Report in Sunday Business Post 14.04.2013
1. Mr. Justice Kelly was the guest speaker at a private dinner hosted by PWC for business leaders.
2. He made a wide ranging speech only about one third of which dealt with the concerns of the Association of Judges of Ireland on the topic of judicial independence. His comments have the full support of this Association.
3. There were no journalists present.
4. The report, whilst broadly accurate, contains a number of inaccuracies.
5. The judge pointed out that for almost 90 years of the State’s existence there had been no need for an association of judges given the mutual respect demonstrated by the executive and judicial branches of government, one for the other. All structures both formal and informal which existed for communication between those two branches of government have ceased.
6. At all stages judges accepted that they had to bear their fair share of salary cuts. However, as the constitutional guarantee concerning judicial remuneration was removed, they asked that an independent body be established to fix such remuneration so as to ensure judicial independence. This request was dismissed out of hand.
7. Subsequently, legislation was passed in respect of pension provisions for new judges without notice or consultation. These provisions extend by one third the length of time which superior court judges have to serve in order to obtain a pension which in any event is unlikely to amount to half final salary. This has major consequences for judicial recruitment in the future.
8. The Personal Insolvency Act was enacted without any notice or debate concerning the insolvency judges who are to be recruited in the first instance solely from the ranks of county registrars. Neither serving judges nor practicing lawyers will be eligible to be considered for such appointments until 2014. These judges, unlike all others, will be subject to ministerial direction concerning sittings.
9. Three further constitutional referenda are to take place within months. No wording concerning these has been forthcoming although they all have huge implications for the judiciary. The AJI accepts the need for a court of appeal but is concerned as to the form of amendment to the Constitution which may be proposed. The AJI has no information as to what the proposal is concerning specialist family courts. The abolition of the Senate renders the removal of judges subject only to a simple majority resolution in the Dáil. At present a resolution of both Houses is required.
10. All of these matters have implications for judicial independence. An independent judiciary and the perception of an independent judiciary is a vital element in a properly functioning constitutional democracy.