David Stanton (Cork East, Fine Gael) | Oireachtas source

I thank Senators for their welcome. I thank Senators Boyhan, McDowell and Craughwell for tabling the motion and raising this matter. I am here on behalf of the Tánaiste and Minister for Justice and Equality who, unfortunately, cannot be here today. She sends her apologies. I acknowledge that the motion raises a very important and significant issue. I have listened carefully to Senators and congratulate them on the issues they have raised and the quality of the debate so far. I am happy to note that the Government has decided to accept the motion as proposed and welcomes the opportunity it provides to reflect on core issues in terms of the proper functioning of our judicial system.

The motion calls on the Government to legislate for the establishment of a judicial council and to commit to the early publication of a Bill to provide for that establishment. As indicated in the current legislative programme, a judicial council Bill is among those Bills which are a priority for publication this session.To be clear, that is before the next session starts in January. This session will end when the Dáil and Seanad rise in December. There is intensive work taking place to ensure that the timetable will be adhered to.

As colleagues have said, the value of an independent Judiciary cannot be disputed. It is fundamental to the working of our democracy and essential in terms of upholding the rule of law upon which all citizens rely, whether in the private family zone, in commercial relationships, in protecting against criminality or in vindicating rights where the State itself is often the opposing party.

Senators will be aware that, as matters now stand, Article 35.4.1° of the Constitution provides that a judge of the Supreme Court 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 or her removal. This constitutional process has been extended by statute to the question of removal and dismissal of Circuit Court and District Court judges. Otherwise, with the exception of statutory provisions dealing with investigating and reprimanding judges of the District Court, there is no means of investigating or dealing with allegations which are not sufficiently serious to merit the invocation of the constitutional provisions.

Both this Government and previous Governments have been conscious of the fact that there is a need for an alternative structure to be put in place to deal with allegations of that nature, and the development of such a structure is a key driver behind the judicial council Bill. Any legislative proposals must be mindful of Article 35.2 of Bunreacht na hÉireann which, as acknowledged in the motion, provides that judges shall be independent in the exercise of their functions and subject only to the Constitution and the law. The principle of independence derives further strength from international best practice. I need only reference Article 10 of the Universal Declaration of Human Rights which proclaims the entitlement to a fair and public hearing by an independent and impartial tribunal, and Articles 6 and 14 of the European Convention on Human Rights and the International Covenant on Civil and Political Rights, respectively, which also affirm the values of judicial independence and impartiality.

It is well known that the judicial council Bill has had a rather long gestation period. The first key milestone was in 1999 when the Working Group on a Courts Commission reported to the then Chief Justice on the question of judicial conduct and ethics. That was against the background of the Sheedy affair, as has been referenced here, the background to which need not be revisited on this occasion. Subsequently, in December 2000, the report which is known colloquially as the Keane report, was published. As Members are aware, it found that the existing structures for dealing with concerns about judicial misconduct were inadequate as there was no mechanism in being which would allow for the investigation of instances of judicial misconduct which were not so serious as to bring the constitutional sanction into play. The report contained reasonably detailed proposals for legislation which were subsequently fleshed out in the form of a draft Bill prepared by Mrs. Justice Denham, who is now Chief Justice.

While that activity was happening on the domestic front, there was also activity taking place at an international level. In 2000 the United Nations Centre for Crime Prevention invited a group of chief justices from common law jurisdictions, known as the Judicial Integrity Group, to address the loss, in many countries, of confidence in judicial systems. The Judicial Integrity Group recognised that the principle of accountability demanded that the national judiciary should assume an active role in strengthening judicial integrity by effecting such systematic reforms as are within the judiciary’s competence and capacity.

The group also recognised the need for a universally acceptable statement of judicial standards which, consistent with the principle of judicial independence, would be capable of being respected and ultimately enforced at national level without the intervention of either the executive or legislative branches of government.

Following extensive consultations with other common and civil law jurisdictions, the Bangalore Principles of Judicial Conduct emerged. The principles recognise fundamentals which are widely accepted in regional human rights instruments and in many countries, whether enshrined in domestic constitutions, in statutory provisions or flowing from the common law. The core values which they reflect include independence, impartiality and integrity. Propriety, equality, competence and diligence are also acknowledged. The Bangalore Principles remind us of the need to ensure public confidence in the judicial system and in the moral authority and integrity of that system. They aim to ensure that judges, both individually and collectively, respect and honour judicial office as a public trust, and strive to enhance and maintain confidence in the system which they operate. They provide guidance to judges and to legislators. They also offer a framework for regulating judicial conduct.

It is generally accepted, in relation to the regulation of judicial conduct, that such regulation must be undertaken by a body which consists in the main of members of the Judiciary. There are two reasons for that. First, regulation of this nature will ensure that independence is maintained. Second, it recognises that the primary responsibility for the promotion and maintenance of high standards of judicial conduct lies with the Judiciary itself.

As I stated earlier, successive Governments have held the view that a structure needs to be put in place to deal with allegations of judicial misconduct and to facilitate the establishment of a platform for the promotion of excellence and high standards of conduct by judges. However, despite the best efforts of many who have collaborated on this project over the years, it has not yet proved possible to publish a judicial council Bill. That is not because of any conspiracy or hidden agenda. Rather, I will echo Harold Macmillan in saying "It’s events". Drafting of the Bill has had, in the past, to give way to other pressing priorities. Some of those arose from our troika commitments, and some concerned important social and societal issues such as the establishment of the Court of Appeal, the enactment of the Children and Family Relationship Act 2015 and last year’s marriage referendum. However, every effort is now being made to bring the drafting of the Bill to a timely conclusion to ensure the Bill is published this term, before the next session starts.

I will now turn to specific elements in the motion before us. I note that its proposers have called on the Government to provide for effective remedies for complaints about judicial misconduct which will include lay participation in the investigation of those complaints. In that regard the current draft of the Bill provides for the establishment of a judicial council and board which will promote excellence and high standards of conduct by judges. It also provides a means of investigating allegations of judicial misconduct and, in this context, envisages the establishment of a judicial conduct committee with lay representation. The motion also calls on the Government to provide ways to support and improve the operation of the Judiciary by providing for judicial studies and support committees. It is intended that the Bill will make provision for such committees in order to facilitate the ongoing support and education of judges in a structured and focused manner.

It may be useful at this stage to outline briefly the Bill’s main provisions, as currently envisaged, with the health warning that the provisions may be further developed during the ongoing drafting process. Central to the Bill’s provisions is the establishment of a judicial council of all serving members of the Judiciary and of a board which will exercise, on behalf of the council, the functions conferred upon it by the Bill. Those functions are intended to include: the maintenance and promotion of excellence in the exercise by judges of their judicial functions; high standards of conduct among judges; the efficient and effective use of judicial resources; continuing education among judges; respect for the independence of the Judiciary; and public confidence in the Judiciary.

In the area of judicial conduct, the Bill will define "judicial misconduct" and will establish a judicial conduct committee comprising both judges and lay members. The committee will be independent in the performance of its functions. Those functions will include the consideration and investigation of complaints, with the possibility to resolve a complaint by informal means. Additional functions will include the preparation and submission to the board of the council of draft guidelines concerning judicial conduct and ethics, and the specification and publication of the procedures to be followed in investigating a complaint, including the publication of guidelines for resolving a complaint by informal means.

Formal investigations will be conducted by a panel of inquiry. Such a panel will have the power to make various recommendations to the judicial conduct committee, which may accept or reject them as appropriate. Recommendations which could be made include the issue of advice to the judge concerned, recommending a course of action the judge should follow, for example, that the judge should attend a specified course, the issue of a reprimand to the judge concerned, the issue of a recommendation to the president of the court of which the judge is a member, and a recommendation for procedural or organisational change.

In bringing my contribution to a close, I wish to draw the attention of Senators to the provision in the recent budget of more than €30 million in additional funding for the courts. The increased funding brings the total gross allocation to €140 million next year. Included in the enhanced provision is capital funding of approximately €23 million. Provision is also made for expenditure of €4.5 million for information and communications technology in courthouses and to upgrade and enhance ICT functionality in the courts. The additional funding will also boost staffing across the Courts Service, in areas such as probate, wards of court and change management as well as in provincial court offices, thus driving reform and alleviating delays in front-line services.

In conclusion, I assure the House that the Government is mindful of the need to introduce legislation which has regard to the requirements of a modern Judiciary in a fully functioning democratic society. As already indicated, publication of the judicial council Bill is a priority for Government and hopefully the Bill will be debated before this House in the near future. For now, I look forward to hearing the further contributions of Senators on this important matter.