Judicial independence is fundamental to a properly functioning democracy: it applies a brake to overweening governments; reassures citizens that their rights will be respected and gives confidence to international investors. The separation of powers is provided for in the Constitution, giving due weight to the functions of the executive, the judiciary and parliament. The system has served the State well. Along the way, it generated low-level friction between government and the judiciary concerning their various powers and privileges that, on occasion, exploded into the public domain. Such disagreement is now on display.
This is all about reform. The system for appointing judges, particularly to the lower courts, always attracted a degree of criticism on the grounds of political partisanship. A similar jaundiced eye was cast on appointments to State boards. But judges have taken the separation of powers seriously and jealously guarded their independence. Rulings in the superior courts helped to develop a caring, human-rights-based society and reluctant governments were forced to undertake legislative reform. On the down side, a sense of entitlement developed in some quarters that regarded any government decisions affecting judicial pay and working conditions as unacceptable.
Changes proposed by former minister for justice Alan Shatter in 2011 were resisted. A referendum empowering the government to cut judges' pay and pensions – in line with other public servants – brought simmering resentment to a boil. An Association of Judges was formed to represent their interests ,with Mr Justice Peter Kelly as president. Two years later, he accused the government of "demolishing the independence of the judiciary, brick by brick".
The appointment of former attorney general Máire Whelan to the Court of Appeal and determination by Minister for Transport Shane Ross that legislation on the selection of judges should be fast-tracked in the Dáil have served to re-ignite this bonfire of the vanities. Judges and barristers object to a civilian majority on a judicial nomination board, along with a civilian chair. Mr Justice Kelly described the legislation as 'ill-conceived' and 'ill-advised'. The Association of Judges echoed that sentiment even as Minister for Justice Charlie Flanagan attempted to cool the situation. Nobody, least of all an uncertain electorate, will benefit from such discord.
It is the duty of government to appoint judges and reform out-of-date procedures. The notion of a civilian majority on a judicial selection panel may upset some barristers and judges, but solicitors support the approach. The view that a chief justice should – because of insider knowledge and experience – chair the process, appears reasonable. Compromise along those lines may settle ruffled feathers.