"You're hired" – merit based process for appointing judges is approved | Fieldfisher
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"You're hired" – merit based process for appointing judges is approved

Hannah Unger



On 31 March 2022, the Minister for Justice announced that the Judicial Appointments Commission Bill 2022 (the "Bill") was approved by Government and will be published shortly. This Bill, when enacted, will lead to the biggest reform in the way judges are chosen for appointment in a quarter of a century. Under the Bill, the Judicial Appointments Commission ("JAC"), chaired by the Chief Justice, will replace the Judicial Appointments Advisory Board.
The JAC will include four lay members, to be selected and recommended by the Public Appointments Service, four judges and the Attorney General, who will not have a vote.

Following a period of pre-legislative scrutiny, a number of changes have been made to the Bill from the General Scheme as published in December 2020. These changes include the following:
  • Judicial Appointments Commission – when the General Scheme was published, it was proposed that the Senior Judicial Appointments Advisory Committee (comprising the Chief Justice, Attorney General and a lay member) should make recommendations to Government for appointment of the Chief Justice, President of the Court of Appeal and President of the High Court. However, the Minister said there was “no compelling argument” for such a separate procedure and following a recommendation arising from the pre-legislative scrutiny process, it was not included in the Bill. The JAC will now make such recommendations.
  • Number of recommendations - when the General Scheme was published, some critics argued that it did not go far enough in terms of ensuring transparency in the judicial appointments process. The Irish Council for Civil Liberties and several legal academics suggested the number of candidates (5) to be recommended to government for appointment as judges should be reduced, as the original proposals would continue to leave broad discretion to the Government. They also argued that recommendations should be ranked and government should be required to give reasons for deviating from a recommendation. In light of these concerns, the Bill has now reduces the number of recommendations from five to three, with an additional two recommendations for a second and additional vacancies. This would mean seven recommendations for three vacancies.
  • Continuous Professional Development - candidates will be required to show they have undertaken judicial training or continuous professional development
  • Only persons recommended by the JAC are to be recommended by the government for appointment as judges.
  • Interviews - all new applicants and serving judges seeking promotion to higher courts who are to be recommended for appointment should have been interviewed by the JAC.
  • Diversity - The JAC will be required to publish a diversity statement committing to the objective that membership of the judiciary should reflect the diversity of the population as a whole.
The result of the Bill will be that all candidates, including serving judges seeking appointment to higher courts, will undergo the same new application and interview procedures.
Commenting on the Bill, the Minister for Justice said that "it is vital that we have a very clear process for judicial appointments, one that people understand and have full confidence in". She further stated that “This bill will ensure that anyone who wishes to be considered for appointment to judicial office – including serving judges – will apply to the commission and undergo the same application and interview processes.”
The Minister has set out her ambition in her Justice Plan 2022 to enact the Bill by Q2 of 2022
The Justice Plan can be accessed here

Written by: Eimear BurkeHannah Unger and Hannah Torpey

Areas of Expertise

Public and Regulatory