FF seeks response to EC criticism of proposed judicial-appointments regime

Letter to Minister for Justice comes after Commission said composition of appointments body ‘would not be in line with European standards’

Fianna Fáil has asked Minister for Justice Charlie Flanagan how he intends to respond to the European Commission's criticisms of the proposed changes to Ireland's regime for appointing judges.

In a letter to Mr Flanagan, Fianna Fáil spokesman on justice Jim O’Callaghan has raised the issue in the context of other European countries where the appointment of judges is found not to be in line with European standards.

The Independent Minister Shane Ross is the main driver behind the proposed new judicial appointments regime, and his championing of the change is causing tensions in Cabinet, which appointed three new judges on Tuesday despite Mr Ross having said he wants new appointments put on hold until the new regime is enacted.

In its country report on Ireland published earlier this month, the European Commission said the proposed composition of the Judicial Appointments Commission, which would comprise only three judges out of 13 members, including a lay chairperson accountable to the Oireachtas, “would not be in line with European standards”.


This was a reference to a recommendation adopted by the Committee of Ministers of the Council of Europe on November 17th, 2010, to which Ireland was a party.

The recommendation said at least half of the members of any judicial appointments body should be judges chosen by their peers with a view to guaranteeing the body’s independence.

In countries such as Ireland, where the Constitition stipulates the appointment of judges is a matter for the Government, the recommendation said the judicial appointments body should be an “independent and competent authority drawn in substantial part from the judiciary”, the recommendations of which would in practice be followed.

“The fact that the Commission has seen fit to make this negative criticism by asserting that the government’s proposals ‘would not be in line with European standards’ should ring alarm bells with you and other members of the government,” Mr O’Callaghan said in his letter to the Minister.

“The European Commission is watching closely the relationship that exists between national governments and their judiciaries and monitoring any steps by governments that may undermine or damage the independence of the judiciary within a member State,” Mr O’Callaghan said.

“I am extremely concerned that Ireland has now been criticised by the European Commission because of the government’s proposed changes to how judges will be appointed.”

The reputational damage for Ireland would be significant if it is found that our judicial appointments regime is not in line with European standards, he said.

Last week High Court judge Aileen Donnelly deferred the extradition of an alleged drug trafficker to Poland because of concerns about the quality of the rule of law there following changes introduced by the Polish government, including the system for judicial appointments.

In her decision in the Polish extradition case Ms Justice Donnelly also referred to the Committee of Ministers recommendation.

One of the changes causing concern in Poland is the creation of a National Council for the Judiciary, which will be largely dominated by political appointees.

It is part of “a concerted legislative package to politicise the judiciary and to take away its independence,” Ms Justice Donnelly noted.

She is to ask the European Court of Justice in Luxembourg for its view on whether she should consider the changes to the rule of law in Poland when considering whether to extradite people there under the European Arrest Warrant system.

The move means that a political crisis in the EU caused by the changes to the rule of law in Poland has now spread to the European legal system.

Colm Keena

Colm Keena

Colm Keena is an Irish Times journalist. He was previously legal-affairs correspondent and public-affairs correspondent