Alarm at proposal to shut solicitors out of JAC

In an opening address to the Joint Oireachtas Committee on Justice on Tuesday 18 May, Law Society representatives stated that the Judicial Appointments Commission Bill 2020 was a recognition of the need for reform of the judicial appointments process, which becomes more urgent with each passing year.

However, Law Society Director General Mary Keane expressed deep concern about the exclusion of the solicitor profession from the proposed Judicial Appointments Commission (JAC).

“After 25 years of faithful service to the JAAB, we get sent outside the door on the proposed JAC,” she said.

The Law Society retained substantial expertise, she said, having served on the Judicial Appointments Advisory Board (JAAB) since its establishment.

Diversity and inclusion

Solicitors are subject-matter experts across a broad range of areas of law, the director general added, 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, given their close interaction with court users.

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

The director general 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,” the director general 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 more reflective of society. Nowadays, one is no good without the other.”

Solid start

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

“Judicial appointments are a vital component in the proper administration of justice in the State,” he said.

He listed the five areas for consideration, as follows:

• Membership of the Commission,
• The Procedures Committee,
• Merit, gender and diversity,
• Legal academics, and
• Miscellaneous matters.

The president pointed out that the provision that a practising solicitor be a member of the JAC 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.

‘Quite extraordinary’

Mary Keane told the Committee on Justice 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 Law Society continued in 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 the Cabinet table.

The Law Society has 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 Law Society 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,” Mr Cahill said.

Lay members

The Law Society welcomed the participation of lay members on the JAC in the manner proposed, Mr 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 Law Society’s view, the Procedures Committee could be regarded as the ‘engine room’ of the judicial appointments process. As part of necessary “streamlining and transparency”, the proposed creation of a Procedures Committee has been welcomed by the Society.

It would be critically important to ensure that sufficient expertise would be available to the Procedures Committee, the Law Society said, 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.

Bar of Ireland views

Chair of the Bar Council Maura McNally reiterated the proposed non-inclusion of either Law Society or Bar Council leaders on the JAC: “There won’t be a barrister; there won’t be a solicitor,” she commented.

That was in contrast to the Legal Services Regulation Act 2015, which included both the Chair of the Bar Council and the President of the Law Society on the Advisory Committee for the granting of Patents of Precedents. They had been included because of their ability to provide a more complete picture of applicant attributes, the Bar Council stated in its submission.

Law lecturer Dr David Kenny of Trinity College Dublin said it would be unusual not to have some sort of representative of the professions on such a body.

“This sort of indirect representation, by way of a judicial member, is unusual, from the schemes I am aware of,” he said.

Judicial ideology warning

He commented, however, that the inclusion of members of eminent professional bodies might bring such a degree of “extra-process knowledge” to the table which could create “transparency problems”.

Detailed knowledge of applicants’ backgrounds should not turn the process into something else, he warned. Therefore, a member chosen by either of the representative bodies, other than its head, might be a good compromise, he suggested.

Interview questions addressed towards a judicial candidate in order to determine their merit and temperament could prove challenging in terms of the possibility of straying into judicial ideology, the legal academic warned.

This should not be central to the process, he said. Interview questions should only be asked that would be considered relevant to all candidates, Dr Kenny added.

Range of skills

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. 

Increasing the pool

Director General Mary Keane warned that the present requirement should 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,” she commented.

A mix of trial lawyers and academics would enrich the decision-making, and bring different perspectives.

The term ‘legal academic’ needed to be defined, perhaps in alignment with what had been set out in the jurisdiction of England and Wales, Keane added.

Application confidentiality

On the question of application confidentiality, the Law Society advised caution, urging that the practice of submitting references, from sitting or previous members of the judiciary, should cease.

Senator Michael McDowell questioned why the judiciary should choose which member of the solicitors’ profession should have a function, if the professions were to have faith in the entire system.

Interviewing process ‘problematical’

Senator McDowell added that he found the whole proposed interviewing process for sitting judges “problematical”, 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”, Senator McDowell said, specifically in terms of the questions that lay members might put to them.

The senator queried whether the Judicial Council was really a body corporate, if, as proposed, the membership and composition were to rotate.

Dr Kenny agreed that it was worth considering whether the ‘rotating’ member might have an effect on the group operating as a unit.

Senator McDowell added that, if there were several vacancies on the bench, the question then arose as to who the Judicial Council actually was, which was a systemic question.

“Head 9 is very strange in the way it approaches that,” he said.