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Kritocracy.

Judges appointing Judges.

By Cormac Ó Dúlacháin SC.

The Government is committed to re-introducing a Judicial Appointments Commission Bill, the predecessor of which was the subject of much filibustering by certain members of the legal profession during the last Dáil. Of major concern to the opponents of the Bill at that time was the demand that the Council be dominated by Judges and that the chairperson should be none less than the Chief Justice.

In the past 25 years we have seen the statutory institutionalisation of the legal system with Judges, particularly the Presidents of the five court divisions, being automatically nominated to positions of administrative control and as key gatekeepers. They are found on the Board of the Courts Service, the Judicial Appointments Advisory Board (JAAB) and the Legal Service Regulatory Authority advisory committee on appointment of Senior Counsel. More recently, obviously and logically, they make up the core of the Board of the Judicial Council.

It would appear that a Court President nowadays spends much of their time hot footing between committee and board meetings.

In March 2020 JAAB convened to consider a request for recommendations for a vacancy on the Supreme Court. JAAB is a body comprising the five Presidents of the Courts and a few others. Since its establishment in 1995 it has provided an invisibility cloak for the party-political nature of many a judicial appointment. Not that party affiliation is unusual or inappropriate – it is in the nature of lawyers to be politically involved and many a judge before appointment have been passionately involved in political causes. However the 1998 JAAB System probably gave the public the false impression that this was some form of expert rigorous selection process when fundamentally it was a fig-leaf listing system.

Alas in March 2020 there was but one application for JAAB to consider, the recently couriered application from the incumbent Attorney General, himself a member of JAAB. No cause for JAAB to pause to consider the wisdom of making a recommendation in the interregnum between a general election and the formation of a new government, no need to pause to exercise their powers to advertise for or invite other suitable applicants. Of course we do not know whether there was any division of opinion within JAAB, in any event the centre held, the formal duty was discharged and the courier returned within days with the one and only appropriate recommendation, the Attorney General.

Indeed anyone who has served as Attorney General will have a huge contribution to make to the judiciary and bring a very special insight and understanding of all aspects of government and law making to the Bench. But the makeup of a Supreme Court is a very particular thing, in fact it warrants and justifies keen political scrutiny by a Cabinet, with a special eye to the mix and match of the Court. By way of example, notwithstanding that for near on 50 years our laws have been shaped by our membership of the EU, none of the current Supreme Court judges have sat as a judge of any of the European Courts.

The Minister for Justice was more than satisfied with the nominee, but by reference to what measure, tape or need, none of us knows

In the event no appointment was made in March 2020: probably the incumbent government was wary of being seen to fill vacancies while acting as a caretaker and still in the run for a seat in the next government. Then come July, our new Taoiseach, Micheál Martin tells us that he could not possibly muddy the waters by discussing the merits of the recommended march hare that came before the Cabinet for approval. The Minister for Justice was more than satisfied with the nominee, but by reference to what measure, tape or need none of us knows. So it came to pass that on the nod a Supreme Court post was filled for 12 years hence.

So should the Court Presidents Five, based on their track record, be at the centre of a new judicial appointment system?

Some of the judiciary have been quick to point out that the Council of Europe guidelines recommend that judges should be in the
majority in a system of selection.

There are two important points that are missed (a) the Council of Europe guidelines refer to judges nominated by their peers being involved in the process which does not automatically mean the Court Presidents Five, and (b) the European continental justice system distinguishes between ordinary courts and constitutional courts. Appointments to constitutional courts are rightly seen as the preserve of elected governments. In many a European country, the ordinary courts are numerous and being a judge is a particular type of life-long career, so that political involvement in the appointment and promotion of all manner of judges could become an overbearing and corrosive influence on the administration of justice.

However, in Ireland we lump everything together in one judicial framework – District Judge to Supreme Court Judge and we have never promoted the concept of ‘the professional career judge’ or a system of non-constitutional Courts.

We should also look to the appointment of judges from academia and from among Northern Irish and European lawyers.

March 2021.

Cormac Ó Dúlacháin is a senior counsel at the Irish Bar