The Supreme Court has been told that proposed new legislation governing the way judges are appointed is unconstitutional.
The court is hearing arguments about the constitutionality of the Judicial Appointments Commission Bill following a referral to the court by President Michael D Higgins last month.
Senior Counsel Eoin McCullough, who has been selected to argue against the constitutionality of the bill, told the court that the legislation interferes with the government's power to appoint judges and the independence of the judiciary.
The arguments in the case centre around part of section 51 of the bill, which says the Government shall "only" consider a person for appointment as a judge from three names recommended by the judicial appointments commission.
Mr McCullough told the court this section meant the Government must make a nomination and must select one of the three names put forward by the commission.
He said this meant the commission was taking to itself the power of nominating the candidates that may be appointed, a power that should rest with the Government.
He said there was an absolute preclusion on the Government departing from the commission recommendations and this effectively reduced the role of the Government to a rubber stamp.
He said political accountability was absent if the Oireachtas was entitled to delegate this power to a third party.
Mr McCullough told the court it may or may not be desirable that the Government should be removed from the system of appointing judges and should not be able to consider factors such as party politics.
But he said under the constitution it could not be removed from this role.
If the bill had intended that the Government could reject all three names and ask the commission to start the selection process again, that would be reflected in the legislation. But he said there was no such provision in the bill.
The court was told the concept of "merit" in relation to recommending a person for appointment as a judge was "wholly undefined" in the legislation.
Senior Counsel Catherine Donnelly said the bill also imposed an obligation on the commission to positively discriminate in favour of diversity attributes which were "amorphous" and "ill defined", without any of the necessary safeguards which also ought to be included.
She said gender or diversity could be the factor that gave preference to one candidate over another.
There would be a "de facto compulsion" on applicants for the judiciary to reveal huge amounts of information about themselves so as to bring themselves into a diversity or a gender category to potentially gain an advantage in the selection process, she said.
She added that applicants who were non-binary could find themselves having to identify as one gender or another.
She also told the court the new legislation was not necessitated by Ireland’s membership of the EU.
Ms Donnelly will conclude her arguments tomorrow.
Lawyers for the State, led by the Attorney General Rossa Fanning, will then argue that the bill does not breach the constitution.
The court has 60 days to make its decision meaning a ruling will be due by the middle of next month.
If it finds any of the sections are unconstitutional, then the entire bill will fall. If it finds the bill is constitutional, then it cannot be challenged any further.
It is 18 years since a bill was last referred to the supreme court under the provision set out in article 26 of the constitution and the first time President Higgins has referred any bill.
It is the 16th time since 1940 that a bill has been referred.
The bill and the Supreme Court hearing were discussed at a seminar organised by the Trinity College School of Law and the Trinity centre for Constitutional Governance in the University last night.
Dr Laura Cahillane, from the School of Law at University of Limerick, told the seminar she did not expect provisions in the bill on diversity and merit to cause problems even though they were among those earmarked for special attention by the President.
She praised legislators for recognising the importance of having a diverse judiciary representing different life experiences and perspectives. She said however, that the Oireachtas had missed an opportunity to set out guidelines on exactly what appointing a judge on "merit" should entail.
Dr Cahillane said she did not see the constitutional issue with these sections and expected all the attention to focus on the issue of the Government’s power to nominate judges.
Professor Oran Doyle, from Trinity College Dublin, said one reading of the controversial part of the legislation could suggest it does not breach the Constitution.
He said it could be read as suggesting that if the Government does not think the three names recommended to it by the commission, are suitable, it could simply decide not to nominate any of them and ask the commission to restart the process and recommend three new names.
He said this could be seen as a legitimate control of the Government’s executive power to advise the President about judicial appointments. He said the fact that legislation is presumed to be constitutional bolstered that view.
However, he acknowledged that the more widely held view of the section, was that the legislation obliged the Government to recommend one of the three people put forward by the commission and this, he said, would be "an unconstitutional usurpation of executive power".
