31 March 2022
The Irish Council for Civil Liberties (ICCL) today broadly welcomed the publication by Minister for Justice Helen McEntee of the Judicial Appointments Bill. The Bill as published is significantly improved from the initial Heads of Bill. ICCL had made submissions to the Oireachtas Justice Committee during the Pre-Legislative Scrutiny Stage of the Bill, and we are pleased that most of our key recommendations have now been accepted by Government and are reflected in the Bill.
Key improvements in today’s Bill from the initial General Scheme are:
- The discretion of Government in the appointment of judges will be significantly curtailed. Judges can now only be appointed from a shortlist of 3 drawn up by the Judicial Appointments Commission (or five names for two vacancies, and 7 names for three); and only after an interview process. This reflects ICCL’s recommendation. In addition, it is very welcome that this new independent process will also apply to appointments to international courts.
- The General Scheme had proposed a separate process for the appointment of the Chief Justice, President of the Court of Appeal, and President of the High Court – a process which would have had heavy government involvement. Following submissions by ICCL and others, this proposal has now been dropped and these positions will be filled in the same way as ordinary judges. This is a highly significant improvement and means there will be one fair and merit based process for all appointments.
- In line with a recommendation from ICCL, the Bill now proposes that the Judicial Appointments Commission must address the objective that the membership of the Judiciary should reflect the diversity of the population as whole. This is an issue which ICCL has campaigned on since 2007. To achieve real diversity and representativeness in the Irish judiciary, steps must also be taken to address diversity at senior levels in the legal professions.
- A provision has been inserted in the Bill for all candidates to undergo judicial training or continuous professional development. This is very welcome and ICCL believes that such training must include substantial training in relation to international law, human rights law and equality, in line with the Judicial Council Act 2019.
Outstanding issues remain.
- ICCL had recommended that the list of names sent to the Minister should be ranked in order of preference by the Judicial Appointments Commission with reasons given by government where there is a divergence from the recommendation by the Commission – that recommendation has not been accepted. This is regrettable as rankings and reasons for divergence would have led to greater transparency to the process. It is not clear if the Government received advice from the Attorney General on this point.
- On which judges should sit on the Judicial Appointments Commission, the Bill proposes that the Chief Justice (as chair) and the President of the Court of Appeal will always sit on the Commission (or President of another Court depending on what vacancy has arisen) and two members of the Judicial Council. ICCL had recommended that judges sitting on the Commission should be elected by their peers, as per international standards. An election process would help guard against a small number of senior judges having a disproportionate influence in the process.
- ICCL had recommended that members of the judiciary should make up at least half of sitting members of the Commission, in line with the European Charter on the Statute of Judges. While this Bill proposes that members of the judiciary would make up half of voting members of the Commission, we regret the retention of the Attorney General on the Commission as this could be perceived as having undue governmental involvement in the Commission’s work and skews the balance away from 50% judicial membership.