Michael D'Arcy (Wexford, Fine Gael) | Oireachtas source

I do not think that we can have a blanket provision which mandates the disclosure of a judge in all circumstances. Non-publication will always be an exceptional step. In addition to the examples I gave previously, it is possible to imagine that there may be circumstances where the naming of a judge might have unintended consequences in terms of its impact on third parties. I am thinking here of cases held in camerawhere it is important that no information gets into the public domain that might inadvertently disclose the identity of a party to a relevant action.

It may be of interest to Senators to know that, on the issue of naming judges, there is no uniform practice which can be pointed to insofar as other jurisdictions are concerned. In England and Wales, the Lord Chief Justice and the Lord Chancellor have discretion not to publish a disciplinary statement where a formal disciplinary sanction has been imposed, based on the individual circumstances of a case. In New Zealand, where a complaint is not such as would warrant consideration as to removal from office, it is referred to the head of bench who is in charge of the court where the judge complained of sits. Any subsequent consideration of the complaint takes place on a confidential basis. In Canada, the only decisions published are those of an inquiry committee and some of the cases before that committee would relate to investigations which may result in the removal of the judge from office.

This is not an issue of transparency. It merely removes the blanket effect which may not be the correct structure. I have highlighted the other common law jurisdictions which are in line with our own.