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Colum Kenny: Reform of the courts needs a careful hand

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Chief Justice Susan Denham

Chief Justice Susan Denham

Chief Justice Susan Denham

IN one way, it looks like pulling up the gang-plank once you have managed to climb on board. But the judges have a point when they call for a new system to guarantee judicial independence.

Some judges already appointed in Ireland owe their job at least partly to the fact that they shared the political outlook of parties in power at the time. But it is never too late to improve things.

Earlier reforms to improve the system of appointments have not entirely convinced everyone that political favouritism is not still a factor. Or, as Judge Frank Clarke of the Supreme Court put it earlier this month: "While the creation of the Judicial Appointments Advisory Board has introduced some degree of process into the system, the final decision still rests with the Government."

Some of the judges do not entirely trust Justice Minister Alan Shatter to do the job properly. For one thing, Mr Shatter's manner can seem abrasive. For another, he is a solicitor. The judges batting against him are barristers. There has long been an edge between what are sometimes known as the 'upper' (barrister) and 'lower' (solicitor) branches of the profession.

However, Chief Justice Susan Denham intervened last week in the row between judges and their critics and said that she "had had many constructive meetings with the Minister for Justice in relation to future developments and reforms in the courts". Oh, to have been a fly on the wall when Alan met Susan.

Some of the reforms that the judges want would help to strengthen the rule of law and protect the public. But their reforms are selective and do not go far enough.

One thing that judges have wanted for a long time is a new superior Court of Appeal to help ease serious delays. This requires a change in the Constitution and that in turn requires a referendum. Given the track record of governments fouling up referendum proposals in recent years, the judges are right to be worried about the lack of consultation on this.

But when Chief Justice Susan Denham last week compared the situation in Ireland with that in the US, the UK and Canada, she indirectly invited another comparison. It is the difference in scale.

Ireland is a small and now a relatively poor country and our legal system is overburdened with litigation and with inefficient practices. Reforms must not just add to the cost and scale of legal proceedings.

One initiative that the Government is taking to help speed things up in the current economic crisis is to allow Circuit Court County Registrars to become judges for the purposes of insolvency cases. While safeguards are to be put in place to ensure that the registrars are adequately qualified, it is a major departure from the tradition of appointing lawyers practising in the courts to decide serious cases.

Once, it was the case that only senior barristers would be appointed as senior judges. Built into that system was a certain peer pressure, ensuring that even if the Government wished to elevate one of its own supporters, persons being made judges risked being ridiculed or lacking authority if they accepted the job without being regarded by their colleagues as well qualified to do it.

The system later changed to allow practising solicitors to be made senior judges. Now the net is being cast wider and judges are concerned that it may be cast carelessly and without regard for the need to protect the independence of the judiciary from gradual erosion.

Some of their concerns seem misplaced. At present, a judge may only be removed from office by a vote of both Houses of the Oireachtas. Judges point out that if the Seanad is abolished, then it would need only a vote of the Dail to dump one of them.

But the Association of Judges in Ireland (perhaps not the judges' 'trade union' but certainly claiming to 'represent' in excess of 90 per cent of the serving judiciary) ought to make it very clear that it is not getting roped into the campaign to defend the Seanad. It should say simply that if the Seanad is abolished, then an alternative secondary safeguard of judges' independence needs to be simultaneously put in place.

And judges publicly moaning about money does look like special pleading. There are lots of hard-working public servants whose much lower income has been slashed. The judges have not been treated differently from them.

Those few judges who failed to take a voluntary reduction did their colleagues and the State a great disservice.

Even still, it is a pity that the State did not choose first simply to reduce the pay of judges in line with general pay cuts without a referendum, because that would have given the Supreme Court the chance to uphold such a cut as being outside the ambit of the constitutional provision protecting judges against attacks on their income.

That constitutional provision has now been removed but it was clearly intended to address quite different circumstances where a government set out to threaten or punish particular judges for their decisions.

When it comes to radical reforms of the legal system, the judges have not been to the fore publicly. Like much of Ireland's infrastructure, it is in need of an overhaul that is so radical, it is hard to see how it can happen this side of a major upheaval in society.

Certain kinds of cases, and not just those that suit the needs of Nama, the banks and other golden circles, might profitably be stripped out of the present system and handled more efficiently. This would include certain family cases, where too much of the professional time of judges, social workers, gardai and others is wasted and lawyers have to be paid from public funds for non-productive hanging about.

It is also too easy for certain kinds of chancers to waste court time chasing speculative actions, including some who are in prison and some who simply have so much money that the cost of losing an action means little in practice to them or their companies.

There are lawyers too who are allowed to waste time, as well as courts with limited hearing hours. The system needs reform and not just in ways mentioned by the judges.

But overall, the senior judges in general and the legal system have served this country very well since independence and at times have been a real defence against the excesses of government. They have also protected personal rights when politicians have funked doing so in respect to family planning and other matters.

There are real dangers that a government under pressure will reach for easy solutions in relation to legal problems.

One judge reportedly claimed last week that the independence of judges is being demolished "brick by brick". While that seems like a gross exaggeration, the fact that the claim was reportedly made by a High Court judge as respected as Mr Justice Peter Kelly should give the public cause for concern and give this Government reason to pause.

Irish Independent