GERARD HOWLIN: Depoliticising judicial appointments fundamentally delegitimises them

Shane Ross’s Judicial Appointments Commission Bill 2016 is part of a broader agenda, writes Gerard Howlin.

The furore about Shane Ross’s bill, now tethered to Justice Minister Charlie Flanagan, centres on the proposal to have judges selected by a lay majority sitting on a quango. The epicentre of the row is wide of the mark by a mile.

But that’s an Irish thing. It’s an important issue, but a secondary one. Too late, and invidiously, in light of the supposed recent tendency of the judge-dominated Judicial Appointments Advisory Board to shorten the lists of eligible candidates sent to the Government for appointment, senior judges have complained.

Their complaint is based on the weaker argument, however. Probably rightly, they say that having a lay chair, and not the Chief Justice, presiding over a lay majority will lead to a poorer administration of justice.

The giveaway here is that the issue is fundamentally one of control. If, as I understand, the judge-led, and legal majority on the existing Judicial Appointments Advisory Board, has insidiously exercised control over the Government’s constitutional prerogative to appoint judges by shortening lists of the eligible sent to it, then it is not clear as to who precisely believes in what principle.

There is a fundamental principle at stake. It is a constitutional right and requirement of a government to appoint judges.

Shane Ross’s Judicial Appointments Commission Bill 2016 is part of a broader agenda, which to their cost now, judges have partaken of to a degree. That agenda is the de-politicisation of judicial appointments.

It is a fundamentally wrong turn. And in turn, albeit at a remove, it feeds into a wider anti-political mood. Ironically judicial activism, especially at its most strident, is part of that phenomenon.

The double irony is that the rhetoric of the anti-political is led by politicians like Ross whose ascent to elected office, and in his case the Cabinet, is fuelled by excoriating criticism unleavened by any experience of responsibility. It’s the equivalent to the need to eat what you kill to survive.

What politics is about is taking responsibility. With that comes making mistakes. In a technocratic, globalised age, increasing delegation is required. But the distances, sometimes great, between politicians elected in our multi-seat constituencies and the furthest reaches of the responsibilities visited on them does not deepen democracy.

To the contrary, knowing that the exercise of those responsibilities is sometimes almost totally titular, leads to alienation, even contempt. The final irony is that if power has ebbed from elected politicians, responsibility has not.

The merest county councillor is held responsible to the court of public opinion, in ways judges in the highest court in the land would find intolerable. But this is the independence which judges are accorded on appointment. That independence is for the greater good of the community. It is that, and not the manner of judicial appointments itself, which ultimately is the carrion the anti-political vulture will opportunistically feast on.

Depoliticising judicial appointments fundamentally delegitimises them. The only source of authority is the people, who are sovereign. Their elected representatives have the constitutional right to appoint judges, and a concurrent responsibility to respect and uphold the independence of the judiciary when appointed.

Diminish the right and you diminish the obligation. As stated in this column last week the existing Judicial Appointments Advisory Board was a modest but usually beneficial intrusion into that sphere. It weeded out known miscreants and incompetents and left the essential prerogative of government intact. A form of judicial activism given to shortening the lists sent to the Government was a pale imitation of the agenda it is now prey to. Both are the same — in different guises.

It ranges from the discreet but superior put-down towards an unwashed elected, who whatever the pieties, can’t really be trusted to do what they are elected to do. In the higher echelons of administration — and judges are not immune — politics is an untreated, fermenting cauldron, which in so far as it can, should be controlled.

At the opposite end of this snobbery and paternalism is an agenda based on contempt for democracy itself. It is about succeeding in politics simply to disembowel it: “it never took me seriously in the past, therefore the faculties it requires to succeed in the future should be removed”. That is the essence of Ross’s bill.

Sinn Féin supports it, but Fianna Fáil opposes. However, the latter’s opposition is misjudged. It tackles the symptom and seeks to leave the Chief Justice and legal majority in situ, but rolls over on the root cause.

This is not fundamentally about a legal majority. That is only a symptom. The cause is an outright and fundamental attack on the political prerogative itself. Fianna Fáil’s alternative proposal would mimic Ross’s bill by allowing its legally-led quango rank the candidates for judicial office in order of it preference, instead of simply listing the eligible. The practicality of politics means that a government receiving a list of ranked candidates will find it difficult, if not impossible, to choose freely.

It is astonishing that there is no voice in the Dáil standing up for the unfettered right of an elected government to freely choose judges from a list of as many as are deemed eligible. In delegating by one degree or another, to the unelected and the uncountable one of its most fundamental functions in a democracy, it is potentially de-legitimising the judiciary.

And if that seems a fear too far, then it is a loosening of the bonds of responsibility towards the independence of a judiciary, in the selection of which the people’s representatives are effectively neutered. This is the ultimate poison of anti-politics. Judges may gnash their teeth now, but too late.

One of the key words in anti-politics besides auld schmozzle like “community”, and “workers” in the affirmative, and “establishment” in the negative is “quango”. Few have fed as richly on quango as Ross. He has careered on it. Now in the judicial commission which he wants to create, he is making the ultimate in soft feather beds.

Last year there were 14 judicial appointments. Two were promotions from lower to higher courts. Three were reassignments within the circuit court. Only nine were newly-appointed judges. Yet for this, we will have a full-time, separate commission and executive. And as the old Ross on the issue of quango could tell us, when you have one with feck-all to do, it invents jobs for itself. It’s the nature of bureaucracy.

The quango will become a joke on creation, but the impact of the dismemberment of the political prerogative will not. It needs to be seen as a continuum of what, to a degree, but not in the open, has apparently been in train for some time. More importantly, it is the ultimate reach of language, in which words like “politics” and “politicians” are used insidiously to disable democracy.

The Dáil is trading in appeasement. It is a mistake.


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