Charles Flanagan (Laois, Fine Gael) | Oireachtas source

This is the referral by the conduct committee to the Minister of a matter relating to the conduct or capacity of a judge for the purposes of Article 35.4 of the Constitution. The provision in the Bill relates to a particularly sensitive issue, namely, dealing with a referral by the conduct committee to the Minister for Justice and Equality of a matter which warrants the proposing of a motion under Article 35 of the Constitution calling for the removal from office of a judge, either for stated misbehaviour or for incapacity. The amendment itself, however, is straightforward. It involves the deletion of the provision for notification of the complainant that an investigation has been adjourned. The rationale for the amendment is that such a notification carries with it the risk that it would alert the complainant to the fact that a referral to the Minister might be in play. This would not be desirable, in particular because if a referral were not proceeded with, speculation as to what occasioned the adjournment could be damaging to the reputation of the individual judge concerned.If, under subsection (13), the judicial conduct committee is not satisfied that a referral should be made, the investigation by a panel of inquiry will proceed as normal and the complainant will be engaged in the process as if the question of a referral had never arisen. On the other hand, if a referral actually occurs, provision is made in subsection (14) to ensure the complainant will be notified, but this will only happen once the relevant Article 34 motion has been proposed.

A panel of inquiry will have a general power to adjourn an investigation of a complaint under section 62 of the Bill. In this instance, there is no notification requirement in respect of either the judge or the complainant. It is only where the investigation is subsequently discontinued that the notification provision will kick in. The proposed amendment thus introduces consistency to how adjournments should be handled insofar as the notification requirements are concerned.