Chief Justice: Cabinet plan not ideal
In an exclusive interview with the Irish Examiner, Mr Justice Clarke also rejected suggestions that the judiciary are an “insiders’ cartel” in need of breaking up.
He said the bill, which has been spearheaded by Independent Alliance minister Shane Ross, is of “concern” to members of the judiciary.
He said the concerns expressed by the five presidents of the courts to Taoiseach Leo Varadkar back in June remain and that the “position has not changed”.
Mr Justice Clarke’s outspoken comments are likely to be seen as highly significant as the bill is moved through the Oireachtas in the coming weeks.
He also described relations between Government and the judiciary as having been “tense” in recent times.
“I think the concern is that it is not the best model for appointing judges, simply put, there are better models. Government knows our position and it hasn’t changed,” he said.
“I think the position of the judiciary was made clear in the letter from the five presidents so I don’t differ from that. We have said what we have to say on it, but we will live with whatever comes out at the end of the day.”
However, he suggested that the proposed new rules could lead to poorer judges being appointed.
“We would regard the methods of appointment as important because if we don’t get the right people then the judiciary is not as strong as it might be, and that is the concern,” he said.
“I don’t think there was an insiders’ cartel as it was described. The judiciary is more disparate than people give it credit for.”
Mr Justice Clarke said his judicial colleagues are concerned that they may be unfairly subject to misconduct charges under the controversial pending Judicial Council Bill, another reforming piece of legislation currently under consideration.
It has been criticised after it emerged the identity of judges reprimanded for behaving improperly will be protected under the proposed judicial legislation.
The bill is due to be considered by the Oireachtas this session.
In contrast with many other countries, including in England, Wales, and Canada, and unlike in regulated professions here, the public will not know when a judge has been rebuked.
Asked to respond to the criticism, Mr Justice Clarke said: “I wasnt really involved in it, but was aware of. It is something I want to talk to colleagues about. The one thing the judiciary have been concerned with is the very low threshold for the definition of misconduct.
“I think that is connected with some of the other issues. I don’t want to adopt a position without having the chance to talk to those who were involved in the negotiations but it is something we will have to take a position on.”
He also revealed his plan to free up judges by delegating some functions to other judicial officers, even in the High Court.
“There are matters that need not be handled by judges, you may have suitable people to handle the more routine administrative matters,” he said.
“A judge’s primary job is deciding on cases, so maybe more of the work in getting the case ready for a focused, shorter and therefore cheaper hearing could be given to other officers. But they would need to be reasonably experienced and competent people and they would need to be paid otherwise you wouldn’t get the people.”
Mr Justice Clarke confirmed that in his younger days he was active in Fine Gael and was a speech writer for former taoiseach, the late Garrett FitzGerald.
He also says he remains very interested in politics, not just in Ireland but across the world.
“I would have been a reasonably active Fine Gael person over the years,” he said. “I certainly wrote speeches for Garrett FitzGerald back in the day. I have still have an interest but it is not just Irish politics, I follow German elections, the French elections, the Americans. You retain that interest.”
