The determination of the Minister for Transport to change the way judges are appointed is one of the most consistent policy themes of the current Government.
Many people inside and outside Government wonder at the wisdom of Shane Ross’s crusade, but few can doubt his determination and persistence.
He has forced it on to the Government's agenda, demanding its inclusion in the programme for government and maintaining constant pressure to ensure the Bill's delivery, despite the opposition of the Department of Justice, the judiciary and significant elements of Fine Gael.
This is how coalition governments work: the smaller partner picks a few issues and demands their delivery.
Ross’s choice may be quixotic, but it is definite.
The Bill began its legislative journey in the Dáil on Tuesday night, and debate continues on Wednesday. It is due to be debated again on Thursday, and the Cabinet on Tuesday reaffirmed its intention to have the Bill signed into law before the summer recess in later July.
This is a highly accelerated timetable than what would be normal – especially for sensitive legislation against which there is a lot of opposition – and it should be remembered that the Government does not command a majority in either the Dáil or the Seanad. Passing the Bill is not, actually, within the Government’s power: it depends on Opposition support. But Ross insists he has a commitment that the Government will do everything in its power to pass the Bill, including extending the Dáil term by a week if necessary. It is clearly an immediate priority for the coalition.
Niche issue
But why? Why has Ross made what is at best a niche issue into such a priority, expending so much of his political capital on it?
Of all the pressing problems faced by Ireland, few people would have identified the appointment of judges as being among them.
Michael McDowell has suggested that Ross’s crusade stems from an unsatisfactory court case against him in the 1990s. Ross’s office declined to comment, but it seems a thin explanation. Ross himself places his determination to change the way judges are appointed to his crusade against “cronyism” – an issue that has been one of the touchstones of his political life, and before that his career as a campaigning journalist.
His detractors fairly point out that he has a record himself of appointing close associates to jobs, and his championing of Stepaside Garda station was a classic example of parish-pump politics.
Ross has thundered against “cronyism” everywhere in Irish life, but sees it as an especially pervasive influence in the appointment of judges. At the weekend, in comments that reflect his statements on the issue since his entry to Government, he said all judges are currently politically appointed” and insisted the forthcoming Bill would “finally end this rotten system”.
But very few people in Government, and nobody in the legal profession, actually believes it is a "rotten system" stuffed with political placemen; actually, as Ruadhán Mac Cormaic's book on the Supreme Court has recorded, the courts have been used as an instrument of social change in Ireland.
Besides, even under the new legislation, judges will continue to be appointed by politicians – because the Constitution places responsibility for the nomination of judges (they are formally appointed by the President) in the hands of the cabinet. The act cannot change that.
While the history of appointments to the bench of the district and circuit courts certainly demonstrate that the political allegiance of lawyers may well be an advantage, that is a harder case to prove (with the exception of a small number of appointments) in the case of the High Court and the Supreme Court. Judicial and legal sources say that a much more pressing problem for the administration of justice at present is the difficulty in getting the best lawyers to offer themselves for judicial posts.
Proponents of the reforms suggest that they would say that, wouldn’t they.
But it is clear from recent senior judicial appointments that it is no longer the practice – as it was in the recent past – for many of the very top lawyers to go on the bench for the last phase of their careers.
Constant hostility
There are several reasons for this, including financial ones. But the constant hostility from Government is universally cited by both judges and lawyers as a reason for the difficulties in recruitment and people at the highest level of the judiciary are deeply worried about it.
As Jennifer Carroll MacNeill has pointed out, Ireland's judiciary is internationally very highly regarded for its independence from the political system. Of all the problems in the legal system – chronic inefficiency, the astronomical cost of legal proceedings and the consequent in accessibility to legal remedies for many people – the manner of the appointment of judges rates pretty far down most people's list.
But most people are not in the Cabinet.
