Supreme Court upholds the constitutionality of Government's judicial reform bill

THE SUPREME COURT has upheld the constitutionality of the Government’s Judicial Appointments Commission Bill in a judgment this morning.

Its decision will be considered a major win for the Government and Justice Minister Helen McEntee, who made the implementation of the law a priority in her Justice Plan for this year.

President Michael D Higgins this afternoon signed the bill into law, and welcomed the Supreme Court’s ruling.

The President referred the Judicial Appointments Bill to the Supreme Court in October after concerns were raised about how it will change the way judges are appointed in Ireland.

The Judicial Appointments Commission (JAC) Bill 2022 will see a new nine person commission established to select and interview potential candidates to become judges and will replace the current Judicial Appointments Advisory Board.

Higgins referred the law to the court under Article 26 of the Constitution, following feedback in relation to how it could limit the Government’s authority on deciding who is appointed as a judge.

Article 26 allows the President to ask the Supreme Court to rule on the constitutionality of any Bill before they sign it. This mechanism has only been used 15 times in the history of the Constitution. 

The President 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.

A Fianna Fáil TD and a former Justice Minister and Attorney General have both taken issue with the Bill, as it would see the current Judicial Appointments Advisory Board replaced by a new commission, which would recommend three people each time a Judge position becomes available. 

The key issue is, under the new legislation, the Government would “only consider” those put forward by the commission (which will consist of four judges and four laypeople), rather than being able to elect new judges from a wider pool. 

The Bill would see the new commission interview candidates and put forward recommendations to Cabinet, who would then pick from three referred people. 

The commission will also recommend people for the Government to nominate for  judge positions outside of Ireland, like the Court of Justice of the European Union and the International Court of Justice. 

Fianna Fail TD Jim O’Callaghan wrote to Simon Harris when he was Minister for Justice to outline his concerns about the Bill. 

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”.

He said that section 51 of the Bill – which is the part that rules that Government should only select judges from recommended options – interferes with the constitutional right “afforded to Government to nominate judges for appointment by the President.”

O’Callaghan suggested the wording be changed so that Cabinet will only have to prioritise considering those put forward by the commission. 

Former Justice Minister Michael McDowell has also been a critic of the legislation. 

Writing in the Irish Times back in March, he 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”.  

However, people within the legal profession have said that the judicial system is in dire need of reform, and have suggested that the Government should not have total discretion when it comes to judicial appointments, and that more input from the judiciary is needed. 

The chief reason why the Bill the Supreme Court decided on today was met with opposition was because it severely limited the Government’s power to choose around judicial appointments, leaving it with the ability to only choose from three candidates. 

It was widely thought that the Government would have put forward a Bill that would see a new commission put forward candidates, but give the Cabinet the option to choose someone else, but it opted for a Bill that would take away the free choice of the Government. 

The Supreme Court had 60 days to hear the case relating to the Judicial Appointments Commission Bill, and issue its definitive ruling on the matter. 

Includes reporting by Muiris Ó Cearbhaill and Jane Matthews