On Wednesday night an end was put to the longest filibuster in the history of the State when the guillotine was imposed on the Judicial Appointments Commission Bill. The Bill has now passed all stages of the Seanad and will return to the Dáil for consideration of the numerous amendments made. However, given the current climate, an election is likely to happen nearer to Christmas than summer and if this occurs it will probably be fatal to the Bill. The architects of the filibuster are already celebrating but if all of the work behind this Bill has been for nothing then the Government will not be the only loser. The reality is that the judicial appointments process in Ireland is not fit for purpose and failure to reform it does a disservice to the judiciary, the legal profession, the general public, and the State.
What is wrong with the current system?
In Ireland, judges are appointed by the President, ‘on the advice of the Government’, which means that they are chosen by the Government. In 1994, as a result of the fallout from the attempted appointment of the then Attorney General to the post of President of the High Court, it was decided that the ‘tap on the shoulder’ system should be reformed. This resulted in the establishment of the Judicial Appointments Advisory Board (JAAB) in 1995. The move looked like genuine reform but Professor David Gwynn Morgan has described it as “a good example of pulling the wool over the public’s eyes”. This is because it does little to change the process.
First, the board has no role if the post in question is the presidency of any court or if a vacancy is being filled by the promotion of a lower judge by the Government. In relation to all other appointments, the Board compiles a list of at least seven names and submits this to the Government. However, in recent years due to fears of unconstitutionality, the Board began a practice of sending all suitable names forward to the Government. This means for a District Court appointment the Government could be faced with up to 100 names. It does not interview candidates or rank them, despite having the power to do so. Thus, essentially it is a filtering mechanism which doesn’t even filter has not made any real change to the appointments system.
Why is this problematic?
Some would argue that there is no need for reform since Irish judges have never shown any deference to the Government which has appointed them and they have an excellent record in terms of independence. This is very true but there are problems with the current system. The Government has complete discretion and nobody can deny that throughout the years Governments have appointed supporters of their own political parties. Some Governments have been more neutral than others but that is purely their prerogative. In recent years Governments have made a number of outstanding appointments, and in particular these include many excellent women. However, for many years very few women were appointed and currently there is no requirement to promote diversity in terms of gender, ethnicity, background, geography, or anything else – it is purely at the discretion of Government.
While the political element has sometimes been exaggerated, judges themselves have admitted using political influence to ensure their appointment. Retired Judge Michael Patwell told Charlie Bird a few years ago that such an approach was “common”. In an interview in 2012, Mr Justice Peter Kelly, who was President of the Association of Judges in Ireland stated that the JAAB does not work: “We all know … that people who would be excellent judicial appointments are passed over in favour of people who are not so well qualified.”
In 1995, Brian Cowen urged the Dáil to delete the sections of the Court and Court Officers Bill 1995, which subsequently established the Judicial Appointments Advisory Board. Cowen had been part of a ministerial sub-committee which designed the scheme so that the government could ‘save face’ following the controversial Whelehan Affair the year before. Cowen claimed the JAAB scheme had nothing to do with meaningful judicial reform but rather was a short term political solution to a problem which had since gone away and he asked his colleagues not to include the proposed scheme noting that as a practitioner in the courts, he anticipated ‘many problems in the event that those sections are agreed’.
This so-called ‘charade’ has now been in operation for nearly 25 years and controversy has followed it since then. What better illustration of the broken process than the appointment of the Attorney General Máire Whelan to the Court of Appeal in 2017. The Government decided to make the nomination despite the fact that Ms Whelan had not actually made an application for the post. Despite the fact that a number of High Court judges had applied, Ms Whelan was the only candidate brought to Cabinet. The move was criticised by Opposition parties and by the media but memories are short and this has been all but forgotten.
Why is there opposition to the current Bill?
The current Bill, which is generally known as Minister Ross’ Bill, has been subject to vehement opposition for a number of reasons. The main points of controversy have been the idea of a lay chair and a lay majority. Despite claims of ridiculousness from some politicians who asked why “Joe Soaps” should be involved in choosing judges, these devices are commonly used in other jurisdictions and are generally regarded as best practice. [See further here] For example, 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; a lay majority and a lay chair. In England and Wales there are 15 Commissioners: 6 lay including the chair, 6 judicial, 2 lawyers and 1 non-legally qualified judicial member. Scotland provides for equal lay and legal representation with 6 of the 12 members being lay persons, including the chair. These are also common trends elsewhere. It has been repeated by Opposition politicians and media that the European Commission criticised this aspect of the Bill. However, the concern expressed in the Commission report was in relation to the originally low level of judges involved in the body rather than to the principle of lay majority or lay chair. This aspect was also criticised by the Association of Judges of Ireland and amendments were made to increase the number of judges on the body – a crucial move as it is essential that judges be adequately represented.
Another claim made in the Seanad is that it would be improper to interview sitting judges as to their suitability as judges. However, again this is very common in other jurisdictions. In England and Wales for example, judges will often undergo moot trials and mock scenarios as well as interviews in order to determine their suitability. What is wrong with that? It is something deemed necessary in every other profession, why should judges be any different? Interviews can be a very useful tool and it is crucial that we appoint candidates who will be good judges.
A cynic might suspect that some of the opposition to the Bill simply comes down to the personalities involved.
Of course the problem now is that so many amendments have been made to the Bill, some useful and some unclear, that the Attorney General’s description of a dog’s dinner is apt.
The future of the Bill?
The only hope for the future of this important reform is if the Opposition gets on board to tidy up, improve, and pass the Bill as soon as possible. But this appears very unlikely. Shortly before the introduction of the current Bill, Fianna Fáil introduced a very similar proposal which received an unusually warm reception in the Dáil. However, this was not supported by Government since the Department of Justice was already preparing its own draft Bill. Given that the two main Parties acknowledge that reform in this area is needed and agree on most of the substantial issues, it is disappointing and hard to believe that this genuinely necessary reform will quite possibly come to nothing.
Dr Laura Cahillane is a lecturer in Constitutional law in the University of Limerick