Ireland’s legal system compares favourably to the rest of Europe, but attempts to overhaul the process of judicial recruitment threaten to undermine recent reform, writes Kyran Fitzgerald.
Ireland’s judges find themselves, once more, in the eye of a publicity storm — through no fault of their own.
A normally reticent attorney general, Séamus Woulfe, provoked controversy at a recent lunch by describing a new law designed to overhaul the process of judicial recruitment as “a complete dog’s dinner”.
In 2016, the Judicial Appointments Commission Bill was published at the behest of Independent Alliance leader and Transport Minister Shane Ross.
It has been meandering through the Oireachtas, attracting amendments along the way. Many legal experts believe the legislative proposal is both unwieldy and unnecessary.
Some would argue that we are at risk of tampering with a judicial system that has been working well, in recent years at least, delivering justice with efficiency to participants in an increasingly sophisticated economy and in the face of cutbacks and an added workload brought about by the financial and business meltdown in 2008.
In 1995, the Judicial Appointments Advisory Board was established to ensure that the process of appointing judges was depoliticised. It has not quite worked out that way, say its critics.
Supporters of the current bill are keen to reduce the say of both serving politicians and the legal and judicial establishment in the hiring and promotion of judges.
But a proposal that the new commission be chaired by someone other than the chief justice has provoked a strong reaction among the judiciary who view this as a reduction of their role.
Concern at EU level is expressed at the modest role that would be played by judges in the proposed new commission. London School of Economics professor Patrick O’Brien has described the proposals as “a fix for a theoretical problem that has not existed in practice.”
The real concern is that the brouhaha over the method of appointments may be a distraction from the more fundamental challenge of ensuring that Irish judges continue to measure up to the rapidly increasing demands on them imposed in a rapidly changing economic environment.
Since the financial crisis, the Irish courts have had to cope with cutbacks in the system. Capital budgets were slashed in the court service. One result is that judges and officials have had to work with increasingly outdated IT systems, with resulting impacts on productivity.
Judges’ salaries and pension pots have been hit, reducing the incentive for many to leave often lucrative private practices, and in a reviving legal economy, it has become increasingly difficult to attract people with specialist commercial skills on to the Bench.
Reforms in the running of the courts — including the introduction of a specialist Commercial Court as a division of the High Court and the establishment, three years ago, of the Court of Appeal — have boosted the operation of the system, but its continued operative efficiency should not be taken for granted.
The annual budget of the Courts Service is currently €110m with the net cost to the taxpayer, when payment fees are taken into account, stands at just over €60m.
However, the intangible, reputational benefits to the country flowing from a justice system which on the whole works, are immeasurable.
By the standards of much of mainland Europe, Ireland’s legal system functions effectively, even though it may not always appear so to the legions of litigants, witnesses and visitors to the domed halls of justice.
The problem of delays across the system has been reduced since the 1990s when litigants could wait years to have their cases heard. The quality of our judges in earlier days was — to say the least — variable.
A few were clearly suffering from ill health on the bench causing trials even to be abandoned. A few were lacking in the basics of civility.
One judge regularly disappeared during the legal term to watch cricket matches at Lords. In late 1999, responsibility for the administration of the courts system was transferred from the Department of Justice to a new standalone Courts Service.
Offices were amalgamated. Computerisation resulted in improved access to banks of information. A new generation of judges no longer rears up at the mention of reskilling or further education.
In 2004, the Commercial Court came into existence as a separate division, headed up by Judge Peter Kelly, a one-time court official with a strong interest in efficiency.
This court has promoted intensive case management and Mr Kelly and colleagues led a clampdown on time wasting, an activity that some advocates still lean towards.
The Commercial Court has dealt with both large cases in financial terms and cases involving important legal issues.
Elsewhere, there remained clogging in the system, particularly in the case of appeals to an overloaded Supreme Court.
The former justice minister, Alan Shatter, pressed ahead with the establishment of the new Court of Appeal with the aim of lifting the pressure on the highest court in the land. Between them, the Supreme Court and the Court of Appeal have cleared much of the backlog of outstanding cases.
However, moves are underway to increase the size of the Court of Appeal from its complement of 10 judges so that delays in the hearing of appeals from the High Court can be reduced.
Nevertheless, the judiciary has managed to cope well with the upsurge in litigation that followed the financial crash. Many personal financial dramas have played out in public across the justice system since 2009.
The long reinvestment drought came to an end a couple of years ago. Three new court houses have opened this year, while Cork will get a new criminal courts complex in a few weeks’ time. Waterford’s expanded courts complex opens shortly.
But other changes have been slower in coming. Proposals for a new Judicial Council have been in the works since 2001. The council would set standards of ethics and conduct and provide for the systematic provision of ongoing education. Successive governments have promised to establish it, but it is still a castle in the air.
The judiciary nowadays organise symposia and seminars so as to keep up with changes in areas such as international commercial law, criminal law and forensic science. Senior judges now receive research back up, but this remains modest.
The Judicial Appointments Commission Bill is being backed by the Law Society which favours attempts to reduced the discretion in judicial selection of elected governments. It favours the increase in the number of lay members, arguing that it reduces the threat of “self replication” , or self-selection by existing judges and barristers.
However, care will have to be taken to ensure that the proposed lay chairperson and members have real business experience and a knowledge of the legal system. The selection of members of the commission will have to be carefully considered.
There are concerns that an understandable desire to promote diversity could result in inappropriate selections being made to posts of unique authority. It is very hard, if not impossible, to secure the removal of a judge on grounds of mere incompetence, or simply a lack of real capacity.
Many of the individuals serving on the bench have discharged difficult tasks with quiet efficiency. Put those with a lower skill and effectiveness level in their places and society will soon discover the cost that comes when you dispense with the best in pursuit of a supposedly higher democratic cause.
At the end of the day, the cause of justice will only be properly served when it is dispensed by those with the required talents, regardless of their personal background.