Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I am very pleased to have the opportunity to introduce this important legislation in the Seanad this afternoon. I recall that in October of last year the Government accepted a motion tabled in this House which called for the setting up of a judicial council and the publication of a Bill which would provide for it. This is important and long-awaited legislation and I look forward to hearing the comments of Senators on it. It has had a somewhat tangled history, and many hands have made a contribution to its making. However, it would be remiss of me if, at the outset of this debate, I did not single out for special appreciation the contribution made by the former Chief Justice, Mrs. Justice Susan Denham, since the start of this work. Her commitment to this project was beyond question. Her vision and energy were very much in evidence on more than one occasion in the course of the debate leading up to the introduction of the Bill this afternoon.

The primary purpose of the Bill is to provide for the setting up of a judicial council. It has long been recognised that the absence of such a judicial council in Ireland is somewhat out of step with other countries which share our value system, including those countries which have a similar legal background and tradition. Indeed, this absence has been the subject of critical comment by the Council of Europe's Group of States against Corruption, commonly referred to as GRECO. Judicial councils are generally seen as having an important role to play in safeguarding the independence of judiciaries. They also provide a vehicle for addressing matters such as further education and training, as well as matters pertaining to discipline. In keeping with this approach, the Bill affirms the independence of the proposed judicial council and provides that one of its key functions will be to promote and maintain excellence in the exercise by judges of their judicial functions. In addition, the Bill institutes a complaints regime for judges, which will address instances of misconduct which do not warrant the invocation of Article 35.4.1° of the Constitution. As Members know, that article relates to the removal of a judge from office for stated misbehaviour or for incapacity.

The Judiciary is one of the fundamental pillars of our democracy and its independence is guaranteed by our Constitution. However, the fact that it represents a separate branch of Government does not mean that it is in any way separate from the society which supports it and which it, in turn, supports. The Bill before the House has a delicate balance to maintain. That is why I look forward to hearing the views of Senators in the course of the debate this afternoon.

The Bill must respect the independence of the Judiciary, which is essential if our citizens are to have confidence in the free and impartial administration of justice in the State. However, that independence is not a privilege for the individual judge in his or her court, rather it is a protection for the individual rights and freedoms of our citizens under our laws. It follows that independence on the one hand must be balanced by accountability on the other. The fact that justice is, for the most part, administered in public is one aspect of accountability. The ability to appeal a particular judgment is another. However, the accountability gap which has existed heretofore, and which this Bill proposes to address, relates to the absence of a mechanism for dealing with complaints about judicial misconduct which would not require an intervention under our Constitution.

Before dealing with the content of the Bill, I wish to raise two matters which have recently been in the public eye - the need for the so-called secrecy provisions in the Bill to be removed, and the need to establish a public register of pecuniary interest for members of the Judiciary. Regarding the secrecy provisions, I have had the opportunity to review the Bill since becoming Minister for Justice and Equality. It is fair to say that some of the provisions intended to protect the confidentiality of the complaints process do not sit well with current understandings of accountability or transparency. I am considering, therefore, the nature of amendments which might be made to these provisions.

With regard to a register of interests, there are not many models in the common law world upon which we can draw in putting such a register in place. While many jurisdictions have seen debates about the need or otherwise for a register of interest for judges, very few have as yet decided to go down that path. Nonetheless, I can see that such a register may have a function in maintaining public confidence in the integrity of the judicial process, and I will explore options in that regard. My preliminary thinking is that the Oireachtas should have a role in setting out the broad parameters informing the creation of a register, but the operational aspects should be embedded in the structure of the judicial council itself. In this way, we would recognise the balance which needs to be struck between the two branches of Government. While acknowledging the need for greater openness concerning pecuniary matters, we would also acknowledge the independence with which judges are vested by virtue of their constitutional office. This is a matter to which I hope we can return on Committee Stage.

Turning to the Bill itself, I wish to refer to its main provisions. Part 1 deals with matters of a general nature such as definitions and repeals. One of the most important definitions is that of judicial misconduct. In broad terms, this means conduct which constitutes a departure from acknowledged standards of judicial conduct and brings the administration of justice into disrepute. It is specified that standards in this context should have regard to certain principles, which are essentially those commonly referred to as the Bangalore principles of judicial conduct. These principles were adopted at a round table meeting of chief justices held in the Peace Palace in the Hague in November 2002 and endorsed by member states of the United Nations Commission on Human Rights in 2003.

Part 2 of the Bill concerns the council itself and provides for its setting up. In addition to the function of promoting and maintaining excellence in judges' exercise of their judicial junctions, to which I have already referred, the council will also be tasked with promoting and maintaining high standards of conduct among judges; the efficient and effective use of judicial resources; continuing education of judges; respect for the independence of the Judiciary; and public confidence in the Judiciary and the administration of justice. The council will consist of all members of the Judiciary. It is anticipated that it will generally meet on an annual basis, with the Chief Justice acting as its chairperson.

Part 3 of the Bill deals with the board of the council and its committees. However, it does not deal with the judicial conduct committee, which is covered in Part 5. The board will be responsible for the performance of the council's functions on a day-to-day basis. It will be chaired by the Chief Justice and will include among its members the president of each of the courts, five judges elected from each of the courts, and one judge who will be co-opted from each of the courts on a rota basis. Provision is made for the Chief Justice and the presidents to nominate a replacement judge to act in their stead. The board will hold a minimum of four meetings per year and will establish committees to assist it in its work from time to time. Under this Part, the council is also obliged to establish a judicial studies committee, a sentencing information committee and judicial support committees.

The judicial studies committee will have a role in facilitating the continuing education of judges and in the training of judges. This will be broader than the role now undertaken by the current committee of the same name concerning matters of education and training. The sentencing information committee will be involved in the collation and dissemination of sentencing information, and will also have a research function. It will take on, albeit in an expanded way, the role currently carried out by the steering committee of the Irish sentencing information system, which has been in existence now for a number of years. The judicial support committees will be available to advise each of the courts, and to assist the council in the performance of its functions concerning their particular court. It will be possible for the judicial council to appoint persons who are not judges to be members of both the judicial studies committee and the sentencing information committee.

Part 4 of the Bill deals with staffing and funding issues. Provision is made for the appointment of a secretary to the council, who would also act as registrar of the judicial conduct committee. Funding for the council will be provided via the Department of Justice and Equality Vote, and the council will be required to prepare an annual report of its activities, which will be laid before each House of the Oireachtas.

Part 5 is a core element of the Bill. It creates the formal structures which will, for the first time, provide a delivery mechanism to allow for the investigation of complaints of judicial misconduct which fall outside the current constitutional framework. I have already referred to Article 35 of the Constitution, which provides that a judge of the superior courts shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by 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 of judicial misconduct to which Article 35 of the Constitution would not apply.

Many in this House will be aware of the history of the Bill. However, in order to contextualise the complaints provision in particular, I would recall for Senators the fact that the genesis of those provisions lies in the report of the Committee on Judicial Conduct and Ethics, which was established in 1999 and which reported in the year 2000. That committee concluded that the existing structures for dealing with concerns about judicial misconduct were inadequate and that formal structures should be put in place to deal with misconduct which would not justify the invocation of the formal Oireachtas procedure. The type of misconduct instanced included discourtesy, prejudice, demonstrated insensitivity to the feelings of litigants, witnesses, members of the public or anybody engaged in the services of the courts.

At the heart of Part 5 is the provision relating to the establishment of the judicial conduct committee. The function of that committee will be to promote and maintain high standards of conduct. Given the importance of this function, I think it would be helpful to Senators if I set out some of the ways in which the Bill envisages this function will be carried out in day-to-day practice. The committee will consider complaints and refer them for resolution by informal means for investigation. It will prepare and submit draft guidelines to the board concerning judicial conduct and ethics within 12 months of its establishment, with a view to their adoption by the council. Furthermore, it may provide advice and recommendations to an individual judge, or to judges generally, on judicial conduct and ethics.

The committee will have 13 members. It will be chaired by the Chief Justice and it will include the presidents of all of the courts. It will be possible for these judges to nominate another judge to perform their functions from time to time. There will also be three elected judges on the committee. Finally, five lay members will be appointed by the Government following on from a selection process that will take place under the aegis of the Public Appointments Service.

In keeping with the need for transparency in respect of the investigation of complaints, the committee will be required to publish the procedures which are to be followed in the making, the investigation and the determination of complaints. In broad terms, the process will be as follows. The registrar applying the criteria set out in the legislation will determine whether a complaint is admissible. If the complaint is deemed to be inadmissible, it will be open to the complainant to have that determination reviewed by the complaints review committee. That committee will consist of three members of the judicial conduct committee - two judges and a layperson. The complaints regime will only apply to judicial misconduct that will be alleged to occur after the regime enters into force. In order to introduce certain efficiencies into the process, provision is being made for the possibility that a judge may consent to being reprimanded by the judicial conduct committee, either before a complaint is investigated or while it is being investigated by a panel of inquiry.

There are also provisions which address what will happen in the event that a complainant or, indeed, a judge fails to co-operate with a panel of inquiry. Furthermore, it will be open to the judicial conduct committee to investigate judicial misconduct even where no complaint has been received or where a complaint has been withdrawn. The rationale for these provisions is that it is clearly not in the public interest that a clear sense of judicial misconduct should go without process or without investigation simply because no complaint has been made. The actual investigation of a complaint will be carried out by a panel of inquiry. The panels of inquiry would have three members - two judges and one layperson. The latter will be drawn from a nominated group of individuals recommended to the Government by the Public Appointments Service.

Special provision has been made to deal with two separate scenarios. The first concerns the possibility that the alleged judicial misconduct may be related to the health of the judge concerned. The second relates to the interface between the conduct regime proposed by the Bill and Article 35.4.1o of the Constitution. The effect of the latter provision is that if an investigation discloses that the matter under investigation is of such gravity as would warrant the tabling of a motion under Article 35.4.1o, any subsequent action becomes a matter for the Legislature and not for the committee. This affirms the prerogative of the Legislature in respect of this matter, a prerogative which is given explicit recognition by way of a statement in the legislation that nothing in it should be construed as affecting the power of the Oireachtas to remove a judge from office under the law.

Once the investigation of a complaint has been completed, a panel of inquiry will submit a report to the judicial conduct committee setting out its findings. Prior to that submission, both the judge and the complainant will be provided with a copy of the report and given the opportunity to make submissions if they believe that fair procedures have not, in the circumstances, been observed. Where a panel of inquiry finds that an allegation in a complaint has been proved, the recommendations for the reprimand of the judge concerned may include the issuing of advice, a recommendation as to the pursuit of a specified course of action, such as attendance at a training course and the issuing of an admonishment.

I recognise that somewhat antiquated terms, such as the "issuing of advice" or "the issuing of an admonishment", may not sound serious or, indeed, punitive to modern ears but I am sure that Senators, lawyers and constitutional experts in the Chamber will agree that these may be considered quite serious sanctions for a judge in the context of the authority and, indeed, having regard to the independence of that important office. It should also be borne in mind that this Bill does not displace the constitutional role of the Oireachtas nor, indeed, its powers under Article 35.4.1o to remove a judge from office for stated misbehaviour or to remove a judge from office in the event of him or her being incapacitated. Furthermore, additional recommendations directed towards safeguarding the administration of justice are also possible.

It will be open to the judicial conduct committee to accept - with or without any modification - a recommendation made to it by a panel of inquiry. It will be also open to it to reject such a recommendation. In any event, prior to the committee issuing its determination, both the judge and the complainant will be given an opportunity to make submissions regarding the recommendations included in the report and, where necessary, an oral hearing may be required to be held.

A final provision to which I wish to draw the attention of Senator relates to the annual report which the judicial conduct committee will be required to produce. The Bill sets out an extensive range of statistical data which must be included in that annual report. This will provide a useful perspective on the work of the committee. It will also provide a means of evaluating the effectiveness of the proposed complaints regime.

I thank Senators for their attention. I want to hear their observations on the Bill. As a result of its centrality, I have spent some time dealing with the complaints regime that the Bill will establish. However, it is right to recall and place on record the fact that we are particularly fortunate to have a Judiciary which is extremely well regarded in terms of its perceived independence and its integrity. This is reflected in the fact that Ireland has consistently received very high rankings in this area in successive global competitiveness reports from the World Economic Forum and from the EU justice scoreboard. It is very important that we bear this in mind as we debate the Bill. We need to have a full understanding of the special position of judges in our country, our courts and under our Constitution. The Bill achieves the appropriate level of balance between independence, on the one hand, and accountability, on the other.

I thank Senators for their attention and I commend the Bill to the House.