Shane Ross

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.