THE PRESIDENT HAS – in consultation with the Council of State – referred the newly passed Judicial Appointments Commission Bill to the Supreme Court under Article 26 of the Constitution.

This rarely-used mechanism will ask the Court to determine definitively if the Bill is constitutional before the President signs it and it becomes law.

What is an Article 26 reference?

The Irish Constitution gives the superior courts – the High Court, Court of Appeal, and Supreme Court – the power to review laws for constitutionality. They can hear a case claiming that a law violates the Constitution – by infringing constitutional rights, breaking constitutional rules, or not respecting the constitutional separation of powers.

Such cases are almost always taken by a particular plaintiff who is affected by the law after the law has entered into force. There is only one case where the courts can hear a constitutional case without any plaintiff, and before it comes into force.

Under Article 26, the President can, after consulting with the Council of State, ask the Supreme Court to rule on the constitutionality of any bill, or part of a bill, sent to him for signature.

The decision is the President’s alone, based on whatever factors he regards as appropriate to take into account. When asked to do this, the Supreme Court must hear the case within 60 days and issue a definitive ruling on the matter. If the Court approves the Bill as constitutional, the President must sign it and it enters into force.

If the Court finds it to be unconstitutional, however, the Bill in its entirety is struck down and never becomes law. The Oireachtas must try to write a new, constitutional law if it wishes to address the problems that the bill was designed to solve.

This power is used very rarely. There have been only fifteen Article 26 references since the Constitution was passed in 1937. The power has not yet been used by President Higgins in his 12 years in office. The last such reference was made almost 20 years ago by his predecessor, Mary McAleese.

Last line of defence

There are advantages to using this procedure. The main one is that it gives clarity on the constitutionality of legislation before it enters into force, and ends speculation or uncertainty about the legislation’s validity. If legislation is constitutionally controversial, those concerns can be put to rest.

Since this is done before the law comes into force, this allows these questions to be answered before action is taken under the law that might later be invalidated.

If the judicial appointments mechanism were found to be unconstitutional later, for example, there might be question marks over the validity of the appointment of any judge made with that mechanism. Deciding the question in advance under Article 26 would solve this problem.

But there are reasons that the mechanism is rarely used and is perhaps even disfavoured. First, Article 26 references have no plaintiff and have to be heard in the abstract. That is, lawyers have to make up arguments for why it might be unconstitutional, rather than pointing to how the law has operated unconstitutionally in some particular instance, as would normally be the case. This is difficult to do, and something our courts have little practice in.

Secondly, the Article 26 mechanism has a strange quirk: when legislation is upheld under the mechanism, it is given immunity from any constitutional challenges in future. No one can ever question the legislation again. This means that if the legislation operates in a more unfair way than was anticipated or considered in the Article 26 reference, it will be impossible to argue for its unconstitutionality later.

It is probably because of these issues that even very controversial bills have not been referred to the Supreme Court in recent decades. It is seen as better to let the legislation pass and be challenged in the ordinary way in court. In the case of the Judicial Appointments Commission Bill, however, the President has been persuaded to use this mechanism to answer questions about its unconstitutionality definitively and in advance.

The possible problem with the Judicial Appointments Bill

So what is the possible constitutional problem with this Bill? The primary concern relates to the extent to which it limits government discretion around judicial appointments.

Ireland’s judicial appointment system is in dire need of reform and many legal academics – myself included – have called for reform of the system for more than a decade. The problem is that the current appointment system leaves almost total discretion to the government to appoint whoever they wish as a judge, with very little guidance as to whom to appoint.

It has long been thought that a Commission that would interview, assess and rank candidates for judicial office is needed to solve these problems, although the precise outlines of this have caused controversy in the past decade.

The problem that has arisen with the current Bill is the extent to which these rankings would bind the government. Under the Constitution, the government has the power to select judges, who are then formally appointed by the President.

The new Bill says, in section 51, that government must select from one of three candidates recommended for a vacancy by the new Judicial Appointments Commission. This severely limits the government’s power to choose. While this conforms with good international practice, it arguably takes the power of appointments away from the government, since they can no longer appoint whatever judge they wish.

To avoid such problems, those of us proposing reforms to the process in recent years usually suggested that a Commission rank and recommend a small number of preferred candidates, but allow the government to choose someone else if it wished to. This would avoid any possible constitutional problems.

It looked for a time that this was what the government would do, but surprisingly, when the new Bill was published, it opted for the much stronger approach of taking away the free choice of government and binding it to the Commission’s recommendations. A 2021 EU rule of law report critiquing Ireland’s approach may have been responsible for this shift in the legislation.

The Supreme Court will now have to determine if the proposed approach is within constitutional boundaries. Former Taoiseach Jack Lynch once said that it was a brave person who would predict what the Supreme Court would do. I am not quite that brave.

It is hard to say what will happen when the court rules. There is a reasonable case that the Bill does cross a constitutional line. But the issue is not clear; legislation often tightly limits and controls powers that belong to the government, such as in the sphere of immigration. The Supreme Court may find this limit on the appointments power, while significant, to be acceptable. Whatever the result, it will be interesting to see this unusual constitutional mechanism play out.

David Kenny is a Professor in Law and a Fellow at Trinity College Dublin.