About this case:

• Citation:
  [2023] IESC 34
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Elizabeth Dunne

Delivering judgment for the Supreme Court, Ms Justice Elizabeth Dunne confirmed that “there is nothing express or implicit in s. 51” requiring the government to nominate even a solitary judicial candidate recommended by the Commission, and that the bill “preserves for the government a real and meaningful choice as to the acceptance or rejection of a list, the freedom not to nominate a person when it so wishes, and choice within the list”.

Background

The Judicial Appointments Commission Bill 2022 provides for the establishment of the Judicial Appointments Commission. The Commission is tasked with designing procedures for assessing candidates for judicial roles, setting criteria in respect of appointment to judicial office within the State and to certain international courts, and recommending a list of candidates meeting those criteria to the government, which cannot select candidates other than those recommended to it.

Counsel arguing against the bill contended that it infringed the separation of powers by stripping the executive of its role of appointing judges, that the Commission’s broad powers would be an unconstitutional delegation of the legislative function of the Oireachtas, and that the measures infringe the independence of the judiciary. Arguments in respect of interference with privacy, unlawful discrimination and failure to respect the rule of law were also advanced.

The Attorney General submitted to the contrary that the bill respects the government’s constitutional role of nominating persons for appointment as judges, while augmenting the democratic legitimacy of the process and strengthening judicial independence and the rule of law.

The Supreme Court

The court considered the bill, setting out that the Commission would consist of nine members, with four being members of the judiciary and four being lay people, and with the Attorney General being a non-voting member. The court further noted the requirements that the Commission be satisfied of eligibility for appointment to the relevant office, that recommendations shall be based on merit and that the Government shall only consider persons who have been recommended for appointment by the Commission.

Having considered whether the bill was necessitated by the State’s obligations pursuant to its EU membership for the purposes of Article 29.4.6° of the Constitution, the court determined that “the Bill represents an autonomous, autochthonous exercise of legislative sovereignty by the Oireachtas of a kind not necessitated by the requirements of EU law” and proceeded to examine the constitutionality of the bill.

Emphasising the constitutional obligation upon the Oireachtas to legislate in respect of the appointment of judges, the court considered “whether that power extends to measures such as those contained in the Bill, having regard to the function of the Government in advising the President to exercise his power of judicial appointment”.

The court noted the necessity to “consider whether any measure of the Bill compromises the independence of the judiciary, whether it is permissible for the legislature to intervene in the Executive function in the appointments of judges to the extent provided for in the Bill, and whether the measures breach the constitutional principle that the sole power to legislate is vested in the Oireachtas”.

Having heard various objections as against the bill in respect of judicial independence, Ms Justice Dunne confirmed that nothing in the bill interfered with judicial independence or had the effect of subordinating judges or courts to the Commission, with the “raison d’être” of the bill being “to safeguard and strengthen judicial independence and, by extension, the rule of law”.

Noting that the enactment of the bill would prevent the nomination by the government of persons not recommended by the Commission, the Supreme Court was “satisfied that s. 51, on any interpretation, involves the exercise of a choice by the Government as to whether or not to nominate a person or persons recommended by the Commission… It follows that, if the Government is not satisfied to exercise the power to advise the President, then the process will have to start again.”

Highlighting that “it is a constitutional imperative that there should be rules as to who can or cannot be made a judge”, Ms Justice Dunne noted that the task of making those rules “was and is a task for the Oireachtas and not a matter for the untrammelled discretion of the Government”. Accordingly, the court decided that it was not apparent that “the power of appointment of judges is structured as it is in the Constitution impliedly limits the general capacity of the Oireachtas to legislate on this topic”.

Finding it unnecessary to conclusively delineate the limitations on the legislative power of the Oireachtas, the court opined that the bill “preserves for the Government a real and meaningful choice as to the acceptance or rejection of a list, the freedom not to nominate a person when it so wishes, and choice within the list. Whatever the applicable boundary, therefore, the Bill does not, in the Court’s view, transgress it.”

In response to contentions that the bill affords the Commission excessive powers in prescribing selection criteria for judges without providing sufficient legislative guidance for that purpose, the court stated that the merit-based model of appointments emphasises “qualifications, experience, professionalism, competence, probity and ability, as well as awareness of the needs of court users and the effect of court decisions in a diverse nation… the Bill sets out a sufficiently clear view of what constitutes merit in a judge and obliges the Commission to implement that view in its selection criteria.”

Reiterating that the bill “does not leave the Commission with either a content-free concept or a broad power to create its own vision”, the court determined: “The Bill does not, therefore, fall foul of the principles established in the jurisprudence on Article 15.2.1°. The Oireachtas has not abdicated its power or function, but has conferred a degree of discretion in a sufficiently narrow area of operation.”

Conclusion

Accordingly, and having rejected further arguments as to privacy, equality and reasonable accommodations for disability, the Supreme Court upheld the bill as constitutional.

In the matter of Article 26 of the Constitution and in the matter of the Judicial Appointments Commission Bill 2022 [2023] IESC 34