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GAZETTE
L A W B R I E F
JULY 1994
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
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
becoming a 'priest' is, at least,
documented and transparent; the
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
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
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
and Wales about appointments.
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
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