PRESIDENT MICHAEL D Higgins will convene a meeting of the Council of State next week to consider the constitutionality of the government’s new Judicial Appointment Commission Bill.

Concerns have previously been raised, 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.

Higgins will convene a meeting of the Council of State to decide if the bill should be put forward to the Supreme Court to determine if it’s in line with the constitution.

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.

Concern over bill

O’Callaghan wrote to then-justice minister Simon Harris in March 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”.

The bill being put towards the council will be seen as a setback for Minister for Justice Helen McEntee, who included the enactment of the law in her 2023 Justice Plan.

McEntee said in July, after the bill was passed, that the new recommendation and appointment process ensures that judicial selection is “conducted in a modern, open and transparent way”.

The meeting between the council on Wednesday will be the first since December 2015, when the group were asked to consider the International Protection Bill 2015. This will be the third time Higgins has requested such a meeting.

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.

The bill contains a requirement for the commission to publish a diversity statement so that the judiciary should reflect the diversity of the population as a whole.

McEntee said: “This Bill follows a substantial process of consultations, in particular with the Attorney General, the European Commission and the Chief Justice.

“It also takes into account key aspects of a comprehensive pre-legislative scrutiny report prepared by an Oireachtas Committee.

“The enactment of this legislation will enable the continued appointment of excellent judges, which are a cornerstone of a strong, independent judiciary. This independence is important in ensuring public confidence in the courts to uphold the law,” she added.