Supreme Court to rule on whether new system for appointing judges is constitutional

The Supreme Court will rule on Friday on whether a new system approved by the Oireachtas for appointing judges is constitutional.

After the Judicial Appointments Commission Bill 2022 was sent to President Michael D Higgins in October for his signature, he invoked a procedure under Article 26 of the Constitution.

That involved convening a meeting of the Council of State to consider whether the Bill should be referred to the Supreme Court.

Following that meeting, the President referred the Bill to the top court, which convened a seven-judge court, presided over by Ms Justice Elizabeth Dunne, to hear arguments last month for and against constitutionality.

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The court reserved judgment and will issue its decision this morning.

Article 26 provides the decision of the majority of the judges shall be the decision of the court.

It stipulates that “no other opinion, whether assenting or dissenting, shall be pronounced, nor shall the existence of any such other opinion be disclosed”.

The Bill provides for the establishment of a commission comprising four judges and four lay members, with the Attorney General as a non-voting member, to make recommendations on judicial appointments.

It provides that recommendations “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.

The Bill is the first to be referred to the Supreme Court by Mr Higgins.

The referral notice identified 12 provisions for “special attention”, including section 51.1, which permits government to “only” nominate an individual for appointment by the President to a judicial vacancy from three names recommended by the new commission.

[ New system for appointing judges reduces role of government to ‘rubber stamp’, Supreme Court told ]

Concerns about the constitutionality of section 51.1 have been raised by Independent Senator Michael McDowell and Fianna Fáil Justice spokesman Jim O’Callaghan. Both lawyers believe the provision might impermissibly interfere with the right afforded to government under the Constitution to nominate judges for appointment by the President.

Mr O’Callaghan outlined his concerns in a letter to Minister for Justice Helen McEntee. The letter proposed an amendment to address his concerns, but his suggested changes were not made.

Attorney General Rossa Fanning, with Michael Collins SC, David Fennelly BL and Emma Synnott BL, instructed by the Chief State Solicitor, contended for constitutionality of the Bill during the Supreme Court hearing, held on November 15th and 16th last.

Senior counsel Eoin McCullough and Catherine Donnelly, with barristers Aoife Carroll and Francis Kieran, instructed by solicitor Michelle Ní Longáin, were selected by the court to make opposing arguments.

If the Supreme Court rules the Bill is constitutional, it must be signed into law by the President and will be immune from future challenge. If any provision is found unconstitutional, it cannot be signed into law.

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