Delaying any reform is not acceptable - Judge criticises Government

IT may be an over-reaction to say that Chief Justice Susan Denham’s attack on the Government over its failure to establish a judicial council is seismic. 

Nevertheless, such a straight-between-the-eyes challenge from one of the apex figureheads of the Irish establishment must touch a Leinster House nerve or two. The criticism also points to the all but unshakeable inertia surrounding institutional reform in this society. The council was — or is — intended to protect judicial independence and have oversight of the judiciary’s relationship with other arms of government.

Though not directly connected to Ms Denham’s criticism the Legal Services Regulation Bill stands as irrefutable testimony to why institutional reform is so very difficult. After successful lobbying of Government by the Bar Council and Law Society more than 100 amendments were made to Alan Shatter’s draft. The legislation ultimately fell well short of the urgent objectives outlined by the troika when it pointed to impediments to a more modern, efficient way of conducting our affairs. Very specific sectional interests prevailed in that instance and were protected from the crude, tooth-and-claw leveller we all recognise as competition.

There is however a common theme. Our judges showed, prior to the 2011 referendum to allow Government to impose pay cuts on the judiciary, that they are very capable lobbyists in private or publicly.

The majority of judges then took umbrage at the prospect of pay cuts, arguing that such an imposition would encroach on their independence. Despite heartfelt pleas, 80% of the 1.75 million people who voted approved legislation needed to cut pay. One Supreme Court judge apparently threatened to resign if the amendment was endorsed. He did not, however, exercise that readily-available option when the time came. Where judges saw an issue of theoretical principle a public battered by economic collapse saw a group perceived as privileged and well paid — compared to the general public, but maybe not to former colleagues in the Bar Council — and gave Government power to cut their pay. And so it was.

The arguments advanced about the independence of the judiciary, including untouchable pay, are not as watertight as they might seem. A corrupt government, should it so wish, can influence court proceedings in many, many ways. It does not need a compliant judge. The idea that a government could easily bring undue influence to bear hardly stands scrutiny either. In such circumstances, a principled and brave judge need only hint that they are being targetted and the errant politician’s public career would be over.

There are many aspects of our court services that seem ripe for re-engineering and that work is underway. Ms Denham’s Supreme Court has almost cleared a list of cases stretching back over five years. This timescale is not unusual and though there may be many reasons for it the perception of judges’ long holidays and short working days is hard to discount. Ms Denham may have a good case on long-fingered reforms but as is the case in virtually every public sphere in Ireland that is a two-way street. Doctor, cure thyself.