PRESIDENT MICHAEL D. Higgins has referred the government’s new Judicial Appointment Commission Bill to the Supreme Court after a Council of State meeting was held earlier this week.

The Bill would change how judges are appointed in the state through the introduction of a four judge and four layperson Judicial Appointments Commission.

A statement, issued this afternoon from the President’s press office said: 

“Having given further consideration to the advice offered to him, President Michael D. Higgins has today decided, under Article 26 of the Constitution, to refer the Judicial Appointments Commission Bill 2022 to the Supreme Court for a decision on the question as to whether the Bill is repugnant to the Constitution or to any provision thereof.”

The statement comes after Higgins convened a meeting of the Council of State on Wednesday to discuss the constitutionality of the Bill.

The President has indicated his desire that special attention being given to Sections 9, 10, 39, 40(2), 42, 43, 45, 46, 47, 51, 57 and 58 of the Bill.

What happens now? 

Once a Bill is referred to the Supreme Court, the Court has 60 days to decide if it is constitutional or not. 

A five or seven judge Supreme Court will be composed to consider the legislation. 

If the Court deems it to be constitutional, the President must sign it meaning it then becomes law and immune from any further constitutional challenge.

If any part of the Bill is deemed to be unconstitutional by the Court, the entire Bill is declared unconstitutional. If that happens, the Bill falls and the President cannot sign it into law.

Today’s news will be seen as a setback for Minister for Justice Helen McEntee, who included the enactment of the law in her 2023 Justice Plan.

Concerns over the Bill

Concerns have previously been raised over the Bill, including by Fianna Fáil justice spokesman Jim O’Callaghan and Senator and former Attorney General Michael McDowell.

The new law, which was approved by the Seanad in July, will change how judges are appointed in the state through the introduction of a four judge and four layperson commission.

Replacing the current Judicial Appointments Advisory Board, the new commission created by the bill will recommend three people for appointment as judges when a position becomes vacant.

The commission will interview candidates and put forward their recommendations to cabinet, who will pick one of the three.

The Chief Justice will chair the Commission, which will include the President of the Court of Appeal, two judges nominated by the Judicial Council, four lay members appointed by the Minister for Justice and the Attorney General, who will not have a vote.

The commission will also recommend people for nomination by the government to international courts outside of the state, such as Court of Justice of the European Union or the International Court of Justice.

Back in March, O’Callaghan wrote to then-justice minister Simon Harris to suggest changes to the draft law.

The Fianna Fáil TD suggested that section 51 of the bill constitutes “unfettered interference” with “the constitutional right afforded to Government to nominate judges for appointment by the President”.

The section rules that government shall “only consider” those who have been recommended.

 Instead, O’Callaghan suggested that the wording be changed in the section so that cabinet prioritises the recommended candidates – but also allows government to nominate another candidate. He said he has not received a response from the minister.

O’Callaghan told The Journal that he thinks the section in question “may have overstepped the line of constitutionality by precluding government from nominating an eligible person for appointment to judicial office”.

“It is difficult to be certain about the constitutionality of such a Bill but where there is a legitimate doubt about a Bill that will change the law on the appointment of judges, I believe an article 26 reference would be of benefit,” he added.

Writing in The Irish Times in March, McDowell labelled the bill 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”.

What is the Council of State? 

A more detailed Explainer on the Council of State can be read here, but in short it is a group set out in the Constitution that the President is required to consult with in order to perform some of his duties.

It must be convened if the President wishes to refer a piece of legislation to the Supreme Court to determine whether it is unconstitutional, as he has done with this Bill.

The council is comprised of three categories; The highest ranking member of government and the courts, or ‘Ex Officio’ (Taoiseach, Táinaiste, Chief Justice, President of the Court of Appeal, President of the High Court, Ceann Comhairle, Cathaoirleach of the Seanad, Attorney General).

Every person, willing and able to act, who has previously served as President, Taoiseach or Chief Justice is also a member of the council as well as seven appointed members.

This week’s meeting was the third time Higgins has requested such a meeting and was the first since December 2015, when the group were asked to consider the International Protection Bill 2015.

Additional reporting by Christina Finn and Muiris O’Cearbhaill