Higgins to convene Council of State over McEntee’s Bill
JUSTICE Minister Helen McEntee faces the embarrassing prospect of having legislation under her remit potentially referred to the Supreme Court by the President.
Michael D Higgins yesterday confirmed that he will convene a meeting of the Council of State tomorrow to review the constitutionality of the Judicial Appointments Bill.
The Council of State is only convened by the President on rare occasions where he is considering whether or not a bill is constitutional.
If a President refers a Bill to the Supreme Court for consideration, no one else may subsequently challenge the legislation on constitutional grounds.
A rejection of the legislation by the Supreme Court would be another setback for the Justice Minister, who earlier this month faced criticism from Chief Justice Donal O’Donnell over the slow delivery of new judges.
If the Bill is ruled unconstitutional, it would further slow the appointment of new judges to the bench.
Several politicians with legal backgrounds have raised the prospect of the legislation being unconstitutional. Jim O’Callaghan, a Fianna Fáil TD and senior counsel, wrote to Simon Harris when he was justice minister in March, outlining his concerns. He said that section 51(1) may be ‘unconstitutional’.
Under this part of the legislation, the Cabinet may only consider nominees to judicial office who have been recommended by the Judicial Appointments Commission.
This will consist of four judges and four lay people. This takes away the power of the government to make appointments to the bench outside of those who are recommended by the panel.
At present the government usually accepts the recommendations it receives. However it has on occasion bypassed the recommendations and made its own appointments. It has this power under the Constitution. Mr
O’Callaghan said: ‘I think there is a question mark over section 51(1)... It may be an inappropriate interference of the right of government to nominate eligible candidates for judicial appointments.’
Michael McDowell, a former justice minister and current member of the Seanad, has also strongly opposed the legislation.
He told the Seanad: ‘We are saying a group of people, in which the judiciary will have a blocking vote because of the way the whole thing is structured, will have the power to exclude any member of the judiciary from inclusion on a shortlist... that is radically wrong and radically unconstitutional.’
Tomorrow will be just the third time that President Higgins has convened the Council of State to consider a piece of legislation over the course of his two terms in office. The President previously convened the council on July 19, 2013 to consider the Protection of Life During Pregnancy Bill 2013 and on 29 December 29, 2015 to consider the International Protection Bill 2015.
Since 1940, the Council of State has been convened to consider the potential referral of 28 previous Bills to the Supreme Court. The President of the day subsequently made a decision to refer 15 of those Bills to the Supreme Court.
The Council of State comprises of the Taoiseach, Taoiseach, Tánaiste, Chief Justice, president of the Court of Appeal, president of the High Court, Ceann Comhairle, Cathaoirleach of the Seanad and the Attorney General.
‘That is radically wrong’