Tuesday 16 January 2018

Body representing judges issues strong criticism of 'flawed' appointments bill

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Shane Phelan

Shane Phelan

The representative body for the judiciary has described proposals to reform how judges are appointed as “seriously flawed” and out of line with international standards.

In a strongly worded statement, the Association of Judges in Ireland (AJI) also said the plans will not serve to depoliticise the system of judicial appointments.

The statement today comes hot on the heels of criticism of the proposed Judicial Appointments Bill, which was included in the programme for government at the behest of Independent Alliance minister Shane Ross.

The bill will be debated in the Oireachtas shortly.

It includes key changes to how a commission advising the Government on appointments is to be composed.

The current Judicial Appointments Advisory Board has a majority of members who are either judges or come from a legal background. It is also chaired by the Chief Justice.

Under what is proposed, a new advisory commission will have a lay majority and a lay chairperson.

In its statement, the AJI said it was reluctant to ever comment publicly on issues of controversy.

But it decided to do so on this occasion “because of the depth of its concerns”.

“The judiciary is not opposed to the introduction of changes in the system of appointments to the bench,” the statement said.

“In January 2014, as part of the public consultation process on the subject of judicial appointments initiated by the then minister, Alan Shatter, the judiciary made a detailed submission which took as its starting point that the present system of judicial appointments was unsatisfactory and that there was a need for change.

“However, the proposals that will shortly go before the Oireachtas are seriously flawed. The proposals do not accord with international standards and will not serve to depoliticise the system of judicial appointments.”

The statement said the rationale for a lay majority and a lay chairman had not been explained.

“It is hard to imagine any other walk of life in which the majority of those involved in an appointment process would be required to come from outside the ranks of those serving in the area to which the appointments are being made,” it said.

“In addition, although the bill as initiated provides that three members of the commission will be judges, no member of either the District Court or the Circuit Court, which together deal with the overwhelming majority of cases to come before the courts, is to be a member of the commission.”

The statement went on to say the office of Chief Justice would be “diminished by the requirement that he or she should be an ordinary member of the commission but should be statutorily precluded from being its chairman”.

It said the current proposals “may damage the judiciary as an institution”.

“One effect of a flawed appointments system is that it may discourage suitable applicants from coming forward. If that happens, that is damaging to the judiciary as an institution and to the State as a whole,” the statement said

“Having regard to its reluctance to become involved in public controversy, other than issuing this statement, neither the AJI nor its officers will be commenting further.”

The move by the AJI is a significant show of unity by the bench. Until now, attacks on the proposals had been made by individual judges.

A considerable source of frustration for the judiciary has been the fact dialogue with ministers, including former Taoiseach Enda Kenny, has not led to any changes being made to the key elements of the bill.

A delegation led by Supreme Court judge Donal O’Donnell met Transport Minister Shane Ross and then Justice Minister Frances Fitzgerald in November last year.

Chief Justice Susan Denham subsequently met Mr Kenny and is understood to have followed up with a letter expressing her reservations.

Details of that meeting were revealed last month by the most senior judge in the Central Criminal Court, Mr Justice Patrick McCarthy, who said the proposed changes showed a “lack of respect” for the judiciary.

Pointedly he made the remarks at a Law Society event, just weeks after the society decided to back the changes, believing they will lead to more solicitors being appointed to the bench.

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