Serving judges in the superior courts will not have to apply for promotion, following a significant concession by the Government to opponents of the Judicial Appointments Commission Bill.
Taking Senators by surprise, Minister for Justice Charlie Flanagan accepted an amendment tabled by Senator Michael McDowell during a Committee Stage debate. The amendment was accepted without debate.
The Bill had proposed that judges of the superior courts who wished to be appointed to fill vacancies in the High Court, Court of Appeal or Supreme Court should have to apply through the Judicial Appointments Commission, as non-judges should.
However, Mr McDowell’s amendment proposed that the commission should have “no further function” once the Government decides to advise the president to appoint any serving judge of the higher courts (the High Court, the Court of Appeal and the Supreme Court) to a vacancy.
A small number of Senators, headed by Mr McDowell, have led a revolt against the Bill, which has been championed by Minister for Transport Shane Ross, so far holding 92 hours of Committee Stage – the longest filibuster for decades.
Besides objecting to the superior courts’ proposal, Mr McDowell and a number of other Senators have also objected to the idea that the commission should have a majority of non-legal members.
Mr Ross has long wanted a lay-majority commission, arguing that it would reduce the sway of politicians and the judiciary in deciding who sits on the benches.
He has complained in the past of cronyism, saying that judges have essentially been political appointees. To give effect to this, the main plank of the Bill is an independent chair and a majority of lay people.
Opposing the Bill, Mr McDowell has argued the government of the day should retain its own discretion when deciding how to balance merit and political values (conservative or liberal) in the superior courts.
Mr Flanagan did not say why the Government had changed its mind on the issue. Several Senators said the provision, if included in the Bill, could be vulnerable to challenge on constitutional grounds.
The Government has given no indication of changing the composition of the commission. The filibuster is expected to continue.
