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Edmund Honohan: Dialogue, not petulance, needed in legal row

SO, who's right? Is the failure of the minister to consult with the judiciary compromising independence and the separation of powers? Does the judiciary have a say in the make-up of new court structures? Or in the salary and pension packages proposed for new judges?

In his authoritative book on Constitutional Law, Professor John M Kelly wrote that: "The independence of the courts and their immunity from control by the Oireachtas is not absolute. The position of the judges is not quite as impregnable as a casual reading of the relevant sections of Art. 35 might suggest."

He went on: "They are unprotected against legislation which would put the organisation of court business into executive hands."

But: "What does appear to be inviolable is the actual judicial process itself while in operation; once begun, it must be allowed to run its course without interference."

So the question is: In demanding that it be consulted in regard to legislative proposals now in the pipeline, is the judiciary asking to cross the separation of powers line into legislation? Would crossing that line, even privately, pose an unacceptable risk to the perception of independence?

Ideas for new legislation abound. Judges are, of course, free to formulate such ideas, but as they left politics behind on taking office, they are not free to lobby or campaign. As a statutory office holder, I am happily free to propose, applaud or criticise.

I am on record as being critical of the legal costs provisions in the minister's Legal Services Regulation Bill (they don't go far enough) and two years ago referred concerns about the human rights of lay litigants to the Human Rights Commission. And more of the same. It's all there in the public domain.

Judicial activism has historically been viewed with suspicion even in the context of judges judging the cases before them. Judges may, on occasion, comment on perceived problems with the law as it stands, but legislators must work out the solutions for themselves. Often the solutions are irritatingly wanting.

But this is not only about proposals for legal reforms. There is some validity to the judges' point that where they are personally affected, their concerns should be addressed where appropriate.

The root of this controversy may well lie in a perception that professional courtesies are short on the ground, but the expectation that formal (and informal?) channels will be open has morphed into an asserted entitlement to be consulted.

It is somewhat petulant of the judges to assert interference with their independence just because the minister won't pick up the phone. They probably shouldn't be telephoning him at all!

It won't help at all for me to point out that when the minister wants an answer from the judges about a Judicial Conduct Tribunal, he keeps getting the engaged tone.

If there is business to be done; if there should be a dialogue, Judge Frank Clarke's considered proposal last week for the establishment of a wholly independent Judicial Council could be the way forward.

Judge Clarke's proposal would enjoy broad support if the judiciary would be more comfortable dealing with the executive via such a council, and if their independence was thereby seen to be placed beyond doubt, so much the better.

But clearly the way forward does not lie in judges asserting that they are being pressured into feeling somewhat compromised when the minister does not listen to them. The judicial oath of office to judge without fear or favour is way more robust than that.

Edmund Honohan is Master of the High Court

Irish Independent