Judicial Appointments Review Committee Preliminary Submission to the Department of Justice and Equality’s Public Consultation on the Judicial Appointments Process 30th January 2014 Membership of the Committee Court Presidents The Hon. Mrs. Justice Susan Denham, Chief Justice of Ireland, Chairperson The Hon. Mr. Justice Nicholas J. Kearns, President of the High Court The Hon. Mr. Justice Raymond Groarke, President of the Circuit Court Her Honour Judge Rosemary Horgan, President of the District Court Committee members representing colleagues The Hon. Mr. Justice Donal O’Donnell, The Supreme Court The Hon. Mr. Justice Peter Kelly, The High Court and President of the Association of Judges of Ireland The Hon. Mr. Justice Paul Gilligan, The High Court and President of the European Network of Councils for the Judiciary Her Honour Judge Jacqueline Linnane, The Circuit Court Judge Cormac Dunne, The District Court Secretary to the Committee Mr. Richard McNamara, Solicitor, Executive Legal Officer to the Chief Justice 2 _________________________________ The Hon. Mrs. Justice Susan Denham, Chief Justice of Ireland Chairperson of Committee _________________________________ The Hon. Mr. Justice Nicholas J. Kearns, President of the High Court _________________________________ The Hon. Mr. Justice Donal O’Donnell, The Supreme Court _________________________________ The Hon. Mr. Justice Peter Kelly, The High Court President of the Association of Judges of Ireland _________________________________ The Hon. Mr. Justice Paul Gilligan, The High Court President of the European Network of Councils for the Judiciary _________________________________ The Hon. Mr. Justice Raymond Groarke, President of the Circuit Court _________________________________ Her Honour Judge Jacqueline Linnane, The Circuit Court _________________________________ Her Honour Judge Rosemary Horgan, President of the District Court _________________________________ Judge Cormac Dunne, Judge of the District Court 3 RECOMMENDATIONS OF THIS PRELIMINARY SUBMISSION 1. The present system of judicial appointments is unsatisfactory. The opportunity should now be taken to appoint a high level body to carry out research, receive submissions and within a fixed timescale develop comprehensive detailed proposals in a structured, principled and transparent way to make a radical improvement in the judicial appointments process in Ireland. In advance of any such comprehensive review there are a number of steps which can and should be taken immediately: 2. As a matter of principle, political allegiance should have no bearing on appointments to judicial office. Early acceptance of this principle is essential to a transformation of the appointments process. 3. The merit principle should be established in legislation. 4. A properly resourced judicial education system should be established without delay with a mandate to provide education to members of the judiciary on all matters bearing on the administration of justice. 5. The creation of a Judicial Council is a much needed reform to support the judiciary. A Judicial Council should be established forthwith, with responsibility for representation of the judiciary, an independent disciplinary process, judicial education, and the judicial involvement in the appointment process. However, judicial appointments need not be part of a Judicial Council but can be conducted by a committee as envisaged in the European Network of Councils for the Judiciary “Dublin Declaration” of May 2012. 6. The key to reforming the judicial appointments system rests on reform and development of the Judicial Appointments Advisory Board. 4 7. The process of judicial appointments should first and foremost enhance the principle of judicial independence, upon which the rule of law in our democracy is built. 8. The Committee believes that all judges should be capable of performing and be seen to perform the full functions of their colleagues of the same court jurisdiction. Variations and inconsistency lead to lack of clarity and confusion where such should be avoided. 9. The number of candidates for a single judicial post submitted by the Judicial Appointments Board for Governmental decision should be reduced to three. Where there are multiple vacancies in a Court, the number of candidates should be increased by no more than the number of additional vacancies. 10. Where it is proposed to fill a judicial position by promotion, including the positions of Chief Justice and Presidents of the other Courts, the candidates should also be subject to the advisory process of the Judicial Appointments Advisory Board. Applications from serving judges to advance between different courts should be processed through application to the Judicial Appointments Advisory Board. 11. The Judicial Appointments Advisory Board should be empowered to rank candidates and to designate any particular candidate as “outstanding”. 12. The Judicial Appointments Advisory Board should be specifically empowered to inform the Government when it considers that there are either no, or no sufficient candidates of sufficient quality. 13. The Judicial Appointments Advisory Board requires adequate financial resources to enable it to carry out its functions. A reformed appointments system will require adequate resources. It is 5 recommended that there be consultation with the Judiciary on this matter. 14. The current statutory minimum periods of practice as a barrister or solicitor for appointment to all Courts should be extended to fifteen years. 15. It is essential that high quality experienced candidates are attracted to the bench. Recent changes to pension provisions, both public and private, as they apply to entrants to the judiciary, may have little fiscal benefit to the State, yet create a wholly disproportionate disincentive to applicants for judicial posts, and deter high quality applicants from seeking appointment. It is desirable that such provisions should be immediately reviewed to assess the benefit if any to the State, and assessing their impact on the quality of candidates for appointment to the judiciary. 16. The current requirement for Judges of the District Court to apply for yearly renewal from age sixty five to age seventy should be abolished. Judges of all jurisdictions should have the same retirement age on judicial appointment. 6 TABLE OF CONTENTS Page Introduction to preliminary submission 8 Background to the public consultation 27 Historic overview of judicial appointments 31 The Judicial Appointments Advisory Board 33 The Courts and Court Officers Act 1995 34 Analysis of section 16 of the 1995 Act 39 Reform of the Judicial Appointments Advisory Board 41 Judicial Independence – individual and institutional 42 Avoiding the politicisation of judicial appointments 47 Promotion and career progression within the Judiciary 50 Specialist Judges of the Circuit Court 52 Changes should be made to the Judicial Appointments Advisory Board Process 54 Important principles to be considered in appointments 56 Appendix 1: Comparative analysis overview 68 Appendix 2: The ENCJ “Dublin Declaration 2012” 92 Appendix 3: Overview of appointments of Irish Judges to European Courts 94 7 Introduction to preliminary submission 17. Since the foundation of the State, the Courts have been an important and vital institution which has contributed significantly to the establishment and maintenance of the State as a stable modern democracy founded on the rule of law. The administration of justice in Ireland has, in broad terms, been one of the successes of the State. This is not to ignore individual personal failings, but such individual lapses also serve to highlight the fact that the history of the Irish judiciary has largely been one of diligent work, often with poor resources, carried out by persons who have demonstrated on a daily basis high qualities of integrity, fairness and learning, and in doing so have sought to administer justice in hundreds of thousands of cases “without fear or favour, affection or ill will towards” any litigant.1 18. The importance and difficulty of this task should not be underestimated. At an individual level every litigant is entitled to have confidence that his or her dispute whether large or small, popular or unpopular will receive a scrupulously fair hearing by an impartial judge at every level of the Courts system, and will be decided only on the evidence and submissions made almost always in public, and where reasons will be given for the decision which has been reached. Public confidence that justice will be administered fairly by persons of high quality and integrity, is important in maintaining the confidence of its citizens in the State, but is also important in encouraging external confidence so that persons who come to this country whether to visit, to work or to do business or make investments, can expect and have confidence in the impartial administration of justice according to law. 1 Article 34.5.1˚ of the Constitution provides that every person appointed a judge shall make and subscribe the following declaration: “In the presence of Almighty God, I________, do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws, May God direct and sustain me.” 8 19. Without in any way minimising difficulties or inadequacies within the system, or individual instances of failure, it is nevertheless worth recognising that by international standards Ireland has a deservedly high reputation in this regard. The European Union Justice Scoreboard for 2013 records the findings of the World Economic Forum that Ireland has the third highest perception of independence of the judiciary in the then 27 member states of the European Union, and is ranked fourth among 144 countries surveyed.2 Any reformed system of judicial appointment must at a minimum seek to maintain and ideally enhance those qualities of the Irish judicial system while addressing deficiencies in the appointment and selection process. 20. It is increasingly clear that the relative success of the administration of justice in Ireland has been achieved in spite of, rather than because of the appointment system. The system of judicial appointment in Ireland is by now demonstrably deficient, fails to meet international standards of best practice, and must be reformed if in more challenging times it is to achieve the objective of securing the selection of the very best candidates for appointment to the Irish judiciary and thus contributing to the administration of justice in a manner which will sustain and enhance public confidence. 21. There are a number of important and distinct features to the process of judicial appointment which distinguish it from the task of recruitment, both in the private and public sectors even for positions of significant responsibility. First, there are relatively few judges in Ireland – a total of 154. This is the lowest per capita in the EU and within the Council of Europe member states. Since an average judicial career may be between 2 As the EU Justice Scoreboard 2013 notes “The independence of the judiciary is also a growth enhancing factor. As the independence of the judiciary assures the predictability, certainty, fairness and stability of the legal system on which business is operated, a perceived lack of independence can deter investments. As a general rule, justice must not only be done, it must be seen to be done. The independence of the judiciary is also a requirement stemming from the right to an effective remedy enshrined in the Charter of Fundamental Rights of the EU”. See http://ec.europa.eu/justice/newsroom/news/130327_en.htm. 9 15 and 20 years, the turnover is slow and there are relatively few vacancies per annum. 22. The current glut of vacancies is unusual, and caused by factors which may deserve separate attention. Normally the task of judicial appointment is often the case of finding the individual best suited at that time for a single, individual post. Secondly, it is noteworthy that applications for appointments follow what might at least in the abstract appear a surprising pattern. The largest number of applications is for positions at the lower level of the judiciary, and the smallest number for appointment to the higher courts. For example, in 2012 there were 8 vacancies in the District Court which attracted 193 applicants. There were 7 vacancies in the Circuit Court which attracted 155 applicants, while there were two vacancies in the High Court which attracted 20 applicants.3 Again, this factor in itself is worthy of further research but it is an unmistakable feature. 23. Thus the task of devising a system for appointment to the judiciary is not a single uniform task. Ideally it involves devising a system which will allow the best candidates to be found from the numerous applications for the District and Circuit Courts, and on the other hand facilitate an approach akin almost to headhunting either to increase the number of highly qualified applicants for the High and Supreme Courts, or at least to ensure that the applicants contain candidates of the highest possible calibre and ability. 24. A third and related issue is the fact that a judicial career is embarked upon after a career in practice. That is a feature of the common law system, and has clearly contributed to the generally high respect in which the judiciary in those systems are held. It is a feature which enhances the independence, and competence, of the judiciary. But the skill set required for the judicial task, which ideally comprehends factors such as learning in the law, 3 See the 2012 Annual Report of the Judicial Appointments Board available at www.jaab.ie. 10