Article 26 of the Constitution and the Judicial Appointments Commission Bill 2022

• Jurisdiction: Ireland
• Judge: Ms. Justice Elizabeth Dunne
• Judgment Date: 08 December 2023
• Neutral Citation: [2023] IESC 34
• Court: Supreme Court

In the Matter of Article 26 of the Constitution

and

In the Matter of the Judicial Appointments Commission Bill 2022

[2023] IESC 34

Dunne J.

Charleton J.

O'Malley J.

Baker J.

Hogan J.

Murray J.

Collins J.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Constitutionality – Judicial eligibility – Article 26.2.1° of the Constitution – President referring sections of the Judicial Appointments Commission Bill 2022 pursuant to Article 26.2.1° of the Constitution – Whether sections of the Judicial Appointments Commission Bill 2022 were repugnant to the Constitution

Facts: President Higgins, by order given under his hand and seal on the 13th October, 2023, referred pursuant to Article 26.2.1° of the Constitution a number of provisions of the Judicial Appointments Commission Bill 2022 to the Supreme Court for a decision as to whether the said sections were repugnant to the Constitution or any provisions thereof. The sections of the Bill referred to the Court were as follows: ss. 9, 10, 39, 40(2), 42, 43, 45, 46, 47, 51, 57 and 58. In accordance with the provisions for the determination of a reference contained in Article 26.2.1° of the Constitution, and the practice and procedures hitherto adopted by the Court in such matters, counsel and solicitor were assigned by the Court to argue that the provisions of the Bill referred by the President were repugnant to the Constitution. Submissions in writing by and on behalf of the Attorney General were presented to the Court, arguing that none of those provisions were repugnant to the Constitution. The oral hearing then took place before the Court on the 15th and 16th November, 2023.

Held by Dunne J that the Bill had not been shown to be unconstitutional. The Court concluded that the Bill was not “necessitated” by the obligations of European law, for the purposes of Article 29.4.6°. Having reached that conclusion, the Court proceeded to examine the constitutionality of the Bill, and the sections thereof referred to the Court by the President under Article 26. In coming to the conclusion that the relevant sections of the Bill were not unconstitutional, the Court examined the provisions of the Bill and, in particular, ss. 47 and 51. The Court concluded that there is nothing express or implicit in s. 51 which requires the Government to nominate a person recommended by the Commission for appointment by the President; it has a choice to advise the President in accordance with the recommendation of the Commission. The Court held that even where only one person is recommended, the Government is still exercising a choice as to whether or not to advise the President to appoint that person. Accordingly, the Court was satisfied that s. 51 involves the exercise of a choice by the Government as to whether or not to nominate a person or persons recommended by the Commission for appointment by the President and, if not so satisfied, the process will have to start afresh. Further, the Court was satisfied that the Oireachtas is constitutionally obliged to legislate in respect of judicial eligibility; the establishment and constitution of the courts by legislation is provided for in Articles 34 and 36. In those circumstances, the Court concluded that the Oireachtas was entitled by law to regulate the circumstances in which the Article 13.9 advice may be tendered by the Government to the President. The Court also considered a number of other issues, including challenges to the Bill on the grounds of equality, privacy, and questions as to the interpretation of merit, amongst others. The Court rejected the arguments advanced regarding the constitutionality of the Bill on those issues.

Dunne J upheld the constitutionality of the Bill.

Constitutionality of Bill upheld.

DECISION of the Court pursuant to Article 26.2.1° of the Constitution delivered by Ms. Justice Elizabeth Dunne on the 8th day of December 2023

Part I — Introduction

1 . This is the decision of the Court on the reference to it by the President of certain sections of the Judicial Appointments Commission Bill 2022 referred pursuant to Article 26.2.1° of the Constitution.

The Reference

2 . By order given under his hand and seal on the 13 ^th October, 2023 His Excellency President Michael D. Higgins referred a number of provisions of the Bill to the Court for a decision as to whether the said sections were repugnant to the Constitution or any provisions thereof. The sections of the Bill referred to the Court are as follows ss. 9, 10, 39, 40(2), 42, 43, 45, 46, 47, 51, 57 and 58.

Proceedings on the Reference

3 . In accordance with the provisions for the determination of a reference contained in Article 26.2.1° of the Constitution, and the practice and procedures hitherto adopted by this Court in such matters, counsel and solicitor were assigned by the Court to argue that the provisions of the Bill referred by the President were repugnant to the Constitution. Submissions in writing by and on behalf of the Attorney General were presented to the Court, arguing that none of these provisions were repugnant to the Constitution. The oral hearing then took place before the Court on the 15 ^th and 16 ^th November, 2023.

4 . It should be borne in mind that the hearing and consideration of a reference pursuant to Article 26 of the Constitution is somewhat unusual. Article 26.2.1° provides as follows:

“The Supreme Court shall consider every question referred to it by the President under this Article for a decision, and, having heard arguments by or on behalf of the Attorney General and by counsel assigned by the Court, shall pronounce on such question in open court as soon as may be, and in any case not later than sixty days after the date of such reference.”

5 . It will be observed that in the first instance, Article 26.2.1° sets out who shall be heard in the course of such a hearing, namely, the Attorney General and/or counsel on his or her behalf and counsel assigned by the Court. Secondly, there is a fixed time frame for the hearing of the arguments and the giving of the decision, that is, not later than sixty days after the making of the reference. Thirdly, it should be noted that the Court is asked to deal only with the questions referred by the President. In previous references, this has involved on occasion the whole of a Bill being referred and on occasion, as in this case, specific sections of the Bill being raised to determine their potential repugnancy to the Constitution. It is important to bear in mind that the Court is being asked about a specific Bill and the questions raised in that regard and nothing else. There is therefore an inbuilt limit on the issues that can come before the Court on such a reference. A hearing on a reference is unlike any other form of proceedings in that there is no evidence and consequently no factual matrix underpinning the arguments. It is, in that sense, a sui generis form of procedure to which particular considerations apply.

6 . Finally, it is notable that Article 26.2.2° provides that the decision of the majority shall be the decision of the Court and no other opinion, whether assenting or dissenting, shall be pronounced. There is no scope for individual voices on individual issues to be expressed. The Court speaks with one voice. Having regard to all these features of the process, the Court considers that it would not be appropriate to attempt to give direction on broader issues of law beyond those required to resolve the question as to whether the referred sections are consistent with the provisions of the Constitution.

7 . As a separate consideration, the analysis of the Bill must proceed on the basis of the presumption of constitutionality. This Court has consistently held that the presumption of constitutionality applies with full force to a Bill referred by the President under Article 26 of the Constitution: In Re Article 26 of the Constitution and the Offences Against the State (Amendment) Bill 1940 [1940] 1 IR 470, 478; In Re Article 26 and The Criminal Law (Jurisdiction) Bill 1975 [1977] 1 IR 129, 144; In Re Article 26 and the Emergency Powers Bill 1976 [1977] 1 IR 159, 174; In Re Article 26 and the Electoral (Amendment) Bill 1983 [1984] IR 268, 273; In Re Article 26 and The Adoption (No. 2) Bill 1987 [1989] 1 IR 656, 660–661; In Re Article 26 and the Matrimonial Home Bill 1993 [1994] 1 IR 305, 315–316; In Re Article 26 and the Regulation of Information (Services out-side the State for Termination of Pregnancies) Bill, 1995 [1995] IESC 9, [1995] 1 IR 1, 51; In Re Article 26 and the Employment Equality Bill 1996 [1997] IESC 6, [1997] 2 IR 321, 334–335; In Re Article 26 and the Planning and Development Bill 1999 [2000] IESC 20, [2000] 2 IR 321, 346; In Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19, [2000] 2 IR 360, 368–370 and In Re Article 26 and the Health (Amendment) (No. 2) Bill 2004 [2005] IESC 7, [2005] 1 IR 105, 161..

8 . In Matrimonial Home Bill 1993 and Illegal Immigrants (Trafficking) Bill 1999, the Court was expressly invited to depart from its previous decisions on this issue but declined to do so.

9 . It follows that, as the Court explained in Re Article 26 and The Adoption (No. 2) Bill 1987 [1989] 1 IR 656, at 661:

“ (1) … it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justice, and

(2) That as between two or more reasonable constructions of the terms of the bill the construction that is in accordance with the provisions of the Constitution would prevail over any construction that is not in accordance with such provisions.”

10 . The presumption of constitutionality also means that “ where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to...