President’s power to refer Bill to Supreme Court is an ‘important safety valve’, expert says

The President has limited powers under the Constitution but the power to refer a Bill to the Supreme Court to determine its constitutionality is an “important safety valve”, according to a constitutional law expert.

Senior counsel Darren Lehane was speaking ahead of President Michael D Higgins convening a meeting of the Council of State on Wednesday after which he will decide whether to exercise that power in relation to the Judicial Appointments Commission 2022 Bill.

The council, members of which include serving and former senior judges and politicians, including the Taoiseach and the Chief Justice, will consider the Bill, which provides for a new judicial appointments system.

Constitutionality

The Article 26 procedure under the Constitution gives the President two options — to sign a Bill passed by the Oireachtas into law or refer all, or part of it, to the Supreme Court to decide its constitutionality. Referrals are regarded as neutral, not as indicating a view by the President on the Bill’s constitutionality or otherwise.

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Of 28 Bills considered since 1940 under the Article 26 procedure, 15 were referred to the Supreme Court.

The 2022 Bill establishes the Judicial Appointments Commission, comprising four judges and four lay people, to recommend candidates for appointment by the President as judges on the advice of the Government.

Minister for Justice Helen McEntee has said the Bill will make the appointments system modern, open and transparent, but concerns about aspects of it have been expressed by, among others, Chief Justice Donal O’Donnell.

Fianna Fáil Justice spokesman Jim O’Callaghan and Independent Senator Michael McDowell have both queried the constitutionality of section 51.1, which provides “only” those persons recommended by the commission may be nominated by government for judicial appointment by the president.

If the Bill is referred, it means Supreme Court judges will decide on the constitutionality of mechanisms for the appointment and promotion of judges. Their decision will result in the relevant provision either being struck down or declared constitutional, making it immune from future challenge.

Unworkable

Mr Lehane said it might be regarded as “somewhat curious” to have judges adjudicating on a law affecting the judiciary but similar situations arose in the past. He said any alternative would be unconstitutional and probably unworkable, a view shared by Mr O’Callaghan, Mr McDowell and other constitutional lawyers.

Having judges adjudicate on matters affecting judges was accepted by the High Court when it dismissed a challenge last year to the constitutionality of judge-made and judge-approved personal injury guidelines, he noted.

The Supreme Court’s judgment on an Article 26 referral is a judgment of the court, not a particular judge, and judges take the judicial oath “very seriously”, Mr Lehane said.

In relation to the 2022 Bill, the Chief Justice said publicly last year he was invited to participate in consultations on it and he had done so.

While accepting decisions on legislation are ultimately made by the government and Oireachtas, and the views of any particular group may not be accepted, his “main concern” was “there has been no process under which these views are tested or contrary views put forward”, the Chief Justice said.

Another Supreme Court judge, Mr Justice Séamus Woulfe, when attorney general in 2018, described an earlier judicial appointments Bill as a “complete dog’s dinner”.

Appointments

Dr Laura Cahillane, associate professor at the University of Limerick School of Law, said that while the Bill’s limitation of government discretion concerning judicial appointments raises issues about constitutionality, there are also issues about the constitutionality of the existing appointments process.

In the case of some previous appointments, including that of Mr Justice Woulfe in July 2021, only one name was brought to Cabinet, she said.

In relation to a possible Article 26 referral, there is “plenty of precedent” for judges considering legislation affecting them, she said.

It is important for judges to “come to the issue as neutral judges” and the Supreme Court needs to be “careful” about the composition of the court hearing a reference, including whether it should include any judge who has made public comments on the legislation, she considered.