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Shortall accuses
Govt of rushing
judicial bill to
'mollify' Ross
Updated / Thursday, 29 Jun 2017
Shane Ross.
Kevin Doyle and Cormac McQuinn
June 29 2017
Transport Minister Shane Ross has doubled down on the
insistence the Chief Justice cannot chair the new
appointments commission for judges, describing the office
holder as an "insider".
The minister, who has championed the controversial
Judicial Appointments Bill, said it has received pushback
from "predictable quarters" but at a larger volume than he
expected.
Among those opposing the move to create a new
appointments commission, with a lay chairperson and a
lay majority, are the country's top judges and Fianna Fil.
But Mr Ross said the bill was not actually as radical as he
had hoped.
"After 30 or 35 years in this House and the other House, I
am beginning to learn that the difficulties of getting mild
reform through the Houses and away from the bastions of
Official Ireland is a much harder project than I had
anticipated," he said, adding: "This is not radical enough
for me."
A key complaint from those opposing the changes is that
the Chief Justice will not chair the new commission.
Former Supreme Court judge and president of the Law
Reform Commission Catherine McGuinness said this was
a "kick in the teeth" for the judiciary.
Amongthoseopposingthemovetocreateanewappointments
commission,withalaychairpersonandalaymajority,arethecountrys
topjudgesandFiannaFil.Photo:LauraHutton/RollingNews.ie"
title="Amongthoseopposingthemovetocreateanewappointments
commission,withalaychairpersonandalaymajority,arethecountrys
topjudgesandFiannaFil.
Among those opposing the move to create a new
appointments commission, with a lay chairperson and
a lay majority, are the countrys top judges and
Fianna Fil. Photo: Laura Hutton/RollingNews.ie
But Mr Ross told the Dil: "The Chief Justice will not be in
the chair for a very good reason. The chair is the most
powerful position and it should not be an insider who is in
the chair, in any position of this sort, in any walk of life.
"It is an institutional decision and not a personal one
about anyone. It is to give the lay majority independence
and a stamp of credibility and authority to judges when
they are appointed. We should not be frightened of this."
However, in the first public sign of disquiet among Fine
Gael TDs over the legislation, Dublin-Fingal TD Alan
Farrell admitted he is not convinced a lay person should
chair the commission as this could damage the authority
of the Chief Justice in the public mindset.
"I have concerns regarding the chair of the commission in
that the Chief Justice would not be chair. My main issue in
that regard is that the Supreme Court is the highest in the
land and has the final say in terms of the interpretation of
the law in line with the provisions of our Constitution.
Marie O'Halloran
Updated: Tue, Jun 27, 2017, 22:12
Leo Varadkar
urges judges not
to block his
reforms
Catherine Sanz, Niamh Lyons
June 26 2017, 12:01am,
The Times
http://www.newsjs.com/url.php?
p=https://www.thetimes.co.uk/article/leo-varadkar-urges-judges-
not-to-block-his-reforms-29rbh0jm3
Judge rules debtor being
pursued by bank should get
full hearing
Ruling may make it more complicated for banks to get
summary judgment orders
June 29, 17
Colm Keena
Ms Justice na N Raifeartaigh
Pat Leahy
Minister for Transport Shane Ross has thundered against
cronyism everywhere in Irish life, but sees it as an especially
pervasive influence in the appointment of judges. Photograph:
Maxwells
The determination of the Minister for Transport to
change the way judges are appointed is one of the most
consistent policy themes of the current Government.
Many people inside and outside Government wonder at
the wisdom of Shane Rosss crusade, but few can doubt
his determination and persistence.
He has forced it on to the Governments agenda,
demanding its inclusion in the programme for
government and maintaining constant pressure to
ensure the Bills delivery, despite the opposition of the
Department of Justice, the judiciary and significant
elements of Fine Gael.
This is how coalition governments work: the smaller
partner picks a few issues and demands their delivery.
Rosss choice may be quixotic, but it is definite.
The Bill began its legislative journey in the Dil on
Tuesday night, and debate continues on Wednesday. It is
due to be debated again on Thursday, and the Cabinet on
Tuesday reaffirmed its intention to have the Bill signed
into law before the summer recess in later July.
This is a highly accelerated timetable than what would
be normal especially for sensitive legislation against
which there is a lot of opposition and it should be
remembered that the Government does not command a
majority in either the Dil or the Seanad. Passing the Bill
is not, actually, within the Governments power: it
depends on Opposition support. But Ross insists he has
a commitment that the Government will do everything in
its power to pass the Bill, including extending the Dil
term by a week if necessary. It is clearly an immediate
priority for the coalition.
Niche issue
But why? Why has Ross made what is at best a niche
issue into such a priority, expending so much of his
political capital on it?
Of all the pressing problems faced by Ireland, few people
would have identified the appointment of judges as
being among them.
The judges and the Bar Council have also stated that no
explanation for this reform has been provided. So why is
increased lay participation on a judicial appointments
body considered a good thing? Primarily, it is a device
used to increase diversity on the bench and to ensure
public confidence in the fairness of the system. Studies
internationally have shown that when judges dominate
such bodies, the new appointments are almost always self-
replicating and it is very difficult for women or minority
candidates to be appointed. (In fact the current process in
Ireland has been described by an insider as being akin to
an exclusive golf club admissions process.) Increasing the
lay representation on such bodies generally leads to more
openness of views and increased participation in the
appointments process.
Baroness Prashar, who is a crossbench member of the
House of Lords and was the first chair of the Judicial
Appointments Commission in England, has made the
following comment on lay membership of the
Commission:
You do not just have a lay member on the panel to
increase transparency and to satisfy public perception:
they all bring something Once you were on the
Commission, there was very little distinction between the
judicial and the lay members. The Commission was a
very robust body, and it worked extremely well. Lay
members add real value, and what I valued most was their
independence of mind.
Of course it is essential that the judiciary has a role in the
appointments process and that the Chief Justice and
Presidents of the Courts are involved in selecting
candidates. Judges understand the qualities necessary
for particular positions and are able to provide an
informed assessment of an individuals experience, skills
and abilities. However, judges will naturally, and through
no conscious process, prefer individuals who are similar to
themselves and it is argued that having greater lay
involvement in the selection process is the most
appropriate way of avoiding the problem of self-
replication within the judiciary.
Of course, this also raises the question as to why diversity
is desirable in the Judiciary. This was something which, in
their submission to the Department of Justice on reform
of judicial appointments, the judges felt was a non-issue.
Also Senator Michael McDowell SC, who has been one of
the main critics of the new Bill, recently commented
publicly that he doesnt understand this desire for
diversity when we already have excellence in the
judiciary. However, this misses the point and it is
surprising that the argument for diversity even has to be
made today. While, there is not sufficient room in this blog
to explore the reasons for the need for diversity on the
bench, I would point the esteemed Senator to the excellent
research which has been carried out by academics such as
Erika Rackley, Clare McGlynn and the writings of Lady
Hale all of which
demonstrate that diversity is not about expecting different
decisions than those that are given now but about
providing equality of opportunity, democratic legitimacy,
which feeds into public confidence that judges are
representative of the community as a whole and can
understand a vast array of issues, and also about providing
diversity of opinion and divergent views. Furthermore, as
these academics have demonstrated, diversity is
compatible with the concept of merit.
Another claim which has been repeated on the airwaves in
recent days is that the inclusion of lay persons on the body
will mean that ordinary Joe Soaps will have control over
appointing judges. However, this is wild exaggeration and
it is up to the Oireachtas to decide on the criteria for the
appointment of such lay persons. In other jurisdictions,
these are usually people who have held high office,
successful business people, people who have had
experience in appointing others to high office, academics,
and generally people who are very well regarded. It is
envisaged in the proposed legislation that the lay persons
would have experience of the administration of justice and
it is possible to build in further requirements here.
Ultimately, the Oireachtas has the power to determine the
qualifications necessary for appointment to the board and
can easily assuage any fears here.
The other concern of the judges, on the exclusion of the
Presidents of the District and Circuit Courts, is perhaps
something which should be remedied in the proposed
legislation. It is in these courts where the vast majority of
appointments are made and so it makes sense that these
figures would wish to be involved. Although the Bill does
make provision for the Presidents to be consulted. From
what I understand, the reason they were excluded in the
first place was to maintain the balance of lay and legal
persons but surely it would make much more sense to
exclude the Attorney General, who would be involved in
the appointments process at Cabinet level in any case and
therefore would seem unnecessary to be included here
also. (Incidentally none of the jurisdictions mentioned
above include the Attorney General in their bodies).
While it may be the case that Mire Whelan was the most
suitable candidate for the position, a process such as this
where everything is shrouded in secrecy serves only to
damage public confidence in whole system. In 1994, the
controversy surrounding the appointment of the Attorney
General to the position of the President of the High Court
brought down the Government, and while the current
situation is unlikely to cause such repercussions, it does
raise some serious questions about favouritism and
cronyism in the appointments process and it underlines
the need for action on judicial appointments reform.
The Judicial Appointments Commission Bill, which has
been a pet project of the Minister for Transport Shane
Ross, was finally published two weeks ago. It is difficult to
know whether the recent Cabinet reshuffle and change in
the Ministry for Justice will have any effect on the
progress of this Bill. The Bill itself is quite detailed and
while there may be further details yet to be worked out as
it makes its way through the Houses of the Oireachtas, it is
a massive improvement on the system which currently
exists and is generally to be welcomed. The main features
of the Bill include a new Judicial Appointments
Commission of 13 members, of whom 7 will be laypersons,
including the chairperson. Following a selection procedure
(which is not specified but the Bill states that the
Committee may do such other things as it considers
necessary in relation to selecting persons), the JAC will
recommend 3 persons to the Minister for any judicial
vacancy. Much of the rest of the Bill is concerned with the
formation of the JAC itself and the establishment of an
office etc and in general, the procedures are left to be
decided by the JAC once it is established. It is
disappointing that the Bill did not go further in specifying
selection processes such as interviews or role plays, as
happens in England and Wales for judicial appointments.
Also, while certain changes are made to the eligibility
requirements such as the addition of legal academics with
4 years practice experience, the opportunity is not taken to
amend the vague eligbility criteria already in existence to
the effect that a candidate must be suitable on grounds of
character and temperament. However, it is a positive sign
that section 7 recognises the compatibility of merit with
diversity in judicial appointments.
One significant point which is relevant to the current
controversy is the issue of the status of the
recommendation made by the JAC to the Government.
Section 48 of the proposed Bill states that In advising the
President in relation to the appointment of a person to a
judicial office the Government shall firstly consider for
appointment those persons whose names have been
recommended to the Minister. It does not state what
would happen should the Government refuse to nominate
one of the recommended names but Section 50 does
provide that the appointment to judicial office will be
published in Iris Oifigiil and the notice must include a
statement that the name of the person was a
recommended name (if that has been the case). Section 51
also requires the Minister to lay before the Oireachtas at
the end of each year, a statement containing details on the
appointments made in that year including their experience
and whether or not they were recommended by the JAC.
In other jurisdictions, there is a requirement that if the
Government refuses to accept the recommendation of a
nominating body that it must publish stated reasons for
doing so. It appears that these sections are a light version
of this requirement but it certainly adds to the
transparency of the system and makes it more awkward
for the Government to depart from the recommendations.
However, the bottom line is that under the current system,
and even under the system
Senior judges
express concern
over appointments
bill
Updated / Monday, 26 Jun 2017
Follow
Mchel Lehane
Taoiseach clarifies that he did not know of
Marie Whelan's nomination until cabinet
meeting but knew the night before it was a
"possibility"
2:58 PM - 20 Jun 2017
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The Taoiseach admitted that the
controversy "is not the issue I would like to
have dominated my first week."
He also said the new Judicial
Appointments Bill would be brought to the
Dil next week.
Sinn Fin leader Gerry Adams said the
controversy overshadowed the Taoiseach's
appointment of his new super junior
ministers and there was no new politics on
show.
He also criticised Fianna Fail for their
conduct during the judicial controversy
saying that they had "marched to the top of
the hill, their brass necks glistening in the
sun" but then simply rolled over.
The Dil Business Committee is to meet at
4pm amid mounting calls for Dil
statements on Ms Whelan's appointment.
The Taoiseach said any debate will be be
limited given the separation of powers
between the judiciary and Government.
However, Fianna Fil described Mr
Varadkar's approach as arrogant.
The party wants statements on
Ms Whelan's appointment to take place
tonight during its Private Members' time.
https://www.rte.ie/news/2017/0620/884205-dail-leaders-questions/
Cabinet to review
procedures after
Whelan controversy
Updated / Tuesday, 20 Jun 2017 20:43