Michael McDowell: Judicial Appointments Commission Bill is unconstitutional

The Government hopes to pass legislation before Easter that amounts, in my view, to a gross subversion of the architecture of Bunreacht na hÉireann and a massive breach of the constitutional separation of powers between legislature, executive and judiciary that has existed in Ireland for 100 years. That legislation is the Judicial Appointments Commission Bill, 2022.

If enacted, the Bill will make it unlawful for the Government to appoint at least five, and possibly seven, current ordinary members of the Supreme Court to the position of Chief Justice whenever the position becomes vacant. How can that be?

The proposed commission, a group of eight people, four of them serving judges and four lay members, will submit a shortlist of three names from which alone the Government may choose one for the President to appoint Chief Justice. There will be no casting vote on the names to be included in the shortlist. The commission will include the Attorney General, but he or she will have no vote.

The Oireachtas is now being asked to pass a law taking that constitutional discretion away from the Government and giving it by law to a group of four judges and four lay people

Since the Supreme Court now consists of a Chief Justice and eight ordinary members (there is one vacancy) and two ex officio members (presidents of the Court of Appeal and the High Court), by definition, submitting a shortlist of three names will render a majority – at least five, and conceivably seven – of members of the Supreme Court legally incapable of becoming Chief Justice.

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For the first time in a century, the Government will be legally prevented from choosing freely among the serving members of the Supreme Court whom to appoint as Chief Justice.

The Constitution provides that the Government advises the President on whom to appoint Chief Justice. It has always been the case heretofore that the Constitution was understood as vesting the discretion to make such an appointment in the executive and not in the legislature.

But the Oireachtas is now being asked to pass a law taking that constitutional discretion away from the Government and giving it by law to a group of four judges and four lay people – giving an effective veto to the four judges.

The Bill also accords to the same judicial bloc of four an effective veto on any appointment of any new judges or on the promotion of any judge to any higher court or to the presidency of any court.

Simply by excluding any person from a shortlist of three, the four judicial members of the commission will hold a self-selecting veto over the entire future composition of the judiciary.

No major common law country with a written constitution – Australia, New Zealand, Canada, or even the United States – permits such a system. The executive or government is the body given sole discretion in selecting judges. The only exception is South Africa where the constitution explicitly provides for a shortlist system.

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Among the three EU member states with common law elements to their constitution – Malta, Cyprus and Ireland – the choice of judges is generally vested in the executive.

It is, of course, lawful for the Oireachtas to prescribe by law minimum eligibility requirements to be appointed a judge. Those cannot be discretionary. But when it comes to a very different matter – discretion as to who among eligible candidates is to be appointed – the Irish Constitution has vested that discretion in the Government.

It is solely a function of the democratically elected government to evaluate the suitability of candidates for judicial office by reference to their philosophical outlooks – conservative or liberal or radical. No commission – not even of judges – can or should be given that function. The fig leaf of a shortlist leaves discretion largely with those drawing up the list who can exclude at will.

If this curtailment of the Government’s constitutional role can be enacted, why not go one step further and reduce the shortlist to one?

Our system has served Ireland well for a century. We have a really good, independent, competent and impartial judiciary. This Bill is the classic “solution in search of a problem”; it is no solution of a non-problem to accord a veto over all judicial appointments to a four-member blocking group of judges pursuing their own discretionary views about the entire future judiciary.

If this curtailment of the Government’s constitutional role can be enacted, why not go one step further and reduce the shortlist to one? Or give the power of shortlisting to a Dáil judiciary committee?

Despite the Bill’s long title which cites inapplicable EU civil law opinions on the matter, I believe that this Bill is manifestly unconstitutional and ultra vires the legislature.

The huge constitutional issue involved cannot be decided on the secret advice of an Attorney General. A very, very different view was taken by attorneys general in 1994 and later.

The Bill ought to be referred to the Supreme Court under Article 26 before it becomes law. A later invalidation could be very damaging.