A 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 judiciary against encroachments by the executive is welcome though not if it has been fundamentally mendacious and itself cut across the independence of the executive. Ministers 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 candidates for the bench. The Government will retain the final vote in the selection process and, in a definitive indication 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 attitude 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 righteousness 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 [Judicial Appointments] Bill is radical is because it is so rare for anyone to attempt to amend even slightly the systemic privileging of a particular group of people in Irish society”.
You will justifiably detest the vauntings of the privileged 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 legislative (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 himself 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 heralded 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 Justice’ (Catherine McGuinness, Irish Times); ‘Judicial appointments Bill driven by political self-interest’ Ruadhán 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 [McDowell] 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 government 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 anywhere 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 Commission in England and Wales has 15 members, twelve appointed through open competition, three selected by the judges’ council. The chair must always be lay. Currently it is Ajay Kakkar, professor of surgery at UCL. The Judicial Appointments Board in Scotland has 12 members, 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 proposal, 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 varying 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 Judicial 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 Government 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 commission 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 President 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?
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