New rules for appointing judges ‘not ideal’, says Chief Justice Frank Clarke

He blazed a trail as a lawyer before being appointed to the High Court, and then the Supreme Court.

A former Fine Gael activist and speechwriter for the late Garret Fitzgerald, Justice Clarke was appointed by the Government to become Chief Justice in late July, succeeding Susan Denham following her retirement.

As he puts it, the relationship between the Government and the judiciary has been “tense” in recent times and he believes that a large part of his job is in steering that relationship towards calmer waters.

In his first major interview since his appointment, Justice Clarke, in typically straightforward and forthright manner, discusses the scale of the challenge ahead of him.

I ask him how he intends handling relations with Government.

“Firstly, I would like to see it where there is a constructive engagement and I think it is getting back to that stage,” he says.

“On one level, one would like to see less of it, less of it being necessary. Most of the time, Government should get on with governing and judges should get on with deciding cases and they shouldn’t have to have too much to do with each other.

“If there wasn’t the need to be too much interaction, I would regard that as a success.

“But if there is a need to be an interaction, perhaps a more normalised one than the tenser relations that there have been in recent times.”

However, there are two major bills working their way through the Oireachtas which have caused “concern”, as he puts it, to him and his fellow judges.

Justice Clarke makes it clear that he thinks the proposed bill spearheaded by Transport Minister Shane Ross of the Independent Alliance is highly problematic.

“I think the concern is that it is not the best model for appointing judges. Simply put, there are better models,” he says.

“Government knows our position and it hasn’t changed.

“I think the position of the judiciary was made clear in the letter from the five presidents so I don’t differ from that. We have said what we have to say on it, but we will live with whatever comes out at the end of the day.”

The country’s most senior judges told Taoiseach Leo Varadkar in an “unprecedented” letter that the reforms championed by Mr Ross would fail in their aim of removing politics from judicial appointments.

The previously unpublished letter, sent at the height of the controversy over Mr Ross’s reforms at the end of June, instead claims the reforms would create further political interference in how judges are chosen.

It is signed by former chief justice Susan Denham, as well as Seán Ryan, Peter Kelly, Raymond Groarke, and Rosemary Horgan, the presidents of the Court of Appeal, High Court, Circuit Court and District Courts respectively.

The judges said they would be “failing in our duty” if they did not record their concerns.

I press Justice Clarke as to his thinking, as he was not one of the signatories to that letter.

He explains: “We would regard the methods of appointment as important because if we don’t get the right people, then the judiciary is not as strong as it might be, and that is the concern.

“I don’t think there was an insiders’ cartel, as it was described.

“The judiciary is more disparate than people give it credit for.

“There was the recent research by DCU that suggests that there is no great correlation between the appointment of judges and the outcome of cases.

“So I am not sure the problem has been established to which there needs to be an answer.”

I ask him about the long-held perception that governments of the day “stuff the benches” with their cronies.

“There may have been times when there was a correlation between the government of the day and people appointed,” he says.

“I think it is a lot less than people thought.

“I certainly know a lot of people who were appointed by governments they didn’t support,” he says.

“The very fact that I was appointed by a Fianna Fáil government and promoted by a Fine Gael Government is a sign that governments don’t stick necessarily to their own.

“There are plenty more examples of that.”

But many see judges as being too powerful. Does he accept that?

“If you ask the average judge, they would say that their perception is that very little of what they have to say in recent times got much traction at all,” he says.

“I don’t think we do [hold too much sway], but we make our case and we have persuaded Goverment on some issues and not persuaded them on many issues. The proof of the pudding is in the eating.”

The other major bill that is coming down the tracks is the Judicial Council Bill, which itself has been the source of some controversy.

Requested by the judiciary for 17 years, and repeatedly neglected by successive governments, the matter is now finally moving.

However, one aspect of the bill allows for judges to be sanctioned in private, away from the public gaze.

It has led to the charge that the judges are seeking to look after themselves.

I ask Justice Clarke for his view.

“I wasn’t really involved in it, but was aware of it,” he says. “It is something I want to talk to colleagues about.

“The one thing the judiciary have been concerned with is the very low threshold for the definition of misconduct.

“I think that is connected with some of the other issues.

“I don’t want to adopt a position without having the chance to talk to those who were involved in the negotiations, but it is something we will have to take a position on.”

In terms of what he wants to do, Justice Clarke says he would like to increase the access to the courts to more people.

To do this, costs need to fall.

“The issue that causes me most concern is the access to justice,” he says.

“The fact that for a lot of people, going to court is prohibitive, which means they cannot vindicate their rights, not because they do not have a good case but just because it is too risky to bring that case.”

“It allows better- resourced entities — sometimes the State, sometimes big businesses and the like — to avoid obligations because they can take those chances and run a case.

“They can afford to run a case that others can’t.

“Even when the case is taken, they may have to make difficult decisions, say if they are made an offer which falls far short of what they think is reasonable, but still they can’t afford to take that chance.”

So, I ask him, is the answer more courtrooms and more judges?

“You could debate what the best solution is,” he says.

“We have less support than any judiciary around.

“At the moment, a Supreme Court judge has a share of one researcher.

“If you go to any European country you will find a lot more judges, firstly, and typically they have two or three researchers each.”

Then Justice Clarke makes a bold suggestion, that more cases, even in the High Court, could be handled not by judges but by specially-appointed legal officers.

He is proposing a plan whereby the more mundane cases would be heard by non-judges in a bid to speed up the process and reduce costs

The current situation, he says, “has a knock-on effect in the way cases are heard and the costs are increased to the parties”.

“There are matters that need not be handled by judges — you may have suitable people to handle the more routine administrative matters,” he says.

“A judge’s primary job is deciding on cases, so maybe more of the work in getting the case ready for a focused, shorter, and therefore cheaper hearing could be given to other officers.

“But they would need to be reasonably experienced and competent people and they would need to be paid.

“Otherwise you wouldn’t get the people.”

I ask him then to clarify exactly what his political links are.

“I would have been a reasonably active Fine Gael person over the years,” he says.

“I certainly wrote speeches for Garret Fitzgerald back in the day.

“I was less active in more recent years as my practice was busy and I didn’t have the time.

“I still have an interest, but it is not just Irish politics, I follow the German elections, the French elections, the Americans. You retain that interest.”

We conclude by talking about how he would want to be remembered at the end of his term.

“If I could make a contribution to increasing access to judges over the four years, there are limits that are within our control, and I don’t think we can make a dramatic change, but if that is materially better, then I will feel I have done a good job.”