The Government’s collusion with Sinn Féin in attempting to pass legislation that threatens the independence of the judiciary has sent a shiver down the spine of many Fine Gael TDs.
The episode has not reflected well on the Government and, if it persists in pushing the flawed legislation through the Dáil with Sinn Féin support, the long-term political consequences for Fine Gael could be very damaging.
The Judicial Appointments Bill which lays down a new system for appointing judges is the brainchild of Minister for Transport Shane Ross and was included in the programme for government at his insistence.
The controversial aspect of the Bill is the proposal to establish a new judicial appointments body which will have a lay chairman and in which judges and legal experts will be in a minority. It will make recommendations to the Government, which has the constitutional responsibility of appointing judges.
The proposal has been opposed not only by the country’s judges but by the European Commission, which is worried about the impact this could have on the independence of the judiciary.
It is an open secret that most Fine Gael TDs are deeply unhappy at the Bill. The initiative by Ross to get Sinn Féin support to get it passed by the Dáil has turned that unease into serious alarm.
Minister for Justice Charlie Flanagan tried to mitigate the worst aspects of the Bill when it came before the Dáil this week with an amendment designed to ensure that the presidents of the various courts and the Attorney General would be on the new appointments body, along with representatives from the Bar Council and the Law Society.
Lay majority
In order to placate Ross and ensure there would still be a lay majority, Flanagan proposed to expand the membership of the body from 13 to 17. Having supported the Government’s other amendments Sinn Féin baulked and voted against this initiative, helping to defeat it.
This caused utter confusion as the Dáil had earlier voted to put the judicial figures on the commission. In the light of the contradictory amendments, Ceann Comhairle Seán Ó Fearghaíl rightly concluded there was “an unacceptable level of confusion” and he adjourned the debate.
The fundamental flaw in the Bill is that it reflects Ross’s view that the current system of choosing judges is based purely on cronyism, and that the lawyers who dominate the current selection board and the politicians who make the ultimate decisions are choosing their friends and others without merit.
Ross has run a Trump-like populist crusade on this issue and while there is very definitely a need to reform our legal system, the system for appointing judges is the probably one of the least pressing issues.
Former ceann comhairle Seán Barrett summed up the mood on the Fine Gael benches in the Dáil on Tuesday night when he said that, in his 37 years in the Dáil, he had seen numerous judges appointed by various governments and not once had there been a collapse of confidence in the judicial system.
He questioned why yet more power was being taken away from elected politicians and handed to unaccountable commissions when there was such public unhappiness with how some of these bodies operated.
The Government and the Dáil have devoted undue time and effort to the issue of judicial appointments, when there are so many other pressing issues to be considered, including serious reform of the legal system.
Chronic problems
As has been pointed out in this newspaper, if the Government was serious about fixing the many chronic problems in the legal system it would be examining ways to cut the exorbitant level of legal fees and improve access to information about how the courts are operating.
If the Government was serious about fixing the many chronic problems in the legal system it would be examining ways to cut exorbitant legal fees and improve access to information
While the appointments system needs an upgrade, this could easily be achieved by giving the current Judicial Appointments Advisory Board more resources and, crucially, amending the current legislation so as to limit the number of names it sends to the Government for appointment to judicial vacancies.
While the flaws in the Bill have caused concern in the Fine Gael parliamentary party, it is the alliance with Sinn Féin to get the legislation through the Dáil in the face of opposition from Fianna Fáil and other parties that has sparked serious alarm.
As the price of its support, Sinn Féin has secured commitments on sentencing guidelines for judges. This is a thorny subject that needs careful examination in the light of the separation of powers, and there is deep anxiety in Fine Gael at the way it is being approached. Sinn Féin TD Aengus Ó Snodaigh fuelled this anxiety by referring to the “anti-republican bias” of the Special Criminal Court.
Taoiseach Leo Varadkar has serious decisions to make about whether the Government can proceed on its current course of placating Ross by aligning Fine Gael with Sinn Féin on an issue of fundamental importance to Irish democracy.
Ross may have the power to bring the Government crashing down, but if he is allowed to get his way and undermine the judiciary in an unholy alliance with Sinn Féin, the political consequences for Fine Gael could be devastating.