The presiding judge of the Commercial court has been a rare exemplar of leadership at a time when the country badly needs such individuals.
In court, he has cut through all the verbiage and offensive waffle deployed by some former masters of the universe attempting to throw all their debts onto the citizenry. In performing his duty, Kelly has shown himself to be a real tribune of the people.
So it’s disappointing that he bears responsibility for what now appears to have been little more than an undignified hissy-fit from a branch of government of which more might have been expected.
Kelly was reported as telling a business gathering 10 days ago that the Government was dismantling the independence of the judiciary “brick by brick“. He also laid the serious charge that this erosion carried economic risks as one of the key attractions of Ireland for multinationals was its independent legal system.
It was an astonishing outburst. The Government was mucking around with not just a key basic tenet of a developed democracy, but the economic future of the country. Later, Kelly claimed the report on his comments was inaccurate, but he didn’t specify what he was unhappy with.
The report in last Sunday’s Business Post led to the Minister for Justice Alan Shatter firing off a righteous reply. Before long, Supreme Court judge Adrian Hardiman weighed in on his colleague’s behalf. This was followed by the judicial cavalry, the Association of Judges of Ireland (AJI), banging off a release in further support of Kelly. Shatter, a man for whom charm is a radioactive substance, shot back again.
Enter the master of the High Court, Edward Honohan. The master told Morning Ireland that their lordships were suffering from “a sense of entitlement“.
Get stuffed master, came the response from the bench.
President of the High Court Nicholas Kearns pointed out that the master was no lord — he was a mere civil servant, rather than a learned judge. Kearns’ comments were noteworthy, as Honohan had pointed out himself he wasn’t a judge. Was the justice just peeved at the master’s home truths?
Next up was Catherine McGuinness, a retired Supreme Court judge, who is normally a rock of sense. Not this time. She also had a go at the master, and intimated that her sympathies lay with her former colleagues.
By Wednesday, chief justice Susan Denham felt compelled to rein everybody in, announcing that a forum had been set up bringing the judiciary and Government together, where matters of concern could be discussed. She also revealed that she had been in touch with members of the executive last Monday, the very day that the release from the AJI claimed that communication had broken down.
The whole affair was unedifying, and will probably result in a further depletion of respect for the judiciary. For, despite high-minded claims about concern over independence, it’s difficult to escape the feeling that, like many other sectors, the judges just feel they’re not getting a fair shake in this time of austerity.
The AJI is peeved the judges weren’t consulted on the setting up of new family and appeal courts. The chief justice, is the traditional conduit between the executive and the judiciary. She has had meetings about the appeal court with the AG. The new family courts will involve different models, and while greater consultation might be desirable, it’s hardly a grave matter.
The proposed referendum on the Seanad is another beef. In this vein, are their lordships not in danger of making an excursion across the separation of powers themselves, rather than defending their own patch?
Then we have the proposed appointment of county registrars to insolvency courts. Registrars already perform quasi-judicial functions, and while this move might extend their powers, it hardly encroaches in any meaningful way on the independence of the judiciary.
In any event, there have, over the years, been such minor strays across the separation of powers. In 2006, the then minister for justice Michael McDowell made an astonishing attack on the judiciary, demanding that they hand down so-called minimum mandatory sentences in a manner that would please him. Twelve years ago, Peter Kelly himself threatened to hold government ministers in contempt over the lack of accommodation for troubled youths. While he had morality firmly on his side, he was also wandering well into the demilitarised zone separating the arms of government. Either of those examples was just as serious as the stuff the IJA has enunciated, but there was no talk of a crisis then.
No, last week’s affair was drenched in sourness at both the perceived sacrifices made, and the lack of appreciation thereof, that pervades many sections of society today. If that wasn’t bad enough, their lordships are saddled with a minister wholly incapable of feeling their pain. Just ask the gardaí.
Both Hardiman and Kelly have commented on the apparent lack of credit given to the judiciary for the take up of 85% in accepting voluntary pay-cuts before the 2011 amendment to cut judge’s pay. They have a point, but it should also be noted how slow the judges were to accept that they should do so.
The whole farrago around judges’ pay certainly lowered the standing of the judiciary in the eyes of the public, and the subsequent wailing over new pension arrangements added to a feeling that these people don’t know how good they have it.
This sentiment probably doesn’t take into account that a number of judges got caught up in the property bonfire, but that’s the case right across society.
In the padded business of law, some judges may well now look towards their former colleagues in private practice and conclude that they would now be much better off there. Well, that’s tough, but that’s life. You sign up for the service, you wear the boots, and right through the years of plenty, the judiciary sailed on the Good Ship Bertie, in which gravy was ladled in generous helpings to those at the upper reaches of the public service.
Back then, the judges were happy to have their pay pegged to others at that level. Now we hear they want an independent body to adjudicate on how they should be remunerated.
In such a milieu, and with little prospect of sympathy, it’s easy to see why their ire expressed itself in the “erosion of independence” defence.
Last week’s row won’t have done anything for the standing of the judiciary, which is unfortunate. On the bench, Kelly in particular, but also many of his colleagues also, have shown that their branch of government is capable of performing its function to a high standard at a time when other elements of the elite have been found wanting.
But the presiding judge of the Commercial Court in particular went too far last week. A hissy fit is one thing, but suggesting that inward investment may be in peril because of poor relations between the judiciary and executive was going way too far.