Opinion: we require judges with the skills and training to deal with complex litigation in a timely fashion to ensure our rights are protected

By Rónán Kennedy, NUI Galway and Laura Cahillane, University of Limerick

The announcement by Minister for Justice, Helen McEntee, that all judges seeking promotion to higher courts and lawyers seeking elevation to the bench will have to complete special training is very welcome. However, it illustrates how far Ireland has to go to bring its systems for training and appointing judges in line with international best practice.

Judges from common law countries did not traditionally receive training in the same manner as those from the civil legal systems on the European continent. The assumption was that we were appointing our best lawyers as judges so they were already sufficiently educated. However, the competencies required to be a good practitioner are quite different from those required to be a good judge. Judges themselves have spoken in the past of their struggle to adjust to the new skills required of them without training. In most jurisdictions, training in judge-craft is a given.

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From RTÉ Radio 1's Drivetime, former High Court judge Bryan MacMahon on plans for new formal training for judges

Ireland has been an outlier on this for a long time. Until 1994, there was no formal process for applying to be a judge. Until 1995, there was no requirement for judicial training. In 2020, the Council of Europe Report on efficiency of justice in European Judicial Systems noted that Ireland was one of only three states that did not, at the time, provide continuous training. Until the establishment of the Judicial Council late that year, training was limited by a paltry budget and was an added workload for already busy judges.

By contrast, judges do not become practitioners in France before appointment to the bench because the civil legal system there developed in a different manner. A lawyer can embark on a judicial career after completing university. Intending judges attend institutions like the École Nationale de la Magistrature (the National School for Judges), where they are trained in the skills needed and, as with any other professional qualification, return regularly for refreshers and updates.

While educating judges would once have been alien to a common law system, this has changed significantly. All of the major common law jurisdictions have developed judicial training. Ireland is coming very late to this and the emphasis now must be on developing a world-class training system for our judiciary. We are the only pure common law jurisdiction in the European Union, with a legal tradition that is distinctive and special characteristics that should be maintained.

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From RTÉ Radio 1's News At One, RTÉ Legal Affairs Correspondent Orla O'Donnell on the the first meeting of the country's judges as the new Judicial Council of Ireland

To do this, we must modernise how we select and train our judges. As well as basic skills of judgment-writing, active listening and appropriate questioning, more specific skills are required of judges. These include dealing with vulnerable witnesses to ensure that there is no unnecessary re-traumatising of victims, unconscious bias training, judicial ethics, social context and so on. More recently, the need for judicial wellness training has been recognised, especially for those who work in challenging areas such as family and criminal law.

Ongoing continuous professional development training is a very necessary resource so judges can keep up to date with legal developments. This has not been easily available and many took it upon themselves to attend courses in other jurisdictions to up-skill, sometimes during their annual leave, a situation which is not sustainable or acceptable.

Proper assessment of candidates for appointment as judges is also relevant. The existing criteria for appointment have often been said to be vague, general and lacking in any specificity as to the characteristics that are desirable or necessary to become a judge. Section 16(7) of the Court and Court Officers Act 1995 simply provides that a candidate must have displayed competence and a degree of probity in their practice as a barrister or solicitor, be suitable on grounds of character and temperament and be otherwise suitable. This lack of guidance on the competencies required of a good judicial candidate is problematic and it is to be hoped that this will be addressed when the Judicial Appointments Commission Bill is finally published.

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From RTÉ Radio 1's Drivetime, Minister for Justice Helen McEntee on the proposal to introduce a new commission to appoint judges.

The new interest in developing the abilities, capacities and integrity of judges is welcome and must be sustained. An independent, trusted and accountable judiciary is an essential aspect of the rule of law, which we have been fortunate to protect through a century of troubled and sometimes violent history. Judges with the skills and training to deal with the complexity of modern litigation in a timely fashion are key to ensuring the health of the economy. This is not free: it requires adequate, long-term, and ring-fenced resources. However, Ireland has the lowest level of judges per 100,000 population in Europe, stretching our judiciary far too thin.

The establishment of the Council and initiatives such as making training a requirement for promotion are positive first steps. Given how far Ireland has lagged behind our European neighbours on such issues, it is crucial that this momentum is maintained. In conjunction with the Irish Council for Civil Liberties, we have recommended that the government make a clear commitment to ensuring proper staffing and resources for the Judicial Council, adequate numbers of judges, and built-in time for training.

If this does not happen, these good ideas and the progress made recently (after far too much neglect) will putter out and leave judges and the staff who support them worse off, with more responsibilities but insufficient time to do any of them properly. Historical approaches that might have been appropriate in the past can no longer pass muster. If we invest fully in a properly selected and well-trained judiciary, we will be seen as a dynamic, world-class jurisdiction within the European Union, ensuring that the rights of ordinary people are protected.

Dr Rónán Kennedy is a lecturer in the School of Law at NUI Galway. He is a former Irish Research Council awardee. Dr Laura Cahillane is a Senior Lecturer in Law at the School of Law at the University of Limerick. She is a former Irish Research Council awardee


The views expressed here are those of the author and do not represent or reflect the views of RTÉ