Oireachtas Joint and Select Committees
Wednesday, 26 November 2014
Joint Oireachtas Committee on Justice, Defence and Equality
Judicial Appointments: Discussion
Apologies have been received from Deputy Anne Ferris and Senator Tony Mulcahy. Deputy Alan Farrell is running late. The purpose of this meeting is to discuss the judicial appointments process. I understand a briefing has been circulated to members. I welcome Dr. Laura Cahillane from the School of Law, University of Limerick, and thank her for attending the meeting. She is very welcome. I also welcome Dr. Jennifer Carroll MacNeill, who is very welcome. We know her of old. I also welcome Dr. David Kenny, School of Law, Trinity College Dublin, who did not have too far to travel today. I thank him for attending. I will invite the witnesses to make some opening remarks of about five minutes each, followed by a question-and-answer session with members, which we find the most interesting and productive part of the meeting.
I draw attention to privilege. By virtue of section 17(2)(l) of the Defamation Act, 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if directed by it to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. Members should also be aware that under rules of the Chair they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
Dr. Laura Cahillane:
I thank the committee for inviting me here today. This is an important discussion. I will start from the position that we are all aware of the current process for appointing judges in Ireland. I want to outline one or two problems and mention some potential solutions.
The first problem is that appointments are seen to be political. Judges have admitted that the appointments process is political and the problem is that the current system does nothing to prevent it. It is something which needs to be examined.
Another issue is diversity. Gender balance has improved in recent years, but we have some way to go to ensure that there is appropriate balance on the benches in terms of gender, background and ethnicity. Last week I collected data on the number of judges. There is an obvious improvement in terms of gender. Of the total number of sitting judges, 30% are female. The female representation on the Supreme Court is 30%, the Court of Appeal is 22%, the High Court is 22%, the Circuit Court is much better at 42% and it is 30% in the District Court. It is clear that significant progress has been made here in the attempt to secure an appropriate gender balance, but that is because of the clear aim of the current Government to appoint women to these positions. However, the percentage of women is still too low and we should not be content with a figure of 30%. The point is that the current process does nothing to ensure that this trend will continue, it is entirely at the whim of the Government. It is another issue which needs to be examined.
There are also issues with the Judicial Appointments Advisory Board. It has no role if the post in question is the presidency of any court or if the vacancy is being filled by the promotion of a lower court. While the board is clearly intended to be an advisory body, in reality it is nothing more than a filtering mechanism or a short-listing body. All it does in reality is remove undesirable or unqualified candidates and the rest of the names are presented to the Government. There is nothing advisory about the process. The criteria for appointment as a judge need to be refined and reformed.
One very obvious recommendation is to reduce the list of names the board can recommend to the Government. Almost all of the submissions sent to the Department of Justice and Equality in January had in common the recommendation that a list of three names would go a long way towards eliminating the possibility of appointments being political, and would also give the board a more advisory role and would remove the appearance of it being simply a short-listing body. This sort of amendment would be compatible with the Constitution as the final choice is still left to the Government.
Another very simple solution is to allow the board to interview candidates. It already has the power to do this under section 14(e) of the 1995 Act, but it has never availed of the possibility of doing so. There is no obvious reason why candidates should not be interviewed, as long as the process is fair. It is something which is done in many other jurisdictions. In England and Wales, for example, candidates may be required to take part in panel interviews, an interview and a role play, an interview and a presentation or an interview and situational questioning. It is a much more rigorous process and ensures that candidates can be assessed as to their suitability in a very practical way.
Another suggested reform is to rank the candidates. As long as the Government retains discretion not to accept the ranking of the board, this is also compatible with the Constitution. The membership of the board needs to be examined. There is currently an overwhelming majority of lawyers on the board. Increasing the lay members of the committee would help to ensure that issues such as diversity are considered and would also help to avoid the appearance of self-perpetuation by the Judiciary. Other jurisdictions have done this in a number of ways. Ontario, for example, provided for a majority of lay members on its committee. Scotland has equal legal and lay representation. In England and Wales the chair of the commission is a lay person. Perhaps one of those options should be considered.
The eligibility criteria are very problematic. The committee members have the wording of section 16(7) before them. The words "character", "temperament" and "otherwise suitable" are unacceptably vague and need to be refined. Other jurisdictions have provided for more precise guidelines. Scotland is one good example and has very detailed criteria to match each of the judicial offices. It generally uses 17 precise criteria against which to measure candidates. In England and Wales candidates are assessed based on merit, but that is broken into six core qualities which are further broken down. A comprehensive set of eligibility criteria against which to measure candidates, such as the English or Scottish process, would facilitate the short-listing process and help to ensure that the most suitable candidates are put forward to the Government.
Another issue in regard to eligibility is the question of appointing academics, and perhaps that is something we could discuss. There needs to be more of a focus on diversity. Ireland is one of the few jurisdictions which has not focused on this issue. In many ways, the diversity of the bench is dependent on diversity in the legal profession generally, but there are still actions which could be taken. One very simple step would be to give feedback to unsuccessful candidates in order that somebody from a minority group who is an unsuccessful candidate will understand that the choice has been made on objective criteria and will be encouraged to apply again.
We could follow in the steps of Scotland and draw up a diversity strategy. The Scottish strategy involves monitoring the diversity profile of applicants, holding information sessions, working with the legal profession and promoting judicial office among those who are currently not coming forward. Other jurisdictions require their boards to have regard to diversity and in Ontario, England and Wales that is put on a legislative basis. While England and Wales lag behind us in terms of their diversity, they have introduced many recent initiatives in order to tackle their low levels of female and minority representation. They recently established a judicial task force to implement the 53 recommendations of the Neuberger report published in 2010. It will work with the Bar Council, the Law Society and the Judicial Appointments Commission in order to remove barriers and promote diversity.
We need to acknowledge that diversity should involve more than gender and ethnicity. Rather, it should be concerned with providing a true representation of the population, and not just one section of Ireland. Diversity is directly related to how the public perceives the Judiciary. That is related to public confidence in the administration of justice. There is no quick fix, but perhaps we could consider some of the reforms I mentioned. At the very least, we need to recognise that a diverse Judiciary is a worthwhile goal.
Dr. Jennifer Carroll MacNeill:
I thank the committee for the invitation to be here today.
I am keen to be of whatever assistance I can be to the committee. It may be useful to set out my background in research on judicial appointments in Ireland and judicial selection systems generally in order that it might form the basis for further questions or discussions. I have been researching judicial appointments in Ireland for over ten years. In 2004, I conducted a study of the senior Judiciary in Ireland, a study which updated comparable work from 1969 on Irish judges and their backgrounds. In the context of this study I asked each participant from the Judiciary why they thought they were appointed and to outline their personal experience of the judicial selection process.
My follow-up research came to the topic from the other side and focused on the people making the decisions about whom to select for an individual judicial vacancy, in particular the key people in government between 1982 and 2007 and those on the Judicial Appointments Advisory Board from 1995 to 2007. I examined the internal Cabinet processes as well as who did what, who gathered names to consider and how and why decisions were made in respect of appointments. That period of analysis is useful because it allows us to test the impact of the establishment of the Judicial Appointments Advisory Board in the context of the 12 year period before it was established and in the 12 years afterwards in terms of its impact on the processes of Government.
Having created an independent statutory board to make recommendations, how did the board interact with the Government and its decision-making? Did the change really reduce the scope of Government, if it was so minded, to act politically? Another useful aspect of that research was that it gave me greater insight into the realpolitikof the judicial selection processes in Ireland and the actual operation of the Judicial Appointments Advisory Board, something that has not been well documented over time.
The research was situated in a comparative analysis of other common law judicial selection systems, including those in Canada, Australia, New Zealand, England and Wales, Israel, the United States, Northern Ireland and Scotland. It focused on senior judicial appointments, that is to say, the type of judges that can override governments, and in countries where, like Ireland, the appointments are made from practice as opposed to a career judiciary typical of the civil law system.
In examining these systems, I concentrated on the role of government in respect of judicial appointments and the nature of its power in that system. To what extent did government have discretion to appoint a preferred candidate? I also examined the circumstances in which political debate about whether to change to the judicial selection process arose. It came up from time to time in each jurisdiction, but for different reasons and with different sponsors and outcomes. The charge generally is that judicial appointments are too political – the inference being that governments make selection decisions based on political party patronage and that this is necessarily bad. Such charges are rarely specific or contextualised. For example, they do not take account of a government acting politically in appointing only women or only people or predominately people from an ethic or religious minority. It assumes that to act politically is associated with political party patronage, which may or may not be the case.
The reality of judicial appointments in Ireland is far more complex. The evidence from 1982 to 2007 suggests the matter is far more complex than making a simple statement that all appointments are political. It varies between courts from the District Court to the Supreme Court. A far more important factor in judicial selection from my research of governments and the Judicial Appointments Advisory Board is the person being known personally or by reputation to the decision-makers of the day. That is far more important than party political patronage although the two are not mutually exclusive.
Connected to the charge that a political judicial appointments process is bad is the charge that it presents a threat to judicial independence. Based on my research I believe there is no real connection between judicial appointment processes and judicial independence in established common law democracies where judges are appointed for a fixed term and need not seek re-election or reconfirmation in any way. Even prior to 1995, when the Government established the independent board to make recommendations, Ireland enjoyed a reputation of having an exceptionally strong and independent Judiciary throughout the six decades of its existence to that point. Furthermore, the World Economic Forum global competitiveness report ranked New Zealand as having the most independent judiciary globally. New Zealand has a judicial selection process that is entirely within the control of politicians. Ireland came further down the ranking in third place and England and Wales, where the selection process has almost no role for politicians, came sixth. Therefore, there is no direct relationship between the independence of the judicial institutions, the independence of individual members and the process by which they were appointed.
I have no wish to go over time. In conclusion I will suggest some points that may be helpful for the committee. We should consider the actual operation of the current statutory framework, the Courts and Court Officers Act 1995, which is operated and reviewed under the watch of this committee, how the relevant statutory powers have been interpreted over time and how the Act has been implemented by the Judicial Appointments Advisory Board. I can give the committee evidence from my interviews if it is helpful. The committee may be interested in the findings of my research on the role of politics in judicial appointments between 1982 and 2007 from the perspective of Government. It may be helpful to comment on some of the recent debate about reform of the Irish judicial selection process, including the recommendations made by GRECO last week as well as earlier recommendations in January from the judicial appointments review committee.
Dr. David Kenny:
I thank the Chairman and the committee for the opportunity to speak today. It is an honour to be invited before the committee. The current system of judicial appointments in Ireland has little to commend it. While the members of our Judiciary are well-regarded internationally for their quality and are obviously of a high calibre, it is clear, in the words of a recent report by senior members of our Judiciary, that this is in spite of rather than because of our system of judicial appointments.
There are numerous faults in our current system many of which have been noted by Dr. Cahillane and Dr. Carroll MacNeill. They include the charge that criteria in considering and evaluating candidates are rather vague in the extreme; that the Judicial Appointments Advisory Board is composed mainly of judges, with only a small number of lay members, and has taken a hands-off approach to assessing candidates; that the board must, by law, recommend too many candidates but may not rank them; and that the Government can, if it so wishes, choose from those recommendations the candidates who have earned its political favour. All of these problems merit consideration as we try to balance the need for political involvement in the appointments process with the need to end political patronage. In this regard we could consider some simple departures such as hearings in this committee for potential judicial nominees. However, I intend to focus on the issue of judicial diversity and on an aspect of this issue that seems to receive little attention but which is none the less an important consideration in reforming the judicial appointments process.
The diversity of our Judiciary matters, not only because of perception but because a diverse judiciary would be more reflective of the range of viewpoints and outlooks in our society and would engage in a more rounded judicial discourse. At present, we have a clear lack of diversity. It is deeply unfortunate that at present, less than 25% of our superior court judges are women. There is also little to suggest that this will change any time soon. At present, only approximately 30% of those called to the Inner Bar, the senior counsel, from where most of our superior court judges are appointed, are women. We could also make a good case to the effect that there is a lack of diversity in terms of social, educational and economic background among our judges. The fact that most are selected from the extraordinarily elite pool of successful barristers and the rest from the equally elite pool of successful solicitors makes it hard to argue that our Judiciary is broadly representative of society as a whole. Our senior judges, while acknowledging that diversity would be desirable if it came about, have suggested that this is irrelevant to the process of judging and that we should focus only on the merit of candidates in considering appointments. I maintain these are not separate metrics and that there is merit in diversity.
Another aspect of diversity which gets even less attention than gender is diversity of professional experience. Currently, we consider only one type of candidate for judicial office: professional lawyers, that is to say, solicitors and barristers with extensive experience in the practice of litigation. I believe we should consider other candidates and widen the pool from which we select judges. Deputy Alan Shatter, when Minister for Justice and Equality, suggested some broadening of the range of eligible candidates might be appropriate and I fully agree.
Under our current rules a candidate is only eligible for appointment to the courts if he has been a practising solicitor or barrister for a certain period, 12 years in the case of the superior courts. Our senior judges have suggested that we should require even more litigation experience to be appointed as a judge. This is illustrative of the highly professionalised attitude to judging that prevails in Ireland. There are two problems with this approach. First, being a good litigator and being a good judge are not the same thing. The fact that our current judges are drawn from this group of litigators does not mean candidates drawn from other professional backgrounds would not be equally good. Second, this view of judging as an adjunct of the legal profession assesses what makes a good judge from the point of view of the litigator rather than from the point of view of society at large. Although litigators learn valuable skills about practice and procedure, focusing on these aspects of judging ignores the idea that there might be value in a diversity of views and experiences beyond the highest echelons of legal practice. Judging is not only an exercise in technical legal skill and mechanical application of the legal rules, it is an exercise that draws on personal background, life experience, and one's vision of and viewpoint on the law.
The practice of litigation, from where almost all of our judges are drawn, entrenches a very particular way of looking at the law but there are many other perspectives. As one American commentator put it, "Someone with a background in corporate law may feel one way about social issues, while someone who has been an advocate for women’s rights may feel a different way". The law looks different depending on one's professional background, but as of now we do not value any diversity of professional experience among our judges.
Appointing experts from different fields who have legal training, education and experience but have not been involved directly in the conduct of litigation might bring some diversity of views as to how judging should be done. This is not totally unprecedented. One recent appointee, Mr. Justice Max Barrett, was not a litigation practitioner before his appointment, though he was a qualified solicitor for the requisite period. It would seem that similar appointments could be made from the ranks of non-governmental organisations, public interest law groups, law centres, etc.
The legal experience of such candidates would be markedly different from most of our current judges. This could expand the diversity of values and backgrounds in the Irish courts, and bring new perspectives to the Bench. If we were to relax the practice requirements more substantially, we could consider other candidates. Senior administrators who have quasi-adjudicative experience from their previous role, and who have specific legal expertise, might bring interesting viewpoints from outside the world of litigation practice. The former Minister, Deputy Alan Shatter, had mused on the idea of academics becoming judges, as has been common in the United States and elsewhere. Lest I seem self interested I can assure the members that I do not have any judicial aspirations, but I believe that proposal merits consideration.
If there is a concern that such candidates might lack knowledge of the specifics of handling litigation in courts, that is something we could give them. Judicial training would surely benefit all our appointees because arguing a case as a lawyer is not the same as judging one. Courses in judicial studies would be worthwhile for anyone seeking high judicial office. Diversity in terms of life experience and professional experience would make our Judiciary more representative and broaden the somewhat narrow range of viewpoints considered in our current judicial discourse. There is merit in diversity and as we consider reform of the appointments process, this vital issue should not be ignored.
I again thank the committee for this opportunity to discuss the topic of judicial appointments, and would welcome questions on any aspect of the issue.
Dr. Jennifer Carroll MacNeill:
Establishing a judicial council is essential but what it will do has not been clearly defined. As I understand it the original purpose was to provide a complaints mechanism so that members of the public or lawyers would have a mechanism by which they could properly address minor complaints against the Judiciary rather than the draconian measure that has never been used, which is impeaching a judge. As time has gone on, however, the role of the judicial council seems to be expanded, not necessarily by political circles, to one which will act as a representative body for the Judiciary, and now one which potentially may have a role in respect of judicial selection. That is very far from what was originally envisaged, and I would exercise great caution about expanding the role of such a body in that way.
That comes down to the point that the removal of a judge from office in Ireland through impeachment is virtually impossible, as I well know. I should have prefaced my remarks by saying that as somebody who has practised law for 36 years, I believe our judges have served us well, by and large. That is something that should be borne in mind.
On the ratio of women in the Judiciary, I am a solicitor by profession and I am aware there are now more women than men who are qualified solicitors. As far as I know only one solicitor has ever been appointed to the High Court. In terms of the Circuit Court, the High Court and particularly the Supreme Court, unless one comes from the Bar Council one's chances of being appointed are slim to nil. There are some excellent solicitors with a great deal of experience who are being ignored for appointment, and that is not necessarily for political reasons.
What are the views of the witnesses on continuing legal education programmes for judges? Family law was not even on the agenda when I studied law, nor was European law. Family law then became a major issue but I had no experience of dealing with family law courts, etc. In the area of continuing legal education, which we must all go through, do the witnesses envisage a programme where judges would have to stand aside from the Bench and go through a two or three weeks or a two or three months training course every three or five years to be updated on that area?
Dr. David Kenny:
I thank the Senator. The point about solicitors is a very good one. There has been some movement in that there have been more appointments from the ranks of solicitors recently. A statistic the Law Society put out recently indicated that 8% of appointments to the superior courts in the past 12 years were from the ranks of solicitors, which is still a very small number. That should increase. It was noted in the most recent batch of High Court appointments that solicitors outnumbered barristers in terms of superior court appointments, and that was the first batch where that had ever happened. There might be a movement in that direction.
In terms of the number of lawyers in the country, approximately 80% would be qualified solicitors as opposed to approximately 20% who would be practising barristers. There has been a significant tilt towards the barristers' profession in that, and it is only since the mid-1990s that solicitors could be appointed to those courts. That is something that should change. It is perhaps true that solicitors have broader ranges of experience in the law and can engage in different functions while barristers tend to have more specific expertise in litigation. It is certainly something that is worthwhile and that should be a goal in the medium term.
As to continuing judicial education, there is nothing to be said against it. It is essential. It has been talked about a great deal but very little progress has been made on it. All applications to the Judicial Appointments Advisory Board guarantee to undertake whatever training is required and repeatedly our judges have called for well-resourced systems of judicial education for all judges. That still has not been pushed, but it is essential. Courses in judicial studies should be required both at the start of and throughout a judicial career because there is nothing to be said against it. It would be only for the better.
The point I want to make is that if we want more women on the High Court and the Supreme Court, 80% of lawyers are solicitors. If more solicitors were being chosen we would have a better chance of reaching a 40% or 45% measure in that regard by choosing from the ranks of solicitors of whom there are more women than men.
Dr. Jennifer Carroll MacNeill:
May I make a point in respect of solicitors? Solicitors only became eligible for direct appointment to the High Court in 2002 and since then, to my recollection, there have been four such direct appointments of solicitors. The others have been promotion from the Circuit Court. I wrote a paper on this in 2007, which I will provide to the Senator, and one of the problems with this is the interpretation of the 2002 amendment Act which states that the solicitors, or anyone, applying should have appropriate knowledge and experience of superior court practice and procedure, but it does not define that. It does not say whether that is required to be an advocate in front of the courts or somebody who routinely, or not routinely, instructs counsel in front of those courts.
When the amendment was made in 2002 there was a huge number of applications for High Court positions in 2003. One could see that by reading the annual reports of the Judicial Appointments Advisory Board, JAAB. There was a spike in applications from solicitors but over the following three years it dropped dramatically. Part of the confusion was the meaning of "appropriate knowledge and experience". There have been two recent direct appointments to the High Court but it is still a very small number from 2002.
I thank the three speakers. It was after hearing the three of them give presentations at the Law and Government conference in DCU that I felt we should invite them to come before the committee to explore this issue. It is in the context of the review of judicial appointments, which I hope this committee will feed into, because the witnesses have offered worthwhile insights.
On the issue of diversity, Senator O'Donovan is right about the need to achieve greater scope for gender balance by appointing more solicitors directly. Over 50% of law students have been women since the mid-1980s. Dr. Kenny made reference to the Inner Bar - senior counsel - and this seems to be a particularly difficult area for women to break into. That has certainly changed since the report we did in 2003, but it is still the case that there is a much smaller pool of women to choose from if one is picking only senior counsels for promotion.
As well as widening the pool from which judicial appointments are made to include more solicitors and, perhaps, academics and practitioners from NGOs and other fields, should we consider putting something specific in the legislation about diversity - not just gender - and the promotion of diversity? I would be interested to hear Dr. Cahillane's views on this.
Dr. Laura Cahillane:
That is something that other jurisdictions have looked at, as I have mentioned. In Ontario, England and Wales, appointment commissions have to consider diversity when selecting candidates. In its submission of January this year, the Irish judiciary declined that approach and decided that it was not appropriate, because all appointments should be based on merit. However, there is a lot of research demonstrating that merit and diversity are actually compatible. We do not have to have one as opposed to the other. The issue of increasing diversity of minority groups - not just of gender - must, in my view, be taken into consideration by a Judicial Appointments Commission. It can be provided for in legislation. There may be issues with the Employment Equality Acts regarding making subjective appointments, but it has been done elsewhere and we should look at those other jurisdictions.
I read the Judicial Appointments Review Committee's report and was struck by what Dr. Cahillane has referred to as self-perpetuation by the Judiciary. That seems to be the danger of many of the recommendations the review committee has made. Dr. Kenny also picked up on the report's suggestion of increasing the requirement for professional practice. It seems this is just picking more of the same rather than increasing diversity.
In Dr. Carroll MacNeill's presentation, she pointed out that the Judicial Appointments Advisory Board, JAAB, is not using the powers that are provided to it in the legislation. If one looks at the JAAB reports, one sees this straight away. For example, where there is a pool of perhaps 100 applicants for the District Court, rather than recommending seven names, which significantly narrows Government's choice, the JAAB is recommending many more than seven. How does Dr. Carroll MacNeill think this could be changed short of legislative amendment, or is legislative amendment required?
Dr. Jennifer Carroll MacNeill:
It is a very important point. The legislation gives the JAAB the capacity to recommend at least seven names in respect of each vacancy. "At least seven names" means either seven or more than seven, but the board is also granted the capacity to recommend fewer than seven where it takes the view that there are fewer than seven appropriate candidates to be recommended. In my research with the JAAB members from 1995 to 2007, it was very interesting to talk to people about how this capacity was exercised over time. In 1995, when Chief Justice Liam Hamilton was the chairperson of the board, they interpreted the legislation quite tightly and very few recommendations were made to Government. That is backed up by research evidence from members of the Government at that time.
However, in the early 2000s a member of the board raised a potential difficulty with its operation, namely, that by acting in this way the board was potentially unconstitutionally usurping the selection function of Government. It was argued that rather than making a selection of preference from the pool of applicants and identifying the preferred candidates to Government, the board should recommend all applicants who were not unsuitable. This was the opposite approach to what had been practiced before - weeding out the people who were demonstrably unsuitable and recommending everybody else to Government for appointment. The new approach meant that if, say, 20% of people were definitely unsuitable for whatever reason, of the 100 District Court applications, 20 would be weeded out and 80 sent to the Government from which list it could choose a preferred candidate.
This change dramatically widened the scope for Government discretion in judicial selection, if it wished to choose a preferred candidate from the list. It is counter-intuitive for the Judicial Appointments Advisory Board, which - by statute - had been given an extraordinary new role in judicial selection and had the capacity to make a selection decision, for example to choose seven or fewer applicants out of 90 or 100 for the District Court, and send that selection to Government. It is difficult, because there is an independent board, and as long as the Government makes selection decisions from the recommendations of that board, the Government cannot be accused of acting politically in its appointments. What is extraordinary is that the JAAB would have widened the discretion of Government in this way, essentially relinquishing the selection role it had been given without reference to this committee or the Oireachtas generally or to the Government.
The JAAB operated in that way from the early 2000s until the end of my research in 2007 and I am given to understand that it continued to do so for years afterwards. It was reported in The Irish Timesthat a decision was taken by the board this summer, 2014, to return to recommending a smaller number of names to Government. I do not know how many names, I only know what was reported. It is a very important point for this committee in its assessment of the Judicial Appointments Advisory Board, because a range of people, including myself in 2004, have argued that the number of names should be reduced from seven to three. That argument assumes the JAAB was actually recommending seven, which is not the case. This committee needs to look in a very detailed way at the operation of the JAAB over time. It has been in existence for nearly 20 years now and it seems reasonable that questions might be asked of it about its processes and operations.
I have a final question for all of our experts regarding the difference between the superior courts and the District and Circuit Courts. Should we have different appointment processes for different levels of court? Is political patronage more of an issue at lower or higher court?
Dr. David Kenny:
Several commentators have suggested the risk of patronage appointments may be more significant in the Circuit and District Courts. They are also perhaps the posts with the least direct political salience. Whereas our superior courts deal with matters of constitutional law and are, as Dr. Carroll MacNeill put it, empowered to override the Government - there are matters of politics at stake - this political salience is significantly less acute in the context of the lower courts. If a genuinely independent body were established to make judicial appointments entirely separately from the process of Government - which would require a constitutional change - it should probably not be considered for High Court, Court of Appeal or Supreme Court appointments because they involve genuine political issues that should be considered by somebody with political accountability. There are checks and balances that need to operate with constitutional-level courts. It is, however, something that might be considered for the District and Circuit Court appointments process, where the political stakes are lower and there is more risk of patronage.
There is scope for making this differentiation either quite radically or in terms of the criteria according to which the applicants are considered. We might look for different things from superior court judges who are empowered to deal with the constitution and perhaps make more politically salient decisions. We might want to differentiate in a more significant way as opposed to applying a one-size-fits-all measure. Compounding that is the fact that the criteria for all appointees are so vague at the moment. As Dr. Cahillane mentioned, the board looks at things like education, professional qualifications, temperament and character, competence and probity in practice. Those are not things that are binding, rigorous or constraining in terms of the choices. We might want to specify what we mean by them and actually lay out what we believe judicial merit is. Our visions of it might be very different depending on what court we are talking about and what powers that court has.
Dr. Jennifer Carroll MacNeill:
I take a slightly different view to my colleague in respect of differentiations between different courts. I think they are all equally important. The role of the District Court judge is just as important as that of the Supreme Court judge although they perform different functions. The District Court judge is where most Irish citizens come into contact with the courts and it is extraordinarily important that the judges are courteous and of the appropriate temperament. They must be able to make the correct decisions and deal with very long lists and all of the different personalities and legal issues that will come before them on a given day.
I take the view that there is a very important role for political representatives in the selection of judges. The tendency is to write out politics, but what one is doing there is writing out people's representatives. All of the members of the committee represent people and have a sense of what they want and what is important to them. Political representatives can make assessments on whether a person has the right temperament, which is one of the criteria to be a judge, all other things, including merit, qualifications and experience, being equal.
The requirements for a judge will be different depending on the court. There is no way to distinguish them and I take a very strong view that politics must play a strong role in the selection of judges. If one delegates responsibility for selecting judges to the Judiciary or an independent board and removes the direct role of the people's representatives, it is to make a serious decision about the constitutional order between the role of the people and the judicial function. It is not part of the constitutional judicial function to select judges. It is appropriate that the law-making majority, which is the members here, makes decisions on the type of system we have and the type of people they want to be judges. That includes the diversity issue. It is entirely appropriate that politicians take a view that there is a public policy imperative to appoint more women. Politics can do that.
Dr. Jennifer Carroll MacNeill:
We are using it in a gender way, but it is much broader. I will provide the committee with an example from Australia which has a completely political appointments system. An outstanding judge, Michael Kirby, was appointed to the High Court in Australia as the first openly gay judge. He was here in 2007 talking about this and he said he would never have been appointed by his peers because he was not quite the fit at the time. It was politicians who had the courage, freedom and ability to look beyond what might have been a barrier elsewhere and make an appointment of his kind.
Dr. Laura Cahillane:
District Court judges have different functions to judges of the Court of Appeal or the Supreme Court. I agree that we should not necessarily look at having different systems of appointing judges, but we could look at having slightly different criteria for appointment. Dr. Kenny noted that the criteria across the board are very vague and we certainly need to refine them as a first step. Perhaps, when we are refining them we could look as Scotland has at having slightly different criteria for each judicial office. The criteria for appointment to the District Court could be tailored to what a judge on the court actually does. Similarly, the criteria could be tailored all the way up.
I thank the witnesses for their succinct, clear and stimulating presentations. I thank Senator Ivana Bacik for bringing the witnesses to meet us. My first question is a general one. I note that Dr. Carroll MacNeill suggested we might look at some of the recent recommendations in the reports of GRECO and the judicial appointments review committee. As someone who is familiar with those and in the context of what she has presented today, is there something she has mentioned which is not in the recommendations or is there a matter she would like to highlight as part of the recommendations which it is critical to bring to our attention?
Dr. Jennifer Carroll MacNeill:
Both reports take the view that judicial appointments are too political currently and that poses a danger. Neither report defines what they mean by "political" and it must be inferred that they mean party political patronage as opposed to any other form of acting politically. The recommendations focus largely on the number of recommendations to be made to Government. I find it frustrating because the powers to make more rigorous selections are already contained in the legislation. They are already the preserve and previous practice of the Judicial Appointments Advisory Board. When looking at the criteria for selection, my colleagues have noted that they are vague. However, I take the view that it was the Oireachtas giving the board extraordinary powers to define these things for itself. I suggest the committee asks the board what its objective criteria are. Does it need to be written into statute or is it something that has already been given in an extraordinarily broad - not vague - way to the Judicial Appointments Advisory Board?
The merit principle is one of the recommendations of the judicial appointments review committee, which it is explicitly suggested should be written into legislation. It does not seem to be problematic, but the inference is that the recommendations it has been making have been based on something other than merit. That does not seem to add up. The Judicial Appointments Advisory Board has played a very effective role. While it has widened its discretion, from the perspective of Government there were 116 judicial appointments between 1995 and 2007, of which 111 were made from among the candidates recommended by the board, ten were promotions and only one was an appointment made outside the advisory process. Government uses the JAAB recommendations.
The board has all the powers already. In my view, the Oireachtas has already given the powers suggested in the recommendations to the board and it is up to the latter to apply it. I assume that it what it is doing. It might come and explain that to the committee.
Dr. David Kenny:
It is a very interesting question. The judges' report from January and the GRECO report have interesting recommendations to make. As Dr. Carroll MacNeill mentioned, the merit principle is something that was pushed by the judges in their report in January. As many of us have mentioned, one of the problems with the vision of merit outlined is that diversity is outside it. It would be important rather than to simply put the word "merit" in a statute, which is breathtakingly vague, one needs to say what merit is and what one is supposed to be looking for. I disagree with Dr. Carroll MacNeill to some extent. If what was provided for in the 1995 Act was a broad power to set different standards, it was too broad. Given the importance of legislation and elected representatives having a role in saying what we think a good judge is, those criteria should be more specific to provide for a legitimate, popular input into the criteria that are important when assessing judges. Rather than to include a simple line about merit, I would like to see a vision of merit articulated and debated by our popular representatives.
Looking at the composition of the appointments board is very important and something Dr. Cahillane mentioned earlier. Neither report really looks at that and whether we should have more lay members and fewer judges rather than to let judges appoint themselves, which creates problems. Promotions and the appointments of the Chief Justice and Presidents of the other courts are currently handled outside the advisory board process and they should potentially be brought inside whatever system we implement. That would be worthwhile.
I agree with Dr. Carroll MacNeill's assessment that what we need to look at is not cutting politics out - that is never going to be a good idea - but at the roles in which politics is problematic and whether there is a way to maintain strong political involvement while removing concerns about political patronage. That is the chief concern at the moment. This is very controversial among our sitting judges in particular, who would not be fans of this. Hearings in this committee would be a good idea and direct popular discussion between elected representatives and judicial candidates could be used to gauge temperament, character and qualifications. That would be very useful but not a popular suggestion among our current judges. They feel it would make the system too political. However, it is always political and the question is whether one wants to bring out the politics that is always at play and have it in an open forum with elected representatives engaged in the discussion or leave in some deeper process we do not fully understand. I favour the transparent version where there is some sort of direct involvement.
Dr. Laura Cahillane:
Exactly. I was going to say that diversity is more than just about gender. We know that the gender profile of the courts has improved in recent years, but when we are considering diversity we need to consider minority groups, professional backgrounds - as Dr. Kenny mentioned - and even geographic spread. That is something that other jurisdictions do consider. For example, in the UK there is a requirement to look at representation from Northern Ireland and Wales. They do look at issues such as geographic spread and it is wider than simply considering gender and minority groups.
In the UK, a report was recently commissioned by the Labour Party, entitled Judicial Diversity: Accelerating Change. One of its main recommendations was that a candidate's ability to contribute to a diverse judiciary should be taken into account when assessing their merit, and that merit should include the issue of diversity. That is certainly something we should look at here.
Dr. David Kenny:
Our judges have called for empirical research to determine if there is any problem there, whether or not one calls it class background or whatever. Dr. Jennifer Carroll MacNeill's research from 2004 is the most recent that has been done in this jurisdiction, so she is best able to speak to that. Many people, however, perceive that there is a lack of diversity.
Dr. David Kenny:
Yes. Many people will say about diversity issues that perception is as problematic as reality in the first instance. If that is the perception of the courts, that has a real impact on how people will view the judicial system. Given that people are appointed from the upper echelons of the legal profession - and we all know historically that this tiny group has been the preserve of a certain class of society - it is difficult to maintain that while we have appointed just from that tier of legal professionals, we somehow have a broad spread of social backgrounds. I find that implausible.
Judges are reluctant to say that that is the case and are also reluctant to engage at all with the question of class. The most recent research was undertaken by Dr. Carroll MacNeill.
Dr. Jennifer Carroll MacNeill:
Yes. My research looked at the background of judges and compared it with 1969. It is clear that there is a 20-year lag on something happening and it affecting the Judiciary, because it takes that long in terms of professional practice to become seriously eligible for judicial appointment. Therefore, there is a lag concerning women who patriciate in university. It may also come up in respect of race in years to come as Ireland becomes more diverse.
Looking at the question of class, however, there were differences between 1969 and 2004. As regards the different schools that people attended who later made it onto the High Court, in 1969 it had been a narrow group. In 2004, the judges who would have been in school at about that time, came from a much broader range of schools. There were different ways of becoming a judge. For example, a couple of judges had worked in the Civil Service and did the examinations at night-time. They had not gone to university whereas, in 1969, they has essentially all gone to university. That is something that has expanded over time but the reality is that one cannot be a judge without a university education, a professional degree and decades of professional experience. That will of course narrow the pool somewhat.
Dr. Jennifer Carroll MacNeill:
Not necessarily because what one wants is judges who are competent in the law in order to be able to apply the law, so I am not sure. What are important, however - as Senator Bacik presented in her 2003 report - are the pathways into law, and how one expands that at university and professional level. Crucial also is keeping people in the profession, particularly women who for different reasons find it difficult to make it from qualified lawyer to senior lawyer.
Everyone's presentation was excellent. Dr. Cahillane's recommendations for reform are so clear and comprehensive. We have just gone through a recent process of judicial selection for our new court. Does Dr. Cahillane want to make any comments about her suggestions for reform in light of the recent process? Are there one or two things that she found particularly wanting, or was she delighted to see them in that context?
Dr. Laura Cahillane:
I would have to commend the Government on the recent appointments. We are talking about gender balance and it was particularly well done. It is unfortunate that we have just gone through this major appointments process without looking at the appointments procedures themselves. The point I was making in my submission is that the current process we have for appointing our judges does nothing to ensure that we will have appropriate diversity. As I said, it is at the whim of the Government.
In my presentation I touched on a point concerning diversity. Perhaps we should examine the possibility of widening the pool and, as Dr. Kenny mentioned, looking at appointing academics as judges as well. It is something that is done in other jurisdictions. The argument against it here is that academics would not have the requisite experience of litigation in court procedure, but that is something that can easily be provided. It might be more relevant for appointments to the Supreme Court where one does have more theoretical questions. However, that is one way which would open up the pool in terms of diversity of backgrounds, gender and so on.
All the witnesses spoke about diversity. I think we have to widen that issue out and not just in terms of gender. My first question concerns public perception of the legal profession, the Law Library and judicial appointments, which is that it is a strong, class-based system from which certain people are excluded.
It is interesting that Dr. Carroll MacNeill mentioned Australia. A friend of mine emigrated there 26 years ago. He is a brilliant educationalist, from a low income family. He tried to get into the Law Library but doors were banged in his face. He then emigrated to Australia with his wife and three children. Within six months he was a practising solicitor and within ten years he was a judge. He always says it is a closed-shop back in Ireland and there is elitism here.
I am talking about 26 years ago, but is that still the case here in 2014? Is it still the case that people from working class backgrounds and low income families face major barriers when it comes to getting up the legal profession ladder?
Dr. David Kenny:
It is difficult to say. It would be a fascinating research subject to take a proper look at this question. We know that there are incredible barriers to entry for the Bar. One of them is the fact that it is expensive to train at the King's Inns, which is the only option at the moment. There is a huge up-front cost for that and there is no one else to cover it. One must borrow or find money somewhere to pay for that. One then faces two years of devilling as a junior barrister for which one will earn a little money. One then goes out on one's own and tries to find work, but it is unclear what income one can expect in that period.
It has been said a lot recently that there is a significant improvement in the number of people going to the Bar, both in terms of gender balance and background. The question is whether or not those people are staying at the Bar. The attrition rate at the Bar is huge. A large number of people do not stay past a few years because it is not financially viable for them to do so. The real question we need to ask therefore is whether or not - even if there is a greater diversity of entry to the King's Inns - people are staying to reach the senior level and then become judges. I do not know the answer but I would suspect - given the barriers are so substantial and given how many people do not stick with the profession - that it is probably still a significant issue.
Dr. Jennifer Carroll MacNeill:
The appointment of solicitors is an important element of that. For example, when I was making the decision to become a legal professional, I simply could not afford to become a barrister so I became a solicitor first. I could not afford the fees for the King's Inns and I certainly could not afford to have no income, in essence, for seven years.
To become a solicitor, I got an apprenticeship that paid my Law Society fees and paid me a stipend. Thus, I qualified as a professional without incurring tens of thousands of euro of debt and would have been able to earn as an employed solicitor from the earliest stage. This was the only route open to me. Had I stayed as a solicitor, given the number of solicitors in the country compared to barristers and the number of appointments made from the Law Library compared with the world of solicitors, the possibilities of becoming a judge from that route are much narrower.
Dr. Cahillane's submission referred to England to Wales and used the phrase, "assessed based on merit". She referred to the qualities of a judge, including the ability to understand and deal fairly with people and awareness of diversity of communities. In broader society, there is a perception that some judges are out of touch in some of their crazy decisions in the justice system.
There is a perception that there is a disconnect between some judicial decisions, communities and the implementation of the law. I refer to people, particularly in disadvantaged communities, who often see violent criminals getting away with light sentences while people who commit less serious crimes receive prison terms. People regularly tell me judges are out of touch. The ability to understand and deal fairly mentioned in Dr. Cahillane's statement is lacking in this State.
Dr. Laura Cahillane:
I will not discuss sentencing. Mr. Justice Gary Hickinbottom, a UK High Court judge, has written a very good essay on the qualities needed to be a judge and what judging involves. It concentrates on the ability to understand and deal fairly, communicate with parties at the their level, whatever that may be, and discuss openly and explain matters to parties in court. This is a very important part of a judge's job. As members can see in my submission, this is taken into account in England and Wales when candidates are assessed, but not here. My colleagues have mentioned that when we consider eligibility criteria, perhaps we need to be more measured and draw up a specific list, as in England in Wales.
I was surprised at some of the figures in Dr. Cahillane's submission - for example, that 30% of judges are women, and female representation is 30% in the Supreme Court, 22% in the Court of Appeal, 22% in the High Court, 42% in the Circuit Court and 30% in the District Court. I thought it would be lower. On last night's "Prime Time" there was a discussion about trying to increase female representation in politics to 30%. I am impressed with the figures.
Dr. Laura Cahillane:
I examined the figures last week. A couple of months ago, the European Commission for the Efficiency of Justice published a report that stated Ireland's statistics as 73.6% male and 26.4% female representation, and many people are using these figures. The figure of 30% is from last week and is due to the recent appointments.
Dr. Cahillane said the judges or the Government that appointed them have an excellent record in terms of independence. What is this statement based on? Her submission also stated that judges had admitted using political influence to ensure their appointments. We all know legal people who canvass for certain politicians and a few months or a year or two later become judges. How can this be based on a meritocracy? I have seen this in 2011. If Deputy Farrell does not believe me, I can give him the names, but I will not go there. Given that judges have admitted to using political influence, we have a major problem. Many members know quality legal people who do not have these connections, and this means we do not have the chance to have the broader judicial system we all want.
At the risk of provoking the Deputy further, would it be right to exclude a person who is politically aware and active, whether in support of an independent candidate or a party, from certain positions and appointments? It is happening.
Dr. Laura Cahillane:
There is no evidence to show that judges appointed by a particular Government have been in any way favourable to it. There is no evidence to show that any particular Administration has tried to influence any judge because it appointed him or her. Nobody would disagree that our judges are seen as extremely independent. The issue of political appointments is one of the things we are getting at today. The system appears to be very politically motivated and judges have admitted to using political influence. Many of the submissions to the Department of Justice and Equality criticise the fact that the system does nothing to prevent the possibility of canvassing and the existence of political patronage. We must examine this.
Dr. Jennifer Carroll MacNeill:
In respect of canvassing, I will read out comments from different interviewees, including Attorneys General before and after 1995 and a Minister for Justice. Canvassing went two ways. People would canvass the Government for appointments and there was reverse canvassing when the Attorney General might go to the Law Library and say, "I cannot guarantee it, but if the Government was minded, would you be interested?" In respect of canvassing members of Government, it did not go well for the people who looked to canvass. A pre-1995 Minister for Justice said:
Another Attorney General said:
Often, the strongest lobbying is done for the least meritorious candidate. I remember one in particular for the District Court who was brought into the Dáil and brought to visit the different Ministers' offices. I recall it was very unfavourably commented on in Government.
It was preferable that it did not happen. I may have received only five or six letters in my time as Attorney General; very few.There was also indirect canvassing by lawyers. A post-1995 Attorney General said:
I was certainly approached by barristers. "Have you given any thought to so-and-so?" "You know so-and-so. His time may have come." "What about so-and-so? His wife has a health thing, you know? I think he is keen to leave the rough and tumble behind." But it was very counterproductive within Government to approach Government and canvass in that way.The other point is the canvassing of sitting judges for promotions and different ways in which they would do it, either by writing letters or by having a more or less discreet word in the ear of the Minister of the day. Again, it tends not to work. However, the issue of judicial appointments is very important. There has been an increase in the number of promotions between the Circuit Court and the High Court since the establishment of the Judicial Appointments Advisory Board. Promotions are outside the remit of the Judicial Appointments Advisory Board.
On the one hand, one might take the view that it is a threat to independence for judges to be promoted, as they might act in a particular way that is favourable to the Government. Yet we have always had promotions between the High Court and the Supreme Court without really thinking about it. We would have to be careful if we were to try to bring that measure into the Judicial Appointments Advisory Board, about the question of whom to promote from a given court and how that would work. There would be the sitting court presidents assessing that so-and-so wants to be promoted, and let us say so-and-so is not promoted, and they all know so-and-so looked to be promoted, but they made the decision that so-and-so was not okay. There would be a need to be careful about the operation of the board, and we need to think about how that works.
In respect of political appointments, I make the point that it varies considerably between District Court and superior court positions. One post-1995 Taoiseach said that when it comes to High Court appointments, at that level politics does not matter as the people tend to pick themselves. Other people took a different view which points to the importance of being known to the decision makers. A pre-1995 Minister for Justice said that, generally, Government appointments were made on observed merit, but if there were two equally meritorious candidates, then Fianna Fáil will appoint Fianna Fáil, Fine Gael will appoint Fine Gael and so on. The truth is that if you know people, you are generally more comfortable about appointing them. That was something that came up again and again from members of Government. Between two candidates of equal merit, they were much more comfortable appointing the person whom they knew personally because they could attest to that person's character and temperament in a way they perhaps could not for the other candidate.
All of the people who contributed to the study took the appointments process enormously seriously and were aware that, whoever they appointed to the High Court, their name was attached to that appointment for the period the person would be a judge. If a judge did something mad, that could come back reputationally to the person who appointed them, and that was important, so they took it very seriously. It is a natural thing to do and it happens within the Judicial Appointments Advisory Board as well. If a person is not known to them, that person has great difficulty in getting through that. As Dr. Cahillane said earlier in respect of geography, this has implications for the composition of the Judiciary and who gets through. The legal profession is very Dublin-based and the people who are known to the Judicial Appointments Advisory Board are more likely to be Dublin-based than not. Does this exclude very good candidates from the rest of Ireland? I do not know.
I apologise for being a little late. I have had a chance to read all the presentations and I have to say they are excellent. There is a diversity of advice, but all very helpful, and it will be very helpful to the Government's review process.
The issue of appointments is one of perception. Whether justified or not, there has been a perception that some judges have been politically appointed, and that has undermined the work they have been involved in. I put forward a Private Members' Bill which essentially recommended a shortlist of three and looked at the issue of diversity. I do not have a massive objection to the fact it was not voted for because there is a review process under way at the moment.
I have two questions. The first is connected to the issue of a sentencing council. We talk about diversity and, I assume, when we do so, we want to have a diversity of experiences and perhaps of ideological perspectives. I would have thought that was the case for the Supreme Court in particular, as it has the responsibility of interpreting the Constitution, but Dr. Carroll MacNeill made the important point that, at District Court level, perspectives matter too in terms of how they engage. What are the thoughts of the witnesses on the sentencing council model in place in England and Wales, where they engage with the public around the appropriate sentences for a particular category of crime or offence? I believe that is as important as the diversity issue because it gives a clear link to the public around what should be the range of sentencing.
Dr. Jennifer Carroll MacNeill:
I think it is as much a matter for the Oireachtas as anyone else to set sentencing parameters. The sentencing approach taken is a maximum sentence and a minimum sentence, but it is available to the Oireachtas to be more prescriptive in terms of sentencing. Clearly, Oireachtas Members are taking representations from the public all the time, so perhaps such a consultation exercise would be best focused within the Oireachtas first in order to provide tighter guidelines to the Judiciary.
Dr. David Kenny:
In terms of perspectives, diversity is very important because I believe judging is a dialogue between a group of people, and the assumptions and suppositions the judges have together end up influencing sentencing and everything else, including the way the people judge. While there are definitely questions for the Legislature in terms of whether a sentencing council is a good idea, the diversity of the people on the bench will inevitably alter the way people engage in issues like sentencing, because different perspectives will force the judicial dialogue to be broader and include different perspectives that previously would have been heard as irrelevant, beside the point or whatever else. When someone is a colleague and is telling you something you might not have taken very seriously, that will gradually change perceptions. Therefore, from sentencing all the way up to constitutional adjudication at the Supreme Court, diversity matters. I believe there are definitely questions in that regard.
Our committee had the opportunity to meet with one of the members of the Judiciary who worked with the sentencing council in England and Wales. I have to say I am a fan of the model in that there is a consultation process with the public. It does not narrow the sentence too tightly, as no two cases are the same, but it clearly gives the Judiciary the parameters under which the public expect the sentence to be applied.
With regard to the Supreme Court, there is now, thankfully, a Court of Appeal that limits the number of appeals that have been inevitably sent on to it. The Supreme Court can now be freed up to a certain extent to focus on one of its most important responsibilities, which is to interpret the Constitution. What are the witnesses' views around a legislative framework that could ensure, certainly at that level within the Supreme Court, that there is a range of diversity of experience, including academic experience? To be frank, there has been a criticism of the Supreme Court historically that it was too conservative in its compositions and, therefore, its interpretation of the Constitution would be a conservative interpretation. How do we get to the point at which it is reflective of society in the very fundamentally important role it performs?
Dr. David Kenny:
It is interesting because, when issues like diversity were considered in England and Wales, Lady Hale of the Supreme Court said it was now so widely accepted in ordinary conversation that personal background does play a role in deciding cases that it no longer needed to be controversial. I wonder if that is the case here. While it is not universally true, there is a perception that we have a Judiciary that believes there is a sort of set of legal skills one can use to decide cases in the best way, and this can be acquired by anyone. I would certainly be of the view that, in questions of constitutional law in particular, though in many other areas of law as well, how one reads the Constitution, what one thinks it is for and the purpose and values that it stands for, are things that matter in terms of how one interprets it and how one reads it. Those things can then have a net effect on the outcome of certain cases. There is a variety of both theoretical and academic literature in the United States talking about precisely that question, and many senior judges in the United States would quite freely acknowledge that in the most difficult cases, social vision, what one thinks society is trying to do, can play a role. This is something that has even been accepted broadly in England and Wales and it is something we should accept as being the case here. We should not deny it; we should accept it is always going to happen.
Dr. Jennifer Carroll MacNeill:
The point I was going to make is that ensuring diversity in the Supreme Court is a matter for the Government which makes the appointments. If the Deputy was the Minister for Justice and Equality and was concerned about this, he would be able to approach appointments to the Supreme Court in a way that ensured that a broader range of perspectives, in his view as an elected representative and a member of Government, were represented on the Supreme Court. That is the importance of the role of politics. If, for example, Supreme Court appointments were delegated in some way to a body dominated by the Judiciary, would the Judiciary take that same line, or would it take the view the Supreme Court was being too conservative and that it should have a broader range of perspectives? That is the importance of the role of the law-making majority in judicial selection.
I thank our guests for their presentations which are insightful and informative. It is clear that each of the three of them eats, sleeps and drinks this topic, probably on a daily basis. We are all the better for their input.
My view is that the system needs to be reformed. It is not entirely broken; it has worked with a degree of merit, but certainly what we and the delegates have been saying points to some of its deficiencies, particularly on diversity. Ultimately, judges should be appointed by the Government because there is then a layer of accountability and responsibility, to which Governments have to live up. How to go about selecting the best candidates is where we come into the debate. Whenever political appointments are made, there will always be criticism, for example, in the case of the chair of the independent policing board who was appointed recently. I do not think one could have found a more independent or suitably qualified person, yet there was criticism of her appointment. Taking her as a candidate, one would go far and wide to find somebody more suitably qualified for the job and independent, yet there was criticism. There will always be criticism, which we have to accept as a starting point.
It is. The commentators who criticise the judicial appointments process always qualify their comments by saying the current complement of judges are excluded, that they have acted well and been independent and that there is no evidence to suggest there is any untoward action or political bias. They are having it both ways. Equally, the recent comment by the Association of Judges of Ireland, that it was a success, in spite of, rather than because of, the appointments process, was equally hypocritical. It is criticising the people and the process that selected them, yet it is correlating with the statement that they are an absolute success. That does not make sense. That is its comment, but for me it does not add up.
Most of the questions I wanted to ask have been covered. The three delegates have detailed knowledge of the current complement of judges. I will not ask them to refer to individuals because it would not be appropriate to do so.
I assume the three delegates are ultimately not in favour of taking the appointments process from the Government. Am I correct in saying this? I will speak in percentages. Given that the delegates have studied and observed the process in detail, in their view how many of the current complement of judges did not merit appointment?
We are discussing the appointments process and I am not asking about individuals. There are recommendations for improvements to which we all subscribe and there is a community of people who make a career out of criticising the process. Has any of the delegates a view on the percentage in this regard, or perhaps they might prefer not to comment.
Before the delegates respond, there is a related issue which brings us back to what Deputy Finian McGrath said about training. If somebody was appointed to a position in, say, the medical profession and remained in that position for many years without receiving any training, we would be concerned. It has come to my notice recently that if a judge specialises in a particular area, say, family law, to the exclusion of others, he or she may find himself or herself constrained and not have full knowledge of what is happening beyond it in society generally. The idea of having a specialist judge has been criticised from that point of view. Perhaps the delegates might like to comment on the general issue. Dr. Jennifer Carroll MacNeill mentioned complaints against judges, an issue which possibly might be linked. We know that it is virtually impossible to impeach or remove a judge from office. If a judge is behaving in a strange way, one can go to a higher court to have changes made. We have all come across cases where judges reacted in strange ways in court in terms of their comments. What is in place to deal with this issue?
Dr. Laura Cahillane:
On the point about judicial discipline and removal, we have not been speaking about that issue today, but it is another that needs to be looked at. We have been promised legislation in this regard for many years and were promised it again last year. In 2011 the heads of a Bill on a judicial council were published. That Bill would deal with issues surrounding judicial discipline and removal, but so far as I am aware, there has been nothing further since. A comprehensive review was carried out by Mrs. Justice Susan Denham around the year 2000 which provided a good basis for legislation on the issue. These are issues which have been researched extensively, including sanctions around judicial conduct, issues around the removal of judges, as well as lesser sanctions which could be invoked. There is no lesser sanction for a higher judge, but there are various informal sanctions for District and Circuit Court judges. This is an issue at which, perhaps, the Oireachtas might look.
Dr. Jennifer Carroll MacNeill:
On the judicial council, the issue goes way back. The first Bill came out in 2005 and, as I understand it, sat with the Judiciary for some years. It was eventually negotiated to a point at a judges' conference and has now come back as heads of a Bill, but it is very slow.
On the technical specifications, it is a fact of life that legal practice has become very specialised. It is very rare to find somebody at the top of the Chancery lists and at the top in family law practice. It is matter of concern to judicial education that one will not have somebody at the top of every list - criminal, commercial and everything else.
To respond to the Deputy's question, the safest way for me to approach it is to take something from the research carried out. The difficulty was raised by all of the Government contributors. The universal concern was that, in exercising its Executive functions, the Government would end up appointing somebody totally unsuitable without being aware of it. A pre-1995 Minister for Justice said: "Our Attorney General used to say to me that you just never know what you are going to get. You have the most eminent solicitors and barristers and they turn out to be the most dreadful judges once they are appointed and then the more moderate lawyers can turn out to be simply brilliant judges." The point is that one does not know what one will get. Just because one is an excellent lawyer does not mean that one will be an excellent judge. Just as important as legal education and professional skills are temperament, character and the capacity to turn around judgments quickly so as not to leave litigants waiting for years and years for judgments. It is complex, but that is the safest way of addressing the Deputy's question. The fact that one does not know what one will get is another good reason we should look at how candidates are assessed by the Judicial Appointments Advisory Board. I have mentioned that in England and Wales there are various methods used. There is situational questioning, as well as moot courts where a judge is placed in a pretend court and has to give a judgment. They are assessed on that basis.
Dr. Jennifer Carroll MacNeill:
By way of example, some Irish judges go to what is called Judge School in Scotland. One of the issues that might face a male judge is how to take evidence from a lady wearing a full burqa in circumstances where he cannot see her face. Does he go into chambers and is the lady going to be comfortable with this? Can one take evidence and so on? These are human issues that have nothing to do with legal expertise but are a necessary part of the judging function. The Judicial Appointments Board for Scotland and its processes provide a very useful comparator because the legal profession in Scotland is about the same size and because the population of Scotland is generally the same and the two boards have been given very similar powers.
The Judicial Appointments Board for Scotland which is dominated by laypersons and chaired by a layperson takes a much more rigorous approach to the investigation of different candidates, including interviewing and role playing.
It was stated in the Dáil in February that the Chief Justice had written to the Minister for Justice and Equality indicating that the Judicial Appointments Advisory Board would begin to conduct interviews. This power has been in the Judicial Appointments Advisory Board legislation for 20 years. I do not know whether interviews were conducted in the more recent appointments. While one would expect that they were, given the number of appointments involved and the statement by the board in January that it would engage in interviews, I do not know if that was the case. It would be very important to ensure sitting judges were not involved in interviewing judicial aspirants, as any such involvement would present a very strong threat to judicial independence. Perhaps the joint committee might find out what is the position.
I agree with Dr. Carroll MacNeill's final point. For this reason, I hold the firm view that the final decision on appointments should rest with the Government. The Local Appointments Commission for appointments to local government takes a self-perpetuating approach that results in outsiders never being appointed to senior positions in local authorities. This is wrong as it perpetuates an insiders' circle.
I do not have anything to add, other than to thank our guests for their comments. The system needs to be reformed to give effect to the recommendations made by the delegates. To be fair, while the current system has been in need of improvement and updating since 1995, as I stated in a recent debate in the Dáil, the reasons for removing former Judge Perrin and former Judge Curtin would not have been picked up in any screening process. These were the only two judges to have been removed from the Bench. The system will never be perfect and, as Dr. Carroll MacNeill stated, there will be a degree of risk involved in every appointment.
I apologise for missing the presentations. Unfortunately, my absence was caused by the vagaries of Dublin traffic. I will make a couple of observations and ask a couple of questions.
My wife who is a barrister at law is a widow to politics, while I am a widower to the legal profession. We heard about the need for members of the legal profession to gain sufficient experience to give themselves an opportunity to be considered for a judicial appointment. This takes X number of years in one's chosen field of the law, whether one is a solicitor or a barrister. Unfortunately, from my observations on either side of the legal profession, career progression depends on who one knows. To pick up on Deputy Finian McGrath's point, it is very difficult for legal professionals to keep themselves in the Law Library and acquire the experience members of other professions automatically gain when they secure a job after qualification. The same applies to some extent at the level of the Law Society. If one is not connected, one cannot reach the point where one would be considered for a judicial appointment.
The Chairman made the point in reverse when he referred to not knowing people and, therefore, not being considered for a judicial appointment. It turns the argument on its head when members of the legal profession and the Judiciary and those who observe the Judiciary, including the three delegates, consistently argue that the political appointments system can and often will show a certain bias towards particular individuals. Dr. Carroll MacNeill referred to two individuals who had the same qualifications and one enjoyed certain political patronage. My view is that one should toss a coin. If the appointee happens to have political patronage, only time will tell whether he or she will be a more or less effective member of the Judiciary.
Dr. Cahillane's paper addresses diversity, an issue that has been well covered. My only observation in this regard is that the figures show that the lower courts have a higher percentage of female representation. Based on the time lag of between 15 and 20 years for appointment, to which Dr. Carroll MacNeill referred, I wonder if it is a good sign for the legal system and the Judiciary that the lower courts have slightly higher female representation. Is it correct to assume that the percentage of women in the upper courts will increase and improve as the years pass?
Dr. David Kenny:
While this offers great hope, there is also a problem with it. The significant number of women going to the Bar and the fact that our sister profession has more than a 50% female membership are positives. However, there are also significant negatives, at least in the way in which we currently appoint senior judges. To become a judge in the superior courts one would do well to be a senior counsel. Last year fewer than 30% of those called to the inner Bar were women of that cohort and the figure has never really risen above that level. While the position will change gradually, that is roughly the current position and there is no indication that it will change any time soon. The Circuit Court has come close to achieving gender parity, but there is no indication that the High Court, the Court of Appeal or the Supreme Court will reach that level if judges continue to be appointed in the current manner.
Dr. Jennifer Carroll MacNeill:
In respect of the evidence on judicial diversity, in particular, women in the different courts, the first senior appointment of a woman was the appointment of Mella Carroll to the High Court in 1981. Few women were appointed to senior positions for quite a while thereafter. To take the perspectives of the women judges of the High Court and the Supreme Court who I interviewed in 2004, when I asked them the reason they believed they had been appointed, they immediately replied that it was because they were women. Men gave a range of answers to this question, alluding, for example, to professional merit, proficiency in the Irish language and so forth. There was no ambiguity in the responses of the women, however, and this has been reflected in some of the comments made by members of the Government over time. For example, there was a comment about the great anxiety to appoint the first female judge or the view that if there were three men and one woman on a list, one should make an effort to appoint the woman and so forth.
I will make a point I had intended to make earlier on diversity. We spoke about diversity being limited to gender. One of the other quirks of the system, if one wishes to use that term, is that an effort is always made to represent minority religious interests, including the Church of Ireland and the Jewish community. There is always a consciousness of this among Government decision makers in appointments, particularly to the Supreme Court.
I do not wish to give the impression that I was suggesting the higher number of women in the lower courts would naturally trickle up to the higher courts. That was not my point. I was stating this was probably one of the many ways of addressing the issue.
On diversity, Dr. Carroll MacNeill's comments prompted me to think about the role of class in representation among the Judiciary, the Law Library and, albeit probably to a lesser extent, solicitors. As has been pointed out, fewer solicitors than barristers are appointed to the Bench.
There are fewer solicitors appointed to the bench than there are barristers. We have heard of one witness's experience on getting to the point of a career by starting as a solicitor and then becoming a barrister by getting the BL degree. Given the cost of that education, will there ever be a time when we have proper diversity on the bench in terms of background, social class and so forth. We do not have it in our legal representation in the halls of justice. I do not expect it will happen at the judicial appointments level either.
I have a question concerning ongoing education. It was mentioned that our judges are regularly sent to Scotland for additional training. When it comes to some of the decisions made by sitting judges - Deputy McGrath made reference to this and it is an observed knowledge I have - questions are often asked where there is a lack of understanding of a decision or its basis in, for example, sentencing guidelines. Is the requirement of ongoing education for judges - even breaking it down to knowledge of a specific subject area - something that can or should be subject to more guidance from Government? Should more authority be given to the Judicial Appointments Advisory Board to deal with this?
Dr. David Kenny:
We talked about what a judicial council could do. It would be considered a good organising body for a centralised system of judicial education. It could help people to specialise in particular court lists and so on but it could also help to develop a more general expertise. In the event a judge were to find him or herself dealing with a matter with which he or she is not particularly familiar or which he or she did not encounter during their time in practice, they would have some idea about it. As Dr. Carroll MacNeill stated, diversity training is something that can also be given. It is possible to learn about different groups in society and how one might deal with particular problems that arise on the bench. Nothing can be said against a well-resourced system of education run by a judicial council, for instance, if such were to come into being. That would seem like the appropriate body to know what tasks faced by the judiciary are, with some input from Government and the legislature as well.
Dr. Jennifer Carroll MacNeill:
It is necessary to separate the two. We are talking about the appointment of judges and county registrars to permanent positions. Country registrars perform an administrative and nearly quasi-judicial function in some respects. However, the concepts should be separated.
Is there any additional information that would be recommended to the committee on the issue of complaints, sanctions and removal of judges? Work has been carried out on this in the past. I read a report some years ago, following on from the resignation of Judge Curtin, on whether an alarm system should be set up to identify issues that might arise. This would not necessarily require the same circumstances as those concerning the former judge I mentioned.
Dr. Jennifer Carroll MacNeill:
On judicial discipline, the issues that tend to come up are very short of those that would be appropriate for impeachment. They concern court management, temperament and, on occasion, issues of judicial brutality. All of those are necessarily subjective. I often feel for the President of the District Court. She has 70 independent institutions throughout the country for whose conduct she is indirectly responsible, with no mechanism by which to encourage helpful, or censure unhelpful, behaviour. The judicial council is the solution to that. It would be a forum within which to raise complaints of a more minor nature. Those kinds of issues might be at the forefront of judges' minds when they sit on the bench if there was a culture of people raising complaints and those complaints being dealt with appropriately by such a council.
Dr. David Kenny:
There is a risk of letting judges appoint themselves. Dr. Carroll MacNeill has mentioned this several times. It is necessary to have people who are engaged with the process. There has been some research in terms of the lay membership of the board in Scotland. There is a separate disciplinary process which involves lay participation. It has been perceived as a good thing, but there has also been questions on how the lay members deal with disciplinary issues. There has been a problem with lay participants not understanding certain things about the day-to-day role of lawyers and so on. If there was a majority of lay members - or lay members only - on the committee, there may be a lack of expertise. My own view is that in trying to change a situation where - as currently - judges are in the majority of the Judicial Appointments Advisory Board and they are backed up by representatives of the two legal professions, it would be better to have more lay participation. We also need to bore further into the question of who the lay representatives would be.
Dr. Jennifer Carroll MacNeill:
I wish to make two points in respect of the lay members. The evidence from the research is that the lay members on the Judicial Appointments Advisory Board have a very minor role on the board, speak very little, and have very little influence in terms of the decision making. It is dominated by the judiciary. The practice is the members look at the applicants and the senior judges speak first. The lay members speak last. In contrast, in Scotland, where there is a lay chair and a majority of lay members, different practices are adopted which give the lay members a more meaningful role. For instance, when the applications are considered, there are no photographs or names. They are reviewed in the first instance blind, just on qualifications and experience. The lay members are allowed to speak first. This results in a totally different objective assessment. In Ireland, the name is known and a photograph is provided so that a person can be absolutely sure he or she knows who is being spoken about. If, for example, the Chief Justice were to open the conversation by saying she knows Jennifer and she is a wonderful so and so and the President of the High Court were to say something similar, by the time the lay members are reached, it is very difficult for them to have an influence.
Dr. Carroll MacNeill has made a very good point on lay members. I wonder if it is the selection of the lay members that is important. Does it require strong characters and individuals who will speak their minds or is it simply the custom and practice of the JAAB that perpetuates the current situation? What mechanism is available to this committee or the Government to change how that occurs?
Dr. Jennifer Carroll MacNeill:
There are ten members of the JAAB. Three of them are lay members appointed by the Minister for Justice. There are two answers to the question. A person would have to be of very strong character to routinely take on the judiciary and senior members of the legal profession, including the Attorney General, in respect of people who the lay member does not necessarily know and whose applications are in front of them. Those three people are therefore very important. The culture and processes of the JAAB are crucial also. It is a simple thing to ask the JAAB what its processes are in respect of this. How does it ensure lay participation? There are different experiences. One lay member told me that all these things are done very quickly and that it is no big deal. A President of the District Court told me of mixed experiences with lay members and recalled a person who fought like a tiger on the board and tried to make sure there was a promotion of women and so on.
I can see from the interaction and interest shown that this is a fascinating topic. The presentations were fascinating, interesting and provocative, as Deputy McGrath stated. We will need the wisdom of Solomon to go beyond here.