A new system sanctioned by the Oireachtas for appointing judges is “repugnant” to the Constitution because it interferes with the government’s power to appoint judges and with judicial independence, the Supreme Court has been told.
The role of the government in appointing judges has been reduced by the Judicial Appointments Commission Bill 2022 to a “rubber stamp”, said Eoin McCullough SC.
The Bill’s imposition of a binding requirement of “merit” for a judicial appointment is unconstitutional and can only be introduced if approved by the public in a referendum, he argued.
The issues for decision by the court, following President Michael D. Higgins’ referral of the Bill to determine its constitutionality or otherwise, are novel and have never previously been raised, counsel said.
They include the extent to which the Oireachtas is entitled to encroach on the executive power of the State, McCullough outlined.
The Bill, which establishes a commission comprising an equal number of judges and lay members to make recommendations on judicial appointments, contains no clear statement of principles to be followed by the commission, he said.
The commission is meant to base its task on “merit” but that word is not defined in the Bill and is “accepted to be subjective”.
The requirement that applicants for judicial office or promotion must demonstrate an appropriate awareness of diversity and related matters could, for example, lead to the commission examining the awareness of diversity demonstrated by sitting judges, he argued.
The appointments system is not, contrary to what is argued by the Attorney General, required by EU membership and, as a result, is not subject to review by the court, he submitted.
The seven-judge court on Wednesday began hearing arguments concerning the constitutionality of the Bill following the first ever referral by President Higgins of a piece of legislation to it for consideration.
The 2022 Bill, having passed both Houses of the Oireachtas, was sent to the President last month for his signature.
Following consultation with the Council of State, the President referred it to the Supreme Court to decide its constitutionality in accordance with the procedure provided for in Article 26 of the Constitution.
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 as a judge from three names recommended by the commission, comprising four judges and four lay representatives with the Attorney General as a non-voting member.
Attorney General Rossa Fanning, with Michael Collins SC, David Fennelly BL and Emma Synnott BL, instructed by the Chief State Solicitor, contend the Bill is constitutional.
Mr McCullough, who with Catherine Donnelly SC, Aoife Carroll BL and Francis Kieran BL, instructed by solicitor Michelle Ní Longáin, were selected by the court to make opposing arguments, said the Bill provides the commission can recommend up to three names for one vacancy and two additional names where there is more than one vacancy. It is also empowered to make no recommendation.
The Constitution requires that judges shall be appointed by the president, whose powers are exercisable only on the advice of the government, he said. That provides for an express power in government to appoint judges, he said.
Section 51 provides that the government, in advising the president on judicial appointments, can only consider the persons recommended by the commission and must make a choice from those.
“That is an absolute preclusion on the government’s power,” counsel said.
The core issue is whether the Oireachtas can interfere in the exercise of a specific executive power, his case is the Oireachtas cannot do so and Section 51.1 is the “centrepiece” of his argument to that effect, counsel outlined.
His case is that it is “improper” to exclude the government from appointing a person to judicial office who has not been recommended by the commission, Mr McCullough submitted.He also argued there is no legal basis in the Bill for the government to reject the recommendations of the commission and restart the appointments process.
The Bill contains a comprehensive code for judicial appointments, he said. If it was intended the government could reject the recommendations of the commission, the Bill would have provided for that, he submitted.
The hearing is continuing.