Charles Flanagan (Laois, Fine Gael) | Oireachtas source

This reflects what has been a tradition - that of recusal - whereby judges may wish from time to time to recuse themselves from hearing a particular case independent of any application or after an application that recusal is appropriate in the circumstances. The test of recusal is one of objective bias. Essentially, if a reasonable and fair-minded person in possession of all the relevant facts reasonably apprehends that the judge will not be fair and impartial, then in general a judge will recuse himself from any case to which he has a personal connection. For example, a relevant case may involve relatives or friends or a former client or some other circumstances that might create a risk of impartiality being called into question.

The Bill as published already provides that the conduct committee shall prepare and submit to the board of the council draft guidelines concerning ethics on judicial conduct. The practice in other jurisdictions where guidelines or equivalent measures have been adopted is that provisions on impartiality, which include conflict of interest considerations or separate provisions relating to the latter, are included within that framework. I have every confidence that similar provisions would be included in the guidelines that the conduct committee is being mandated to draw up. Given the importance of this issue for the administration of justice, however, it may be useful to include a provision in the Bill that explicitly highlights the need for the guidelines to include guidance as to matters to be considered in the context of recusal. This is one way in which conflicts of interest may be managed. The merit of the amendment is that it will ensure rules relating to recusal are included in a single publicly accessible document. I am still considering whether it may be desirable to set up a register of financial interests for judges and, if so, what the overall structure of that register might be. This is a matter that we may return to when we come to Report Stage.

There is precedent for this approach. I am keen to acknowledge the situation in New Zealand where legislation has been introduced recently that places an obligation on the judiciary there to develop and publish guidelines to assist judges in deciding whether they should recuse themselves from proceedings. On foot of that legislation, guidelines have been published for the supreme court, the court of appeal and the high court there. New Zealand also has well-developed guidelines for judicial conduct. I believe the amendment is desirable and I am seeking the support of Seanadóirí in that regard.