Cabinet members on collision course over judicial appointments

The justice minister says there is an attempt to "introduce uncertainty in the public mind" over judicial appointments

Cabinet members on collision course over judicial appointments

The Minister for Justice Charlie Flanagan. Image: Sam Boal / RollingNews

The Justice Minister Charlie Flanagan has hit out at those seeking to place the “judiciary in the dock”, as controversy over the separation of powers between the Oireachtas and judiciary continues.

Writing in today’s Irish Times, Mr Charlie Flanagan said Ireland has a “tradition of a very independent and well-regarded judiciary” adding that there has been an “attempt to introduce uncertainty in the public mind about that point in recent times.”

The comments have been taken as a thinly-veiled response to the stance taken by the Transport Minister, Shane Ross, on Ireland’s system for appointing judges.

Minister Ross has previously called the current system “rotten” and has pushed for its reform since the formation of the Government.

He has claimed that all judges are “currently politically appointed” and insisted the new Judicial Appointments Bill – which is due to be debated in the Dáil over three days this week – will “finally end this rotten system.”

The issue has long caused tension between the Independent Alliance and Fine Gael – with Minister Ross blocking the appointment of any new judges for a time last year.

Former Taoiseach Enda Kenny was forced to distance himself from the transport minister in November after he claimed the judiciary lead a “charmed life” and suggested judges “might forget” their oath to consider every case without fear or favour.

 Challenging context

Writing in The Irish Times ahead of the introduction of the new Judicial Appointments Bill this week, Minister Flanagan warned that the proposed legislation “should not be interpreted as an explicit or implicit criticism of the judiciary, who have served this State with distinction and integrity since we achieved our independence.”

“I am conscious that I will be introducing this bill in a very challenging context,” he said. “I am greatly disturbed by the tenor and content of some of the recent public discourse about the judiciary, one of the three branches of Government under our Constitution.”

He said Ireland is internationally recognised as having a “strong and independent” court system with a “clear separation of powers where the rule of law is paramount.”

He said judges are appointed by politicians who are accountable to the electorate – adding that since the foundation of the State judges have “again and again found against the government of the day in their judgments when the law demands it.”

“They have vigorously maintained their independence and, in the superior courts in particular, judgments have often been highly critical of governments of all political complexions,” he said.

He held a meeting with Minister Ross on the issue last week, and has reportedly resolved to take responsibility for the legislation himself - free from the demands of his Cabinet colleague.

Judicial Appointments Bill

The new legislation will introduce a new appointments board with a majority of non-lawyers and non-legal chairperson - however Minister Flanagan is believed to be concerned about certain elements of the proposed new system.

Writing today, he said the fact that the judiciary “cannot and should not engage in public debate on matters of political controversy has been exploited by some populists with scant regard for the implications or consequences.”

He insisted the new bill should be seen as a pathway toward modernising an aspect of government administration rather than “righting a wrong” in terms of the appointment system.

Separation of powers

It comes after Taoiseach Leo Varadkar warned that both judges and politicians need to respect the separation of powers between the Oireachtas and Judiciary.

Tensions have been running high between the two government branches in recent weeks ahead of the introduction of the new appointments bill - with a number of politicians taking the controversial step of naming sitting judges during a fiery debate over the appointment of former Attorney-General Máire Whelan to the Court of Appeal last week.

On Friday the President of the High Court, Mr Justice Peter Kelly, took the equally controversial step of criticising the Government over the proposed legislation.

On Sunday Mr Varadkar said both judges and politicians need to respect the separation of powers and ensure there is a "decent distance between the judiciary and the Oireachtas.”