Judicial selection system should resolve public unease over appointments, says expert

Long-time advocates of reform of the system of judicial appointments are happy the Supreme Court has cleared the way for a new system for appointing judges but caution that achieving diversity within the judiciary will take some time.

The Oireachtas earlier this year approved the Judicial Appointments Commission Bill, which provides for an independent commission to interview and recommend candidates to government for nomination for appointment by the President to the Irish and European courts.

To be established next year, the nine-member commission, chaired by the Chief Justice, will be composed of four lay and four judicial members, with the Attorney General a non-voting member.

Its recommendations for nomination “shall be based on merit” and for account to be taken, “to the extent feasible and practicable”, of objectives of gender balance, diversity and proficiency in the Irish language.

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The Government cannot appoint any person as a judge unless that person has been recommended by the commission. The Supreme Court decided the Government retains the final decision on judicial appointments because it can decide between those candidates recommended or, where there is only one recommendation, can decide not to nominate that particular candidate with the effect the selection process has to start again.

When the Bill was at draft stage, Chief Justice Donal O’Donnell was among those asked to engage with Government about its proposals and did so but was clearly unhappy with the response to his concerns.

In May 2022, in an address to the Irish Association of Law Teachers, the Chief Justice highlighted a failure over the years to appoint an independent expert body to conduct research and make proposals for reform of judicial appointments.

He agreed the current appointments system is unsatisfactory and described the 2022 Bill as a significant improvement on previous proposals, especially because it now included the “unambiguous” requirement that judicial appointments be based on merit.

Ireland has been well served by its judiciary over the years but the perception of political influence on appointment, even if an “oversimplification”, is damaging to the administration of justice, he said. His concerns about the Bill included about the composition of the commission. It had not been explained why an equal number of lay and judicial members are required, and why no practising lawyers are included, he said.

Oran Doyle, professor in law at Trinity College Dublin, is among several academics and various organisations, including the Irish Council for Civil Liberties, who have advocated over the years for an overhaul of the judicial appointments system.

Welcoming Friday’s Supreme Court finding the 2022 Bill is constitutional, he said the new appointments system should remove the scope for public unease to develop about judicial appointments and perhaps the independence of the judiciary.

“There have been various cases over the years where there has been political, and maybe some public unrest, that maybe the government was appointing a personal favourite, someone just because they were known by the government.”

The public will now know that anyone appointed as a judge has gone through this process and has been vetted as appropriate for appointment by an independent commission, he said.

It was “very appropriate” for the President to refer the Bill to the Supreme Court for a determination on its constitutionality, he said. “If it had not been referred, every decision made by a judge appointed under the procedure would have been open to challenge. There was also a question whether anybody would have applied to be a judge because they could have found themselves out of a job and their career over had the legislation been struck down.”

While the Supreme Court found the Bill set out “a sufficiently clear view” as to what constitutes merit in a judge, and obliges the commission to implement that view in its selection options, he hoped the commission will “spell out what is meant by merit”.

Merit on its own can be used in “an exclusionary way” or can result in “reproducing people who look like you because we all perceive ourselves to be meritorious”, he said.

Spelling out what is meant by merit, and what sort of characteristics, both in terms of skills, attitudes and attributes candidates are meant to have for appointment to judicial office would assist further professionalisation of the judiciary and provide reassurance for the public and politicians.

Recent research by Dr James Rooney, a law lecturer at TCD, found the judiciary is dominated by the middle class and it will take time before it becomes more diverse, Prof Doyle cautioned.

Judges will still be drawn mostly from practising barristers and solicitors who, at least by the point they are eligible for appointment, have become wealthy upper-middle-class professionals, he said.

The bigger implication of the diversity requirement will “probably be the consolidation of moves towards greater female representation in all levels of the judiciary”.

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