THE vigorous verbal warfare which some of the judges are waging against the Government distracts attention from the fact that there are two camps within the judiciary.
On the one hand, there are what might be called the radicals, for instance Mr Justice Peter Kelly and his after-dinner speech, or Mr Justice Adrian Hardiman on the RTÉ news.
On the other side are traditionalists like Mr Justice Frank Clarke, who also made a speech last week. Its subject was the fact that, pretty well alone in the common law world, in Ireland, the Government still selects the judges and how this can be improved.
But the striking contrast lay in the tone of the two speeches. Mr Justice Clarke’s contribution was judicious, temperate, almost tentative. Mr Justice Kelly’s speech was reminiscent of that of a leader’s speech at a party ard fheis.
The tone was also in contrast with the Government’s response which has been notably judicious, despite the personal attack on Justice Minister Alan Shatter by Mr Justice Kelly. One headlined screamed: “Now Shatter goes to war with judges”. But a fair person might have thought: “What a vicious animal. When someone attacks, it defends itself.”
If Mr Justice Kelly had something serious to say, why choose the ambience of an after-dinner speech to 150 no doubt well-watered business leaders; without a press release so that his contentions could not be properly assessed.
Confidentiality was never a possibility, given the correctness of the observation that if Watergate had happened here, Nixon would still be president, but everyone would know who Deepthroat was.
There is a particular reason why a public difference between the Government and the Association of Judges of Ireland (AJI) is damaging, namely that the Government is involved in many of the cases that come before the AJI’s members.
Some of these cases are critical to the Government’s policy. One can easily imagine a case which involved vested rights in the public sector, and which could be a precedent applying to judges. Might the Government fear that it would not get a fair trial?
Of the causes which the AJI has championed, most have been what might be called fairly typical trade union issues. For instance, much of the edge between the Government and the judges grew out of the stir around the judicial pensions amendment. The (respectable) basis on which judges grounded their public protest was that of the independence of the judiciary.
But readers might like to turn the situation around and ask themselves the following question: In a financial crisis, if all those who serve the State, above a certain income, are being required to take pay cuts, save for a single group, would a fair person not suspect that the Government was trying to ingratiate itself with that group?
If the judges were to be given preferential treatment over all others in state service, could this be seen as an attempt to manipulate them? And should not anyone concerned with the independence of the judiciary be aware of this danger?
Next, a few weeks ago the AJI’s intervention arose from indignation over cuts to judicial mobile phone allowances. Yet it seems by no means an essential part of a judge’s function to make phone calls.
One of the contentions in Mr Justice Kelly’s speech was that the proposed personal insolvency service is to be overseen by former court registrars rather than candidates appointed from the bar or solicitor’s profession.
Yet court registrars have been, exercising judicial-type functions and operating as part of the courts’ culture of independence throughout their career. It is not realistic to dismiss them as mere civil servants. This looks like a straightforward trade union demarcation dispute, reminiscent of pre-Thatcher Britain.
The closest the AJI has for just-ification for the shapes it is cutting is the claim it has not been cons-ulted about legislation which affects its position. This attitude was con-demned, by another of what I called the conservative grouping, the master of the High Court (a senior court official, not quite a judge), as “a sense of entitlement”, meaning that the judges were improperly seeking too much authority.
I would not go that far. It is reasonable that judges should be consulted regarding matters which affect them.
But the way in which it was done was through the chief justice, the natural leader of the judiciary, from whom nothing has been heard in this sorry episode. It seems her role has been usurped by the association. And to judge by results, this is to nobody’s legitimate advantage.
There is a need for a fresh settlement to underpin relations between the judiciary and the Government, as Mr Justice Clarke argued. The present arrangement, largely unchanged since the 17th century, will not serve.
If evidence of this is required, it could well come in the next few weeks. For it has just been reported that there was a significant danger that the present Irish member of the European Court of Justice would not be appointed to another term.
The reason given was not that he failed at his work or was especially needed in Dublin, but that the Labour Party wanted the job for one of its own. Go figure.
But what the present spat between the AJI and the Government shows is that any such settlement will have to be calmly thought out by all relevant parties, without any attempt to gain advantage for a powerful vested interest.
*David Gwynn Morgan is emeritus professor of law at University College Cork