Michael McDowell: Planned change to appointing judges is deeply flawed

A strange thing is proposed for the constitutional arrangements for the appointment of judges. Those arrangements are to be changed radically – without referendum and without the great majority of people knowing what is afoot – if a Bill before the Seanad is passed unamended and unless the Bill is referred to the Supreme Court under article 26 of the Constitution by President Michael D Higgins to test its constitutionality.

This second attempt at a Judicial Appointments Commission Bill provides for a nine-member commission with one non-voting member – the attorney general. It provides that the decision as to whose name will appear on a three-member shortlist for every appointment will be decided by vote among the other eight members.

Who will those eight voting members be? Four will be judges and four will be laypersons. No practising lawyer can have any input.

Four judges will be given effective veto control over appointments to the position of chief justice, the Supreme Court, the presidencies of all courts, and all judicial appointments and promotions.

Minister for Justice Helen McEntee confirmed that she was putting forward her Bill on the basis that it would, for the first time, make it unlawful for the government to advise the president to appoint any person otherwise eligible for appointment whose name did not appear on the shortlist. The four laypersons will be chosen by the minister for justice from a long list of indefinite size furnished by the Public Appointments Commission having regard to wide statutory criteria.

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Ms McEntee will be permitted, as a matter of her discretion, to choose from that long list four laypersons for the first commission appointed after the law is enacted, to hold office for three years. The Minister will be allowed as a matter of discretion to give those people a further three-year term.

After the first appointees, any further ministerial lay appointment (other than a reappointment) will require approval by both Houses of the Oireachtas. That means that the present Government will avoid all parliamentary approval for the lay members of the first commission. Very convenient, you might think.

The four judges voting on the three names to be shortlisted for any vacancy will be appointed as follows: the chief justice, the president of the Court of Appeal (or the president of any lower court to which the appointment is to be made) and two other judges elected by the Judicial Council, one of whom was a solicitor and the other a barrister when first appointed as a judge.

Since the four judge-members will have a blocking vote out of the eight voting members, the Bill seems intended to give the four judicial members a collective veto over the appointment of any qualified person to any judicial office. There is no casting vote.

By simply selecting three others in preference for any shortlist, the four judge-members will be able to prevent a judicial colleaguefrom appointment to a higher court or to the presidency of any court.

By the same process, they will also be able to prevent the initial appointment of an eligible person to be a judge in any court in the first place.

In practical terms, four judges will be given effective veto control over appointments to the position of chief justice, the Supreme Court, the presidencies of all courts, and all judicial appointments and promotions.

Giving by law the government a choice between three judicially-approved shortlisted names for vacancies in any court – while effectively denying the government the right to appoint any other eligible member of that court or any other member of the judiciary or other eligible person to that court or to any higher court – is a radical inversion of the existing constitutional order.

On what basis can it be argued that the Constitution can by law prohibit the government of the day from choosing from among the nine ordinary members of the Supreme Court one to be appointed by the president as chief justice? Can the Houses of the Oireachtas lawfully establish a mechanism whereby five Supreme Court judges are effectively rendered ineligible for such appointment?

Who indeed decides under our Constitution whether future Supreme Courts should be composed of liberals, radicals or conservatives? Four serving judges? Surely not?

Why shortlist three as opposed to five or seven? Why not one? Why give the government any choice at all if the Oireachtas can lawfully whittle their choice down as it wishes? Where does the magic figure three come from? Is the Oireachtas constitutionally at large in determining the advice the government can give the president?

Is all this consistent with the functions of the government under our Constitution? Can its role be reduced in this way? Can the judiciary be given a veto on their own composition?

If the Bill is enacted without a reference under article 26 to the Supreme Court, there will be many with locus standi to challenge it some day before a single judge of the High Court.