The noisy stand-off between the judiciary and the Government has been billed in some quarters as a constitutional crisis, but it would probably be more apt to describe it as a storm in a tea cup.
Feelings are certainly running high on both sides, but the suggestion that judicial independence is being seriously threatened by the executive amounts to a gross overstatement of the case.
Judges are clearly unhappy at their treatment by the Coalition and, while they now insist that it is not simply about the cuts to their pay and pension entitlements, those cuts have clearly played a large part in provoking the increasingly hostile attitude of the judiciary towards the Government.
Fuelling anxiety
The other side of the coin is that some of the Coalition's judicial appointments over the past two years have been so blatantly party-political as to bring the reputation of the judiciary into disrepute.
That has clearly fuelled the anxiety of the judges, although it should be pointed out that they were all appointed by the very same politicised system.
Taoiseach Enda Kenny and president of the High Court Mr Justice Nicholas Kearns tried to calm the situation down yesterday, and their colleagues in the executive and the judiciary would be well-advised to follow their example before some real damage is done.
In response to Fianna Fáil leader Micheál Martin, who described the controversy as an “unseemly and nasty row between two arms of government”, the Taoiseach carefully avoided being disrespectful of the judiciary while not disowning Minister for Justice Alan Shatter.
Kenny pointed to article 35.2 of the Constitution, which sets out that “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and law.”
He was adamant that nothing the Government had done had contravened that principle and went on to say that, at yesterday’s Cabinet meeting, Ministers had reaffirmed their commitment to it.
Olive branch
The Taoiseach held out an olive branch by saying that it was only right and proper that there should be consultations, both formal and informal, between the judiciary and the Government on issues such as the two forthcoming referendums on the establishment of a court of civil appeal and the abolition of the Seanad.
He made the point that the channel of communication between the judiciary and the executive had always operated through the Attorney General’s office and went on to say that, on March 7th, Chief Justice Susan Denham had met the Attorney General, Máire Whelan, with a letter being sent the following day to confirm the details of the discussion.
Kenny, clearly intent on calming things, went on to say that consultation would continue and would be facilitated by the Attorney General’s office. It appeared to be an open invitation to the judiciary to convey their concerns to the Attorney General.
However, the Taoiseach did say pointedly that, at last year’s Davos conference, Ireland had been ranked fourth out of 144 countries in terms of the independence of the judiciary.
It was a polite way of making a point that some of his Cabinet colleagues were making in more trenchant terms in private.
“To have the leading Commercial Court judge go before a group of business leaders last week and claim that judicial independence was being destroyed could do serious damage to this country’s prospects of recovery and is something we can’t let go unchallenged,” said one Minister who did not wish to go on the record.
On the other side of the fence, Mr Justice Kearns also sought to calm things down, although he did not disown the comments of his colleague, Mr Justice Peter Kelly, describing them as “well-founded”.
He went on, though, to express the hope that “every effort will be made to address these concerns with a view to resolving them as soon as possible”, adding that “the present situation is highly undesirable”.
Sense of entitlement
The president challenged the view of Master of the High Court, Edmund Honohan, who had said earlier in the day: "Now all of this brouhaha seems to be about some sort of sense of entitlement that judges are entitled to be consulted when the Minister or the Government proposes new legislation of one sort or another.
“Sorry, but that’s just not correct.”
The Taoiseach was actually more emollient, conceding that the judges had the right to be consulted about legislation that affected them directly.
It would appear that the door is open if the judges want to engage but that will require a bit of give and take on both sides.