The Judicial Appointments Commission Bill continued its lengthy journey through the Oireachtas this week, its progress increasingly marked by rancour, accusation and long, long debates.
It is an odd political and legislative enterprise. The Bill is unloved by Fine Gael, trenchantly opposed by a coalition of Opposition voices, the judiciary and the legal profession, and all the while beadily, impatiently watched by its de facto main sponsor – not the Minister for Justice Charlie Flanagan, but the Minister for Transport and Independent Alliance TD Shane Ross.
The Bill was in the Seanad twice this week, and once last week, but its slow progress did not accelerate. Yesterday a planned three-hour debate on its committee stage was cut short when Senators prolonged a prior debate on another piece of legislation about greyhounds.
Last week, the Seanad debated the Bill for nearly three hours. After lengthy debate, it passed two amendments to the Bill. On Wednesday of this week, it dispatched four more. There are 111 amendments tabled during the current committee stage in the Seanad.
The Bill, which was promised in the autumn of 2016 and was first tabled in the Dáil in June of 2017, has been before the Oireachtas on 38 occasions since then; few expect it to conclude in the near future. Last week, Senators joked that one of them may die before the Bill gets passed.
The Bill is a political project of the Minister for Transport Shane Ross, who has made it a centrepiece of the Independent Alliance’s participation in Government.
Ross has long styled himself as a crusader against “cronyism” and has declared its banishment to be a priority. The Minister has espied the vice everywhere in Irish public life, but it is particularly evident to him in the ranks of the judiciary, where he has criticised politicians for appointing their pals through a “rotten system” of patronage, cosy arrangements and elitism.
The Bill would create a new body, with a lay majority, to recommend candidates for judicial posts. There is already a body which does this, but it is – in Ross’s estimation – too influenced by politics and the legal profession.
Howls of protests
Ross’s attacks on the judiciary and the way judges are appointed have brought howls of protests from judges and from Fine Gaelers horrified at his thrashing of one of the pillars of the State.
Even some of Ross’s Independent Alliance colleagues are wary of his determination. When Ross was hinting heavily last year that the Bill was a life-or-death issue for the coalition, his Independent colleagues made it clear that it was up to Ross to walk out of Government if he wanted to, but they would not be following him.
For a time, Ross held judicial appointments themselves hostage to the progress of the Bill, refusing to sanction the nomination of judges at Cabinet unless the Bill was accelerated.
However, with judges warning the Government privately and then publicly that unreplaced retirements from the bench were impeding the administration of justice in the courts, Ross was steamrollered by Charlie Flanagan into acquiescing to a raft of judicial appointments, which continue, including some this week. Fine Gael Ministers now joke behind his back about it.
Ross is known within Government circles to be monitoring the Bill’s progress on a daily, if not an hourly, basis (“24/7” says one source). He suspects that many in Fine Gael are happy to see it bogged down.
This is not entirely true. Largely because Ross keeps badgering them, Fine Gael keeps pushing for, and voting for, the Bill. Nobody in the party would be devastated if it disappeared, that’s for sure, but politics is about making deals, and Fine Gael made a deal with Ross, so it will keep it.
Out of time
Unless, of course, the Bill runs out of time. Flanagan complained in the Seanad this week that Senators were filibustering the Bill and the recent debates hardly contradict his view. At the time of writing, there have been 45 hours of Seanad debates on the committee stage alone, punctuated by calls for quorums and walk-through votes, which all delay proceedings.
It looks like there is lots more to come. The principal opponents are Michael McDowell and David Norris, though Labour’s Ivana Bacik spoke at length this week too. All are making reasonable criticisms of the Bill. All look to Flanagan like filibustering. McDowell also maintains the Bill in its current form is unconstitutional.
Will the Bill pass? Senators are divided. In reality, it depends on how long the Government lasts. If there is an election in the first quarter of next year, the chances aren’t much better than even.
If the confidence and supply agreement is renewed, the filibuster – or constructive efforts to improve the Bill, if you like – will probably run out of steam. In an odd way, the future of this contentious piece of legislation depends – like everything else at the moment, it seems – on Brexit.