It is important, as the chief justice has said, that politicians and judges “owe respect to the other”. And so we should. Yet a prerequisite for such respect is that the method of judicial appointments is transparent and democratic. Currently it is not.
My Independent Alliance colleagues and I inserted paragraphs in the programme for government insisting on long overdue reforms in the selection and scrutiny of judges. The judges have greeted the proposals with thunder in their voices.
The dogs in the street know that party-political loyalties have played a shameful part in the selection of judges in Ireland. Fianna Fáil, Fine Gael and Labour barristers have often been forced to wait for regime change until they were elevated to the bench.
I have campaigned for reform of this flawed system for years. I wrote chapters in books on it. I even suggested that interviews might be held for the first time. Being recently privileged with a place in the Cabinet seemed a pretty good perch from which to implement the changes. Fine Gael agreed to them.
At long last it seems the appointment of judges is to be taken out of the political arena.
And it is. Even Fianna Fáil has agreed that the good old days of governments appointing party pals to the bench are over.
A new Bill hit the Dáil a few weeks ago, largely removing the selection of judges from the political arena. The Bill was proposed by Fianna Fáil TD and barrister Jim O'Callaghan. It was warmly welcomed in the Dáil by all sides as it tackled the cancer of political patronage. A few other barrister TDs, besides Jim O'Callaghan, joined Frances Fitzgerald and me in our initial welcome of the breakthrough.
Legal eagles
The Bill was far from perfect. While it largely removed political leverage, it gave someone else – legal eagles – a majority on the new commission selecting judges.
The old system, a board that sent up a long, long list of likely names to the minister for justice, would end. Under O’Callaghan’s Bill the judiciary and their legal friends would control the choice. Political patrons would be replaced by legal insiders.
Ireland’s judges will not have been displeased by what they call “Jim’s Bill”. Yet the prospect of legal eagles in control of the appointment of judges runs contrary to the programme for government’s commitment.
We welcome judges and lawyers on the selection board but not in control. The Independent Alliance agreed to an independent layperson in the chair, flanked by a majority of lay people advised by judges and lawyers. The chief justice would be welcome among their number. While all the lawyers would be full members, the legal profession’s iron grip would be loosened.
We do not want to see judges on the inside appointing their chosen ones. What sort of replacement would that be for political cronyism?
And, acknowledging an omission in the programme for government, I proposed that judges should be legally obliged to declare all their financial and other interests. Just like TDs.
Perhaps prompted by some rather colourful rhetoric from me and by Fianna Fáil support in the form of “Jim’s Bill”, Ireland’s lawyers took to the media.
Two weeks ago the chief justice broke cover. The newspapers responded with massive coverage. I came under sustained attack. Journalist Colm Keena chastised me for alleged "inaccuracies".
Privileged group
The powerful law lobby moved into full gear. The number of lawyers offered space to defend their patches was staggering.
The Irish Times
led the field in giving openings to this privileged group.
Ten days ago the chairman of the Bar Council, Paul McGarry, penned a piece entitled “Criticism a threat to independence of the judiciary”.
On Friday, columnist and barrister Noel Whelan headed his column "Ross's fixation on judges is mere political posturing". He maintains that in the present controversy it is politics, not the appointments system, that is the issue.
He is wrong. The judges and the lawyers are the issue. Nor is it just the appointments – it is the near-impossibility of removing a bad judge that must be resolved in coming legislation.
Judges are good at fighting rearguard actions. Their opposition to a cut in their pay in the 2009 referendum was not their finest hour. Nor do they like being challenged. Most of them are good people, doing an honest job.
Following the chief justice's foray into the public arena, the president of the Circuit Court, Raymond Groarke, hit the headlines. In an intemperate response to the prospect of a shortage of judges, he declared that if the Government did not give him judges he would not be able to "obey their legislative strictures". I am sure the judge did not intend to imply that he was willing to break the law.
In response to Judge Groarke – and to ensure that we do not obstruct the needs of justice – the Government has agreed to appoint new judges, albeit under the old flawed system.
Judge Groarke might in turn listen to the chief justice’s words of the need for “respect for the other”.
Shane Ross is Minister for Transport