The Gazette 1978

employed throughout the country, and at the head of the service in Paris is the Minister for Justice, who is a politician changing with the rest of the Government. The permanent civil servants who administer the service are known as "Magistrats" and are employed for the most part in one of three ways. (1) Some 2,500 of them are Judges sitting in one or other of the tribunals of the first instance or appeal in various parts of France and in the supreme tribunal — the Court of Cassation — in Paris. To us in Ireland 2,500 may seem an enormously large figure, but it should be remembered that French Judges do not sit alone, but in groups of at least three. Furthermore, France has no single tribunal of first instance where the Judges spend at least part of their time on Circuit. Each Department in France has several Courts of first instance and for every three or four of these Departments there is a Court of Appeal. (2) Apart from Judges there are several Magistrates forming what is known as the "Parquet" whose duty it is to represent the State both in the prosecution of crimes and in any civil proceedings in which its interest may seem to be affected. Indeed no case is heard without the presence of a member of the "Parquet" though often of course, he takes no active part in the proceedings. (3) The third category of Magistrates comprises those who exercise general control over the whole system from the Ministry of Justice in Paris. These three categories form one service — "the Magistrature" and members of the service may and do change about from one to another of the branches at different periods in their careers. At all events promotion is the life-blood of the French Magistracy. One writer has declared that "the desire of promotion has probably been the weakest part of the French Judiciary; a lesser Judge may feel that unless he does something to attract the heads of his service he may be passed over and left in his present grade". Apart from this criticism, to adopt the French system of appointment of Judges would require a total reorganisation of the Irish legal system, which I feel sure the legal profession would oppose. Adoption of the French system would also solve the problem of patronage in the context of State Briefs for barristers. It is possible that European integration may involve the reorganisation of the legal system, but it is perhaps better to do as Asquith often advised, "We had better wait and see". Even more unacceptable is the system of appointment of State Judges in the U.S.A. In most States Judges are elected, or, if appointed to a vacancy, confirmed in their office by election. In a few States even non-lawyers can be elected Judges to lower courts. Especially disturbing about this system is the fact that election is for a period of years, thus jeopardising the independence of the Judiciary, who under our system have security of tenure of office. Further the system may lead to unsuitable Judges and also to populist justice. Such a system cannot be recommended for adoption in Ireland. Yet another alternative would be a committee made up of the various interests in the legal system. There already exists a precedent for such a committee. Under Section 2 of the Prosecution of Offences Act, 1974 a committee is set up to advise the Taoiseach on the appointment of a Director of Public Prosecutions. The committee consists of the Chief Justice, the Chairman of the Bar Council, the President of the Incorporated Law Society, the Secretary to the Government and the Senior Legal Assistant in the Office of the Attorney General. It

Master of the Rolls, one critic expressed surprise, for said he "Lindley has nothing to recommend him except merit". Another critic considered that Lord Halsbury usually promoted to the bench "persons of tried incompetence". Happily these days are past, but even to-day in this country, appointments are made not entirely on thebasis of merit. The first task of a Government is to identify party supporters at the Bar, and it is only from then, on that the question of merit arises. A recently published English Book on "The Politics of the Judiciary" mentions a survey of English Judges carried out in 1969. The author of the survey found 13% to be "Political". By "Political" was meant former M.P.'s or candidates. However, such a description is not complete by referring only to former T.D.'s and candidates, but should include Judges who were actively involved in a political party. Paul Bartholomew in his book on the Irish Judiciary gives the figure of 90%of the Judiciary having had political affiliation prior to appointment. At the present time most of the Law Library is politicised, it being unprofitable as well as unusual to sit on the fence in the barristers profession. It is clear, however, that whatever the political views of a Judge prior to his appointment to the bench, on taking up office our Judges have shown commendable independence of mind and action. Many Judges have delivered Judgments expressing opinions and interpretations which had they been expressed prior to appointment would likely have led to the Government exercising its patronage in another direction. Here, rather than he who pays the piper plays the tune, we have a case of Judges biting the hand which fed them. This being so we might well ask is there any need for a new system of appointment? There are three grounds for answering yes. Firstly, the danger to the independence of our Judiciary. While this may seem rather vague, it is clear that such a danger exists so long as the present system continues, however remote the danger might be at present. Secondly, there is the issue of the morality of appointing only members or supporters of your own party to the bench. Thirdly, a Judiciary which has clearly been appointed on the basis of political affiliation will not be respected by the community at large to the same extent as if some impartial system of appointment existed. It is this respect for the Judiciary and theCourtswhich allows the administration of justice to be effective. It is difficult for the general public to understand the difference in function between the public representative who yesterday looked after the various problems of his constituents, and who to-day is a judge administering justice, independent of the Government whose party he yesterday belonged to, and who appointed him to his office. While such appointments may well have been made on the basis of merit, it is equally important, if indeed not more important, that appointments to the Judiciary should be seen by the public to be made solely on the basis of merit. If this is not the case, public respect for the judiciary and the Courts may be diminished to the detriment of the legal system and the legal profession as a whole. I now propose to look at some options to the present system of appointment. Firstly, I should like to consider France (as it was in fact on the French model that the legal system of most European countries including our E.E.C. partners, was re-organised in the 19th century). In France the provision of justice is a government service like the provision of education or main roads. For its provision there are about 4,000 civil servants 20