Dr Patrick O'Brien

Judicial appointments in Ireland are shortly due to be put on a more formal footing. When the Judicial Appointments Commission Bill 2022 is enacted, it will provide for an appointments commission designed in the image of many similar bodies that have been developed in common law jurisdictions in the last 30 years. The bill has, however, been the subject of recent criticism from the Chief Justice, Donal O’Donnell, who has questioned the composition of the proposed Commission.

Judicial appointments have been something of a saga in Irish politics in the last few years. The current system is widely regarded as inadequate and has been the subject of repeated proposals for reform in the past decade.

An independent Judicial Appointments Advisory Board (JAAB), chaired by the Chief Justice, receives and comments on applications for judicial office from outside the judiciary but leaves appointments essentially to the political discretion of the government, which in theory (though all the evidence suggests, not in practice) leaves open the possibility of a more politicised judiciary. Promotions of existing judges are not considered by the JAAB at all. It is generally accepted, therefore, that appointments require reform.

The current bill is the second to be put to the Oireachtas since 2017. The 2017 bill was demanded as the price of entering coalition government by Shane Ross, a campaigning journalist and then an independent TD. This bill would have created a rather unwieldy body with 13 members and a lay majority and chair, as well as a number of sub-committees which would be called into being depending on the nature of the appointment. For a small jurisdiction which makes only a handful of judicial appointments each year, the system was significantly over-designed.

This does not, however, quite account for the explosive reaction that it generated within the judiciary and the legal profession. The bill, and especially the proposed lay majority on the Commission, was described by several lawyer parliamentarians in the Oireachtas as an ‘insult’ to the judiciary and to the legal profession (in this Seanad debate, for example).

The failure to make the Chief Justice chair of the proposed new commission (as he currently is of the JAAB) was described by a retired Supreme Court judge as a ‘deliberate kick in the teeth’ to the Chief Justice. Some of this reaction might have been to the doctor rather than to the medicine.

Shane Ross had, amongst other things, co-written a book entitled Untouchables: The people who helped wreck Ireland – and are still running the show which portrayed the judiciary and its systems for discipline and appointment in a corrupt and unflattering light. The 2017 bill ultimately failed after the then Attorney General Séamus Woulfe described it as a ‘dog’s dinner’ which was potentially unconstitutional.

The Council of Europe’s GRECO body on anti-corruption also raised concerns about the judicial minority on the new Commission, describing it as a breach of European standards. Ultimately the bill was filibustered for months by lawyer members of the Seanad, and lapsed with the dissolution of the Dáil before the general election in 2020.

The new bill, which was initially proposed in 2020 but has taken some time to begin the legislative process, addresses many of the concerns the judiciary had with its predecessor. The Chief Justice will now be chair of a nine-person Commission, comprising four lay and four judicial members and including the Attorney General as a non-voting ninth member.

It is in an improvement on the 2017 bill in other respects, too. The new Commission will recommend only three names to the government for each post and the government will be required to choose from amongst these names. The 2017 bill had left it open to the government to appoint someone from outside the list, because of concerns that restricting the government’s freedom of action might be unconstitutional. By way of contrast, the Judicial Appointments Commission in England and Wales recommends only a single name.

The new bill will also address a major lacuna in the JAAB system by including applications from serving judges for promotion within its scope. There are also commitments on recruiting judges with fluency in the Irish language, to the use of interviews and training, and on diversity.

The Commission that will emerge from the new bill (which is almost certain to pass given the government’s majority and broad cross party support) represents a significant victory for the judiciary. Most of the concerns they expressed with the 2017 bill – which had mostly to do with personnel – have now been resolved in its favour by the 2022 bill. The concerns now raised by the Chief Justice focus on two areas: representation from the legal professions, and the absence of a judicial majority.

On the first point, the Chief Justice is arguably correct. The absence of members of the legal profession on the new Commission is anomalous in international terms. The common law model for judicial appointment bodies which appears to have influenced the new Irish JAC has developed largely in various UK and Canadian jurisdictions in the past 30 years.

This model normally includes a mixture of judges, lawyers and laypersons on the appointing/recommending body. The reason for the exclusion of lawyers on the Irish commission appears to be to keep numbers down (which is understandable) and to preserve a non-voting seat for the Attorney General (which is less so). Given that the government will ultimately make the decision on appointment, it seems unnecessary for it also to have a voice in the first stage of the process.

The second objection raised by the Chief Justice is more problematic. The assumption that the natural arrangement for a body of this kind is that it should have a judicial majority appears to be influenced by the kind of concerns raised by the judiciary and by GRECO in connection with the 2017 bill. Yet there are good reasons to be sceptical about this.

It is not clear how GRECO came to its view about the 2017 bill, but it is not correct to suggest that judicial appointment bodies in common law countries (which appoint judges from the legal professions later in life) normally have judicial majorities, or indeed judicial chairs. It is normal to have a legal majority (judges plus lawyers) in similar bodies in other countries, but purely judicial majorities are very rare.

Of 13 common law jurisdictions I looked at in a very rough informal survey, I was only able to find three with a judicial majority in this kind of process: India, Pakistan and Malta. Of these three one could argue that India and Pakistan are not valid comparisons, in the former case because the Indian Supreme Court has insisted that the involvement of non-judges in appointments is unconstitutional, and in the latter case because the Pakistani process brings judges into an appointment process that also involves ministers and others. In fact, the 50 per cent representation of the Irish judiciary on the new Commission is higher than any comparable common law model appointment body that I have been able to find.

The broader point, however, is that none of this really matters very much. Evidence suggests that judges enjoy significant influence on appointments regardless of the precise composition of the appointing body. The reason for this is obvious: judges know the system, know the likely candidates and know the law in ways that laypersons by definition do not. Lay involvement, or even a lay majority, cannot do much to change this.

It is thus a shame that the long debate on judicial appointments in Ireland has focused so relentlessly on the composition of the appointing body, and that parts of the legal profession (though to his credit, not the Chief Justice) appear to find lay involvement anathema. This has crowded out more important issues that could usefully have benefited from the attention, like how to design recruitment processes to ensure that they are fair, attract the best people, and do all of this without (as has happened in some jurisdictions) compromising progress on the overall diversity of the judiciary.

At this point, given how far the bill has now progressed in a more stable political environment, it seems unlikely that the Chief Justice’s objections will lead to further changes. The new bill is significantly better than its 2017 predecessor, and it should be welcomed. It is hard not to feel, however, that five years have been wasted on an argument about personnel.

• Dr Patrick O’Brien is senior lecturer in law at Oxford Brookes University and an honorary member of staff at the Constitution Unit. This article was first published by The Constitution Unit Blog.