Tuesday 25 October 2016

Dearbhail McDonald: Judges fear loss of independence far more than cuts to pay, holidays

Published 17/01/2013 | 17:00

THERE is much about Ireland's legal traditions that confound the public. The black robes and horsehair periwigs – a fashion trend pioneered by King Louis VIII of France and brought to English shores by Charles II – are two examples.

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Another is the legal terms named after Christian feasts and the two-month court holiday during August and September.

The summer sojourn, known as the Long Vacation – around which our school terms are based – was borne out of the need for gentlemanly lawyers and judges in the past to quit the courts to tend to their harvest.

Now that privilege is under threat.

On Monday evening, an special meeting of the country's High Court judges was convened to discuss the contents of a letter sent to the judiciary by Justice Minister Alan Shatter.

The letter had been circulated to senior members of the judiciary by the Chief Justice Mrs Justice Susan Denham.

The impeccable timing of the letter – the senior bench received the correspondence on the same day opening salvos were fired between trade unions and the Government over Croke Park II – was not lost on the judges, many of whom are feeling under siege.

In and of itself, Mr Shatter's invitation to the judiciary to look at "adjustments" to the current legal terms and vacation periods as well as court sitting times, is entirely cordial.

The invitation is also entirely appropriate at a time when the State is trying to shave more than €1bn off the public service pay bill by 2015.

That the courts system needs reform and to improve efficiencies is beyond dispute.

This much has been acknowledged by many judges including Judge Denham.

For years, Judge Denham has campaigned for the establishment of a permanent Civil Court of Appeal to reduce court backlogs including a wait of up to four years for Supreme Court cases to be heard.

Judge Denham has also called for the Oireachtas to be given powers to create specialist courts such as dedicated family law courts to reduce waiting times and improve conditions for commerce.

Such reforms require a constitutional referendum.

What lies beneath the correspondence, however, is an increasingly strained relationship between the executive and the judiciary in general and judges and Mr Shatter in particular.

Under the Constitution and the separation of powers, judges are independent in the exercise of their judicial functions.

The allocation of the business of the courts, scheduling of court cases and the management of court lists are, for example, the exclusive preserve of the judiciary and not Mr Shatter.

But many judges believe that their cherished independence is under threat. That fear is fuelled by a series of events including the failed Oireachtas Inquiries Referendum and the eminently more successful referendum to overturn the long-standing constitutional ban on reducing judges' pay while in office.

The Oireachtas Inquiries poll, which planned to grant powers to politicians to hold inquiries – but which left doubt as to whether those being inquired into could access the courts – led to concerns that politicians were trying to take power back from the judiciary.

Such was the concern that eight former Attorneys General penned an open letter, an unparalleled move that swayed the vote to the detriment of the Government.

The referendum on judges' pay was, in part, fuelled by a spectacular own goal scored by the judiciary when judges failed as a group to sign up to a voluntary pay cut in lieu of the mandatory pension levy imposed on all public servants in 2009.

The perceived assault on judges' pensions (judges could not retire early and were facing "punitive" taxes on their fast-track pensions and lump sums) was the last straw.

Mr Shatter's latest invitation, for judges to work extra hours for less, is being perceived by many as further evidence of a mission creep on judges' independence and remuneration, especially if they are treated in the same manner as civil servants rather than a separate branch of government.

The Wisdom of Solomon may be required to restore this most delicate relationship.

Irish Independent

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