The role of judges in judicial appointments in Ireland

The Irish government has proposed a bill to reform the method by which the country appoints its judges. Patrick O’Brien discusses the proposals, and argues that several of the criticisms levelled against the bill lack force.

Judicial appointments in Ireland are shortly due to be put on a more formal footing. When the Irish Judicial Appointments Commission Bill 2022 is enacted, it will provide for an appointments commission designed in the image of many similar bodies that have been developed in common law jurisdictions in the last 30 years. The bill has, however, been the subject of recent criticism from the Chief Justice, Donal O’Donnell, who has questioned the composition of the proposed Commission.

Judicial appointments have been something of a saga in Irish politics in the last few years. The current system is widely regarded as inadequate and has been the subject of repeated proposals for reform in the past decade. An independent Judicial Appointments Advisory Board (JAAB), chaired by the Chief Justice, receives and comments on applications for judicial office from outside the judiciary but leaves appointments essentially to the political discretion of the government, which in theory (though all the evidence suggests, not in practice) leaves open the possibility of a more politicised judiciary. Promotions of existing judges are not considered by the JAAB at all. It is generally accepted, therefore, that appointments require reform. The current bill is the second to be put to the Oireachtas (Irish Parliament) since 2017. The 2017 bill was demanded as the price of entering coalition government by Shane Ross, a campaigning journalist and then an independent TD. This bill would have created a rather unwieldy body with 13 members and a lay majority and chair, as well as a number of sub-committees which would be called into being depending on the nature of the appointment. For a small jurisdiction which makes only a handful of judicial appointments each year, the system was significantly over-designed.

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Remote sittings for Ireland’s parliament: questionable constitutional objections

david_kenny_02.jpg_resized.jpg (1)As a result of the temporary measures taken by the UK House of Commons, MPs as far away from London as Orkney have been able to contribute to parliamentary proceedings remotely. The same has not been true of Ireland, where legal objections have been raised. David Kenny argues that those objections can be easily overcome and that there is no good reason why Ireland’s elected representatives should not be able to attend the Oireachtas remotely. 

Ireland’s recent general election, as well as producing deep political uncertainty, has produced several fascinating and strange constitutional questions: what happens when a candidate dies (not, it turns out, what the law clearly required). Can the Seanad (Senate) legislate when no Taoiseach (Prime Minister) has been appointed to nominate 11 of its members? What are the limits of the accountability of acting ministers?

The strange circumstances of the pandemic have thrown up yet another constitutional issue, one which is arising around the world: where and how can the legislature sit? With social distancing in a parliamentary chamber or committee room difficult, this has a profound effect on how the legislature can function at a time where the agglomeration of executive power in response to the crisis requires acute parliamentary oversight. 

At present, despite emergency legislation giving sweeping powers to the executive to combat COVID-19, neither house of the Irish parliament is meeting in anything other than the most limited form. For limited purposes, such as attempting to nominate a Taoiseach, a very large space such as Dublin’s Convention Centre can be rented to allow socially distant attendance from all 160 members of the Dáil (the equivalent of the UK’s House of Commons). But this is not intended to be a regular arrangement, and is not planned for other parliamentary activities, such as committee meetings. There are limited sittings in the Dáil Chamber, with a select groups of members in attendance, and meetings of a special COVID-19 Committee in the chamber also. It would seem that virtual/remote meetings would be essential to allow sufficient parliamentary oversight in these circumstances. But constitutional objections to this have been raised. Continue reading