How the Council of State advised President at meeting on judicial appointments Bill

At 2.30pm on Wednesday, 19 members of the Council of State gathered at Áras an Uachtaráin. The meeting was convened by President Michael D Higgins, under article 26 of the Constitution.

Mr Higgins convened the gathering of the advisory body to seek its view on whether he should refer the Judicial Appointments Commission Bill 2022 to the Supreme Court.

At the core of the Bill is a commission, made up of judges and lay people, which will shortlist candidates for appointment to the courts. Under the proposed law, the ultimate decision would be made by government but it must choose from the three people recommended by the commission.

The council met in the President’s Room on Wednesday, sitting around a large 1927 dining table brought to the Áras by Éamon de Valera in 1961. The atmosphere was cordial and friendly.

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The council members who attended included high-profile politicians and legal figures such as Taoiseach Leo Varadkar, Tánaiste Micheál Martin, Chief Justice Donal O’Donnell, former president Mary Robinson, former chief justices Frank Clarke and Susan Denham, Ceann Comhairle Seán Ó Fearghaíl, and former taoiseach Brian Cowen.

Also present were members nominated by the President himself, including writer and disability activist Sinéad Burke, climate change academic Dr Cara Augustenborg, former coimisinéir teanga Seán Ó Cuirreáin and Traveller activist Sindy Joyce. Former president Mary MacAleese and former taoiseach Bertie Ahern were away and unable to attend the meeting, which had been called at short notice.

Under article 26, the President has a specific power to refer Bills to the highest court in the land to ask it to determine if a Bill (or its provisions) are in keeping with, or repugnant to, the Constitution.

It was only the third time the President had convened a meeting to discuss a Bill during his 12 years in office. Previously the council considered the Protection of Life During Pregnancy Act 2013 and the International Protection Bill 2015. Neither was referred to the Supreme Court.

It is understood that the President opened the meeting with a short address, setting out the Bill and its provisions. He also told the meeting that two submissions had been received, one of which was written by the former minister for justice and attorney general Senator Michael McDowell, who had led a prolonged campaign to oppose the Bill during its passage through the Upper House.

The meeting followed a long-established format. The council does not vote or decide, rather its members make their views known to the President.

There was a tour de table in which each of the 19 council members present expressed their views on the Bill. The Chief Justice, former chief justices, Attorney General, President of the Court of Appeal George Birmingham, and President of the High Court David Barniville are all council members and shared their expertise on the Constitution and law.

According to one person present in the room, the thrust of the discussion focused largely on only two sections of the Bill, 47 and 51.

Section 47 provides for the commission to recommend three people for each appointment. However, it also provides that in extenuating circumstances the commission could recommend two people or even one. Section 51 provides that the Government can only consider for appointment those people recommended by the commission as set out in section 47.

“Quite a few members thought the Bill was potentially in breach of the Constitution as it could remove the discretion the Government currently has to choose who can be appointed as judges,” said the person.

“That was a really obvious one that was deliberated. There were other sections that could be considered questionable constitutionally. Under section 47, if the judicial appointments committee was not able to come up with three names, they could appoint two names, or even one name, or even no names as long as they provide a written reason for why that might be necessary.

“And of course, if they only provided one name, then they really could eliminate any discretion the Government might have, even under section 51, to appoint that particular person.”

According to the source, everybody was careful not to overstep the mark in relation to their function. “The only responsibility was about referring it to the Supreme Court to test its constitutionality, not for council members to determine its constitutionality,” said the source.

There was no vote, no show of hands, no collective decision. Each council member expressed their view on the matter individually.

The President did not disclose his own thinking on the Bill and did not indicate a view to the council. “He kept his cards very close to his chest,” said the source. “He did not say what he would do.”

The council became aware on Friday morning that the President would refer the Bill to the Supreme Court but did not know if that would be the entire Bill or sections.

“I think there was a view,” said the source “it would be better to get it right by having the Supreme Court look at it now, rather than run the risk in the future of many legal cases. Every time somebody might be unhappy with a judge’s ruling, they might question how that judge was appointed and whether or not it was in breach of the Constitution.

“So I think there’s a really strong argument to get it tested now rather than risk tying up the courts later with lots of different cases.”

Mr Ahern, who was in the US this week and could not attend the meeting, said he agreed with the referral as it would have affected the separation of powers between government and the judiciary.

“It’s my view that the Bill went too far and would have removed the independence and the discretion of the Government under the Constitution to choose judges,” he said.