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Sound the alarm

Sound the alarm

Alarm at possible exclusion of solicitors from JAC

The Law Society has expressed alarm about the possible exclusion of solicitors from the Judicial Appointments Commission. Mary Hallissey reports.

In an address to the Joint Oireachtas Committee on Justice on 18 May, Law Society President James Cahill and the director general, Mary Keane, expressed deep concern about the proposed exclusion of the profession from the JAC.

Sound the alarm

Sound the alarm

The president pointed out that the provision that a practising solicitor be a member had not been retained in the general scheme. “It is critically important that a representative from each branch of the profession is appointed to the commission,” President Cahill stressed.

“After 25 years of faithful service to the Judicial Appointments Advisory Board, we get sent outside the door on the proposed JAC?” Mary Keane said.

The Society retained substantial expertise, she continued, having served on the JAAB since its establishment.

The director general  noted that solicitors are subject-matter experts across a broad range of areas and, as the largest branch of the legal profession, are expert users of the courts system.

The profession operates at every level of seniority, dealing with every conceivable matter before the law, with first-hand experience of the impact of the courts system on the public.

“We don’t embrace the reduction in [JAC] numbers to nine if it means that the representatives of the practising professions are excluded,” Keane said.

She added that the bid to embrace diversity must include solicitor expertise in judicial appointments: “Diversity is being invited to the party, but inclusion is being asked to dance,” she commented.

“We’d like to see more solicitors being asked to dance!”

Of 90 judicial appointments made to the superior courts from 2002 (when solicitors became eligible for appointment) to 2016, only eight were solicitors.

Mary Keane added: “Diversity is meaningless without inclusion. More diversity and inclusion would better reflect society. You can have all the diversity you want in terms of eligibility, but if people aren’t actually appointed, then diversity becomes meaningless.

“We’d like diversity and inclusion, please! And we’d like to see more solicitors and more people of different backgrounds being ‘asked to dance’ – and [the Bench becoming] more reflective of society. Nowadays, one is no good without the other.”

President Cahill told the committee that the JAC’s credibility would be greatly enhanced by “a solid start”, adding that the Society was making its third submission on the matter, with a number of areas requiring further careful consideration during the drafting process.

The director general told the committee that it was not correct to suggest that there would be equal numbers of legal and lay members sitting on the JAC, since the JAC proposal was for equal numbers of judicial and lay members. 

"We found it [the exclusion of a solicitor representative] quite extraordinary – we don’t like it one bit,” she stated.

The thinking behind the exclusion was not explained to the Law Society, though a copy of the scheme was received, Keane said. “We were astonished.”

Dual function

In addition, the scheme of the bill provides that the Attorney General would participate in the JAC as a non-voting member.

In its submission, the Society affirmed its long-held view that it would not be appropriate that the AG should have a dual function in the judicial appointment process – both at the JAC and at Cabinet.

The Law Society has also previously cautioned against creating a commission that would be top-heavy in terms of senior members of the judiciary at the expense of judicial representatives of the courts of local and limited jurisdiction.

The scheme of the bill provides that:

  • A Judicial Council nominee will chair the JAC in the absence of the Chief Justice,
  • The chair of the Procedures Committee will be the Chief Justice, or a Judicial Council nominee determined by the Chief Justice,
  • When the JAC establishes any other committee to assist it or the Procedures Committee, the chair of any such committee will be the Chief Justice, or a Judicial Council nominee determined by the Chief Justice.

“These substantial responsibilities surely raise a question as to whether the Judicial Council nominees are more likely to be senior, long-standing members of the judiciary,” the president warned.

“If so, their experience of legal practice – as court users rather than as members of the judiciary – will be at a considerable remove from their present workday experience.”

Lay members

The Law Society welcomed the participation of lay members on the JAC in the manner proposed, Cahill continued. He added that lay members would mitigate the risk of self-replication by judicial members. The judiciary serves all of society, and that should be reflected in the process of judicial selection, he commented.

In the Society’s view, the Procedures Committee could be regarded as the ‘engine room’ of the judicial appointments process.

It would be critically important to ensure that sufficient expertise would be available to the committee to enable it to draft and deliver to the JAC comprehensive ‘statements of procedures’ and ‘statements of relevant skills and attributes’ in respect of each class of court business and every area of law.

The expanse of that task should not be underestimated, the Society stated.

Increasing the pool

On the question of determining the suitability of a proposed judicial candidate, the Law Society commented that the JAC should carefully reflect on the range of skills it wished to consider when addressing the ‘merit’ of an applicant for appointment.

Extensive European Commission work on judicial training and education in EU law must also be factored in.

In relation to the diversity particularly reflected in the solicitors’ branch of the legal profession, the Law Society proposed that a comparable approach to that adopted to enhance gender diversity in judicial appointments should be taken, in order to increase the number of solicitors being appointed to the bench.

Similarly, removing the four-year threshold for appointing appropriately qualified legal academics to the JAC would provide greater diversity in eligible candidates for judicial appointments, President Cahill told the Committee on Justice.

Mary Keane warned that the present requirement could be seen as a barrier to entry: “The broadest range of legal professionals should be able to access consideration for appointment; therefore, the four-year requirement should be removed,” she said.

“There is a particularly compelling argument for the appointment of academics to multi-judge courts, such as the Court of Appeal or the Supreme Court.”

Interviewing process

The Law Society also urged that the practice of submitting references from sitting or previous members of the judiciary should cease.

Senator Michael McDowell told the committee that he found the whole proposed interviewing process for sitting judges “problematic”, since sitting High Court judges were currently entitled to ‘act up’ and were eligible to serve on the Court of Appeal and the Supreme Court.

“What is the purpose of an interview? What questions are going to be put to them? Is it purely to find out is the person pleasant, or to find out how they have functioned as a judge?”

Questions about the independence of the judiciary are “lurking in the back of my mind”, the senator said, specifically in terms of the questions that lay members might put to them.

Read and print a PDF of this article here.