There is something wrong and ridiculous about the apparent state of paralysis at the level of Government in relation to the appointment of new judges. Sources close to Minister Shane Ross are informing the media that Shane has an “absolute” agreement and a “cast-iron” undertaking that no new judges will be appointed unless and until the Judicial Appointments Advisory Board (JAAB) is replaced by a Judicial Appointments Commission.
That, of course, presumes that the Oireachtas is willing to pass legislation in accordance with the model favoured by Ross and described in the Programme for Government.
But the Government is not in a position to ensure the passage of anything through the Houses of the Oireachtas. It is in a minority position in both Houses and its very existence depends on the “Supply and Confidence” agreement it struck with Fianna Fáil.
That agreement, in turn, provides that all agreement between the Government and the Independents on which it also relies must be published. There is no record of a published agreement between FG and Ross concerning a moratorium on judicial appointments. If there is such an agreement (which I would prefer to think does not exist), FG are in breach of the clear obligations that they have undertaken with Fianna Fáil.
Another little problem lies in another term of the FF/FG “Supply and Confidence” agreement. It says that non-government Bills that pass Second Stage must go to the third Committee Stage.
Now it just happens that FF’s Justice spokesman, Jim O’Callaghan, has drafted and published a Bill on the same topic this week. The Government has not even prepared the Heads of Ross’s desired Bill and has not even sent the scheme of such a Bill for Pre-Legislative Scrutiny by the Justice Committee as it is obliged now to do.
This means that Jim O’Callaghan’s Bill is about to “leave the station” while the elements of the Government Bill are still being sorted out in the legislative “shunting yard”.
There is no reason to suppose that the Government’s Bill will ever be published or get past Second Stage. The Dept. of Justice has another Bill – the Bill to establish a Judicial Council – at a far more advanced stage of preparation than the Bill that Shane Ross is waiting for. The present Chief Justice chaired a body that recommended establishing a Judicial Council some 20 years ago – long before her becoming Chief Justice.
In my time as Minister for Justice, I was left waiting by an uninterested judiciary when I tried to legislate with their input for a Judicial Council.
The chief difference between Jim O’Callaghan’s Bill and the legislation promised by the minority Government is that Shane Ross persuaded FG to accept the dotty notion that judicial appointments should henceforth be recommended by a body on which there is a “lay” majority.
Nobody suggests that brain surgeons should be selected by people with no medical expertise, or that county football teams should be selected by people who have never played football. So the idea that people who know little or nothing about the law, the courts, and the Constitution should choose a short-list of recommended candidates for appointment as judges by the Government seems counter-intuitive.
Unless it was shown that we are, or have been, appointing the wrong type of people as judges, it is hard to see why we should completely change the system to have experts chosen by the inexpert.
In the period that I had a role in the appointment of judges – from my appointment as Attorney General in 1999 to the end of my period as Minister for Justice in 2007 – there was no complaint whatever that the wrong type of person was being appointed.
In conjunction with the later Rory Brady as Attorney General, the Government in which I served made appointments on merit and a quick glance at the list of appointments made at that time will demonstrate that a significant majority of appointments were made from candidates who were either known not to be government party supporters or whose political allegiance was unknown.
There was no cronyism. And there is simply no evidence that the judiciary has ever disregarded the declaration made on their appointment by being partial politically in the discharge of their functions. While some appointees may have been less successful as judges than others, there is nothing to suggest that the mode of appointment would, if changed, have produced a better result.
The Constitution is clear on the issue of who chooses persons to be appointed as judges. It is not the legislature and it is not the judiciary. It is the executive – the Government.
Successive governments have fulfilled this role. We have an independent, incorrupt and conscientious judiciary which takes its role seriously and discharges it well. There have been very few judicial “mishaps”.
But Shane Ross became obsessed with the idea that cronyism and patronage were practised to the detriment of the common good. I will not comment about whether he is free from the taint of cronyism or patronage in appointments. He is free to choose his political allies for well paid advisory positions if he chooses.
He originally wanted public scrutiny of appointments such as happens in the USA. How he imagined that such a procedure would de-politicise judicial appointments was very hard to fathom. When he became persuaded of the folly of that idea, his obsession then centred on the need to remove the de facto choice from the elected government.
Well he should be aware that the present JAAB short-list does not bind the Government at all.
The Government is –and must be under the Constitution – free to appoint any person who is objectively eligible to be appointed by reference to statutory criteria. The fact that a new Commission thinks that of the ten suitable people applying for appointment, three are the “best” and that among those three, applicants are ranked in a particular order of merit, cannot constitutionally deprive the Government of the power and discretion given to them alone to appoint an objectively suitable and qualified person to judicial office.
The Government’s constitutional role or function in making judicial appointments cannot be delegated to another body by the will of the legislature. And the legislature cannot by law create a system that prevents the Government from appointing a person possessing objectively established eligibility by requiring it to appoint persons considered by a body other than the Government to be more suitable.
While it is open to the legislature to define objective terms of eligibility as part of the constitution of the courts, it may not deprive the executive of the right to appoint an eligible person because there is, in the minds of some outside body a more meritorious candidate.
It is open – and has very successfully happened since the JAAB was created – for the Government to appoint a person to be a judge who has never applied to or been considered by JAAB at all. Likewise, it would be constitutional to require any appointee to undergo a negative vetting procedure. But the Government cannot be hog-tied by law into acquiescing in a choice largely made by others. Any such law would be un-constitutional.
All this is acknowledged in Jim O’Callaghan’s Bill which with a little amendment is as far as can or should be gone. Shane Ross is not the Minister with the advice or expertise or judgment to dictate legislative change or to veto appointments to the judiciary pending such change.