But these improvements would go for very little, unless the appointments boards influence is increased. Finally, it should be acceptable to reduce, at any rate to three, the number of nominees the board must make to the Government. This is a figure which the Government has been able to live with in appointments in other sensitive areas, for example secretaries general of departments, Director of Public Prosecutions and the chairperson of An Bord Pleanála.
David Gwynn Morgan is professor of law in the college of business and law at University College Cork