The Sheedy affair has raised issues about the relationship between the judiciary and the politicians, issues that have needed airing but which, like sleeping dogs, have been let lie, perhaps too long.
An unseemly aspect of the matter has been the reported dissatisfaction of politicians with the lack of recommendations in the Chief Justice's report and their alleged concern that this matter be dealt with by the judiciary itself.
Now, there may be politicians who are unaware of the limits placed upon self-regulation by the judiciary, by the laws they themselves have passed. The only such power they have given to the Chief Justice is the right to admonish in private a district judge: he has been given no role of any kind in relation to the disciplining of Circuit, High and Supreme Court judges.
But if ignorance of this reality exists at some levels of the political system, it certainly cannot exist at Government level, from which some of the reports of irritation with the lack of recommendations in the Chief Justice's report appear to have emanated. What we have been observing in the last day or two has been a disingenuous attempt at buck-passing.
In any event, the idea that any body, even the higher ranks of the judiciary, should be entirely self-regulating runs against a basic principle of justice, viz that no person or group should be a judge in their own cause.
And, while under the Constitution it would be possible by law to give disciplinary powers to the Chief Justice over Circuit Court judges as well as district judges, the disciplining of judges of the higher courts is specifically reserved to the Oireachtas by Article 35.4 of the Constitution, a fact of which no member of the Oireachtas can be unaware.
Quite simply it is constitutionally impossible for the Chief Justice to remove a Supreme Court or High Court judge, and it would thus be improper for him to become involved in this process by recommending to the executive and legislature whether or not to exercise their functions under Article 35.4 of the Constitution.
The facts of this affair, so far as they can be ascertained by questioning of individuals whose accounts of the matter appear to conflict, now lie before the Oireachtas. It is for that body to decide whether the evidence before it makes it appropriate for it to proceed with impeachment proceedings in respect of the judges whose actions have been criticised.
But the Sheedy case raises other and wider issues. The fact that after he heard this case the Circuit Court judge in question was promoted by the Government on the recommendation of the Minister for Justice raises the issue of the wisdom of judges being promoted by government fiat to higher courts at higher levels of remuneration.
This matter is not dealt with in the Constitution but, by providing in Article 35.5 that the remuneration of a judge shall not be reduced during his continuance in office, that document demonstrates sensitivity to the possibility of judges being subject to political influence after their appointment by the government.
But if a judge might be influenced by the possibility of his remuneration being reduced, might he or she not be influenced also by the prospect of it being increased by way of promotion?
One way of easing this problem might be to pay High Court and Supreme Court judges at the same rate so that appointment to the Supreme Court would not entail an increase in remuneration.
Such an arrangement would also provide a greater measure of flexibility in the disposition of judicial talent at this level.
In the past, concern about this factor has greatly limited the number of such promotions from one judicial level to another: governments have been conscious of the dangers inherent in such a promotional system and have limited such promotions to a few individual cases of self-evident merit.
Recently however, partly no doubt because of the considerable increase in the number of judges that are needed to handle the much-increased volume of legal business, there seem to have been rather more promotions, including some from the Circuit Court to the High Court which have met with widespread approval. For that reason it would clearly be better to provide some safeguards in such cases rather than inhibit them completely. The problems that can arise for a government in the absence of such safeguards have been highlighted by the questions that have been raised in some quarters by the promotion of Judge Cyril Kelly from the Circuit Court to the High Court shortly after he heard the Sheedy case.
This decision has left the Minister for Justice open to ex post facto criticism which he will wish to dispel when he addresses the Dail on this matter next Tuesday, by explaining the basis for his decision to recommend this promotion at that time, including the source of any advice he may have received on the matter.
In order to protect ministers for justice from subsequent criticism of this kind about promotions, there now would seem to be a strong case for bringing the promotion of judges within the ambit of the Commission on Judicial Appointments Advisory Board, which currently presents the minister with a list of possible appointees from which the minister selects a name to propose to the government for appointment.
This procedure has proved a wise constraint on the possible appointment of unsuitable people to judicial office. If a minister were now to try to have a name of someone unsuitable added to the list, he would certainly be faced with the resignation of this commission.
In reviewing procedures following this unfortunate Sheedy episode, consideration might also usefully be given to modifying the procedure under which names for possible judicial appointment are submitted to the government. At present at least seven names have to be submitted. If this number were reduced so that, for example, only three went forward, this would be likely to ensure an even higher standard of appointment.
At present the government is advised on appointments by the minister for justice, although the attorney general may, and normally will, offer comments on the matter. In my experience the views of the attorney general are particularly valuable, as he will have direct knowledge of the candidates for judicial office. By contrast the minister for justice is unlikely to know all those whose names have been submitted to him. He may in fact know none of them and will normally be dependent on advice tendered to him by officials of his department.
There is, I believe, a strong case for giving the attorney general a more formal role in regard to judicial appointments, for example by arranging that recommendations to the government be made jointly by the minister and the attorney general.
This is clearly the moment to look at all aspects of the inter-relationship between the executive and the judiciary. This could best be done by an appropriate all-party committee of the Oireachtas.