Friday 14 December 2018

Analysis: There's no guarantee on better calibre judges and no action on tackling legal costs

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John Downing

John Downing

Legend has it that on the eve of a referendum in October 2013 on plans to set up Ireland's newest law court, posters appeared in the leafier Dublin suburbs carrying the slogan: "Vote Yes to the Court of Appeal - and job creation."

Sometimes in the posher neighbourhoods, with more lawyers per square inch than any other locality, they speak of little else.

For the rest of us, keeping lawyers and courts far away is our life's work.

That yarn about the posters is entirely made up. It actually appeared as a tall tale by some acerbic wag on Twitter. But we can file it under "many a truth spoken in jest".

And it came to mind again as the chattering classes became fixated by controversy about comments from Attorney General Séamus Woulfe. He's the man who went to lunch last Friday with 50 journalists and said that opposition amendments to the Judicial Appointments Bill had made the draft law into "a dog's dinner".

The Bill currently snaking its way through the Dáil and Seanad is championed by Transport Minister Shane Ross, a TD for a leafier Dublin suburb.

Mr Ross wants to reduce politicians' and lawyers' influence in appointing judges - which looks like a good idea in principle.

The indigestion from Mr Woulfe's 'dog's dinner' just rumbles on and on. His scathing criticism turns on Opposition amendments to the Bill, which the AG says make it contradictory and in breach of the Constitution.

The contentious elements are a requirement inserted in the draft law for a new special commission, tasked with vetting judicial appointments, to rank nominations for the bench in order of preference. This may undermine the Government's constitutional role in appointing judges.

It is clear the AG took umbrage at his own role in appointments - as the country's most senior law officer - being downgraded if not totally expunged.

Now let's recall that this Bill is opposed tooth and nail by many lawyers and judges. We must note the one leading the charge for Fianna Fáil is its justice spokesman, Jim O'Callaghan, who is also a leading barrister.

We also have to note that the real issue for the opposition is that the proposed judicial appointments commission should have a majority of non-lawyers, and be chaired by a non-lawyer.

Equally, in the Dáil yesterday Independents 4 Change TD Mick Wallace offered a counterpoint to Mr Woulfe's criticisms.

He said the Attorney General sits at the Cabinet table, and still would have an input when ministers discussed the three nominees' names sent in by the appointments commission.

"Does he know that the equivalent of the AG in England, Wales and Scotland does not sit on the commission?" Mr Wallace asked, as he went on to contest other criticisms. The Wexford TD also had a swipe at the AG's remarks about a current appeal before the Supreme Court. He questioned its impact on any outcome.

It is hard to back the lawyers in their "what we have we hold" view of life.

But this Bill does nothing to tackle the real bugbear of our courts system - our uniquely steep legal fees. Fees make access to justice for most ordinary citizens to a court remedy very poor indeed. Rich people with very deep pockets can go to law. The criminal classes who nominally live on welfare generally get free legal aid. For the rest of middle Ireland, if you suffer a real injustice, you very likely cannot afford to take your case to court. Despite that issue being pursued by the Troika, nothing has been done.

Yes, it is clear that many of our newly appointed judges down the years have had clear links to various political parties. And yes, that is a matter for concern.

Yet we are unsure how a majority of non-lawyers involved in appointments will address that fact, or what guarantee it brings of better calibre judges.

We are sure it will do nothing on legal costs.

Irish Independent

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