In a grubby capitulation to the ill-informed obsession of one minister, our weak-kneed, frightened Government has decided to appoint a three person committee, consisting of the President of the Court of Appeal, the Attorney General and the chairperson of the Public Appointments Commission, to advise it on the issue as to who should succeed the current Chief Justice who will retire in August.
The Government delegated to that committee the task of deciding how to devise its own procedures for “inviting and assessing expressions of interest from applicants”.
The Government then announced that those expressions of interest were to be sent to the Secretary General of the Government, Mr Martin Fraser. The applicants were required to set out the person’s education, professional qualifications and experience relevant to the position of Chief Justice.
And then to crown it all, each applicant was to pen a statement of not more than 500 words setting out the reasons for the person’s “interest in and suitability for the office including his/her capacity to carry out the leadership role in the Judiciary”. And this is to be done this week at the latest.
At present, the Government is totally free to consider and appoint any judge of the superior courts, the High Court, the Court of Appeal, and the Supreme Court, to the position of Chief Justice. Technically, any practising barrister or solicitor of 12 years standing could also be appointed Chief Justice, but that has never happened since 1924 and most likely never will happen.
Why is this happening? Has there been some problem about the appropriateness of past appointments as Chief Justice? Is a new procedure now needed to remedy a problem that has arisen in the past?
Or is this Government so weak-kneed and self-doubting that it does not trust itself to appoint a Chief Justice relying on its own judgment and having the advice of the Attorney General and the Minister for Justice, as was always done in the past.
Or does Minister Ross simply not trust his fellow cabinet members to make a decision without a short-list prepared by outsiders? Does he have any confidence in his own judgment? And, if not, why will he not defer to those of his colleagues in government who are prepared to make an appointment?
The phrase “short list” raises another question: how short is the short list to be? The Government has refused to make that clear.
If the new committee were to find that there were, say, six judges each of which was eminently suitable for appointment as Chief Justice, are they to exclude three of them in order to shorten their list to Minister Ross’s whim? And is the Government to be kept in the dark as to which judges have expressed interest, and been considered but not preferred by the committee?
Is the process secret? Will the Government be obliged to tell us whether the next Chief Justice was short-listed or not? Will unsuccessful applicants be informed that they have not been short-listed? Or will they wonder whether they failed at committee or government level?
And is the Government to be left wondering whether any particular judge was considered and not short-listed or else never bothered to apply?
And will Minister Ross stamp his foot and flounce out of cabinet if the rest of the Government comes to the conclusion that it would prefer, on balance, to appoint a judge who was not short-listed by the committee. Would that be a resigning matter for him?
I can think of a number of senior judges who might be excellent Chief Justices, some of whom might not apply in the squalid little beauty parade devised by Minister Ross.
I can also think of at least six current judges who would, in my book, make excellent appointees.
Bur if I were still the Minister for Justice, I would be horrified if one member of the cabinet, who knows little or nothing about judicial appointments, were to say that a group of non-ministers were appointed to whittle down the applicants including my six to, say, three and if I were to be told that I could not propose the selection of one of my own choices even for consideration by the rest of the cabinet.
Appointing a Chief Justice is simply not a matter for objective, pre-ordained criteria. We might need a great jurist or a more administrative type; we might need to appoint a liberal or a conservative; we might need to appoint a Chief Justice by reference to our constitutional relationship with the EU or by reference to separation of powers issues; we might be concerned with age or gender..
These issues are for the government alone to decide.
And, with the greatest respect to them (which I have in abundance), these are issues on which the views of a majority of the new committee’s members are utterly irrelevant.
Neither the President of the Court of Appeal nor the Chairperson of the Public Appointments Commission was appointed to give advice to the government on those types of issues or to construct short-lists for the position of Chief Justice with or without regard to those issues. They are simply not in a position to guide the government on such issues. And they ought not to be asked to do so. That is not their function; it is the sole prerogative of the government. They are not invested with any competence to choose the Chief Justice
Not only is it a right of the members of the government to appoint a Chief Justice by reference to their judgment on those and other criteria; it is the duty of the members of government to take those matters into account and to make their collective decision by majority. It is a non-delegable duty in constitutional terms; the government alone is vested with that duty and accountable to the Dáil and people for the exercise of that duty.
I recently spoke at a conference in Waterford on the Bill that is being championed by Minister Ross. I pointed out that its proposed provisions included the involvement of the outgoing Chief Justice as a member of a similar advisory committee to choose a successor. I argued that such a provision was deeply flawed.
I note that this latest non-statutory committee does not include the outgoing Chief Justice as the Ross Bill would have it. I am glad that the current Chief Justice is not involved in short-listing applicants to succeed her. It is wrong in principle.
Appointing a Chief Justice - as a right and duty -should remain a matter for the Government alone. No-one has argued that the present position has given rise to any difficulties.
This new committee is wrong in principle.
It was justified by Minister Ross as “taking the appointment of judges out of the hands of politicians”. In our democracy, our government is composed of elected politicians. Posturing as cutting down the constitutional role of politicians is itself cheap politics.
Seeking membership of government and then funking the powers and duties of cabinet office is plain, simple cowardice.
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