July  3
EDITORIAL
Issue 57
July - August 2017
Village Magazine promotes
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Judicial Reform:
yes to independence;
no to preening
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 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

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