Judicial vacancies must be filled so citizens can access the system

As needed as reform of the judicial appointments system is, if Shane Ross holds off on filling vacancies until his bill is through and a new system is in place, it will be more about his ego and politics as usual, not the greater good, writes Michael Clifford

NEW politics has many parents, one of which is Shane Ross, the minister for transport. One of Mr Ross’s contributions to the new dispensation is a pledge to end the system of judicial appointments which many see as one of political patronage. A question arises as to what cost is attached to Mr Ross’s ambition in this regard. Is it worth holding up appointments until a new system is in place, as he is demanding?

Or does that actually frustrate access to the courts for citizens, who already have to jump tall financial hurdles before even getting inside the door of a court? Is Mr Ross’s current stance one of political grandstanding — irrespective of the real cost?

Since the foundation of the State, the appointment of judges has been in the gift of the government of the day. In legal circles, anybody who harbours ambition towards elevation to the bench knows that it helps to be involved with one of the likely parties of government. There is a long record of governments appointing members or activists within their own parties to the job.

As Ruadhan MacCormaic points out in his recently published book, The Supreme Court: “Local solicitors would contact their TDs, who would call or write to ministers or their advisors to convey the message. Candidates’ election agents would seek preferment on the basis of their service to the party.”

The system was subjected to a little tinkering in the 1990s, when the Judicial Appointments Advisory Board was set up. This body effectively weeds out those deemed unsuitable for preferment, but the final say is still with the minister for justice. Such a reform is justifiably seen as cosmetic..

Mr Ross’s system would see a new body established to vet candidates. This body would have an independent chairperson and a majority of non-legal people, and it would recommend three names to the minister.

The reform represents a tightening of the appointments system. This is to be welcomed and was included in the programme for government. It’s unlikely that Fine Gael would have consented to such a reform if it wasn’t forced to do so.

Now, however, a major problem arises. There are vacancies, particularly in the Court of Appeal, which need to be filled. There will be more vacancies in the coming year, during which time it is highly unlikely the new system will be in place.

The heads of bill have not yet been published. After that, the slow passage through the Oireachtas begins. The minority government can’t pass the bill without co-operation from the opposition benches.

In addition, reform is usually greeted with suspicion in legal circles, as evidenced by the torturously slow attempt to legislate for a judicial council, and the length of time it took to usher in the reforms to the legal business, first attempted by former minister Alan Shatter. He began the process in 2011, and the final, watered-down act became law just last year.

The smart money says Mr Ross’s proposal won’t see the light of day until the back end of next year at the earliest. In the meantime, the courts have to continue doing their business. Is it worth waiting for passage of the bill to prevent, as some might see it, the ranks of the judiciary being further filled under the current flawed system?

Mr Ross is holding tough. Last month, the Taoiseach told the Dáil that there was “a substantial backlog in the Court of Appeal” and that “a case was being made” for the appointment of new judges to ease delays.

“There are a relatively small number of appointments that need to be made now,” he said.

A few hours later, his spokesman rowed back on that, saying there were no plans for new appointments. Separately, figures in Mr Ross’s Independent Alliance have made it known that an agreement is in place for no more appointments until the new system is in place.

Last Tuesday, the Taoiseach denied in the Dáil that the Independent Alliance are preventing the appointment of judges to fill vacancies. Yet the alliance maintains there is an agreement that no new judges will be appointed until the new legislation is in place.

So what’s it to be? No appointments until the bright new era dawns? Or will Mr Ross have to find a reverse gear and compromise on his deal with the Government?

What started out as a pledge to reform has morphed into an exercise in reaching for political capital. The Independent Alliance needs a few bits and bobs to illuminate the difference between its entity and politics-as-usual.

Quite obviously, it was decided — principally by Mr Ross as this was his baby — that a stand would be made on the issue. Yet his proposals are evolutionary rather than radical. While his measure is welcome, there is absolutely no evidence that the quality on the bench will be greatly enhanced following passage of a new judicial appointments law.

Delaying appointments until its passage will have an impact on citizens trying to access the courts. Is everybody to hang tough with Mr Ross until he can walk into the Dáil, waving a new law, declaring that he has struck another blow against prevailing vested interests?

It’s difficult to see why there can’t be agreement between the constituent parts of Government on appointments between now and passage of the bill. Surely, that would be preferable to having the courts clogged up at the behest of Mr Ross’s ego.

Such a compromise would require a climbdown on Mr Ross’s part, but so what?

The alternative is to see a continuance of the kind of politics that is as old as the hills, whereby politicians put a premium on doing what looks good rather than that which might effect real and worthwhile change. Nothing new about that. Different people, different political entity, same old story.