Irish Examiner view: New lay role in choosing our judiciary

Irish Examiner view: New lay role in choosing our judiciary

The nod-and-a-wink appointment of Judge Séamus  Woulfe had bruising consequences, especially for Minister for Justice Helen McEntee.

Former politicians Shane Ross and Alan Shatter have an opportunity to establish a very exclusive club. Each offered legislation intended to modernise our legal system. Each was, for one reason or another, stonewalled. 

Mr Shatter’s Legal Services Regulation Bill, published in 2011, was a response to a 2010 memorandum of understanding with the EU and the International Monetary Fund. The objective was to facilitate independent regulation and to implement recommendations around transparency and competition made by the Competition Authority and the Legal Costs Working Group. 

Mr Shatter’s successor, MEP Frances Fitzgerald, after extensive consultation with the Law Society, diluted the bill almost beyond recognition. Long before the legislation was finalised it was filtered through more than 235 amendments. Mr Ross later offered legislation — described as a “dog’s dinner” by Supreme Court Judge and at that time attorney general Séamus Woulfe — that would have changed how judges are appointed or promoted. 

He proposed a 17-member appointments commission with a lay majority. The legal professions were, to put it mildly, unsettled by this idea of external oversight. Where many saw belated democratisation others saw a concession to populism. Mr Ross lost his seat at the last election so his legislation ran into the sand.

And then came Golfgate.

That implosion shone an unforgiving light on many participants who had to pay a considerable price. It also, though not immediately, refocussed attention on how judges are appointed and how politicised that process can be. The nod-and-a-wink appointment of Judge Woulfe had bruising consequences, especially for Minister for Justice Helen McEntee.

That justified shin-kicking maybe one taken for the team, came to a fruition of sorts yesterday when Ms McEntee brought a Judicial Appointments Commission Bill to Cabinet. The bill was not scheduled until early in the new year but events intervened. The minister recommended a smaller commission than Shane Ross and one which will have neither a lay nor judicial majority. Ms McEntee sought approval to set up a nine-member body to include four judges, four lay people, and the incumbent attorney general. However, a quirk is the attorney general will not have a vote. That, as another current negotiation demands, seems to offer a level laying field between four judges and four lay people. The chief justice will chair the committee, but he or she will have no casting vote. If the commission is deadlocked, it will be asked to retake the vote. One lay member will be nominated by the Irish Human Rights and Equality Commission, and the Public Appointments Commission will identify the remaining three.

Though hardly revolutionary, the proposal seems an advance. Time will tell whether this signals even a modest shift in culture or just a nod to the democratisation that can only enhance our courts’ system and renew public faith in it. Though there are very valid and pressing reasons for these changes it is important to acknowledge too that almost without exception our courts serve this democracy well.

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