President refers controversial judicial appointments Bill to Council of State in rare move

President Michael D Higgins has convened a meeting of the Council of State this week to consider whether a controversial Bill reforming the system of judicial appointments should be referred to the Supreme Court to decide on its constitutionality.

The council is to meet on Wednesday to consider the Judicial Appointments Commission Bill 2022, the President’s office announced on Monday.

Under Article 26 of the Constitution, the President may refer a Bill to the Supreme Court for a decision as to whether it, or any specified provisions, are unconstitutional.

[ Chief Justice criticises aspects of new Bill for reform of judicial appointments system ]

This is only the third time that Mr Higgins has convened the council to consider a piece of legislation during his time in office. He previously convened it in 2013 to consider the Protection of Life During Pregnancy Bill 2013, and in 2015 to consider the International Protection Bill 2015.

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Since 1940, the council has been convened to consider the potential referral of 28 Bills to the Supreme Court. Fifteen of these were ultimately referred.

The council’s membership includes the Taoiseach, Tánaiste, Chief Justice, the presidents of the Court of Appeal and the High Court, the Ceann Comhairle, the Cathaoirleach of the Seanad and the Attorney General.

Other members include previous presidents, taoisigh and chief justices. The members of the council who were appointed by the President are environmental scientist Dr Cara Augustenborg; writer and disability activist Sinéad Burke; Irish Traveller human rights activist and sociologist Dr Sindy Joyce; chief executive of the Birmingham Irish Association Maurice Malone; Methodist minister and assistant professor at Trinity College Dublin, Johnston McMaster; senior lecturer at Maynooth University, Mary Murphy; and former journalist and Irish Language Commissioner Seán Ó Cuirreáin

The Judicial Appointments Commission Bill 2022, which passed its final stages in the Seanad last July, establishes the Judicial Appointments Commission, comprising four judges and four lay people, to recommend people for appointment by Mr Higgins as judges on the advice of the Government.

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, three people will be recommended for a vacancy, any person recommended should have been interviewed and for the commission to publish a diversity statement.

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

Concerns have been voiced about aspects of the Bill in legal circles, including by Fianna Fáil justice spokesman and senior counsel Jim O’Callaghan, and Independent Senator and Irish Times columnist Michael McDowell, a former minister for justice and attorney general. Both have suggested that a core provision of the Bill, section 51.1, may be unconstitutional.

Section 51.1 states “only” those people recommended by the commission may be nominated by Government for judicial appointment by the President. Mr McDowell and Mr O’Callaghan believe that may impermissibly interfere with the right afforded to Government under the Constitution to nominate judges for appointment by the President.

Mr O’Callaghan wrote to Ms McEntee last March outlining his concerns about section 51.1 and proposing an amendment to address them. His suggested changes have not been made.

[ Michael McDowell: Judicial Appointments Commission Bill is unconstitutional ]

In his letter, Mr O’Callaghan 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.

Section 51.1, as currently drafted, “may be an unfettered interference in the constitutional right afforded by the Government to nominate judge for appointment by the President”, he wrote.

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 Mr Higgins referring it to the Supreme Court before it becomes law to determine its constitutionality or otherwise.

The Constitution has always been understood as vesting the discretion to make such an appointment in the executive, not the legislature, but the Bill gives that discretion to the commission, Mr McDowell said.

The Constitution gives the Government discretion over judicial appointments and it is “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.