Crucial changes needed to judicial appointments bill, warn experts

Judicial appointments have long been a contentious issue, highlighted most recently in the process whereby former attorney general Seamus Woulfe was appointed to the Supreme Court.

If crucial changes are not made to draft legislation aimed at tackling the controversial issue of judicial appointments, little meaningful change will actually happen, a team of legal experts have warned.

Three leading academics said the Judicial Appointments Commission Heads of Bill 2020 was a “critical opportunity” to fix a process regarded as “flawed” and one that has attracted criticism of political patronage.

Contentious issue

It has long been a contentious issue, highlighted most recently in the process whereby former attorney general Seamus Woulfe was appointed to the Supreme Court.

Renewed Government attempts to reform the process resulted in the publication last December of the draft Judicial Appointments Commission Bill.

This replaces the 2017 Judicial Appointments Commission Bill, which envisaged a new Judicial Appointments Commission (JAC).

Academics, Dr Laura Cahillane, senior lecturer in law at University of Limerick, Dr Tom Hickey, assistant professor at the School of Law and Government at Dublin City University and Dr David Kenny, assistant professor at the School of Law, TCD, have made a submission on the general scheme to the Oireachtas Justice Committee.

It said there were many positive aspects to the bill, including a decision to replace a lay or non-legal chair of the JAC with the chief justice as well as the provision of a permanent office with a director and staff.

Many improvements needed

But they said many improvements were needed.

The submission said that “most importantly” there was a lack of sufficient guidance in the legislation with regard to eligibility criteria and assessment mechanisms for applicants and that, without this, the new JAC would be not much better than the existing Judicial Appointments Advisory Board (JAAB).

“If the legislation does not contain enough direction to guide these processes, the JAC could be no more effective than the JAAB has been, and even become a near copy of that body, recommending five rather than seven names, but lacking the crucial reforms in the area of proper assessment of candidates to make these changes meaningful,” the submission said.

The academics also said the legislation needed to spell out the actual process of selection by the Government once the names were sent by the JAC to the justice minister.

“This is something which has led to controversy recently due to the lack of transparency or agreed process in the present system for the making of this determination,” it said, adding the detail about this decision-making process would provide “much-needed reassurance in the fairness of the system”.

Other recommendations include: 

• Removing the attorney general from the JAC, which would allow equal lay and legal representation; 
• Obliging the JAC to conduct formal interview and assessment of shortlisted candidates; 
• That candidates sent forward to the justice minister should be ranked in order of preference;
• That this list would be brought to the relevant Cabinet sub-committee; 
• That if the Government appoints someone other than the three names suggested that it makes a public statement on the matter;
• That the AG be ineligible for appointment as a judge of the Supreme Court for at least 12 months after leaving office.