Judicial Appointment Process: Is Ireland a conformist or outlier?

Transcription

1 Judicial Appointment Process: Is Ireland a conformist or outlier? The process of judicial appointment in Ireland is highly politicized with governments appointing supporters to the bench. Two studies have compared the Irish judicial appointment process to those of other European states (Epstein et al, 2001 and Gill, 2007). Comparing the Irish judicial appointment process in Ireland with European civil law legal systems is flawed because judicial appointment processes differ radically in civil and common law jurisdictions. Thus, this paper compares Ireland s judicial appointment process with common law jurisdictions such as the United Kingdom, Australia, Canada, New Zealand and the United States. Previous studies described the Irish judicial appointment process but did not compare the operation of this judicial appointment process with another common law jurisdiction that has experienced reforms. This paper compares the appointment process for the Irish Supreme Court and the English House of Lords/Supreme Court. The paper begs the question as to whether differences in constitutional and political design of common and civil law legal systems make such comparisons futile. In May 2012, the European Network of Councils of Judiciary issued a declaration on the recruitment and appointment of judges. The Dublin Declaration requires judicial appointments be based on merit and made by a body independent of the government. The Dublin Declaration has 22 indicators to achieve these dual objectives. The Chief Justice of Ireland approved the Dublin Declaration statement and implicitly criticized the Irish judicial appointment process because the process fails to satisfy many of these indicators. The fundamental inconsistency between the Dublin Declaration and the 1937 Constitution is that the power to appoint judges rests exclusively with the government and the process is highly politicized where governments appoint supporters to the bench (Goldberg, 1970: 11; Bartholomew, 1971: 35-36; Morgan, 1997: 202; Gallagher, 2010: 91-92). In November 2011, five of the six judges appointed by the new Fine Gael-Labour coalition government had links to these parties. There is a threat to decisional judicial independence or at least the appearance of a threat where appointments are made on the basis of political patronage. The power to make judicial appointments is important in any legal and political system but is even more so in Ireland where the government is the most powerful organ of State in that it dictates the policy and legislative agenda by controlling the legislature through party loyalty and strict adherence to the party line in parliamentary voting (Chubb, 1992: 192). The judicial organ is the sole body that can limit the exercise of governmental power. The Supreme Court is the most powerful de jure and de facto actor because the court can restrict executive power by deciding that such exercise is unconstitutional, declaring that legislation is unconstitutional and providing authoritative interpretations of the 1937 Constitution. A Supreme Court decision is final and conclusive. The Supreme Court has asserted an entitlement to overturn its own decisions but rarely does. Otherwise, a referendum of the people is necessary to overturn a Supreme Court decision. This paper discusses the legislature and executive powers in relation to the Supreme Court with a focus on judicial appointments. The paper compares the Irish judicial appointment process with the process in England. The comparison takes into account the differences in the legal and political systems. Finally, the paper queries the ability to engage in comparative research on judicial appointment processes where there are significant differences in States legal and political cultures. Legislative and Executive Control of the Supreme Court The 1937 Constitution refers to a court system that includes a Supreme Court, High Court and courts of local and limited jurisdiction (Constitution of Ireland 1937, Art 34). The legislature established the District Court, the Circuit Court and the Court of Criminal Appeal as courts of local and limited jurisdiction. There is a constitutional imperative for every judge in this court system to be independent in the exercise of his or her judicial functions (Constitution of Ireland 1937, Art 35.2 ). The Supreme Court is the final court of appeal with original and appellate jurisdiction. The Supreme Court s original jurisdiction is limited and political. The Supreme Court can be asked to decide if the President of Ireland is incapacitated and decide on the constitutionality of a draft bill (Constitution of Ireland 1937, Arts and 26.1). A draft bill cannot become law if the Supreme Court declares the bill to be unconstitutional and the constitutionality of that bill can never be challenged again if the Supreme Court declares the bill to be constitutional. The 1937 Constitution prohibits the legislature from regulating the Supreme Court s original jurisdiction. The original jurisdiction has rarely, if ever, been exercised; the Supreme Court has never been asked to decide on the capacity of the President of Ireland and has been asked to review the constitutionality of draft legislation on only 1

2 fifteen occasions over a seventy four year period during which 3,000 pieces of legislation have been enacted. By contrast, the 1937 Constitution imposes few limitations on the Supreme Court s appellate jurisdiction. There is a general right of appeal from every High Court decision and there is a prohibition on any legislative measure to exclude the Supreme Court from deciding on the constitutionality of legislation. The 1937 Constitution confers the legislature with significant power to regulate the Supreme Court s appellate jurisdiction, the number of judges, judicial salaries and tenure of judicial office (Constitution of Ireland 1937, Arts and 36). Despite the extensive power t o regulate the court system, court legislation is rare and is in reaction to legal and political events. Comprehensive court legislation was enacted shortly after the foundation of the Irish State in 1921 (Courts of Justice Act 1924) and this legislation governed the court system until 1961 despite the 1937 Constitution requiring the establishment of the court system on a statutory basis. The government and legislature were prompted to establish this court system in 1961 not by the express and patent constitutional imperative but by a Supreme Court decision informing the executive and legislature that they must give effect to this constitutional imperative (The State (Killian) v. Minister for Justice [1954] IR 207). Amendments were made to the 1961 court legislation in 1995 and The 1995 amending legislation was motivated by a political controversy arising from the appointment of the President of the High Court in The amending legislation in 2002 was driven by a series of reports highlighting the need for administrative and structural reforms of the court system arising from systemic failure to invest in the court system since 1921, which gave rise to significant delays in the administration of justice. In February 1996, the length of time of the first twenty High Court appeals in the Supreme Court list awaiting a date for the hearing varied from two and half years to eight years (Working Group on a Courts Commission, 1996: 37). Governments have not sought to exert political control over the Supreme Court in court legislation regulating the appellate jurisdiction or number of judges. The 1961 court legislation does not limit the Supreme Court s appellate jurisdiction to public or constitutional cases similar to the jurisdiction of a typical constitutional court. The 1961 court legislation replicates the extensive appellate jurisdiction of the Supreme Court under the 1924 court legislation where there is a right of appeal from every High Court decision and certain decisions of the Circuit Court and Court of Criminal Appeal. The breadth of the 1961 jurisdiction may be explained by the unwillingness of the Supreme Court to exercise the novel constitutional jurisdiction to declare that legislation was unconstitutional and interpret constitutional provisions including constitutional rights and the separation of powers in the twenty-year period after the adoption of the 1937 Constitution. One explanation for the moribund constitutional jurisdiction was that judges were trained and practised as barristers under the English constitutional system where parliament was supreme and these judges continued to adhere to this concept despite the new constitutional jurisdiction bestowed by the 1937 Constitution. The consequence of such an extensive appellate jurisdiction is that political controversy surrounding public and constitutional cases may have dissipated by the time the Supreme Court hears the appeal. The 1937 Constitution allows the legislature to determine the number of judges for the Supreme Court (Constitution of Ireland 1937, Art 36i; Riordan v. Ireland [2009] 3 IR 745 at 754 per Murray CJ). The High and Supreme Courts have interpreted the legislative power to set the number of judges and appoint judges in an extremely permissive manner. A government could control the Supreme Court by court packing legislation that increases the number of Supreme Court judges and appoint those who will administer justice in accordance with government policies and political ideology. Court packing is constitutionally objectionable for encroaching on judicial independence (Hogan and Whyte, 2003: 1017). No government has ever attempted court packing legislation and it remains a theoretical risk (Casey, 2000: 302). During , the legislature fixed on six judges: a Chief Justice, the President of the High Court and four ordinary Supreme Court judges. The President of the High Court is designated an ex officio member of the Supreme Court whom the Chief Justice can request to hear a Supreme Court appeal (Courts (Establishment and Constitution) Act 1961, s 1(3)). This figure of five Supreme Court judges was influenced by the constitutional requirement that five Supreme Court judges are needed for that court s original jurisdiction. The 1961 court legislation requires five judges to determine if legislation is constitutional (Courts (Supplemental Provisions) Act 1961, s 7(5)). The 1961 court legislation allows a High Court judge to sit as a member of the Supreme Court to hear an appeal when so requested by the Chief Justice when there are an insufficient number of Supreme Court judges available due to illness or for any another reason (Courts (Establishment and Constitution) Act 1961, s 1(4)). In 1996, the legislature increased the number of ordinary Supreme Court judges from four to seven because of the delay in appeals mentioned previously and the proposed increase in the Supreme Court s workload when the Court of Criminal Appeal s jurisdiction is eventually transferred to the Supreme Court. Governments may be deterred or dissuaded from proposing legislation that overtly seeks to influence the outcome of Supreme Court decisions because such a subterfuge is open to public and political scrutiny during the legislative 2

3 process. Governments can achieve the same aim by exercising its constitutional power to make judicial appointments to the Supreme Court where the exercise of this power is not open to either public or political scrutiny. Executive power to make judicial appointments Judicial appointments in Ireland are made on the basis of legal rules and political practices or conventions. Legal rules can be identified and analyzed from legal and political perspectives. Political practices or conventions are much harder to discern, particularly where the activity is clouded in secrecy such as judicial appointments. (a) Legal rules and political process The 1937 Constitution and court legislation provide the legal rules for judicial appointment. Although the 1937 Constitution states that the President of Ireland makes judicial appointments, the President can only make appointments on the advice of the Government (Constitution of Ireland 1937, Arts 35.1 and 13.9). A majority of common law legal systems confer the power of judicial appointment on the executive. The origin of the 1937 constitutional provision lies in a similar provision of the 1922 Constitution, which in turn is grounded on the Anglo-Saxon principle of the sovereign making judicial appointments. Irish court legislation determines eligibility for judicial appointment as the 1937 Constitution is silent on this issue. The court legislation adopted the English eligibility criteria for judicial appointment, namely being a practising advocate, which is the eligibility norm for appointment to superior courts in other common law legal systems. Like the English legal profession, the Irish legal profession is divided into the solicitor and barrister professions. Solicitors act as legal advisers to clients and brief barristers who primarily act as court advocates on behalf of clients. Like the English Bar, the Irish Bar operates on the basis of the cab rank rule where barristers must represent a client, if available and are requested to advise or represent that client by a solicitor. The barrister profession is divided into junior and senior counsel with junior counsel being members of the Outer Bar and senior counsel being members of the Inner Bar similar to the status of junior and Queen s Counsel in England. However, the Irish Bar prohibits barristers from establishing chambers like their English counterparts. The eligibility criteria for judicial appointment have remained more or less the same since the foundation of the State and are narrow. The 1961 court legislation replicated the eligibility criteria of the 1924 court legislation. The 1961 court legislation provided that a person was only eligible for appointment to the Circuit, High, and Supreme Courts if he or she was a practising barrister. Practising solicitors could be appointed to the District Court. The legislation did not define the term practising barrister and the term was only defined by the High Court in The High Court held that a practising barrister is a person with a barrister-at-law degree who has been called to the bar and is available to take work as an advocate or legal adviser on behalf of members of the public through a solicitor (The State (Walshe) v. Murphy [1981] IR 275 at 289 per Finlay P). A person has to be a practising barrister for a minimum of twelve years for appointment to the High and Supreme Courts (Courts (Supplemental Provisions) Act 1961, s 5(2)). Senior counsels have been practising for a significantly longer period than the minimum twelve years before their first judicial appointment. A review of the current Supreme Court judges discloses that the average period of practice as a barrister before being called to the Inner Bar was fourteen years and twenty-seven years before the first judicial appointment. Like the process in England, this period of practice restricts the pool of potential appointments to the High and Supreme Court to a small number of senior members of the Bar. The twelve-year period is similar to that required for judicial appointment in other States. An examination of the eligibility criteria for judicial appointment to 27 Supreme or Constitutional Courts including Ireland found that 21 of 27 (77.8%) States require 12 years service as a judge, professor or government attorney with a standard deviation of 5.1 (Epstein, Knight and Shvetsova, 2001: 18). Ireland chose twelve years because it was similar to the English legislative requirement rather than similar to the requirments for appointment to a constitutional court in Europe. Despite the secrecy surrounding Irish judicial appointments, there have been sufficient disclosures by those involved to provide a general description of the role of the executive in the judicial appointment process. The Minister for Justice (Minister) drafted a list of candidates and brought this list to cabinet (Bartholomew, 1971: 33; FitzGerald, 1999: 16). Personal contact with the Prime Minister and Ministers arising from legal work on behalf of the State or personal legal work was an important factor for inclusion on this short or long list (Bartholomew, 1971: 33). The Attorney General may also have been involved in drafting the list of candidates as leader of the Irish Bar. The Attorney General had direct knowledge of the candidates so could comment on 3

4 the candidates (FitzGerald, 1999: 16). The Prime Minister and Minister chose the candidate, even though the decision is made at cabinet (Gallagher, 2010: 90). The Prime Minister s candidate was always chosen where he had a preference (Bartholomew, 1971: 34). Coalition governments have become the norm in Ireland since 1982 and leaders of minority parties in the coalition are involved in the selection of candidates for judicial appointment (Gallagher, 2010: 90). Minority parties have been successful in securing judicial appointments for their supporters. The selected candidate was contacted to obtain his or her consent (O Higgins, 1996: 276). The President of Ireland was informed of the candidate s name and the formal appointment took place. (b) Party politics, the Irish Bar and judicial appointments This description of the judicial appointment process is apolitical and does not describe the relationship between political parties and barristers. There have been strong links between political parties and barristers appointed to the High and Supreme Courts since the foundation of the State in Two political parties, Fianna Fáil and Fine Gael, have dominated Irish politics since the foundation of the State by providing every Prime Minister since 1933 (Weeks, 2010: 138). Fianna Fáil was the stronger party, which is demonstrated by its ability to form 12 single-party governments for 33 years during the period Fianna Fáil formed its first coalition government with a splinter party of Fianna Fáil, the Progressive Democrats, in Fine Gael has never been strong enough to form a single-party government and has always formed a coalition government with the Labour Party. The nature and purpose of the relationship between political parties and the Irish Bar altered over time. The original relationship between the majority of barristers appointed to the bench and political parties was based on activism that included assistance and support in the struggle for an independent State. This relationship is reflected in the political or quasi-political office held by barristers prior to appointment as High and Supreme Court judges from 1924 to Eighteen of the thirty-one judges appointed from 1924 to 1963 were formerly Attorney Generals, government ministers, members of parliament (Dáil Éireann), members of the senate (Seanad Éireann), election candidates and even members of the Westminster parliament prior to independence in The remaining judges worked as legal advisers to the government on questions of policy (Larsen, 1965: 18). These barristers identified with the political ideology of the parties that appointed them. A former Prime Minister and a judge stated that a barrister s politics was the controlling feature in a judicial appointment (Anon, 1950: 35-36; Carroll, 2005a: 183). Government appointed barristers out of gratitude for past services to the party or the State (Goldberg, 1970; 11; Bartholomew, 1971: 33; Carroll, 2005a: 183). Appointment to the bench is seen as a badge of prestige but would come at a financial cost. O Higgins, a former Chief Justice, said that a reduction in his income was a factor in deciding whether to accept appointment to High Court (O Higgins, 1996: 265). Judges in a 1969 study disclosed their political party affiliation prior to appointment. 15.9% of the District, Circuit, High and Supreme Court judges stated that they were affiliated with the government prior to appointment (Bartholomew, 1971: 35). 25% of Supreme Court judges came from political families (Ibid: 42). 75% delivered campaign speeches or assisted in other ways (Ibid: 35). A lower percentage of Supreme Court judges were politically active prior to appointment. However, political party affiliation was not a universal factor in every judicial appointment. Governments appointed a small number of barristers even though their political affiliation was with an opposition party (Bartholomew, 1971: 35; Carroll, 2005a: 183). O Higgins, a former Minister in a Fine Gael government who was to become Chief Justice, described Fianna Fáil s appointment of a Fine Gael supporter to the Supreme Court as helping to establish a reputation for fairness in judicial appointments (O Higgins, 1996: 267). A government benefits politically from a non-partisan appointment as it projects an image of objectivity to the public with concern for the quality of the courts rather than political party affiliation. Fianna Fáil had more opportunities to make non-partisan appointments forming 25 of the 32 governments since 1927; however Fine Gael governments also made non-partisan appointments. The nature and purpose of the relationship between barristers and political parties evolved from identifying with the ideology of a party to working for a party in the hope and expectation of obtaining State work once the party was in government (Morgan, 2004: 42). A barrister is a sole practitioner, dependent on private and State work. The State was the largest litigant at one point in time, being the largest employer, and prosecutor of criminal offences (Coulter, 1991: 7). Criminal briefs were dispensed on a political party basis. Barristers canvassed and raised funds for a party in receipt or expectation of these briefs. The Prosecution of Offences Act 1974 sought to depoliticize the distribution of criminal briefs and provided a grievance procedure for barristers who believed that the distribution of briefs was unfair but this grievance procedure has never been invoked (Prosecution of 4

5 Offences Act 1974, s 7; Coulter, 1991: 7). The size and nature of State legal work expanded significantly during the latter part of the twentieth century with the establishment of State criminal and civil legal aid schemes, judicial review jurisdiction, increase in civil actions against the State when the Supreme Court abolished State immunity for civil actions in 1971 (Byrne v. Ireland [1972] IR 241), and the growing number of administrative and quasi-judicial bodies associated with a modern State. The legislature established a number of judicial inquiries more recently where barristers earned significant fees, particularly where some tribunals endured for years. The Planning and Payments Tribunal took nearly fifteen years during which three barristers earned five million euro or more in fees, one barrister earned between four to five million euro in fees, one barrister earned between three to four million in fees, four earned between two to three million euro in fees and eight earned between one to two million euro in fees. A 2004 study of the judiciary confirms that judges were less concerned with or involved in party politics than judges of the 1969 study. The 2004 study found that 48% of 37 High and Supreme Court judges had been involved in a political party acting as an adviser to a party or making donations either as a student or at local level (Carroll, 2005b: 153). Some judges stated how they may have been known as a supporter of a political party at the Bar and may have canvassed at elections, but that was the extent of their involvement(ibid: ). Carroll decided that this type of support did not constitute involvement in party politics (Ibid: 171). 62% of High and Supreme Courts judges stated that they were not actively or socially affiliated with a political party, at the time of their appointment to judicial office which is a considerable increase in the apolitical stance which had been expressed by a mere 12% of the judges in the 1969 study (Ibid: 170). Although not affiliated with a political party at the time of their appointment, some judges believed that colleagues or the media might still regard them as an appointment by the party in government. These findings confirm that work is the motivating factor for political party affiliation of contemporary young barristers rather than political ideology. Barristers are less likely to associate with political parties once their career is established. The political party affiliation of the judges in the 2004 study who had supported a political party prior to appointment was 17% supporting Fianna Fáil, 7% supporting Fine Gael and 7% supporting the Progressive Democrats, which represented a considerable decrease in support for Fianna Fáil and Fine Gael since the 1969 study where 65% of the High and Supreme Court judges supported Fianna Fáil and 18% supported Fine Gael. The wane of political party affiliation as a factor in judicial appointments has resulted in greater weight being attached to other factors such as professional standing and speciality. 41% of High and Supreme Court judges in the 1969 study believed that professional standing played a role in their appointment (Carroll, 2005b: 171). 60% of the judges in the 2004 study believed that their judicial appointment was due to their professional standing and 36% of High and Supreme Court judges believed that their specialty in practice influenced their appointment (Ibid: ). Governments used five guiding principles to make Supreme Court appointments between 1922 and the early 1980s. Some of these principles originate from the English constitutional system and survived the foundation of an independent Irish State regulated by two written constitutions. The dominant guiding principle was the promotion of a High Court judge to fill a Supreme Court vacancy that reflects the promotion system used for the English Court of Appeal and House of Lords. During 1924 to 1963, 22 of the 28 High Court judges were promoted to the Supreme Court (Larsen, 1965: 15). Five of the six who were not promoted had died or retired due to ill health. The sixth judge was appointed President of the High Court who is designated an ex officio member of the Supreme Court (Larsen, 1965: 15-16). Promotion was seen as a right with a limited number of ordinary High Court and Supreme Court judges. There were five High Court judges from and six High Court judges from with three Supreme Court judges from and four judges from The average length of service on the High Court was nine and half years prior to promotion to the Supreme Court. However, the difference in the length of High Court service was considerable, ranging from one to nineteen years. Length of service on the High Court bench could take precedence over party political affiliation. Fianna Fáil Prime Minister, De Valera, promoted High Court judges to the Supreme Court, even though these judges had been appointed to the High Court by a Fine Gael government (Larsen, 1965: 17-18). Judges were promoted as recompense for time spent on the bench in service of the State. The promotion principle also allows the government to examine if the High Court judge adhered to precedent and was not a maverick. Judges were aware of the promotion principle but it is impossible to assess the extent to which their awareness affected their behaviour on the High Court bench. In addition, the promotion principle provides the government with the opportunity to fill a judicial vacancy in the High Court. Governments did not invariably apply the promotion principle. Fianna Fáil governments have appointed a small number of senior counsels directly to the Supreme Court (Larsen, 1965: 15; Coulter, 1991: 7; Byrne and McCutcheon, 2009: ). The second principle is ensuring that the Supreme Court has the expertise to adjudicate on any area of law considering the extensive nature of the court s civil and criminal appellate jurisdiction, including new areas of law such as 5

6 European Union law or law that experiences significant statutory reform such as family law. The third principle is religious diversity and was reflected by having at least one non-roman Catholic judge on the Supreme Court to reflect the State s protestant minority (Morgan, 1990: 14). The fourth principle is that a government offers the vacancy of the Chief Justice to the President of the High Court (Bartholomew, 1971: 39; Hogan, 1994: 14). O Higgins, former Chief Justice, went so far as to describe this principle as a precedent (O Higgins, 1996: 275). The basis for this principle is that the President of the High Court is the second most senior judge, ex officio member of the Supreme Court and has an extremely onerous administrative workload, including responsibility for adult and child wards of court, cases of misconduct by members of professional bodies and managing the work of the High Court judges. The workload of the President of the High Court is greater than that of the Chief Justice. The President was rewarded for discharging this administrative burden by being offered the Chief Justice vacancy. This fourth principle is contested because Presidents of the High Court filled only half of the six Chief Justice vacancies from Some Presidents of the High Court may have turned down the opportunity to be Chief Justice. The fifth principle was that an Attorney General has the right of first refusal to a vacancy in the High and Supreme Courts (Anon, 1950: 37; Goldberg, 1970: 11; Bartholomew, 1971: 33; Coulter, 1991: 7; Hogan, 1994: 14). The origin of this principle was English practice where the Attorney General was appointed to judicial office because he was a senior member of the Inner Bar and active lawyer-politician (Delany, 1975: 76). This practice continued after Ireland gained independence with the Attorney General being appointed due to his political allegiance to the party in government (Casey, 1980: 174). The uniform operation of this principle in Ireland s pre-independence period may have given rise to the impression that this was a right rather than a principle in the post-independence period. Although the Attorney General is the government s legal adviser, the Prime Minister nominates the Attorney General and the Attorney General must resign if the Prime Minister resigns (Constitutional of Ireland 1937, Arts 30.2 and ). This unique relations hip between the Prime Minister and the Attorney General may explain the appointment of the Attorney General to the High or Supreme Court. The 1937 Constitution did not alter the operation of this principle (Larsen, 1965: 17; Bartholomew, 1971: 34; Chubb, 1992: 295; Byrne and McCutcheon, 2009: 148). During the period 1923 to 1980, twelve of seventeen Attorney Generals were appointed either to the High Court or Supreme Court. The majority were appointed to the High Court. One was appointed Chief Justice and the remaining four were appointed ordinary Supreme Court judges (Casey, 1980: 176). Three Attorney Generals nominated to the bench eventually became Chief Justice and two as President of the High Court (Ibid: 177). No Attorney General was appointed directly as President of the High Court or Chief Justice between 1924 and 1994 (Hogan, 1994: 14). Five Attorney Generals were not appointed to the bench. One Attorney General was beyond judicial retirement age and another became Prime Minister. Casey concluded that there was only a marked correlation between holding the office of Attorney General and appointment to the High Court or Supreme Court (Casey, 1980: 176). The influence of this principle declined significantly after 1980 for legal and political legal reasons. The legal reason was the High Court s interpretation of the term practising barrister which requires the person to offer and be available to take work as an advocate or legal adviser from members of the public. Indeed, there is a probability that some Attorney Generals appointed to judicial office could not satisfy the practising barrister definition because the Office of Attorney General precluded them from offering themselves to members of the public to take work as an advocate or legal adviser. In Walshe, the High Court found that a barrister employed as a legal assistant in the office of the Attorney General was clearly inhibited from carrying out legal work either in an advisory capacity or as an advocate for any person other than the government. The legal assistant was not offering himself as a barrister to the public at large. The same principle could apply to the Attorney General. The political reason was the damage caused to the esteem of the Office of Attorney General by two events. In 1982, a suspected murderer was arrested in a house belonging to the Attorney General. The second controversy involved the fall of a coalition government after the Prime Minister insisted on appointing the Attorney General as President of the High Court despite public and political concerns arising from a nine month delay by the Office of the Attorney General in the processing of an extradition request for a suspected paedophile priest. The President of the High Court resigned after three days. The new government decided that legislation was necessary in order to restore public confidence in the courts and the judicial appointments process. Reform of Irish Judicial Appointment Process The judicial appointment process was sharply brought by the growth of judicial power in common law jurisdictions during the twentieth century, particularly where the executive has extensive influence over judicial appointments. The exhortations for the judicial appointment process are transparency, merit based appointments, diversity, democratic legitimacy and judicial 6

7 independence. Many jurisdictions are exploring judicial appointments commissions as a solution to the difficult balance between judicial independence and accountability in judicial appointments (Malleson, 2006a: 6-7). Judicial appointments commissions are likely to become the most popular selection system of the twenty-first century (Ibid). Judicial appointments commissions are typically established in the wake of a serious political crisis of confidence in the relations between the judiciary and the executive, or in the appointments process (Legg, 2001: 72). Public confidence in appointing commissions is high, and where commissions are used, the appointments process has attracted less criticism (Legg, 2001: 73). Commissions are widely perceived to be fairer than either election or unaided executive appointment. The Courts and Courts Officers Act 1995 made a number of changes to the judicial appointment process including the establishment of the Judicial Appointments Advisory Board (JAAB), altered the definition of a practising barrister, and allowed practising solicitors to be appointed as Circuit Court judges. (a) Judicial Appointments Advisory Board The greatest strength of judicial appointments commissions is their adaptability, which allows their powers, procedures and membership to meet the particular legal, political and cultural conditions of a State (Malleson, 2006b: 40). Malleson (2004:109) identifies two types of judicial appointments commissions: appointing and recommending commissions. An appointing commission is responsible for every aspect of an appointment. An appointing commission removes the danger of inappropriate influence of politicians on judicial selection but also weakens democratic accountability and there is no check on abuse, corruption or incompetence on the part of the commission. A recommending commission selects qualified candidates, forwards a list of these qualified candidates to the executive and the executive selects a qualified candidate from the list. A recommending commission does not remove the risk of inappropriate influence by politicians but retains democratic accountability for judicial appointments. A recommending commission is the most popular system. There is also a hybrid commission which has full responsibility for the selection of the lower judicial ranks and makes recommendations to the executive in relation to the senior appointments. The Irish Judicial Appointments Advisory Board (JAAB) is a recommending commission that identifies and advises the government of lawyers for appointment to judicial office (Courts and Courts Officers Act 1995, s 13(1)). The belief that judicial appointments remained political was not dispelled as JAAB was prohibited from disclosing anything about its work until 2002 when JAAB was allowed to publish annual reports in order to provide transparency and accountability in its procedures (Courts and Court Officers Act 1995, s 20A as amended by Courts and Court Officers Act 2002, s 11). The membership of a recommending or appointing commission is important because it can reflect extent of government power on judicial appointments. There are ten JAAB members. Senior judges and lawyers dominate JAAB membership and these are the Chief Justice (Chairperson), the Presidents of the High, Circuit and District Courts, the Attorney General, a practising barrister who is nominated by the Chairman of the Council of the Bar of Ireland and a practising solicitor who is nominated by the President of the Law Society of Ireland. Five of seven JAAB members are political appointments, namely the presiding judges of the courts and the Attorney General. The Minister for Justice appoints three lay members who must be engaged in or have knowledge or experience of commerce, finance, or persons who have experience as consumers of the service provided by the courts (Courts and Courts Officers Act 1995, s 13(2)). A lay member is appointed for a renewable three-year period (Courts and Courts Officers Act 1995, s 13(3)). Lay members may defer inappropriately to the lawyers, particularly where they are senior judges and lay members are in the minority (Malleson, 2006b: 48 and Feenan, 2008: 43). The judges and lawyers comprise a majority of JAAB and can ensure the passing of any resolution without the votes of lay members (Ward, 2007: 20). The concept of a lay member may indicate that a lay member should be apolitical. An examination of the lay members appointed to JAAB since 1995 indicates strong party patronage. Two of the three lay members appointed in 1996 had political connections to the Fine Gael-Labour government and Fianna Fáil-Progressive Democrats government appointed three new lay members who had similar political connections in The majority of JAAB members have been men but JAAB currently has an equal number of men and women. The 1995 Act formalized the Irish judicial application process. Judicial vacancies are advertised and there are annual advertisements where practising barristers and solicitors can express an interest in being considered for judicial appointment. An applicant must make a written application containing information about a person s suitability for judicial office, his or her 7

8 professional practice, professional qualifications, education, experience and character (Courts and Courts Officers Act 1995, s 16(1) and (2)). JAAB must ensure that an applicant has practised for the relevant time period. JAAB can recommend an applicant where it has formed an opinion that he or she (a) has displayed a degree of competence and probity in his or her professional practice appropriate to and consistent with appointment to the relevant court (b) is suitable on grounds of character and temperament (c) has expressed a willingness to take courses of training or education, or both and (d) is otherwise suitable (Courts and Courts Officers Act 1995, s 16(7)(b)(ii)). The terms character, temperament and otherwise suitable are vague, imprecise and subjective, particularly in comparison to the criteria used in the New Zealand and Canadian judicial appointment processes (Feenan, 2008: 45). There have been calls for transparently meritocratic criteria for judicial appointment (Bacik, Costello and Drew, 2003: 337) that are explicitly related to the exercise of judicial function such as simulated competency exercises (Feenan, 2008: 46 and 48). JAAB cannot recommend any JAAB member for appointment to a judicial vacancy, apart from the Attorney General who must withdraw from JAAB s deliberations concerning his or her suitability for judicial office (Courts and Court Officers Act 1995, s18). This provision ignores the possibility that the Attorney General may not be able to satisfy the practising barrister definition for judicial appointment. JAAB has not used the powers to interview or invite lawyers to apply when compiling the list of recommended applicants. JAAB believes that there are serious practical difficulties in using these powers particularly where JAAB cannot rank or appoint applicants (Judicial Appointments Advisory Board, 2002: 24). JAAB can also consult with persons concerning an applicant s suitability. JAAB has indicated that consultations would be with senior members of the legal profession in the particular region where the applicant has been practising to obtain further information about the applicant s suitability. JAAB has provided no information on the nature and frequency of consultations. Consultations are probably used for District and Circuit Court appointments outside of Dublin. JAAB believes that JAAB has an advisory capacity when making recommendations to the government and does not simply forward the name of every applicant who satisfies the eligibility criteria to the government (Judicial Appointments Advisory Board, 2002: 23-24). JAAB must nominate at least seven applicants for each vacancy. The requirement to recommend such a long list of applicants has been criticised for giving too much scope to the government when making the appointment (Morgan, 2004: 44). Coulter believes that this number of applicants facilitates political party affiliation to play a significant role in judicial appointments (Coulter, 2002: 6). It is highly probable that some or all of the recommended applicants have party political connections. Barristers and solicitors continue to offer assistance in fund-raising or campaigning to parties. Politically affiliated lawyers inevitably come to know members of parliament and Ministers (Ibid). Personal links are established and social contact is common. Such familiarity must assist when a government chooses a name from such a long list of recommended applicants. Where there are fewer than seven applicants, JAAB must submit the name of each applicant whom it recommends and considers suitable for appointment (Courts and Court Officers Act 1995, s16 (4)). JAAB does not have a power to rank recommended applicants. The use of an unranked list inevitably gives considerably greater scope for political influence on the part of the government (Malleson, 2004:111). JAAB is ambiguous about whether or not it should have a power to make recommendations. JAAB believes that a power to rank would be helpful, particularly where there are a limited number of applicants for a vacancy but is concerned that a power to rank may place unjustifiable constraints on the government s exercise of an exclusive constitutional function (Judicial Appointments Advisory Board, 2002: 23). Morgan disagreed with JAAB s view on the constitutional concern. Morgan compared the relationship between the legislature and the Constituency Commission. The Constitution imposes a duty on the legislature to revise constituencies periodically. The legislature has established an independent parliamentary Constituency Commission to assess constituencies and makes recommendations, which the legislature adopts as the basis for the legislative proposal to redraw constituency boundaries (Morgan 1990, p 13; Morgan, 2004: 43). The existence and work of this independent constituency commission aids rather than hinders the legislature fulfilling its constitutional duty while reducing the influence of party politics. After JAAB has compiled the list of recommended applicants, the Chief Justice writes to the Minister with the list of recommended applicants, which must include applicants education, professional qualifications, experience and character (Courts and Court Officers Act 1995, s 16(3)). The government is obliged to consider JAAB s list of applicants (Courts and Courts Officers Act 1995 s 16(6)). The Minister can request the names of every applicant that applied including those that JAAB did not recommend. In 1998, JAAB threatened to resign when the government intended to appoint someone that JAAB had not recommended was suitable for judicial appointment. A notice announcing the judicial appointment must be published in the Irish State gazette (Iris Oifigiúil). Where a government selects a recommended applicant from JAAB s list, the notice must refer 8

9 to the fact that JAAB recommended the applicant for judicial appointment to the Minister if that is the case (Courts and Court Officers Act 1995, s 16(8)). (b) Eligibility criteria The 1995 Act extended the definition of practising barrister to include service as a judge of the European Court of Justice, a judge of the Court of First Instance or as an Advocate-General of the Court of Justice (Courts (Supplemental Provisions) Act 1961, s 5(2)(c) and (d) as amended by Courts and Court Officers Act 1995, s 28). The motivation for this amendment arose when the Labour Party Leader in a Fianna Fáil led coalition government could not appoint an Irish judge of the European Court of First Instance to the High Court in 1994 because of the definition of practising barrister. Political partisanship was not a factor as this Irish judge of the European Court of First Instance described himself as a senior Fianna Fáil barrister. The 1995 Act also allowed solicitors to be appointed for the first time as Circuit Court judges who after four years could be appointed to the High or Supreme Court. The Law Society, the professional body representing solicitors, had lobbied for an amendment to allow practising solicitors to be appointed as judges to courts other than the District Court. In 2002, the eligibility criteria for appointment to the High and Supreme Court were strengthened by requiring that a practising barrister or solicitor must demonstrate knowledge of the High and Supreme Court s case law and an appropriate experience of High and Supreme Court s practice and procedure (Courts and Courts Officers Act 1995, s 16(7)(b)(i)(II) as amended by the Courts and Courts Officers Act 2002, s 8). A barrister or solicitor must have practised for a continuous period of not less than two years immediately before such appointment but this does not apply to those former practising barristers who prior to appointment were serving as a judge or Advocate-General of the European Courts of Justice, European Court of Human Rights, International Court of Justice, International Criminal Court or International criminal tribunal (Courts (Supplemental Provisions) Act 1961, s 5(2)(a) and (b) as amended by Courts and Court Officers Act 2002, s 4). JAAB must consider the nature and extent of the applicant s practice in the personal conduct of High and Supreme Courts proceedings whether as an advocate, instructing solicitor, or both when assessing an applicant s knowledge of decisions and experience of practice and procedures of the High and Supreme Courts (Courts and Courts Officers Act 1995, s 16(7)(b)(ii) as amended by the Courts and Courts Officers Act 2002, s 8). This knowledge and experience requirement eliminates the majority of solicitors because few solicitors exercise their right of audience before the High or Supreme Courts (Carroll, 2005a: 184). (c) Conclusion JAAB is a useful mechanism for vetting the qualifications and suitability of applicants for judicial office. The impact of JAAB has been to formalise the drafting of the list of recommended applicants that was previously informal and undertaken by the Minister, the Prime Minister and the Attorney General. The government ensured that the 1995 Act did not encroach on its role as the dominant player in judicial appointments in three ways. First, the 1995 Act expressly reaffirms the constitutional prerogative of the executive to simply advise the President to appoint a practising barrister or solicitor of the requisite period to a judicial vacancy without consulting JAAB (Courts and Courts Officers Act 1995, s 17). Despite this reaffirmation, the practice of governments has been to consult and appoint from JAAB s list of recommended applicants for District, Circuit and High Court appointments. Second, the 1995 Act states that the government can advise the President to promote a serving judge to a higher court vacancy without consulting JAAB which encapsulates the promotion principle so important to Supreme Court appointments prior to the 1995 Act. The exclusion of JAAB from judicial promotions has been criticised because it encourages judges to canvass for appointment, which politicises the judiciary and affects judicial independence (Feenan, 2008: 45 and Carroll, 2005b: 167). Third, the 1995 Act permits the government to appoint presiding judges and must first consider the qualifications and suitability of serving judges when advising the President on appointing presiding judges (Courts and Court Officers Act 1995, s 23). Influence of JAAB on the politics of judicial appointments to the Supreme Court Political connections remain an important factor in judicial appointments since the establishment of JAAB (Carroll, 2005a: 188; Byrne and McCutcheon, 2009: 143). JAAB has muted political lobbying rather than end it (Coulter, 2000: 4). Some judges in the 2004 study believe that JAAB had made very little change to the political patronage system of appointments (Carroll, 9