President Michael D Higgins refers Judicial Appointments Bill to the Supreme Court 

Referring a draft law to the Supreme Court for his first time, President Higgins said special attention should be given to 12 sections of the Judicial Appointments Commission Bill 2022

President Higgins indicated that 12 sections of the draft law should be given special attention by the Supreme Court. File picture: James Warwick/PA 

President Michael D Higgins has decided to refer Government legislation on how judges are to be appointed, to the Supreme Court for a decision on its constitutionality.

The unprecedented move comes following a meeting of the Council of State earlier this week which considered the Judicial Appointments Commission Bill 2022.

It is the first time that President Higgins has taken such action.

A Government spokesperson said the government believes the bill is within the parameters of the Constitution.

The bill itself is set to replace the existing Judicial Appointments Advisory Board (JAAB) with a new Judicial Appointments Commission. 

Provisions cause concern 

The provision of the bill that a new commission will recommend three candidates for a judicial vacancy and that the Government can pick only from this list has been the subject of some concern including from a number of politicians. 

They have said the legislation will limit the Government’s discretion over who it can nominate as a judge.

In a statement, a spokesperson for the President said following consultation with the Council of State and having given further consideration to the advice offered to him, President Higgins has decided, under Article 26 of the Constitution, to refer the Judicial Appointments Commission Bill 2022 to the Supreme Court for a decision “on the question as to whether the bill is repugnant to the Constitution or to any provision thereof". 

Supreme court to examine bill

The President has said special attention should be given to 12 sections of the bill.

These include provisions on the membership of the Judicial Appointments Commission, its function, qualifications, and applications for appointment or nomination for appointment, the recommendation of people to the minister and the preparation of a statement of the requisite knowledge, skills, and attributes for judicial office. 

The Supreme Court now has 60 days to hear arguments about the constitutionality of the bill and give its decision.

It will mean that Supreme Court judges will have to decide about the constitutionality of laws governing how judges are appointed.

Minister welcomes constitutionality test

In a statement, the Government and Justice Minister Helen McEntee welcomed the President’s decision. A spokesperson said: 

“It is the President’s prerogative to refer bills to the Supreme Court, and this prerogative has been exercised 15 times previously.

“The Government believes the bill is within the parameters of the Constitution.

The Government and the Minister believe that testing the constitutionality of the bill at the earliest possible stage is welcome and appropriate given the importance of judicial appointments in the constitutional architecture of the State.

“The Supreme Court’s judgement to determine the constitutionality of the bill will bring a welcome clarity on the matter,” the statement added.