Minister for Transport Shane Ross has insisted no further judicial appointments can be made until reforms involving a Judicial Appointments Commission, as agreed with Independent Alliance TDs under the programme for government, are introduced. This position has prevented the appointment of Appeal Court judges and may damage future Cabinet cohesion.
Securing agreement on administrative reform is always difficult and becomes particularly fraught when those directly affected are involved in drafting the rules. That has been the case with the judiciary, where efforts by successive governments to introduce modern-style accountability and greater transparency met with strong resistance.
Discussions on the form and powers of a disciplinary Judicial Council – as an alternative to the nuclear option of impeachment – have been going on for more than 15 years and a third draft Bill will be introduced next year.
Judges broadly acknowledge the need for such a measure but disagreement continues in relation to the public’s right to know. The same holds true for a Judicial Appointments Commission where the need for a more independent and transparent system of selection is recognised. Related provisions, however, involving a non-legal majority on the selection board and a formal register of judicial interests, are being resisted.
This emerging stand-off between the Government and the judiciary, based on the separation of powers under the Constitution, has many precedents. Some judges regard themselves as independent entities and negotiating an agreement is like herding cats at a crossroads.
Elitist, traditional attitudes have no place in a mature democracy. Judges are public servants. They do a job, a very important job, but like politicians and senior officials, they should be answerable to the public. On the basis of past behaviour, Mr Ross has reason to be concerned that delay could stymie reforms.
At the same time, the courts should be adequately staffed to facilitate the administration of justice and to address unacceptable delays in hearing cases within the Irish legal system. Compromise is the only way forward.