Appointment Commission

2023 Act

The principal purpose of the Judicial Appointments Commission Act 2023 is to reform the arrangements leading to appointments of persons to judicial office. The Act provides for the establishment of the Judicial Appointments Commission with the functions of selecting and recommending persons for appointment, or nomination for appointment or election, to judicial office in the State or outside the State.

The  Commission shall publish a statement of selection procedures to be applied in considering applications and a statement of requisite knowledge, skills and attributes required by applicants seeking such recommendation. Recommendations of the Commission shall be based on merit having regard to the relevant recommendations of the Council of Europe’s Group of States against Corruption (GRECO) and Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe.

The Judicial Appointments Commission is to consist of 9 members including the Chief Justice (who shall be the chairperson), the President of the Court of Appeal (or, an alternative President of a Court), 2 members of the Judicial Council, the Attorney General and 4 lay members. The dissolution of the existing Judicial Appointments Advisory Board is also proposed.

 

The 2023 Act provides for the dissolution of the existing Judicial Appointments Advisory Board and for the transfer to the Commission of Records and the continuation of any legal proceedings. No further appointments to judicial office shall be made based on recommendations of the Judicial Appointments Advisory Board.

Judicial Appointments Commission

The Minister for Justice shall by order appoint the establishment day for the purpose of the Act. On the establishment day there shall stand established the Judicial Appointments Commission. The Schedule to the Acts  applies to the Commission.

The Commission is to consist of 9 members, subject to other  provisions of the Act. The membership of the Commission shall consist of the

• Chief Justice (chairperson),
•  the President of the Court of Appeal (or, an alternative President of a Court),
• 2 members of the Judicial Council, the Attorney General (non-voting member) and
• 4 lay members.

Functions

It is  the general functions of the Commission to select and recommend persons to the Minister for Justice, and to the Minister for Foreign Affairs, for appointment and for nomination for appointment or election to judicial office and for that purpose it is to adopt a statement of selection procedures and a statement of requisite knowledge, skills and attributes for inclusion in a judicial selection statement. The Commission shall be independent in the performance of its functions.

The Commission may, to assist it in the performance of its functions, enter into contracts or arrangements with any person and, with the consent of the Minister for Justice, appoint consultants or advisers. There is provision for  the nomination by the Judicial Council of 2 members of the Council to be members of the Commission.

One of the nominees shall be male and one shall be female; one shall be a judge of the Supreme Court, the Court of Appeal or the High Court and one shall be a judge of the Circuit Court or the District Court; and one shall have been qualified as a practising solicitor and one shall have been qualified as a practising barrister. The Minister for Justice shall appoint each person so nominated to be a member of the Commission.

Appointment

The Minister for Justice following a resolution passed by each House of the Oireachtas, is to appoint lay members of the Commission following a selection process and recommendation by the Public Appointments Service (PAS). The Minister shall agree with the PAS the selection criteria and procedures applicable having regard to the objective that lay members will possess knowledge of, and expertise in, specified matters and to the need, in so far as possible, to ensure that recommendations made by the PAS should comprise an equal number of women and men and reflect the diversity of the population of the State as a whole. The Minister may, prior to the establishment day, designate a person or persons to be the first lay member or members of the Commission.

The 2023 Act deals with the terms and conditions of membership of the Commission. Each member shall act on a part-time basis subject to such terms and conditions as the Minister for Justice may determine. Each lay member shall be paid such remuneration (if any) and allowances for expenses (if any) as the Minister may, with the consent of the Minister for Public Expenditure and Reform, determine. A lay member shall hold office for a period of 3 years and may be reappointed by the Minister for one further period of 3 years. A member of the Judicial Council who is a member of the Commission shall hold office for a period of 3 years and may be nominated for one further period of 3 years by the Judicial Council.

Procedures

The Act deals with procedures of the Commission which shall hold its first meeting no later than 3 months from the establishment day. The chairperson of the Commission shall be the chairperson of a meeting or, where the chairperson is absent the most senior judge present shall be chairperson of the meeting. The quorum for a meeting of the Commission shall be 6 members, unless the Minister for Justice otherwise directs, not less than 3 of whom shall be lay members.

The Commission may establish one or more committees of the Commission to assist it in the performance of its functions. A committee shall consist of such and so many members as may be determined by the Commission and shall have an equal number of lay members and members who are members of the judiciary.

There is provision  for remote meetings of the Commission, or of a committee, between some or all of the members who are not all in the one place but each of whom is able to speak and be heard, directly or by means of electronic communications technology.

Cessation of Membership

A Commission who ceases to hold judicial office shall cease to be a member of the Commission. An alternate judicial member of the Commission is provided for in the case of the judicial office of the Chief Justice or another Court President until the successor has been appointed. A replacement judicial member of the Commission, for the unexpired period of the term of office, is provided for in the case of a nominee of the Judicial Council. In the case of the resignation of a nominee of the Judicial Council, a similar arrangement applies.

A lay member of the Commission who ceases to be a lay person shall cease to be a member of the Commission. A lay member may also resign from the Commission by notice in writing to the Minister for Justice. A casual vacancy among the lay membership shall be filled in like manner for the unexpired period of the term of office.

The 2023 Act deals with ineligibility to become a lay member and disqualification as a lay member for reason of conviction of an offence, being the subject of a declaration under Section 819 of the Companies Act 2014 or a disqualification order.

The  Government has power to remove a lay member of the Commission from office on one or more specified grounds and only where a resolution is passed by each House of the Oireachtas. The grounds for removal include ill health, stated misbehaviour, conflict of interest and otherwise unfit. The procedure for removal includes notification in writing to the member concerned of the proposal with an opportunity for the member to make representations which the Government shall take into account.

Accountability

The  Director of the Judicial Appointments Commission Office shall, whenever required in writing to do so, give evidence to the Public Accounts Committee in relation to the regularity and propriety of transactions, economy and efficiency in the use of resources, evaluating the effectiveness of operations and any matter referred to in a report of the Comptroller and Auditor General. The  Director shall, at the request in writing of an Oireachtas Committee, attend before it to give account for the general administration of the Commission.

The Director shall not be required to give account for any matter (a) which is, or has been or may at a future time be, the subject of proceedings before a court or tribunal in the State, or (b) where the giving of such account would involve the disclosure of proceedings, communications or matters contrary to section 30 which deals with confidentiality of proceedings, communications and any matter concerning the removal of a lay member of the Commission.

There is provision for an application to the High Court for a determination as to whether a matter, in respect of which the Director has been requested to give an account before a Committee, is a matter to which condition (a) applies. There is provision  for advances to be made to the Commission by the Courts Service out of moneys provided to it by the Oireachtas, as determined by the Minister for Justice, with the consent of the Minister for Public Expenditure and Reform.

The Commission is to keep accounts of all moneys received or expended by it, the submission of annual accounts to the Comptroller and Auditor General for audit, the presentation of accounts and the report of the Comptroller and Auditor General, and the laying of these accounts and report before each House of the Oireachtas.

The Commission is to submit its annual report and the laying of this report before each House of the Oireachtas. The Minister for Justice may request the Commission to make a report on any matter relating to the functions of the Commission.

The Commission is to publish a diversity statement setting out the manner in which the Commission undertakes to give effect to the objective that membership of the judiciary in each court in the State should reflect the diversity of the population of the State as a whole, including procedures in place to improve diversity and to assist in removing barriers faced by persons that are under represented in judicial office.

Confidentiality

A person shall not, unless he or she is required or permitted by law or duly authorised by the Commission, disclose confidential information, obtained while performing functions as a member of the Commission or a committee of the Commission, or the Director or member of staff of the Judicial Appointments Commission Office, or a consultant, advisor or other person engaged by the Commission. Subsection (2) provides for an offence and penalties on summary conviction and on conviction on indictment. There is a definition of confidential information for the purposes of the section.

There is provision  for confidentiality of proceedings and communications in relation to applicants and applications, or any matter concerning the removal of a lay member of the Commission.

The Commission shall keep a record of applications and, deliberations and recommendations relating to appointments or nominations for appointment or election to judicial office. Personal data may be processed in accordance with the General Data Protection Regulation and the Data Protection Act 2018.

There is a  restriction, to the extent necessary and proportionate, of rights and obligations under the General Data Protection Regulation, subject to regulations which may be made. The Freedom of Information Act 2014 shall not apply to a record relating to the process of selecting and recommending persons for appointment or for nomination for appointment or election to judicial office, or to a consultation in relation to the judicial selection statement

Office

There shall be a Judicial Appointments Commission Office to assist the Commission in the performance of its functions. The Office shall have a Director and its members of staff shall be civil servants. The  Minister for Justice, following a selection process by the Public Appointments Service, appoints the Director of the Office for a period not exceeding 5 years and, in the case of reappointment, for an aggregate period not exceeding 10 years.

The Director is responsible to the Commission for the performance of his or her functions. The Commission may designate a member of staff of the Office to perform the functions of Director. Director may, with the consent of the Commission in writing, delegate functions of the Director to a specified member of staff of the Office.

Recommendations for Appointment

Recommendations for appointment or for nomination for appointment or election to judicial office shall be based on merit. In relation to judicial office in the State, account shall be taken of the objectives that the membership of the judiciary in each court should comprise equal numbers of male and female members, reflect the diversity of the population of the State as a whole, and include sufficient number of judges with a proficiency in the Irish language.

The  eligibility criteria for appointment to the various judicial offices in the State are those set out in the Courts (Supplemental Provisions) Act 1961 and that the eligibility criteria in respect of the various judicial offices outside the State are as specified in relation to each of the courts concerned.

An applicant shall not canvass support for his or her application or attempt to improperly influence a decision. A person who contravenes this prohibition is excluded from the process, is guilty of an offence and is liable, on summary conviction, to a class A fine.

Applications for Recommendation

The  Minister for Justice may request the Commission to make recommendations for appointment or for nomination for appointment to judicial office where a judicial office stands vacant or where a vacancy is anticipated. The Minister for Foreign Affairs may make the request where the vacancy relates to the European Court of Human Rights or the International Criminal Court. Upon receipt of such a request, or where the Commission anticipates there will be such a vacancy, the Commission shall issue an invitation for the making of applications by persons who wish to be considered for selection.

Where an invitation is issued in relation to a judicial office, a person who wishes to be considered for selection, including a person who is a serving judge, shall make an application to the Commission. An application shall not be made otherwise than pursuant to an invitation.

An applicant shall confirm consent to the Commission seeking information from a relevant person and to the processing of personal data. A relevant person is defined as including a body which has a regulatory role or an employer. An applicant shall, when requested to do so by the Commission, provide it with a declaration of consent within the meaning of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.

Where an application is made by a member of the Commission  they  shall take no part in the performance by the Commission of its selection and recommendation functions in relation to the judicial office to which the application relates. Where the applicant is the Chief Justice or the President of the Court of Appeal he or she shall be replaced as a member of the Commission by the next most senior judge for that purpose. Where the applicant is a member nominated by the Judicial Council, the Judicial Council shall nominate one of its members to be a member of the Commission for that purpose and the Minister for Justice shall appoint that person.

The  Commission shall consider applications made in respect of a vacancy in accordance with the judicial selection statement and shall not recommend the applicant to the Minister for Justice, or to the Minister for Foreign Affairs, unless (a) it is satisfied that the applicant is an eligible person and has satisfied the specified conditions, and (b) the Commission has interviewed the applicant.

Considering Recommendations

The Act deals with the recommendation by the Commission to the Minister for Justice of persons for appointment to judicial office in the State. Where there is one judicial office to be filled in a court the Commission shall recommend 3 persons. Where there is more than one judicial office to be filled in the same court the Commission shall recommend 2 additional persons for each second and subsequent vacancy.

Where the Commission cannot recommend to the Minister the number of persons specified it can recommend a lesser number of persons and at the same time set out in writing the reasons it is unable to recommend the number of persons specified. Where the Commission cannot recommend to the Minister any person it shall inform the Minister of that fact and at the same time set out in writing the reasons. The Commission shall, in any case, forward to the Minister the name of each person who made an application in respect of the vacancy concerned.

The 2023 Act deals with the recommendation by the Commission to the Minister for Justice or to the Minister for Foreign Affairs of persons for nomination for appointment or election to judicial office outside the State. The Commission shall recommend to the Minister for Justice 3 persons for nomination for appointment in respect of a vacancy in the judicial office of a judge of the Court of Justice, an Advocate-General of the Court of Justice or a judge of the General Court.

Nomination for Appointment

The Commission shall recommend to the Minister for Foreign Affairs 3 persons for nomination for appointment in respect of a vacancy in the judicial office of a judge of the European Court of Human Rights or a judge of the International Criminal Court. Where the Commission cannot recommend to the Minister concerned the number of persons specified it can recommend a lesser number of persons and at the same time set out in writing the reasons it is unable to recommend the number of persons specified.

Where the Commission cannot recommend to the Minister concerned any person it shall inform the Minister concerned of that fact and at the same time set out in writing the reasons. The Commission shall, in any case, forward to the Minister concerned the name of each person who made an application in respect of the vacancy concerned.

The  Commission shall notify each applicant

• whether or not he or she was the subject of a recommendation, and
• where no recommendation was made in respect of the vacancy, of that fact.

The  Commission shall, in respect of each person it recommends to the Minister for Justice or to the Minister for Foreign Affairs, provide to the Minister concerned a statement of suitability and other specified particulars relating to the person.

Appointment

The Government shall, in advising the President in relation to the appointment of a person to a judicial office in the State, consider only those persons who have been recommended by the Commission. The Government shall, in nominating a person for appointment or election to a judicial office outside the State, consider only those persons who have been recommended by the Commission.

A person who holds a specified judicial office shall vacate the office concerned before the President appoints the person to a judicial office in the State.

Notice of an appointment to judicial office in the State is to be published in Iris Oifigiúil. The  Minister for Justice shall cause to be laid before the Houses of the Oireachtas an annual statement of appointments made, or elections to, judicial office including the name of each person appointed or elected and other particulars.

Selection Statement

There are provisions  for  consultation and submissions or observations at the request of the Commission for the purpose of assisting it in the performance of its functions under this Part of the Act. The Commission may request submissions or observations from any person it considers appropriate. The Commission shall consult with the Courts Service and Court Presidents about the needs of users of the courts with respect to proceedings being conducted in the Irish language.

The  Commission shall publish a statement to be known as the “judicial selection statement” which shall include a statement of selection procedures and a statement of requisite knowledge, skills and attributes. The Commission shall provide the Minister for Justice and the Minister for Foreign Affairs with a draft of each statement within a period of 15 months from the date of coming into operation of the section, which period may be extended by the Minister for Justice by up to 6 months.

The Commission shall, having taken into account the views (if any) of the Minister for Justice and the Minister for Foreign Affairs, adopt a statement of selection procedures and a statement of requisite knowledge, skills and attributes and publish the judicial selection statement on its website. Any revision of the statement shall be similarly prepared and published to replace the previous statement.

Selection Criteria

The Act deals with the statement of requisite knowledge, skills and attributes for judicial office. Different requisite knowledge, skills and attributes may be specified or prioritised for different judicial offices. Particular requirements are provided for in relation to an applicant seeking appointment to the office of ordinary judge of the Supreme Court, the Court of Appeal or the High Court and also in relation to an applicant seeking nomination for appointment or election to judicial office outside the State.

The statement of selection procedures for the selection of persons for recommendation for appointment and nomination for appointment or election to judicial office shall specify matters including the form of application, supporting documentation, consent to the seeking of information, and suitability on grounds of health. The statement may provide for the short- listing of applicants and shall include a requirement that an applicant shall not be recommended without having been interviewed by the Commission. Different selection procedures may be specified by reference to different judicial offices and whether or not the applicant already holds judicial office.

The 2023 Act provides for transitional arrangements to apply where an invitation to apply for judicial office issues.

The Commission shall monitor and review the implementation of this Act no later than 2 years from commencement and from time to time thereafter as the Commission may determine. Following a review, the Commission shall submit a report of findings and recommendations (if any) to the Minister for Justice. The Minister for Justice may, having consulted with the Minister for Foreign Affairs, provide his or her views to the Commission arising from his or her consideration of the report. The Commission shall report to the Minister on any implementation measures it takes.

Eligibility for Higher Court

Firstly, a judge of the District Court for not less than 2 years shall be qualified for appointment as a judge of the High Court. Secondly, a person who is a legal academic, or who is the head of a faculty, in an educational establishment, and who has practised as a barrister or a solicitor for at least 4 years, shall be qualified for appointment and for nomination for appointment or election to judicial office.

A legal academic is a person who is a permanent member of the academic staff in the field of law in a specified educational establishment. Thirdly, a district judge may forward an expression of interest in an assignment to a particular district to the President of the District Court and not to any other person.

A judge, or a specialist judge, of the Circuit Court may forward an expression of interest in an assignment to a particular circuit to the President of the Circuit Court and not to any other person.