Appointments to the judiciary: Lay chair may lack impartiality

IN a landmark case in 1982, the Supreme Court Judge Seamus Henchy spoke about “The bitter Irish race-memory of politically appointed and Executive-oriented judges”. 

Perhaps it is that race-memory that lends historical weight to the new system of appointing judges about to be introduced by the Oireachtas at the behest of Shane Ross.

While Mr Justice Henchy was speaking in the context of the constitutional guarantee of trial by jury, it is hardly too much of a stretch to argue that the appointment of judges would also benefit from significant lay input.

Our common law tradition is a broad church where the laity — ie, the jury — often takes centre stage. It has survived violence, politicial upheavel, revolution and constitutional change. Its endurance is testament to the fact that, in certain circumstances, the amateur trumps the professional.

In that context, there is logic in the reasoning that judicial appointments are too important to be left to the experts. However, the insistence by the Government that there should not only be a lay majority but also a lay chair of the commission may be a mistake.

The purpose of a chairman is to put things in context in an impartial and neutral manner. It is not a skill that everyone has but judges exercise it every day in charges to a jury.

In that respect, it would make far more sense if the commission chairman was a judge rather than a lay person.