Shane Ross, Dan O’Brien and Philip Ryan on the judges controversy,

Legal-eagle TDs rush to defend the appointment of judges as the debate on Shane Ross’s reform proposals turns nasty, writes Philip Ryan

BARRISTERS and judges are intrinsically linked. Not all barristers want to become judges but it is safe to say most ambitious legal practitioners do see themselves one day donning the wig and gown.

The money is not necessarily any better once you become a judge but the prestige, honour and power of ruling over cases can outweigh the financial reward.

Barristers, not all but some, also like to get involved in politics. It’s natural they would do so. Politicians and legal professionals socialise in the same circles and — whether they want to admit it or not — there is an overtly political element to how members of the judiciary are appointed.

There’s a decent smattering of judges who, before becoming eminent, had a go at politics. Some even went before the electorate. Nothing wrong with that, you say. Naturally enough. Being a member of a political party — particularly if said party is in power — is useful to a barrister hoping to become a judge.

At a very basic level, the Constitution states that the Government of the day appoints all judges to courts. There is a process in place for selecting the best candidates to be presented to the Government for appointment, but the Cabinet has the final say. The Judicial Appointments Advisory Board (JAAB) is responsible for selecting barristers to be those candidates. The board is predominantly made up of judges and legal professionals and it is chaired by the Chief Justice, currently Susan Denham.

Transport Minister Shane Ross is trying to change the process. He wants a lay majority on the board and a non-legal professional to be chair.

Ross has come up against caustic and personalised opposition to his proposals in the Dail chamber, especially from TDs who also happen to be barristers. The vitriol has mostly come from Fianna Fail but the Labour Party is also backing its eminent friends in the four gold mines. The Dail register of members’ interests shows there are currently five TDs who list their occupation as barrister.

The most well-known is Fianna Fail’s justice spokesman Jim O’Callaghan. O’Callaghan, brother of RTE’s Miriam O’Callaghan, has a very successful career as a defamation lawyer. He has thrown his full weight behind attacking Ross and his reforms of judicial appointments. O’Callaghan has been media shy at times but he is out front and centre leading Fianna Fail’s defence of the judiciary. Last week he denied his work as a barrister posed a conflict of interest in his campaign to protect the status quo around judicial appointments.

“My job as a barrister is to represent the interest of a client on the basis of whatever their instructions are in accordance with the law. I’ve no conflict of interest in respect of it,” he said.

Out of interest, the Sunday Independent asked Fianna Fail if O’Callaghan was involved in drafting the party’s policy on defamation law reform, given that he has a keen interest in the area. We also asked if there could be a perceived conflict of interest in O’Callaghan working in the High Court on defamation cases while also overseeing the party’s policy in the area.

Fianna Fail did not answer either question. Instead, a spokesman said: “Fianna Fail does not have any current plans to change the defamation laws.”

The Department of Justice is undertaking a review of Ireland’s archaic and needlessly punitive defamation legislation. Once this review is published, “Fianna Fail will make its response known in respect of any legislative changes that are suggested”.

O’Callaghan’s main concern with Ross’s legislation is that the new judicial appointments board will be filled with pro-life and pro-choice activists, and he also believes it to be very unbecoming for the Chief Justice to be on a board she does not chair. I’m sure she’d make the most of the situation.

There are two other Fianna Fail TDs who list their occupations as barristers in the register of interests. Mayo’s Lisa Chambers says she is working through some cases she took on before becoming a TD but when asked if she planned to take on new cases she said: “It’s none of your business.” She also said there was no conflict between being a lawmaker and practising law.

Chambers was not one of Fianna Fail’s fine legal minds attacking the judicial appointments reform in the Dail last week. I’m not sure why.

Wexford TD James Browne also insisted there was no conflict but said he planned to wind down his practice due to time and energy constraints. During last week’s debate on the Judicial Appointments Bill, Browne branded the legislation as Ross’s “hobby horse” and said the new laws were “motivated by the whim of one member who has had a particular agenda for a long time and who has sought consistently to undermine judges”.

His Fianna Fail colleague James Lawless, who is a trained but non-practising barrister, went one step further and likened Ross’s reforms to the attack on the UK judiciary by some of the British press in the aftermath of Brexit.

Here’s the quote: “The crusade of the Minister, Deputy Ross, in respect of the judiciary is reminiscent of the worst excesses of the jingoistic, little Englander, Brexit yellow press — my grandfather called them ‘the Tory papers’ — which engaged in an anti-judicial assault during the Brexit debate.”

Without so much as a hint of irony or humour, Lawless added: “Unfortunately, this type of anti-electoral tyranny appears to be at the heart of this Bill.”

Anti-electoral tyranny? We’re still talking about reforming a process for selecting judges, yeah?

In an attempt to filibuster, Fianna Fail rolled out a raft of reluctant TDs to make stilted criticism of the new laws which most knew would have no impact on how many votes they got at the next general election.

However, Labour Party TD Willie Penrose, who is a practising barrister in the Midlands, was wildly scathing and personal in his criticism of Ross. Penrose described previous judicial reforms proposed by Ross as “hair-brained” and “daftness on stilts”. He said Ross was a “noisy distraction” in opposition and was now an “empty space” in Government.

“It is one thing to come out with gadfly blustering, which is clearly entertaining for a readership in the leafy suburbs, but it does not contribute anything serious to the debate on this issue,” he told a near-empty Dail chamber.

Such is Penrose’s glowing admiration for the judiciary he even used last week’s debate to attack his own party leader Brendan Howlin for cutting judges’ pensions during the years of painful austerity we all had to endure.

He said changes to pension arrangement for judges by Howlin while he was Minister for Public Expenditure and Reform were “wrong” and “emasculated the pensions of judges”. He noted it wasn’t “most attractive to say” but insisted the pension changes should be undone. Contacted by the Sunday Independent last week, Penrose got a little upset at the suggestion there could be a conflict of interest in defending judges in the Dail and acting as a barrister.

“Only fools like you would think that,” he said. “And who are fools like me?” I asked. “People with a “narrow view of life or those who live in a bubble”, he responded.

Barristers, it seems, like to ask questions but are not so keen on answering them.

‘O’Callaghan has denied his legal role is a conflict of interest’