Attorney General to urge Supreme Court to rule new judicial appointments system constitutional

A seven-judge Supreme Court will today hear arguments for and against the constitutionality of a controversial Bill introducing a new system for appointing judges

The Judicial Appointments Commission Bill 2022 was referred by President Michael D Higgins to the court last month for a decision, within 60 days of referral, as to whether it is constitutional or not.

Attorney General Rossa Fanning, with Michael M Collins SC, Emma Synnott BL and David Fennelly BL, will argue the Bill is constitutional.

Opposing arguments will be made by another legal team selected for that purpose. Those lawyers are Eoin McCullough SC, with Catherine Donnelly SC, Aoife Carroll BL and Francis Kieran BL.

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Ms Justice Elizabeth Dunne will be presiding for the two-day hearing. Chief Justice Donal O’Donnell, who engaged with Government about the Bill and publicly raised concerns last year about aspects of it, although not about the issue of constitutionality, has recused himself from hearing the matter.

Mr Justice Séamus Woulfe, who as attorney general advised on a previous iteration of the Bill and described it at a function as “a dog’s dinner”, also recused himself.

The 2022 Bill, having passed both Houses of the Oireachtas, was sent to the President last month for his signature. Following consultation with the Council of State, it became the first Bill to be referred by President Higgins to the Supreme Court under the referral procedure provided for in Article 26 of the Constitution.

The referral identified 12 provisions for “special attention”, including section 51.1,which permits government to “only” nominate an individual for appointment by the president as a judge from three names recommended by the commission, comprising four judges and four lay representatives with the attorney general as a non-voting member.

Independent Senator Michael McDowell and Fianna Fáil Justice spokesman Jim O’Callaghan have expressed the view that section 51.1 is an impermissible interference with the Government’s discretion concerning judicial appointments.

Other provisions for special attention include ones concerning membership and functions of the commission, eligibility for appointment as a judge and 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.

In an address to the Irish Association of Law Teachers in May of last year, the Chief Justice said the current appointments system was unsatisfactory.

While highlighting a failure over years to appoint an independent expert body to conduct research and make proposals for reform of judicial appointments, he described the 2022 Bill as a significant improvement on previous proposals, especially because it now included the “unambiguous” requirement that judicial appointments be based on merit.

Ireland has been well served by its judiciary over the years but the perception of political influence on appointment, even if an “oversimplification”, is damaging to the administration of justice, he said.

Mr Justice O’Donnell voiced concern about some proposals in the Bill, including the composition of the commission. He said, inter alia, it had not been explained why an equal number of lay and judicial members was required, why no practising lawyers were included and why one of the four judicial members had to be a former barrister and one a former solicitor.

Addressing an event organised by the School of Law of Trinity College Dublin (TCD), on Tuesday evening concerning the referral, Dr Laura Cahillane said she did not see any constitutional problem arising by including the principle of merit in the Bill and did not understand why that aspect was referred.

Dr Cahillane, associate professor at the University of Limerick School of Law, welcomed a merit-based appointments process but said it is “problematic” that merit is not defined in the Bill.

She said a 2014 report of the Irish judiciary argued that, in defining merit, particular weight should be given to practical experience in the conduct of litigation and advocacy but did not explain why.

Some studies in Northern Ireland found women and men had different views on the nature of merit required for a High Court judge, with women generally more favourable to seeing a non-traditional background as meritorious, she noted.

Welcoming the inclusion of diversity as a consideration, she said socio-economic diversity is an issue for the judiciary here.

Dr Oran Doyle, Professor in Law at TCD, said while the Bill prevents government advising the president to appoint as a judge a person not recommended by the commission, he interpreted it as meaning the government is not required to appoint a recommended person and can reject all the candidates recommended by the commission and restart the process for filling a judicial vacancy.

The constraint imposed by the Bill “amounts to a legitimate control of the government’s executive power to advise the President in relation to judicial appointments”, he believed.

He said if his interpretation is incorrect, and the Bill requires government must recommend one of the persons recommended by the commission, the Bill is “an unconstitutional usurpation of executive power, removing a core democratic component of judicial power”.