Change of heart shows serious lack of judgment

Shane Ross’s opposition to my Bill came as a huge surprise, especially since he praised me for it, writes Jim O’Callaghan

LAST Sunday the Minister for Transport, Shane Ross, wrote an article about my Judicial Appointments Bill.

Although many will have been surprised by Shane devoting such time and effort to an issue outside his departmental portfolio, I welcome the fact that he is interested in my legislation.

However, I was startled when I read Shane describing my legislation as “a judicial coup aimed at heading off serious reforms”.

I was startled, because 10 days prior to his article Shane had stood up in Dail Eireann and congratulated me “for introducing a very constructive and radical departure for a major political party”.

He also said, “the Bill tabled by Deputy O’Callaghan is a tremendous step forward”.

I greatly appreciated his support. In fact, I was slightly embarrassed, particularly when Shane said: “It has taken a great deal of courage and imagination to put forward such an encouraging change. For a barrister to do it is remarkable and should be noted.”

Why then did we have this remarkable change of heart by Shane in last week’s Sunday Independent?

In his article he suggested he may have “been blindsided” by my Bill.

I find it hard to believe that Shane, an experienced and permanent member of the Oireachtas for the past 35 years, could be blindsided by a new member of only 35 weeks.

The manner by which judges are appointed needs to be reformed. At present, under our constitution judges are appointed by the President on the nomination of the government.

Before nominating people, the government must first consider a list of candidates recommended by the Judicial Appointments Advisory Board (JAAB).

Members of government do not know, and cannot be expected to know, which lawyers will make good judges.

For that reason the JAAB seeks to recommend persons who are suitably qualified. The problem with the JAAB is that it recommends seven persons per appointment and gives no indication as to who are the best candidates.

Unquestionably, there have been occasions where very good candidates have not been appointed, whereas candidates with political affiliations have been.

This is not a widespread problem but it has happened and it is one of the reasons why I have sought to reform the system.

My proposal is that a new Judicial Appointments Commission would be established. It would recommend, and rank, three candidates for a judicial vacancy. In order to ensure that this legislation complies with our constitution, the government would still be given power to select any one of the three.

However, if the government refused to select any of the three and instead nominated a person who had not been recommended it must provide a reasoned explanation for so doing on the minister’s website. (the Minister for Justice’s that is — not the Minister for Transport’s).

Shane and most members of the Oireachtas agree with the thrust of my proposal. Where there is disagreement between Shane and myself is in respect of the make-up of the Judicial Appointments Commission. Under my proposal, five of the 12 members of the commission would be judges — the Chief Justice and the four presidents of our other courts.

The reason I proposed them as members is because judges are more aware than most of how courts function and the characteristics and qualities required of lawyers who wish to be judges. It seems fairly obvious that, for instance, if a newspaper wishes to appoint an editor the interview panel must contain people who know how a newspaper functions.

The seven other members proposed for membership of the commission under my Bill are non-judicial members nominated by the Citizens Information Board, the Higher Education Authority, the Competition and Consumer Protection Commission, the Irish Human Rights and Equality Authority, the Bar Council, Flac and the Law Society.

Although Shane is now critical of the composition of my commission he has never specified who he believes should be recommending judges. In 2013 he introduced legislation proposing that judges would be selected by a Joint Oireach- tas Committee, a majority of which must be made up of opposition politicians. These politicians in committee would then consider, in public, candidates recommended to them by a Judicial Appointments Council that, he said, should be “drawn from a broad spectrum in society”.

To date, Shane has not identified who these people “from a broad spectrum in society” are. His proposal would make the process even more political than it is at present.

Aside from the membership of the Judicial Appointments Commission, Shane doesn’t have any real opposition to my legislation.

Why then is he on a pretend crusade against what he refers to, Donald Trump-like, as “rotten” politics?

I suspect he is doing it for two reasons.

First, Shane is not aware of the real problem that exists at present in the area of judicial appointments. He thinks the problem is that people are made judges because they are insiders who are appointed by their friends.

That is not accurate. Anyone with even a passing knowledge of judicial appointments will know that the biggest problem at present is trying to attract a broader range of lawyers to apply for judicial appointments. My legislation, by making the criteria for appointment more transparent, will hopefully broaden the category of people who apply.

I suspect the second reason Shane is now opposing my legislation is that he wants to be seen as the person who reforms judicial appointments.

I don’t care who reforms judicial appointments provided change happens quickly. Shane has now stopped the Government filling judicial vacancies. The people affected by this failure to govern are those who are trying to get their cases heard and, indeed, victims of crime who are waiting for prosecutions to commence.

Shane has failed to fill 35 vacancies on State boards under the control of his department. Having paralysed appointments in his own department, the public can legitimately ask why he has also sought to paralyse the appointment of new judges.

Perhaps Shane is afraid to govern.

‘Why then is Shane on a pretend crusade against what he refers to, Donald Trump-like, as “rotten” politics?’