Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister to the House, and I welcome this important and long-overdue Bill. Like others, I express my support and that of the Labour Party group for the Bill. I look forward to teasing out the proposals in it on Second Stage, and also on Committee and Report Stages.

As we know, the Bill will introduce for the first time a formalised system for the public to make complaints about judicial misconduct. Actually it is about much more than that. As the Minister did in his speech, many of our contributions will concentrate on Part 5, relating to the misconduct or complaints provisions. Of course, the judicial council is a far more important entity and provides for many more aspects than that.When one looks at judicial councils in other jurisdictions, one sees that these are forums where judges seek to ensure best practice, promulgate codes of conduct among their members and provide for support structures for themselves. We see that in this Bill. We know the need for a judicial council has been strongly recognised by judges in Ireland in order to enhance public confidence in the Judiciary and to affirm its independence. It is important for all these reasons.

Like other Senators, as a former practising barrister, I would like to say that we all appreciate the independence and integrity of the Judiciary generally and note the high regard in which our judges are held internationally. Ruadhán Mac Cormaic's great recent book on the Supreme Court illustrates that in his insights into the members of the Supreme Court and their work. We need to have a judicial council. This has been flagged for a long time. We have seen more than 20 years of consultations and promises to legislate. I note the Minister commended former Chief Justice, Susan Denham. It is important to commend her work leading to the preparation of this Bill. She has been very involved in the past in preparing draft legislation and pushing the need for this. I was struck by one comment she made saying there was a significant institutional vacuum where we do not have a provision for a judicial council. Those are the reasons it is important to see this Bill in place. I note, as others have said, that there was a commitment to a judicial council in the Fine Gael-Labour Party programme for Government in 2011. I am sorry that we did not deliver on that. I think Senator McDowell has also given amea culpaabout failure to deliver. Successive Governments have failed to deliver so having this Bill before us now is extremely welcome.

I know the Bill is part of a package of measures. Earlier this year, we saw the introduction of the Judicial Appointments Commission Bill. Others have commented on that. My view is that we could have strengthened the current Judicial Appointments Advisory Board, JAAB, and enhanced its powers to have greater effect without the need for the new Bill but perhaps that is only of historical interest.

Turning to the structures and provisions of the Bill, one has to acknowledge that there has never been a completed process of impeachment under the Constitution and others have referred to the Article 35.4.1° procedure providing for impeachment for stated misbehaviour or incapacity. We have never seen a completed process to that effect in the Oireachtas but concerns were raised about particular issues and members of the Judiciary in the late 1990s and there was the Curtin case in 2002. That is part of the context of this.

Looking at the provisions of the Bill, one of the first things I wanted to refer to is its relationship with the constitutional procedure and, in particular, the definitions contained in the Bill. I think Senator McDowell referred to those. In section 2 of the Bill, we see the phrase "judicial misconduct", which is used throughout the Bill, in particular in Part 5. That is the key concept on which the complaints procedure is built. The question I have is how that relates to the constitutional definition of stated misbehaviour or incapacity. A different phrase is used. It is misconduct rather than misbehaviour. What does this mean in practice? I am looking at the definition in section 2, constituting the departure from acknowledged standards of judicial conduct and so forth with reference to those principles set out on section 7(1)(b) and section 32. I think the standards in section 7(1)(b) are very important and welcome.

I particularly welcome the recognition of the need to ensure equality of treatment to all persons before the courts but reading on in section 7, perhaps more detail could be provided on those principles. I note that it is envisaged that the council will provide what are called guidelines. I do not see a specific reference to a code of conduct for the Judiciary. I know it was a recommendation in the 2014 Council of Europe Group of States Against Corruption, GRECO, report to which the Minister referred. Clearly the GRECO called for an independent statutory council to be adopted in Ireland but it also recommended a code of conduct for judges and a dedicated training service for judges. Are the provisions relating to guidelines referred to in this Bill sufficient to constitute a code of conduct such that we would have more detail on what the high standards of conduct expected of judges are and, in particular, where we fall short of those and where misconduct becomes misbehaviour?

I was interested in the provisions further on in the Bill which refer specifically to the relationship with the Constitution, particularly section 67 of the Bill which gives us what we might call the transition process, which is the referral by the judicial conduct committee to the Minister of a matter relating to conduct or capacity of a judge which Article 35.4 prefaces. That seems to provide the only route for the judicial council to take where a panel of inquiry has formed the opinion that a matter disclosed by the investigation relating to conduct or capacity is of such gravity that it would justify a referral by the judicial conduct committee with regard to that judge. That provision in section 67(3) seems to be the only guidance given to the panel of inquiry and the judicial conduct committee on when a matter becomes misbehaviour of a constitutional nature as opposed to misconduct of a statutory nature. Can more detail be given to that or is that sufficient? Are we satisfied that it is enough definition to govern the relationship between statute and Constitution?

I have spoken about section 7, the functions of the council and why there is no reference to a code, as I see it. GRECO required that the issue of training be addressed and I welcome the provisions for it. Section 17, on the Committee for Judicial Studies, is very welcome. I am grateful to Maeve O'Rourke from the Irish Council for Civil Liberties, ICCL, for pointing out to me that it might also be worth including a specific reference to training on human rights and equality provisions. There is a specific mention about training in IT which is clearly important, as it is for all of us to increase capacity in that area. Given the reference in section 7 to standards and equality of access to justice, perhaps we should have something about equality and discrimination. I will give a short anecdote. In an academic capacity some years ago, I gave a paper to what is called "judges school", the Judicial Studies Institute, to judges about the right to an interpreter before the courts. In the course of researching that, I came across some quite serious issues relating to comments made by individual judges, generally at District Court level, about nationalities of persons coming before the courts. I will not go into more detail on that but it is in the public domain and it is an area where there has been public concern. It might be worth having a specific reference to human rights and equality obligations in section 17 although there is a general provision about training. The legislation could also make provision for the right of judges to pursue further academic studies which is a recommendation from the Irish Council for Civil Liberties when talking more generally about judges' councils in 2007.

The sentencing information committee mentioned in section 18 is welcome. We need to enhance our capacity there. I have a more general point arising from provisions in sections 37 and 51 about the role of the complainant. While there is much focus in Part 5 of the Bill on the judge about whom a complaint is made, and rightly so, I wonder if we should focus more on the complainant. The Part 5 procedure is complex. I am grateful to the Oireachtas Library and Research Service, which provided us with a very useful diagram showing how complaints would proceed. When one reads Part 5, it is hard to follow the process. Should there therefore be provision, where a complaint is found admissible and a panel of inquiry has been constituted, to provide assistance to a complainant? The ICCL suggests access to free legal representation once the matter proceeds to investigation. I take the point that costs are involved here and that complaints may be made which are not admissible and are ruled out. I do not know about free legal aid. I think there can be more support and provisions for complainants. For example, in section 62, where an investigation is adjourned by the panel of inquiry, there is a provision that the panel of inquiry must notify the judge that it is adjourning the investigation but there is no provision that it must notify the complainant. That is a very basic matter. In section 64, there is a requirement that a report of the panel will go to the complainant but we need to make the procedure workable.