Tuesday 25 June 2019

Plenty of problems for Ross to work on - but the judiciary is not one of them

'The attack on the system by Mr Ross seems unfounded.' Photo credit: Paul Faith/Getty Images
'The attack on the system by Mr Ross seems unfounded.' Photo credit: Paul Faith/Getty Images
Deirdre Conroy

Deirdre Conroy

Transport Minister Shane Ross needs to get off his hobby horse. Since his interference in the matter of judicial appointments, the public has been put at a serious disadvantage. His blockage of appointments has caused a deficit of judges in the Circuit and High Courts, leading to a backlog of cases seeking dates for hearings up to six months ahead and having a serious effect on emergency cases.

There are over 20,000 cases heard in the High Court each year and, as a newcomer to the court system, I have watched over the last two months how the feisty female registrars of the High Court wield their skills to case-manage, while they are short of at least five back-up judges.

President of the Circuit Court, Raymond Groarke, recently asked how he could do "the work the Government expects me to do when they won't give me the judges I need?" He added that he was already three judges short and would be five short by next term.

The Court of Appeal was instituted to decrease the four-year delay in the Supreme Court but you will not get an appeal hearing until mid-2018, such is the current shortage of judges.

There is already significant pressure on the system due to a shortage of resources.

In 2014, Ireland had the lowest number of judges of 47 countries examined by the European Commission, at three per 100,000 inhabitants, as opposed to 10 per 100,000 in France or 24.3 per 100,000 in Germany.

The pressure is on from the Court of Justice in Strasbourg for Ireland to become more efficient in its case management, as we are one of only three countries (post-Brexit) with a common law jurisdiction.

So, when a new bill to remove judicial selection from the political process was proposed in the Dáil recently by Fianna Fáil's Jim O'Callaghan (also a senior counsel), it was deemed "far from perfect" by Mr Ross, who takes issue that the experts within the profession should have any say in the selection of suitable candidates for the bench.

Mr Ross noted that while the new bill "largely removed political leverage, it gave someone else - legal eagles - a majority on the new commission selecting judges".

Somewhat patronisingly, the Minister for Transport, Tourism and Sport says that he "welcomes judges and lawyers on the selection board 'but not in control'". In his negotiations with Government, his group, the Independent Alliance, agreed to "an independent layperson in the chair, flanked by a majority of laypeople advised by judges and lawyers. The Chief Justice would be welcome among their number".

In effect, Mr Ross is suggesting that somebody - selected by whom? - without any legal training, experience at the bar or bank of knowledge built up through advocacy and interpretation of case law would be placed in authority over the Chief Justice. Mr Ross is in Government for a very short time, and this approach demonstrates the danger of political interference in the separation of powers.

Ironically, Mr Ross had not acknowledged that it was the current Chief Justice who authored the bill to provide for a judicial council to be established. In recent remarks at the National Judges Conference, Chief Justice Susan Denham said it was "a fundamental principle that each of the three pillars of State - the legislature, the executive and the judiciary - owes respect to the other".

Without the media mouthpiece enjoyed by Mr Ross, the judiciary is not in a position to defend its role publicly, but to "respect each other" is the least that should be shown.

Mr Ross has given no evidence that the current judicial appointment system has led to injustice and he has also ignored the fact that the judiciary had been pressing for the last five years to have the process of judicial appointments made more transparent, and that for 20 years the judiciary had been asking for a judicial council.

Strangely, Mr Ross has dubbed the entire bar as a crony-led elite.

Since I joined the bar in October this year, my experience is obviously limited, but what is obvious is the increase in women barristers and judges.

The Supreme Court now has four women on the bench and many new female High Court appointments have been made in recent years. In comparison to our elected representatives, the judiciary is making greater inroads into gender balance.

On the administrative side, the court system employs a majority of highly proficient female registrars and county registrars.

In the Court of Appeal recently, Ms Justice Mary Finlay Geoghegan clarified that being a judge is "not just a job", but that "a person appointed as a judge under the Constitution is appointed as the holder of judicial office" in the judicial arm of Government. The standards and ethics within the profession are enshrined in the Constitution.

The attack on the system by Mr Ross seems unfounded. Certainly, the issue of judicial appointments is not one of the pressingly urgent issues within Mr Ross's constituency. It is most definitely not a national issue, where the stress points come from continuing austerity measures imposed on the population.

In response to Mr Justice Groarke's concerns, Fine Gael has recently agreed to make judicial appointments, pending the establishment of a reformed Judicial Advisory Board. When tackling homelessness, housing and rent crises should be top of the Government agenda, interfering with the judicial process only serves to impair access to the courts for those seeking a remedy.

Irish Independent

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