Judicial Appointments Commission Act 2023

PART 1 Preliminary and General

1. Short title, collective citation and commencement

1. (1) This Act may be cited as the Judicial Appointments Commission Act 2023.

(2) (a) Sections 63, 64 and 65 and the Courts (Supplemental Provisions) Acts 1961 to 2021 may be cited as the Courts (Supplemental Provisions) Acts 1961 to 2023.

(b) Section 62 and the Courts of Justice Acts 1924 to 2019 may be cited together as the Courts of Justice Acts 1924 to 2023.

(3) This Act shall come into operation on such day or days as the Minister may, by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions, and for the repeal of different provisions of the enactment effected by section 6.

2. Interpretation

2. (1) In this Act—

“Act of 1961” means the Courts (Supplemental Provisions) Act 1961;

“Act of 1995” means the Courts and Court Officers Act 1995;

“Act of 2001” means the Standards in Public Office Act 2001;

“Act of 2014” means the Companies Act 2014;

“Act of 2018” means the Data Protection Act 2018;

“applicant” means a person who makes an application under section 43;

“Assembly of State Parties” means the Assembly of State Parties established under Article 112 of the Rome Statute;

“chairperson”, other than in section 23, means the chairperson of the Commission;

“Commission” has the meaning assigned to it by section 8(1);

“committee” means a committee of the Commission established under section 16;

“Committee of Ministers” means the Committee of Ministers established by Article 10(i) of the Statute of the Council of Europe done at London on the 5th day of May 1949;

“Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016^1 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation);

“Director” has the meaning assigned to it by section 36(1);

“diversity statement” means a diversity statement that stands published under section 28;

“eligible person” shall be construed in accordance with section 40;

“establishment day” shall be construed in accordance with section 7;

“European Convention on Human Rights” means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November 1950, as amended by—

(a) Protocol No.11 to the Convention for the Protection of Human Rights and Fundamental Freedoms done at Strasbourg on 11 May 1994,

(b) Protocol No.14 to the Convention for the Protection of Human Rights and Fundamental Freedoms done at Strasbourg on 13 May 2004, and

(c) Protocol No.15 to the Convention for the Protection of Human Rights and Fundamental Freedoms done at Strasbourg on 24 June 2013;

“European Court of Human Rights” means the Court established under Article 19 of the European Convention on Human Rights;

“International Criminal Court” means the Court established under Article 1 of the Rome Statute;

“judicial office” means the office of—

(a) Chief Justice,

(b) the President of the Court of Appeal, the President of the High Court, the President of the Circuit Court or the President of the District Court,

(c) an ordinary judge of the Supreme Court, an ordinary judge of the Court of Appeal, an ordinary judge of the High Court or an ordinary judge of the Circuit Court,

(d) a specialist judge of the Circuit Court,

(e) a judge of the District Court,

(f) a judge of the Court of Justice,

(g) an Advocate-General of the Court of Justice,

(h) a judge of the General Court,

(i) a judge of the European Court of Human Rights, or

(j) a judge of the International Criminal Court;

“judicial office in the State” means the office of—

(a) Chief Justice,

(b) the President of the Court of Appeal, the President of the High Court, the President of the Circuit Court or the President of the District Court,

(c) an ordinary judge of the Supreme Court, an ordinary judge of the Court of Appeal, an ordinary judge of the High Court or an ordinary judge of the Circuit Court,

(d) a specialist judge of the Circuit Court, or

(e) a judge of the District Court;

“judicial office outside the State” means the office of—

(a) a judge of the Court of Justice,

(b) an Advocate-General of the Court of Justice,

(c) a judge of the General Court,

(d) a judge of the European Court of Human Rights, or

(e) a judge of the International Criminal Court;

“judicial selection statement” has the meaning assigned to it by section 57(1);

“law officer” means a person employed in the service of the State where a condition for the employment of the person was that he or she was a practising barrister or a practising solicitor;

“lay member” means a lay person who is a member of the Commission;

“lay person” means a person who—

(a) does not hold, and has never held, judicial office,

(b) is not and never has been the Attorney General, the Director of Public Prosecutions, the Chief State Solicitor or a law officer,

(c) is not, and in the relevant period specified in subsection (2) for the purposes of this paragraph, was not, a practising barrister or a practising solicitor, and

(d) does not hold or occupy, and has never held or occupied, an office or position in a place outside the State equivalent to an office or position referred to in paragraph (a) or (b) and is not, and in the relevant period specified in subsection (2) for the purposes of this paragraph, was not a solicitor or barrister practising in a jurisdiction outside the State in accordance with the law of that jurisdiction;

“Minister” means the Minister for Justice;

“Office” has the meaning assigned to it by section 35(1);

“personal data” has the same meaning as it has in the Data Protection Regulation;

“practising barrister” has the same meaning as it has in the Legal Services Regulation Act 2015;

“practising solicitor” has the same meaning as it has in the Legal Services Regulation Act 2015;

“processing” has the same meaning as it has in the Data Protection Regulation;

“requisite knowledge, skills and attributes” means the knowledge, skills, competencies, personal attributes and characteristics that a person must possess in order that he or she may be considered to be suitable for recommendation for appointment, or for nomination for appointment or election, to judicial office;

“Rome Statute” means the Rome Statute of the International Criminal Court done at Rome on 17 July 1998;

“special categories of personal data” has the same meaning as it has in the Act of 2018;

“statement of requisite knowledge, skills and attributes” means the statement of requisite knowledge, skills and attributes which stands adopted by the Commission under section 57;

““statement of selection procedures” means the statement of selection procedures which stands adopted by the Commission under section 57;

“TFEU” means the Treaty on the Functioning of the European Union;

“vetting disclosure” has the same meaning as it has in the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.

(2) The relevant period for the purposes of paragraphs (c) and (d) of the definition of “lay person” in subsection (1) is the period of 5 years immediately preceding the latest date on which the person may apply to participate in a selection process held by the Public Appointments Service under section 13(1).

3. References to recommendation for appointment and recommendation for nomination for appointment or election

3. In this Act—

(a) a reference to recommendation for appointment is a reference to recommendation for appointment to a judicial office in the State, and

(b) a reference to recommendation for nomination for appointment or election is a reference to recommendation for nomination for appointment or election to a judicial office outside the State.

4. Expenses

4. The expenses incurred by the Minister and the Minister for Foreign Affairs in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of moneys provided by the Oireachtas.

5. Service of documents

5. (1) A notice or other document that is required to be served on or given to a person under this Act shall be addressed to the person concerned by name and may be so served on or given to the person in one of the following ways:

(a) by delivering it in person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(d) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the notice or document concerned of his or her consent to the notice or document (or notices or documents of a class to which the notice or document belongs) being served on, or given to, him or her in that manner.

(2) For the purposes of this section, a company formed and registered under the Act of 2014 or an existing company within the meaning of that Act shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

6. Repeals

6. Part IV, other than section 19A, of the Act of 1995 is repealed.

PART 2 Judicial Appointments Commission

7. Establishment day

7. The Minister shall, by order, appoint a day to be the establishment day for the purposes of this Act.

8. Establishment of Judicial Appointments Commission

8. (1) There shall stand established on the establishment day a body to be known as An Coimisiún um Cheapacháin Bhreithiúnacha or, in the English language, the Judicial Appointments Commission (in this Act referred to as the “Commission”).

(2) The Schedule shall apply to the Commission.

9. Membership of Commission

9. (1) The Commission shall consist of 9 members, subject to section 45, being—

(a) the Chief Justice,

(b) subject to subsection (2), the President of the Court of Appeal,

(c) 2 members of the Judicial Council nominated and appointed in accordance with section 12,

(d) subject to subsection (3), the Attorney General, and

(e) 4 lay members appointed under section 13.

(2) Where the Commission is performing the function of selecting and recommending persons for appointment to judicial office in the High Court, Circuit Court or District Court, the President of the Court concerned, and not the President of the Court of Appeal, shall be the member for the purpose of performance of that function.

(3) The Attorney General shall not, as a member of the Commission, have a right to vote on any matter coming before the Commission for a vote.

(4) The Chief Justice shall be the chairperson of the Commission.

10. Functions of Commission

10. (1) The general functions of the Commission shall be—

(a) to select and recommend persons—

(i) to the Minister for appointment and nomination for appointment to judicial office, and

(ii) to the Minister for Foreign Affairs in so far as a nomination for election to the European Court of Human Rights and the International Criminal Court is concerned,

and

(b) for the purposes of paragraph (a), to adopt a statement of selection procedures and a statement of requisite knowledge, skills and attributes for inclusion in a judicial selection statement.

(2) The Commission shall be independent in the performance of its functions.

(3) The Commission shall have all such powers as are necessary or expedient for the performance of its functions.

11. Power to appoint consultants and advisers and enter into contracts

11. (1) The Commission may, as it considers necessary to assist it in the performance of its functions—

(a) enter into contracts or arrangements with any person, and

(b) with the consent of the Minister, appoint consultants or advisers.

(2) Subject to section 57(6), a contract or arrangement with a person, or appointment of a consultant or adviser, referred to in subsection (1) shall not enable the person, consultant or advisor to do any thing for the purpose of the performance by the Commission of the function of selection and recommendation of persons for appointment or for nomination for appointment or election to judicial office.

(3) The Commission may, out of the resources at its disposal, pay to a person, consultant or adviser referred to in subsection (1) such fees (if any) or allowances for expenses (if any) as the Commission may determine.

(4) The appointment of a consultant or adviser shall be for such period and, subject to subsection (3), be on such terms and conditions, as the Commission considers appropriate.

12. Nomination of members of Judicial Council and appointment as members of Commission

12. (1) Subject to subsections (2) and (3), the Judicial Council shall nominate 2 members of the Council to be members of the Commission.

(2) The 2 nominees shall comprise one male and one female nominee—

(a) one of whom shall be a judge of the Supreme Court, of the Court of Appeal or of the High Court and one of whom shall be a judge of the Circuit Court or the District Court, and

(b) one of whom shall be a judge who, at the time of his or her appointment as a judge, was qualified for such appointment by virtue of having been a practising solicitor and one of whom shall be a judge who, at the time of his or her appointment as a judge, was qualified for such appointment by virtue of having been a practising barrister.

(3) The Judicial Council shall not nominate the President of the High Court, the President of the Circuit Court or the President of the District Court to be a member of the Commission.

(4) For the purposes of subsection (2)(b), a reference to having been qualified for such appointment by virtue of having been a practising solicitor or practising barrister shall, in relation to a judge who at the time of his or her appointment as a judge was qualified for such appointment by virtue of section 45A of the Act of 1961, be taken to be a reference to having been qualified for such appointment by virtue of having been, as part of that qualification, a practising barrister or practising solicitor, as the case may be, in accordance with that section.

(5) The Minister shall appoint each person nominated under subsection (1) to be a member of the Commission.

(6) Where a judge, appointed under this section, ceases to be a member of the Commission in accordance with section 18(4), the Judicial Council shall nominate a judge—

(a) of the same gender as the judge who ceases to be a member,

(b) of the Supreme Court, the Court of Appeal or the High Court if the judge who ceases to be a member was a judge of one of those courts, or of the Circuit Court or District Court if the judge who ceases to be a member was a judge of one of those courts, and

(c) who was qualified for appointment as a judge, as referred to in subsection (2)(b), on the same basis as the judge who is being replaced.

(7) The Minister shall appoint the person nominated under subsection (6) to be a member of the Commission and that person shall hold office for that period of the term of office of the member, who occasioned that vacancy, that remains unexpired at the date of such appointment.

13. Recommendation for appointment and appointment of lay members

13. (1) The Minister shall, from time to time as required, request the Public Appointments Service to undertake a selection process for the purpose of identifying and recommending to the Minister persons whom it is satisfied are suitable for appointment as lay members.

(2) Upon receipt of a request under subsection (1), the Public Appointments Service shall undertake a selection process and, subject to subsection (3), recommend to the Minister, from among the persons who participated in the process, those persons whom it is satisfied are suitable for appointment as lay members.

(3) The Minister shall agree with the Public Appointments Service the selection criteria and procedures applicable to a selection process under this section having regard to—

(a) the objective that the lay members will, having regard to the functions of the Commission, amongst them possess knowledge of, and experience, qualifications, training or expertise in, the matters specified in subsection (4),

(b) the need, in so far as possible, to ensure that recommendations made under subsection (2) should comprise an equal number of women and men and reflect the diversity of the population of the State as a whole, and

(c) the need to ensure that a person recommended to the Minister under subsection (2) is a fit and proper person to be a lay member.

(4) The matters referred to in subsection (3) are matters connected with—

(a) business, finance or public service,

(b) corporate governance and human resources (including making, or recommending persons for, senior appointments),

(c) the courts and the operation of the justice system both in the State and in places outside the State, and

(d) the importance of protection of human rights and equality.

(5) Subject to subsection (6), the Minister shall appoint lay members from among the persons recommended by the Public Appointments Service under subsection (2).

(6) The Minister shall not make an appointment under subsection (5) unless a resolution approving the appointment has been passed by each House of the Oireachtas.

(7) The Minister may, prior to the establishment day, designate a person or persons, the subject of a recommendation under subsection (2), to be the first lay member or members of the Commission.

(8) If, immediately before the establishment day, a person stands designated to be a first lay member under subsection (7), the person shall be taken to have been appointed as a lay member on that day.