Judicial Appointments Commission Bill will lead to biggest reform in judicial appointments in 25 years - Minister McEntee
- New Commission will replace the Judicial Appointments Advisory Board
- Anyone who wishes to be considered for appointment to judicial office must apply to the Commission
Nine person Judicial Appointments Commission to be more effective than previous proposal for 17 members
- All decisions to recommend persons for appointment will be based on merit.
15 December 2020
The Minister for Justice, Helen McEntee TD, has today announced that she has secured Government approval for the drafting of a Judicial Appointments Commission Bill. The Bill provides for the establishment of a new commission to replace the Judicial Appointments Advisory Board.
Commenting on the Scheme, Minister McEntee said:
“This Bill, when enacted, will lead to the biggest reform in the way judges are chosen for appointment in a quarter of a century. We have had a strong, independent judiciary since the foundation of the State 100 years ago. This reform bill will ensure we continue to have a strong, independent judiciary into the future. It builds on previous reforms, including a new Judicial Council.
I have been clear that the process of judicial appointments needs to be reformed and this Bill will lead to a substantially more streamlined and transparent process whilst also ensuring that Ireland follows best practice from across Europe.
It is important that we have a very clear process for judicial appointments, that people understand it and have confidence in it.Anyone who wishes to be considered for appointment to judicial office, including serving judges, will be required to apply to the Commission - no other process will be in place. I also welcome the fact that the Government has committed to bringing about this legislative change as quickly as possible.”
The General Scheme of the Judicial Appointments Commission Bill will provide for the establishment of a Judicial Appointments Commission of 9 members to replace the Judicial Appointments Advisory Board (JAAB).
It also provides for equal legal and lay representation for voting purposes.
The current JAAB process only concerns first-time judicial appointments, with no statutory advisory role in place in respect of appointments from the ranks of serving judges.
Under the Judicial Appointments Commission Bill, both serving judges and non-judges will have to apply through the Judicial Appointments Commission.
Commenting on the differences between this Bill and its 2017 predecessor, Minister McEntee added:
“A significant difference between this new 2020 Bill and the 2017 Bill is that the proposed Judicial Appointments Commission will be headed by the Chief Justice rather than a lay Chair. The Chief Justice of the day has chaired the JAAB for over 20 years and retaining this ensures that the selection process is absolutely rigorous and meets the need to have a strong and independent judiciary.
I am also of the view that a 9 person membership will be more cohesive and effective than the 17 members envisaged under the 2017 Bill. Instead of a lay majority there will also now be an equal number of lay persons and judges and the Attorney General will serve as an ex-officio, non-voting member of the Commission.
This balance has been settled on with reference to international standards and best practice models in other common law jurisdictions. The proposed combination of judicial experience and knowledge on the one hand and the varied competencies and expertise that lay members will bring on the other is the best arrangement for the Commission.”
The Judicial Appointments Commission will develop upgraded procedures and requirements for judicial office selection
A new Procedures Committee of the Commission will prepare and publish statements setting out selection procedures, including interviews, and judicial skills and attributes having regard to several criteria - including such matters as diversity.
It is proposed that the Procedures Committee will be chaired by the Chief Justice, or a Judicial Council nominee
The draft reforms, including provisions relating to the composition of the Commission, will be published subject to Government approval.
Notes for editors
Provisions of the Scheme
The General Scheme of the Judicial Appointments Commission Bill will, in summary, provide for the establishment of a Judicial Appointments Commission of 9 members to replace the Judicial Appointments Advisory Board (JAAB).
The Commission will be chaired by the Chief Justice rather than the Lay Chair model provided for in the 2017 Bill, and will have a substantial (4 out of 9) lay membership.
Under the Bill, the Minister will receive 5 unranked recommendations for each vacancy; 8 recommendations in instances where there are two vacancies; and 11 recommendations where there are three vacancies.
Serving judges wishing to be considered for promotion to a higher judicial position will be required to apply to the Commission under the Bill.
The membership of the Commission (Head 9) will be;
Chief Justice, as Chair of the Commission;
Two nominees of the Judicial Council, one having been a practising solicitor and one having been a practising barrister;
One court president being the president of the court in respect of which the Commission is to recommend persons for appointment;
Four lay members, three of which are to be selected by open competition by the Public Appointments Service (PAS), and one of which will be nominated by the Irish Human Rights and Equality Commission.
The Attorney General, in an ex-officio non-voting capacity;
The Scheme provides that PAS may initiate the process of recruitment of the lay members in the period prior to the commencement of the relevant section. (Head 10).
It is proposed that this arrangement will replace the existing JAAB composition of 11 members - 5 judicial members (Presidents of the courts including the Chief Justice who is Chairperson), 3 ‘legal’ members i.e. the Attorney General, 1 Law Society representative, 1 Bar Council representative and 3 lay persons.
The Minister proposes that the Commission will nominate 5 persons to the Minister for each vacancy. (Head 44).
In a similar manner to the Court and Court Officers Act / JAAB model, a list of all eligible persons who applied for a judicial appointment shall be forwarded to the Minister along with recommended names (Heads 44 and 45);
The Scheme ensures that all applications, including from serving judges, must be made in writing to the Commission (Heads 42 and 43). Under the Scheme, the Commission will assess and deal with applications from serving judges and develop appropriate procedures for their assessment. The current JAAB process only concerns first-time judicial appointments, with no statutory advisory role in place in respect of appointments from the ranks of serving judges.
The Scheme will provide for a Senior Judicial Appointments Advisory Committee (Head 48). This Committee will be composed of the Chief Justice, 1 lay member and the Attorney General and will recommend persons for appointment to the top three judicial posts only – Chief Justice, President of the Court of Appeal and President of the High Court. The Bill provides for the Chief Justice to be substituted in instances where the vacancy concerned is that of the Chief Justice. Any decision of this committee will be unanimous.
Appointments as President of the Circuit Court and President of the District Court will be filled through the Commission recommendation process, as with all other posts.
Provision for a dedicated support office headed by a Director and a small number of support staff is made in the Scheme. A new Commission is a significant organisational development and its remit will be significantly expanded compared to the JAAB. The Scheme will also provide for the appointment of an interim Director by the Minister in order to facilitate early establishment of the Commission (Heads 33, 34, 35 and 36).
The Commission will develop upgraded procedures and requirements for judicial office selection working through a Procedures Committee; it will prepare and publish statements setting out selection procedures and (judicial) skills and attributes having regard to several criteria (including such matters as diversity etc.). It is proposed that the Procedures Committee will be chaired by the Chief Justice, or a Judicial Council nominee. (Head 19).