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STRIKING BALANCE: New Taoiseach Leo Varadkar allowed himself to be dragged into a row about judicial appointments.
STRIKING BALANCE: New Taoiseach Leo Varadkar allowed himself to be dragged into a row about judicial appointments.
SOCIAL BOOKMARKS

Legal Bill ignores the one area in need of reform: Family law

IT is over a month now since Leo Varadker was chosen to be the leader of Fine Gael and well nigh three weeks since he became Taoiseach.

Given that there often is a honeymoon period for new incumbents of high governmental office, that doesn’t seem to apply to Leo. He was right in to the thick of the fight before the ink of Michael D’s signature on his warrant was dry.

I wouldn’t mind if “the fight” was of any great importance but the fact of the matter is, it wasn’t. It started with the appointment of Attorney General, Máire Whelan, to The Court of Appeal and has continued in the same vein since with trying to appease ’the man with a mission’, Shane Ross and the Judicial Appointments Bill.

I only met Ms. Whelan once, for a brief period. There were a couple of other judges present and there was some banter between us but Ms. Whelan didn’t participate and seemed to remain somewhat aloof. I say that just to make it clear that I don’t hold any particular brief for the lady in question.

For very many years, it has been a practice that an outgoing Attorney General is considered for appointment to the bench of one of the upper courts. This had developed over the years but is of unknown origin.

Since Harry Whelehan’s botched appointment to the presidency of the High Court in 1994, this practice appeared to have gone into abeyance but has arisen again in the last few weeks. I have no problem with it.

The Attorney General is generally regarded as the highest-ranking law officer in the land and often referred to as the “leader of the Irish Bar”.

Since 1922, there have been 30 Attorneys General, some of whom have been appointed for more than one term. Under Article 30 of our constitution, the principal role of the Attorney General is as the adviser of the Government in matters of law and legal opinion and he/she attends cabinet meetings in that capacity.

The Attorney General has always been a barrister rather than a solicitor, although this is not a requirement for the post. In cases where a barrister nominated by the Taoiseach to be the Attorney General was not a Senior Counsel at the time, the government of the day has made him one first, as occurred in the cases of John Rogers BL and John M. Kelly BL.

The Attorney General has a wide variety of functions as follows:

(1) As legal adviser to the Government, the Attorney General attends Government meetings. The Attorney General advises the Government on all the constitutional and legal issues which arise in connection with or at Government meetings.

(2) The Attorney General is responsible for the drafting of legislation to meet the policy requirements of Ministers. As well as ensuring the provision of draft legislation, he/she also advises in relation to compliance of proposed legislation with the provisions of the Constitution, the European Convention on Human Rights and European Union Law.

(3) The Attorney General represents the State in all legal proceedings involving the State.

(4) The Attorney General is the representative of the public in all legal proceedings for the enforcement of law and the assertion or protection of public rights.

(5) The Attorney General defends the constitutionality of Bills referred to the Supreme Court by the President under Article 26 of the Constitution.

(6) The Attorney General advises in relation to escheated estates. That is, dealing with the property of a person who died without heirs.

(7) The Attorney General has functions in respect of the Law Reform Commission under the Law Reform Commission Act 1975.

(8) The Attorney General has functions in respect of the legislative programme and is a member of the Government Legislation Committee.

Surely with the level and width of expertise all those functions involve, a retiring A.G. should be well able to carry out the work of a judge of the higher courts.

He/she is usually chosen from the ranks of the busiest and most experienced senior counsel. I have been unable to ascertain what salary the A.G. receives but I am quite sure it is much less than a top senior counsel is likely to earn in the ordinary course of events.

Given that the term of office of the A.G. is completely at the whim of the Taoiseach, I think it would be too much to ask a busy lawyer to give up maybe half one’s likely earnings without some expectation that when the office is passed on to a successor, some certainty of income would be provided. The other option may well be to appoint an A.G. from outside the ranks of the very best lawyers. That, it seems to me, would be a retrograde step.

The whole affair does appear to have been handled awkwardly by the government and they must take the flak for that. Spending hours debating it in the Dáil does, however, seem a waste of time when there is so much more important business to be done before our parliament breaks up for the summer vacation.

Micheál Martin has come in for some criticism for appearing to cast doubts on the efficacy of the appointee but in fairness to him it was not he who introduced the names of the other (retired) judges to the debate and surely he is entitled to respond when comparisons were made by the Taoiseach.

At the end of the day, however, the appointment was made and Shane Ross can huff and puff all he wants but he was present and, from all accounts, he did not object.

What I find troubling, however, is the suspicion raised by Mr Martin in the Dáil that this self-regarded paragon of propriety stayed silent on the issue in return for the reopening of a certain Garda Station in his locality. Minister Ross has denied any link.

On the associated issue of the Judicial Appointments Bill, I suppose if there is a better system to choose who sits on the bench then by all means put it in place. The proposals going through the Oireachtas at the moment, however, are deeply flawed and in particular overloading the commission with lay people seems to be a particularly bad move.

The appointing of a lay member to chair the commission would also appear to be unwise. By all means have lay people (by that I mean non- lawyers) on the commission and interview panels, but such people should have some other form of qualification that could contribute positively to the process. I see no reason, for example, for not having a psychologist or two on the commission. After all, aspirants to be judges must have academic qualifications and experience, but emotional balance and downright common sense should be regarded as essential.

Whatever happened too to the old adage that ‘there are horses for courses’? There is such a wide difference between the different types of case that come before a court — even the lowly District Court — that one needs the wisdom of Solomon and the patience of Job to keep up with what is going on. In particular I am thinking about family law cases that come before the courts.

To do family law as a judge, and do it effectively, requires a great understanding of the human psyche. It also requires a huge dollop of patience and understanding. Family law judges, in my opinion, must, if they are to be effective, develop a huge level of expertise. This can be provided with extra training, if it hasn’t already been provided by experience of that kind of work.

Some years ago, there was a proposal to create a separate “Family Law Court”, at the level of the Circuit Court, but separate from it. This court would take all of the District and Circuit Courts family law jurisdiction, as well as most of the High Court jurisdiction in that area of law. The proposal was, however, sidelined and never happened. That was a huge mistake and it seems to me the effort now being put into the Judicial Appointments Bill would be better used to get a specialised Family Law Court established.

At the end of the day, it seems a pointless exercise to go through the process of investigating the suitability of judges when the commission must send three names to the Government for each vacancy. It’s up to the politicians to choose the nominee and, in accordance with the constitution, if they want they can ignore the commission’s list entirely. If we are worried about political favouritism it seems highly unlikely that there won’t be ‘one of their own’ in the list.

There is no doubt but many of us appointed to be judges did have political friends to help our application. That was the way it was done. For some reason it seemed to work and I never heard of a judge being approached by a politician in an effort to influence him/her. In my 21 years on the bench it never happened to me, though an effort was once made to influence me by somebody I used to consider a friend. (Notice I used the word “used”.)

Contact Michael at [email protected]