PRESIDENT MICHAEL D HIGGINS is gathering the Council of State today to consider the constitutionality of proposed legislation that would change the appointment process for judges.

The Judicial Appointments Commission Bill has passed through the Dáil and the Seanad and is awaiting the president’s signature to officially become law.

The bill would establish a new commission to replace the existing Judicial Appointments Advisory Board. The commission would have nine members, including the chief justice as chairperson, the Attorney General, and four lay members, and it would have to nominate multiple candidates to Cabinet for each vacancy that arises.

The proposal arose from the controversy surrounding former Attorney General Seamus Woulfe and how he came to be appointed to the Supreme Court after it emerged that Cabinet had not been informed that a number of other judges had expressed interest in the position.

However, questions have been raised about whether the bill interferes with the government’s constitutional right to nominate judges for appointment and around the constitutional separation of powers between the government and the judiciary.

President Higgins is convening a meeting of the Council of State to consider whether the legislation should be referred to the Supreme Court in what is only the third time is has asked for such a meeting throughout his twelve years as president. 

The Council of State is a body provided for in the Constitution for the purpose of aiding and counselling the president. There are certain circumstances under which it must be convened, including if the president wishes to refer a piece of legislation to the Supreme Court to test its constitutionality.

It has met only a few dozen times in the history of the State.