The Independent Alliance may block any judicial appointments brought by Justice Minister Frances Fitzgerald in the coming months as it awaits the legislation which will reform the system of appointing judges.
The cabinet yesterday agreed to bring forward the heads of a judicial appointment bill – containing a summary of the bill’s intentions – by November. It also agreed that no new judges would be appointed until the bill is in place.
However, the Government’s official spokesman said that the cabinet reserved the right to review this position in case of pressing needs in the courts.
But this was disputed by a senior Independent Alliance figure who said the group had a "definite agreement" from Fine Gael that no new judges would be appointed until the system was reformed.
Independent Alliance minister Shane Ross has campaigned on the issue of judicial appointments for many years and insisted on the inclusion of reforms in the programme for government.
Breach of faith
After stalling for several weeks, the Alliance agreed to the appointment of several judges in July.
According to people who were involved in the process, the Alliance believes it has “a clear understanding that these were the last appointments under the old system”.
The suggestion that any judges could be appointed before the new legislation was in place would be viewed as a breach of faith by the Independents.
“It’s the first I’ve heard of it. It’s a completely new element. It would negate the promise they [Fine Gael] made. This is a defining issue,” said one senior Independent Alliance figure.
The Government expects that the heads of the bill – which outline the intention of the legislation – will be ready for consideration by the Oireachtas Justice Committee in November. However, it is not clear when the actual legislation will be published and debated by the Dáil and Seanad.
The Independent Alliance wants the bill to be ready early in the new year. Fine Gael sources suggest it could take much longer than that.
But this difference in timescale for the bill is the tip of the iceberg of much deeper political and cultural differences between Fine Gael and the Independents on the issue.
Some Fine Gael sources say that bill is unlikely ever to be passed by the Oireachtas. One senior source agreed there is “nobody in Fine Gael or in the Department of Justice who believes there is a problem with judicial appointments”.
The last major piece of legislation about the legal system, the Legal Services Bill introduced by the last Government, was delayed for years and heavily watered down after intensive lobbying by the legal profession.
Legal sources say the Judicial Appointments Bill will also attract opposition.
The proposals are likely to include replacing the existing Judicial Appointments Advisory Board with an independent judicial appointments commission which will have a non-legal chairman and a majority of non-legal members, to be appointed through the Public Appointments Service.