Ireland

In Ireland, the current system of judicial appointments leaves room for governmental abuse of its discretion in appointing judges. At the moment, the Judicial Appointments Advisory Board (JAAB), chaired by the chief justice, receives and comments on applications for judicial office from outside the judiciary, but leaves appointments to the political discretion of the government. Promotions of existing judges are outside the JAAB’s competence.

A reform has been under way to limit the risks of governmental abuse of discretionary powers and politicisation of the judiciary. The proposal, presented first in 2020, envisages replacing the Judicial Appointments Advisory Board with a nine-member Judicial Appointments Commission. Under this draft law, the Commission would accept applications from not only the first-time appointees (like its predecessor, the JAAB), but also serving judges that seek promotion to higher courts. Judges would be appointed from a shortlist of three drawn up by the Commission (or five names for two vacancies and seven names for three). The government would only consider candidates recommended by the Commission.

Irish civil society organisations (CSOs) reported that the proposal of a separate process for appointing court presidents with a heavy government involvement has been dropped, following their negative feedback. This means these high-level positions will be filled in the same way as those of ordinary judges. CSOs also welcomed the requirement for all candidates to undergo judicial training or continuous professional development.

Concerns remain, however, regarding the composition of the Commission. According to the proposed law, the Commission will be chaired by the chief justice and have three judge members and four lay (non-judge, non-lawyer) members (hence, an equal number of lay and judge members – overall eight), as well as the attorney general, in a non-voting capacity. This new bill is better than its predecessor, from 2017, which envisaged a lay majority and chair, in clear contradiction with the European standards, which call for a judicial majority. In its 2022 Annual Rule of Law Report, the Commission urged Ireland to ensure that the composition of the Judicial Appointments Commission is in line with the European standards and, hence, has a majority of judge members, elected by their peers. The Council of Europe’s Group of States against Corruption (GRECO) also highlighted the desirability of a judicial majority in the Commission. The chief justice said that “the significant dilution” of the judicial component, coupled with the complete exclusion of practicing lawyers, would potentially weaken the process. Observers, including CSOs, have expressed concerns due to the presence of the attorney general, even if in a non-voting capacity, due to the influence the latter would have. Since these concerns have not been addressed, the European Commission marked Ireland’s performance as “no progress”, and reiterated the recommendation.

Some academics do not view the lack of a judicial majority as particularly problematic in the Irish context, stressing that judicial appointment bodies in common law countries rarely have a judicial majority, and even 50 per cent representation under the proposed law would be higher compared to similar appointment bodies in other common law countries. It is also worth keeping in mind that judges typically enjoy considerable influence on appointments, even if they are in the minority, mainly because they know the system, likely candidates, and the law much better than the lay members of such bodies.

Another concern for GRECO was that, under the proposed law, the government would still receive the list of candidates without any ranking, which could lead to politicised decisions. GRECO recommended a targeted shortlist of only the very best candidates ranked, in order of preference.

CSOs highlighted a number of other suggestions that were not picked up and integrated. The Irish Council for Civil Liberties (ICCL) recommended improving the procedure by not only requiring that the Judicial Appointments Commission rank the names sent to the minister in order of preference (as in GRECO’s recommendation), but also requiring the minister to give reasons where there is a divergence from the recommendation given by the Commission. This recommendation was not accepted, however. The ICCL also recommended that judges sitting on the commission be selected by their peers, to avoid a small number of senior judges having disproportionate influence.

On 13 October 2023, President Michael D Higgins decided to refer the proposed legislation on judicial appointments to the Supreme Court for a decision on its constitutionality. A key provision in the bill stipulates that the new commission will recommend three candidates for a judicial vacancy and the Government can only select from the list. This particular aspect has raised concerns among critics who argue that the legislation limits the government’s discretion in nominating judges. Under the Constitution, the Supreme Court has 60 days to hear arguments regarding the constitutionality of the bill and give its decision.

Academics offering insights on the Court’s decision assert that restricting the government’s freedom of choice does not render the bill unconstitutional and that the government’s inability to choose a candidate not on the commission’s list serves to protect the reputation and perceived neutrality of the judiciary. Academics point out that the obligation to choose the candidate from the list still raises concerns, as the government may be compelled to choose a candidate it deems unfit for office. However, they insist that the bill does not explicitly require the government to choose from the proposed candidates – it could simply decline candidates and request the Commission to re-advertise the position. This interpretation, they argue, make the restriction on the government’s power to choose judges constitutionally permissible control.

Aside from political involvement in judicial appointments, the European Commission expressed concerns about the parliament’s being in charge of deciding to remove judges from office. This, according to the Commission, could give rise to politicisation of the process, even if it has not happened in practice before.

CSOs have reported that the civil legal aid system is very restrictive, and requires that applicants have a disposable income of less than EUR 18,000 per year. The government has established an Independent Group to review the current scheme’s flexibility and responsiveness to the needs of beneficiaries of the civil legal aid, as well as the current operation of the scheme and how it relates to other forms of public legal assistance.

High costs of litigation continue to pose barriers as well. According to CSOs, accessibility can be a concern, for example, for prisoners who wish to challenge conditions in prison, or those experiencing discrimination due to mental health issues.

In its 2022 report, the Commission urged Ireland to “continue actions aimed at reducing litigation costs to ensure effective access to justice, taking into account European standards on disproportionate costs of litigation and their impact on access to courts”. The Commission concluded in its 2023 Report that Ireland had made no progress in this area, and reiterated the recommendation.

According to the 2023 EU Justice Scoreboard, Ireland remains the EU Member State with the lowest number of judges per inhabitant. A Judicial Planning Working Group recommended increasing the number of judges by 44 by the end of 2024. The Group’s report also recommended ensuring that adequate resources, in terms of support staff, are provided to the Court Service. Following the publication of the report, the government announced the appointment of 24 new judges in 2023 (representing a 14 per cent increase in the number of judges in the Irish legal system), with the appointment of 20 additional new judges to follow the implementation of further reforms.

Data from the Irish Courts Service indicates an increase in the average length of proceedings for different categories of cases for most courts for 2021, including the Supreme Court, where the average length of proceedings has increased significantly, and remains very high.

The European Court of Human Rights (ECtHR) has found Ireland in violation of Articles 6 (1) and 13 of the European Convention on Human Rights (first in 2010, in the McFarlane judgement, and most recently in the Keaney judgment, adopted in 2020), due to (1) the excessive length of criminal and civil proceedings, and (2) the lack of an effective remedy (the possibility of gaining compensation) in the case of major delays in proceedings. Hence, the problem is substantive as well as procedural. In addressing the substantive problem of slow proceedings in its September 2022 decision, the Committee of Ministers, the body in charge of supervising the implementation of ECtHR judgments, acknowledged Ireland’s efforts, including measures taken to improve the waiting times, but stressed that delays still continue. As regards the procedural dimension, the Committee reiterated its profound concern that the authorities had still not established an effective remedy for the excessive length of proceedings, despite the passage of almost 19 years since the Court first established the violation of Article 13 of the Convention. It acknowledged some efforts at introducing a remedy through legislative reform, and asked the authorities to complete it without further delay.

In order to fulfil long-standing obligations, in February 2023 the government tabled a draft law establishing a compensation scheme for cases of court proceedings of excessive length. The draft law provides for the establishment of an independent process to assess claims for breaches of the right to the conclusion of proceedings within a reasonable time and, where appropriate, an award of compensation.