Strasbourg, 12 February 2001
CCJE (2001) 8
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Ireland
1-THE INDEPENDENCE OF JUDGES
1-Is the independence of judges guaranteed by the Constitution or by legislation?
The independence of the judiciary is ensured by Articles 34 and 35 of the Irish Constitution, 1937.
2-What institutional safeguards are there with regard to the independence of judges?
(i) Article 34:5:1 requires all judges to make the following declaration on their appointment:
“In the presence of Almighty God I ( ) do solemnly and sincerely promise and
declare that I will duly and faithfully and to the best of my knowledge and power
execute the office of Chief Justice (or as the case may be) without fear or favour,
affection or ill-will towards any man, and that I will uphold the Constitution and the
laws. May God direct and sustain me.”
(ii) Article 35:2 and 35:3 also provide:
“2. All judges shall be independent in the exercise of their judicial functions and
subject only to the Constitution and the law.
3. No judge shall be eligible to be a member of either House of the Oireachtas or to
hold any other office or position of emolument.
(iii) Also of importance is the provision in Article 35.5 of the Constitution which states:
“The remuneration of a judge shall not be reduced during his continuance in office”
3-Is the irremovability of judges recognised?
On the issue of removal from office, Article 35:4:1 provides:
“A judge of the Supreme Court or the High Court shall not be removed from office
except for stated misbehaviour or incapacity, and then only upon resolutions passed
by Dail Eireann and Seanad Eireann calling for his removal.”
A similar form of protection, though in statutory from only, has been extended to judges of the Circuit Court and District Court by respectively s.39 of the Courts of Justice Act, 1924 and s.20 of the Courts of Justice (District Court) Act, 1946.
4-Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions other than the courts of appeal or cassation?
The answer to this must be in the negative. This would appear to run directly contrary to the provisions of Article 34:1 of the Constitution which stipulates:
“Justice shall be administered in courts established by law by judges appointed in
the manner provided by this Constitution, and, save in such special and limited cases
as may be prescribed by law, shall be administered in public.”
Further, the appellate jurisdiction of the Supreme Court is enshrined in Article 34:4:3:
“The Supreme Court shall, with such exceptions and subject to such regulations
as may be prescribed by law, have appelate jurisdiction from all decisions of the
High Court, and shall also have appellate jurisdiction from such decisions of other
courts as may be prescribed by law.”
5-Can a case be withdrawn from a judge? If so,
i.-on what grounds?
ii.-by which authority?
As stated supra a judge may be removed from office for stated misbehaviour or incapacity by both Houses of the Oireachtas.
In addition, a judge may be required to recuse himself /herself from adjudicating on a matter where it might appear that there would be a breach of the fundamental principle of natural justice nemo iudex in causa sua (no person should be a judge in their own cause).
This was done in the case of Dublin Well Woman v. Ireland1 where the Supreme Court held that the High Court judge Carroll J. ought not adjudicate in a case concerning access to information on abortion as she had previously, as Chairwoman of the Second Commission on the Status of Women, written a letter to the Taoiseach expressing the support of the Commission for the right of access to abortion counselling and information services. The Supreme Court held that although there was no suggestion of actual bias on the part of Carroll J., a judge should offer to recuse himself/herself where there was even an appearance of bias.
The test is thus an objective, not a subjective one and this high standard of impartiality has been upheld in subsequent cases such as Bula v. Tara Mines2.
II - THE APPOINTMENT OF JUDGES AND THEIR CAREERS
1. What qualifications are required and what conditions must be met in order to become a judge?
To become a judge of the District Court or Circuit Court, one must have practised as a barrister or solicitor for at least ten years.
To become a judge of the High Court or Supreme Court, one must have practised as a barrister for at least twelve years or been a Circuit Court judge for at least four years.
To qualify as a barrister, one must complete a two-year degree programme at the Honourable Society of the King’s Inns of Ireland. Those possessing a previous law degree, from a university recognised for such purposes by the Society, are entitled to an entrance exemption at present. Students possessing a non-law degree or a law degree from a university not recognised by the Society for the purposes of granting entrance exemptions must complete a two-year diploma programme at the Society before proceeding to the two-year degree programme. From next year, entrance to the degree course will be by way of competitive examination.
To qualify as a solicitor, one must complete a three-year period of training and work experience as an apprentice to a recognised law firm, incorporating two periods of study at the Law Society of Ireland. Entrance to the Law Society is now by way of competitive examination.
2. Are judges recruited by competitive examination, on the basis of a professional examination or on the basis of their qualifications?
3. What level of studies is required to become a judge?
4. Is previous professional experience required?
5. Are there any age requirements?
6. Are judges elected?
7. Or are they appointed?
Yes. They are appointed by the President on the advice of the Government.
8. Or are they selected in another way?
9. Which authority is responsible for recruiting judges?
The Judicial Appointments Board.
10. Does any authority independent of the government and the administration take part in the selection or promotion process?
- If so, specify the composition and role of this body?
The Judicial Appointments Board was established under section 13 of the Courts and Court Officers Act, 1995, for the purpose of “identifying persons and informing Government of the suitability of those persons for appointment to judicial office”. It consists of the Chief Justice, President of the High Court, President of the Circuit Court, President of the District Court, the Attorney General, a practising barrister nominated by the Chairman of the Council of the Bar of Ireland, a practising solicitor nominated by the President of the Law Society of Ireland and “not more than three persons appointed by the Minister [for Justice] who shall be persons engaged in, or having knowledge or experience of commerce, finance, administration or persons who have experience as consumers of the services provided by the courts that the Minister considers appropriate”.
The Board advertises all judicial vacancies and submits at least seven names as potential candidates to the Minister for Justice on foot of its perusal of the applications received.
11. How and by whom are judges promoted?
The promotion of judges is ultimately a decision of the Executive.
12. What are the criteria for promoting judges? Are they objectively defined?
13. In what cases can a judge be removed from office?
Judges can only be removed from office pursuant to resolutions passed in both Houses of Parliament and then only on grounds of stated misbehaviour or incapacity. This procedure is provided for under the Constitution of Ireland.
14. Do you wish to make any comments or mention any practical difficulties with regard to the independence and appointment of judges in your country?
III. THE FUNDING OF THE COURTS
1. How are the courts’ activities funded?
They are funded by the Exchequer through the Department of Finance.
2. Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.
3. Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
While they have little say in the extent of overall funding of the judicial system, they have an input into the allocation of resources within the system.
4. Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?
The Courts Service was established in November 1999. It is independent of other government departments and is involved in general administration of the judicial system. At present, the entire system is undergoing computerisation. It will take a number of years before optimum efficiency is attained.
5. Do judges encounter other material difficulties, which prevent them from acting efficiently?
Many of the court buildings are undergoing renovations at present. Interim measures are adopted to limit the inconvenience caused.
6. Are appropriate measures taken to assign non-judicial tasks to other persons?
The Judicial Support Unit within the Courts Service assists judges with travel and general support when they are out on circuit and in the organisation of conferences. Registrars and judicial researchers also undertake non-judicial tasks on behalf of the judiciary. So too do tipstaves, ushers and criers, though these latter employees do not work for District Judges. Tipstaves, ushers and criers may also be used as drivers for judges.
7. General comments on the funding of the courts.
1  1 ILRM 408
2 Unreported, Supreme Court, 3rd July, 2000. (Denham J., McGuinness J., Morris J. concurring)