Judicial Bill an unsound solution to a problem that does not exist

This week's Dáil debate on the Judicial Appointments Commission Bill was not so much new politics, or old politics. It was just fake politics.

It involved a piece of legislation in which even the Minister proposing it didn’t really believe. The largest Government party didn’t want it and the electorate doesn’t care much about it one way or another. The Bill was given priority merely to placate one element of the Coalition.

Not since the electronic voting fiasco 10 years ago has so much government effort and parliamentary time been wasted on an unsound solution to a problem that doesn’t exist. Even if this Bill were to pass in its current form, our judges would still be appointed by a Cabinet of politicians accountable to Dáil Éireann. That is what the Constitution requires.

The article by the new Minister for Justice Charlie Flanagan in The Irish Times on Monday was significant. Flanagan went out of his way to distance himself from the populist anti-judicial rhetoric in which Minister Shane Ross and others have engaged around this legislation. It was the first sign that Fine Gael Ministers were recognising that not only were the merits of the legislation questionable but the optics of rushing it through before the summer recess – with the support of Sinn Féin – would be really bad for Fine Gael.

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The new Taoiseach seems to have, belatedly, realised that having this Ross-inspired Bill as the first legislative initiative of the Varadkar era would be unwise. To the relief of many in Fine Gael, the Oireachtas Justice committee declined to give the Bill priority before the summer break and has parked the legislation indefinitely.

Express commitments

Some spoke this week of how the Government had to prioritise the Bill because they agreed to it in the programme for government. However, the programme for government also contains express commitments to more than 30 other pieces of legislation all of which are more important and of more direct relevance to peoples’ lives than that which, at Shane Ross’s insistence, the Dáil spent hours debating this week.

The Programme for Partnership Government promised new Bills to protect tenancy rights, to regulate surrogacy and assisted human reproduction, to improve patient advocacy, to prevent elder abuse, and to overhaul our immigration system. None of these has yet been drafted, while the judicial appointments Bill jumped to the top of the queue.

In language similar to that used to justify the time and effort involved in introducing electronic voting, some Fine Gael deputies also spoke this week of how this judicial appointments Bill was necessary because it is “a modern and reforming measure”. However, the Programme for Partnership Government also promised legislation to implement Seanad reform, to overhaul the planning process, to create technological universities and to establish an electoral commission. These are all more significant modernisations but none has been given the attention afforded to this Bill.

In the justice area, the programme for government promised legislation to implement the EU victims Directive, to ratify the international convention on domestic violence and legislation “to reduce excessive delays to trials and court proceedings including pre-trial hearings”. That was in addition to long-standing commitments from this and previous governments to establish a judicial council, and to provide for annualised payments to victims of catastrophic personal injuries. Work on drafting or passing these Bills has been stalled in favour of progressing the Judicial Appointments Bill.

Key priority

Indeed, even the passage of legislation to enable Ireland to ratify the UN Convention on the Rights of Persons with Disabilities – a key priority for the other Independent Alliance Minister at Cabinet, Finian McGrath – has had to play second fiddle to Ross's pet judicial project.

In lawmaking, as in all endeavours, every effort spent has an opportunity cost. The fact that this Government with no majority and so little political capital has diverted parliamentary drafting and civil service resources in recent months and gave over almost all of its parliamentary time this week to the Judicial Appointments Commission Bill, rather than advancing more important issues, reveals how absurd our current political dilemma is.

Governments should be judged not on what they say but on what they do. When it comes to legislation this Government is doing very little and is doing even less now than it was doing this time last year. Just seven Bills have been passed since Easter. All of them are short Acts and only two of them provide for substantial policy changes. It now seems likely that only one more Bill –that to enable the State to provide indemnities in the event of Ireland hosting the rugby World Cup – will be passed before the summer recess.

Thankfully the Justice committee has now kicked the judicial appointments Bill off into the parliamentary long grass. If it has any sense, the Government will leave it there. It has much more important legislation to be getting on with.