Trouble at Bill: Flanagan to frustrate Ross over judicial appointments

RELATIONS between Fine Gael and Shane Ross are likely to reach a new nadir courtesy of a key amendment which Justice Minister Charlie Flanagan intends to table to the Judicial Appointments Commission Bill next week.

Taking judicial appointments out of the hands of politicians has been a central plank of Mr Ross’s ‘reform’ agenda in government.

The Transport Minister, as part of his war against political ‘cronyism’, has championed

‘The commission is purely advisory’

the creation of a judicial appointments commission which will replace the current system where the Cabinet appoints the judiciary.

It was expected the Bill would, after an unprecedented year-long Seanad filibuster, pass before the close of the year.

However, this plan is likely to be thrown up into the air when Mr Flanagan, next week, tables a new section to the Bill.

Section 8, titled ‘Power of the Government to Give Advice to the President Unaffected’ will explicitly say that when it comes to the senior courts nothing in the proposed Act affects the rights of the government to appoint persons to be judges outside of the judicial appointments process.

The section, which has been seen by the Irish Mail on Sunday, notes: ‘Nothing in this Act shall be construed as limiting the power of the government with respect to the advice that the government give to the President regarding the appointment by the President under Article 35 of the Constitution, of a person to be a judge.’

An eminent constitutional lawyer told the Irish Mail on Sunday that ‘this will mean the Act cannot prevent the government from appointing any eligible person, in the sense of having years of practice to be a judge of the High Court without involving the commission’.

They also said: ‘It means the government can choose between judges for the Supreme Court and the Court of Appeal without involving the commission.’

The high-profile lawyer added: ‘The bottom line is that the commission is purely advisory and can be bypassed by the government when the government wishes.’

One jubilant Fine Gael minister noted: ‘Ross must have been asleep at the wheel to let that through.’

This, they said, ‘completely subverts the Bill. Ross can have his little judicial appointments quango but ultimately nothing changes. It is a triumph for the Sir Humphreys’.

The minister added: ‘McDowell and the filibusters will be falling around laughing. There will be no delays getting that Bill through.’

Tensions has already been ratcheted up between Ross and his Fine Gael Cabinet colleagues over the transport minister’s decision to block a nomination to the Supreme Court last week on the grounds that it was premature. Two other nominations to the Circuit and District Court on Tuesday were also pulled.

Mr Ross was recently sharply criticised by the Supreme Court in its judgment on the

Angela Kerins PAC case.

Though there was no row between Mr Flanagan and Mr Ross on Tuesday, privately ministers were scathing about the Ross intervention.

One senior figure said it was ‘entirely inappropriate; it is not acceptable that a government minister found to have acted unlawfully is now blocking government Supreme Court appointments’.

One senior source noted: ‘He should recuse himself. He cannot, by the high standards he sets himself, run with the hare and hunt with the hounds.

At a minimum, he should declare an interest.’

Fianna Fáil Justice spokesman Jim O’Callaghan was even more scathing saying: ‘Shane Ross’s pointless campaign to block and delay the nomination of judges is damaging the public interest.

‘Challenges to asylum decisions and criminal prosecutions are being delayed as a result of his refusal to permit judicial appointments.’

It is, he said ‘ironic that a minister whose behaviour as a member of the PAC was ruled unlawful by the Supreme Court is now being permitted by government to delay the nomination of a judge to that Supreme Court’.

One senior source said: ‘Whatever about that row, this amendment has the touch of the nuclear button about it. Flanagan has essentially nuked his own Bill.’

They added: ‘There will be a lot of toys being thrown out of the pram next week when Ross wakes up.’

A spokesman for Minister Ross did not return a request for comment.

‘Ross must have been asleep at the wheel’