Sir, – The current controversy over the appointment of the former attorney general Máire Whelan to the Court of Appeal recalls the quote, possibly apocryphal, attributed to Garret FitzGerald: “That’s fine in practice, but will it work in theory?”
Minister for Transport Shane Ross has been a vocal critic of the system for judicial appointments in Ireland, and sought as part of the programme for government the creation of a new commission with the aim of depoliticising these appointments. There is now a Judicial Appointments Commission Bill 2016 which proposes the creation of an independent body with a lay majority to recommend to the government candidates for judicial appointments.
It’s true that in theory judicial appointments in Ireland appear to be highly politicised. Judges are appointed by the government, and party political considerations have often been a factor in choosing who to appoint. The creation of the Judicial Appointments Advisory Board, following the Harry Whelehan controversy in 1994, has done little to limit the discretion of the government in appointing judges. Partly this is because politicians never really wanted the new system. But the best Irish and international research consistently emphasises that judicial independence requires a robust culture of independent behaviour and cannot be willed into existence just by making formal institutional rules. In Ireland – as in other common-law countries with similar appointment processes – judges have not exhibited party political preferences once appointed. So Mr Ross is seeking, and the Bill implements, a fix for a theoretical problem that has not existed in practice.
This is not an argument that the reform is bad in itself, and in fact the Judicial Appointments Commission Bill 2016 will preserve a measure of political choice. It will recommend three names to the government for each vacancy. This is a constitutional requirement because judicial appointments are a matter for the government, but it is also to be welcomed on policy grounds. Research I have conducted with colleagues on appointment processes in the UK as part of the “Judicial Independence Project” reveals that depoliticisation can have unintended consequences. Decoupling appointments from politics creates the risk that politicians will not have confidence in those appointed, with knock-on risks to judicial independence.
Depoliticisation can also lead to reversals on diversity. In England and Wales, in particular, progress on diversity in judicial appointments has been very slow, particularly at the highest levels, because an independent appointment process has fixated on a very narrow, academic and traditional conception of “merit” which makes it more difficult for women, and minorities to compete against white males with establishment backgrounds and traditional career paths.
In Ireland, by contrast, a more “politicised” appointment process has adopted a broader and more nuanced conception of “merit”, leading to more impressive progress on gender diversity; although the progress of minorities requires more attention if the judiciary is to reflect contemporary Ireland. The draft Bill emphasises the importance of diversity and we must hope that this emphasis is carried over into the culture of the commission when it is created.
I hope that there will not be a push to completely insulate judicial appointments from politics even further than the Bill currently provides. The risks – to the culture of judicial independence, and to the creation of a judiciary that reflects the society it serves – require that depoliticisation be handled with great care.
In solving a purely theoretical problem, let’s not create a practical one. – Yours, etc,
Dr PATRICK O’BRIEN,
Law Department,
London School
of Economics.