Forces of change always meet with resistance

Shane Ross’s Judicial Appointments Bill and bid to reform the way in which ‘unaccountable’ judges are appointed is meeting strong resistance from the opposition benches but also from within the Fine Gael ranks, writes Daniel McConnell

Forces of change always meet with resistance

EVERY week, after the Cabinet meets, political correspondents get briefed by the government press secretaries.

Part of the business that arises all the time are appointments. Appointments to State boards, appointment of diplomats, even promotions and resignations in our Defence Forces go to Cabinet. But one of the items that always raises interest is the appointment of judges.

You would often be told by the Government that barrister X or solicitor Y is to become a judge.

Immediately, either by way of a joke or a serious inquiry, it would often be asked: “Are they a Fine Gael person?”

When Labour were in Government, the question was: “Are they a Blueshirt or are they Labour?” It was the done thing that political cronies were appointed to senior judicial places by their political friends.

Of course they had to be somewhat qualified but being aligned to their party of choice did them no harm.

People like Transport Minister Shane Ross have long since argued that a golden circle elite ruled this country not for the greater good.

And he has long set out his stall that political cronyism in relation to our judiciary is not a healthy disposition and has sought to change it.

Fine Gael appeared to agree with him sufficiently enough in 2016 when they cobbled a minority government together.

Their programme for government, agreed between Fine Gael and the Independent Alliance, states the following:

  • “We will introduce legislation to replace the Judicial Appointments Advisory Board with a new Judicial Appointments Commission. The new structure will include a reduction in its membership, an independent chairperson selected by the Public Appointments Service and approved by an Oireachtas Committee, and a lay majority including independent people with specialist qualifications.”
  • “We will reform the judicial appointments process to ensure it is transparent, fair and credible. We will reduce the number of suitable candidates proposed by the Judicial Appointments Commission for each vacancy to the lowest number advised as constitutionally and legally permissible by the Attorney General, but in any event not more than three candidates to be shortlisted by the Judicial Appointments Commission for any vacancy.”
  • “The new Chair of Judicial Appointments Commission will be asked to attend the relevant Oireachtas Committee on an annual basis to report on implementation of its statutory remit.”

Now, in truth, we all know Fine Gael’s support for this bill is at best lukewarm — and ice cold at worst.

The reality is, as one minister confided in me this week, that they agreed to it because they never expected to have to initiate it: “We never expected this Government to last this long, so there was a feeling we could agree to it in the expectation this administration would fall before we got around to it.”

Two years on from that Government’s formation, this policy is yet to be brought into life.

This week, the Dáil again descended into farce as it continued its debate on the Judicial Appointments Bill.

Firstly, because Fianna Fáil, led by lawyer Jim O’Callaghan, is not willing to support the bill, Justice Minister Charlie Flanagan, a lawyer, has reluctantly needed to do a deal with Sinn Féin’s Donnchadh Ó Laoghaire to ensure its passage. Sinn Féin will get concessions on sentencing in a separate Judicial Council Bill, it has emerged.

Confirmation of this deal led to cries of outrage from Fianna Fáil, opposition independents and from within Fine Gael itself.

Veteran TD and former ceann comhairle, Sean Barrett, warned his colleagues that TDs need to “cop ourselves on” over the issue.

Giving voice to the deep unease in the Fine Gael ranks, Mr Barrett said he was not aware of the deal with Sinn Féin and that, in his 37 years in the Dáil, he had seen numerous judges appointed by various governments and not once had there been a collapse of confidence in the judicial system.

Much focus has been on this bill since the Attorney General Seamus Woulfe, a lawyer, described it as being like a “dog’s dinner” because of opposition amendments to it.

He said that he, as AG, should not be excluded from the process of selecting judges, as was the case because of a Fianna Fáil amendment at committee stage.

In order to try to get the bill back on track, Justice Minister Charlie Flanagan brought an amendment to ensure that the presidents of the various courts and the attorney general would be on the new appointments body, along with representatives from the Bar Council and the Law Society.

Yet, he also had to take account of Ross’ demand for a lay majority, so the commission was to be expanded from 13 members to 17, which to anyone’s mind seems excessive.

Problems erupted on Tuesday night, when Sinn Féin decided this was a step too far and they voted against it, causing it to be defeated.

This caused utter confusion as the Dáil had earlier voted to put the judicial figures on the commission.

Left with little option, Ceann Comhairle Seán Ó Fearghaíl concluded there was “an unacceptable level of confusion” and he adjourned the debate.

Then on Wednesday, Minister Flanagan resisted calls to withdraw the Judicial Appointments Bill amid fury and chaos in the Dáil.

Opposition TDs were irate after it emerged the Dáil had incorrectly voted on provisions in the bill after the Government lost a vote.

Once lost, those provisions should not have been tabled, but they were. Ó Fearghail said because the provisions were passed, they could not be undone at this stage, but that the confusion could be rectified in the Seanad.

“As the division on amendment No 8 was lost, technically amendment No 10 should not have been moved. However, it was moved and was agreed on a division and, in accordance with established precedent, that decision cannot be revisited here. Any anomaly arising in the text of the bill can be addressed in the Seanad,” he said.

TDs said that, as a result of the confusion, they were now unsure about key elements of the bill, such as how many people would sit on the commission which will select judges.

The opposition en masse called for the bill to be withdrawn, but Mr Flanagan was not for moving: “I do not intend to withdraw the bill because I believe we have a pathway forward, as outlined by the ceann comhairle.”

As shameful as the confusion in the Dáil was, the behaviour of some opposition TDs was equally regrettable.

Clearly conflating their anger on the moves to lower drink driving limits in the Road Traffic Bill, which Mr Ross is also behind, they sought to abuse the debate to filibuster and vent their fury at the minister.

Change never comes easy and with a bill like this, it is clear the establishment is resisting it at every turn.

Under fire from most, Ross won praise from one lone quarter in the Dáil, namely Fianna Fáil’s John McGuinness: “I do not associate with and want to dissociate myself from the many who have passed personal comments on the stand the minister has taken in that regard. This morning, I heard his speech made last night repeated. I must say he gave a good account of himself and the reforms in which he obviously and sincerely believes.”

Crucially, Mr McGuinness backed Mr Ross’ moves to reform the way in which “unaccountable” judges are appointed, yet said the current bill is deficient.

But Mr McGuinness backed up Mr Ross’ view of the world in terms of the need for change.

Given how long it has taken, how much resistance to the bill there has been, and how personalised the attacks on Mr Ross have become, something good must be going on.

Change may be difficult but in this case, it most certainly is worth it.

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