The Gazette 1994

GAZETTE

JULY 1994

L A W B R I E F

T h e ' H i gh P r i e s t s ' o f t h e L a w : T h e J u d g e s - T h e i r S e l e c t i on a n d C r i t e r i a f o r A p p o i n t m e n t by Dr Eamonn Hall, Solicitor and Wales about appointments.

been contained in a consultation paper, Developments in Judicial Appointments Procedures, issued by the Lord Chancellor, Lord Mackay of Clashfern, in May 1994. The Lord Chancellor has announced a programme in relation to judicial app- ointments in the UK which consists of • measures to improve arrangements for forecasting and planning the numbers and the expertise of the judges required at different levels; • the preparation of more specific descriptions of the work of the judicial posts to be filled and of the qualities required; • the progressive introduction of open advertisements for judicial vacancies below the High Court Bench; • the progressive introduction of specific competitions for judicial vacancies; • a review of application forms and a more structured basis for consultations with the judiciary and the profession; and • the exploration of the scope for involving suitable lay people in the selection process. Advertisements and Competitive Interviews The Lord Chancellor's overall aim is to make the judicial appointments process as open as possible. He made it clear that he is seeking to build on the strength of the present system. He affirmed his belief in the value of wide consultation with the judiciary and senior members of the Bar and the Council of the Law Society of England

The Lord Chancellor proposed that advertisements for judicial vacancies would be placed in the professional and national press for publication at the beginning of October 1994. Interviews for competitions are to be conducted by a three-member panel consisting of a member of the judiciary (a serving or a recently retired Circuit or District Judge), a lay person and one of the Lord Chancellor's senior officials. The same panel would consider all the candidates in each competition (i.e. all the candidates for each type of office on each circuit). Steps would be taken to ensure that a judicial member of the panel was not someone directly familiar with the work of the applicant. After the interviews, the comparative assessment of how each candidate met the criteria for each vacancy (with an overall order of merit) are to be forwarded to the Lord Chancellor for his consideration together with a full record of the views about each candidate from the judiciary and others on the annual circuit reviews and any comments from the presiding judges of the relevant circuits. The Lord Chancellor would then personally decide whom he recommends to the Queen for appointment to the Circuit Bench and whom he appointed himself to the District Bench. Consultations with the Judiciary and the Profession Under the current judicial appointments system in the United Kingdom, views and opinions about applicants and their work are collected in a systematic and ongoing basis from a wide spread of judges and senior practitioners who are in a position to assess them. These are 215

Introduction The judges in Ireland are the 'high priests' of the law; the 'priests' of the law are the lawyers. The 'high priests' are appointed (almost annointed) from the ranks of the 'priests'. The process of process of becoming a 'high priest', however, is shrouded in mystery. It should not be so in a democracy. The Constitution of Ireland is clear on the appointment of judges: Article 35.1 in conjunction with Article 13.9 provides that all judges are appointed by the President on the advice of the Government. Finlay P said in The State (Walshe) v Murphy [1981 ] IR 275 that the appointment of a judge is "the decision and act of the Executive". It is the absolute secrecy of the Executive - the Government of Ireland - about the appointment of judges which is un- acceptable in a modern democracy. The Irish Government should state publicly that persons appointed to judicial office will be candidates who appear to be best qualified regardless of gender, marital status, sexual orientation, political affiliation or religion. Advisory procedures should be put in place, so that all lawyers in Ireland know how to becoming a 'priest' is, at least, documented and transparent; the

apply for judicial office and what specific criteria they must fulfil.

Selection Criteria in the United Kingdom

Our nearest neighbour is the United Kingdom and we are bound together by

so many ties. Accordingly, it is appropriate to brief readers (and

potential judges) of the process in that jurisdiction of appointing judges and the criteria for their selection. These have