THE LAW IN CRISIS:The place of the judiciary in society is under scrutiny following the controversy over their pay, writes CAROL COULTER, Legal Affairs Editor
THE LACK of suitable accommodation for severely damaged young people; permitting a raped 14-year old girl to travel abroad for an abortion; and the arbitrary expropriation by the State of the old age pensions of people in nursing home care are all examples where the higher courts made decisions against organs of the State.
In all of these cases the rights of vulnerable people were at stake. Most of them were not people able to lobby politicians or confront State organisations on their own behalf. The courts and the broader legal system were their only protection against the violation of their rights.
Yet they work imperfectly. Too many people cannot access the courts because they cannot afford to and cannot find someone to represent them. The system is costly, often incomprehensible and can be bedevilled by delays.
But the core values of a judiciary independent of outside pressure and access to legal professionals who are effective, accessible and affordable must be preserved.
The recent controversy around judges’ pay has raised many other issues relating to how the courts work, judges’ pay and working conditions and how they are accountable. Proposals to solve some of them have long been on the agenda and are in the current Programme for Government; others remain to be tackled.
The issue of judicial conduct has been raised by a number of incidents, most notoriously the charging and acquittal on a technicality of Circuit Court judge Brian Curtin on charges of possessing child pornography. The judges have put forward proposals to the Government for a judicial council which would have a sub-committee to deal with judicial conduct and power to apply a range of sanctions. The Government has stated its commitment to legislation.
If introduced, the judicial council would also provide a collective voice for the judiciary and uphold judicial independence, along with providing in-service training. The need for such a collective voice was highlighted by the recent pay controversy, where there was no-one to speak publicly on behalf of the judiciary.
This will arise again when the Government comes to look at the length of court terms, the hours worked by judges and apparent anachronisms like the position of “tipstaff” or “crier” – the assistant all judges have above District Court level.
The delays are most acute in the Supreme Court, which has to hear all appeals from the 37 High Court judges, even those with no constitutional content. Between 15 and 20 per cent of them are from lay litigants, adding to the delays.
This would be ameliorated by a Civil Court of Appeal, to which the Government is also committed, leaving the Supreme Court to hear constitutional and legally complex cases. Its seven members could also sit in two panels of three for many cases.
Long holidays – the Supreme, High and Circuit Court do not sit for August and September, and have a 10-day break at Whit – are likely to be examined by the Government, especially as the Oireachtas holidays have been reduced. District courts do sit in September.
High and Supreme Court judges do write judgments when they are not sitting, and there are vacation sittings of the High Court to deal with urgent matters, but that is not enough to justify the short legal terms.
There are other areas which could be looked at. Generally the Circuit Court outside Dublin does not sit on a Monday and often finishes early on a Friday, a relic of the days when travel between venues was long and difficult. Circuit judges often have to travel long distances, but the roads are now much better.
It should also be acknowledged that some Circuit judges sit long into the night to get through lists, but this is haphazard and can even be counter-productive. The hours worked could and should be examined and standardised.
A favourite target of critics of the judiciary are the “tipstaffs” or “criers” - assistants, usually drawn from the ranks of retired gardaí and soldiers, who accompany the judges, act as messengers and announce their arrival in court.
Historically, they are there to act as a buffer between judges and the public and prevent them or their legal representatives making inappropriate approaches to judges. Below the level of the Supreme Court, judges do not have secretaries, so the tipstaffs provide some of these functions. While there is now a small pool of judicial fellows in the High Court, mainly attached to its Commercial division, Supreme Court and many High Court judges do not have researchers either. It is arguable that secretaries and researchers would provide a more useful service to the judges than the tipstaffs and criers. Indeed, the Chief Justice, Mrs Justice Denham, does not have a tipstaff and has a legal assistant instead.
What has been largely missing from the discussion, however, has been an examination of the manner in which judges are appointed, perhaps because this is a power no politician wants to give up. This is a key aspect of judicial independence.
In the last century, positions on the District Court bench were sometimes used as soft landings for solicitors close to the governing party who had a problem with drink or with the Solicitors Disciplinary Tribunal. Appointments to the higher jurisdictions were also political, though less likely to provide havens for those whose professional practices were in trouble.
In 1995 a Judicial Appointments Advisory Board was set up, which seeks and processes applications for judicial positions, and forwards seven names to the Government. This weeds out the patently unsuitable, but it does not reduce the political element in appointments, as the seven will invariably include some names well known to the government of the day. It is only fair to point out that in recent years judicial appointments, especially to the High Court, have been made from the ranks of Opposition sympathisers and, once appointed, judges usually act in an independent manner.
Nonetheless, it is not a transparent process, and has produced a fairly homogenous judiciary: largely privately educated, often UCD graduates and, despite the appointment of Mrs Justice Denham as Chief Justice, 75 per cent male.
England and Wales has a judicial appointments commission whose 15 members, apart from three judges, are appointed following open competition. They then recommend candidates on merit, “having regard to the need to encourage diversity in the range of people available”. If the government does not accept its advice, it must explain why.
Minister for Justice Alan Shatter has said he has ordered a “review” of the system of judicial appointments. An independent and transparent method of judicial appointment would be an important step, as well as explicit recognition from members of the Oireachtas and the Government that judges must be independent from political and other pressure.
A judicial council could play a role in not only promoting this independence, but in explaining to citizens their role as defenders of the rights of citizens, along with measures to make that a reality in ensuring access for all.
Carol Coulter’s law series continues tomorrow, and focuses on the solicitors’ profession.