¹ For the argument that judicial independence is ultimately a political achievement, see Gee, Graham et al, The Politics of Judicial Independence in the UK's Changing Constitution (2015).Google Scholar

² Interview with the author.Google Scholar

³ There are limited powers to investigate the behavior of District Court judges (but not to discipline them): Courts of Justice (District Court) Act 1946, § 21, Courts (Supplemental Provisions) Act 1961, §§ 10(4) & 36(2). Investigation may be done at the request of the Minister or by the Chief Justice or District Court President acting on their own initiative. The power applies only to the District Court and has been used very rarely. See Byrne, Raymond et al, The Irish Legal System (2014), 189; Cahillane, Laura, Ireland's System for Disciplining and Removing Judges 38 Dublin University law Journal 55 (2015).Google Scholar

⁴ Formerly the Judicial Studies Institute. It is currently envisaged that the Committee for Judicial Studies will continue operating under the auspices of the Judicial Council when it is created.Google Scholar

⁵ O'Dowd, John, Speaking to power: mechanisms for judicial-executive dialogue in Laura Cahillane et al (eds), Judges, Politics and the Irish Constitution 155 (2017).Google Scholar

⁶ In Ireland the Attorney General is appointed by the Government as its chief legal advisor and is not a serving politician or a member of the Cabinet: see art. 30 of the Constitution of 1937.Google Scholar

⁷ Fennelly, David, Reluctant reformers? Formalizing judicial regulation in Ireland in Regulating Judges: Beyond Independence and Accountability (Richard Devlin & Adam Dodek ed. 2016) at 222.Google Scholar

⁸ § 5, Courts Service Act 1998.Google Scholar

⁹ The first Chief Exectuve, PJ Fitzpatrick, was a former senior health service executive, and the second, Brendan Ryan worked for most of his career in court administration. Note that I am using ‘civil servant’ in its generally understood sense. There is a technical distinction between ‘civil servants’ and ‘public servants’ in Irish public administration but it is not relevant to this discussion.Google Scholar

¹⁰ § 11 of the 1998 Act, ibid, (as amended by § 57, Court of Appeal Act 2014).Google Scholar

¹¹ See Hazell, Robert and O'Brien, Patrick, Meaningful Dialogue: Judicial Engagement with Parliamentary Committees at Westminster (2016) Public Law 54, 58.Google Scholar

¹² § 21 of the 1998 Act.Google Scholar

¹³ Information from interviews. The advisory power is contained in § 6(f) of the 1998 Act. For an example of innovation on the part of the Service see http://www.irishsentencing.ie [last accessed 15 September 2017].Google Scholar

¹⁴ The Committee was formerly known as the Judicial Studies Institute and was established to fulfil a very limited mandate to train judges provided for in the Courts and Court Officers Act 1995 (§§ 21 and 48 of the Act).Google Scholar

¹⁵ § 48 of the 1995 Act.Google Scholar

¹⁶ As the website for the Association of Judges of Ireland puts it: https://aji.ie/supports/judicial-education/ [last accessed 15 September 2017].Google Scholar

¹⁷ § 19 of the 1995 Act.Google Scholar

¹⁸ Chapter 5 of the Judicial Council Bill 2017.Google Scholar

¹⁹ § 28 of the Judicial Council Bill 2017.Google Scholar

²⁰ Art. 35.1 read with art. 13.9 and art. 13.11 of the Constitution of 1937.Google Scholar

²¹ Jennifer Carroll MacNeill, The Politics of Judicial Selection in Ireland (2016), 105-6. See also Bartholomew, Paul, The Irish Judiciary (1971), 31-33.Google Scholar

²² Carroll MacNeill, ibid, at 107 and 137-8. Where there is a coalition government, there has generally a loose agreement about how decisions about judicial appointments should be distributed. Carroll MacNeill notes also that political affiliations have become weaker in the general population in recent years, so might be expected to play a less prominent role in contemporary appointments if candidates have correspondingly looser political connections (at 107-8).Google Scholar

²³ The Bar Council is the professional organisation for barristers and the Law Society the professional body for solicitors in Ireland.Google Scholar

²⁴ § 13(2) of the 1995 Act, as amended by § 12(b) of the 2014 Act.Google Scholar

²⁵ § 16(5) of the 1995 Act. Carroll MacNeill, supra note 21, 113-6, gives an account of the processes within the Board, although she notes that its practices are opaque. It has the power to conduct interviews but has never done so, with the result that the process is entirely paper based, using an application form and CV. The practice is that the Chief Justice will open discussions on a candidate, followed by the other judges in order of seniority and with particular attention paid to the views of the President of the court to which the recruitment exercise relates and then the other members of the Board. Once a shortlist is created, the professional bodies are contacted to ensure that the recommended persons are of good professional standing. The Secretary of the Board then conveys its recommendations to the Minister.Google Scholar

²⁶ § 16(6) of the 1995 Act requires only that the Government consider candidates recommended by the JAAB before others.Google Scholar

²⁷ MacNeill, Carroll, supra note 21, 129.Google Scholar

²⁸ Morgan, David Gwynn, Selection of Superior Judges, 22 Irish Law Times 42 (2004).Google Scholar

²⁹ MacNeill, Carroll, supra note 20, 98.Google Scholar

³⁰ See e.g. Minihan, Mary, Ross unhappy at way Máire Whelan elevated to Court of Appeal, The Irish Times, Jun. 13 2017.Google Scholar

³¹ MacNeill, Carroll, supra note 21, 100.Google Scholar

³² §§ 12 and 13 of the Judicial Appointments Commission Bill 2017 [hereinafter ‘JAC Bill'].Google Scholar

³³ E.g. Kelly, Fiach, Judges warned Varadkar Ross's reforms wouldn't work, The Irish Times, Aug. 18 2017 and Mary Minihan, Judicial reform plan a “deliberate kick in the teeth” for Chief Justice, The Irish Times, Jun. 27 2017.Google Scholar

³⁴ § 25 and § 64, JAC Bill.Google Scholar

³⁵ E.g. Clarke, Vivienne, Charlie Flanagan says judicial bill ‘in a difficult place', The Irish Times, Mar. 26 2018. Author's note: I made a submission to the Committee stage of the Bill and some of the amendments I proposed formed part of an earlier version of the Bill.Google Scholar

³⁶ Keane, Ronan, Judges as Lawmakers: The Irish Experience, 4 Radharc 81 (2003), 88.Google Scholar

³⁷ Ruadhán MacCormaic, The Supreme Court (2016), 78.Google Scholar

³⁸ Ryan v. Attorney General [1965] IR 294Google Scholar

³⁹ See e.g. the judgment of Mr. Justice Hardiman in Sinnott v. Minister for Education [2001] 2 IR 545. This judgment is quoted approvingly by Keane, Ronan, supra note 36, then recently retired as Chief Justice, at page 95.Google Scholar

⁴⁰ Maquire v. Ardagh [2001] 1 IR 385. A referendum to reverse this decision was held at the same time as the referendum on judges’ pay but was rejected by the people.Google Scholar

⁴¹ Crotty v. An Taoiseach [1987] IR 713. See also McKenna v. An Taoiseach (no. 2) [1995] 2 IR 10 which significantly restricted the freedom of the Government to spend public money in the context of referendum campaigns.Google Scholar

⁴² Figures from World Economic Survey Global Competitiveness Survey produced between 2000 and 2017 score Ireland at 6.3 or 6.4 out of a possible 7, and put the country between 3^rd and 8^th in the world on this measure.Google Scholar

⁴³ OECD, Government at a Glance 2015 (2015), Chapter 12: Serving Citizens. Available at: https://stats.oecd.org/Index.aspx?DataSetCode=GOV_2015 [last accessed Sept. 15 2017].Google Scholar

⁴⁴ Flash Eurobarometer 435 (February 2016) and 447 (January 2017), Perceived independence of the national justice systems in the EU among the general public: http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/ResultDoc/download/DocumentKy/77652 [last accessed 15 September 2017].Google Scholar

⁴⁵ Figure 3 uses the figures for ‘tend to trust’ in response to survey questions on ‘justice/the legal system’ and ‘political parties’ from Eurobarometer surveys from 2000-2017. The third figure adds together the ‘very satisfied’ and ‘fairly satisfied’ responses to the survey question ‘One the whole are you very satisfied, fairly satisfied, not very satisfied or not at all satisfied with the life you lead?’ Data taken from http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/General/index. [last accessed Sept. 15 2017.]Google Scholar

⁴⁶ See MacCormaic, supra note 37, at 368.Google Scholar

⁴⁷ See e.g. Van de Walle, Steven & Raine, John Explaining Attitudes towards the Justice System in the UK and Europe (2008) Ministry of Justice Research Series 9/08, 30.Google Scholar

⁴⁸ See Flash Eurobarometer 447, supra note 67. 63% of those who finished school before the age of 15 rated the independence of Irish judges as good or higher, whereas 79% of those who finished at above the age of 20 did so.Google Scholar

⁴⁹ There is a significant literature on the relationship between de facto and de jure independence. See eg William Landes and Richard Posner, The Independence Judiciary in an Interest-Group Perspective 18 Journal of law and Economics 875 (1975). Charles Cameron, Judicial Independence: How Can You Tell It When You see It? And Who Cares? in Judicial Independence at the Crossroads: An Interdisciplinary Approach (Stephen Burbank & Barry Friedman ed. 2002); Vyas, Yash, The Independence of the Judiciary: A Third World Perspective 11 Third World Legal Studies 127 (1992); Voigt, Stefan & Hayo, Bernd, Explaining De Facto Judicial Independence 28 International Review of Law and Economics 269 (2007); Kosar, David, Perils of Judicial Self-Government in Transitional Societies (2016); Gee et al, supra note 1, chapter 2.Google Scholar

⁵⁰ Alexander Bickel, The Least Dangerous Branch (1986).Google Scholar

⁵¹ Working Group on a Courts Commission: First Report (April 1996), available at http://www.courts.ie/Courts.ie/Library3.nsf/(WebFiles)/E33B888C196A85A980256DA6003459DA/$FILE/courts1.pdf [last accessed 15 September 2017].Google Scholar

⁵² Interview with the author.Google Scholar

⁵³ Carroll MacNeill, supra note 21, 67.Google Scholar

⁵⁴ In 1992 Whelehan obtained an order from the High Court to prevent a suicidal 14-year old rape victim leaving the country for the purposes of an abortion. Attorney General v. X [1992] IESC 1, [1992] 1 IR 1 was successfully appealed to the Supreme Court and focused international attention on Ireland's highly restrictive abortion laws.Google Scholar

⁵⁵ MacCormaic, supra note 37, 306. The events also created some serious breaches of the separation of powers. Reynolds publicly criticized Whelehan and expressed regret at his appointment on the floor of the Dáil, and privately asked him to resign twice before the Government collapsed.Google Scholar

⁵⁶ MacNeill, Carroll, supra note 21, 73.Google Scholar

⁵⁷ Dáil Éireann Deb., Nov. 29 1995, vol 459, no. 1, col 235-6.Google Scholar

⁵⁸ As Carroll MacNeill makes clear: supra, note 21, 70-77Google Scholar

⁵⁹ He is the co-author of Shane Ross & Nick Webb, The Untouchables: The people who helped wreck Ireland – and are still running the show (2012), which characterized the system for judicial appointments as corrupt cronyism.Google Scholar

⁶⁰ Gallagher, Conor, Several judges applied for vacant court position awarded to AG, The Irish Times, Jun. 15 2017.Google Scholar

⁶¹ Conversation with the author, August 2017.Google Scholar

⁶² It is not clear if this second report was ever in fact put on the record. On the Sheedy affair, see O'Dowd, John, The Sheedy Affair 3 Contemporary Issues in Irish Law and Politics (2000), 103. See also O'Toole, Fintan, Unanswered questions about the Sheedy affair cannot be buried a second time, The Irish Times, Jun. 24 2000.Google Scholar

⁶³ Extracted in Byrne et al, supra note 3, 186.Google Scholar

⁶⁴ Shortly afterwards the Oireachtas (legislature) enacted special legislation to provide for pensions for O'Flaherty, Kelly and the registrar: Courts (Supplemental Provisions) (Amendment) Act 1999.Google Scholar

⁶⁵ Dáil Éireann Deb., vol 504, no. 2, 5 May 1999.Google Scholar

⁶⁶ Report of the Constitutional Review Group, April 1995. Available at http://archive.constitution.ie/constitutional-reviews/crg.asp [last accessed 15 September 2017].Google Scholar

⁶⁷ See Byrne, et al, supra note 3, 188.Google Scholar

⁶⁸ Byrne, et al, ibid, 191.Google Scholar

⁶⁹ Amendment to § 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997.Google Scholar

⁷⁰ Curtin v. Clerk of Dáil Éireann [2006] IESC 14, [2006] 2 IR 556.Google Scholar

⁷¹ There have been other – fortunately isolated – incidents of misbehavior in recent years. Another judge, Heather Perrin, was convicted of deception in 2009 and resigned. At the trivial end of the spectrum, in 2011 an unidentified judge in a semi-naked and agitated state shouted and swore at a group of British tourists in a hotel who he felt were making too much noise, implicitly threatening them by mentioning that he had relatives who had fought in the old IRA against the British. The incident was reported to the courts but in the absence of formal disciplinary powers “[a]ll the senior judges could do was to sit down with the judge over a cup of tea and suggest that he take a rest.” (MacCormaic, supra note 37, 382).Google Scholar

⁷² Survey taken in 2007 by the Irish Council for Civil Liberties: Justice Matters: Independence, Accountability and the Irish Judiciary (2007), 72.Google Scholar

⁷³ Byrne, et al, supra note 3, 193.Google Scholar

⁷⁴ Gallagher, Conor, Report finds Ireland “unsatisfactory” in judicial independence, The Irish Times, Jun. 29 2017. See GRECO (Group of States against Corruption), Fourth Evaluation Round: Corruption prevention in respect of members of parliament, judges and prosecutors: Compliance Report: Ireland, Jun. 292017.Google Scholar

⁷⁵ Government Legislation Programme Autumn Session 2017, 19 September 2017. See http://www.taoiseach.gov.ie/eng/Taoiseach_and_Government/Government_Legislation_Programme/ [last accessed 22 September 2017].Google Scholar

⁷⁶ See Elgie, Robert et al, The (not-so-surprising) non-partisanship of the Irish Supreme Court 33 Irish Political Studies 88 (2017). On the independence and accountability of the Irish judiciary generally, see Ward, Tanya, Independence, Accountability and the Irish Judiciary (2008) Judicial Studies Institute Journal 1.Google Scholar

⁷⁷ Elgie, et al, ibid, 105Google Scholar

⁷⁸ See Elgie, et al, ibid, and David Gwynn-Morgan, Government and the Courts in Governing Ireland (Eoin O'Malley & Muiris MacCarthaigh ed. 2011), 234.Google Scholar

⁷⁹ It is arguable that this advice was overly conservative. In O'Byrne v. Minister of Finance [1959] IR 1, the Supreme Court had held that art. 35.5 did not exempt judges from the requirement to pay taxes and other charges that applied to all citizens. A levy applied to all state salaries might arguably have withstood constitutional scrutiny on the basis that it was not specifically directed at judges but at all public-sector employees. See O'Brien, Patrick, ‘Judicial Independence and the Irish Referendum on Judicial Pay', UK Constitutional Law Blog, Sept. 16 2011, available at http://ukconstitutionallaw.org/ [last accessed Sept. 15 2017].Google Scholar

⁸⁰ 19 judges take voluntary pay cut, RTÉ News Jun. 19 2009: https://www.rte.ie/news/2009/0619/118642-judges/ [last accessed Sept. 15 2017].Google Scholar

⁸¹ Voluntary levy paid by 111 judges, The Irish Times Jan. 18 2010.Google Scholar

⁸² Twenty-Ninth Amendment to the Constitution Bill 2009.Google Scholar

⁸³ O'Dowd, John, Judges in whose cause? The Irish bench after the judges’ pay referendum 48 Irish Jurist N.S. 102 (2012), 108.Google Scholar

⁸⁴ MacCormaic, supra note 37, 375.Google Scholar

⁸⁵ Legal Services Regulation Bill 2011.Google Scholar

⁸⁶ O'Dowd, , supra note 5, 162.Google Scholar

⁸⁷ MacCormaic, supra note 37, 378.Google Scholar

⁸⁸ The suggestion that the proposed wording exposed Ireland to international reputational damage and possibly a case in the international courts was probably a rhetorical flourish too far: O'Dowd (2012), supra note 83, 122. The suggestion at the beginning of the Memorandum that judicial pay ‘in these islands’ had never been reduced since the Act of Settlement 1701 was woefully ignorant of legal history. Judicial pay for the UK (including Ireland) was significantly reduced in 1832 and judges took a pay cut of approximately 50% upon Irish independence in 1922: Byrne et al, supra note 3, 205. There was also a cut to the salaries of judges in England and Wales in 1931 in circumstances that bear remarkable similarity to the Irish experience of 2011. See Stevens, Robert, Judicial Independence: The View from the Lord Chancellor's Office (OUP, 1993), 50-63.Google Scholar

⁸⁹ Legal opinion on the merits of the amendment tended towards the view that it was vague and badly worded, given that it lacked definitions of ‘classes of persons’ or the ‘public interest’ test set out. E.g. Ronan Keane, Judicial Independence: The best we can do? 29 Irish Law Times 191 (2011) and the other contributions to that special volume of the Irish Law Times.Google Scholar

⁹⁰ Minister disappointed memo still on court website, The Irish Times, Jul. 11 2011.Google Scholar

⁹¹ Brennan, Michael, AG gave judges go-ahead to publish memo on salary cuts, The Irish Independent, Jul. 11 2011.Google Scholar

⁹² Whelan, Noel, More to power than making the right noises, The Irish Times, May 7 2011.Google Scholar

⁹³ Anonymous judge quoted in MacCormaic, supra note 37, 368.Google Scholar

⁹⁴ MacCormaic, supra note 37, 380.Google Scholar

⁹⁵ See the AJI's own explanation of its rationale at http://aji.ie/about-us/foundation/ [accessed Sept. 15 2017].Google Scholar

⁹⁶ From the AJI's website, ibid. Google Scholar

⁹⁷ McDonald, Dearbhail and McQuinn, Cormac, Shatter sparks major judicial crisis, The Irish Independent, Apr. 16 2013.Google Scholar

⁹⁸ Judges’ group back Judge Kelly's comments about political interference in judiciary, RTÉ News, Apr. 15 2013.Google Scholar

⁹⁹ Alan Shatter criticizes High Court comments on pay, The Journal, Apr. 15 2013 [http://www.thejournal.ie/alan-shatter-judicial-pay-8700890-Apr2013/ last accessed 15 September 2017]Google Scholar

¹⁰⁰ O'Dowd, (2017), supra note 5, 156.Google Scholar

¹⁰¹ MacCormaic, Ruadhán, High Courts to extent sitting into summer holidays, The Irish Times, Apr. 27 2013.Google Scholar

¹⁰² O'Dowd, (2017), supra note 5, 155.Google Scholar

¹⁰³ See https://aji.ie/press-release-26-june-2017/ [last accessed Sept. 15 2017].Google Scholar

¹⁰⁴ Private correspondence with the author.Google Scholar