To see the recent spat between Minister for Transport Shane Ross and the judiciary, and between the Minister and Taoiseach Enda Kenny about the judiciary, as a struggle over reform, or as a battle over the delineation of government and the separation of powers, is to miss the point entirely.
These spats owe more to Coalition tensions than constitutional tensions. It is not about the appointment or oversight of judges per se; it about the Independent Alliance's struggles in Cabinet. Ross and his band of Independent deputies are seeking to avoid the fate of minority coalition partners such as the Green Party and the Labour Party for whom participation in government proved near fatal.
Being seen to flex the Independent Alliance’s muscle is now Ross’s primary political focus and the judiciary are an easy and populist target in that game. It’s all about political posturing. Constitutional niceties are cast to the wind. Anything which gets even close to the path of the Ross mission to assert the Independence Alliance’s profile is exposed to collateral damage.
The extent to which the Government’s relationship with the judiciary is now shaped by Coalition considerations over constitutional appropriateness is illustrated by the fact that when a delegation of judges turned up recently for a prearranged consultation with Minister for Justice Frances Fitzgerald about reform of the means of judicial appointments, they found Ross also sitting in the room.
Appointments freeze
The fact that the Independent Alliance has secured a Cabinet decision that there will be no more judicial appointments pending the establishment of a new appointments system – irrespective of the number and nature of the vacancies that arise in the coming months, and notwithstanding the backlog in the Court of Appeal – is quite extraordinary.
The Independent Alliance will no doubt see this appointments freeze as serving to illustrate their insistence on implementing their priorities in government. What is even more extraordinary is that they have somehow come to see this as a key priority.
The minutiae of how judges are selected for nomination for appointment by the Cabinet is not a burning political concern. Most people neither know or care how it is done, not least because in the State's history there have been very few controversies involving judges or their appointment. It is possible that a couple of hundred of Ross's constituents in Dublin Rathdown are engaged on this issue but, even there, no one is losing sleep over it. Even fewer care about the matter in Waterford, Westmeath, Galway East or Dublin North Bay, where Ross's Independent Alliance colleagues hold their seats.
Yet somehow tinkering with the mechanism by which judges are appointed has become the driving political priority for the Independent Alliance in recent weeks. It has done so not because it matters more than other issues but because it is a signature proposal. It is the one with which Ross is most closely associated in the public mind and it is the one which gets him most attention. It is not about the issue: it is about the profile which Ross and the Independent Alliance brand derive from their stance on the issue.
Fixation
There are many more substantial policy priorities directly affecting people's lives upon which one would have expected the Independent Alliance to leverage their influence at Cabinet. Instead they all seem happy to let Ross indulge his fixation which how judges are appointed even at the risk of exacerbating antagonisms with Kenny and Fine Gael.
The most peculiar element of Ross’s attacks on the judiciary was his wrongful assertion that judges were resistant to reform of the judicial appointment process or the introduction of judicial oversight by means of a judicial council. He ultimately admitted that this was not the situation. The judges, he claimed, were “masters of delay” and he implied were prone to procrastinate.
The reality, of course, is that judges have been among those calling for reform of the former and to the forefront in efforts to establish the latter. The fact that Ross has had to correct himself on this point is likely to be lost. Most will only catch the headline narrative that Ross is taking on the judges and standing up to Fine Gael.
There is, of course, another context to this spat. Having lived the charmed life of a newspaper columnist and backbencher in the last Dáil and as a career senator for decades before that, Ross is now struggling under the more intense scrutiny and weighty responsibility that go with being a Minister. His allegation of judicial procrastination is ironic given the pace of activity at ministerial level in his own department. His purported passion for improved oversight sits uncomfortably beside the fact that he has left vacant so many places on the boards responsible for overseeing State or semi-State organisations under his remit, in many cases for several months.
While Ross has been hyperactive on judicial issues, his own departmental performance has been low energy.