In December 2013, as Minister for Justice, I initiated a public consultative process on reforming the judicial appointments system. Following receipt of submissions, I intended to publish a discussion paper in early autumn 2014 to stimulate public debate and then in 2015 publish reforming legislation. Following my departure from government in May 2014, it seems the issue was put into cold storage.
Under the Constitution judges are appointed by the President on the advice of the government. The Courts and Courts Officers Act, 1995, established the Judicial Appointments Advisory Board (JAAB) and prescribes the structure through which applicants for judicial appointment apply to JAAB and furnish information concerning their education, professional qualifications, experience and character.
If, in JAAB’s opinion, an applicant barrister or solicitor has displayed the necessary “competence and probity”, is suitable on grounds of “character and temperament” and is “otherwise suitable”, the applicant, together with others, is recommended for appointment to fill a court vacancy.
The appointment of a judge from a lower to a higher court does not involve JAAB. I regarded this from day one as problematical. As a lawyer, I had some insight into those within the judiciary who merited appointment to a higher court but believed no minister, no matter their background, could have a comprehensive overview of the judiciary.
As there was no formal system for judges to apply to be assigned to a higher court, I agreed with the Attorney General that judges interested in such appointments could notify her of their interest.
Reform is required
Undoubtedly, reform is required. Unfortunately, in accordance with current political fashion, much of the talk about reform is hyperbole, political posturing and attention seeking. It lacks any comprehensive analysis identifying reforms genuinely required in the public interest. It is focused entirely on structure and process and completely lacking in substance.
The structure and process focus derives from an ill thought out agreement between Fine Gael and the Independent Alliance to facilitate the formation of a government.
In the section on judicial appointments, they agreed that JAAB will change its name to JAC, (the Judicial Appointments Commission) and instead of the Chief Justice chairing the body, it will have an "independent chairperson" selected by the Public Appointments Service (PAS) and approved by an unidentified "Oireachtas committee".
It is also to have “a lay majority, including independent people with specialist qualifications.” No eligibility criteria are prescribed for appointment as an “independent chairperson” nor is it known what “specialist qualifications” are required to be selected as one of the “lay majority”.
It is unclear how and by whom the lay majority or the non-laying minority will be selected or whether they will require the Oireachtas committee’s approval. Presumably, all will be revealed upon publication of the now accelerated promised legislation.
The new judicial selection process is to be “transparent, fair and credible”. What this means, other than the chairman of JAC annually attending before an Oireachtas committee, is not explained. The only difference between the statutory remit JAC is to exercise compared to that of JAAB is that no more than three names can be proposed by JAC to fill a judicial vacancy. The government will continue to nominate the candidates chosen for judicial appointment by the President.
Judicial intelligence
The big bang reform is essentially to replace JAAB with JAC. The problem is the absence of any consideration of Jill ( judicial intelligence and legal learning). There is nothing proposed to ensure judicial appointments are merit based. There is a serious risk that in the absence of Jill, JAC will be tumbling politically downhill.
Presently, JAAB furnishes to the Minister for Justice the names of all applicants it deems “suitable” for appointment and a separate list of unsuccessful applicants.
While the 1995 Act requires that no fewer than seven suitable candidates be proposed, my experience as minister for justice in the context of District and Circuit Court vacancies was that between 50 to 120 names were listed and no insight provided on what distinguished the “suitable” from the unsuccessful.
Substantially fewer names were listed to fill High Court vacancies as there were fewer applicants. On occasion, an individual previously deemed unsuitable migrated to the next suitable list without explanation.
Interview applicants
During my time as minister, JAAB never exercised it's statutory remit to interview applicants. Its knowledge of applicants derived from the application received and what was known of the applicants by the judges and representatives of the Law Society and Bar Council on JAAB. I assume the three lay members relied on the paperwork and any information gleaned at JAAB meetings they attended. No statutory provision requires JAAB to inform applicants of the outcome of applications made and, if unsuccessful, why.
Undoubtedly, JAAB requires structural and process reform. This should focus on its statutory remit, how its work is undertaken, resources and staffing and its communication with applicants.
As knowledge of the legal professions, the daily functioning of the courts and judicial gaps to be filled is crucial, it is in the public interest that JAAB (or JAC) continue to be chaired by the Chief Justice who has overall responsibility for the organisation and administration of the courts and who is truly “independent” of politics.
There is no public interest or benefit to be derived from a chairperson with no specialist knowledge of the courts or a “lay majority” lacking expertise selecting those suitable for judicial appointments.
There are major reforms of real substance and importance to our courts that should be discussed but which to date have been ignored.
Here are some:-
1. Statutory provision to ensure judicial nominees are proposed on merit and, in so far as is possible, that judicial appointments reflect the diversity of the society our courts serve.
2. Designation by JAAB or JAC of specialist areas of legal expertise of those selected as suitable for judicial appointment and identification of speciality gaps resulting from judicial vacancies.
3. A statutory mechanism to facilitate sitting judges apply for elevation to a higher court, through JAAB or JAC, together with a narrative of the specialist areas of law in which they have primarily adjudicated as judges.
4. Extending the eligibility for judicial appointments to distinguished academic lawyers, who need not be either qualified or practicing barristers or solicitors, whose specialist knowledge would enhance legal expertise within our court system.
5. Provision that no more than 10 and no less than five candidates be placed on a list for judicial appointments in respect of each of our courts annually and that the list have a life of one year and then be renewed. This would enable the making of speedier appointments to the courts when a vacancy occurs and, if required, there should be no obstacle to it being augmented by an additional list.
6. A requirement that eligibility for an initial judicial appointment be preceded by an applicant undertaking a judicial training course to be jointly provided by the Law Society and the Kings Inns in consultation with the judiciary who would directly contribute to such course.
7. Statutory provision that the Minister for Justice, following consultation with the Attorney General propose to Cabinet the individual to be nominated to fill a court vacancy and that lobbying for judicial positions directly or through third parties render an applicant ineligible.
There is no unique and perfect approach to reform in this area. Its central focus should be to ensure our courts are presided over by skilled independent judges with the specialist legal knowledge, insight and common sense required to ensure justice is impartially, fairly and speedily administered and that the public retains confidence in our court system. It should not seek to undermine judicial independence by making judges accountable to the Houses of the Oireachtas nor involve publicly denigrating the judiciary for politically opportunistic reasons.
In a sane world, in which logic and the public interest prevailed, before publishing legislation the Government would first publish a discussion paper and provide time for considered and constructive debate. Unfortunately, we live in a world in which they are devalued currencies. To keep the Government intact and overcome a Cabinet Minister’s embarrassing arbitrary veto on judicial appointments a political deal has been done to accelerate enactment of the proposed Bill. Unfortunately, a golden opportunity to enact truly beneficial reform is about to be sacrificed on the altar of political expediency.
Alan Shatter was minister for justice between 2011 and 2014