Fine Gael has stumbled into a dangerous confrontation with the judiciary that threatens to do serious damage to the image of a party that has always prided itself on standing by the institutions of the State.
Many Fine Gael backbenchers and Senators were horrified to discover in recent days that they are at loggerheads with the country's senior judges at the behest of Shane Ross. To make matters worse, Sinn Féin and the hard left are backing this assault on one of the pillars of Irish democracy.
With committee discussion of the Bill now deferred, the affair looks set to run on through the summer.
Labour leader Brendan Howlin struck a chord with many in Fine Gael when he observed in the Dáil on Tuesday night that “the party of Collins and Cosgrave is being assisted in this endeavour by another party for which – if I put it at its kindest – the concept of the courts would not always have passed constitutional muster in the past”.
Fine Gael backbenchers did not begin to appreciate the implications of the so-called reform of the judicial appointments system until Chief Justice Susan Denham made her concerns known on Monday following the trenchant comments of High Court president Peter Kelly.
The two most senior judges in the land are held in high regard in Fine Gael not just by virtue of their status but also because they are held in personal esteem. Their opposition to the proposed new judicial appointments regime supported by all their colleagues on the bench came as a jolt to Fine Gael TDs.
Uneasiness Minister for Justice Charlie Flanagan
signalled his uneasiness with the legislation in an opinion piece in Monday's Irish Times, but the Cabinet on Tuesday decided to plough ahead regardless. Since then some Ministers have been ordering backbenchers to grit their teeth and drive the legislation through.
The decision to press ahead with the committee stage next week, hard on the heels of the second stage debate this week, had indicated a determination to put political survival ahead of principled concern. It is a long-standing convention of the Dáil that there is a two-week break between the conclusion of a second-stage debate, in which the broad outline of the legislation is debated, and the start of the committee stage during which detailed amendments are discussed.
That interval is designed to give TDs the time to digest the contents of a Bill and come up with reasoned amendments. The decision to abandon precedent and press ahead immediately suggested the Cabinet was not for turning. However, the decision yesterday by the Oireachtas Justice Committee members to vote against considering the Bill next week makes it unlikely that it will be passed before the summer recess.
Once the Bill passes through the Dáil, it could still face rejection by the Seanad. The Government does not have a majority in the Upper House and if Michael McDowell, a strong opponent of the legislation, can get all or almost all of the Independent Senators to back him in joining Fianna Fáil, Labour and the Greens, the Bill could be defeated.
Fundamental rethink
At the very least that would delay the legislation for a further 90 days until it could be brought back to the Dáil – and it might even prompt a fundamental rethink of its more controversial provisions.
To be fair to Taoiseach Leo Varadkar, this mess is not of his making. He inherited a programme for government that contained a specific commitment to follow the Ross agenda on judicial appointments. It was the price of Fine Gael being able to put a government together but pressing ahead now in the face of public opposition from the judiciary is another matter.
Most members of the public are probably not too concerned about the proposed change in the judicial appointments system, which provides for an advisory appointments committee with a non-legal majority and a non-legal chair.
The bottom line, though, as articulated by former Supreme Court judge Catherine McGuinness, is that the removal of the Chief Justice from the chair of the committee represents “a deliberate kick in the teeth” not only to the incumbent Susan Denham but to the judiciary as a body.
For Ross and Sinn Féin the whole point of the Bill is to give the Chief Justice and her colleagues that deliberate kick in the teeth. While the system of appointing judges could certainly do with some improvement, the deliberate humiliation of a judiciary, which has broadly served the country well, is a dangerous path to go down.
Ross in his long career as a journalist and politician has engaged in one populist campaign after another. He is the nearest thing we have to an Irish Donald Trump and Fine Gael needs to think very carefully before betraying one of its core values to appease his grudge against the judiciary.