ALISON O'CONNOR: Judiciary are under siege again at the behest of a shameless populist

A row has been simmering between the executive and judicial branches of government for some time, writes Alison O’Connor

The best that can happen is that the Dáil takes its summer holidays early rather than later, that way the less damage that can be done.

A breather is needed, a lull, a time to catch a breath and to allow wiser heads to prevail, not the possibility of an extra week as has been proposed which would bring us past the middle of July.

As our political leaders have faced one another off in the past few weeks there is an element of runaway train about it all, a sense that matters could quickly get out of control and permanent damage could be done, needlessly.

We might have anticipated that instead of this sense of potential chaos we would still be basking in the excitement of a new Taoiseach, and witnessing just what generational change looks like in action. No such luck.

There is now no doubt that Taoiseach Varadkar is well able to stand his ground in the Dáil. He responds to Opposition questions very ably and with elan, and unlike his predecessor frequently without a script. But the most notable political thing that has prevailed since his ascension is a sense of events being about to spill over into a general election.

One of the things Leo Varadkar said during his leadership pitch was that people would know what Fine Gael stood for as a party. One of the things even the most casual observer would have said about FG through the years is that it was the party of law and order and whatever else had been diluted over the decades that was a bulwark.

There’s an almost comedic element to that now given how the last few years have seen the unraveling of the very fabric of An Garda Síochána. There is little prospect of any immediate improvement there either.

Now Fine Gael appears to have set its sights set on the judiciary. It will argue this is not the idea of FG but at the behest of Minister Shane Ross.

But if all goes ahead as has been threatened, history will show that it was Fine Gael in Government that made theses changes happen in judicial appointments, and that it did so for self-serving reasons.

What all of this has done for the public — those that have been paying attention are doubtless confused, and legitimately so, by all of this politicking — is cast doubts where few if any, existed, on the work of our judiciary.

That is a dangerous, unsettling thing to have happened. This was an area of Irish public life in which people did have confidence and justifiably so.

A row has been simmering between the executive and judicial branches of government for some time. It began in 2009 when there was an attempt to cut the pay and pensions of judges during the recession.

The judiciary has never gotten over the 2011 referendum to allow the government to reduce their salaries that was passed with a huge majority. They saw it almost universally as an attack on their independence.

Fast forward to June 2017 where they are incensed to be under siege again, not least that it is at the behest of a shameless populist they see as hell bent on attacking them, as he claims that the current judicial appointments system is “rotten”.

Without doubt there was an unjudicial rush of blood to the head in their recent various public interventions, which does not set a good precedent either, but in their defence they were provoked.

Everyone knows that judges come from the upper echelons of our society; they arrive on the Bench usually having served time as a barrister, not a profession known for having too many people born into challenging socio-economic circumstances among its ranks.

Without doubt we need more diversity on the bench and definitely more gender balance, but none of what is being proposed is going to ensure that.

The Máire Whelan controversy, where so many wrongs so miserably failed to make up a right, saw Taoiseach Varadkar and Fianna Fáil leader Micheál Martin bandying the names of judges across the Dáil floor, as if they were in some sort of twisted judicial X-Factor.

It veered into very dangerous territory and was a surprising display of poor judgement by Mr Martin.

Given the political nature of judicial appointments over the decades in Ireland it seems counter intuitive that we view our judiciary as being over whelmingly independent, certainly at the upper levels.

But that is no coincidence because that is how, in practice, they subsequently conduct themselves, despite the nature or reason for their initial appointment. In all my time covering politics I cannot remember a single conversation centering on a political bias having been shown by a senior judge, let along a pattern of such behavior.

This is surprising given that the system of appointment has been so blatantly political, with certain barristers making it their business to get on the inside track with either Fine Gael, or Fianna Fáil, or Labour, or back in the day the Progressive Democrats, with the intention of getting themselves onto the bench.

So the system was never perfect but in its own funny way it worked. There is academic research to back this up. Looked at another way there is much about our legal system that could be immediately addressed such as costs, or delays in the court system, which would make far more sense.

Ordinary party members who went along to the recent hustings heard the then minister for social protection say his Fine Gael would be one that stood for something, stood out from the crowd for being distinctive.

Would any of them have imagined that within weeks he would be standing firm with Sinn Féin and Solidarity People Before Profit on judicial appointments, while in the other corner would stand Fianna Fáil, the Labour Party and the Greens, oh and the judges.

This isn’t a short-term damage that might be done either. As mentioned previously it is on top of an already festering wound between the Government and the judiciary.

Yet if it passes it will apparently be the proudest moment of Minister Shane Ross’ ministerial career.

If anything what it will prove, beyond reasonable doubt, is that mé féin independents in Government like Shane Ross, without any party leanings or any party to temper their excesses, or any shame in terms of giving the nod to the Máire Whelan elevation, while all the time bleating on about the independence of the appointment process, can do serious damage.

Of course Minister Ross is not on his own. He’s backed up by a party that is ignoring that potential damage in order to hang on to the reins of power. Vacations all round are definitely in order.

More on this topic

Latest: Senator accuses minister of 'misleading the public' with Judicial Appointments BillLatest: Senator accuses minister of 'misleading the public' with Judicial Appointments Bill

Government accused of filleting Judicial Appointments Bill through own amendmentGovernment accused of filleting Judicial Appointments Bill through own amendment

Ross accuses 'legal insiders' of filibustering and delaying Judicial Appointments BillRoss accuses 'legal insiders' of filibustering and delaying Judicial Appointments Bill

Michael Clifford: Who judges the judges in Ireland?


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