Hysterical judges need to get off their high horse
Detestation of Shane Ross should not colour views on necessary changes, writes Dan O’Brien
‘Our judiciary is among the most independent in the world’
ON moving home after having spent almost all of my adult life abroad, two things surprised me about Ireland. The first was how careful Irish people are to avoid confrontation and causing offence to others, particularly in professional settings. The second was an all-pervasive legalism and deference to the lawyerly class.
Shane Ross never cared much about causing offence before becoming a minister. From his perch in this newspaper over the years he highlighted many important issues and as a member of the Oireachtas over decades he made valuable contributions to the committees on which he sat. But he frequently personalised issues unnecessarily in both of those roles. Not infrequently did he mock and belittle. Ross’s modus operandi in those roles made him many enemies and it is striking how many people loathe him, including people who have never been personally affected by his comments and actions. Since he took ministerial office his legions of detractors have been giving him doses of his own medicine at every opportunity.
For this, he has nobody to blame but himself. What goes around comes around, particularly in a society that is uncomfortable with plain speaking and personalising contention. But none of that means that all of the things he is trying to achieve are wrong. Nor does it mean that some of the criticism he has come in for is as unfair as some of the criticism he doled out to others over the years.
Among the most curious criticisms is that he should not raise issues beyond his own ministerial brief in the Department of Transport. Ross is the de facto leader of the collective of independents that form part of the Government. Changing the method of appointing judges is included in the agreed programme for government and was put there at the insistence of the independents. For Ross not to push for it to be implemented and to stay quiet at cabinet on issues other than matters of transport would be akin to expecting the Labour Party in the previous administration to have had no say in areas over which its cabinet members did not preside as ministers. The argument that Ross should ignore the judicial appointments issue and others not related to transport is specious.
On the substantive matter of the proposed changes to the judicial appointments board, the objective — greater transparency in how judges are selected and the ending of party loyalists being preferred when their side is in government — is both on the money and overdue. The shrill and sometimes hysterical reaction to the proposals by judges, barristers and their ilk is not only wrong-headed, it says a great deal about the preening self-regard of the lawyerly class.
Let’s recall that the judiciary is not comparable to a hospital or a sports team, as former High Court president Nicholas Kearns absurdly suggested last week. The judiciary is one of the three branches of government. It is the only unelected branch. Members of the other branches are chosen by laypeople — the electorate. In some jurisdictions, some judges are also directly elected.
These basic facts make a mockery of the comments made by the Association of Judges of Ireland. Last Monday that body issued a statement that contained the following: “It is hard to imagine any other walk of life in which the majority of those involved in an appointment process would be required to come from outside the ranks of those serving in the area to which the appointments are being made.”
If the two other branches of government are not a good enough example of “other walks of life” for the judges, they might consider how senior civil servants are appointed. The Top Level Appointments Commission has a majority of non-civil service members. Its chairperson must come from the majority, a structure that is also being proposed in the current legislation for the appointment of judges.
The same statement by the Association of Judges also suggested that the proposals were retrograde when compared with other countries, stating that they “do not accord with international standards”.
On Thursday in the Irish Independent that newspaper’s legal affairs editor, Shane Phelan, scrutinised the claim. With some understatement, he found that it was “not entirely accurate”. In England and Wales, a layperson has chaired the judicial appointments body for over a decade. In Scotland there are an equal number of lay and legal people on that nation’s judicial appointments body and the lay members decide who chairs the collective. In other common law countries practice varies, but Phelan found no evidence to support the judges’ claim that the current proposals are in some way out of line with “international standards”.
Nor did the evidence seem to inform the commentary of former Supreme Court member Catherine McGuinness. Her statement, that having a lay chair of the appointment body would be a “kick in the teeth” to the office of chief justice (who currently chairs it), was not only astonishing given how practice has changed on our neighbouring island, but exemplified the intemperate and over-the-top reaction of insiders.
A further point needs to be made about the Association of Judges’ intervention. The lawyerly class has always made a great deal of the importance of the separation of powers. There is a very good reason to do so. Carving up the enormous power that the State wields, and ensuring that the branches of government do not encroach into each other’s spheres of competence, is a cornerstone of limited democratic governance.
Yet the association’s intervention last week was a clear encroachment into the competence of the legislature. Just as it would be wrong for members of the Oireachtas and the Government to interfere in the conduct of cases before the courts, it is wrong for judges to interfere in bills that are going through the legislature.
Yet another, and related, line of attack by judges — past, present and possibly future — is that the proposed changes to the appointments process erode the independence of the judiciary. Judges and law library types frequently resort to this, the most notorious recent example being when Justice Peter Kelly in 2013 made the claim to a large group of businesspeople and foreign diplomats that the Government was dismantling judicial independence “brick by brick”.
If the proposed legislation threatened to lessen the independence of judiciary it would indeed be a very serious matter. But it does not.
Comparative international studies show that the Irish judiciary is among the most independent in the world and that this has long been the case. That independence is not only enshrined in the hardware of constitution but is deeply engrained in the software of political culture. There is a wide support for the broad status quo across the political spectrum. Even if Shane Ross wanted, a la Silvio Berlusconi, to clip judges’ wings, he is no position to do so, not least because of Fine Gael’s dominance at cabinet and the influence the law library types have within that party.
That the appointments process should be above suspicion is all the more important because Ireland’s judiciary is unusually powerful relative to its counterparts across the rest of Europe and because the lack of diversity in its ranks leaves it vulnerable to delegitimisation — if last week’s Jobstown trial verdict had gone the other way those who blame all society’s ills on elitism would have been busily delegitimising it this weekend and long into the future.
The proposed changes to the process of appointing judges are not at all radical. They may not even end up making much of a difference. But in their design and intent, they are a step in the right direction. It is surely of some considerable significance that the Law Society, the body representing solicitors, supports them.