Ross on Judges Just Pot-Shot Populist Bombast

Issued 27 June 2017

A Cheann Comhairle,

This is a poor measure.

And it is promoted for shoddy motives.

That it is being promoted by the party that prides itself above all on its adherence to the Constitution, constitutional probity and the rule of law is deeply depressing.

And it does not go unnoticed that the party of Collins and Cosgrave is being assisted in this endeavour by another party, one for which the word ‘court’ for so long went hand-in-hand with ‘kangaroo’.

The Chief Architect though, is Minister Shane Ross.

Minister Ross has spoken and written on these issues before.

In fact he co-wrote with his son-in-law a book called ‘The Untouchables’.

The title is borrowed from the autobiography of Eliot Ness, the US federal agent who took on Al Capone in Prohibition-era Chicago.

Now, I know there has been public disquiet about politicians using their position in this House to make disparaging comparisons between named individuals.

But I think it would be uncontroversial to say that Shane Ross is no Eliot Ness.

The Untouchables, in the Brian de Palma version, carried sawn-off shotguns. Minister Ross still favours an old-fashioned blunderbuss.

In his blunderbuss assault on Official Ireland, insiders and cronyism, the Minister devoted a chapter to the judges.

And that, in truth, is the only reason why we are here today, debating this Bill.

The Minister wrote another chapter about the senior civil service.

He wrote about how mandarins remained in their posts or were even promoted post-crash, about how they always looked after each other, and so on.

So, what does the Minister now propose?

Effectively that, in order to reform the judiciary, the judges should in future be appointed on the advice of a majority of individuals selected, not shortlisted, by the PAS.

There has been a lot of comment on how the Bill will reduce both political and judicial input into appointments.

But there is very little attention at all about who is to provide the substitute input.

I yield to no one in my admiration for the civil service.

And I worked constructively with the Public Appointments Service in my years as Minister with responsibility for the public service and for its reform.

The PAS has undoubtedly contributed to the modernisation and development of the civil service.

But that is not to say that I think the civil service has no faults.

It has a unique hierarchical structure and management style.

It has, still, an ingrained silo mentality.

The senior civil service is at its best when promoting and defending the State, its agencies and their interests.

Equally, they are at their most intransigent when resisting any proposals for change that might impact on their own sphere of influence.

The civil service still shelters departments and organisations that work in their own best interests – which they can then, inappropriately, identify as the interests of the common good.

Now, in our rush to ‘de-politicise’ the judicial appointments process, we are being asked to put a very significant part of that process into the hands of a body consisting of 5 senior career civil or public servants including 2 departmental assistant secretaries, plus the former chair of the Northern Ireland civil service commissioners, and 3 personnel consultants.

I do not see why the senior civil service should have any role in appointing the judges, even at the remove of appointing those who will in effect make the appointments.

As everyone in management knows, if you cannot make the appointment yourself, it really is the next best thing to be able to appoint those who will.

Let us be realistic about two things.

First, the State in its various guises is by far the biggest consumer of judicial services.

While politicians come and go, our senior civil servants – the permanent administration – are day and daily at the receiving end of adverse judgements and rebukes in our courts.

Appointments are overturned, schemes upset, spending plans thrown into disarray, by court decisions.

And, if the judges think that politicians are sometimes inappropriate in their comments, they should hear what the civil service has to say about them.

Second, the major differences on the bench are not those between judges appointed by different Governments.

We all know that there is no pattern at all of Fine Gael judges defending their own team and having a go at Fianna Fáil governments, or vice versa.

Neither is the major difference on the bench one between those of a liberal or a conservative disposition.

The major differences are between those judges who are disposed to toe the line and those who do not.

Between those who, from the perspective of the executive branch of government, know their place and those who do not.

The judges have two basic tasks.

One is to do justice in disputes between individuals.

The other, perhaps more important, is to curtail the power of the State and its agencies, to confine public bodies to the rule of law – in short, to bell the cat.

That is why the judges still retain a higher degree of public confidence than our other institutions.

Because they take on the other institutions, in the interests of the man and woman in the street.

And so, as I say, the interests of the permanent administration are not always the same as the public interest.

The civil service is the cat that the judges are sometimes required to bell.

We shouldn’t be surprised if the cat objects.

So, there is a northside/southside divide on this issue.

On this side of the river, we don’t like judges who rock the boat.

But, in the interests of justice, the boat does need to be rocked every so often.

That is one part of the reason why I do not see that senior mandarins, who have been hand-picked to shape the future of our civil service, should have the same sort of say in shaping the future of our judiciary.

Much more relevant than Minister Ross's notion of cronyism – which I discount – there is the very real concept of institutional bias.

I do not believe that those whose professional careers are devoted to the agencies of the State should have the major say in determining who gets to pick those who sit in judgment on those very agencies.

And remember that, while the Government may have a right to go outside the recommendations in appointing a judge, it will be given no discretion in appointing the PAS nominees to this new advisory board.

The senior officials at the top of our civil service already have a major say in appointing their own successors, through the Top Level Appointments Committee.

I note that one of the objectives in this new Bill is to secure diversity among the judiciary.

I don’t believe that the structures proposed will achieve that objective.

All in all, I do not believe that Minister Ross has at all thought through or explained why it should be that one of his chief bugbears will be reformed by being re-shaped in its own image by another of his bugbears.

This was not his initial proposal in the matter.

In 2013 then Deputy now Minister Shane Ross wanted a Judicial Appointments Council, to recommend judicial candidates.

But he wanted a committee of the Oireachtas to consider the recommendations and then nominate the judges.

But, bizarrely, he wanted the Constitution amended to stipulate that no judge or practicing lawyer could have any role at all in assessing the qualifications of the candidates or in recommending their suitability.

And he said the Constitution should also be amended to require that the Oireachtas committee that made these nominations had to have a permanent Opposition majority.

In other words, according to Minister Ross at that time, if you wanted to have a role in selecting the judges, you should either know nothing at all about the law or lawyers, or you should lose the general election.

This was, as my colleague Willie Penrose said last October, ‘daftness on stilts’. Deputy Penrose also said –

“Minister Ross’s gadfly pesterings clearly entertained a readership in the leafy suburbs. But he has contributed nothing serious to this debate. In Opposition he was a noisy distraction. In Government he has become an empty space.”

Subsequent events have just reinforced the accuracy of that judgment.

The solution is an obvious enough one.

And, in fairness, most of it was embodied in Deputy O’Callaghan’s Bill, which we welcomed last October.

We need a Judicial Appointments Commission to recommend and rank three individuals for each judicial vacancy, based on merit.

His Bill also proposed that, if the Government does not nominate someone from the recommended list, it must publish a reasoned written decision for not doing so.

This is stronger than the current provision and I agree with it.

Deputy O’Callaghan’s Bill – which the Government has not yet voted down – provides for a Commission with a well thought out mixture of competencies.

As well as the Chief Justice and the presidents of the other courts, there would be nominees of –

  • the Citizens Information Board,
  • the Higher Education Authority,
  • the Competition and Consumer Protection Commission,
  • the Irish Human Rights and Equality Commission,
  • the Free Legal Advice Centres,
  • the Law Society, and
  • the Bar Council.

There is also provision for gender balance on the Commission.

I and my party would be more than happy to see a reform enacted along those lines.

There are other issues that we need to consider.

One arises from the fact that a judicial career is embarked upon after a career in practice.

I fully support this.

I believe it is a feature which enhances judicial independence: our judges are not ‘pre-schooled’ before appointment.

The State cannot and should not compete against the market in terms of the pay it offers to the judges.

But the State can compete in terms of its pension offering.

I believe the salary package for the judges should make it an attractive option for practitioners to consider well into their legal careers.

Second, and again in the context of judicial independence, it was reported that 3 High Court judges expressed their interest in the recent Court of Appeal position.

It was also said that there was an informal practice whereby interested serving judges write to the Attorney General, who in turn communicates this information to the Minister for Justice.

What has not been commented on is why this is an informal rather than a formalised practice.

The reason is that our 1995 judicial appointments legislation does not even contemplate the possibility of serving judges canvassing the Government for promotion to vacancies in higher courts.

And there are very good policy reasons for that.

Judicial independence is an obligation as well as a privilege.

Our compact with the judges is that they must expect to serve until retirement in the posts to which they were appointed.

We do not have a career judiciary, and we do not have a promotions-based system of advancement through the hierarchy of the courts.

This is an important safeguard of judicial independence.

There could be nothing more destructive of independence than to create a promotion-based career path for judges, depending of course on how the powers-that-be think they are performing on the bench.

I would certainly enable an appointments commission to make recommendations and approaches.

There would be nothing wrong in a commission saying directly to a serving judge – or indeed to a practitioner who had yet to apply – “We believe you should be appointed to this vacancy”.

But I would not create any avenue to enable serving judges to apply for a promotion, based on them selling their own record in office to the Executive.

And I would enact that even informal canvassing for promotion by a judge should disqualify.

However, the Government’s current Bill proposes a rush to the opposite extreme.

It proposes to make a career-minded, promotion-seeking judiciary the norm throughout the system.

Specifically, it proposes that two years’ service on the lowest court, the District Court, would qualify you to apply for promotion to any court up to and including the Supreme Court.

I do not believe that having a bench of District Judges living in the hope and expectation of promotion to higher courts would do anything for judicial independence.

Or for the quality of justice in the District Court.

We do not want or need career-obsessed judges, delivering their verdicts with one cautious eye on a leader board maintained in any agency of State.

Minister Ross is engaged in the same sort of anti-elitist rhetoric as the Brexit campaigner Michael Gove, who urged voters to ignore the economists and said: ‘People in this country have had enough of experts’.

It is an attempt at a gut-appeal, conspiracy-theory argument, without any evidence to support it.

It is pot-shot, populist bombast, pure and simple.

I and my party will oppose it. And we will seek instead real and sustainable reforms.