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Ireland's political and cultural magazine
3 8 December - January 2017
T
HERE IS this extraordinary conjunction of inter-
est between the legal profession and
parliament. Lawyers in Ireland play a very
active part in the political system. In 2010
there were 16 barristers and solicitors in Dáil
Eireann – ten percent of the total. There are strong his
-
torical associations between the professions of politics
and the law. In Ireland's case the association has been
grandly embedded at least since the time of Daniel
O'Connell, arguably the greatest Irish parliamentary
figure and agitator a popular and crusading barrister
whose campaign for Catholic Emancipation earned him
the sobriquet ‘The Liberator’, Radical nationalists follow-
ing in O'Connell's wake quite often, unfairly, depict his
achievement of Catholic Emancipation as being only of
benefit to the Catholic middle class or the well-heeled
lawyerly professionals. Wolfe Tone and Padraig Pearse
were also members of the legal profession.
In more modern times lawyers have in many ways
dominated the new state. The story of the first half of the
Irish state (1916-1966) was in large part an economic fail-
ure - weak domestic industry and continued emigration.
The safe and prestigious jobs were in medicine, the
Ross hits judicial
soft spot
The independent Minister should not be
swayed from his consistent agenda of
reforming the judicial council and the
need for a register of interests
POLITICS
Historically, the whole thing had
the feel of an insiders’ game.
There was a kind of informal,
lawyers' club within the cabinet
when my father was in politics
Good but not perfect
by Conor Lenihan
December - January 2017 3 9
professions, banking, the civil service and the
law. The meagreness of economic growth and
wealth imbued these positions with an enviable
mobility for those with social or class aspira-
tions. A great many lawyers also gravitated
towards politics.
Traditionally the appointment of judges was a
rather rarefied activity monopolised by the cabi-
net. In Ireland judges must have 12 years (10 for
the District Court) experience as a barrister or
solicitor. Interestingly, the US alone among
common law countries has literally no require-
ments for appointment to its courts, though of
course there is stringent scrutiny of Supreme
Court candidates by the legislature including a
Senate Judiciary Committee.
Historically in Ireland, the whole thing had the
feel of an insiders’ game. For example, there was
a kind of informal, lawyers' club within the cabi-
net when my father, the late Brian Lenihan
senior, was in politics. My father, needless to
add, was highly active, along with other cabinet-
rank lawyers, when it came to the appointment
of people as members of the judiciary. Friends
and former colleagues of his in the bar library
were constantly discussed as possible or actual
appointments to the bench. In my father's time
Fianna Fáil and Fine Gael dominated the appoint-
ments with an occasional Labour party twist.
The two big parties were careful enough to
appoint supporters of the opposite political per-
suasion to create the impression that the process
itself was fair and impartial.
By the time I had been elected to the Dail in
1997 the appointment of judges had become an
extraordinary example of indiscreet lobbying
and jockeying for place and position. TDs were
frequently canvassed to promote a particular
individual. I even became involved myself and
managed, along with others to get two or three
lawyers appointed who I felt would be good
people to be members of the judiciary.
In her recent book on ‘The politics of Judicial
Selection in Ireland’, Jennifer Carroll MacNeill
concludes of judicial appointments: “Some sys-
tems are exclusively based on the preferences
of the executive, some systems require approval
of nominations by the legislature, some appoint
judges according to a quota by different
branches of the political system and some
restrict the involvement of politicians to select-
ing among individuals who have been
pre-screened by an independent body compris-
ing judges and representatives of the legal
profession”.
For the last 20 years in Ireland, High Court,
Court of Appeal and Supreme Court judges have
been recommended by the Judicial Appoint-
ments Advisory Council and the Cabinet (ie the
executive) makes the decision on advice from the
Minister for Justice and Attorney General and
with the consent of the Taoiseach. In reality, of
the ‘executive’ only the Taoiseach, Minister for
Justice and leaders of any coalition partner, are
involved in the selection. Unlike in England and
Wales (where the Prime Minister selects the
judge after nomination of one candidate by the
Judicial Appointments Commission) and unlike
Israel (where the Judicial Selection Committee
selects the judge), the Irish government retains
significant discretion to choose any person to fill
a judicial vacancy. Reform has certainly been
tame but efforts to curtail, control or otherwise
reform the legal profession are often the subject
of a cacophony of protest by the profession who
are very adept at deploying well-orchestrated
campaigns against hostile regulation of the
profession.
The board made a
“crippling“ change of
strategy to increase
the number of names
recommended to
government to up to 100
100 giving the executive free
reign to appoint favourites
Not perfect, but good
4 0 December - January 2017
This is because unfortunately, according to
Carroll MacNeill: “over the 20 years of its opera-
tion, the advisory board did not use the range of
powers given to it to assess judicial candidates,
was not provided with sufficient secretarial or
professional supports and suffered from a sub-
stantial absence of process and Oireachtas
oversight”.
Worse, Carroll MacNeill says, the board made
a “crippling“ change of strategy when it decided
to change its process for recommending judges.
Instead of performing a careful selection that
would recommend the seven (or fewer) best can-
didates as provided in law, the board decided it
would in the future simply approve all applicants
deemed not to be explicitly “unsuitable”. The
number of names recommended to government
“increased substantially from about seven to
roughly 20, 50 or 100 names for a High Court,
Circuit Court or District Court vacancy respec-
tively”. In Ireland this means the executive has
almost free reign to appoint someone whose –
real or perceived – politics they favour or, more
pertinently, who favours theirs.
Against this domestic background, Shane
Ross is either very brave, or very foolish, to take
on the task of reforming the country's judiciary
and how it regulates itself. His proposal to create
a new body, composed mainly of non-lawyers,
to guide the judges in their work, recruit appoin-
tees and register their financial interests is a
welcome and well overdue piece of work. Ross is
often accused by his opponents of coat-trailing
a brand of opportunistic populism that is once
off and designed to secure him maximum public-
ity. In the case of the judiciary however Shane
Ross has been remarkably consistent. He has
written about the issue in a number of books and
articles he has written over the years. In addition
to this he took the bother to include his ambition
to reform the judiciary in his agreed programme
for government with Fine Gael. In my experience
most potential reform of the legal profession, in
previous years, was the subject of a long process
of insider consultation, leading eventually to a
heavily modified piece of legislation. Shane Ross
has pushed his plans with great speed and
determination. The opposition is coming from
mostly, the usual suspects.
The opposition is coming from the legal pro
-
fession, the judges and of course the political
players who have little time for Shane Ross in
any event. Fianna Fáil, through their spokesman,
the able barrister Jim O'Callaghan, are broadly
supporting the legislation, with O'Callaghan
having produced his own bill on the matter. The
struggle seems to be between the Fianna Fáil
view that the new council to regulate the judici-
ary should be chaired by the Chief Justice and
the alternative view held by Shane Ross and his
supporters that a lay, or non-lawyer, member
should hold this position. There is merit to Jim
O'Callaghan's suggestion that the Chief Justice
be the Chair. It gives immediate authority to the
new body. However, it should be open to govern-
ment, after the first appointment, to appoint a
non-lawyer to the position with the practice of
allowing the serving Chief Justice the option of
first refusal with regard to the position. There
may come a time where a busy Chief Justice may
wish to not have the position.
Lawyers also have lobbied that a majority of
the body comprise people from the profession,
while Shane Ross wants non-lawyers to be in the
majority. The arguments for having a non-lawyer
majority are much stronger in my opinion. The
lawyers are unlikely to get their wish that both
the majority be lawyers and that they also get to
chair the new body.
Ross has also advocated a judicial register of
interests. It would seem difficult for anyone who
believes in transparency to argue against a reg-
ister of interests for anyone with an important
position in public life.
As a result of the revelations about Charlie
Haughey the Dáil itself went through a fairly rig-
orous process of new regulation on how a
member of the Dáil declared their financial and
other interests. I remember, as a new deputy,
how so many of the older members complained
volubly about the strictures of new ethics legis
-
lation. The reporting duties appeared onerous
and intrusive to them. To me they were simply
necessary. It is surprising that other branches of
government – the executive and indeed the
media would not instinctively appoint the rela-
tively straightforward measure of a register, to
avoid the appearance, whatever about the real
-
ity, of bias.
The composition and Chair of the Council and
the Register are not areas where the legal pro
-
fession or judiciary have proved keen on reform
and it is evidence of extraordinary and unfair
hostility to Ross that much of the press and polit-
ical coverage has taken it as a starting point that
he made a mistake disputing their openness.
These are important matters of state and dif
-
ferences of opinion on this new body have the
potential to destabilise the government and rela
-
tionships between Fine Gael, Fianna Fail and of
course the independent members of the cabinet.
Hopefully if there is a controversy it will not lead
to the departure of Shane Ross from the
cabinet.
My own experience of Ross is that he is an
intelligent and contrarian contributor to discus-
sions at Leinster House. He has annoyed a vast
array of people ranging from lawyers to stock-
brokers, company directors, employer bodies
and trade unionists. The resistance to his current
proposals appears to be coming surreptitiously
from people within Fine Gael who are still furious
with him over his rather candid assessment of
Enda Kenny in the meetings that happened after
the election. Shane Ross memorably expressed
the view that the was staring at a "political
corpse” following his meeting with Enda Kenny.
His derision did not prevent Shane installing
Enda as Taoiseach when the prolonged discus
-
sions over forming a government were finished.
Fine Gael's raw and sensitive nerves were further
aggravated when Ross dissented from his gov-
ernment colleagues and the advice of the
Attorney General regarding the abortion issue.
A wise commentator on political life once
remarked that ministers should not, as a habit,
ignore the simple issue of reform. It is easy to
cruise along in a ministerial position. There is a
smothering collective of vested interests in any
public system who do not want change of any
sort. There are no votes, or applause, for minis-
ters who go about the hard business of systemic
reform. Usually the plaudits for reforming a
system only come years after the change has
been enacted and is seen to have succeeded
when measured against the test of time.
The Irish state system is badly in need of
reform at a variety of levels. The lessons that
should be drawn from the banking collapse and
recession are ones that require systemic reform
of our public system and how it operates. Old
practices need to be replaced and by measures
that are robust and vindicate the rights of citi-
zens. The judiciary is a crucial check on the
expansion and abuse of executive power by a
government or public authority. We have had a
positive experience of judicial activism in Ire-
land, in particular in our Supreme Court but it the
judiciary must not be unassailable.
Over my years in public life I had the privilege
to talk with and become friends of leading mem
-
bers of the judiciary, including Adrian Hardiman,
the late and very brilliant Supreme Court judge.
Hardiman, like most of our judges to date, was a
political appointment but a very able one. The
government of the day will always make the final
appointment to positions of importance in the
judiciary but it is vey important that the appoint-
ment system and the regulatory body that
oversees the judiciary is a transparent one.
We have had a positive
experience of judicial
activism in Ireland,
in particular in our
Supreme Court but the
judiciary must not be
unassailable
POLITICS
