Indeed, unless decisive changes are made to the bill to address the controversial issue of the appointment of judicial officers, there will be few significant changes, warned a team of legal experts.
Three leading scholars said the heads of the 2020 Judicial Appointments Commission were a “critical opportunity” to fix a process deemed “flawed” that has sparked criticism of political patronage.
It has long been a controversial issue, most recently highlighted in the trial that appointed former Attorney General Seamus Woulfe to the Supreme Court.
Renewed attempts by the government to reform the process resulted in the publication of the Judicial Appointments Commission bill in December last year.
This replaces the Judicial Appointments Commission’s 2017 bill, which provided for a new Judicial Appointments Commission (JAC).
The scientists Dr. Laura Cahillane, Lecturer in Law at the University of Limerick, Dr. Tom Hickey, Assistant Professor at Dublin City University’s School of Law and Government, and Dr. David Kenny, Assistant Professor at the School of Law, TCD, have submitted a general system submission to the Oireachtas Judicial Committee.
There were many positive aspects to the bill, including the decision to replace a lay or illegitimate chairman of the JAC with the Chief Justice, as well as the provision of a permanent office with a director and staff.
However, they said there was a lot of improvement needed.
The opinion stated that “above all” in the legislation there is insufficient guidance on eligibility criteria and assessment mechanisms for applicants and that without this the new JAC would not be much better than the existing Advisory Board on Judicial Appointments (JAAB).
“If the legislation does not provide enough guidance to guide these processes, the JAC could not be more effective than the JAAB and even become a close copy of that body by recommending five names instead of seven, but the crucial reforms lacks the realm of proper Evaluation of candidates to make these changes meaningful, ”the statement said.
The scholars also said the legislation was necessary to spell out the actual selection process by the government once the names were sent from the JAC to the Minister of Justice.
“This is something that has been causing controversy recently as there is no transparency or an agreed procedure for making this determination in the current system,” it said. Adding details to this decision-making process would “provide much needed security” in the fairness of the system “.
Further recommendations are:
- Removal of the Attorney General from the JAC, which would allow for equal lay and legal representation;
- Obligation of the JAC to conduct a formal interview and evaluate shortlisted candidates;
- Candidates referred to the Minister of Justice should be ranked in order of preference.
- That this list be submitted to the relevant Cabinet subcommittee;
- If the government appoints someone other than the three names, it suggests making a public statement on the matter.
- That the AG is not entitled to be appointed judge at the Supreme Court for at least 12 months after leaving office.