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 over 20 years and controversy has followed it since then. The problems with the current system are well known but despite the fact that the need for reform had been acknowledged for many years, it is only now that this area of law is being tackled.
As part of the current Programme for Government, Minister Shane Ross secured a promise to ‘replace the Judicial Appointments Advisory Board with a new Judicial Appointments Commission’ which would include ‘a reduction in its membership, an independent chairperson selected by the Public Appointments Service and approved by an Oireachtas Committee, and a lay majority including independent people with specialist qualifications.’ We are still awaiting publication of the Bill and in the meantime, it seems the government has agreed not to appoint any further judges under the current scheme – something which has not gone down well in legal circles.
Furthermore, last week the Minister provoked the ire of the judges by suggesting that judges should make an annual declaration of interests because they might forget their oath, which requires them to exercise their powers ‘without fear or favour, affection or ill-will towards any man’ and to ‘uphold the constitution and the laws’. This followed earlier comments which suggested the judiciary was holding up the reform process. The Chief Justice responded this week while speaking to the National Judges Conference citing ‘inaccurate discussion and misrepresentation of the position of the Judiciary’ in recent public discourse. She stated that: ‘it is surprising that it has been stated that the Judiciary are fighting change – when the opposite is the case – the Judiciary have been advocating change, but it has not yet been advanced.’ Later, Minister Ross clarified on RTE Radio’s News at one programme that the judiciary is opposed to the lay majority element of the proposed bill.
While all of this has been going on, Fianna Fáil’s Jim O’Callaghan introduced a private members bill to establish a Judicial Appointments Commission. Unusually, the Bill received a warm reception from most parties in the Dáil and apart from some criticism of the entire judicial system from Deputies Barry, McGrath and Daly, there seemed to be a genuine consensus and spirit of co-operation amongst deputies during the debate on the Bill. The Government didn’t even oppose the Bill, although they plan to bring forward their own Bill shortly which will likely overtake that of O’Callaghan.
So why, when there appears to be much agreement over the terms of the existing Bill, does the Government see fit to proceed with a further Bill? The answer to this is most likely down to Minister Ross’s personal crusade to rid the current process of the appearance or possibility of political bias or any other form of ‘cronyism’. However, with a few amendments to the current Bill, the Minister’s requirements could be accommodated.
O’Callaghan’s Bill contains many of the reforms which are necessary in order to improve the current system. For example, it provides that for each judicial vacancy, the new Commission would recommend 3 names to the Government and would rank the candidates, having conducted interviews. The Government would not be required to select the highest ranked candidate or even any candidate on the list but in that case would have to publish a reasoned decision for the departure. It would also require the new Commission to draw up and publish specific selection criteria based on merit and would allow the Commission to consult the Court as to whether particular competencies were needed. The Bill specifies that, subject to the paramountcy of merit-based appointment, ‘the Commission may also have regard to the importance of promoting gender and cultural diversity within the judiciary, and any lacuna in legal expertise or Irish language proficiency amongst judges of the court in respect of which the vacancy arises.’
The composition of the Commission is also a new departure; while the usual 5 judicial members and 2 from the Law Society and the Bar Council are included, it also provides for 5 additional members from nominating bodies including: the Citizens Information Board, An tÚdarás um Ard-Oideachas, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Commission, and the Free Legal Advice Centres. When explaining this provision in the Dáil Deputy O’Callaghan invited further advice and discussion on the nominating bodies.
These are all worthwhile and welcome reforms but from the perspective of the Government, or at least part of it, they do not go far enough. The Programme for Government specifically mentions a lay majority on the Commission as well as a lay chair. Minister Fitzgerald explained in the Dáil that the Government’s Bill will ‘increase lay membership and have a lay chairperson no longer appointed by the Minister, but by open appointment. The general scheme also proposes to open up appointments at every level and in every relevant court to the new process; make District Court judges eligible for appointment to the High Court; consolidate the existing and mostly un-codified provisions on qualifications and eligibility; and repeal previous enactments.’ But these changes could easily be accommodated in O’Callaghan’s Bill.
One issue with the Bill is that it proposes to increase to 15 the current requirement of 12 years practice as a solicitor or barrister as a prerequisite for appointment to the superior courts. It is unclear why this is necessary and together with the existing pension arrangements, which require 20 years on the bench in order to qualify for a full pension, it might discourage applications and might even be indirectly discriminatory towards women as it will effectively prevent those who have taken maternity leave or career breaks from applying for judicial office. In addition, while the provision allowing the Commission to take diversity into consideration is a positive move, it would be better to make this prescriptive as currently the JAAB is empowered to do a number of things, for example to interview candidates and to ‘do such other things as the Board considers necessary to enable it to discharge its functions under this Act’ but they simply don’t do these things. Therefore a requirement to have regard to diversity would be an improvement.
That there is finally some movement on reforming this area of law is to be welcomed. However, the controversy surrounding the debate is not helpful. There is a constitutional imperative that each branch of the separation of powers should respect and not undermine the other. To do otherwise is to put the administration of justice in danger. Minister Ross’s intentions are noble and he is correct to pursue the reforms he seeks – the provision of equality of representation or a majority of lay persons has worked well in other jurisdictions and helps to avoid the appearance of self-perpetuation. But given the spirit of collaboration evident in the Dáil on the introduction of Deputy O’Callaghan’s Bill, perhaps the Parties could work together, in the interests of justice and in the era of new politics, to find a solution and progress this important legislation. And while they are at it, perhaps they can finally settle the long-awaited Judicial Council Bill also.
Dr Laura Cahillane is a Lecturer in Constitutional Law at the University of Limerick.