It’s time to end toxic political influence in our judicial system

Change is hard to achieve in conservative Ireland, yet we are on the cusp of a major breakthrough when it comes to choosing our judges, writes Shane Ross

PRESIDENT of the High Court Peter Kelly is held in high esteem by nearly everybody. Including me. He has always been a no-nonsense judge, happy to kick against the pricks.

Last week he waded in on the side of the judges against the mildly reforming Bill set to remove the selection of judges from the grip of political cronyism. He dubbed the Government’s Judicial Appointments Commission Bill as “ill conceived, ill advised” and being processed with “undue haste”.

Not surprising from a judge, but maybe a bit surprising from Peter Kelly. Such a statement is expected from some of his friends on the bench. On a daily basis they have been circling the wagons round the ramparts of the Four Courts, eager to denounce the Bill as a “kick in the teeth” for the judiciary. Legal celebrities have been wheeled out one by one, to heap pressure on TDs.

Peter Kelly is a good man and a good judge. On past performance he ought to be on our side. Those unfamiliar with his outspokenness might like to know that less than five years ago he caused another stir when he rightly claimed that appointments to the Supreme Court were “purely political”. He went on to explain that the current flawed set up — the Judicial Appointments Advisory Board (JAAB), supposedly designed to take the filling of judicial appointments out of the political arena — “doesn’t really work”. Wow. At the time, some of us cheered loudly for Peter.

With impeccable logic, in the same interview, Peter Kelly called for an independent body to appoint judges and insisted that currently some people who would make excellent judges were “passed over” in favour of others who were not so well qualified. Bravo.

Peter Kelly was on the button. But that was 2012, when there was no hope of reform. Today, there is. Today an end of political favouritism in the appointment of judges beckons. In response they are mobilising the judicial lobby as never before. An avalanche of vitriol is floating across the Liffey from the Four Courts to Leinster House. It is eloquently delivered there by the voices of the Law Library in our parliament, Fianna Fail barrister Jim O’Callaghan in the Dail and the former Progressive Democrat leader, barrister Michael McDowell, in the Seanad. It has echoes of the row between the elected government and the judges in 2011. On that occasion well-paid judges showed stubborn resistance to a referendum allowing their high level of pay to be reduced in line with ordinary public servants suffering real hardship.

The occupants of the Four Courts know how to pick a political row. In my experience in Leinster House, the most wily lobbyists against reforms are the judges, followed closely by the publicans and the bankers. All three are immensely powerful. All three know how to press political buttons. And all three are uncannily media savvy.

Our judiciary are good at their job. Unfortunately, as they see the end of political patronage on the horizon they have spotted perfect new patrons: themselves.

They can puff and blow all they like. A pity none of them acknowledged an independent, but highly embarrassing, entry into the controversy last week. A Council of Europe anti–corruption body (GRECO) found that Ireland was “globally unsatisfactory” in the area of judicial appointments and independence. Ireland had failed to implement eight out of 11 of its recommendations made in 2014. Tough timing.

The Bill before the Dail is our response. It has twin aims. First it will end the scourge of Fianna Fail, Fine Gael and Labour picking their own favourites for judicial preferment — when they are in power. Second, it will allow competent ordinary citizens to participate in the selection of judges.

Who is afraid of ordinary citizens? Who fears a lay (non-legal) majority on the commission?

A significant number of our legal elite does. How on earth, they whisper, could mere citizens select learned judges? The opponents of such mortals’ participation bear the strong whiff of condescension. Statements from the judiciary’s apologists imply that they alone have the wisdom to decide who is worthy of sitting alongside themselves on the various benches.

They should cool it. The Bill accommodates their wisdom. The proposed commission of 13 includes no less than six legal eagles. Three judges will sit on the body, accompanied by a nominee of the Bar Council, a Law Society representative (solicitor) and the Attorney General. The commission will be bursting at the seams with heavyweight legal advice, legal expertise, legal experience and legal wisdom. The other seven members will be responsible representatives of civil society including those with experience of victims groups, diversity, equality, mediation, corporate governance, human rights and other important non-legal interests. Gender balance and diversity will be specific requirements. The lay members will be recommended by the Public Appointments Service. For the first time — incredibly — the need for “merit” will be legally required in the selection process.

Yet the judges are thundering against the “humiliation” of the chief justice having to serve on a body to sit alongside a lay chairperson. Are they serious? The lay chair (and the lay majority) are included to ensure that the commission does not deteriorate into a body of insiders, chaired by an insider. No one has anything but a high opinion of current chief justice Susan Denham, but she is, sadly, retiring in the coming weeks. No law should be tailored for capable incumbents. It is written for future decades, if not generations, of unknown chief justices.

Similarly, the legal elite are openly uncomfortable with a lay majority. God forbid that these independent novices, uneducated in the mysteries of the law, could pick candidates in defiance of the preferences of wise insiders!

The lay majority is protection against legal insiders — at some date in the future — lining up to promote their own personal favourites. The Four Courts is a cosy place.

There may be some unfamiliar moments ahead for ambitious lawyers. Legal luminaries with aspirations towards the bench will have to face independent citizens, as well as judges, across the table in interviews. It will be a bit of a culture shock. Under the current system of selection, there has never, in its 22-year life, been a single interview for a judicial position. That lapse alone underlines the crying need for reform.

Reform is hard to achieve in conservative Ireland. Yet we are on the brink of a breakthrough. Judges and barristers may be fighting a rearguard action, but the Law Society, representing Ireland’s solicitors, has broken ranks and is broadly supporting our reform. The majority of independent TDs and smaller parties are expected to join the Independent Alliance and Fine Gael when the Dail votes this week. Fianna Fail, led by barrister O’Callaghan, will be joined by a few maverick supporters of the old regime in opposition to it.

Whatever the final contents of the Bill, we are on the cusp of finally removing toxic political influence from our judicial system.