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Concern about constitutionality of Judicial Appointments Bill could see it referred to Supreme Court

Concern about the constitutionality of a proposed law to reform the process for appointing judges has fuelled speculation it could yet be referred to the Supreme Court.

The Judicial Appointments Commission Bill 2022, which passed its final stages in the Seanad last July, is due back before the Dáil next week for technical amendments, after which President Michael D Higgins will be asked to sign it into law.

Under Article 26 of the Constitution, the President, following consultation with the Council of State, may refer any Bill to the Supreme Court to decide its constitutionality. There is speculation in political circles that option might be considered.

The Bill establishes the Judicial Appointments Commission, which comprises four judges and four lay people, to recommend candidates for appointment by the president as judges on the advice of the government.

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The commission, to be chaired by the Chief Justice and with the Attorney General as a non-voting member, will also recommend people for nomination by the Government as judges to international courts.

The Bill provides, inter alia, that three people will be recommended for a vacancy; that any person recommended should have been interviewed; and for the commission to publish a diversity statement.

Minister for Justice Helen McEntee said the Bill will introduce a process to ensure judicial selection is conducted in a “modern, open and transparent way”.

Fianna Fáil justice spokesman and senior counsel, Jim O’Callaghan, and Independent Senator Michael McDowell SC, a former minister for justice and attorney general, are concerned, however, that a core provision of the Bill – section 51.1 – may be unconstitutional.

This section states “only” those recommended by the commission may be nominated by government for judicial appointment by the president. Both believe this may impermissibly interfere with the right afforded to government under the Constitution to nominate judges for appointment by the president.

Mr O’Callaghan told The Irish Times that he wrote to the Minister for Justice last March outlining his concern and proposing an amendment to address it. His suggested changes have not been made.

In his letter, he described the Bill as a “very worthwhile” piece of legislation that modernises the judicial appointments process but said he was concerned there is “a problem” with section 51.1.

Article 35.1 of the Constitution provides that judges administering justice in courts established under Article 34 must be appointed by the president, he outlined. Under Article 13.9, powers conferred on the president shall be exercisable and performable only on the advice of the government.

Section 51.1, as currently drafted, “may be an unfettered interference in the constitutional right afforded by the government to nominate judges for appointment by the president”, Mr O’Callaghan wrote.

The “strong likelihood” is that every government will follow the recommendations of the commission, the letter stated. “However, if the commission can preclude government from appointing an eligible person to judicial office, then I believe that the courts may find that to be an unconstitutional interference in the right of government to nominate persons for judicial appointment.”

Article 36 of the Constitution allows for certain matters relating to judicial office to be regulated by law, such as terms of office and appointment, but it does not, he said, provide for such a “broad interference” in the right of government to appoint.

Mr McDowell, who described the Bill as having been “bulldozed” through the Seanad, said he believes it is “manifestly unconstitutional” and would like to see the President referring it to the Supreme Court before it becomes law to determine its constitutionality.

Michael McDowell: Judicial Appointments Commission Bill is unconstitutional ]

The Constitution has always been understood as vesting discretion concerning judicial appointments in the executive, not the legislature, but the Bill gives that discretion to the commission, he said.

There is no casting vote on the commission and the four judicial members will have an “effective veto” on any appointment of any new judges and on the promotion of any judge to any higher court or to the presidency of any court, he said.

It will be for the commission to submit a shortlist of three names, from which the government may choose one for the president to appoint as chief justice, he noted.

That means at least five, and possibly seven, judges of the Supreme Court would be excluded from consideration by the government for appointment to the position of chief justice whenever the position becomes vacant, he said.

There are set criteria for eligibility for judicial office but discretion concerning who to appoint is another matter, he said. The Constitution gives the government discretion over judicial appointments and it was “impermissible” for the Oireachtas to take that away.

It is better that a democratically elected government, not an unelected commission, evaluate the suitability of candidates for judicial office, he said. “There are other problems with this Bill but a big problem is the exclusion of people from consideration for appointment as judges.”