The Chief Justice, Susan Denham, met the Taoiseach Enda Kenny and the Tánaiste and Minister for Justice and Equality, Frances Fitzgerald, before Christmas to express her strong concerns about the proposed new judicial appointments regime.
She wrote to the Taoiseach earlier this month to again express her concerns, with the letter copied to the Tánaiste.
However, it is understood the Government is committed to continuing with the proposed scheme and in particular its intention that the new commission will have a majority of members who are neither judges nor lawyers.
The creation of the new regime was sought by Shane Ross as part of the negotiations on the Programme for Government.
In her letter to the Taoiseach this month, the Chief Justice is understood to have voiced strong reservations about the proposed lay majority, how the lay members of the commission will be selected, and about the fact the commission will include the Chief Justice, but not be chaired by the State’s most senior judge.
The Judicial Appointments Commission Bill is expected to be published next month. The lay members of the commission will be selected by the Public Appointments Service which will also select the lay chair. The lay appointees must be approved by the Oireachtas.
The Chief Justice, who is due to retire in August, expressed her strong view that the new regime might affect the independence of the judiciary.
The proposed commission will have 11 members. They will include the Chief Justice, the president of the Court of Appeal or the High Court, as decided between them, the Attorney General (AG), a serving barrister nominated by the Bar Council, a serving solicitor nominated by the Law Society, and six lay members.
Promote gender balance
The published scheme for the Bill says it aims to promote gender balance and diversity, reflecting the population, among the lay commission members and among the judiciary.
Criteria for the selection of lay members include experience or expertise as users of the courts, assisting victims of crime, and expertise in relation to human rights, equality, diversity, voluntary, community, or social affairs. They also include experience of public sector policy, administration and board participation.
Under the Constitution, judges can only be appointed by the Government. The commission will forward the names of three potential nominees to the Government for its consideration.
The new regime will replace the Judicial Appointments Advisory Board, which is chaired by the Chief Justice and includes the presidents of the Court of Appeal, High Court, Circuit Court, and District Court, the AG, representatives of the Bar Council and the Law Society, and three lay people appointed by the Minister for Justice.