New body could handle judicial nominations and pay, judge suggests

Striking the balance between holding judges accountable and maintaining their independence could be achieved by setting up an overarching body to handle all interaction between the political sphere and the judiciary, a Supreme Court judge has suggested.

In a wide-ranging speech setting out "tentative ideas" on reform of the legal profession, Mr Justice Frank Clarke said it could be worth considering a form of judicial commission, which would be written into the Constitution and would take responsibility for judges' appointments, their terms and conditions and discipline.

He said such a body could include representatives from politics, the law and civil society, with members of the latter group being nominated by the president. “So far as political representation is concerned, there is an argument for suggesting that it should not be confined to the government of the day but should also include persons nominated by the Oireachtas to ensure that there was reasonable representation for all streams of political thought,” the judge said.

“A more broadly based political representation would, of course, reduce any perception that appointments were made on a party political basis reflecting the government of the day.”

Mr Justice Clarke was speaking last night at Griffith College Dublin, where he is judge in residence. His remarks come in the wake of controversies over judicial pay and independence, and in advance of renewed debate over Minister for Justice Alan Shatter’s far-reaching Bill to reform legal services, which is due to go to committee stage in the Oireachtas in the coming weeks.

Judicial council

The Government has also proposed a statutory judicial council, which would have a role in dealing with complaints about judicial behaviour. The judiciary has already set up an interim council.

Stressing that he was not making proposals but rather putting forward “tentative ideas” that could be a “catalyst for debate”, Mr Justice Clarke said the merit of a single overarching body might be that it would be easier for it to obtain and maintain public trust both in its independence and its capacity to ensure accountability.

‘Focused discussion’

He said the time was ripe for a “focused discussion” on how to strike the “difficult balance” between those two imperatives. “The initial response to any unanticipated and catastrophic development – such as the financial crisis which has beset this country over the last five years – will inevitably be reactive and, at times, crude,” he said.

On judges’ terms and conditions, Mr Justice Clarke said the “new constitutional framework” – a reference to the judicial pay referendum in 2011 – brought aspects of the system into greater focus.

He noted that, in the cuts already imposed by the Government, there had so far been no differentiation between different public servants or public office-holders who were on the same pay levels.

“But what if the situation were different? What if, doubtless for some sound reason of policy, a future government were to decide to impose reductions in the salary on some but not all who are paid similar amounts out of public funds?

“In such a situation the government would have to decide whether the judiciary were to be included in those who were, or with those who were not, to suffer a relevant reduction.”

The full text of Mr Justice Clarke's lecture is published below:

Independence and Accountability

A Difficult Balance

Justice Frank Clarke: Public Lecture Delivered at Griffith College

Questions about the independence and accountability of both lawyers and judges have surfaced again in recent times.  In the context of the legislation going through the Dáil at present designed to introduce reforms of the legal profession one of the key areas of controversy has been the composition of any oversight or regulatory body.  On the one hand it is said that self-regulation provides an insufficient level of accountability.  On the other hand it was argued that a regulatory body whose composition was subject to significant executive influence might undermine the independence of the legal profession.

So far as judges are concerned there has, perhaps, been some recent public focus on all three aspects of the interaction between the Oireachtas and the Executive, on the one hand, and the judiciary on the other.  First, there has been a certain amount of media comment on the appointment of judges, an issue which raises its head from time to time.  Second, the appalling economic circumstances of the last number of years has focussed attention on what might loosely be termed judicial pay and conditions including how such should be determined.  Third, the question of how to deal with complaints concerning judicial behaviour has again come into focus.  The proposed statutory judicial council, which would, amongst other things, have a role in dealing with complaints about judicial behaviour, has been established on an interim and non-statutory basis by a decision of the judiciary.  That interim council does not have a disciplinary role simply because it cannot, in the absence of legal authority conferred either by the Constitution or by statute, enforce judicial standards.

At least one, and in my view one very important, aspect of each of the issues on which I have touched is the difficult question of the balance between independence and accountability.  Both are significant and important values in any democratic society.  But there can be a tension between the two.  Lawyers (and in this context I include judges) are sometimes accused of using the cry of independence as a means of subtly seeking to prevent proper accountability.  Likewise, methods of providing for accountability are sometimes criticised as being covert means of control.  Furthermore, the meaning of the language used is often, in itself, open to debate.  Few would argue that it is important to have an independent judiciary, and, I think, an independent legal profession.  That is an issue to which I will shortly return.  Few equally would argue, certainly with any credibility, that the legal profession and the judiciary should not be accountable.  But not everyone uses those terms in exactly the same way.  What precisely does independence and accountability mean?

First as to importance.  The Chief Justice, in her recent address at Blackhall Place on the topic of the proposed Court of Appeal, emphasised the importance of judicial independence not only as an important constitutional value in itself but also the importance of a country being seen to have an independent judiciary as a vital part of that country's international reputation including its reputation as a place to do business.  I have no doubt but that that is correct.  I am informally aware of the fact that multinational companies coming to do business in Ireland for the first time often require, as part of the assessment process, an authoritative legal opinion as to the existence of an independent system of courts.  While there are, doubtless, many factors - general economic conditions, taxation, regulatory regimes or the like - which influence such decisions, it would be naïve, in my view, to disregard the fact that the existence and equally importantly the perceived existence of an independent courts system is considered to be a material factor in the decision to locate businesses.  While all businesses hope to avoid litigation, all realistic businesses know that it is a real part of the commercial world.  Knowing that if you become involved in a dispute with government, state agencies, or indeed the local elite, you will have access to a fair hearing before an independent court, is, for obvious reasons, an important part of the infrastructure for doing business in any country and will attract all due weight in decisions which can make the difference between jobs being created in Ireland or somewhere else.

But an independent legal profession is, in my view, of equal importance.  There are many reasons for this but perhaps two are worth mentioning.  The first is a variation on the theme on which I have just touched concerning the judiciary.  In order to have effective access to independent courts people need independent lawyers.  Such access to justice would be impaired just as much by an impression that lawyers might feel unwilling to fully fight their clients' cases against government, state agencies or local elites, as it would if courts were perceived to lack independence from those same persons or bodies.

It is not, therefore, just independence which is important.  It is that the legal profession and the judiciary are seen to be independent both by citizens of this country who may come into conflict with the State or other powerful persons or institutions or foreign businesses who might be concerned about a home town decision or a reluctance on the part of lawyers to take on the powerful.

The second, and perhaps less obvious, reason why, in my view, the independence of the legal profession is of equal importance to the independence of the judiciary is that the judiciary are drawn from the legal profession.  While independence can be maintained and strengthened through the shape of whatever institutions govern and control, independence is also a way of thought.  Where a political and legal culture grows up which respects independence then it is much more likely that independence will be exercised.  Drawing for the appointment of judges on members of a legal profession who have operated in an independent way in their time as practitioners can only lead to independently minded judges.

However, accountability is no less important.  Lawyers or judges falling short of the standards that might reasonably be expected of them does no good for the reputation of the legal system which they seek to serve.  But, regrettably, there will always be cases amongst any large group of individuals where some fall short of the standards which we might like to expect.  What is, however, important is that there are in place regulatory structures in which the public can have confidence.  First, that there are measures in place which encourage high standards and which, as appropriate, provide support for those standards.  Second, that there are measures in place which can deal, in an appropriate, measured and proportionate way, with any falling short from those standards.

But just as with independence it is at least as important that appropriate measures, designed to support high standards and to make those who fall short of them accountable in an appropriate way, are seen to exist.  Public confidence in the system requires no less.

As I said earlier it is unlikely that you would find too many who would disagree with the statements of principle which I have addressed.  The real problem is as to how to put in place structures which maintain public confidence in both independence and the accountability of whatever structures are in place.  The devil is, undoubtedly, in the detail.  But before touching on the issues which arise in relation to that detail I would like to make two general observations.

First, this is a problem which is too important to be left to lawyers and judges alone but is also too important to be dealt with without reference to those who have the most detailed knowledge of what is needed (those same judges and lawyers).  It is understandable that there can be a certain, perhaps understandable, public scepticism when those in the legal community plead independence.  The public response, perhaps, resembles that of Mandy Rice Davis in relation to the Profumo affair along the lines of "they would wouldn't they".  Those in the legal community asserting independence are often seen as using a self-serving argument.  Likewise, viewed from inside the legal community, some of the proposals put forward for control or reform can be viewed as ill-considered, unlikely to achieve the desired ends, and, sometimes, more likely to give rise to serious unintended consequences.  Any proper solution to the problem of marrying independence and accountability requires a real dialogue between those within and without the legal community.  That requires lawyers and judges to engage with others, but it also requires engagement, in the other direction, with the legitimate concerns of those in the legal community and, perhaps, an acknowledgement that not all who raise problems do so out of self-interest and that there truly are difficult questions often with no easy answers and which require significant consideration.

This is an important topic which requires full and engaged debate.  Whatever measures are put in place (either constitutional or statutory) are likely to materially affect the operation of our legal system for some time to come.  It is important that they be right.  They are only likely to be right if they are openly, constructively and fairly debated before their adoption.  It is with that in mind that I put forward some ideas for consideration.

However, the second general point I would like to emphasise is that the ideas which follow are not intended as a proposal.  They are intended as questions for discussion.  The whole point of the earlier part of this address has been to suggest that we need a proper discussion.  A discussion cannot take place unless those who might become involved can feel free to put forward ideas as part of a constructive conversation by all who have an interest in the outcome.  As I have also been at pains to point out I am the first to agree that lawyers and judges do not have anything resembling a monopoly of wisdom on these issues.  There may well be good reasons for arguing against some of the ideas which I tentatively put forward.  There are almost certainly other perspectives on those ideas which need to be taken into account.  However, it seems to me that the time is now ripe for a focussed discussion on the difficult topic of the interaction between independence and accountability.

The initial response to any unanticipated and catastrophic development (such as the financial crisis which has beset this country over the last five years) will inevitably be reactive and, at times, crude.  However, that phase is, hopefully, coming to an end.  Now is the time to give mature consideration to the institutions which will best achieve a balanced approach to independence and accountability.  The ideas I put forward are intended as no more than a contribution to that debate.

I start with the position of judges.  As I mentioned earlier, there are, in reality, three different areas where independence and accountability needs to be assessed.  These are appointment, terms and conditions, and discipline and removal.  Each brings its own problems and none have easy solutions.

I start with appointment.  The criticism often made of the current system where, under the Constitution, all appointments are made by the President on the advice of the Government, is that it is potentially too political.  While the creation of the Judicial Appointments Advisory Board has introduced some degree of process into the system, the final decision still rests with the Government.  However, it may be easier to point out the potential difficulties with the current system than to find alternatives which might not be subject to their own, although different, criticisms.  An appointment system which gave too much weighting to the views of the existing judiciary or, indeed, senior lawyers, would be open to the criticism that it might lead to an elite of lawyers perpetuating the system in their own image.  The creation of some form of independent body begs the question of who would appoint the members of such a body.  In addition it might be argued that those either in government or in the Oireachtas, who are directly answerable to the people, have at least a legitimate role in attempting to identify the sort of persons who should be appointed to the bench.  Likewise, those already involved as judges or in senior positions in the legal professions are likely to be in a very good position to assess the qualities of potential candidates.  Entirely excluding, therefore, any political or legal voice from the process might arguably be said to be likely to detract from the selection of the best and most suitable candidates.

So far as terms and conditions are concerned, recent times, not least the constitutional amendment on the reduction of judicial pay, have brought into focus the extent to which government can and does exercise a role in many aspects of judicial pay and conditions.  That such should be so is hardly surprising.  Government, after all, has to provide the money.  No-one could argue that judicial independence requires that judges write their own terms and conditions.  However, the new constitutional framework does bring aspects of the system into greater focus.

It was not the case, under the cuts in pay already imposed, that there was any differentiation between different public servants or public office holders who are on the same pay.  All suffered the same reductions as anyone else on the same level of pay.  Likewise, if the proposals agreed in Croke Park 2 are ultimately implemented, a similar situation of across the board cuts whose rate is dependent only on existing salary, seems likely to be implemented.  But what if the situation were different.  What if, doubtless for some sound reason of policy, a future government were to decide to impose reductions in the salary on some but not all who are paid similar amounts out of public funds. In such a situation the government would have to decide whether the judiciary were to be included with those who were, or with those who were not, to suffer a relevant reduction.  In such a case the government would have a real decision to make, which could go either way, on whether to reduce judicial pay.  Likewise, if we ever get back to the times of increasing pay, similar decisions will have to be taken as to whether judges are to be included in any such rises.  In addition other aspects of the very difficult decisions which have had to be taken in recent years with a view to reducing the overall cost of all government departments (including the cost of the Courts Service) have focussed attention on the extent to which many non-pay items can have a real effect on how people do their work.

All of this suggests that there remains a serious risk of controversy if government is seen to have to make important decisions about judicial terms and conditions perhaps at a time when the very judges whose conditions are under consideration have before them important litigation in which the same government has a very real interest.  In such a situation it might be hard to convince interested parties of the transparency of the situation.  Some countries, most notably Canada, have sought to avoid such a risk by establishing an independent body to determine judicial pay and conditions.  However, questions remain as to just how such a body might be appointed and constituted.

Finally, there is the problem of judicial conduct.  The possibility of a statutory judicial council has been on the cards for some time now.  While it is envisaged that any such council would have a number of functions, dealing with complaints about judicial conduct is clearly an important part of the envisaged role.  The non-disciplinary aspects of the judicial council have been established on an interim and informal basis by a decision of the judiciary.  However, in order that any such body would have the legal power to deal with judicial conduct, any such entity would need either constitutional or statutory authority.  Apart from the obvious need to maintain and enhance public confidence in the judiciary it has also often been pointed out that one of the flaws in the existing system is the fact that it has only one formal sanction i.e. removal from office.  The current system does not really provide any adequate way for dealing with alleged failure of conduct which would not justify removal from office.  But yet again the question of the precise composition of any body dealing with conduct and how it should be appointed remains a matter for debate.

In the context of legislation to change the means of regulation of the legal profession the same questions concerning the composition and method of appointment of any relevant regulator has proved to be one of controversy.  The current position appears to be that the Minister for Justice intends introducing amendments to the Bill currently before the Dáil which are said to be designed to make clear that the regulator will be independent.  However, the details of the proposed amendments are not yet, at this stage, clear.

It follows that a real question which arises in respect of all of these issues as to how one can put in place a truly independent body or bodies which will maintain independence but which also can ensure accountability.  So far as the judiciary is concerned it may at least be worth considering whether there is some merit in seeking to establish, perhaps, for the avoidance of complications, at a constitutional level, a form of judicial commission which would be given the power to deal with all three pillars of the interaction between the Executive and the Oireachtas, on the one hand, and the judiciary, on the other.  Such a commission might be given constitutional power to nominate persons for appointment by the President as judges, the power to fix judicial terms and conditions and the power to provide for judicial training and to deal with judicial conduct.  Were such a commission to be established it might well be that it would need to have separate pillars designed to deal with its various functions for the precise composition of a body dealing with, for example, judicial appointment might not ideally be the same as one whose function it was to fix the terms of judicial office or, indeed, to deal with a serious accusation of misconduct.  However, there might be an advantage in having a single over-arching body whose function it was to oversee the entire process but which acted, so far as its separate functions were concerned, through subsidiary bodies designed to deal with each specific function.  The merit of a single over-arching body might be that it would be easier for such a body to obtain and maintain public trust both in its independence and in its capacity to ensure accountability.  This would, in turn, improve the public perception of each of the appointment, terms and conditions, and training and conduct functions which it might exercise.

The precise composition of such a body would be a matter which would require detailed consideration.  Likewise, the precise way in which each of its pillars would be composed and operate would need to be carefully worked out.  However, some tentative ideas might be worth putting into the mix as a catalyst for a debate.

First, there is, in my view, a case that any over-arching body of the type identified would properly need to have representatives from three strands being from politics, the law and civil society although the weighting to be attached to each strand would require careful consideration.  So far as political representation is concerned there is an argument for suggesting that it should not be confined to the government of the day but should also include persons nominated by the Oireachtas to ensure that there was reasonable representation for all streams of political thought.  A more broadly based political representation would, of course, reduce any perception that appointments were made on a party political basis reflecting the government of the day.  Legal representation could involve both judges and lawyers although some care would need to be exercised to ensure that those involved were truly representative.  Civil society creates its own problems.  Who should have the role of making the appointment of independent members of such a body?  A number of possibilities are worth considering.

Perhaps the democratic mandate given to the President might be exploited to allow the President some role in nominating members of civil society to serve on such a body.  This would not involve the President in any direct role in any of the functions of the commission but rather in selecting suitable persons to serve on it.  The model for appointment by the President of members of the Council of State might, perhaps, be considered.

In addition, we have available the holders of independent public offices such as the Comptroller and Auditor General and the Ombudsman whose independent position is often invoked to ensure that bodies such as the Referendum Commission or the Ethics in Public Office Commission are truly seen to be independent.  Such persons might either be members, ex officio, of the commission or have a role in the appointment of representatives of civil society.

What might be envisaged is, therefore, an over-arching judicial commission with constitutional status which would have representatives of each of those three strands on its main board.  The function of the main board would be to oversee the workings of the three individual pillars already identified and to nominate, in accordance with rules laid down, the membership of the subsidiary bodies controlling those pillars.  The precise composition of the three pillars would not necessarily have to be the same.  For example, the composition of a subsidiary pillar body charged with nominating persons for appointment as judges by the President might well not be the same as one designed to deal with conduct matters.  Given the Government's responsibility for finding the money to run the courts, the precise role that government might play in the terms and conditions pillar might need careful consideration.

However, there is a case to be made for at least some involvement of each of the three strands in each of the three pillars.  As suggested earlier, there is a case to be made that elected politicians should have some role in identifying the type of persons to be appointed to the bench and that judges and lawyers might be able to bring to the table a detailed knowledge of the requirements of the office and the capabilities of candidates to the table.  The need of the Government and, indeed, the Oireachtas (who have to vote any relevant monies) to have a voice in terms and conditions seems reasonable but so also the entitlement of the judiciary to put forward their case.  It has to be said that one of the more significant reasons for frustration amongst the judiciary in recent times has been the fact that terms and conditions have, by and large, been imposed without any consultation or negotiation.

Any disciplinary function would need to be exercised in a way which made it clear that there was no inappropriate external influence but also ensured that the public would have confidence that judges could not simply "look after their own".

A constitutional model could provide in general terms for such a commission and for the broad principles, including composition, on which any legislation designed to put the nuts and bolts in place was to be judged.  It could expressly contemplate that the composition of the separate pillars would be different while again giving broad guidance as to how the relevant structure was to be set up.

There may, indeed, be other models which would do the difficult task of ensuring independence and accountability just as well if not better.  Even within the model which I have tentatively put forward for consideration there is room for much debate about the precise way in which the members of the over-arching board would be appointed and how the composition of the individual pillars would be determined.  But I at least offer this model as a subject of debate.  Those who fundamentally disagree with it might put forward their own alternatives.  Those who think it may have some merit might debate the nuts and bolts on which its success both in achieving and maintaining public confidence and delivering on an independent and accountable system would depend.  However, I feel that the time is now right for such a debate and these suggestions are tentatively put forward not, as I have said, as a proposal but rather as an attempt to give a concrete start to a reasoned debate.