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Legal matters… June 30, 2017

Posted by WorldbyStorm in Uncategorized.
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I’m at a loss reading Stephen Collins in relation to the judicial appointments process. He is hugely antagonistic to the judicial appointments process going through the Dáil at the moment. And he writes in very stark terms about it. 

Fine Gael has stumbled into a dangerous confrontation with the judiciary that threatens to do serious damage to the image of a party that has always prided itself on standing by the institutions of the State.

Many Fine Gael backbenchers and Senators were horrified to discover in recent days that they are at loggerheads with the country’s senior judges at the behest of Shane Ross. To make matters worse, Sinn Féin and the hard left are backing this assault on one of the pillars of Irish democracy.

He brings in another figure to underline this…

Labour leader Brendan Howlin struck a chord with many in Fine Gael when he observed in the Dáil on Tuesday night that “the party of Collins and Cosgrave is being assisted in this endeavour by another party for which – if I put it at its kindest – the concept of the courts would not always have passed constitutional muster in the past”.

Fine Gael backbenchers did not begin to appreciate the implications of the so-called reform of the judicial appointments system until Chief Justice Susan Denham made her concerns known on Monday following the trenchant comments of High Court president Peter Kelly.

What horror is this new appointments process going to involve? What anti-democratic aspects can we expect?

Collins writes:

To be fair to Taoiseach Leo Varadkar, this mess is not of his making. He inherited a programme for government that contained a specific commitment to follow the Ross agenda on judicial appointments. It was the price of Fine Gael being able to put a government together but pressing ahead now in the face of public opposition from the judiciary is another matter.

But what is the problem?

Most members of the public are probably not too concerned about the proposed change in the judicial appointments system, which provides for an advisory appointments committee with a non-legal majority and a non-legal chair.

Yes yes, it’s above the citizenry… bless them… but wait, a non-legal chair? That’s the problem?

The bottom line, though, as articulated by former Supreme Court judge Catherine McGuinness, is that the removal of the Chief Justice from the chair of the committee represents “a deliberate kick in the teeth” not only to the incumbent Susan Denham but to the judiciary as a body.

For Ross and Sinn Féin the whole point of the Bill is to give the Chief Justice and her colleagues that deliberate kick in the teeth. While the system of appointing judges could certainly do with some improvement, the deliberate humiliation of a judiciary, which has broadly served the country well, is a dangerous path to go down.

If all this seems almost risible, well, then perhaps you and I share similar feelings about this. Is this approach unknown elsewhere? I look at the UK judicial appointments body and see that they manage with a ‘lay’ chair. Now I’m the last to say we have to follow the UK in all matters…

But other than the utterly emotive ‘deliberate kick in the teeth’ line what precisely is the problem? Surely the status of a judiciary rests upon its own actions and pronouncements in the course of its work? And if the perception of ‘humiliation’ is the worst that Collins can eventually find (despite accepting the process need improvement) then he’s not best positioned given his own constant rhetoric about the  need in Irish politics for governments to take ‘hard’ and ‘painful’ decisions. Nor is it as if the proposed appointments process is that robust, the body will still only make recommendations…

Or is there more to this representation in the appointments process? Surely not.

The stuff about Fine Gael and the judiciary, though, is so revealing. Isn’t it?

 

For a more measured view what of this from a barrister, political scientist and former FG legal advisor (who clearly doesn’t share Collins superheated view of these matters), Dr. Jennifer Carroll MacNeill, who has written a work entitled The Politics of Judicial Selection in Ireland, though entertaining to see Pat Leahy  rather misrepresent her position – as enunciated in an article she had published the previous day. MacNeill’s view is that the judiciary has lobbied the government and that:

The particular problem is this. What is the broader impact of the judiciary successfully lobbying to change the contents of the proposed Bill? Whether or not that was the cause of the Government changing the proposed legislation, the volume of lobbying and the strength of feeling expressed both privately, and now publicly, has left the judiciary in an impossible situation.

If the Government pays no further regard to the policy preference expressed by the judiciary, then the judiciary will have been on the wrong side of this now rather public constitutional squabble. If the Government capitulates to judicial pressure, then there will have been real damage done the to doctrine of separation of powers – making it more difficult for future legal advisors to political parties to dissuade politicians from making statements about judicial processes.

One has wonder at the pushback in the IT against this too. The general consensus is that the appointments process while sub-optimal isn’t an issue. Well, maybe not, but.. given someone has made it an issue why this opposition?

Finally we are served this fantastic, and I mean that in a literal sense, analysis from Collins…

Ross in his long career as a journalist and politician has engaged in one populist campaign after another. He is the nearest thing we have to an Irish Donald Trump and Fine Gael needs to think very carefully before betraying one of its core values to appease his grudge against the judiciary.

Ross is Trump-like? Core valuesof Fine Gael – what is Collins talking about? What exactly is going on here?

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Comments»

1. An Sionnach Fionn - June 30, 2017

Money, power, influence? One of the golden cogs within the golden circle objecting to something interfering, however mildly, with the way it does things and has always done things? And the neighbouring golden cogs adding their voices of protest too?

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2. dublinstreams - June 30, 2017

I can only think then current and former Taoiseach introduced this bill as part of the PFG while planning to use its backbench TDs to make sure it didn’t pass (in its original form).

Theres definitely a wide media sneering at Ross even from reasonable journalists.

The emotive ‘kick in the teeth line’ came from this interview with Former Supreme Court Judge Catherine McGuinness http://ift.tt/2sd7KWe

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3. roddy - June 30, 2017

Many of Howlins own party had a bit of a problem with the ” concept of the courts” when they found themselves in a STICKY situation!

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