Never let a crisis go to waste: Politics, personality and judicial self-government in Ireland

The Irish judiciary are self-governing only in a limited respect. Just as in many other common law countries and ‘old’ democracies, judges historically controlled only their own judgments, court rules and the case listing process. Since 1999 they have formally led the Courts Service, controlling the administration and management of the courts, but relations between the judiciary and Government still appear to play out largely informally, through quiet back-channel communications about pay and conditions, or legally, through court judgments that have enforced a very robust understanding of the separation of powers. There are significant legal protections for the judiciary in the Constitution and statute, and robust cultural respect for judicial independence within politics. Ireland does not, however, fit into any neat theoretical framework that explains either its current judicial arrangements or processes of reform. Judicial administration is a patchwork that has developed in two very broad stages. The initial stage – of (relatively benign) neglect – arose immediately after independence from the United Kingdom in 1922. It was to last for eight decades. The second stage – of ad hoc reform – began in the mid-1990s. This reform stage was driven initially by responses to specific problems (some political, some technocratic) but in the last decade has taken place against a backdrop of institutional restlessness that has affected Irish politics in general as a result of the economic crisis that unfolded from 2007 onwards. The economic crisis prompted a crisis of relations between judges and the political system. Although relations appear to have been mostly repaired the system remains in flux, and new reforms (to judicial appointments, and judicial self-governance) are currently being debated. At this moment, Ireland appears to be moving towards a model that mixes judicial self-governance in some areas with greater formalization, independence and depoliticization in others. This article argues that Ireland confirms the general conclusions in the literature on judicial independence: that a culture of independence and political respect for the role of the judiciary is more important than formal controls. Nonetheless, Ireland is a small jurisdiction in which relations between judges and the government have proven to be acutely dependent on personality. Reform, in particular, only happens where there are significant political reasons to justify it. Part B of the paper aims to give the reader an overview of the Irish judicial system, and sketches out key institutional features (together with some proposed reforms) as well as the operation of the separation of powers doctrine. This sketch is set against data on public trust in the judiciary in Ireland. Part C will focus on the processes of court reform, drawing on the political history of reform efforts to show that reform only occurs where politicians can be convinced that it is in their interests to sponsor it. Part D will show that judicial independence in Ireland is potentially fragile and dependent to a significant extent on good personal relationships between politicians and judges. The essential relationships between government and the judiciary can be difficult to operate if personal relationships break down (as they did between 2011 and 2013). The article concludes that Ireland exemplifies the paradox of judicial independence: judicial independence aims at isolating judges from politics, but depends for its survival on politics and personality