A seven-judge Supreme Court will hear arguments next month for and against the constitutionality of a Bill introducing a new system for appointing judges.
The court was assembled after President Michael D Higgins referred the Judicial Appointments Commission Bill on Friday to the top court which now has 60 days to determine its constitutionality.
The President, in his first ever referral of a Bill, identified 12 provisions of the Bill for special attention by the court.
Shortly after the referral was formally notified, the Chief Justice, Donal O’Donnell, and Ms Justice Elizabeth Dunne held a short case management hearing about 4pm in the court, which was attended by the Attorney General and a team of lawyers who will argue against the Bill.
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The Chief Justice said referral is “one of the most important functions” of the President and the Supreme Court, whose decision “shall be final for all time and cannot be revisited”.
If a bill is found to be repugnant the President “must not sign” it and the bill will “fall in its entirety”, he added.
The Chief Justice O’Donnell said he had decided, “as a matter of prudence”, not to participate in the hearing, as he had engaged with the Government and various interested parties about reforming the judicial appointments system and made public statements on the issue.
His Supreme Court colleague, Mr Justice Séamus Woulfe, had determined he too should not be on the bench for the hearing due to having advised on an earlier iteration of the Bill during his time as attorney general, he said.
It is of the “utmost importance” there is the highest degree of confidence in the process, the Chief Justice said.
Ms Justice Dunne will preside over the seven judge court to decide the referral.
During the two-day hearing, scheduled for November 15th and 16th, Attorney General Rossa Fanning will argue in favour of the Bill. Eoin McCullough SC, Aoife Carroll BL and Francis Kieran BL have been selected to argue against its constitutionality.
President Higgins convened a meeting of the Council of State on Wednesday to consider the Bill before his referral decision. In that decision, the President indicated the desirability of giving “special attention” to 12 different provisions of the Judicial Appointments Commission Bill.
The 12 include section 51.1, which requires government to “only” nominate an individual for appointment by the President as a judge from three names recommended by the new appointments commission, comprising four judges and four lay representatives with the Attorney General as a non-voting member.
Independent Senator Michael McDowell and Fianna Fail Justice spokesman Jim O’Callaghan have both voiced concern that section 51.1 is an impermissible interference with the discretion conferred by the Constitution on government concerning judicial appointments.
Senator McDowell has claimed section 51.1 amounts to an effective judicial “veto” over appointments.
Other provisions for special attention are sections 9 and 10, concerning membership and functions of the commission; section 39 related to the requirement that recommendations for appointment be based on merit, taking into account, to the extent “feasible and practicable”, diversity, gender balance and proficiency in the Irish language; and section 40.2 related to persons eligible for appointment.
Sections 42 and 43, concerning invitations to apply for a judicial vacancy and applications for appointment or for nomination for appointment or election to judicial office, are also identified.
Section 45, concerning applications for appointment or promotion by a member of the Commission itself is also identified, as is section 46, related to the consideration of applications and the conditions for making recommendations.
Section 47, concerning the recommendation of persons to the Minister for appointment to judicial office, is identified, as is section 51, which provides only recommended persons may be considered for judicial office in the State; section 52, concerning judicial selection statement; and section 58, providing for a statement of requisite knowledge, skills and attributes.
The Bill’s referral was expected and welcomed in political and legal circles.
In a statement, the Minister for Justice and government welcomed the referral. They said the government believes the Bill is constitutional but testing it at this stage is “welcome and appropriate given the importance of judicial appointments in the constitutional architecture of the State”.
Chief Justice O’Donnell, who took part in consultations about the draft Bill, had expressed detailed concerns about some of its proposals in an address to the Irish Association of Law Teachers in May 2022.
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Saying his concern was the best person be appointed to judicial office, he said it was “legitimate to question” why no practising lawyers were included on the commission and why it was thought necessary to have equal numbers of lay and judicial members.
The “significant dilution” of judicial members had, in his view, potential to weaken the process, the Chief Justice said.
Having passed both Houses of the Oireachtas, the Bill was sent to the President last weekend for his signature. On Wednesday, he convened the Council of State to consider the Bill in accordance with the procedure provided for under Article 26 of the Constitution.
The council met on Wednesday and attendees included Taoiseach Leo Varadkar; Tanáiste Micheál Martin; the Chief Justice; the Presidents of the Court of Appeal and High Court, Mr Justice George Birmingham and Mr Justice David Barniville.
Other attendees included Attorney General, Rossa Fanning; former President Mary Robinson; former Taoiseach Brian Cowen; former Chief Justices Frank Clarke and Susan Denham; and seven members appointed by the President, including Sineád Burke, a writer and disability rights activist and Dr Sindy Joyce, a sociologist and Irish Traveller human rights activist.
Article 26 provides the President, within seven days of receiving a Bill, can sign it or, having consulted with the Council of State, refer part or all of it to the Supreme Court to determine whether or not it conflicts with the Constitution. The decision on either option is for the President alone.
Article 26 has been invoked on 28 occasions since 1940, leading to 15 referrals to the Supreme Court. President Higgins invoked Article 26 just twice previously, in relation to the Protection of Life During Pregnancy Bill 2013 and the International Protection Bill 2015. Neither Bill was ultimately referred to the Supreme Court.
