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Bill on appointing judges constitutional – SC

The Supreme Court has upheld the constitutionality of legislation on how judges are to be appointed.

President Higgins had referred the Judicial Appointments Commission Bill 2022 to the court in October for a test of its constitutionality.

The bill, which will now be signed by the President and become law, will replace the existing Judicial Appointments Advisory Board (JAAB) with a new Judicial Appointments Commission.

The commission will recommend people for appointment as judges by the President on the advice of the Government.

In its judgment delivered by Ms Justice Elizabeth Dunne, the Supreme Court rejected the arguments made against the constitutionality of the proposed legislation.

New commission

Much of the argument before the Supreme Court focused on section 51 of the bill, under which the Government can appoint only a person recommended by the new commission.

Counsel assigned by the court argued that the measures infringed the principle of the separation of powers.

They contended that the bill divested the executive of its constitutional role in appointing judges, and that the vagueness and breadth of the powers conferred on the commission amounted to an unconstitutional delegation of the legislative functions of the Oireachtas.

The Attorney General, however, argued that the bill respected the constitutional powers of the Government to nominate persons for appointment as judges by the President, while enhancing the democratic legitimacy of the process leading to such nominations.

He contended that the measures would strengthen and safeguard judicial independence and the rule of law, and would ensure consistency with the State’s obligations under EU and international law.

Government 'exercising a choice'

In its judgment, the Supreme Court concluded that there was “nothing express or implicit” in section 51 that required the Government to nominate a person recommended by the commission for appointment by the President.

“It has a choice to advise the President in accordance with the recommendation of the commission. Even where only one person is recommended, the Government is still exercising a choice as to whether or not to advise the President to appoint that person,” the court stated.

“Accordingly, the court is satisfied that section 51 involves the exercise of a choice by the Government as to whether or not to nominate a person or persons recommended by the commission for appointment by the President and, if not so satisfied, the process will have to start afresh,” the judgment continued.

'Obliged to legislate'

The court also said that it was satisfied that the Oireachtas was constitutionally obliged to legislate on judicial eligibility.

“In these circumstances, we have concluded that the Oireachtas is entitled by law to regulate the circumstances in which the article 13.9 advice may be tendered by the Government to the President,” the judgment said.

The new commission is due to be chaired by the Chief Justice, and will comprise equal numbers of lay members and judicial members.

It will include the Chief Justice, the President of the Court of Appeal, two members of the Judicial Council (one male, one female), the Attorney General, and four lay members.

Welcoming the decision, Minister for Justice Helen McEntee said: “I am pleased that the bill, which was carefully crafted in line with legal advice, will now become law, and the system of judicial appointments in Ireland will be modernised to further strengthen gender balance and diversity on the bench."