System for appointing judges signed into law after Supreme Court decision

A new system approved by the Oireachtas for appointing judges has been signed into law by the President after the Supreme Court found it is constitutional.

The seven-judge court ruled on Friday morning the Judicial Appointments Commission Bill 2022 leaves government to make the “final decision” concerning who to appoint as a judge.

The Bill was then signed into law by President Michael D Higgins and is now immune from further challenge.

It provides for an independent commission, to be established next year, comprising four judges and four lay members, with the Attorney General as a non-voting member, to make recommendations on judicial appointments.

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Recommendations “shall be based on merit” with account to be taken, “to the extent feasible and practicable”, of objectives of gender balance, diversity and proficiency in the Irish language.

Following consultation with the Council of State last October, the President referred the Bill to the Supreme Court for determination whether it was constitutional or not.

The referral notice identified 12 provisions for “special attention”, including section 51.1, which permits government to “only” nominate an individual for appointment by the President to a judicial vacancy from three names recommended by the commission.

During a two-day hearing last month, Attorney General Rossa Fanning, with Michael Collins SC, David Fennelly BL and Emma Synnott BL, instructed by the Chief State Solicitor, argued the Bill was constitutional.

Mr Fanning described the reform of the appointments system as the “most significant” in the history of the State. The new system respects the power of government to nominate judges for appointment while “enhancing the democratic legitimacy” of the process culminating in such nomination, he argued.

Eoin McCullough SC, with Catherine Donnelly SC, Aoife Carroll BL and Francis Kieran BL, instructed by solicitor Michelle Ní Longáin, who were selected by the court to make opposing arguments, maintained the Bill was unconstitutional on grounds including section 51.1 amounted to impermissible interference with executive power concerning judicial appointments.

Delivering the Supreme Court decision, Ms Justice Elizabeth Dunne said there is nothing express or implicit in section 51.1 which requires the government to nominate a person recommended by the commission for appointment.

If only one person is recommended by the commission, the government still has a choice whether to nominate them, she said.

If the government is not satisfied to nominate some or all of those recommended for appointment by the commission, the process of selection for appointment will have to start again, she said.

The Bill did not impermissibly interfere with the constitutional power of the government by obliging it to act only on the recommendations of the commission, the court held.

“The ultimate authority of the government to make the final decision as to who to appoint as a judge has been preserved in the Bill, and the government is left with a meaningful choice as to accept or reject that list, or to choose between those on the list,” she said.

The Bill sets out “a sufficiently clear view” as to what constitutes merit in a judge and obliges the commission to implement that view in its selection options, she said.

The Oireachtas has not abdicated its power but has conferred a degree of discretion in a sufficiently narrow area of operation, in compliance with Article 15.2 of the Constitution which permits some level of delegation to subordinate bodies, the judge said.

Welcoming the decision, Minister for Justice Helen McEntee said she was pleased the system of judicial appointments here “will be modernised to further strengthen gender balance and diversity on the bench”.

The legislation will ensure anyone who wishes to be considered for appointment to judicial office, including serving judges, will apply to the commission and undergo the same application and interview processes, she said. “It will also ensure that the selection of nominees for judicial office will be through fair and open competition from the widest range of possible candidates.”

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