On 13 October the President of Ireland, Michael D. Higgins, exercised his power under Article 26 of the Constitution to refer the Judicial Appointments Commission Bill 2022 to the Supreme Court. Article 26 of the Constitution allows the President to, “after consultation with the Council of State, refer any Bill to which this article applies to the Supreme Court”.
The Judicial Appointments Commission Bill 2022, if enacted, will replace the existing Judicial Appointments Advisory Board with a new Judicial Appointments Commission. Although change in this area is needed and welcomed, the Bill has received criticism and concern since it was in development. Last year Chief Justice O’Donnell even expressed confusion as to why practicing lawyers were to be excluded from membership of the Judicial Appointments Commission as well as several other criticisms as to the proposed makeup of the Commission. The President of the Law Society also expressed concerns with the Bill’s proposed makeup of the Commission. Namely, that while there would be an equal ratio of members of the Judiciary to lay persons there was nothing proposing that there be an equal ratio of legal professionals (solicitors and barristers). The President of the Law Society remarked, ‘It is critically important that a representative from each branch of the profession is appointed to the commission’.
In referring the Bill to the Supreme Court for Review the President has pointed out twelve specific sections which he believes require ‘special attention’. The Supreme Court has sixty days from the date of referral to look at the entirety of the Bill and decide if any part of it is repugnant to the constitution. If the Supreme Court finds unconstitutionality the entirety of the Bill will be struck down and the President may not sign it in to law. Neither Chief Justice O’Donnell nor Justice Seamus Woulfe will be involved in the upcoming decision as both have recused themselves, due to prior statements about and/or involvement with the Bill. If outcome of this referral is especially significant because if the Bill is found to be constitutional, then pursuant to Article 34 of the constitution it may never be challenged again.
This referral to the Supreme Court marks the first time that a President of Ireland has exercised this power under Article 26 since 2004 when then President Mary McAleese referred The Health (Amendment) (No. 2) Bill 2004 to the Supreme Court. From about 1970 to 2000 there was usually a referral under Art 26 roughly every couple of years but starting in the 2000s this practice fell out of style. However, this referral may be an indication in a change in sentiment. Senior counsel Darren Lehane, who spoke as the President was consulting with the Council of State on the Bill, said that Article 26 is “important safety valve”. And the Irish Times reported that this referral was not only expected but encouraged in political and legal circles with the Minister For Justice stating that they, ‘welcome and appropriate given the importance of judicial appointments in the constitutional architecture of the State’.
To see the President’s press release click here https://president.ie/en/media-library/news-releases/president-higgins-refers-the-judicial-appointments-commission-bill-2022-to-the-supreme-court