Supreme Court to rule on Friday on constitutionality of new system for appointing judges

The Bill provides for establishment of a commission to make recommendations on appointments on multiple grounds

The Supreme Court will rule on Friday whether a proposed new system for appointing judges is constitutional.

After President Michael D Higgins referred the Bill to the top court for a determination on its constitutionality, a seven-judge court was convened to hear arguments last month for and against constitutionality.

The court, presided over by Ms Justice Elizabeth Dunne, reserved judgment and will issue its decision on Friday morning.

The Bill provides for the establishment of a commission comprising four judges and four lay members, with the Attorney General as a non-voting member, to make recommendations on judicial appointments.


It provides that recommendations “shall be based on merit” and for account to be taken, “to the extent feasible and practicable”, of objectives of gender balance, diversity and proficiency in the Irish language.

The commission must also be satisfied applicants are “suitable on grounds of health”.

Having passed both Houses of the Oireachtas, the Bill was sent to the President in October for his signature.

Following consultation with the Council of State, the President referred the Bill to the Supreme Court to decide its constitutionality in accordance with a procedure provided for in Article 26 of the Constitution.

The referral, the first ever made by Mr Higgins, identified 12 provisions for “special attention”, including section 51.1, which permits Government to “only” nominate an individual for appointment by the President to a judicial vacancy from three names recommended by the new commission.

Attorney General Rossa Fanning, with Michael Collins SC, David Fennelly BL and Emma Synnott BL, instructed by the Chief State Solicitor, contended for constitutionality of the Bill during the two day Supreme Court hearing.

Senior counsel Eoin McCullough and Catherine Donnelly, with barristers Aoife Carroll and Francis Kieran, instructed by solicitor Michelle Ní Longáin, were selected by the court to make opposing arguments.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times