Irish text of the Proposed Referendum on the 8th Amendment

Dr Seán Ó Conaill

The publication of the wording for the 36th Amendment Bill has started the referendum campaign in earnest.

The English language wording of the bill had been well flagged and, as a result of the outcome of the M -v- Minister for Justice and Equality [2018] IESC 14 judgment, remained largely unchanged from the original announcement made by the Taoiseach in the wake of the decision to hold the referendum. The Irish text was not however available until the Bill was published.

The Irish language and the Constitution

The Irish language text of the Constitution is the authoritative text in the event that there is a conflict found between the English and Irish versions. Although the claim that the Irish text of the Constitution is a mere translation of English text is often made (including in some judgments of the Supreme Court) this claim is without foundation in the face of the evidence. Extensive works of scholarship such as Prof Mícheál Ó Cearúil’s study highlight how the Irish and English texts are not translations of each other and on many occasions the Irish text differs significantly from the English text.

Amendments

The process of drafting amendments to the Constitution is troublesome when it comes to the Irish text. Constitutional amendments by their nature are politically instigated and have their wording signed off by the cabinet and their advisers in the English language only. The Irish wording is usually then subsequently produced as a translation. Although there is some element of consultation with the translators in reality the process is very much English language driven. Translators are presented with an English text which is set in stone and must produce an Irish text which reflects the same legal meaning. English and Irish, like any two languages, cannot ever be translated exactly word for word. There are words in both languages which do not have an exact corresponding word in the other language. English does not have masculine and feminine words as languages such as Irish or French have nor does English have the sort of mutations that are common in Celtic languages. Thus when translating a constitutional amendment translators are faced with a very challenging task.

This task is made all the more difficult by the style of language used in the original Irish text of the Constitution which is often different from both vernacular Irish and the standard legal Irish used in legislation.

I have argued in the past that in the case of amendments it is an absolute absurdity to have the translated text of a wording drafted entirely in English as the authoritative text of the Constitution. That is not to say that we should remove the status of the Irish text as the authoritative text but rather that we should take a different approach to the drafting of amendments. Co-drafting, where both amendment texts are drafted simultaneously by lawyers who speak both languages, is well proven to produce better quality texts in both languages as well as being cheaper than subsequent translation.

The 8th Amendment

The 8th Amendment itself, as an amendment with a complex drafting history, has many interesting aspects to its Irish language text. The most interesting of which is perhaps the use of the term “sa mhéid gur féidir é” which would translate to “as far as possible” whereas the English text uses the expression “as far as practicable”. Such a conflict in wording suggests that the State could be held to a higher standard under the Irish text when it comes to protecting the right to life of the unborn, with “possible” certainly seeming to go much further than “practicable”. Indeed Mr Justice McCarthy noted such divergences in the X Case, before dismissing the divergences on the basis that “[h]istorically the Irish text is a translation of that in English” . In the particular case of the 8th Amendment such an assertion is quite accurate, but Mr Justice McCarthy appears to have missed the point. The Constitution does not make an exception on the grounds that one text is a mere translation of the other; it merely asserts that the text in the Irish language shall prevail in the case of a conflict, be it as a result of a translation or not. For more background on this listen to the excellent Motherfoclóir podcast which features UCC Law and Irish graduate and DCU PhD candidate Gearóidín McEvoy.

The Wording Itself

The wording of both language versions is as follows;

“Provision may be made by law for the regulation of termination of pregnancy”

“Féadfar socrú a dhéanamh le dlí chun foirceannadh toirchis a rialáil”

The first part of the sentence in the Irish text “Féadfar socrú a dhéanamh le dlí” follows established precedent and the same formula of words is to be found in other articles of Constitution to represent “provision maybe be made by law” in the English text. The Irish text of Article 8.3 and 10.3 for example both use the same expression. This element is consistent with the rest of the Constitution and unremarkable.

The real area of interest however is the second part of the proposed amendment “regulation of termination of pregnancy” is presented in the Irish text as “foirceannadh toirchis a rialáil”

The word termination appears once already in the English language version of the Constitution albeit in a totally different context in Article 28.3.3 which concerns the constitutional position when a state of war exists. In the case of Article 28.3.3 the corresponding Irish text is presented as “chuirfear deireadh le” which would translate literally as “put to an end”. The word termination also appears 5 times in the index to Constitution in English but on each occasion the Irish version of the Index text avoids using the word “foirceannadh”. The word foirceannadh does not appear in the Constitution at present. The Irish language legal terms order Téarmaí Dlí offers “foirceannadh” as the Irish version of termination and the word “foirceannadh” has been used extensively in legislation since 1936 but somewhat unhelpfully the word foirceannadh is also presented as the Irish language equivalent of “determination” in the context of a lease.

As is noted above the word “foirceannadh” does not as of yet appear in the Constitution however it did appear in the proposed 12th Amendment in the context of the termination of pregnancy and would have been inserted into the Constitution had the people accepted that proposal.

Pregnancy is presented as “toirchis” eg toircheas in its genitive form and is consistent with its use elsewhere although the word toircheas does not appear in the Constitution at present.

The final phrase of “a rialáil” is again absent from the Irish text of the Constitution with phrases such as “rialú a dhéanamh” usually used in the place of regulation however the difficult construction of the English text and its implications for the genitive form when translated into Irish may have led translators to use this form. The expression “a rialáil” is again commonplace in legislation such as Part 3 of the Charities Act/ An tAcht Carthanas 2009.

Overall the wording of the proposed amendment contained in the Thirty-sixth Amendment of the Constitution Bill 2018 follows the established constitutional and legislative precedent and while no two language texts can be exactly the same it equates well to English text with a few interesting features.

Dr Seán Ó Conaill teaches Dlí Bunreachtúil (Constitutional Law through Irish) at the School of Law at University College Cork.

Posted in Constitutional History, Eighth Amendment, Irish language, Referendum | Leave a comment

Citizens’ Assembly Recommendations on Referendums: An Opportunity to Enhance our Democracy

Dr Conor O’Mahony

Last weekend’s meeting of the Citizens’ Assembly generated a wide range of recommendations on how we might improve the way we operate our referendum process. Some of these will garner more publicity than others, but all of them are worthy of serious consideration by the Oireachtas and by the public. If a reasonable number of them are implemented, they present a real opportunity to greatly enhance our democracy.

Referendums are, by international standards, a very frequent occurrence in Ireland. We are among the biggest enthusiasts in Europe, and this seems unlikely to change in the near future. Irish people have become accustomed to having their say on matters of constitutional importance.

If we are going to continue to hold referendums with such frequency, it makes sense that we should pay attention to aspects of the process that we know to be problematic, and to see how they might be improved. The Assembly heard detailed evidence on a wide range matters and has presented some worthwhile recommendations.

The establishment of a permanent Electoral Commission is not a new suggestion; it was recommended previously by the Constitutional Convention and the Referendum Commission, as well as multiple commentators. It is well established that in its current form, whereby it is set up from scratch a few weeks before every referendum campaign and disbanded again as soon as the voting ends, the Referendum Commission struggles to fulfil its remit of informing voters and encouraging them to vote. A permanent Commission with a wider remit, more resources and greater expertise could make a positive contribution to the regulation not just of referendums but of all elections.

A more novel recommendation is that the new Electoral Commission be given an active role in fact-checking claims made by campaign groups. The current Referendum Commission has done this on some occasions (such as claims made about the effect of the Marriage Referendum on laws governing surrogacy) but has refrained from doing so in other campaigns (such as the Lisbon Treaty or the Children referendum). The Assembly’s recommendation would, if implemented, oblige the Commission to take a more active role in assessing the validity of claims about the effect of a Yes or No vote, which has potential to mitigate the harm caused by misinformation being circulated during referendum campaigns.

Much of the media coverage of the Assembly session to date has focused on the recommendation to lower the voting age to 16. However, this recommendation, which echoes one previously made by the Constitutional Convention, was just one of a suite of options aimed at increasing voter participation in referendums. Average turnout is just over 50%, but has varied from a high of 76% to a low of 29%. And while lowering the voting age will not necessarily increase the percentage figure, it would at least increase the number of voters who actually participate in decisions on constitutional amendments (which has been as low as just 623,000 on one occasion).

Anything that can ensure a greater level of engagement by voters must surely be welcomed. In this regard, the Assembly made suggestions such as greater use of the postal vote; allowing voters to vote at any polling station; online voting; automatic voter registration; early voting before the poll, and weekend voting.

Some of these suggestions will raise eyebrows. A Saturday poll in the Children referendum in 2012 generated one of the lowest turnouts in history, while our brief flirtation with electronic voting machines did not end well and is likely to make politicians reluctant to embrace new technologies for voting. But all of these options are worth exploring, and at least some will be worth implementing.

Another interesting outcome from the Assembly was the recommendation that we introduce the option of multi-option voting for referendums rather than relying solely on the current binary Yes/No model. This will not always be necessary, but there are occasions when it could have much to offer.

For example, voters were asked in 2013 whether they wanted to abolish the Seanad. 52% voted No, but the scales were tipped not by a desire to retain the Seanad as it is, but to reform it in the future. However, this option was not on the table, and the Seanad remains unreformed. If the Assembly’s recommendation is accepted, a future referendum of this sort could offers voters a choice of abolish, retain or reform, with the possibility of giving preferences (as in presidential elections) and the outcome being decided by transferable vote.

Finally, one matter that was discussed in detail at the Assembly, but which did not generate a recommendation (or indeed even a ballot at the Sunday session), was the regulation of broadcast, print and digital media during referendum campaigns. This has long been a source of consternation in Ireland due to the challenges involved in affording fair treatment to campaign groups without stifling discussion and a blunt reliance on a “stopwatch” approach to debates.

Recent experience from other jurisdictions shows that the digital revolution and the rise of social media will make it harder rather than easier to achieve fair coverage of referendum campaigns. Yet while the broadcast media are subject to strict rules, print and digital media are almost wholly unregulated for campaign purposes. While the Assembly may not have made any particular proposals in this regard, we cannot afford to become complacent about the effectiveness of our current framework.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork and was one of the expert witnesses who addressed the Citizens’ Assembly last weekend. His presentation can be viewed in full here.

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Of Constitutions and Cookery Shows

Dr Conor O’Mahony

Anyone who follows political debate in Ireland, and referendum campaigns in particular, will be familiar with the idea of ͞balance͟. It is a deceptively simple concept: each side of a particular
debate should get a fair crack of the whip, lest the unsuspected voter be manipulated by unseen interests. The quest for ͞balance͟ manifests itself in a number of ways, several of which have been given legal form.

Foreign donors to campaign groups have been presented as a particular bogeyman recently; but this past weekend it emerged that they may have some unexpected competition from cookery shows. The Sunday Independent reported that Minister Katherine Zappone has had a scheduled appearance on TV3’s ͞The Restaurant͟ cancelled for fear that the show might be aired during the proposed referendum on the repeal of the Eighth Amendment (which Minister Zappone supports).

The Broadcasting Act 2009 requires that every broadcaster shall ensure that ͞the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner͟.

This requirement applies at all times, but the general public tend to become most aware of it when a referendum is called. This is due to the Coughlan judgment of 2000, in which it was held that RTE’s
treatment of the Yes and No campaigns in the 1996 Divorce referendum failed to achieve balance and gave rise to unconstitutional unfairness.

The matter complained of in the Coughlan decision was the allocation of airtime for uncontested partisan broadcasts. Every major political party was given a slot, in addition to which the Yes and No campaigns were given 10 minutes each. However, since all political parties were advocating a Yes vote, the Yes side got 40 minutes of uncontested airtime, whereas the No campaign only got 10 minutes.

Few people could argue that this was fair or proper, given the scale of the imbalance and the nature of uncontested partisan broadcasts. However, the impact of the decision has filtered into every single news item or discussion that touches in any way on a referendum campaign. Frequently, it is implemented as a blunt instrument, where stopwatches are used to ensure that each side gets an equal amount of time to present their case.

This can create a highly artificial atmosphere. Readers might remember the debate on the Late Late Show during the Marriage referendum in 2015. In a mostly well-executed format, two campaigners on either side did short individual interviews before engaging in a set-piece debate. By the time Ryan Tubridy was bringing proceedings to a close, no one on the Yes side could have claimed that they had not been given a fair hearing.

Nevertheless, Tubridy’s producer interrupted him in the middle of his summation, instructing him to inform viewers that the Yes campaign had been given slightly less time overall and had a few more seconds to make their case. This was both unnecessary and of little use to anyone at that late point.

It is a stilted way to conduct any debate. Broadcasters are so busy trying to regulate time that it can be difficult to interrogate or challenge arguments; moreover, they may be reluctant to do so lest they be seen to be advocating on either side. It is largely left to opposing campaigners to challenge each other, giving rise to ͞Punch and Judy͟ style debates that many viewers find off-putting and unhelpful.

The obsession with the stopwatch approach has reduced the Coughlan decision to what RTE did wrong in the specific case, rather than focusing on the underlying principles that are set out in the Broadcasting Act (which requires that broadcasters are ͞fair to all interests concerned͟ and says nothing about equal time). An extreme imbalance of uncontested time in that particular case was translated in its implementation into a rigid and almost unworkable requirement of identical time allocation even in a contested setting.

But while an exclusive focus on the stopwatch is not desirable, the idea that the Coughlan decision even remotely precludes the appearance of prominent individuals who have declared support for one side or another on broadcasts that are entirely disconnected from the referendum is just plain daft. What next? If an intercounty GAA player becomes active in a campaign (as several did during the marriage referendum), can broadcasters not screen matches they are playing in?

It seems likely that TV3’s decision in this instance was an aberration. But even so, it is indicative of the state of fear that surrounds the coverage of referendum campaigns, particularly on divisive
moral issues like abortion. The legal straitjacket imposed on the broadcast media seems increasingly anomalous given the absence of corresponding regulation of print and digital media.

The Citizen’s Assembly will debate in January whether there is a better way to do business in the regulation of referendum campaigns. We should listen very carefully to what they have to say.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork.

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Not Just a Christmas Election – An Unconstitutional Election?

Dr Conor O’Mahony & Dr Seán Ó Conaill

November has been a busy month for constitutional lawyers in Ireland. On November 11, the University of Limerick hosted the Constitution at 80, an excellent event marking the 80th Anniversary of the enactment of the Irish Constitution and featuring a stellar array of speakers. On November 21, the High Court recognised, for the first time, an unenumerated constitutional right to an environment consistent with human dignity; if followed in later decisions, this could have all sorts of implications. On November 23, the High Court declared unconstitutional a provision of the Offences Against the State (Amendment) Act 1998 relating to withholding information possibly leading to arrest or prosecution of another person. And this week, we are faced with the makings of a constitutional crisis, in the form of the possible collapse of the current Government and an application to the High Court by ex-Labour TD Joe Costello seeking a declaration that any election held on the current constituency arrangements would be unconstitutional.

Mr Costello’s case hinges on Article 16.2.2° of the Constitution, which provides:

“The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population.”

Under section 2 of the Electoral (Amendment) (Dáil Constituencies) Act 2013, Dáil Éireann currently has 158 TDs. The 2016 Census showed an increase in population of 170,000 since the 2011 Census (to a total of 4,757,976). Accordingly, when divided by 30,000, this gives a figure of 158.6, meaning that the number of TDs needs to be increased by at least one.

Challenges to Dáil constituencies are nothing new; there have been multiple past examples. However, all of those have been based on Article 16.2.3°, which relates to the principle of equality of representation as between constituencies: “The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country.”

The wording of Article 16.2.3° is altogether more elastic than Article 16.2.2°, since the obligation extends only “so far as practicable”. Thus it relates to a broad concept of equal representation, which common sense dictates cannot boil down to a precise mathematical calculation. There have been a number of judgments in which the distribution of constituencies was challenged for failing to adhere to this principle of equality. In general terms, the approach of the courts has been to allow some deviation in the ratio between constituencies; but in two cases (O’Donovan v Attorney General [1961] IR 114 and O’Malley v An Taoiseach [1990] ILRM 461), deviations of 25% from the national average were found to be unconstitutional.

Moreover, the phrase “so far as practicable” also imports an element of common sense regarding the procedures that must be followed to revise constituencies and the time that this takes. In the case of Catherine Murphy and Finian McGrath v Minister for Environment [2007] IEHC 185, it was held that this phrase imports not just an element of flexibility into the ratio itself, but also into the logistics of holding a census, ascertaining the results, and drawing up new constituencies. Clarke J (as he then was) held:

“… it is more than reasonable for the Oireachtas to put in place appropriate measures deigned to maintain and ensure a high level of public confidence in the objectivity of the constituency formulation process. To the extent that it may, therefore, be necessary to go through a certain process to ensure that the constituencies as enacted into law have that high degree of public confidence, then I am satisfied that it is reasonable that the process be engaged in. To that extent I am satisfied that it cannot be said that the ratio of deputies to population is outside constitutional norms “insofar as it is practicable” until such time as a reasonable period has elapsed from the availability of relevant census figures to enable such a public confidence maintenance process to be gone through.”

Accordingly, the application in that case to have the Electoral (Amendment) Act 2005 (which set down the constituencies at that time) declared unconstitutional was rejected. Nevertheless, Clarke J emphasised the “urgent obligation on the Oireachtas to deal with the disproportionality which has now emerged and the additional comments which I have made about the possible need to adopt further measures to ensure that the time lag between the final ascertainment by census of the population and its distribution, and the enactment of new constituencies to reflect that population distribution, is reduced to an absolute minimum.”

Mr Costello’s case differs from the above in a number of regards. First, unlike the broad principle of equality of representation set down in Article 16.2.3°, Article 16.2.2° does boil down to a precise mathematical calculation – and the numbers are on his side of the argument. Second, it does not contain any qualifying phrase like “so far as practicable” or anything similar. On its face, taking Article 16.2.2° in isolation, the 2013 Act would seem to be in clear and obvious breach of the Constitution.

In reality, the courts will be loathe to do anything that would interfere with the essentially political processes at the heart of the dissolution and election of Dáil Éireann. But if a ruling in favour of Mr Costello is to be avoided, where are the possible escape routes?

One option would be to read a practicability qualification into Article 16.2.2°, notwithstanding its absence from the text. This would be analogous to Doherty v Government of Ireland [2010] IEHC 369, in which the High Court read into Article 16.7 (which provides that “elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law”) a requirement that by-elections be held within a reasonable time period. However, it is noteworthy that Article 16.2.2° neglects to use the phrase “so far as practicable” when the very next provision does so. It might well be argued that if it had been intended to have been read this way, it would have been drafted in this way, and the failure to include the phrase indicates a conscious choice.

Even if Article 16.2.2° is to be read as importing a practicability element, the question arises as to why it has not been practicable to revise the constituencies in line with the 2016 Census. In Murphy and McGrath (cited above), the Constituency Commission had not reported on foot of the most recent Census. Given the scale of this task, it was always likely that that case would falter on the “so far as practicable” ground. However, on this occasion, the Constituency Commission has already completed its latest report in June 2017. In that Report, the Commission noted at p.15:

“The population ascertained at the 2016 census was 4,761,865 and, on this basis, having regard to Article 16.2.2˚ of the Constitution total Dáil membership could be fixed by legislation at between 159 and 238. However the 1997 Act, as amended, limits the range to not less than 153 and not more than 160 members which provides for a national average representation of between 31,123 and 29,762. All but the last two points in that range, 159 and 160, would breach the constitutional limit. The Electoral (Amendment) (Dáil Constituencies) Act 2013 currently provides for the total number of members of Dáil Éireann to be 158…

…The Commission recommends that the total number of members of Dáil Éireann should be 160. This gives more scope for recommending changes in constituency configuration in a number of areas and for responding more comprehensively to the terms of reference and to many of the submissions made. This would mean a national average representation of 29,762 of population per member.”

All that remains is for the Report to be laid before the Dáil and its recommendations translated into legislation. A draft Bill is already in preparation to this effect. Thus, all the heavy lifting has already been done.

Nevertheless, should the Government fall, the timeframe is about as tight as it could be. It could literally be the case that the Taoiseach drives past the Four Courts in the middle of the hearing of the case on his way to Áras an Uachtaráin to seek a dissolution of the Dáil.

In this case, what are the possibilities? What if the Dáil is dissolved before the hearing of the case? Does this render the proceedings moot? Theoretically, no; under Article 15.4.2°, “Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.” This should be the case regardless of political circumstances. If the 2013 Act is struck down, the question then arises – what is the effect of this vis-à-vis the next election?

The 2013 Act repealed and replaced the Electoral (Amendment) Act 2009, which set out a different constituency configuration involving 166 TDs. It is superficially appealing to think that the 2013 Act could be struck down, thus bringing back to life the 2009 Act and thus the previous constituencies. However, while this would bring about compliance with the 1:30,000 minimum requirement of Article 16.2.2°, it would have all sorts of knock-on consequences regarding the equality of representation principle set down in Article 16.2.3°, including (and perhaps not limited to) the wide discrepancies complained of in Murphy and McGrath. While Irish courts can declare legislation unconstitutional, they do not have the power to craft a constitutionally compliant replacement; and if the Dáil is to be dissolved tomorrow, there is no time for the Oireachtas to enact one.

One other possibility would be for the President to hold off granting a dissolution long enough to allow the Oireachtas the time it needs to enact the draft Bill designed to give effect to the Report of the Constituency Commission. But the Court is likely to want to avoid making any decision that might be seen as interfering with the role of the Taoiseach and the President in the dissolution process; and so it may be that the Court focuses on this issue as part of a harmonious interpretation of the Constitution rather than a narrow, literal interpretation of Article 16.2.2°. Just how it would square this approach with what seems like a clear and obvious breach of the Constitution will be interesting to see.

Dr Conor O’Mahony and Dr Seán Ó Conaill both lecture in constitutional law at the School of Law at University College Cork.

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Update on Judicial Appointments Row

Dr Laura Cahillane

Given that today the Dáil will begin its consideration of the now controversial Judicial Appointments Commission Bill and given the amounted of heated discussion on topics such as the lay element of the commission, I will attempt to provide some clarity on the proposals here.

Yesterday, the Association of Judges of Ireland issued a statement in which they criticised the proposal to include a lay majority on the new commission, and to include a lay chair thereby depriving the Chief Justice of this position. The judges are also unhappy that the Presidents of the Circuit and District Courts are to be left out of the new body. The statement alleged that the proposals do not accord with international standards however this is not entirely accurate. Three jurisdictions which are common comparators with Ireland all have reformed their processes for appointing judges in recent times and all have either an increased, equal or a majority of lay representation on their appointments body and all have a lay chair. In Ontario, the Canadian jurisdiction which is often pointed to as a suitable model, out of the 13 members of its Commission, there are 7 lay members including the chair, 3 judges and 3 lawyers. So, a lay majority and a lay chair. In England and Wales there 15 Commissioners: 6 lay including the chair, 6 judicial, 2 lawyers and 1 non-legally qualified judicial member. While the lay representation is smaller here, it is still significant and the chair is a layperson. Scotland provides for equal lay and legal representation with 6 of the 12 members to be lay persons, including the chair. So we can see that a lay chair is a common trend along with a significant lay representation on the body.The Four Courts, Dublin

The judges and the Bar Council have also stated that no explanation for this reform has been provided. So why is increased lay participation on a judicial appointments body considered a good thing? Primarily, it is a device used to increase diversity on the bench and to ensure public confidence in the fairness of the system. Studies internationally have shown that when judges dominate such bodies, the new appointments are almost always self-replicating and it is very difficult for women or minority candidates to be appointed. (In fact the current process in Ireland has been described by an insider as being akin to an exclusive golf club admissions process.) Increasing the lay representation on such bodies generally leads to more openness of views and increased participation in the appointments process.

Baroness Prashar, who is a crossbench member of the House of Lords and was the first chair of the Judicial Appointments Commission in England, has made the following comment on lay membership of the Commission:

“You do not just have a lay member on the panel to increase transparency and to satisfy public perception: they all bring something … Once you were on the Commission, there was very little distinction between the judicial and the lay members. …The Commission was a very robust body, and it worked extremely well. Lay members add real value, and what I valued most was their independence of mind.”

Of course it is essential that the judiciary has a role in the appointments process and that the Chief Justice and Presidents of the Courts are involved in selecting candidates. Judges understand the qualities necessary for particular positions and are able to provide an informed assessment of an individual’s experience, skills and abilities. However, judges will naturally, and through no conscious process, prefer individuals who are similar to themselves and it is argued that having greater lay involvement in the selection process is the most appropriate way of avoiding the problem of self-replication within the judiciary.

Of course, this also raises the question as to why diversity is desirable in the Judiciary. This was something which, in their submission to the Department of Justice on reform of judicial appointments, the judges felt was a non-issue. Also Senator Michael McDowell SC, who has been one of the main critics of the new Bill, recently commented publicly that he doesn’t understand this desire for diversity when we already have ‘excellence’ in the judiciary. However, this misses the point and it is surprising that the argument for diversity even has to be made today. While, there is not sufficient room in this blog to explore the reasons for the need for diversity on the bench, I would point the esteemed Senator to the excellent research which has been carried out by academics such as Erika Rackley, Clare McGlynn and the writings of Lady Hale –all of which LONDON, ENGLAND - OCTOBER 01:  Baroness Hale of Richmond, One of the new 11 Justices of the Supreme Court, and the only woman, arrives in Westminster Abbey after being sworn in on October 1, 2009 in London, England. Lady Hale wears a hat despite other Justices of the Supreme court breaking tradition and choosing not to wear wigs. The Judges, who are to replace the former Law Lords, mark the start of the legal year with a traditional religious service, arriving from the Royal Courts of Justice for a service which is followed by a procession to The Houses of Parliament and then a reception held by the Lord Chancellor. The ceremony in Westminster Abbey has roots in the religious practice of the judges praying for guidance at the start of the legal year. The custom dates back to the Middle Ages when the High Court was held in Westminster Hall.  (Photo by Dan Kitwood/Getty Images) *** Local Caption *** Baroness Haledemonstrate that diversity is not about expecting different decisions than those that are given now but about providing equality of opportunity, democratic legitimacy, which feeds into public confidence that judges are representative of the community as a whole and can understand a vast array of issues, and also about providing diversity of opinion and divergent views.  Furthermore, as these academics have demonstrated, diversity is compatible with the concept of merit.

Another claim which has been repeated on the airwaves in recent days is that the inclusion of lay persons on the body will mean that ‘ordinary Joe Soaps’ will have control over appointing judges. However, this is wild exaggeration and it is up to the Oireachtas to decide on the criteria for the appointment of such lay persons. In other jurisdictions, these are usually people who have held high office, successful business people, people who have had experience in appointing others to high office, academics, and generally people who are very well regarded. It is envisaged in the proposed legislation that the lay persons would have experience of the administration of justice and it is possible to build in further requirements here. Ultimately, the Oireachtas has the power to determine the qualifications necessary for appointment to the board and can easily assuage any fears here.

The other concern of the judges, on the exclusion of the Presidents of the District and Circuit Courts, is perhaps something which should be remedied in the proposed legislation. It is in these courts where the vast majority of appointments are made and so it makes sense that these figures would wish to be involved. Although the Bill does make provision for the Presidents to be consulted. From what I understand, the reason they were excluded in the first place was to maintain the balance of lay and legal persons but surely it would make much more sense to exclude the Attorney General, who would be involved in the appointments process at Cabinet level in any case and therefore would seem unnecessary to be included here also. (Incidentally none of the jurisdictions mentioned above include the Attorney General in their bodies).

justiceIt is clear that the judiciary is very exercised on this issue as it is very unusual for them to speak out in such a fashion and given that this is reform which is truly necessary, perhaps some compromise is now needed in order for the measure to pass. If the Government was willing to sacrifice the lay majority and settle for equal representation of lay and legal persons by including the Presidents of both lower courts and excluding the Attorney General, I wonder would this go some way towards breaking the impasse?

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