The failure of the Minister for Transport, Tourism and Sport, Shane Ross, to alter the language he uses now that he is a Government Minister rather than a newspaper columnist, is creating unnecessary disruption to the process of trying to achieve judicial reform.
His casual comments that judges might sometimes “forget their oath” to be impartial in their work, that the public perceives judges to exist within a “protected citadel”, and that they have as a class resisted reform for decades, have caused anger and dismay in the judicial arm of Government.
The Labour Party leader, Brendan Howlin, has described the comments made by Ross on RTÉ radio last week as the "most aggressive attack" he could recall by a Cabinet member on the judiciary. Legal sources say the judges, already watching with concern the failure of the London government to jump to the defence of the judiciary there following bizarre and troubling attacks on them in the Daily Mail and the Daily Telegraph, took comfort from the Taoiseach, Enda Kenny, stating in the Dáil that he wanted to disassociate himself from the remarks made by Ross.
Judges’ conference
It seems plain the comments were the main item of discussion at the weekend's annual judges' conference, to which the media is not invited, but from which an edited version of a speech made by the Chief Justice, Susan Denham, was released through the Courts Service. In it she referred to the need for the three pillars of Government to show respect for each other.
The Minister has not just been using unnecessarily provocative, insulting and counterproductive language, he has also shown a careless attitude towards accuracy when discussing the issue of judicial reform.
In his RTÉ interview, he was questioned about his suggestion – first made last week after months of work in the Department of Justice and Equality on a Bill to create a judicial council – that the proposed new law should provide for a public register of judges' interests, akin to the one that exists for members of the Oireachtas. Asked to point to another jurisdiction where such a register existed, he said that New Zealand was looking very hard at the issue. But a private member's Bill introduced there in 2012, which would have provided for such a register, was withdrawn two years ago, following a public debate.
Judicial council
A more substantial inaccuracy in the public comments made by Ross has been the repeated characterisation of what is happening as a drive by him to introduce reform despite the entrenched opposition of the judiciary. The fact is that the current Chief Justice first sat on a committee that examined a possible judicial council as far back as the late 1990s. The judiciary is not a unified body and there have been periods of inertia in relation to reform which, sources say, were the responsibility of some former senior members of the bench; but the fact is that senior judges have been working on the judicial council idea for two decades.
Extraordinarily, when this point was put to the Minister during an interview with The Irish Times on Friday, he readily admitted the point and said it was the main political parties that had been resisting reform. He also accepted that on the issue of a proposed new judicial appointments system, the judges have been pressing for reform for the past number of years.
Yet, in the weekend's Sunday Business Post he was again quoted as blaming the judiciary in relation to delaying judicial reform. "To me, it is very important that the judges, who are masters of delay, are not allowed to procrastinate on this [reform of the appointments system] and put it off. We've been waiting for 20 years for judicial reform and it's been put off time and time again, in a very clever way."
A Bill in relation to a judicial council, which would, among other matters, have a role in relation to dealing with the other arms of Government, judicial training and a complaints system, is expected before the end of the year. A Bill to establish a new appointments system is scheduled for next year.
Suitable candidates
The judges are on less than solid ground when saying they have been pushing for the past few years for reform of how judges are appointed. This is not because this is not true, but rather that it comes against a background of unease about the operation of the current system, which is judge-run. The Judicial Appointments Advisory Board was established so that it could review applications for appointment, and present the Government with a very narrow list of the most suitable candidates. It was thought this would reduce the potential for political patronage. However the board has adopted the practice of sending lengthy – rather than short – lists of candidates forward so that politicians can make the final decision, providing unanticipated scope for continued political patronage. Sources say this is particularly the case with District Court appointments.
Ross has secured a Cabinet decision that there will be no more judicial appointments pending the establishment of a new appointments system. Given the pressure that already exists on the courts, and their importance to the functioning of society, this appears to be an unnecessary disruptive stance. The new president of the Law Society, Stuart Gilhooly, has said the appointments freeze is causing a "crisis" and he does not understand why the current system could not be operated, pending its replacement. The new chairman of the Bar Council, Paul McGarry SC, has made similar comments and pointed in particular at the potential to negatively affect the newly established Court of Appeal.
Conflicts of interests
A register of judges’ interests, should it be created, could be provided for in the judicial council Bill, by way of amendment, as it makes its way through the Oireachtas. The judiciary, at least until last week, appeared to be sanguine about such a measure, though not necessarily in relation to the register being public. A statutory obligation to declare conflicts, allied to a register that could be consulted privately by way of some designated procedure, could address the transparency issue without creating a danger that highly regarded individuals, who might otherwise apply for a position on the bench, might be dissuaded from doing so by having to make a public declaration of their assets. Judges do not create public policy in the way politicians do.
Ross, when asked if he thought there was a problem with judges and conflicts of interests, said that since the foundation of the State there must have been cases where there were conflicts we never learned about. It does not seem a particularly strong reason for pressing for a public register.