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'If judges were given the power to select an Irish football team ... all hell would break loose'

Ex-High Court President Nicholas Kearns was speaking on RTE Radio One this morning.

Former President the High Court of Ireland Nicholas Kearns
Former President the High Court of Ireland Nicholas Kearns
Image: Sasko Lazarov/Photocall Ireland

FORMER PRESIDENT OF the High Court of Ireland Nicholas Kearns compared the proposed Judicial Appointments Commission Bill to a “group of judges selecting an Irish football team”.

Speaking on RTE Radio One’s Today with Sean O’Rourke this morning, Kearns criticised the requirements of the bill for the Judicial Appointments Commission to be made up of a non-judge majority led by a non-judge chairperson.

He said the proposed move to disallow the Chief Justice to be chairperson of the Commission is “frankly extremely offensive”.

If a group of judges were given the power to select an Irish football team, be it soccer or rugby, all hell would break loose. I don’t see why different considerations apply here.

The Judicial Appointments Commission Bill, backed by Transport Minister Shane Ross among others, will be debated in the Dáil this week.

Kearns was speaking this morning in light of the letter that was written by a number of senior judges to Taoiseach Leo Varadkar to express their concerns over the bill.

Chief Justice Susan Denham and the presidents of the Court of Appeal, the High Court, the Circuit Court and the District Court wrote a joint letter to Varadkar about “the serious implications for the administration of justice” that the Bill could have.

“It’s very, very difficult for judges to accept that in an area where they have expertise …to put them in a minority position and reduce their input to that of a minority,” Kearns said.

“The judges, the representatives of the Bar Council and Law Society, and the Attorney General who attend those meetings know the applicants who are applying. That’s something that lay persons, as qualified as they may be in other areas, simply can’t bring to the table.”

Kearns stated at the beginning of the interview that he was speaking in a personal capacity.

He went on to say that judges are the most qualified people to make judicial appointments:

The applicants for the bench have to be extremely well qualified in areas of competition law, European law, immigration law.
Anybody who is now applying for the bench has to supply a detailed CV showing the areas of their qualifications so that the Judicial Appointment Commission can appoint, to a particular vacancy, the most qualified person for that position.
The judges alone know where those gaps are, where the shortfalls are. They are in the best position to make an appropriate selection to fill a particular position.

Judges criticism

Yesterday, the Association of Judges in Ireland released a statement about the proposed legislative changes, describing them as “seriously flawed”.

It stated: “The rationale for a lay majority and a lay chairman has not been explained. It is hard to imagine any other walk of life in which the majority of those involved in an appointment process would be required to come from outside the ranks of those serving in the area to which the appointments are being made.”

The statement continued by saying the Office of Chief Justice is “diminished by the requirement that he or she should be an Ordinary Member of the Commission but should be statutorily precluded from being its Chairman”.

Máire Whelan 

How judges are appointed has been a major sticking point recently, with Fianna Fáil and other members of the opposition calling on Attorney General Máire Whelan to not accept her seat on the Court of Appeal after it emerged she never applied for the position.

Anyone interested in a judicial vacancy is supposed to apply to the Judicial Appointments Advisory Board (JAAB) – of which Whelan as AG is a member – which in turn provides a list of candidates to Cabinet. It’s believed no one with the required level of experience, 12 years, applied.

The Cabinet approved Whelan’s appointment two weeks ago. The government has insisted all the correct procedures were followed.

With reporting by Órla Ryan

Read: Judges say new appointments bill is ‘seriously flawed’

More: Fianna Fáil says there ‘will be consequences’ over judge’s appointment

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