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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

There is this extraordinary conjunction of interest 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 historical 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 following 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 failure – weak domestic industry and continued emigration. The safe and prestigious jobs were in medicine, the 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 aspirations. A great many lawyers also gravitated towards politics.

Traditionally the appointment of judges was a rather rarefied activity monopolised by the cabinet. 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 requirements 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 cabinet 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 appointments with an occasional Labour party twist. The two big parties were careful enough to appoint supporters of the opposite political persuasion 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 systems 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 selecting among individuals who have been pre-screened by an independent body comprising 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 appointments 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.

This is because unfortunately, according to Carroll MacNeill: “over the 20 years of its operation, 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 substantial 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 candidates 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 respectively”. 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 appointees 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 publicity. 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 profession, 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 judiciary 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 government, 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 register 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 rigorous 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 legislation. 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 relatively straightforward measure of a register, to avoid the appearance, whatever about the reality, of bias.

The composition and Chair of the Council and the Register are not areas where the legal profession or judiciary have proved keen on reform and it is evidence of extraordinary and unfair hostility to Ross that much of the press and political 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 relationships 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 discussions 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 discussions over forming a government were finished. Fine Gael’s raw and sensitive nerves were further aggravated when Ross dissented from his government 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 ministers 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 citizens. 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 Ireland, 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 members 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 appointment system and the regulatory body that oversees the judiciary is a transparent one.

Conor Lenihan