Government should have ‘as little discretion as possible’ in picking judges

Committee hears call to limit choice to three ranked candidates for judicial appointments

The new system for appointing judges should involve the government being given shorter lists of ranked candidates, the Irish Council for Civil Liberties (ICCL) has told an Oireachtas committee.

The Judicial Appointments Commission Bill 2020 envisages a commission that will give the government a list of five unranked recommendations for a single vacancy in the judiciary.

In cases where there are two vacancies, the Bill envisages the government being given eight recommendations.

In cases where there are three vacancies, it envisages 11 recommendations.


However, the executive director of the ICCL, Liam Herrick, said the number of recommendations should be reduced, and they should be ranked.

“The importance of the separation of powers is key here; the Government should have as little discretion as possible in judicial appointments,” he told the Oireachtas Joint Committee on Justice.

He said the ICCL would like to see three ranked recommendations for a single vacancy, five for two, and eight for three vacancies.

“The ICCL recommends that where the government chooses to deviate from the recommendation of the commission, written reasons should be given,” Mr Herrick said.

Martin Kenny of Sinn Féin raised the issue of the presence on the proposed commission of the Attorney General, saying he or she was the "government of the day's person on the board", while the Bill aimed to reduce the influence of the government in the selection process.

“To me that reflects a problem,” he said.

Senator Barry Ward of Fine Gael said that in practice there was a real difficulty with the proposal that the government would have to give a reason for deviating from the recommendations of the commission.

“Asking the government to publicly explain why they have chosen one candidate over the other creates substantial problems for the unsuccessful candidate in particular.”

The confidentiality of the process of appointing judges was paramount, he said, as otherwise a lot of qualified practitioners might never apply.

Independent Senator Michael McDowell said the government might not always want to recommend an appointment solely on the basis of merit.

It might want to take into account other issues such as the balance of the Supreme Court in relation to such issues as liberal views, conservative views, or even views on personal injury award levels.

He was “unhappy” with the idea that the barristers and solicitors profession would not be represented on the proposed commission, as they were often in a better position than judges to point out, by way of their knowledge of their colleagues, that “by the way, Joe Bloggs, or Josephine Bloggs, is a bit ropey”.

Fine Gael TD Jennifer Carroll MacNeill queried the statement by the council that the judicial appointment system is not aligned with best practice as outlined in international instruments on the independence of the judiciary.

“Now that is a big, big statement for the Irish Council for Civil Liberties to make,” she said.

Mr Herrick said that that the council had looked at a number of international instruments and principles when making its submission.

Ms Carroll MacNeill said that career-judge systems are different to the common law model and are “simply not comparable”.

The real comparison, she said, was with advanced common-law democracies.

Mr Herrick said the council looked at international bodies of which Ireland was a member, such as the United Nations, Council of Europe, and the European Union.

Ms Carroll MacNeill said it can be difficult to rank people with very different skillsets.

Colm Keena

Colm Keena

Colm Keena is an Irish Times journalist. He was previously legal-affairs correspondent and public-affairs correspondent