Explainer: How Ross and Fine Gael differ on judicial appointments

No judges would have had a role in the appointment of senior judges in the original policy proposal by Independent Alliance member and Minister for Transport Shane Ross, during the negotiations on the programme for Government.

The negotiations over a new regime on judicial appointments was a particularly difficult issue during the talks on the formation of a Government, according to Mr Ross, and it was for this reason that he did not, at the time, raise the issue of a public register of interests for judges. Mr Ross raised this issue for the first time last week.

The insistence by Mr Ross and his Independent Alliance colleagues in Government that no judges be appointed pending the establishment of a new appointments system is causing tensions within Government and between Government and the judiciary.

The president of the Circuit Court, Judge Raymond Groarke, on Thursday sharply criticised the Government for a shortage of judges and says he cannot implement the law unless more judges are appointed.

“How can I do the work the Government expects me to do when they won’t give me the judges I need?” he asked.

‘Disastrous’ ban

A spokesman for the judiciary has said a ban on new appointments would be “disastrous” given the pressures already on the courts.

During the Government formation talks, Fine Gael suggested a counter-proposal based around a judicial appointments commission with a “lay” majority, but which would include judges and representatives of the legal profession.

The proposals brought to the talks by Mr Ross would have required a referendum and reflected a private members’ Bill he introduced in 2013.

The Thirty-Fourth Amendment of the Constitution (Judicial Appointments) Bill would have created a system similar to that in the US with nominated judges to the courts having to go before an Oireachtas committee.

“A Judicial Appointments Council, composed of persons drawn from a broad spectrum in society, in a manner provided for by law, shall recommend suitably qualified candidates on merit for the consideration of a joint committee of the Houses of the Oireachtas,” the Bill said.

“No member of the judiciary or of a legal representative body shall be a member of the Judicial Appointments Council.”

The proposed Oireachtas committee would have had a majority of members who were not members of political parties then in Government.

A Fine Gael source said they felt the proposal from Mr Ross would have been a “disaster” and suggested the lay majority on a new commission as a compromise.

Such a structure operates in Scotland. However the only basis for the proposal was to satisfy Mr Ross and agree a regime other than the one he was proposing, which the party’s advisers were strongly opposed to.

A private members’ Bill from Fianna Fáil’s Jim O’Callaghan, currently going through the Oireachtas, would see a majority of judges/legal professionals on an appointments commission.