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‘Broad discretion’ of executive to choose judges criticised in rule-of-law report
Minister of State Thomas Byrne at this morning's launch

22 Sep 2021 / rule of law Print

EU raps executive's 'broad discretion’ to choose judges

The perceived independence of courts and judges among the general public, and among companies, remains consistently high in Ireland since 2016, the 2021 European Commission rule-of-law report has found.

The level of independence of courts and judges is perceived as ‘fairly good' or ‘very good’ by 73% of the general population, and by 77% of companies.

Judicial appointments

However, the envisaged procedure for judicial appointments and promotions raises concerns, according to the report.

The report recognises the progress made in setting up a Judicial Council but says that work remains outstanding in reforming the system of judicial appointments.

While seven candidates are to be recommended for each vacancy, they are not ranked in order of preference, and the Government is not bound to select from the list, the report says.

“Promotions of judges are made by the President of Ireland on the advice of the Government, and are not subject to the procedure conducted by the JAAB,” the report continues.

Wide discretion

This leaves wide discretion to the executive power, which is further amplified by the possibility of the Government selecting “an applicant who is not in the list prepared by the Commission, without the need to give reasons”.

Any proposed reform must take into account Council of Europe recommendations that the executive power should follow in practice the recommendations by independent authorities, the report adds.

The current lack of formal disciplinary procedures for judges was raised as a concern, and planned moves to change this must preserve judicial independence, in line with EU law, the report states.

A disciplinary regime is being established to improve judges’ accountability, and the Judicial Conduct Committee is preparing draft guidelines on conduct and ethics, as well as a complaints procedure.

The report adds that Ireland's number of judges per inhabitant remains the lowest in the EU, which could also affect the efficiency of the Irish justice system. 

Speaking this morning (22 September) at the ICCL-hosted launch of the report, Thomas Byrne (Minister of State Department of the Taoiseach and the Department of Foreign Affairs and Trade with responsibility for EU Affairs) said that every good in society, social or economic, flows from an adherence to the rule of law, rather than the rule of men and women.

An annual appraisal of the rule of law is important, he said, because the EU is a union of values, and the rule of law needs to be a fundamental principle for all EU member states.

“It's vital that the rule of law is preserved, protected, promoted and explained,” he said.

Backsliding

Rule-of-law backsliding in countries such as Poland or Hungary needs to be kept in the public mind, the minister said.

The minister said that the Judicial Appointments Commission Bill was at an advanced stage, and would shortly be published, and that it would provide for a modern and transparent system, with the chief justice at its head.

The judicial and lay balance will be consistent with international practice in this area, he said.

“I want to stress that this reform is progressing, and it's very important for the Government,” he said.

The minister added that the rule-of-law report’s assessment overlooks several key factors, such as that the Constitution necessitates that the Government holds discretion in making judicial appointments, and that the Cabinet will “have regard” to the five persons that the commission recommends.

“These are points that will, no doubt, be considered further during the parliamentary process,” he said, pointing out that all those who wished to be considered for appointment to judicial office – including serving judges – would now be required to apply to the commission.

Concerns

“This important step is a response to previously expressed concerns about the extent of government discretion and the absence of a formal procedure.

“This step ensures that the independence of the entire judicial process is maintained,” the minister said.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland