On 8 November the Supreme Court ruled that the Judicial Appointments Commission Bill 2022 is constitutional and directed the President to sign the bill. This came after President Michael D. Higgins’ mid-October referral of the bill to the Supreme Court under Article 26 of the Constitution. Article 26 allows the President to, “after consultation with the Council of State, refer any bill to which this article applies to the Supreme Court”. Under Article 34 of the Constitution, now that the bill has been deemed constitutional it can no longer be challenged.
The Judicial Appointments Commission Bill 2022 will replace the Judicial Appointments Advisory Board with the Judicial Appointments Commission. The Commission, which will be made up of both lay people and members of the judiciary, will recommend a candidate/candidates for appointment to the Government. The bill has received a fair amount of criticism/concern from existing members of the judiciary and members of the Law Society. Chief Justice O’Donnell and the President of the Law Society both separately stated their confusion as to why practicing lawyers are to be excluded from the makeup of the Commission. In his referral, President Michael D. Higgins highlighted twelve points that he believed required “special attention” by the Court. The counsel arguing unconstitutionality noted several areas which they felt violated the Constitution. Arguments concerning the bill’s possible infringement of the executive’s constitutional role of appointing judges and the proposed broad powers of the commission constituting an unconstitutional delegation of the Oireachtas’ legislative function were raised, along with concerns about potential privacy violations.
The decision released by the Court, written by Justice Elizabeth Dunne, examined whether the bill infringed on the powers of the executive and the Oireachtas. Per the Court’s decision In re Criminal Law (Jurisdiction) Bill, 1975 [1977] IR 129, bills referred to the Supreme Court under Article 26 enjoy the presumption of constitutionality. Essentially, if a bill can be read as compliant with the Constitution, even where this is not the most obvious interpretation, then the Court will find said bill to be constitutional. Because of the presumption Article 26 referrals are rarely successful. In addressing the argument that the bill interferes with the executive’s power the Court stated that the bill does not remove the Government’s power to choose. S.51 of the bill provides that the Government may only recommend someone for appointment to the president if they are recommended to them by the Commission. This seems like it might interfere with the Government’s powers under the Constitution; however, the way the Court chose to read the bill was harmonious with the Constitution. Justice Dunne wrote that the Government “has a choice to advise the President in accordance with the recommendation of the Commission. Even where only one person is recommended, the Government is still exercising a choice as to whether or not to advise the President to appoint that person”. She went on to say that if the Government is not satisfied with a recommendation the process will begin anew. This reading of the bill was not the most obvious when looking at the language used, but it was the reading that was necessary under the presumption of constitutionality that the bill enjoyed.
Now that the Judicial Appointments Commission Bill 2022 has been ruled to be constitutional it can no longer be challenged and will become law. The finding has been met with enthusiasm, with Minister for Justice, Helen McEntee saying, “I am pleased that the Bill…will now become law, and the system of judicial appointments in Ireland will be modernised to further strengthen gender balance and diversity on the bench”. It is currently unknown when the bill will come into effect.
Click here for the full judgement In re Judicial Appointments Commission Bill 2022 [2023] IESC34