On 13 October 2023, the President of Ireland referred the Judicial Appointments Commission Bill to the Supreme Court under Article 26 of the Constitution, the first time the current President has exercised his power under Article 26, and only the sixteenth such referral in the history of the State.
In this first piece of this series, we examine the key part of the Supreme Court's decision to uphold the constitutionality of the legislation.
Introduction
The Judicial Appointments Commission Act 2023 was signed by the President on 8 December 2023. It is a significant piece of legislation, replacing the body previously responsible for recommending candidates for judicial office to the Government (the Judicial Appointments Advisory Board or JAAB) with the Judicial Appointments Commission ("the Commission"). The overall aim of the legislation is to strengthen the independence of the judiciary, create more transparent appointment procedures and dispel concerns that the appointment procedure is influenced by political factors. The Act also introduces reforms to the appointment system for judges in the State, as well as judges in international courts. However, the path to enactment was not smooth sailing, as the President decided to refer the Judicial Appointments Commission Bill ("the Bill") to the Supreme Court to consider its constitutionality. A number of provisions were referred, including sections 9, 10, 39, 40(2), 42, 43, 45, 46, 47, 51, 57 and 58.
The Context: the Article 26 reference procedure
Article 26 of the Constitution provides for a method of "abstract review", which allows the President, following consultation with the Council of State, to test the constitutionality of a Bill by referring it to the Supreme Court for its opinion.
The procedure is unique in a number of respects, not least because there are no aggrieved litigants or factual background to contextualise the proceedings. As a result, the Supreme Court appoint counsel to oppose the Bill. In an exercise of clairvoyance, counsel assigned by the Supreme Court are tasked with identifying potential unconstitutionalities and creating arguments to that effect. The Attorney General or counsel appointed on their behalf presents arguments supporting the Bill.
Time is of the essence once the President decides to refer a Bill to the Supreme Court. The Court has 60 days from the date of the referral to deliver judgment in the matter. One judgment must be delivered on behalf of the Court, with dissenting voices prohibited.
Finally, the Supreme Court's conclusion has stark consequences for the Bill. Where a Bill is found to be constitutional, it is granted an immunity from further constitutional challenge into the future. This means that future litigants will be prevented from challenging any provision at any point or in any factual context. On the contrary, where a Bill is found to be unconstitutional, the entire Bill will perish. The gravitas of the regime has been criticised as dissuading the President from using the reference procedure. However, others would say that this is by design – the procedure has such drastic consequences designed to ensure that each decision to refer a Bill to the Supreme Court is a considered one.1
The Decision
Amongst many arguments put forward, (the focus of future Insights in the New Year) counsel assigned by the court argued that the Bill breached the separation of powers between the legislative and executive branches of Government. Section 47 provides that the Commission will recommend three candidates for appointment where there is one judicial vacancy. Where more than one vacancy arises in the same court, an additional two candidates are recommended for each additional vacancy.
In effect, this means that if there are two vacancies in the High Court, the Commission would recommend five candidates, where there are three vacancies, the Commission would recommend seven candidates, and so on. Where the Commission is not in a position to recommend the requisite number of candidates for the vacancies, it can recommend a lesser number while setting out in writing to the Minister for Justice ("the Minister") why it is unable to recommend the number of persons specified.
In all cases, the Commission's recommendations will be accompanied by the names of every applicant for the vacancy. Section 51 then provides that when advising the President in relation to the appointment of a person to a judicial office in the State, the Government shall only consider for appointment those persons who have been recommended by the Commission to the Minister under section 47. This is a significant departure from the previous regime, which allows the Minister to appoint individuals outside of the candidates recommended.
Counsel assigned by the court argued that this regime impermissibly impinges on the executive power to recommend a candidate of their choosing to the President. It was argued that the Bill forces the Government to appoint only people recommended by the Commission. The choice remaining for the Government at the end of the process was so limited that it must be unconstitutional. The Supreme Court rejected this argument.
In so doing, they made a number of important findings:
- The power of the Government to appoint judges is not absolute. (paras. 197-202)
- The Oireachtas is not only permitted, but is constitutionally obliged, to regulate the qualifications for holding judicial office in the State. That obligation arises from, amongst other factors, the democratic nature of the State which is based on the separation of powers. (paras. 140 and 141).
- While section 51 truncates the Government's choice, it is not obliged to appoint someone from the recommended candidates and it is entitled to direct the Commission to recommence the selection process. In so concluding, the Court found two features of the Bill to be particularly significant:
- With all recommended candidates, the Commission must forward a list of names of each applicant for the vacancy. A similar provision was contained in the previous regime for filling judicial vacancies. At para. 175, the Court noted that "It is hard to see any reason for this other than that the Minister was, under [the previous regime], not required to appoint a person recommended by the Board, and thus has an interest in knowing who else had applied for the position."
- Having considered the legislative scheme as a whole, the Court was satisfied that the Minister was entitled to direct the Commission to recommence the process having considered the names it forwarded for appointment. The Court held that the Minister must have this power to avoid absurd results, eg the Commission recommending someone to the Minister, who then withdraws their name from the process clearly cannot be recommended for appointment, and therefore the Minister must have the power to direct the Commission to recommence the process. (para. 176)
- The Bill strikes the appropriate balance between the constitutional value placed on judicial independence while retaining a meaningful choice for the Executive to recommend candidates for judicial office. (para. 207)
Conclusion
The Article 26 reference procedure is one of the most significant powers exercised by the President of Ireland. The constitutionality of the Judicial Appointments Commission Act 2023 is copper fastened in the statute book until the Oireachtas decides to amend it. While these consequences may seem stark, it is worth noting that the judgment has brought certainty to the new appointments system, preventing future applicants from challenging decisions on the basis of a flawed judicial appointment.
1 - For a more complete consideration of the criticisms of Article 26, see Hillary Hogan, The Decline in Article 26: Reforming Abstract Constitutional Review in Ireland, The Irish Jurist: 2022, 67(67), 123-144.