20 / 264
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
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