Reduce volume and rank candidates for judicial office

The Attorney General as the Government’s chief legal advisor should not have a role in the future process to appoint new judges, in order to ensure independence from the executive, the Irish Human Rights and Equality Commission (IHREC) has said.

IHREC gave its recommendations on the General Scheme of the Judicial Appointments Commission Bill 2020 to the Oireachtas Justice Committee in a just-published paper.

The body says that the rationale for the presence of the Attorney General on the Judicial Appointments Commission (JAC) is unclear and, despite the lack of a vote, their membership could mean that they can exercise influence over decision-making.

Given that Ireland has a constitutional system of “near absolute executive discretion”, it is all the more important that any advisory system has “as little influence from the executive as possible”, IHREC says in its paper.

Political lobbying

It notes previous EU criticism of the system as “susceptible to political lobbying and favouritism”, and refers to the call for a review from the Council of Europe Group of States Against Corruption (GRECO) in order to ensure that the appointments of the most qualified and suitable candidates are carried out in a transparent way, without improper influence from the executive/political powers.

GRECO will require a new JAC system to present a substantially smaller number of options to the Government in order to be satisfied that this recommendation has been complied with.

The Attorney General is the Government’s chief legal adviser and, arguably, this provides a means of executive involvement in the JAC’s proceedings, IHREC has said.

It argues that there is a risk of ‘double-counting’, given that the Attorney General also sits at Cabinet, including cabinet meetings where decisions on judicial appointments are made.

Particular concern

IHREC cites EU case law on the issue of judicial independence from the executive and legislature.

“Given the primacy of EU law, this is an issue of particular concern,” IHREC says.

The commission has also weighed up the ongoing constitutional role of Government in relation to judicial appointments.

The JAC, once established, will function (in the context of the Government’s constitutional role) to advise the President on judicial appointments, it points out.

IHREC says the Judicial Appointments Advisory Board (JAAB), established by the Courts and Court Officers Act 1995 deliberately provided large lists of unranked candidates to Government on foot of legal advice which said that limiting the number of candidates might be unlawful.

Chilling effect

“It is unfortunate that this legal concern was not addressed at the time of the passing of the Courts and Court Officers Act 1995 and, indeed, may be indicative of the chilling effect that the Government’s constitutional role can have on a body such as JAAB,” the IHREC paper says.

The approach taken by the JAAB may be a lesson on the risks that arise if the JAC does not have sufficient statutory guidance in the carrying out of its functions, the paper continues.

The Government’s constitutional role makes it much more likely that the JAC will be cautious in its approach, IHREC believes.

Therefore, the commission recommends that the bill should include as much detail as possible in respect of the role of the JAC, and the parameters in which it is to operate.

The full legal ramifications of those parameters, and any potential constitutional limits, can be considered within the legislative process, rather than being the subject of unpublished legal advice at a later stage.

Rule of law

The commission sets out its view that an independent and diverse judiciary are fundamental components of a functioning democracy.

Judicial independence is a cornerstone of the rule of law and access to justice, and independence of the judiciary is an essential element for confidence in the judicial system.

IHREC says a diverse judiciary reflects society as a whole, in terms of age, civil status, disability, family status, gender, ethnicity, including membership of the Traveller community, religious belief, sexual orientation and socio-economic status.

This is important for democratic legitimacy, IHREC says, and the presence of judges from diverse backgrounds is important for demonstrating that the selection process is fair, merit-based, and non-discriminatory.

Judges from marginalised demographic groups, currently under-represented on the judiciary, can serve as inspiration for those with similar backgrounds to seek and obtain judicial office, IHREC believes.

General Scheme and the JAC

In December 2020, the Minister for Justice published the General Scheme, which sets out that the JAC will be made up of nine members – four lay members, four members of judiciary, and the Attorney General (in a non-voting capacity).

The JAC is to recommend persons for appointment to judicial office on the basis of merit and with regard to the following objectives:

• That the membership of the judiciary should comprise equal numbers of men and women,
• That the membership of the judiciary should (to the extent feasible and practicable) reflect the diversity within the population as a whole,
• That the membership should include those with a proficiency in the Irish language,
• That legal academics will be eligible to be appointed to the judiciary,
• Serving judges who wish to be considered for promotion to a higher judicial position must also apply to the JAC,
• That the JAC provides five unranked names (plus an additional three names for each additional vacancy), and a statement of the name of each eligible person who made an application.

Out of step

The IHREC paper says that the previous practice of at least seven candidates being provided to Government without any order of priority for appointment is entirely out of keeping with international human-rights standards on judicial independence.

IHREC recommends that the legislation being drafted should clearly set out that the number of candidates the JAC recommends to Government should be significantly reduced, and ranked.

It also recommends that the requirements that legal academics must hold permanent positions and have a minimum of four years’ post-qualification experience as a solicitor or a barrister should be removed.

The commission welcomes the formal requirements for recusals in cases of decision on judicial appointments, but recommends that robust practices be put in place to ensure transparency and independence.

It also says that the draft law should be revised to include time-limits and rules relating to reappointment of all lay members and members nominated by the Judicial Council, in line with provisions governing appointments to the Policing Authority, and IHREC itself.

Inclusion measures

Chief Commissioner Sinéad Gibney says: “A diverse judiciary can better represent society and better serve court users.

“The commission wants to see a new Judicial Appointments Commission detail its inclusion measures to pursue greater diversity and, in this way, set out a clear statutory mandate for ongoing work in this area.

“Independence of the judiciary is an essential element of the public’s perception of the judiciary and confidence in the judicial system. Perceptions can affect an individual’s decision to bring cases to court or refrain from legal action,” she says. “The highest human rights standards must apply to ensure judicial independence and impartiality.”

IHREC has published its observations in line with its mandate to review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality.