Politicians may make the laws that govern us, but judges determine whether they are valid and what they mean and how they apply. And they do so very often in cases involving the State itself. A man claims that legislation prohibiting religious ceremony during a pandemic breaches his right to religious freedom – the Government claims that it does not. A woman facing deportation insists that the Minister has misunderstood the implications of her constitutional family rights – the Minister insists that she has not. A family argues that legislation obliges a local authority to provide a serviced halting site – the local authority argues that it does not.
Deciding such cases is no easy feat. There may be different legislative enactments at issue, a large body of caselaw, and a range of constitutional provisions, so the judge has to engage in the complex enterprise of interpretation. There may be complicated facts, a desperate human situation, or vulnerable witnesses so the judge’s temperament and experiences will be brought to bear. And there are often broader implications for how we are governed in a given area (pandemic mitigation, immigration, housing provision etc), so the judge’s conception of the role of the State will be in play.
For decades Ireland had a shoddy method for appointing judges
Yet for decades we in Ireland had a shoddy method for appointing judges. There was an appointments board to which practising lawyers could apply. But it was little more than a filtering mechanism for excluding seriously undesirable candidates. No interviews took place, and there was almost nothing in the way of established criteria for deciding between candidates. The board would recommend a minimum of seven names for a vacancy with no ranking or assessment. The Government was then free to choose from among them – and could choose from outside the list if it wished. To compound matters, a separate procedure operated for sitting judges seeking appointment to a higher court: such judges would send an expression of interest directly to the Attorney General.
Woulfe controversy
There was an attempt at reform in 2017, but the Bill that was published became embroiled in political tensions and got lost in the fray. Then controversy attending the appointment of Séamus Woulfe to the Supreme Court in 2020 seemed to bring things to a head, and the Minister for Justice committed to reform, publishing an initial scheme for a Judicial Appointments Commission Bill. That Bill had some merit, but left much to be desired: there was still no requirement for interviewing applicants; there was little in the way of established criteria for selection; and the new commission would recommend five names rather than seven, with the Government still free to choose among them or from outside of that list.
We were among those who pressed Government for more substantial change to the 2020 scheme, and met much resistance in the Oireachtas Justice Committee last summer – especially from trained lawyers on or close to the Government benches. Shouldn’t Government have the authority to appoint judges, asked one committee member? (It should, but that authority need not be unfettered, nor should it be.) Wouldn’t submitting a sitting or prospective judge to interview undermine the rule of law or otherwise diminish the administration of justice, inquired another? (Not if such interviews were conducted in private rather than before a parliamentary committee.) A third asked: why did we need reform if we supposedly have excellent judges? (Just because we have many excellent judges does not mean the process for appointing them is perfect or fair, and it may be despite the system rather than because of it, as our own judges have suggested in the past.)
Interview and criteria
We were therefore pleasantly surprised to see such significant change in the full version of the Bill, published earlier this month. There is now an obligatory interview and more fleshed-out criteria for selection. The commission recommends only three names to Government rather than five – and the Government cannot select from outside of the list. While there is no ranking among the three, the commission is obliged to include a statement setting out an account of the interview, the qualifications and experience of candidates, and reasons as to why they are suitable for appointment. This should provide Government with the means to make an informed decision, but it goes further to ensure that Government enjoys discretion on the matter as required by the Constitution.
The new Bill also underlines the importance of judicial education, requiring all sitting candidates to have undergone such training. And it promotes diversity, requiring that the judiciary reflect the population as a whole, and obliging the commission to publish a diversity strategy explaining how this will be achieved.
Given the Woulfe controversy illustrated an unclear process as to how appointments are handled in Cabinet, it is a pity the legislation provides no clarity on this
There are arguable shortcomings too, which might be considered as the Bill proceeds through the Oireachtas. We are disappointed to see that the Attorney General remains a member of the commission. The Attorney General will inevitably be involved in the final selection once names are sent to the Minister – and so having them sit on the Appointments Commission too (albeit without a vote) seems to give them an overly dominant role. Also, given that the Woulfe controversy illustrated an unclear process as to how appointments are handled in Cabinet, it is a pity that the legislation provides no clarity on this.
Despite these reservations, this new Bill seems to provide real and meaningful reform. Given recent developments in Poland and Hungary, it has become all the more clear that we cannot rely on convention alone and assume goodwill on the part of any future government to appoint some of the most influential office-holders in our State. We need a fair, transparent, and rigorous process. This Bill goes a long way towards providing one.
Laura Cahillane, Tom Hickey and David Kenny teach constitutional law at University of Limerick, Dublin City University and Trinity College Dublin respectively