The president of the High Court is looking forward to the creation of a judicial council and the bedding down of the judges’ pension levy
THE END of the year will show virtually total co-operation by the judiciary in the voluntary pension levy, according to the president of the High Court, Mr Justice Nicholas Kearns.
In an interview with The Irish Times, Mr Justice Kearns said the four presidents of the four jurisdictions of the court – the Supreme, High, Circuit and District Courts – had sent out a number of joint letters to all judges reminding them of the need to pay the contribution devised by the chief justice with the Revenue Commissioners whereby the levy could be paid on a voluntary basis. That scheme has since been incorporated into the Finance Act.
“It is important to remember that the judges themselves did not seek any special treatment to insulate themselves from the pain being felt across the public service,” he said. “The difficulty arose from the constitutional provision and the advice which the Government received as to its meaning and effect.”
He stressed that judges were very well aware of the ravages being brought about by the economic crisis, through home repossessions, bankruptcies, family law and commercial cases. “We are acutely conscious of it and of the need to be seen to be playing our part,” he said.
This controversy was one of the instances which demonstrated the need for a judicial council, he said. The Minister for Justice has now published a scheme of a Bill to establish such a council, and said he hoped to introduce legislation in this Dáil term. The Judicial Council Bill will provide for two bodies to be set up: a judicial conduct committee, with lay participation, to consider complaints against judges; and a judicial council, composed of all members of the judiciary, whose job it will be to promote high standards, provide continuing education and promote the independence of the judiciary.
Had such a body been in existence when the issue of the pension levy arose, it could have made representations on behalf of all the judiciary and could have spoken in public about its attitude to the levy, he said.
Mr Justice Kearns expects the judicial council to be up and running next year, and hopes that Marilyn King, registrar of the Ontario judicial council, might be asked to assist in setting it up here, as she already provided guidance to Irish judges on the Canadian model. However, a precondition for setting up the judicial complaints committee is the introduction of digital audio recording in all courtrooms.
“There will be quite a number of complaints at the outset,” he predicted, “but the experience of other countries is that it settles down quickly and there are very few cases. The complaints committee will not be a place for disappointed litigants to seek to retry cases.”
In recent weeks the European Court of Human Rights in Strasbourg, in a case brought by Maze escaper Brendan McFarlane, found against Ireland for the third time on the issue of delay in bringing proceedings.
Mr Justice Kearns acknowledged the court identified areas in this case where there had been delays, but said Ireland compared favourably with other EU countries in this regard. He pointed out that the European Court of Human Rights itself had a backlog of 130,000 cases.
“There are no delays in the Central Criminal Court, none in personal injuries in Dublin, the Commercial Court is seen as a role model for other countries and some of the judges gave up a portion of their vacation in September to do asylum judicial review cases,” he said.
He pointed out that there were statutory timeframes for the delivery of written judgments and said he also had an informal system for monitoring judgments outside these timeframes and, if necessary, offering additional facilities and time to judges overburdened with difficult cases.
He stressed that the judiciary is engaged with the Courts Service and the Department of Justice in finding economies, but strongly rejected the recommendation of the McCarthy report that court ushers be done away with. He listed the many administrative and security tasks carried out by what are low-paid public servants. This work could not otherwise be done at this price, he said.
How does he feel about judges commenting on legal matters off the bench? He refused to discuss any individual case, but said: “In general terms it is well understood by judges that they must be extremely careful in what they say at seminars or conferences lest it be seen as expressing a view about current or recent cases or draft legislation.” He said retired judges have much more freedom to express their views, but added: “there are occasions that spring to mind where we would prefer if they kept their views to themselves!”
He was adamant on one thing: “Adverse commentary by serving judges on the decisions of superior courts is not acceptable. It is very damaging to public confidence in the judiciary. It is my expectation that any problems of this sort which may have occurred in the past will not reoccur.”
Should there be a different way of appointing judges, other than appointment by the government of the day? In Northern Ireland there is now an independent commission, which has a transparent application system that makes specific recommendations.
“The Northern Ireland system might be better,” he acknowledged. “In our system the people who go through the Judicial Appointments Advisory Board don’t even know whether their name is sent forward.”
His own route into the second-highest position in the judiciary (after the chief justice) was not direct. He joined the Civil Service after school and worked in the High Court Central Office and later the Probate Office, studying law in the King’s Inns in the evenings. He practised for 30 years before joining the High Court bench in 1998 and was appointed a Supreme Court judge in 2004. He became president of the High Court a year ago. He and his wife Eleanor have four sons and seven grandchildren. He described himself as an “enthusiastic but hopeless” golfer, and an equally enthusiastic member of a book club.
He agrees with one of his predecessors, Mr Justice Finnegan, that judges, once appointed, have crossed a river and can no longer share in the camaraderie of the bar, and he misses that. “You have to avoid certain social occasions involving barristers.” However, he said, there are far more judges today than in previous decades, and they meet each other socially.