The Rule of Law, Judicial Independence & Ireland

Peter KellyThe rule of law is an important concept in most western democracies, however precisely what it means is hotly debated. The former Law Lord, Lord Steyn, described it as follows:

For my part two core meanings of the rule of law are essential to an understanding of our public law…The rule of law is a term of political philosophy or institutional morality. It conveys the idea of government not under men but under laws….In its second sense…its general focus is to constrain the abuse of official power. It protects a citizen’s right to legal certainty in respect of interference with his liberties. It guarantees access to justice. It ensures procedural fairness over much of the range of administrative decision-making by officials.

Whereas Judith Shklar has suggested that the expression ‘rule of law’ is meaningless and

…may well have become  just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling class chatter

While debates over the exact meaning of the rule of law will continue  over the last number of days there have been heightened tensions between the Government and the judiciary as regards a number of key issues that raise questions as regards the rule of law in Ireland. These issues first came to light in an article on a speech by Mr Justice Kelly as reported in the Sunday Business Post  (Broadsheet has picture of this here).  At the core of Mr Justice Kelly’s remarks was the argument that judicial independence in Ireland is being demolished ‘brick by brick’, due to the implementation of measures arising from the judicial pay referendum and proposals on appointment for specialist personal insolvency judges under the Personal Insolvency Act 2012. A statement by the Association of Judges of Ireland (AJI), has re-emphasised these key points and also noted concerns with on forthcoming referenda that will impact on judges: abolition of the Seanad and impact on removal of judges and establishment of specialist family courts. No mention is made of the proposed Court of Appeal. It should be noted that the Chief Justice Susan Denham, has raised the need for such courts over the last number of months (see herehere and here). Minister Shatter’s response has been rightly cautiousin the hope of limiting what has now become somewhat of a constitutional crisis, however Mr Justice Adrian Hardiman’s response last night seems to have ensured that this crisis will continue. This morning, the Master of the High Court, stated that a “sense of judicial entitlement” is responsible for the current crisis. However, the President of the High Court has now issued a short statement, ‘clarifying’ the role of the Master of the High Court (i.e. not being a judicial officer holder) and expressing support for comments of the AJI, of which the President of the High Court is not a member.

A key question I have is why are judges raising these concerns now and why the issues they have chosen to raise concerns for are regarded as the most pressing issues? Some judges are painting a picture of themselves as victims of a particularly pernicious government agenda to destroy the rule of law.

A key theme that has emerged over the last number of days has been a lack of consultation on these changes between the government and judges. In terms of the judicial pay issue, this is hardly a fair assessment by the AJI given that the outcome of the judicial pay referendum made perfectly clear what would occur: cuts to pay would apply in the same way it applied to higher civil servants, judges were not been singled out for cuts over and above other sectors (and if they had been, this would have been a clear attack on judicial independence). The issue of the role of the Seanad and removal of judges from office is a fair point, but the purpose behind this reform (whether you agree with it or not) is hardly focused on making it easier for the Dáil to remove judges. Nevertheless, serious consideration has to be given to this issue so as to ensure strong protection against judicial removal in all but the most serious of circumstances.  The worry expressed by the AJI as regards court reforms merit consideration, but the call for such changes have come from the ranks of the judiciary.  The wording of these constitutional amendments has yet to be released, and hopefully will be issued in proposal form, so as to allow all sectors of society to argue for changes that may be identified to strengthen the proposals made.

If this crisis achieves anything, then hopefully it will turn the spotlight onto the judicial appointments process in and of itself. The current appointments system for some judges is set down by the Courts and Courts Officers Act 1995. The government still has the sole power to appoint the Chief Justice and the Presidents of the other courts. In addition, the government can decide themselves whether to ‘promote’ a judge to a higher court. For all other ‘ordinary’ judicial vacancies, the Judicial Appointments Advisory Board, recommends to Government who to appoint. Individuals may apply to be considered for appointment. However, the JAAB, simply submits a list (alphabetically and not based on merit) and it is then for the Government to advise (i.e. order) the President to appoint that/those individual(s) as judges. Given the constitutional limitations in place it would not currently be possible for the Oireachtas to legislate on a wholly independent appointments system, unless there was a constitutional amendment (or removal) of Article 35.1 of the Constitution. However, the Irish Council of Civil Liberties have made recommendations for strengthening the independence of judicial appointment process under the current constitutional set up in its 2007 report, Justice Matters.

Last week, Mr Justice Frank Clarke, made a significant contribution to the debate on issues of judicial appointments and judicial pay. Mr Justice Clarke made these comments in a public fora and his full speech was made available for all to see.  This must be contrasted to the forum where Mr Justice Kelly made his comments, a private address to a function of a private company. The legal and courts system  are no longer simply concerned with the commerce of the rich and the crimes of the poor. If the issues that Mr Justice Kelly raised were so fundamental to the rule of law, the question must be posed as to whether this was the appropriate forum to raise  these concerns.

Establishing independent mechanisms to decide on both appointment and pay have become increasingly clear due to the controversy in the last few days. For now, calm heads will hopefully prevail and the ratcheting up of this controversy is not in the interests of the judiciary, the Government, the public or for the protection of the rule of law itself.