Dr Patrick O'Brien

What do judges do after they retire? What constraints have they traditionally been under, and do these constraints remain? Until recently, judges of the four UK jurisdictions were subject to a convention that governed their behaviour in retirement. This convention—the judicial retirement convention—had two parts. Firstly, it required former judges to be circumspect, especially about politics and their work on the bench. Secondly, it prohibited them from returning to practice at the bar, which included non-regulated activities such as paid legal opinions. 

Drawing on a database of all United Kingdom judges who retired at High Court (or equivalent) level and above between 1950 and 2020, and 21 interviews with judges, barristers and officials, we conclude that the retirement convention is now ineffective, if not completely dead. Judges in the UK now return to some form of legal practice in large numbers. There is now scepticism and confusion about the convention to such a degree that the convention exercises limited influence on post-bench behaviour. At the same time, the relevant professional or institutional regulators have all withdrawn from this aspect of legal and judicial practice. The result is that judicial retirement is now completely unregulated. Our view is that this is a retrograde development. We suggest revitalising the convention, and recommend a mixture of voluntary guidance and professional regulation. 

In the past twenty-five years, Ireland has moved from a traditional common law model of judicial administration, in which key aspects of judicial careers and administration were handled informally and politically, to a much more formal system designed along European lines. This transition is driven by Irish judges and politicians and influenced heavily by EU and Council of Europe soft law on judicial independence and the rule of law. In this article I sketch an outline of judicial institutions in Ireland before focusing on two topics that exemplify the transition: judicial conduct and judicial appointments. I argue that the move to formalize judicial administration in Ireland is rooted in a desire to follow best practice but also to avoid politically difficult reforms in other areas.

The Judicial Council Act 2019 contains a process for statutory informal resolution of complaints against judges. This article surveys a number of disciplinary systems in common law countries and draws comparison with the 2019 Act. The Act introduces an informal disciplinary process that effectively operates as a form of ‘mediation’, as it depends on the consent of the complainant and judge involved. Comparative evidence from other jurisdictions suggests that this mediation approach leads to less use of informal discipline than occurs in systems which offer more discretion, so it is possible that the informal process in the 2019 Act will not be used significantly. Aspects of the detailed process contained in Chapter 4 are also ambiguous and may result in minor complaints being forced through the formal disciplinary process.

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.