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 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 demonstrate 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).
It 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?