If a civilian can lead gardai, why are our judges shielded from outsiders?
There seems to be a contradiction in Fianna Fail’s approach to the Garda and the judiciary, writes Eilis O’Hanlon
FIANNA Fail justice spokesman Jim O’Callaghan does not regard it as essential for Noirin O’Sullivan’s replacement to have real-life experience of the challenges of policing.
Speaking on Morning Ireland in midweek, O’Callaghan explained his thinking: “If you look at the job, it’s primarily a management job. The primary responsibility of the Garda Commissioner is to implement and push on the reform agenda and implement the changes set out in the Garda Inspectorate report… I think we should broaden it as wide as possible so that everyone can be considered.”
O’Callaghan is entitled to that view — it’s a free country — but there appears to be some puzzling anomalies.
The first is how to square the fact that the Garda is in such a mess that a radical structural overhaul is necessary, with the contention that the person to do it should need no previous experience of the unique circumstances faced by policing.
That seems a big ask, to say the least. Running a police force is not the same as managing a branch of SuperValu. There’s far more to it than the organisation of staff and resources. The learning curve will be steep enough, without unnecessarily increasing the angle of ascent. Not every problem can be fixed with the application of a dollop of professional managerialism.
In his defence, O’Callaghan’s belief that an outsider with no background in policing might be a suitable candidate for Garda Commissioner is shared by the Government.
The same can’t be said for the second anomaly, which is the apparent contradiction between the Fianna Fail justice spokesman’s embrace of non-specialists for the job of running the Garda, with his resistance to opening up the judiciary to equivalent external laypersons. No one would dream of suggesting that a judge should have no legal background, after all.
As O’Callaghan himself told the Dail back in June: “The job of being a judge is one that requires significant expertise. It is not a job that can just be conducted by any person who thinks he or she can do it based on a belief of what is right and wrong.”
Why does that not also apply to those who enforce, as well as interpret, the law?
O’Callaghan has spent months opposing legislation to establish a new Judicial Appointments Commission, as agreed during negotiations on the Programme for Government.
On the insistence of Shane Ross, now minister for transport, it was decided this body should be headed by a chairman from outside the legal profession — making a majority of laypersons, reversing the balance that previously existed on the Judicial Appointments Advisory Board.
The stated intention of the legislation is to depoliticise the appointment of judges.
O’Callaghan is fully supportive of that intention, but is scathing about the proposed bill, telling the Dail back in June that it was “ill considered” and “badly constructed” and would have “significant detrimental consequences”.
O’Callaghan admitted that opening the appointment of judges to the influence of laypersons appears superficially “transparent” and “modern”, but declared: “If we now have a situation where the advisory board is dominated by individuals who will look at candidates based on paper-based assessment, I do not think they will bring the same insight, knowledge and experience to the board that judges have.”
He added: “My fear is that we are now moving to a situation in which we will have a process that is very much paper and interview based. I know many people who would look like they would make excellent judges on paper, but would be a disaster if appointed.”
No doubt. But can’t the same be said for potential Garda commissioners with no previous policing experience? That they’d look good on paper, but lack the skill set needed to do the job?
Fianna Fail asked back in June for the Chief Justice to chair the commission, and threatened to vote against the legislation if that was not agreed. The party also pledged, once in office, to repeal the bill.
By October, O’Callaghan was offering a compromise, — namely that a retired High Court, Supreme Court or Court of Appeal judge could sit in the chair. The Government refused to back down and nor did it need to, because Sinn Fein support meant the bill would pass even with FF opposition.
But O’Callaghan has still not shifted from his core conviction that judicial appointments are best overseen by a committee dominated by members of the judiciary whose experience has fitted them to recognise the qualities needed by judges.
It could be that there is no contradiction in his stance, because the questions are separate and self-contained, and what’s right for the Garda is not right for the judiciary.
He might also argue that the judiciary has acted with honour throughout the history of the State — which it has — while the Garda has so disgraced itself in a number of instances that a bit of outside oversight wouldn’t go amiss.
Few would pick a fight on that score if O’Callaghan argued it. He is also definitely right that the annual cost of up to €1m for the new Office of Judicial Appointments looks madly excessive.
Is such a “bureaucratic quango” really needed, just to meet a handful of times a year to consider candidates for judicial office before sending a shortlist to the Government for the final decision? The new bill could legitimately be accused of trying to fix what isn’t broken. Jim O’Callaghan is entitled to raise his concerns.
Having said that, it would be remiss not to at least ask if his seemingly contrasting attitude to the issue of the fitness of laypersons to oversee the police and the judiciary does not point to a blind spot in his own thinking.
He is, after all, a barrister himself, a member of a profession that has always jealously guarded its patch.
Judges have certainly never welcomed meddling by outsiders. Former Supreme Court judge Catherine McGuinness, went to the unprecedented length of publicly declaring that not making the Chief Justice chair of the Judicial Appointments Commission was a “deliberate kick in the teeth” that tells the judiciary “you’re not good enough”.
We get it. Members of the legal profession feel under attack. As such, it must be hard for them to recognise the incongruity in seeking to ringfence themselves from outside influences. Contrast this with opening Garda leadership up to, in O’Callaghan’s word, “everyone”.
But it was instructive that Fianna Fail’s justice spokesman told the Dail in June that asking the Chief Justice to sit on a committee without chairing it, whilst having to “listen to and be instructed” by a layperson in the chair, would be “insulting”.
Is the judiciary really so sensitive and delicate that changes which are “not particularly radical”, as Sinn Fein put it, are taken as frightful affronts to their dignity?
‘Is the judiciary really so sensitive and delicate?’