Route to bench must be clearly illuminated

The Law Society has said that it is committed to supporting policy reforms that reinforce and enhance the Irish judiciary as a core pillar of democratic governance.

It has expressed concern, however, about the relatively low number of solicitors being appointed to the superior courts.

The Law Society has made a submission to the Judicial Planning Working Group on its terms of reference, which include considering the number and type of judges required for the efficient administration of justice.

The working group will also weigh up the impact of population growth on judicial resources, as well as potential case-management and working-practice efficiencies.

Impact

The group will also evaluate the estimated impact of the pandemic on court caseloads in the short, medium, and long term, and strategies for reducing waiting times to significantly improve on pre-COVID levels.

The experience of other jurisdictions will be examined, as well as recommendations of various reviews, with input on developing judicial skills in areas such as:

• White-collar crime,
• Judicial workload,
• Barriers to entry,
• Efficiency gains,
• Speed of access to justice. 

“Like other stakeholders, we share the objective of ensuring a strong, independent judiciary, and believe that a transparent process of appointment is a crucial safeguard in delivering that foundational tenet of the effective administration of justice in Ireland,” the Law Society submission states.

Attributes

The Society welcomes the General Scheme of the Judicial Appointments Commission Bill, which proposes setting out selection procedures, as well as required skills and attributes, for members of the judiciary.

It believes that this requirement for selection criteria and procedures – including provision for interviews and other selection tests – will assist in streamlining and aiding transparency in the system.

The requirement to monitor and review international developments in selection and appointment to judicial office is also welcomed.

The basic criteria for judicial selection should be as broad as possible, to allow for the widest range of candidates, the Society believes.

However, there is wide discretion to create different statements for a broad range of judicial candidates.

Judicial candidates must be selected on merit, the Society believes, referencing various merit standards employed by international commissions of judicial selection.

Technical merit

“Merit is not just depth of legal knowledge and, while technical merit is essential, it must be accompanied by a host of the other skills which are necessary to enable a judge to manage a court fairly, efficiently and with appropriate consideration for all court users,” the statement continues.

These characteristics include:

• Professionalism,
• Communication,
• Integrity,
• Decision-making,
• Efficiency,
• Leadership,
• Management.

The solicitors’ profession is proud of the diversity of its members and believes that a judiciary should reflect the society it serves.

However, although solicitors have been eligible for appointment to the superior courts since 2002, only 90 appointments had been made up to 2016.

“It is a matter of significant concern that, even though solicitors comprise approximately 80% of practising lawyers in the jurisdiction, the number of superior court appointments from within their ranks remains a small fraction of that,” the submission points out.

Broad experience

“Solicitors have broad experience in life and law; as legal practitioners and advisers, as employers, as operators of large and small businesses, and as the branch of the legal profession that deals directly with the public, often at the most difficult times in people’s lives.

“In addition to technical legal skills, solicitors bring lived experience and humanity to the courts, and we believe that the public interest would be better served if more solicitors were appointed to the senior ranks of the judiciary,” the statement continues

It urges increased solicitor appointments to the bench, in the interests of diversity, since the profession represents the broadest and most societally and geographically diverse portion of the legal profession.

The Law Society Diploma in Judicial Skills and Decision-Making has run four times, for 93 students, since its launch in 2016, and prepares participants for a variety of adjudicatory, tribunal and board roles.

The Society also expresses its concern that, when inviting applications for recommendation for the grant of patents of precedence in January of this year, justice minister Helen McEntee was quoted as having stated: “Senior counsel are also, of course, our future judicial candidates”.

As solicitors had only just begun to be appointed as senior counsel last year, the Society was concerned at the suggestion that this would operate as a stepping-stone to judicial selection and appointment.

Applications for recommendation for a grant of patents of precedence are examined by an Advisory Committee chaired by the Chief Justice Frank Clarke.

The focus of the committee is on the skill set required of a senior counsel, not a member of the judiciary.

“As such, the idea that success in a completely separate process would somehow be viewed as a pre-requisite to judicial selection is, in our view, inappropriate and contrary to the objective of achieving greater diversity in judicial appointments,” the submission points out.

Reasoned

It concludes that any change to qualifications for appointment to the bench must be clearly reasoned, and demonstrated to be in the public interest.

“There is no room for experimentation in the system, as the importance to individual citizens of each decision, whether in the courts of local and limited jurisdiction, or in the higher courts, precludes that.

“Because of the system of precedents, significant knowledge of case law, practice and procedure, as gained by legal professionals in the course of their education and post-qualification training, is essential for the credibility of the administration of justice in Ireland," it concludes.