The first striking thing about the letter to Taoiseach Leo Varadkar from the heads of the five courts is that it exists in the first place. Sent in late July and released now under the Freedom of Information Act, is thought to be the first time the judges who run each of the State's courts have co-signed a letter to Government to object to impending legislation.
That in itself is controversial. Some Government officials bridle at judges wanting to have a say about draft laws, pointing out that it's the prerogative of the Oireachtas, not the judiciary, to debate and enact laws.
It’s a grey area, but it’s widely accepted that judges are entitled to express a view when a draft law impinges on their area of work. The Judicial Appointments Commission Bill certainly does that. Its proposals to change the way judges are selected will result in sitting senior judges having much less input in the process.
We already knew these changes were opposed by the judiciary, but the letter lays bare the strength of feeling among senior judges towards the plan.
The usual channel of communication between the Four Courts and Merrion Street is the Association of Judges of Ireland. This letter carries more weight, partly because it’s so rare, but also because court presidents are generally more reticent than the colleagues they oversee about striking a confrontational posture towards government.
Some of their arguments are stronger than others.
They state, but don’t explain, how having fewer judges involved in selection will be “inevitably damaging” to the process and “the administration of justice more generally”. Nor it is clear why the new process will be “cumbersome and unwieldy”, as they claim.
Any new, modern system will inevitably be more complicated than the relatively informal and ad hoc processes of the unloved Judicial Appointments Advisory Board that has operated since the mid-1990s.
In other areas, the judges are on firmer ground.
“Most fundamentally,” they write, the Bill “does not achieve the publicly stated objective of removing political influence from the appointment process.”
List of names
This is plainly true. Politicians would still be choosing judges from a list of names and would retain the right to ignore that list if they wished. The judges go further, arguing that by giving the Minister for Justice the power to appoint the lay majority on the new commission, and requiring the Oireachtas to be informed of the professional background of every appointee, the system will actually become more politicised than it is today.
Minister for Justice Charlie Flanagan was at pains last month to stress the proposed reform was not an attempt to snub or humiliate the judiciary.
The subtext of the letter signed by then chief justice Susan Denham along with Sean Ryan, Peter Kelly, Raymond Groarke and Rosemary Horgan – presidents of the Court of Appeal, High Court, Circuit and District Courts, respectively – is that that's exactly how they see the Bill. They write that submissions made to Government on earlier drafts of the Bill "were rejected not on their merits, but rather for political considerations".
Implicit
Unmentioned, but implicit, is that one of those submissions came from the judges themselves.
Also unmentioned is the name of the Government member who has driven the Bill from the outset: Minister for Transport Shane Ross. Those "political considerations" are the Government's need to keep Ross onside and thereby keep the minority Government in office.
It may not be much of a consolation for the judges, but the irony is that there’s probably a clear majority in Government that agrees with everything their letter contains.