Judicial Reform: yes to independence; no to preening

July  3

EDITORIAL

Issue 57

July - August 2017

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Judicial Reform:

yes to independence;

no to preening

FEW RULES completely cover the mysterious

case of The Judicial Appointments

Commission Bill 2017.

The judiciary should be independent but

not self-selecting. Independence is good,

preening is bad. Lawyers robustly defending the judici-

ary against encroachments by the executive is welcome

though not if it has been fundamentally mendacious and

itself cut across the independence of the executive. Min-

isters who’ve attacked a lot of people and whose

motivation is often self-serving don’t have the beneﬁt of

the doubt afforded to them when taking public-interest

stances.

Independent Alliance leader Shane Ross has secured

a commitment from Fine Gael to set up a new judicial

appointments body with a lay majority and headed by a

non-legal chair. It will select a ranked shortlist of candi

dates for the bench. The Government will retain the ﬁnal

vote in the selection process and, in a deﬁnitive indica

tion that the Bill does not go far enough, there is no

reason to think party allegiances will be eliminated as a

force in their preference. Nor is there, yet, provision for

judicial training, or interviews.

Yanis Varoufakis recounts, in his expose of the Greek

bailout (reviewed in this magazine, p 76), a conversation

with Larry Summers in which the former ﬁnancial guru

who served in the Clinton and Obama administrations

asked him if he was an outsider or insider, and declared

that everything turned on that.

The answer to that question may determine your atti

tude to the question of whether judges, and indeed other

elevated and privileged personages in our society,

should be reined in.

In a Republic we should have no time for privilege, or

the defenders of privilege, because there are simply too

many who are not even being afforded their rights.

Where they exist they should be under attack, not

defended. But where they are defended with self right-

eousness by the privileged themselves it’s difﬁcult to

watch.

Sinn Féin’s Justice Spokesperson Jonathan O’Brien

told the Dáil: “The only reason Fianna Fáil think the [Judi-

cial Appointments] Bill is radical is because it is so rare

for anyone to attempt to amend even slightly the sys-

temic privileging of a particular group of people in Irish

society”.

You will justiﬁably detest the vauntings of the privi-

leged and the scrapings of their deferential acolytes

though you will of course appreciate that if that reining

in serves to render the executive (Cabinet ) and legisla

tive (Oireachtas) less accountable that it will have

backﬁred.

In his contribution on the Bill, Labour leader Brendan

Howlin appeared to suggest that in Dublin Northsiders

favour outsiderism, Southsiders insiderism. Howlin him-

self seemed, as usual, to straddle both but perhaps

betrayed too much deference to the establishment,

reﬂecting the power of the artful but anti-legal-reform

Labour Lawyers group within the often surprisingly

unradical Labour Party. Howlin castigated Shane Ross

the hapless and inconsistent but feisty author of the

reform initiative: “In his blunderbuss assault on ofﬁcial

Ireland, insiders and cronyism, Shane Ross devoted a

chapter of his book to judges. In truth, that is the only

reason we are here today debating this legislation”.

The parochial and insiderist downside of this small

society is the unleashing of serial illogical and evidence-

free vituperation against outsiderist attacks on privilege,

in this case against Ross from almost every “eminent”

legal and judicial personage, each intemperate jab her

alded as wisdom by a deferential media.

The headlines tell the tale: ‘Judicial appointments Bill

just an ego trip’ (Diarmaid Ferriter, Irish Times); ‘Judicial

reform plan a ‘deliberate kick in the teeth’ for Chief Jus

tice’ (Catherine McGuinness, Irish Times); ‘Judicial

appointments Bill driven by political self-interest’ Ruad-

hán Mac Cormaic, Irish Times; ‘Judicial Bill an unsound

solution to a problem that does not exist’ (Noel Whelan,

Irish Times); ‘Judicial reform ‘dishonest’ (Times Ireland

cover headline); ‘Ex-Chief Justice slams judicial reforms’

(Sunday Business Post). As if there was any doubt judges

and their acolytes (or any profession) would be open-

minded about a reduction in their status, however small.

So the views of Michael McDowell SC on the place of

barristers in society can be discounted. Some months

ago the Irish Times headlined a report, ‘Senator [McDow-

ell] says lay majority on proposed appointments council

is “an attack on the system”’. “He said the Republic was

the only state in the common law world in which a gov-

ernment had ever proposed having a lay majority on a

judicial advisory board. It is of some signiﬁcance that

such a change has not been proposed in America or any-

where else with a common law system”.

His statement was utterly wrong though there is no

indication that any attempt will be made to correct the

record of the Seanad. The Judicial Appointment Commis-

sion in England and Wales has 15 members, twelve

appointed through open competition, three selected by

4 July 

NEWS

the judges’ council. The chair must always be lay. Cur-

rently it is Ajay Kakkar, professor of surgery at UCL. The

Judicial Appointments Board in Scotland has 12 mem-

bers, six lay, four judges, two additional legal. The chair

must always be lay. In Northern Ireland the Judicial

Appointments Commission has 13 members, only four

judges (one of whom admittedly chairs the body).

In America appointments must be scrutinised by the

Senate Judicial Committee, a judge-free zone.

Indeed much of the commentary is misinformed and

deliberately misleading, particularly where the Council

of Europe’s anti-corruption GRECO body has said Ireland

is “globally unsatisfactory” for judicial independence

and appointments. In this case the Law Society, which

represents solicitors, has been an honourable

exception.

The Association of Judges in Ireland has pronounced

in an intervention that through its reach and not just its

inaccuracy breaches the separation of powers:

“It is hard to imagine any other walk of life in which

the majority of those involved in an appointment process

would be required to come from outside the ranks of

those serving in the area to which the appintments are

being made”.

Evidence-free fulmination is not judicial. For fear of

ﬂouting the separation of powers, no self-respecting

Judges Association would issue a statement of any sort

on a relatively uncontroversial and gentle legislative pro-

posal, less still a statement riddled with inaccuracies;

and the idea it would get it factually wrong on something

as central as this beggars belief.

This is desperate counter-factual special-pleading,

grasping and revealing from stalwarts whose normal

currency is the truth and probity.

Judges in other countries, senior civil servants here,

An Bord Pleanála, the Environmental Protection Agency:

they all beneﬁt from outside input in their appointment

processes. And there, as with the proposed commission,

that input is not gormless but informed.

The lay majority militates against a legal-profession

conspiracy in particular appointments but that is all: it

is unlikely the non-legal sectors with backgrounds vary-

ing from would unite as one on any issue and it is to be

hoped they would be informed, factually, by the legal

insiders.

Catherine McGuinness who had a gilded career

ascending up the courts system to the Supreme Court

said not appointing the Chief Justice as chair of the Judi-

cial Appointments Board is a “deliberate kick in the

teeth” that says “you’re not good enough”.

McGuinness said if the Chief Justice were to chair the

board it “would go a long way” towards addressing the

concerns of judges.

Though Eamon Ryan on behalf of the Green Party

found this persuasive, preening is never becoming, or

useful. McGuinness is arguing for status, which must be

earned, personally, not conferred; not in this case for

independence.

She said it was a “poor idea” to have a lay majority on

the Board and not have the Chief Justice as chair and

added that she was sad to see a “reasonable Govern-

ment led by the nose into this kind of decision”. Judges’

views on the reasonableness of governments are best

kept wrapped up.

Ruadhán Mac Cormaic who wrote a compelling and

well-informed if unchallenging institutional biography,

‘The Supreme Court’, concluded about the bill:

“Yet it raises serious problems. The ﬁrst is with the

underlying assumption that informs key parts of it: that

judges cannot be trusted not to select their friends, or

those without merit, for judicial positions. It’s that claim

that inspires the proposed lay majority on the new com

mission and the removal of the Chief Justice as chair of

the advisory body. If the claim is true, we have a much

bigger problem on our hands. Does it also mean that we

cannot be conﬁdent in judges’ capacity to administer

justice in cases where those self-same lawyers appear

before them?”.

The issue isn’t that they’d select their friends or (a

straw-man argument) those without merit, it’s that their

perspective is incomplete and needs supplementing –

like any other sectoral perspective. The Scheme Bill

refers to the desirability of both gender balance and

diversity for the Commission members.These are

unquestionably easier to achieve in the lay members

than in the still-unbalanced, though improving,

judiciary.

Nor is judicial appointment similar to selecting a

soccer team, where you certainly wouldn’t defer the

choices to people in wigs and gowns, as the former Presi-

dent of the High Court, Nicholas Kearns, unwisely has

noted.

A soccer team’s aim is simply to be good and win, not

to be sensitive to a complex society: a judge should be

balanced in ways on which non-legal experts will have

insights.

If the analogy were any good, since you wouldn’t just

not want a majority of Ireland selectors not to be judges

you would not want any to be judges, it would mean that

no lay people at all should be on the commission. What

can he have been thinking?

Judges, even retired ones, should deliver judgments, not metaphors