Minister McEntee publishes Bill to implement biggest reform to judicial appointments in decades
30 March 2022
The Minister for Justice, Helen McEntee, T.D., has today announced that the Judicial Appointments Commission Bill 2022 was approved by Government earlier this week and will be published shortly.
This represents an important step forward in the reform of the judicial appointments process as committed to by the Minister, most recently in Justice Plan 2022.
This Bill, when enacted, will lead to the biggest reform in the way judges are chosen for appointment in a quarter of a century.
A number of key changes have been made to the Bill from the General Scheme as published by Minister McEntee in December 2020.
The changes include:
· Number of recommendations - 3 persons to be recommended instead of 5 recommendations as provided for in the General Scheme and an additional 2 recommendations for a second and additional vacancies. For example, this would mean seven recommendations for three vacancies
· Only persons recommended by the Judicial Appointments Commission to be recommend by the Government for appointment by the President
· Interviews - Any person – new applicants and serving judges seeking promotion to higher courts - who is to be recommended to the Minister for Justice for appointment should have been interviewed by the Judicial Appointments Commission
· Diversity - The Commission will be required to publish a diversity statement committing to the objective that membership of the judiciary should reflect the diversity of the population as a whole.
· Continuous Professional Development – Candidates will be required to show they have undertaken judicial training or continuous professional development
Minister McEntee said:
“In the hundred years since the foundation of the state, our judges and our judiciary have served us extremely well. In proposing this legislation, I hope that it will enable the continued appointment of excellence judges which are a cornerstone of a strong, independent judiciary.
“It is vital that we have a very clear process for judicial appointments, one that people understand and have full confidence in.
“The Bill I am publishing today allows for the establishment of a Judicial Appointments Commission of nine members, chaired by the Chief Justice, to replace the current Judicial Appointments Advisory Board.
“All 4 lay members of the Commission will be selected and recommended by the Public Appointments Service.
“The current JAAB process only concerns first-time judicial appointments, with no statutory advisory role in place relating to appointments from the ranks of serving judges.
“This Bill will ensure that anyone who wishes to be considered for appointment to judicial office, including serving judges, will apply to the Commission and undergo the same application and interview processes.
“Membership of the judiciary should also reflect the diversity of the population as a whole and a new diversity statement will commit the Judicial Appointments Commission to that objective.
“I look forward to working with all members of the Houses of the Oireachtas to bring this legislation to enactment as soon as possible.”
The approval of this Bill follows a substantial process of consultations, in particular with the Attorney General, the European Commission and the Chief Justice.
Commenting on the changes made in the Bill to the General Scheme, Minister McEntee stated:
“In a change from the previously published General Scheme, three persons are to be recommended instead of five, with an additional two recommendations for a second and additional vacancies. This will ensure that we are meeting all of our necessary obligations under EU law.
“I am strongly of the view that a candidate should be recommended only after being interviewed, so I have made this a requirement in the Bill.
“Additionally, I have included a requirement that judicial appointments will reflect the need for candidates to undergo judicial training or continuous professional development.
“I am committed to improving training and continuous professional development right across the justice sector. This is crucial to providing a better service to people who need to engage with our justice system and those who work within it - from our Gardaí to our judges – and I am pleased the Judicial Appointments Commission Bill reflects this priority.”
The Judicial Appointments Commission will set out best practice selection procedures including interviews and the knowledge, skills and attributes required of judges.
ENDS
Notes for the Editor:
Composition of the Commission
There will be an equal number of lay members and judge members, as follows:
Key changes from the General Scheme
Number of recommendations: 3 persons to be recommended instead of 5 recommendations as provided for in the General Scheme and an additional 2 recommendations for a second and additional vacancies (e.g. 7 recommendations for 3 vacancies).
Only recommended persons to be appointed: Under the Bill the Government may only appoint a person recommended by the Commission. This will include a requirement for interviews and continuous professional development for all applicants, at the heart of the Bill. The Attorney General has advised that this approach is constitutionally permissible.
Names forwarded to the Minister. The Bill provides that the names of all those persons who apply for a judicial vacancy are forwarded to the Minister along with recommended names. This is for information purposes only.
Appointments to the General Court, the Court of Justice, the European Court of Human Rights and the International Criminal Court. Provisions are included in the Bill to include within the Commission remit nominations for appointment or election to these courts. The Minister and the Minister for Foreign Affairs are satisfied that these recommendations can be dealt with by the new Commission.
Membership of the Commission – President of the Court of Appeal. The Bill provides that the President of the Court of Appeal should be designated a permanent member of the Commission, instead of as a rotating member only as provided under the Scheme, but that his or her position on the Commission can be taken by another President depending on the court vacancy under consideration.
Membership of Commission – Judicial Council nominees. The Scheme provided for two fixed members of the Commission nominated by the Judicial Council, and the Bill provides, in addition that one should be a judge of the Supreme Court, Court of Appeal or High Court and one shall be a judge of the Circuit Court or District Court, in order to improve the representativeness of the nominees. The Bill also provides that one female and one male judge be submitted for each of the two Judicial Council nominees. One Judicial Council nominee will have been a former practising solicitor before their appointment as a judge and one will have been a former practicing barrister before their appointment.
Lay members. All 4 lay members are to be selected and recommended by the Public Appointments Service.
Remote ‘working’. The Bill provides that the Commission or members thereof shall be capable of working from remote locations for the purposes of meetings of the Commission
Interim Director. Given the advisory nature of the body concerned and notwithstanding its independence, the Director will be appointed by the Minister, rather than the Commission and an Interim Director may be appointed, and the Bill provides accordingly.
Chief Justice, President of the Court of Appeal and President of the High Court appointments. The Senior Judicial Appointments Advisory Committee (comprising the Chief Justice, Attorney General and lay member) under the Scheme was intended, instead of the Commission, to make recommendations to the Government for appointment of Chief Justice, President of the Court of Appeal and President of the High Court. There is no compelling argument for a separate procedure, and it is not included in the Bill. This reflects a recommendation arising from the Pre-Legislative Scrutiny process.
Interviews. Any person who is to be recommended to the Minister should have been interviewed, and therefore the Minister has provided accordingly.
Diversity. A requirement has been inserted in the Bill for the Commission to publish a Diversity statement relating to the objective that membership of the judiciary should reflect the diversity of the population as a whole.
Continuous Professional Development. A provision has been inserted in the Bill that requirements for judicial appointment will reflect the need for all candidates to undergo judicial training or continuous professional development.
Assignments in the District and Circuit Courts. The Bill now includes provisions to require expressions of interest for assignments in the District Court and the Circuit Court to be made to the President of the Court, rather than through the Attorney General to the Minister / Government as at present; the assignments will continue to be made by the Government.
Voted expenditure. The Bill provides that financial provision is made for the Commission, as determined by the Minister with the consent of the Minister for Public Expenditure and Reform and also for the Judicial Councilby the Courts Service.