Report critical of new judicial appointments system overlooks ‘key factors’

Minister of State says Constitution necessitates that government have discretion over roles

The State’s proposed new regime for appointing judges has been defended by Minister of State Thomas Byrne, who was responding to concerns expressed by the European Commission in a recent report. Photograph: Alan Betson

The State’s proposed new regime for appointing judges has been defended by Minister of State Thomas Byrne, who was responding to concerns expressed by the European Commission in a recent report. Photograph: Alan Betson

 

The State’s proposed new regime for appointing judges has been defended by Minister of State Thomas Byrne, who was responding to concerns expressed by the European Commission in a recent report.

Mr Byrne, who works out of the Department of Foreign Affairs, told a seminar that the concerns expressed by the commisison in relation to the proposed changes “overlooks a number of key factors”.

In the report, published in July, the commission said the Irish justice system is characterised by a high level of perceived independence.

A new draft law aimed to reform the system for judicial appointments and promotions and to alleviate certain previous concerns, it said.

“However, the reform would continue to leave broad discretion to the government” in relation to who the government chooses to appoint, the report said.

This was because there would be no ranking of the list of candidates that would be forwarded to the government for consideration by the proposed new appointments commission.

Furthermore, the report noted, the government will not be bound by the list of proposed candidates it will receive from the appointments body.

Discretion

In remarks to a seminar organised by the Irish Council for Civil Liberties, Mr Byrne said he believed the concerns outlined in report overlooked a number of factors, including that the Constitution necessitates that the government has discretion in the making of judicial appointments.

The new law will require the government to first have regard to the five names that the commission recommends for appointment, he said.

“The report is critical of the fact that the recommended candidates will not be ranked and that the government is not bound by the list,” Mr Byrne said.

“These are points that will no doubt be considered further during the legislative debate, but it is worth pointing out that the decisions of the commission will be published.”

The new law requires that all persons who wish to be considered for appointment to judicial office, including serving judges, will be required to apply to the commission, he added.

“This important step is a response to concerns expressed previously about the extent of discretion Government has in relation to further promotion of serving judges, and the absence of a formal procedure for this. This step ensures the independence of the entire judicial appointments process.”

Low number of judges

In his remarks, Mr Byrne also referred to the report’s comments on the relatively low number of judges in Ireland compared to other EU member states.

“As matters stand, due to a shortage of judges, and of course the delays caused by the pandemic, cases are not being heard within a reasonable time,” he said.

If the rights of citizens to have their cases heard and determined within a reasonable time is to be vindicated, it is essential that additional resources are deployed and additional judges appointed.

“This is a matter this Government takes seriously,” he said.

The Coalition has recently appointed a number of new judges, but senior members of the judiciary have said the additions are not adequate to deal with the demands that exist.

Mr Byrne said a working group tasked with considering the number and type of judges required is to report to the Minister for Justice by the second quarter of next year.

In his remarks to the seminar, Prof Gavin Barrett of the UCD Sutherland School of Law said threats to the rule of law, be they minor or major, “exist in pretty much every member state”. In Hungary and Poland a “veritable rule of law crisis” has developed for the European Union, he said.