'Irish Times' view on Judicial Appointments Commission: Minimalist plan for change

New rules on transparency or accountability for politicians involved in the process are entirely absent

Minister for Justice, Helen McEntee says the commission’s recommendations will be based on merit alone, but we are not told what are the criteria for merit or how they will be decided. Photo: Sam Boal/RollingNews.ie

Minister for Justice, Helen McEntee says the commission’s recommendations will be based on merit alone, but we are not told what are the criteria for merit or how they will be decided. Photo: Sam Boal/RollingNews.ie

 

Nearly every attempt at changing the system for selecting judges has been a short-term response to an immediate political problem.

The Judicial Appointments Advisory Board (JAAB), the centrepiece of current procedures, was a quick fix cobbled together in a hurry by a Fianna Fáil/Labour coalition facing the threat of collapse over the so-called Whelehan affair in the mid-1990s.

More recently, the driving impulse behind the 2017 Judicial Appointments Commission Bill was the then government’s need to mollify Shane Ross, who had made it his chief political cause. Faithful to that tradition, at least partly, is the draft law published last week by Minister for Justice Helen McEntee.

Its publication was brought forward on account of the row over the nomination of Séamus Woulfe to the Supreme Court. And some of its provisions are designed to ensure that no future government can trip itself up in quite the same way as this one did over the Woulfe debacle.

For the new system to be a real upgrade, it would have to shine a light into the part of the process that has always been the most opaque

The heads of the Bill contain some promising changes. The proposed Judicial Appointments Commission would have just nine members – not the excessive 17 envisaged in the Ross-era draft. In an attempt at compromise on one of the most contentious issues, there will be equal representation of judges and lay people on the panel. The chief justice will chair the group but will have no casting vote, while the ninth member – the attorney general – won’t have a vote at all. Another welcome change is that the lawyers’ lobby groups – the Bar Council and the Law Society – will not be represented. Whereas at present serving judges may “express interest” in promotion by writing directly to government, in future they too would also apply through this new structure.

Ultimately, however, this is a decidedly minimalist set of reforms. And on important questions, the proposals are worryingly silent. The commission would send five names to government for each vacancy, but they would not be ranked, so Cabinet would still have wide discretion (and ample scope for political patronage).

McEntee says the commission’s recommendations will be based on merit alone, but we are not told what are the criteria for merit or how they will be decided. We do not even know if the commission will be required to interview candidates.

If all of this sounds familiar, it’s because these flaws are also the defining features of the JAAB, the discredited body that the new commission would replace. For the new system to be a real upgrade, it would have to shine a light into the part of the process that has always been the most opaque: how governments actually choose from the lists they receive. New rules on transparency or accountability for politicians involved in the process are entirely absent, however. Until that is resolved, public faith in the appointments process cannot be restored.

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