Wednesday 29 January 2020

There's no justice in Ross shunning the experts in favour of his vapid populism

Shane Ross and Cllr for Glencullen/Sandyford Kevin Daly at the reopening of Stepaside garda station earlier this month. Photo: Justin Farrelly
Shane Ross and Cllr for Glencullen/Sandyford Kevin Daly at the reopening of Stepaside garda station earlier this month. Photo: Justin Farrelly

Willie O'Dea

One of the most glib and idiotic utterances during last year's UK Brexit referendum came from the Tory minister and Leave campaigner Michael Gove, who declared British people "have had enough of experts".

It was a frantic attempt to deflect from the Leave campaign's inability to answer charges Brexit would damage the UK economically. It is a common tactic among desperate political charlatans, especially when their failures on other fronts are about to emerge.

It is also the fake underpinning to Shane Ross's Judicial Appointments Bill which is being hurriedly debated this week. What Ross has forced the Government to do is ask the Dáil to accept - and so far only Sinn Féin does - that we cast expert advice to the margins and look to the way contestants on 'Eurovision' or 'Big Brother' are picked when filling future judicial vacancies. As we saw with last week's debacle, the current system of identifying potential judges could do with being strengthened to prevent future cabinets doing an end run around the spirit of the law while claiming to be entirely within it. What Justice Minister Charlie Flanagan is presenting to us in-loco-Shane Ross is not reform. Rather than relying on careful thought and research into best practice in other common law systems, what we get is a Bill dreamed up in Shane Ross's head with the sole ambition of gaining him attention.

No one who knows and understands the operation and needs of our judicial system thinks what Ross is offering is sensible reform. Our most senior judges, whose expertise and wisdom we rely on daily for important decisions, have taken the very unusual step of writing to the Taoiseach to warn him of this folly.

Even the incoming Justice Minister, seemingly emboldened by the new Attorney General, started out the week saying how unhappy he was with this bill, though not so unhappy he or his boss were willing to tell Ross this to his face.

What makes this mess all the worse is there is a far more sensible and workable alternative proposal in the form of Jim O'Callaghan and Fianna Fáil's draft legislation. It could be passed within days and achieve the reforms Ross claims he wants, without any of the damaging consequences.

O'Callaghan's draft bill envisages a clear role for non-judges in the process. Indeed, he has gone further than Ross. Of the 12 people on O'Callaghan's proposed Judicial Appointments Commission, only five will be judicial members - the Chief Justice and presidents of the four other courts - while the remaining seven will be non-judicial members. This recognises the pivotal importance of the Chief Justice and court presidents as having responsibility for efficient, effective operation of the courts.

Ross wants to ignore their expertise and responsibility and instead wants lay people picked by the Public Appointments Service from those who apply. So the people who pick the judges in Ross's view should themselves be picked by civil servants based on 10-minute interviews. O'Callaghan has already indicated the key stakeholder groups which could provide the non-judicial nominees, such as the Free Legal Advice Centres, Citizens Information Board, Law Society, the Competition and Consumer Protection Commission, Bar Council and the Irish Human Rights and Equality Commission. This is a sensible provision.

O'Callaghan's bill also provides another important safeguard that Ross's omits: transparency. In the scheme O'Callaghan and Fianna Fáil propose, the Judicial Appointments Commission will send three names, ranked one, two and three, from which the Cabinet can choose a judge. Ministers can pick any but if they pick none they must publish a reasoned decision on the Government website.

There is no virtue or merit in ignoring all expert opinion in favour of vapid populism. The fact Sinn Féin, whose only institutional expertise in this field is a familiarity with some people who have staffed provo kangaroo courts, is the other party to wholeheartedly back this proposal tells you all you need to know about it.

Irish Independent

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