The Irish judiciary in perspective

The Irish judiciary in perspective

T John O’Dowd*

DRAFT CONFERENCE PRESENTATION – PLEASE DO NOT QUOTE WITHOUT THE AUTHOR’S PERMISSION

Abstract

Two seemingly contrasting trends can be discerned in recent years in the way in which Irish judges explain the nature of the judicial role under the Constitution of Ireland by reference to practice elsewhere in Europe. On one hand, several judges have emphasised that the judicial process in the civil law tradition prevalent across most of the continent differs in significant respects from the common law’s approach to adjudication, particularly as this relates to the investigation, prosecution and trial of criminal offences. This contrast has frequently been offered as a reason for doubting whether bodies such as the European Court of Human Rights have a correct understanding of the specific characteristics of the common law. On the other hand, Irish judges (mainly in extra-curial contexts) rely unhesitatingly on international and specifically European statements (from bodies such as the Venice Commission) in relation to the appointment, terms of service, accountability and removal of members of the judiciary, despite the significant differences between the nature of the judiciary in different European countries. The paper will examine how far any apparent contradiction between these two tendencies can be resolved. The paper will assess what this tells us about Irish judges’ understanding of their role under the constitution, both in terms of explanations of how this putative contradiction might be resolved and the implications of a failure to do so, to the extent that such explanations are unpersuasive. By carrying out this analysis it is proposed that a better understanding will be obtained of how the role of judges under the Irish constitution has or has not been affected by Ireland’s engagement with Europe and the world beyond.

Introduction

I have written elsewhere on the recent developments in Ireland in relation to the status of the judiciary and more specifically how this has affected their own understanding of the nature of their occupation or profession and how their collective interests should best be articulated and safeguarded.[1] The context for this has been the constitutional amendment in relation to the reduction in their salaries and the application of measures such as the pensions levy to them, changes to the pension arrangements for judges (which they have in practice felt to be a greater threat to the integrity of the judiciary), the suggestion that a second-tier specialised judiciary might be created and, most recently the ongoing conflict over reforms to judicial appointments. In reality these different strands intertwine to a great extent. For example, changes to salaries (and most particularly pension entitlements) are widely seen as having created too much a of financial “penalty” for the best qualified (who are generally presumed to be the highest earning) barristers (and solicitors) to seek judicial appointment at a stage in their career that is most appropriate. This aligns with concerns that the likely new system of judicial appointments, with it seems will at a minimum involve job interviews and selection by a group of people in which lawyers and judges are a minority, will similarly deter the most able lawyers from applying for judicial office, even if we do not reach the reduction ad Ross if I may put it like that, of public hearings conducted by politicians in relation to the suitability of candidates for the bench. In making arguments in relation to the proper shape of the proposed new appointments system both the judiciary collectively and some of their allies in the political sphere have made it clear that they do not see values such as diversity as factors that should outweigh considerations of merit.[2] In the case of Michael McDowell, especially, the suggestion has been made that the drive for diversity as well as the stress on the role of lay assessors in appointment are both indicate a political agenda according to which a conscious effort would be made to reshape the judiciary according to ideological criteria of some kind, even if relatively anodyne ones (to begin with, at least.)[3] This specific concern takes its place among a wider range of anxieties, whose common factor is a sense that the judiciary have fallen victim to an anti-establishment, populist reflex that nothing in their collective performance has merited.

Two of the possible ironies that have struck me here are, firstly, that in seeking to conserve what they consider, I expect, a heritage handed down over the centuries the judges took the radical step of organising what is in many respects their own trade union (or certainly not the kind of staff association that Michael O’Leary would be comfortable with.) I have written extensively on this elsewhere[4] and I do not propose to go over most of that ground again, but I will have some further thoughts to develop on it later in this piece. The second irony, at least as I see it, is that many of the same judges (and their political fellow travellers who in other contexts would stress, with some alacrity, the distinction between judges in a common law system such as our own and judges in most of the rest of Europe have seen no contradiction in relying on statements about judicial independence, judicial appointment and judicial terms of service that are framed so as to be of global or European application and which, of their nature, must have had the position of judges in civil law systems mainly in view when they were being formulated. I say “many” of these judges advisedly, because there is of course a range of knowledge, experience and outlook among Irish judges as to what the differences between common law and civil law systems are and how great a sense of superiority (if indeed any at all) common lawyers should feel on that account.

It may be objected that there is no necessary (or even likely) contradiction between drawing necessary and obvious distinctions between the status and role of judges in different legal systems and at the same time insisting that there is a common set of core principles in relation to what marks them all out as being judges and furthers the independence, impartiality and integrity of that judicial office. At one level, there is no gainsaying that point. However, I have reasons (which I will set out later in the piece) for thinking there is nevertheless some element of inconsistency here.

I have got this far without making any attempt to connect my present argument with theme of the conference. I would probably be sufficient, of course, to point to the inescapable role of the judge in constitutional law and to note that, as Daly and Hickey have pointed out (and David Gwynn Morgan in a different manner), this is a particularly pronounced feature of Irish constitutional law, given the absence of any strong form of “political constitutionalism”.[5] However, I do think that there are two further points I should make in defence of the relevance of my contribution. Firstly, I draw attention to McMahon J’s judgement in Kemmy v Ireland.[6] If a judge can reach the conclusion that the State cannot be liable of the wrongs committed by a judge on the grounds that judges do not act as agents or parts of the State – but rather stand between the State and the citizens to do justice between, this must reflect a particularly deep-seated view of the nature of judicial office. Any such mindset must repay examination and discussion, particularly if it can lead to reasoning as questionable as that in Kemmy (conceding that the outcome of that case may well be defensible on other grounds.) Secondly, please indulge me in a thought experiment. Suppose some future Government were to persuade the Oireachtas to adopt a root-and-branch reform of the judiciary and to provide that judges should no longer be appointed from the ranks (or the higher echelons) of the legal profession, but that being a judge should in future be a career in its own right, entry to which was based on specialised education in universities or similar institutions, further professional training and probationary service and progression through which was based on promotion from grade to grade. Suppose further than instead of a few hundred judges the Government decided that we needed several thousands, taking over the functions of the DPP, the adjudicative work of the Labour Court, the bodies that determine asylum applications and the like. Would any of that be unconstitutional? I suggest not, except perhaps in some minor, specific respects. Nevertheless, it would represent a revolutionary development in our legal and constitutional system which would no doubt have all manner of repercussions for the content of constitutional law, other branches of law and political culture generally. If a certain culture of judging is in that sense such a fundamental part of our constitutional culture, without being guaranteed by constitutional law itself, it surely merits some study and reflection.

Inquisitorial and adversarial adjudication contrasted

I want to take as a starting point for this analysis, the distinction between the role of a judge in adversarial system contrasted with an inquisitorial one, as seen by the Irish judges themselves. Perhaps this is not the most significant distinction between common law systems and civil law ones, but I single it out as a point of access to what Irish judges understand the distinction to be.

The commonly expressed view of Irish judges (and others) is that the adversarial nature of legal proceedings in our common law system is one of the crucial distinctions between it and the systems of law in most of the remainder of Europe. This is a postulate most strongly advanced in relation to criminal procedure, but by no means confined to that context.

In some contexts, of course, the Irish courts have recognised that the role of a judge is an inquisitorial one—for example, in child care proceedings[7] or an inquiry under Article 40.[8] However, these are conceived of as being exceptions to the general principle.[9] Indeed, on occasions the courts have held that resort to the courts is misconceived because a non-judicial, inquisitorial process exists better suited to determine the matter at hand.[10]Furthermore, not all attempts to establish such exceptions are successful.[11] In addition, the principle of national judicial autonomy in European Union law has played a role in insulating Irish courts, to some extent at least from a potential impetus from that quarter for judges to have more pro-active, interventionist role in adjudication.

One area which does merit close attention in future is how far case management changes the role of the judge as it is further extended and deepened.

From time to time, the case law also discloses mutual misunderstandings between the two types of system about the breadth of the notion of a judicial authority and its precise role, particularly in the context of the European arrest warrant.[12] Another context in which such mutual incomprehension can come to the fore is, notoriously, the “dialogue” between national courts (especially the supreme courts in common law jurisdictions) and the European Court of Human Rights, where common law judges have frequently voiced some concern, at the very least, that their institutions and practices have been misunderstood or misrepresented by the judges in Strasbourg.

I am particularly struck, however, by this dictum of Keane CJ in Maguire v Ardagh—

Everyone who has participated as a lawyer or judge in such tribunals [of inquiry] knows that, with the best will in the world, those engaged at a professional level find it difficult to abandon an approach which is appropriate in adversarial litigation but unsatisfactory in what is essentially an inquisitorial procedure. The courts have also had ample experience of the significant delays which occur in the conduct of such inquiries while the judicial review process pursues its sometimes painfully slow and expensive course through the legal system.[13]

The adversarial/inquisitorial distinction seems for Irish judges to be bound up with a broad perception of what fundamentally constitutes a fair procedure for a court to follow (or even fairness in the substantive law).

Our procedure by which a person is tried and convicted is an adversarial system, not inquisitorial. It has the benefit of a jury of the people to determine the facts and a judge to make decisions on law. There is a danger that in an adversarial system there would be an element of gamesmanship. While no system of law is perfect, and legal processes need to be established, I believe that the legal system should aspire to truth and justice. As part of such aspiration I do not believe people should be punished if they are not guilty of a crime, if they did not have the mental element necessary to commit the crime.[14]

Here, the adversarial nature of the system seems to be elided with considerations of fairness of a type that have no particular connection with it. I suggest this is a useful illustration of the use of the adversarial method as a talisman of fairness, even when that is all it is.

As far as the status and tenure of the Irish judges themselves what turns on this general distinction between adversarial and inquisitorial systems and the judges understanding of what that implies about their fundamental role? The same kind of objection could be made as was acknowledged earlier might be advanced to the claim that there is an incongruity between Irish judges stressing what differentiates the common law system from the civil law one, while at the same time invoking principles of judicial independence common to both, and sometimes not only general principles but very specific conclusions. In the present context, it might be argued that the distinction between adversarial and inquisitorial process is connected only tangentially, if at all, to the kinds of issues about judicial remuneration, “job dilution” (if one may characterise concern about the appointment of specialist bankruptcy judges in that way)[15] and judicial appointments that have caused so much friction between the judiciary and the executive over the last decade.

However, I think that objection is fairly straightforward to dispose of as follows. An inquisitorial system overwhelmingly coincides with a system in which judges are systematically educated, trained and progress through their careers in quite different manner. That is not a coincidence, nor is that fact that there are many more judges in such a system than in a common law one and that they are often far more specialised in the kind of judicial work they do. Conversely, one can connect quite easily with the adversarial nature of a common law system the closeness of the ties between the legal profession and the bench, the expectation that many years of experience practising law are a necessary qualification to be a judge and the understanding that judges will be relatively few in number and enjoy both a high status and a high level of remuneration.

At this point, my audience might be tempted to say that I have demonstrated that the concerns voiced by Irish judges and their allies about changes in the professional status of the judiciary in fact align very well with their understanding of the difference between the common law system, as represented by the Irish case and civil law systems elsewhere in Europe and beyond. Indeed, they do but it is not my purpose to dispute that. My argument is that this very alignment makes it problematic for the Irish judiciary and its allies to place such specific reliance on principles that are framed to embrace the judiciary in both systems and in the different varieties of each, either at global or European level. An example of where some nuance is lost is, for example, provided by the Venice Commission recommendations that—

50. A substantial element or a majority of the members of the judicial council should beelected by the Judiciary itself. In order to provide for democratic legitimacy of the JudicialCouncil, other members should be elected by Parliament among persons with appropriate legalqualifications.

51. A balance needs to be struck between judicial independence and self-administration on the one side and the necessary accountability of the judiciary on the other side in order toavoid negative effects of corporatismthe judiciary. In this context, it is necessary toensure that disciplinary procedures against judges are carried out effectively and are notmarred by undue peer restraint.[16]

My point here is that anyone who has followed the recent debate about the reform of judicial appointments is unlikely to have come away with the impression that it is the recommendation of a body such as the Venice Commission, frequently invoked by the judges and their allies, that a judicial council (in this context being considered in relation to its role in judicial appointments and disciplinary action against judges) should be composed in such a manner as balances the need for judicial independence with the need for a safeguard against judicial corporatism. Without any particular formula being suggested, what the Commission advocates is balance in such a councils’ composition, bearing those two considerations equally in mind. I have pointed out elsewhere that it would be even more surprising for someone who had followed only the Irish debate to discover that the Venice Commission positively recommends that the chair of an independent council responsible for judicial appointments should be “an impartial person who is not close to party politics … [who] could be elected by the Council itself from among the non-judicial members of the council. Such a solution could bring about a balance between the necessary independence of the chair and the need to avoid possible corporatist tendencies within the council.”[17] In the same vein, international soft law is a good deal more nuanced in relation to when reductions in the remuneration of judges may be permissible than much of the commentary in 2011 suggested.[18]