Supreme Court reserves decision on constitutionality of judicial appointments Bill

Recent controversies across the water are reminders of ‘vital importance’ of judicial independence, particularly in politically turbulent times, court hears

The Supreme Court has reserved its decision on the constitutionality of a Bill that introduces a new system for appointing judges.

Following submissions for and against the legislation, Ms Justice Elizabeth Dunne said the court is cognisant of the time frame in which it must deliver its ruling.

The Judicial Appointments Commission Bill was referred to the court by President Michael D Higgins on October 13th, from which point the top court had 60 days to determine its constitutionality.

The entire Bill will fall if any section is found to be repugnant to the Constitution. The Supreme Court’s decision is final and cannot be revisited.


Earlier on Thursday, arguing in its favour on behalf of the Government, Attorney General Rossa Fanning said the proposed new system for appointing judges is designed to work in “foul weather as well as fair”.

Recent controversies across the water serve as reminders of the “vital importance” of judicial independence, particularly in times of political turbulence.

By establishing a “robust and thorough” screening process for applicants, the new system aims to reduce political influence to ensure the best candidates are appointed to the bench, he added.

Under particular scrutiny is section 51 of the Bill, which requires the government to “only” nominate an individual for appointment from three names recommended by the new appointments commission, comprising four judges and four lay representatives, with the Attorney General as a non-voting member.

Lawyers arguing against the Bill submitted on Wednesday that it represents an unconstitutional attempt by the Oireachtas to remove power from the government.

Responding, the Attorney General noted governments more commonly receive criticism for usurping a power they are not entitled to, but in this instance “precisely the converse” is occurring, with the Government castigated for relinquishing a power.

“Here, there is no usurping of power at all. The Government themselves see the problem in politicians having too much power to appoint judges.”

The legislation has been approved by both Houses of the Oireachtas, so it benefits from a presumption of constitutionality, he added.

Its opponents now find themselves unwittingly cast as apologists for a criticised method of judicial appointments that is “inherently vulnerable to political motivation”, he said.

Mr Fanning rebuffed the opposition’s contention that the government’s role is reduced to a “rubber stamp” exercise. The drafting “strikes the right balance”, ensuring the executive retains a “meaningful degree of choice” in appointing judges.

The Attorney General expressed surprise at the other side’s complaint about the Bill’s stipulation that judges must be selected on “merit” or that there is a vagueness to the term. The concept of merit, he said, is inherent and familiar to any recruitment process, while the contention the Bill offends equality legislation is “a bit of a stretch”.

Mr Fanning, with Michael Collins SC, Emma Synnott BL and David Fennelly BL, instructed by the Chief State Solicitor, contend the Bill is constitutional.

Eoin McCullough SC, Catherine Donnelly SC, Aoife Carroll BL and Francis Kieran BL, instructed by solicitor Michelle Ní Longáin, were selected to argue against the Bill.

Ellen O'Riordan

Ellen O'Riordan

Ellen O'Riordan is an Irish Times reporter