Michael McDowell (Independent) | Oireachtas source

I warmly welcome the Minister, Deputy Flanagan, to the House and do so in particular because he is carrying the Bill under his arm. As Senator Wilson said, others have stood in the Minister's place and failed to deliver on this matter. I occupied his position for five years. Prior to my being Minister for Justice it was the desire of the Judiciary to have a judicial council established by law. While I was in office, the situation was slightly different in that I was taking all the initiative and at times it felt as if I was playing handball against a haystack. Happily, several people have now brought about this particular departure in law, which I welcome. I also welcome and hope that the Judiciary, the Executive and the Legislature are singing from the same hymn sheet in respect of what can and cannot be done and what should and should not be done.

I echo what Senator Wilson said regarding our Judiciary being generally and almost universally of a very high quality. We have been very well served by them. Their appointments have generally been wise and appropriate. I echo his sentiment that recent experience shows that very good appointments can be made without the introduction of a very elaborate Judicial Appointments Advisory Board. The cost of the board, estimated at €1 million per annum, seems to be a waste. The real issue is excellence of choice by the Cabinet, excellence of advice by the Attorney General and the Minister for Justice and Equality as to who the best people are who come through whatever filtration system there is and courage on the part of the Government to appoint people on the basis of merit, whatever their political leanings or whether they have any political leanings at all.

I welcome what the Minister said about the terms of the Bill. I particularly welcome his remarks about revisiting section 55(5) which appears to provide for a general regime of secrecy in regard to the manner in which the judicial conduct committee would carry out its functions. I do not believe the majority of judges want that stipulation even if some expressed a desire for it at an earlier stage. It is misguided and most people feel it should not be countenanced.On the other hand, the Judiciary is in a weak position and it must be protected from malicious, vicious attacks on it and there is, in the Bill, a screening mechanism to ensure that people do not bring complaints and have them adjudicated in public just simply in a kamikaze effort to destroy or impugn a person's reputation by having the opportunity under privilege to attack him or her. I believe this is right.

Some people may say that admonishment is not much of a sanction, but we do have to remember, as the Minister said, that the ultimate sanction is vested in these Houses, and that is the sanction of removal under the Constitution. Admonishment may sound somewhat Victorian as a term of criticism, but no judge would lightly disregard a public admonishment from a State council composed of a majority of his or her colleagues on the Bench. Short of removing a judge, it is hard to know what to do that would go beyond admonishment. Nobody is suggesting there should be a system of fines, and that would be, in my view, a very strange thing to do.

The Minister mentioned the question of a register of interests, and that is something about which I have had some worries. I fully accept what the Minister is feeling his way towards, which is some kind of private register that would be internalised into the process of a judicial council. The post of being a Superior Court judge, and I will deal with this for the time being, is not all that attractive today. If one had to lay bare what land or property one owned or what one's means were, in my view it would make people who had any substantial assets reluctant to start announcing what they were. It is an inhibition to those people who do have substantial assets going into politics that they have their private affairs raked over as to what they do or do not own. A lot of people who have wealth would avoid going into politics because they would see it as one area of their privacy which would be interfered with. It has always struck me that probably the greater issue for many judges is to whom they owe money rather than by whom they are owed money or what property they own. If one is indebted for €3 million to a particular bank should one hear a case involving that bank? Is that not much more of a worry? I only mention this to point out the difficulty. I do not suggest that every judge has to register his or her debts to function on the bench. I think that is excessive.

I also want to mention the wording of section 58, which refers to accepting a "reprimand", and section 63(5), which uses the term "admonishment". I presume they are intended to be more or less the same thing. If they are, it would be a good idea if we decided one way or the other in the legislation to opt between "reprimand" or "admonishment" as the name of the declaratory criticism sanction we are dealing with.

The definition in the Bill of judicial misconduct set out in section 2 could perhaps be looked at again. It states judicial misconduct:

means conduct (whether an act or omission) by a judge, whether in the execution of his or her office or otherwise, and whether generally or on a particular occasion, that -(a) constitutes a departure from acknowledged standards of judicial conduct, such standards to have regard to the principles of judicial conduct referred to in section 7(1)(b) and 30(2)

The only thing I would say about it is the phrase "acknowledged standards" seems to be a little vague. There should be generally accepted standards as well as those laid down in any code of conduct. There could be arguments about what is or is not an acknowledged standard. The phrase "generally accepted standards of judicial conduct" might be more objective than "acknowledged standards".

With these few remarks, I congratulate the Minister for bringing the Bill through. I regret it took so long for it to be put before the Houses. Subject to the Minister's points about revisiting some of the sections of the Bill with a view to their improvement, given that these Houses sometimes have a dearth of legislative activity to carry out, this Bill should get fair wind in its sails and be put through with expedition, because there are mishaps in politics and it would be a tragedy if, after getting the Bill to this Stage, anything were to stop it going any further.