It was the Wednesday before Easter in Seanad Éireann, deep into the afternoon. Even by the sleepy standards of the Upper Chamber, this was a particularly somnolent session. About 10 members were present to hear a debate on an amendment being proposed to the Judicial Appointments Commission Bill.
It was amendment 95b, one of about 200 (and counting) amendments that have been tabled to date in the Seanad.
To somebody just wandering into the room, it was impenetrable stuff, a bit like wandering into a zoology lecture on the life cycle of arachnids.
For two hours there was back and forth on obscure points about secrecy: if an unsuccessful candidate for a judgeship was entitled to make his or her failure known. Michael McDowell was warning of the consequences of allowing something that was not fully thought-out.
“I have no doubt that it would equate to the crown jewels for some journalists to find out that somebody had been unsuccessful on a number of occasions and that the government had turned him or her down, especially if the media were sympathetic to the person concerned,” he told the House.
“They would argue that a worthy person seemed to be turned down constantly by a perverse government.”
“There’s the risk of having your reputation destroyed by a loose tongue,” intoned Gerry Craughwell, another vocal opponent of the Bill. “I would not touch it with a 40ft pole.”
On and on it went in that vein for two hours. Twice there were votes on amendments. Each time, Fine Gael and Sinn Féin Senators arrived en masse to vote the amendments down. Senator David Norris called for a “walk-through” on the second vote, even though it was 23 votes to seven. The net effect was that it gouged into the time allotted to the debate.
This Bill has been championed by Minister for Transport Shane Ross. Since entering government, it has been his big project, a personal mission to end what he sees as “cronyism” and elitism in judicial appointments. It stemmed from his own experience of seeing judges in action whom he considered to be politically biased.
He even insisted that it be included in the programme for government.
The purpose of the Bill is to decrease the sway of politicians and the judiciary in deciding who sits on benches. To give effect to this, the main plank of the Bill is an independent chair and a majority of lay people on the commission.
Ross has pursued the Bill with a zeal that critics say is largely absent in his departmental responsibilities. In fairness to him, he has been relentless in pushing it through the Dáil and Seanad. It is always a bold move taking on the legal profession, as past ministers have found to their cost.
Dogged McDowell
He has been opposed with equal doggedness by Michael McDowell, a prominent barrister and former minister for justice and attorney general. Ross sees him as doing the bidding of the powerful legal lobby and its self-serving interests. For his part, McDowell says the Bill is flawed because it will make it harder to persuade good lawyers to become judges, and will also remove the power of a government to use its own discretion when deciding how to balance merit and political values (conservative or liberal) in the superior courts.
And so the lines have been drawn. Just about every week since last June the Seanad has been continuing its committee-stage deliberations on the Bill. Like a long-running West End play, the cast of players remain the same. There is McDowell, most prominently supported by David Norris, Victor Boyhan, Gerard Craughwell, and Gerry Horkan of Fianna Fáil on one side. On the other is the Minister for Justice Charlie Flanagan (the Bill is his department’s responsibility, not Ross’s). Jerry Buttimer, the Fine Gael leader of the House, is usually there plus a few other revolving players from other parties and none. And even though the amendments change, the script stays the same, circling again and again around a few key points.
Fine Gael and Sinn Féin both support the Bill. Fianna Fáil, Labour and most others oppose it, but more tepidly than Team McDowell.
This tortuous talkathon is a classic filibuster, the longest in living memory in the State. It took a year for it to make it through the Dáil. But stalling tactics have taken on a whole new dimension since it was transferred to the Seanad on June 20th, 2018.
So far there have been 34 separate sessions, with 90 hours of debate. There is a fair chance there will be 90 more unless there is a dramatic intervention. Dutifully before each session, McDowell lobs in another raft of new amendments to make sure he and his colleagues won’t run out of debating matter.
Their objective is clear: to parlay the Judicial Appointments Commission Bill out of existence.
Bleak House
Scrolling through the debates, what comes to mind is the chancery case that provides the brilliant subplot for Charles Dickens’s Bleak House. The long-running case, Jarndyce v Jarndyce, has been running for many decades before the novel opens. Here is how Dickens describes it:
“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises.”
There are 63 sections to the Bill, but the central gist of it is to remove decision-making from judges and from politicians by giving majority status to lay members of the commission.
The current system for appointment, the Judicial Appointments Advisory Board, was set up in 1995. It is dominated by judges. It can recommend seven names to government (but not rank them). The government of the day can, of its own volition, decide to reject all recommendations and appoint its own person. There is no doubt that political patronage has played a part in judicial selection, more so in the lower courts, but there is little evidence that the judiciary has ever been politicised when it comes to its decisions.
Ross says the notion that he is completely wresting the appointments process out of the judiciary’s hands is a nonsense. He points to concessions made during second stage, where the number of judges and lawyers was increased (as was the number of lay people).
“[Judges and lawyers] will comprise nearly half the commission,” Ross told The Irish Times. “They can dominate it anyway because they have presence and power and authority.
“The idea that 17 lay people are coming in and appointing judges, it is a nonsense.”
Government discretion
McDowell’s principal objection is that the Bill will remove from government at a stroke one of its most fundamental duties: of exercising its own discretion in selecting judges.
“It is a matter of central importance to a democracy,” argues McDowell. “When I was in government as attorney general, and as minister for justice, when you are appointing a judge to the Supreme Court, the cabinet is making a decision on whether this person is conservative or liberal and looking at the mix. It is not party political but it is a political decision.
His argument is the commission would not be entitled, or allowed, to make those kind of value judgments in drawing up a shortlist.
“It will not be entitled to say you will have three conservatives, and will not be entitled to ask potential candidates about their views and values.”
Another of his core objections is that sitting judges would have to apply to the commission for vacancies that arose.
“They must subject themselves to a process where they are evaluated and interviewed by people who are in a lay majority who are also required to ignore the criteria for finding judges.”
The system of selection at present seems ad hoc, with some potential judges being “tapped on the shoulder” and encouraged to apply. McDowell says it works well because senior judges know the lawyers who have the intelligence and attributes to make good judges.
For Ross, this is an example of an elite perpetuating itself.
“This is a legal interest, a vested interest,” he says. [McDowell] is on behalf of the Law Library going to obstruct this Bill for as long as he can.”
‘Dog’s dinner’
So how has the Judicial Appointments Bill become the Jarndyce v Jarndyce subplot of this parliament’s term?
For one, the use of the guillotine to put time limits on Dáil debates (used on occasion by McDowell when he was a minister) has been ended in the Dáil because of uncertain numbers.
Secondly, the Bill that came out of the Dáil was flawed. In section 10, it stated the commission would consist of 13 members. But then there was a list that included five judges, the attorney general, a barrister, a solicitor, a chairman, a lay member of the human rights commission, and six lay people, making 17. The section was contradicting itself.
McDowell says this is part of the reason why the Attorney General, Séamus Woulfe, described it as a “dog’s dinner” and took a bit of flak for doing so. There were other flaws with the Bill – Flanagan has admitted as such and says they will be amended at report stage. But will it ever get to that stage?
It almost came to a head on that same Wednesday before Easter. Buttimer proposed a guillotine, to the outrage of opposition Senators. McDowell and his supporters claimed the Independent Alliance was lobbying Independent Senators. It made for a knife-edge morning, with neither side sure of the numbers.
When the walk-through vote was taken, the vote was 26 to 24 against. No guillotine.
There were some Senators absent for the vote, and they could yet sway the vote back to the Government side. If there is no progress, says Ross, “I think in June or July [an effort to move the Bill on to report stage] will be done again.”
He is determined to see it through, he says. But then, so are McDowell and his supporters. The end of the Jarndyce v Jarndyce case is that it collapses because there is nothing left of the estate. Unless the Government finds a way of guillotining this Bill, the same fate could apply to it.
