President Michael D Higgins has decided to refer new legislation, on how judges are to be appointed, to the Supreme Court for a decision on its constitutionality.
This follows a meeting of the Council of State earlier this week, which considered the Judicial Appointments Commission Bill 2022.
The bill's provision that the new commission will recommend three candidates for a judicial vacancy and that the Government can pick only from this list has been the subject of some concern.
Critics of the bill have said the legislation limits the Government’s discretion over who it can nominate as a judge.
In his referral, the President has said special attention should be given to 12 sections of the bill.
These include provisions on the membership of the Judicial Appointments Commission, its function, qualifications and applications for appointment or nomination for appointment, the recommendation of people to the minister and the preparation of a statement of the requisite knowledge, skills and attributes for judicial office.
Under the Constitution, the Supreme Court now has 60 days to hear arguments about the constitutionality of the bill and give its decision.
This is the third time President Higgins has convened a meeting of the Council of State to discuss the referral of legislation to the Supreme Court and the first time he has made such a referral.
It is the 16th bill since 1940 to be referred to the Supreme Court for a decision on its constitutionality.
The Supreme Court judges will be in the unusual position of having to make a decision on legislation that directly affects the judiciary.
However, senior counsel Darren Lehane said it would not be unusual for Supreme Court judges to make decisions on matters affecting them and they would be bound by the oath they take on being appointed.
The decision to refer the bill to the Supreme Court has been welcomed by the Government and the Minister for Justice.
In a statement, they said the Government believed the bill is within the parameters of the Constitution.
But they believe that testing its constitutionality at the earliest possible stage is welcome and appropriate given the importance of judicial appointments.
They said the judgment of the Supreme Court will bring "welcome clarity" on the matter.
