The Association of Judges (AJI) condemns in the strongest possible terms the comments made on social media and in Dail Eireann by Ms Brid Smith TD, of the People before Profit party, concerning High Court judge, Mr Justice Garrett Simons. Ms Smith’s comments were made following the delivery by the judge of his judgment on 23 June 2020 in a case brought against the Labour Court, the Minister for Business, Enterprise and Innovation and the Attorney General. In a detailed and carefully reasoned judgment, the Judge found against those parties and held that the provision for sectoral employment orders under chapter 3 of the Industrial Relations (Amendment) Act 2015 is invalid and that the particular order at issue in the case, concerning the electrical contracting sector, is also invalid and must fall with the Act.

It is, of course, the absolute entitlement of every person to disagree with any judgment given by any court and to do so in trenchant terms and it is an essential part of any functioning democracy that such criticism can be made. It is equally the right of any party disappointed with the outcome of a case to appeal to a higher court.  However, the comments made by Ms Smith go far beyond what is acceptable in a properly functioning democracy founded on the rule of law.

On Facebook and on Twitter, Ms Smith and her party made a number of outrageous and unwarranted comments in relation to the Judge. These go far beyond the boundaries of legitimate criticism and amount to an extraordinary and wholly unjustified attack on the integrity and independence of the Judge. The suggestion that the Judge’s judgment was ideologically-motivated is baseless and dangerous. That such comments should be made by a member of Dail Eireann is particularly concerning.

We are fortunate in this country that our Constitution guarantees the independence of our judiciary which is a fundamental cornerstone of a constitutional democracy based on the rule of law. It also provides for the separation of powers. As with all judges, Mr Justice Simons, on taking up office as a judge, made the declaration required by the Constitution of that he would carry out his functions as a judge “without fear or favour, affection or ill will” towards any person and that he would uphold the Constitution and the laws of the State. In deciding the case before him on the basis of the facts, legal submissions and previous case law, including a number of relevant decisions of the Supreme Court by which he was bound , the Judge acted entirely in accordance with that declaration. In the event, he decided the case against the State parties, exemplifying the independence of the judiciary where judges do not hesitate to decide cases adverse to the State where, in their view, that is the legally correct outcome. The State is free to appeal the Judge’s decision, if it so decides.

In many jurisdictions, the judiciary do not enjoy that degree of independence. In others, the exercise of such independence often comes at a significant price.  Judges who make unpopular decisions are subject to rhetorical attack that aims to de-legitimise the judicial process and undermine public confidence in the independence of the judiciary, frequently by falsely ascribing political motivations to judges.   Such rhetoric endangers the rule of law. Fortunately, that has never been a feature of political discourse in this State and it would be very regrettable if it were to be considered acceptable now.

In these circumstances, it is unfortunate that Ms Smith was given the opportunity of withdrawing her comments or expressing regret for them but has apparently not chosen to do so.

The AJI welcomes the comments made today by the Minister for Justice and Equality and by many others, including the Bar of Ireland and the Law Society. We welcome and are encouraged by the strong support given to the judiciary by those comments and by the proper recognition given to the critical importance of an independent judiciary in our Constitutional democracy.

25 June 2020

Mr Justice David Barniville

President, Association of Judges of Ireland