'Lack of transparency' in appointment of judges eroding public confidence

A new bill will overhaul how judges are appointed in Ireland – but it has been criticised. 

Confidence in the country’s judges has been “badly affected” by a lack of transparency in how the judiciary is appointed, an Oireachtas committee will hear on Tuesday.

The Joint Committee on Justice is to hear that the State should have “as little discretion as possible” in judicial appointments.

The Irish Council for Civil Liberties (ICCL) is set to appear at the committee on Tuesday afternoon to discuss the pending Judicial Appointments Commission 2020 bill, which, if enacted, will fundamentally change the selection process for the judiciary going forward.

However, the bill has not been without its critics, with Liam Herrick, executive director of the ICCL, set to assert that some of its provisions “fall short of international best practice, particularly in the area of transparency”.

Last month, the Bar Council of Ireland said the establishment of a new Judicial Appointments Commission was “unnecessary”, with the creation of the new entity likely to be needlessly “costly”.

Separately, three senior Irish legal academics have previously advised that the new bill requires a number of changes if the commission is to prove more effective than the current Judicial Appointments Advisory Board has been.

The issue of judicial appointments was brought sharply into focus last summer by the controversial appointment of former attorney general Seamus Woulfe to the Supreme Court, despite his having no experience as a judge whatsoever.

As things stand, judges register their expression of interest with the Government if they are seeking a promotion, while those who are not already a member of the judiciary must apply to the Judicial Appointments Advisory Board, which assesses their suitability.

Eight recommendations

The ICCL is set to make eight recommendations to the committee regarding desired changes to the bill as it stands.

The issue of judicial appointments was brought sharply into focus last summer by the controversial appointment of former attorney general Seamus Woulfe to the Supreme Court. Picture: Collins Courts

A key proposal relates to the number of recommendations to be made by the new Commission to Government for each vacant post, which the ICCL says should be both reduced from the proposed five and then ranked, an action which does not occur within the bill as it currently stands.

“The importance of the separation of powers is key here,” Mr Herrick will tell the committee. 

The Government should have as little discretion as possible in judicial appointments."

The ICCL will also recommend that the process proposed for judicial appointment should also apply to the appointment of the Chief Justice and the presidents of the higher courts.

“A separate system for the most senior appointments… serves to undermine the entire process of a streamlined, transparent appointments system,” Mr Herrick will say.

He is also set to suggest that in circumstances where the Government disagrees with the judicial recommendations provided by the new commission, its reasons for disregarding that advice should be given in writing.

“Without the provision of clear reasoning for choosing to disregard the recommendations… the system will remain translucent,” Mr Herrick will say.

Those changes will bring about “an appointments process that is independent, representative, transparent and ensures accountability” he will tell the committee.

“The ICCL sees this bill as an opportunity to drastically improve the judicial appointments system.

“If approached correctly these changes have the potential to enhance public confidence in both the judiciary and the rule of law. This can only be achieved if the Government is truly committed to reinventing the system in a manner which aligns with international best practice,” Mr Herrick will add.