Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister of State, Deputy David Stanton, to the House. It was a pleasure to work with him on the Joint Committee on Justice, Equality and Defence in the lifetime of the last Seanad and Dáil. I look forward to working with him on many of the issues the joint committee worked so hard on over those few years. It is also worth paying tribute to the proposer and seconder of the motion, Senators Boyhan and McDowell. It is a motion which deserves wide support, which I understand it has received on a cross-party basis.

The principle of the establishment of a judicial council has been with us for a long time. Senator Boyhan kindly gave me a copy just before the debate of the Law Society Gazettearticle from October 2016 with the headline "Chief Justice Slams Government over Judicial Council Delay". I said to Senator Boyhan that I had the full text of the Chief Justice's speech from 26 September 2016. While the position is perhaps somewhat overstated in the headline, she was certainly very critical of the 20-year delay in enacting legislation on a judicial council. This proposal has been around for a long time and there is widespread support for it. As we know from the Chief Justice and others, the Judiciary has been to the fore in calling for this legislation.

Before turning to the substance of the motion and legislation, I note that we debated the issue of judicial appointments this day last week. In that context, I spoke about the need for diversity in the Judiciary. It is something I have worked on for a long time. In 2003, we published a report in Trinity College on gender injustice which looked at gender discrimination in the legal profession and the lack of women among senior judges. That is something that has changed since the report was published in 2003. We have seen a much better representation of women among the Judiciary, albeit there are still low numbers of women represented at senior ranks in the Law Library among senior counsel and, indeed, at senior ranks in the solicitors' profession also.

However, the great improvements made in the numbers of women appointed to the Judiciary must be acknowledged. It is very welcome because greater diversity is to be welcomed in general. In that context, I put down a motion in the lifetime of the last Government seeking clarity on whether maternity leave would extend to serving judges, an issue which the then-Minister acknowledged had not actually come to light previously. It had simply not arisen given the particular demographic make-up of the Judiciary until then. It is now clearly an issue and it is very welcome to see that we are moving on it. I got a good response from the Minister, Deputy Frances Fitzgerald, and I will certainly be renewing my work on that issue.

Turning to the substance of this motion, the proposal for a judicial council has been with us for 20 years as the Chief Justice and others have explained. It was mooted in the 1996 report of the Constitutional Review Group which recommended that judges themselves should regulate judicial conduct within a legislative framework embracing all courts. Part of the difficulty has been the different approach taken between judges of the Superior Courts and judges of the District Court. In accordance with Article 35 of the Constitution, there is a distinction between such judges. Looking at the language of Article 35, we see the particular problem as identified by Hogan, Whyte and others which is the lack of a definition of "incapacity" or "stated misbehaviour". Article 35.4.1^oprovides that a judge of the Supreme Court, Court of Appeal or the High Court shall not be removed from office except for stated misbehaviour or incapacity and then only upon resolutions passed by Dáil Éireann and Seanad Éireann calling for his removal. It does say "his". Part of the difficulty is how one defines "incapacity" and, in particular, "stated misbehaviour".

As we know, there have been a number of instances in which there have been issues around the potential impeachment of judges, notably the Sheedy affair in 1999 and the Curtin affair. In those instances, three judges in total resigned before any action was taken or could have been taken under the Constitution. The Chief Justice and others have identified that part of the difficulty has always been the extremely difficult burden of moving an impeachment motion. It is a very onerous requirement. If we look at examples from elsewhere, as the Oireachtas Library and Research Service did in its spotlight paper of 2014, there are other jurisdictions in which different procedures are in place. Mixed systems are in place where we see processes equivalent to a judicial council having been introduced. That is the sort of model we should follow. Others have commented on the international impetus for this. We see in the GRECO recommendations that a judicial council should be established and that Ireland should report on the action within 18 months of the GRECO report of November 2014. That 18-month period expired in April this year and was extended to September 2016.

The heads of the Bill have been published and others have spoken about them. There is a momentum behind this idea, including domestically. The Irish Council for Civil Liberties and other bodies have also called for the establishment of a judicial council. There is a great deal of consensus on the issue and we simply need to see movement on it now. The motion calls on the Government to legislate and to commit to the early publication of a Bill. Others have called for a timeframe. I echo those calls. We need a timeframe. The principle is clear and the consensus is evident.

I commend those who moved the motion for bringing it forward and keeping it on the political agenda. At a time when there is controversy around judicial appointments, this is an issue where there is no controversy and everyone is agreed on the need. We need simply to see the early publication of legislation.