New Bill for ‘merit-based’ process for appointing judges approved

A Bill aimed at ensuring a “clear, merit-based process” for appointing judges has been approved by the Government.

Minister for Justice Helen McEntee said the Judicial Appointments Commission Bill 2022, which is to be published shortly, will lead to the "biggest reform" in 25 years in the way judges are chosen.

The new measures mean all candidates, including serving judges seeking appointment to higher courts, will undergo the same new application and interview procedures.

Candidates will also be required to undergo judicial training or continuous professional development.

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It was initially proposed that the Senior Judicial Appointments Advisory Committee (comprising the Chief Justice, Attorney General and a lay member), instead of the new Judicial Appointments Commission (JAC), should make recommendations to Government for appointment of the Chief Justice, president of the Court of Appeal and president of the High Court.

However, the Minister said there was “no compelling argument” for such a separate procedure and, following a recommendation arising from the pre-legislative scrutiny process, it was not included in the Bill.

When the scheme of the Bill was published in late 2020, some critics argued it did not go far enough in ensuring transparency in the judicial appointments process. The Irish Council for Civil Liberties and several legal academics suggested the number of candidates to be recommended to government for appointment as judges should be reduced from the proposed five, recommendations should be ranked and government should be required to give reasons for deviating from a recommendation.

Ms McEntee said some “key” changes have been made to the Bill. These include that three persons, instead of five, are to be recommended for appointment, with an additional two recommendations for a second and additional vacancies. This would mean seven recommendations for three vacancies.

Only those persons recommended by the nine member JAC are to be recommended by the Government for appointment as judges.

All new applicants and serving judges seeking promotion to higher courts who are to be recommended for appointment should have been interviewed by the JAC, the Bill stipulates.

Candidates will have to show they have undertaken judicial training or continuous professional development.

The JAC must publish a diversity statement committing to the objective that membership of the judiciary should reflect the diversity of the population as a whole.

The Minister said that since the foundation of the State 100 years ago “our judges and our judiciary have served us extremely well” and she hoped the new legislation “will enable the continued appointment of excellent judges which are a cornerstone of a strong, independent judiciary”.

“It is vital that we have a very clear process for judicial appointments, one that people understand and have full confidence in.”

Lay members

Under the Bill, the JAC, chaired by the Chief Justice, will replace the Judicial Appointments Advisory Board (JAAB). The commission will include four lay members, to be selected and recommended by the Public Appointments Service, four judges and the Attorney General, who will not have a vote.

The president of the Court of Appeal, who can be replaced by another court president, and two judges – a male and a female, one a former practising solicitor and one a former practising barrister – nominated by the Judicial Council, will be the other judicial members.

The existing JAAB process relates only to first-time judicial appointments and has no statutory advisory role relating to appointments of serving judges to higher courts.

The approval of the Bill follows a process of consultations, in particular with the Attorney General, the European Commission and the Chief Justice.

The Bill provides that the names of all those persons who apply for a judicial vacancy are forwarded to the Minister, for information purposes only, along with recommended names. It also provides for the commission to make nominations for appointment or election of judges to the European courts.

The director of the JAC will be appointed by the Minister, rather than the commission, the Bill provides. An interim director may be appointed.

The Bill now includes provisions requiring expressions of interest for assignments in the district and circuit courts to be made to the president of those courts, rather than through the Attorney General to the Minister as at present. Those assignments will continue to be made by the Government.