Killian Flood: Reviewing the Judicial Appointments Commission Bill
On 31 March, justice minister Helen McEntee announced the introduction of the Judicial Appointments Commission Bill 2022, which aims to overhaul the current system for judicial appointments in Ireland. The legislative proposals arrived to much fanfare from the Department of Justice, with the bill being described as the “biggest reform to judicial appointments in decades”.
In her press conference, the minister identified changes to the appointments process, such as the requirement for interviews of applicants by the new Judicial Appointments Commission and the recommendation of three candidates for a single judicial post. However, despite the grand announcement of these new reforms, there was little detail provided as to how the new system would operate in practice.
This month, the bill was published on the Oireachtas website in full (available here). This article will examine some of the key aspects of the bill. Importantly, the bill is currently in its first stage in the Oireachtas and may be altered significantly before it becomes law.
The Judicial Appointments Commission
The Judicial Appointments Commission Bill (No. 42 of 2022) is split into seven Parts, with the principal innovations coming in Part 2, Part 4 and Part 5 of the Bill. Part 2 provides for the creation of the Judicial Appointments Commission, which will replace the Judicial Appointments Advisory Board. The JAAB currently makes recommendations to the minister for judicial posts, but these recommendations are not binding on the minister.
The Commission will be made up of nine members, being the Chief Justice, the President of the Court of Appeal, two members of the Judicial Council (i.e. two ordinary judges), the Attorney General and four lay members. However, where the Commission is recommending a High, Circuit or District Court judge, then that relevant President will replace the Court of Appeal President on the Commission.
The general functions of the Commission are to “select and recommend” persons to the minister of justice for domestic judicial posts and to the minister for foreign affairs for international posts. Accordingly, the Commission is vested with recommending all future judicial office holders in the State and abroad.
The bill prescribes that the two ordinary judges on the Commission must be made up of (a) one male and one female judge, (b) one Superior Court judge and one Circuit/District Court judge and (c) one practising barrister and one practising solicitor prior to being appointed. As such, if one member is a female High Court judge who was previously a barrister, then the other member must be a male, Circuit/District judge who was a solicitor.
The ordinary judge members will be nominated by the Judicial Council, while the lay members will be appointed by the minister on the recommendation of the Public Appointments Service. Lay members will be required to have experience of (1) business, finance or public service, (2) corporate governance and (3) the domestic and international justice systems in order to qualify for a Commission post.
The Commission is to be independent in the performance of its functions and may regulate its own procedures, subject to the provisions of the bill.
The proceedings of the Commission are confidential and any person who breaches that confidentiality may face imprisonment of five years or a €50,000 fine. Internal communications and communications with the minister are also confidential.
The Commission is required to keep records of applications and deliberations for recommendations. The Freedom of Information Act 2014 does not apply to the process of selecting and recommending applications to the minister.
The appointment process
Part 4 of the bill deals will the appointments process. Any decision by the Commission to recommend a person shall be based on merit, but the Commission must take account of factors such as gender equality, diversity and fluency in the Irish language when reaching a decision. The current eligibility criteria under the Courts (Supplemental Provisions) Act 1961 is retained.
The bill also prohibits canvassing or attempts to influence the appointments process by applicants. Any person who attempts to canvass during the process will be disqualified from recommendation and will be liable on conviction to a class A fine.
The Commission may only entertain applications for judicial office on the request of the minister. Every judicial position will be advertised to allow applications to be made to the Commission.
An application will be in the form as specified by the Commission. If an application is made by a member of the Commission for a judicial post, that person will take no part in the recommendation process. The Commission may only make a recommendation for a person to be appointed if it is satisfied inter alia, that the person “possesses the requisite knowledge, skills and attributes set out in that statement and is of sufficient merit for such recommendation”, and has been interviewed by the Commission.
The Commission must recommend three people for a single judicial post, plus two additional people for every subsequent vacancy. The Commission is entitled to recommend fewer people where there are an insufficient number of qualified candidates, but reasons must be set out in writing to the Minister.
Each recommendation made by the Commission to the minister must include a statement setting out the reasons that the recommended person is suitable for appointment. The results of the interview must also be provided to the minister.
The Government may only advise the President to appoint that the Commission have recommended. The Government must request the Commission to confirm that a person is eligible prior to advising the President.
Judicial selection statements
The bill also provides that the Commission must publish a “judicial selection (procedures and required competencies) statement” which includes a statement of selection procedures and required knowledge, skills and attributes of applicants. A statement of the requisite knowledge, skills and attributes may differ depending on the judicial post.
The statement will specify that barristers, solicitors and legal academics must demonstrate a “high degree of professionalism, competence and probity” in order to be recommended. Additionally, an applicant will have to show that they can deal with “judicial business in branches of the law that may not have fallen within his or her previous area of knowledge”. Applicants must have appropriate awareness of the diversity of the State’s population and of the experiences of lay participants in the court system.
Every applicant will be required to provide an undertaking that they will engage in training or education as required on appointment.
The statement of selection procedures must outline the form of application and supporting documents to be provided. The selection statement may provide for a short-listing of candidates and shall “ensure that recognised best practice standards in recruitment processes for judicial and other related offices are adhered to”. Different procedures may be adopted for different judicial offices.
Finally, the Commission must also publish a diversity statement, in which the Commission will undertake to improve the diversity of applicants and recommended persons for judicial office. The Commission must set out procedures to “assist in removing barriers faced by persons within the population as a whole that are under-represented in judicial office”.
At a broad level, it can be said that the JAC Bill aims to regularise the process of nominating judges and, implicitly, reform the old process of getting the “tap on the shoulder” from the JAAB or the minister. Notably, applicants cannot be invited to make applications as under the current JAAB process. Further, judges seeking promotion to a higher office will also have to partake in the appointments process, which is not currently the case.
The Commission will be independent and have control over its own procedures, which is a necessary aspect of ensuring objective recommendations. Certainly, the formalised application process and selection statements will assist in providing transparency for applicants and the public, who will generally know the standards to be met in order to be recommended.
Equally, the confidentiality of proceedings and the non-application of the Freedom of Information Act 2014 are positive aspects of the bill. A discreet nominations system will allow candidates to make applications without worrying about being unsuccessful. The perception of being a “failed applicant” can have professional consequences and may dissuade some from applying in the first place. Additionally, a confidential system avoids the unedifying political spectacle that is regularly seen in United States Supreme Court nominations.
It is also positive that the government’s discretion to choose judges is limited to those that are recommended by the Commission, as opposed to the current system where the recommendations of the JAAB can be ignored by the minister. However, it is disappointing that there are no further provisions dealing with how the minister/government chooses their preferred nominee. Under the current bill, the minister will be presented with three candidates, but the government can still nominate any of them for any reason (or no specific reason). As always, cabinet confidentiality will apply.
Accordingly, it is quite possible that the “three recommendations system” will be little more than window dressing in some cases. Given the discretion available to the minister/government in making nominations, the final nominee could be chosen without genuine consideration of the other two recommended persons. It should also be noted that the proposed system does not eliminate the possibility of political favouritism in appointments.
In light of this, it cannot be said that the new system is without potential flaws. However, it must also be said that significant control has been given to the Commission to objectively determine the best applicants in the first place and that some discretion must be afforded to the government when nominating judges.
A further and more minor criticism relates to the diversity statement. While diversity in the judiciary is important, the Commission will be limited in recommending people with a variety of backgrounds by the relative lack of diversity of the lawyer population within the State. One could argue that the real demographic shifts in Ireland have only occurred in recent years, and that the legal professions will naturally reflect those shifts over time. However, it is apparent that the diversity of practitioners (particularly students and younger lawyers) must be addressed if we are to see diversity in judicial appointments.
Overall, it seems that the JAC Bill is a constructive attempt to reform the appointments process in Ireland. Future judges will have the imprimatur of their peers through the Commission’s recommendation and the formalised nature of the process brings greater transparency to appointments.