Legislation on judicial appointments approved by the Government this week includes a number of changes to the draft proposals, according to the Minister for Justice Helen McEntee (pictured).

The Department of Justice is describing the proposed legislation as the biggest reform in the way judges are chosen in a quarter of a century.

The Judicial Appointments Commission Bill 2022 allows for the establishment of a Judicial Appointments Commission (JAC) of nine members, chaired by the chief justice, to replace the current Judicial Appointments Advisory Board (JAAB).

The minister said that the bill would be published “shortly”, but would include a number of changes from the General Scheme published in December 2020.

Three to be recommended

This follows a number of consultations – in particular with the Attorney General, the European Commission and the Chief Justice.

The EU body had expressed concern that the original proposals would “continue to leave broad discretion to the Government”.

In one of the changes to the original plan, the Government could propose only people recommended by the JAC for appointment by the President of Ireland.

Three people would be recommended for a judicial vacancy, instead of five. There would be another two recommendations for a second and additional vacancies. For example, this would mean seven recommendations for three vacancies.

Diversity statement

The bill will also say that anyone – new applicants or serving judges seeking promotion to higher courts – who is to be recommended to the Minister for Justice for appointment should have been interviewed by the JAC.

The commission will also be required to publish a diversity statement, committing to the objective that membership of the judiciary should reflect the diversity of the population as a whole.

Candidates for appointment will need to show that they have undertaken judicial training or continuous professional development.

The Government has also decided that there is “no compelling argument” for a separate committee to make recommendations to the Government on senior appointments, such as Chief Justice, President of the Court of Appeal, and President of the High Court.

The bill does include, however, provisions for the JAC’s remit to cover appointments to the General Court, the Court of Justice, the European Court of Human Rights, and the International Criminal Court.

Composition of JAC

Minister McEntee said that a very clear process for judicial appointments – one that people understand and have full confidence in – was vital.

“The current JAAB process only concerns first-time judicial appointments, with no statutory advisory role in place relating to appointments from the ranks of serving judges,” the minister pointed out.

“This bill will ensure that anyone who wishes to be considered for appointment to judicial office – including serving judges – will apply to the commission and undergo the same application and interview processes.”

The JAC will have an equal number of lay members and judge members, and will comprise:

• The Chief Justice, who will chair the commission,
• The President of the Court of Appeal, who can be replaced by another court president,
• Two judges nominated by the Judicial Council,
• Four lay members, appointed by the Minister for Justice from among the persons recommended by the Public Appointments Service, and
• The Attorney General, who will not have a vote.

The Government will continue to decide on assignments in the District and Circuit Courts, but expressions of interest will be made to the president of the court, rather than through the attorney general.