First published in the Sunday Business Post 29 May 2016
A love letter to the “outsider” who is now an “insider”
This is a love letter to Minister Shane Ross. The “outsider” who is now an insider with the well-intentioned motive to reform the “rotten” judicial appointment process by creating a new judicial appointments commission. Please don’t repeat the same mistakes as your predecessors. Here’s why.
The Irish response to crises over the past 20 years is the establishment of new independent oversight bodies. These regulatory agencies will magic away whatever controversy has demanded their creation.
We called this the Three Ps principle when I worked at the United Nations. Every country tends to do the same thing. (1) Print the legislation. (2) Put it up for everybody to see. (3) Pray to God it works. Here are four examples of the Three Ps principle in Ireland.
Gsoc was established in response to the Garda scandals revealed by the Morris tribunal. The Garda Ombudsman Commission was embroiled in controversy in 2014 because it wasn’t given the necessary powers to access Garda-controlled information.
The Data Commissioner was set up only because an EU directive demanded it. The Max Schrems Facebook privacy case revealed the problems the Portarlington-based body had in regulating multinationals.
The effectiveness of the Standards in Public Office (SIPO) Commission came into question after last year’s RTÉ Investigates programme. SIPO could do nothing to police the fondness of local councillors to help the “lovely Nina” (planted by RTÉ Investigates to offer incentives to the councillors) with planning issues.
GSoc, the Data Commissioner, and SIPO were set up with great fanfare, but without the necessary powers or resources. The first two of these oversight agencies were subsequently given substantial additional powers and resources. SIPO is still waiting.
Shane Ross’s price for going into government was a commitment by Enda Kenny to replace the Judicial Appointments Advisory Board (JAAB) with a judicial appointments commission. The new structure will have an independent chair, instead of the Chief Justice, who will be selected by the Public Appointments Service. The new commission will have a majority of lay people instead of being “stuffed with political nominees and legal bigwigs”, as Ross so elegantly wrote in one of his columns.
Ross made a really big deal of this. With books, column inches, and copious Dáil speeches under his belt about “this rotten system”, he kind of had to. But changing the name of the board and altering its membership isn’t actually going to solve Ross’s problem with judicial appointments.
In her academic book, The Politics of Judicial Selection in Ireland, which will be published tomorrow, Dr Jennifer Carroll MacNeil perfectly illustrates the Three Ps principle in relation to the JAAB. Apparently, Shane Ross is unable to attend Tuesday’s book launch, which is a shame given the fuss he’s made over judicial appointments.
MacNeill, a former adviser to former justice minister Alan Shatter, examined the process of judicial selection in the 12 years prior to the establishment of the JAAP and the 12 years following its introduction. Interviews with judges, ministers and the Attorney General’s office reveal that the JAAB had little impact. Why?
The JAAB already has the statutory powers to change how judges are appointed, but has never used them. Since it was established in 1995, it has considered 5,320 applications for 194 vacancies in the District Court, Circuit Court, High Court, Court of Appeal and the Supreme Court.
Not a single applicant was interviewed. As MacNeill notes, in practice, the JAAB just forwards the CVs of the candidates to the minister of the day. In its last annual report, it said it has never utilised these powers because it needs “additional financial and human resources”.
MacNeill argues that the JAAB needs professional institutional supports if it is to engage in robust and appropriate analysis of each candidate. This might include, as it does in other jurisdictions, an assessment of an applicant’s psychometric test results, publications, interview ability and a detailed analysis of the board about the applicant.
It may even have made things worse. The JAAB is obliged to recommend at least seven names for each judicial vacancy to the cabinet. Instead, it has sometimes provided upwards of 35 names, thereby providing political cover for government selection.
MacNeill finds that “party politics tends to be more important at District Court level than with senior judicial appointments” because there is a wider pool of candidates, making it easier to influence the process.
For High Court and Supreme Court appointments, her research finds that the “personal knowledge of a candidate will supersede the importance of party political connection because members of government feel they can stand over appointments where they personally know the character and temperament of the individual to be appointed”.
Ireland has witnessed an explosion of regulatory agencies over the last two decades. My research with the European Commission on Irish governance has shown how many of these agencies have struggled to fulfil their mandate because of resource, structural and financial reasons. MacNeill’s book perfectly illustrates this Three Ps principle, as the Judicial Appointments Advisory Board became a victim to institutional drift.
Instead of replacing one agency with another, or establishing yet another public inquiry, how about allowing them to do the job properly?
Don’t be another well-intentioned poor soul, Shane. Review Ireland’s oversight agencies and give the watchdogs the teeth they badly need.