Attorney General’s role on appointments commission questioned

The Attorney General should not be a member of the proposed new Judicial Appointments Commission (JAC), the Irish Human Rights and Equality Commission (IHREC) has said.

It has also suggested, in a submission to Minister for Justice Helen McEntee, the number of judges on the proposed new body should be increased so they constitute at least half the commission.

Under the general scheme of the Bill that will establish the commission, the body will have nine members, being four “lay” members, four from the judiciary and the Attorney General, who will be a non-voting member.

By increasing the number of judges on the commission, or not having the Attorney General on the commission, the objective of having at least half the membership come from the judiciary, could be achieved.

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In its submission, IHREC said the rationale for the presence of the Attorney General on the commission was not clear. The presence of the Attorney General on the commission arguably provides a means for an executive (Government) influence over the commission’s decision-making.

Non-voting capacity

This was particularly so, it said, because the Attorney General also sits in on Cabinet meetings, in a non-voting capacity, including at Cabinet meetings where decisions are made on the nomination of judges.

“To include the Attorney General on the JAC presents the obvious risk of ‘double-counting’ the view from the executive,” the IHREC added.

The point was made in a submission on the Judicial Appointments Commission Bill 2020, the general scheme of which was published last year.

The human rights body which, it is proposed, will get to appoint one of the lay members of the new commission, called for measures it said would contribute to the objective of increased diversity in the judiciary.

The judiciary should reflect the diversity that exists in society, it submitted. “A diverse judiciary envisages a judiciary that reflects society as a whole, in terms of age, civil status, disability, family status, gender, ethnicity, including membership of the Traveller community, religious belief, sexual orientation and socio-economic status.”

While the proposed law stipulates lay members appointed should reflect the diversity of society, IHREC said the sections on the appointment of judges to the commission should be revised to “require” gender balance and, as far as practicable, the presence of judges that reflected the diversity of society, in terms of age, civil status, disability, ethnicity, membership of the Traveller community, and other matters.

Similar criteria should form part of those considered when the commission was deciding on who it would recommend to the Cabinet for appointment to judicial roles, the IHREC said.

Under the Constitution, only the President can appoint a judge, and appointments are nominated by the Government. The existing process involves the Judicial Appointments Advisory Board (JAAB) making recommendations to the Government as to who to nominate.

Legal advice

While it was envisaged that JAAB would send a list of seven ranked names to the Government, it appears this did not happen because of concerns that it might interfere with the role the Constitution reserves for the Government.

“It is understood that the JAAB deliberately provided large lists of unranked candidates to Government on foot of legal advice that limiting the number of candidates might be unlawful,” the IHREC noted.

For this reason, the submission said, the proposed new law on judicial appointments should set out clearly the parameters within which the new commission would operate.

The general scheme proposes that there will be five names given to the Government, which is down from seven under the JAAB system, the submission said.

“The constitutional basis for this limitation is not clear. If a limitation on the number of names is unlawful (as JAAB seems to have assumed it to be), then any limited number is unlawful.”

If it is lawful to have a statutory scheme that makes recommendations to the Government, then there was no reason why that number could not be one or two recommendations, it said.

Such an arrangement would accommodate the international standards that seek to reduce executive involvement in judicial appointments, while at the same time recognising the Irish constitutional position, it pointed out.