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Judicial appointments bill goes to Council of State

The Council of State is to meet tomorrow (11 October) over concerns about the constitutionality of the Judicial Appointments Commission Bill 2022.

Members of the council will give their view on the legislation at the meeting, and President Higgins will make a decision by the end of the week on whether to refer the bill to the Supreme Court for a test of constitutionality.

The bill itself will replace the existing Judicial Appointments Advisory Board (JAAB) with a new Judicial Appointments Commission.

Chief Justice Donal O’Donnell last year expressed his disagreement with some aspects of the Judicial Appointments Commission Bill 2022, querying why practising lawyers were being shut out of membership of the proposed Judicial Appointments Commission.

This 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.

The bill sets out that the two Judicial Council nominees should be judges who were formerly a practising solicitor and a practising barrister, respectively.

The Public Appointments Service will run the selection process for lay members.

The Attorney General is a “non-voting” member on the proposed nine-person commission.

'Not tested'

The Chief Justice said that the thinking behind the bill had not been tested.

He has also questioned the composition of the body, which will require equal numbers of lay and judicial members – while expressing his support for some lay representation. 

The Chief Justice said it was “not obvious” why it had been decided not to have a majority of judges on the commission.

The separation of powers and judicial independence did not mean that judges should be left “in some form of splendid judicial isolation,” the Chief Justice said last year.

Weakening of selection process

The Chief Justice expressed his concern at the exclusion of both solicitors and barristers as a “significant dilution” of the judicial component, which could lead to a weakening of the selection process.

The Chief Justice also said that, though there was a case for devising a specific process for the most senior judicial appointments, the current proposals stated that there was no compelling case for such a measure.

In March 2022, the Government stated that there was “no compelling argument” for a separate committee to make recommendations to the Government on senior appointments, such as Chief Justice, President of the Court of Appeal, and President of the High Court.

'Critically important'

In May 2021, then Law Society President James Cahill told an Oireachtas justice committee: “It is critically important that a representative from each branch of the profession is appointed to the commission”.

Then Law Society Director General Mary Keane told the Joint Oireachtas Committee on 18 May 2021 that that it was not correct to suggest that there would be equal numbers of legal and lay members sitting on the JAC, since the JAC proposal was for equal numbers of judicial and lay members.

“We found it [the exclusion of a solicitor representative] quite extraordinary – we don’t like it one bit,” she said.

The thinking behind the exclusion was not explained to the Law Society, though a copy of the scheme was received, Keane said.

'Astonished'

“We were astonished,” she told the politicians.

Solicitors are subject-matter experts across a broad range of areas of law, the then-DG added, and, as the largest branch of the legal profession, were expert users of the courts system.

The Council of State comprises ex officio members – including the Taoiseach and Tánaiste – as well as former Government office-holders and select appointed members.