IT’S a pity Shane Ross wasn’t at the Disclosures Tribunal last Tuesday. Judge Peter Charleton opened the day’s proceedings by serving notice of a change in the schedule.
“I am sorry I was a few minutes late,” he said. “One of the reasons is that, apparently, I was to sit in the Court of Appeal tomorrow and on Wednesday, but the sittings have been cancelled, due to a lack of judicial resources, so I am now free to sit here.”
For the citizens awaiting to hear an appeal, this failure of the court to sit represented more delay, probably more cost, and more worry and stress.
Across the Liffey, in the Four Courts, it was the same old same old the previous Thursday. President of the Court of Appeal, George Birmingham, noted that the court was to hear a case involving a pensioner convicted of transporting a bomb during the Queen of England’s state visit to Ireland.
The pensioner wants his appeal heard in Irish, as is his right. “If you read the newspapers,” Judge Birmingham noted, “you would know I have difficulty finding three judges to speak English.” This was a reference to his reported comments from the previous day, in which he pointed out that two recently retired judges had not been replaced and that two more were due to retire shortly.
The current waiting time for an appeal is 22 months. This is a needless imposition on citizens who have felt compelled to go to court — often with massive financial risks — and on the victims of crime looking for closure.
On Tuesday, the Cabinet appointed four more judges. This was a long time coming, but the appointment of any judges, in the term of this government, has been fraught with danger. Ross, the minister for transport, believes the system is “rotten” and that politicians and judges appoint their “cronies” to the bench. He has threatened to block appointments, until his new system is in place.
The old system definitely required reform, and it could have been done with minimum fuss. But once Fine Gael appeared to be receptive to taking politics out of appointments, Mr Ross had to find another target for his crusade. He turned to the judges and declared they were complicit in the “rotten” system.
So he crafted a bill in which a large committee would determine appointments. Crucially, this body was to have a minority of judges and a lay chair.
Curiously, Mr Ross appears to be the only one to view the existing system as “rotten”.
According to the European Union, this proposal risks impinging on the independence of the judiciary, a vital cog in democracy, which is under attack in both Eastern Europe and from Donald Trump in the USA.
There is no enthusiasm in government for his proposal. It has caused major tension between him and Justice Minister Charlie Flanagan. There is no enthusiasm among Mr Ross’s colleagues in the Independent Alliance.
Fianna Fáil is strongly opposed to the proposal. Sinn Féin is backing it after extracting a concession that sentencing guidelines would be introduced, a sensible measure that shouldn’t require any horse trading.
So, what is it with Shane Ross and judges? We are all products of our experience and environment. In that vein, there is one episode in Mr Ross’s life which may, subconsciously at least, feed into his mindset, in which he is an outsider taking on the insiders, who are perpetuating a “rotten” system.
The Greencore affair was the first of a series of business scandals that punctuated the 1990s in this country. It involved various businessmen in and around the national sugar company.
High Court-appointed inspectors were sent in to investigate. And then, in a great Irish tradition, the inquiry became the focus of attention. The two inspectors were paid fees that left many politicians uneasy. After initially being allowed 28 days to make their inquiries, they ended up taking 84, delivering their report in February, 1992, and receiving fees of £678,507, or around three-quarters of a million euro in today’s money.
There was outrage, and nobody was more outraged than the Sunday Independent columnist, Shane Ross. His outrage led to libel actions from one of the inspectors, senior counsel, Ciaran Foley.
Crucially, Mr Foley brought his case to the Circuit Court. This would ensure smaller damages, if successful, but the case would be heard by a judge only, and no jury.
The judge, Frank Spain, ruled against Ross and his paper. As related in Gene Kerrigan’s book, Hard Cases: “Judge Spain said that although Shane Ross had written that the inspectors had done an efficient job and that the fees were ‘immoral, but not illegal’, that was not good enough. Senator Ross’s descriptions of the inspectors as ‘ripping off the State’, ‘milking’ the taxpayers, and being ‘predators’ on the taxpayers meant that the inspectors were dishonest and venal.” The judge awarded the maximum £30,000 damages because, he said, Senator Ross had, in the witness box, maintained a “stubborn adherence” to the words he had used in the article.
Ross and his paper appealed, but the High Court upheld the verdict. Judge Hugh Geoghegan was no less forthright in coming down on the side of the plaintiff.
There was much sympathy for Ross. His paper had first exposed the Greencore scandal, and the end result was it got sued by those appointed to investigate the affair. While the judges discharged their duties with the utmost propriety and legal rectitude, there was a feeling, in both media and politics, that natural justice was missing.
What has any of this got to do with Mr Ross’s apparent belief that the system of judicial appointments is “rotten”? Maybe nothing, but who knows how a politician’s subconscious psyche works. Like nearly anybody who loses in court, he must have felt some frustration.
Of course, all of that was a long time ago. Since then, Mr Ross has gone on to fight other causes, as a journalist, and had his beloved Stepaside Garda Station reopened, as a minister.
His crusade looks like arriving in the Promised Land sometime after the summer. The smart money says it won’t make any real difference to the quality on the bench or to the prospect of citizens getting resolution more quickly or more efficiently. It will certainly have no impact on the scandal that is the cost of going to court.
But it will leave the minister with a legacy. He will no doubt, in the future, regale various gatherings with an account of how he, an outsider, reformed the “rotten” system of insiders during his time in government. And, equally without doubt, he will get a resounding round of applause.