Jim Walsh (Fianna Fail)
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Cuirim fáilte roimh an Aire. I wish to preface my remarks by stating that, in general, the State has been well served by the Judiciary since its foundation. I am aware there are issues such as, for example, whether we would be better served by having the continental inquisitorial system rather than blindly following the very costly adversarial system we have, which is a throwback to our colonial occupation. There is also an issue around appointing multimillionaire barristers to the Judiciary. There should be a debate on a system whereby people, on foot of education and appropriate qualifications, would see the Judiciary as a career in itself and enter it through those educational qualifications.

My purpose this morning is to inquire about the position with the judicial council. It is over ten years since a group of members of the Oireachtas justice committee visited the United States to look at the Judicial Council of Massachusetts. We returned quite enthused about it. We met with the supreme court justice there who told us how the state's judiciary was accountable to its peers through the judicial council system. Subsequently, I inquired about it on a number of occasions, as it was a decision of the Government to pursue that course. However, it was opposed by some elements within the Judiciary. Is it still being stalled or opposed by vested interests? I heard the comments of the Supreme Court Chief Justice in this regard and she appears to be quite supportive of the idea. In particular, I am anxious to know what precautions have been put in place in the absence of a judicial council.

The economic downturn affected people rather badly because of the large amount of liquidity they had financially. Many were heavily borrowed and lost a great deal through investments. There were questions as to whether some would be bankrupt or become insolvent, although I have not seen much evidence of that. There is no reason to believe that the Judiciary would have been immune from the effects of the downturn. The Bangalore Principles of Judicial Conduct are clear. Under principle 2.5, a judge shall disqualify himself or herself if it may appear to a reasonable observer that the judge is unable to decide the matter impartially. This would include, for example, where the judge or a member of the judge's family has an economic interest in the outcome of the matter in controversy. There have been suggestions, which might be untrue, that some judges, like people throughout society, were heavily borrowed and if they were adjudicating on bank creditors appearing before them there would appear to be an element, perhaps, of conflict of interest.

I am sure the judge would disqualify themselves from hearing such cases but in the absence of a judicial council we cannot rely on that. Given the severity with which the downturn has affected people, it is important that the Government would have taken some initiatives but, given how slow the Government was to deal with the bankruptcy and insolvency issue, I am not confident that it has done that. Principle 4.7 of the Bangalore Principles of Judicial Conduct is very interesting. It states that a judge shall inform himself or herself about the judge's personal and fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of the judge's family.

In conclusion, in a republic everybody is equal before the law. There should be no unaccountable elites anywhere in our society. I am seeking an accountability system in this area. We saw what happened with Justice Hugh O'Flaherty who resigned, very honourably, in circumstances where most people said that what he did was perhaps wrong but was not a resigning matter. Another judge, Judge Brian Curtin, did not resign and got a considerable amount of money from the State in circumstances where it appeared that there should have been no hesitation in a resignation. The independence of the Judiciary is fundamental, but that independence is not just independence from the Executive but also from other influence. Will the Minister outline to the House the precautions this Government has taken to ensure that nothing untoward might have happened during the course of this difficult economic climate, in which many people found themselves in straitened financial circumstances before the courts?

Kathleen Lynch (Cork North Central, Labour)
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I thank the Senator for his interesting contribution. I am not certain that much of it has anything to do with the question in hand, but I take his point. I am never certain about the equality before the law either. If there was true equality before the law, those who are called as witnesses would not have their title disclosed when they are called. It has an undue influence from time to time, as if somehow their evidence is more pertinent than that of the rest of us old sops who do not have any titles. With regard to the American system, while this might be a good idea I am not sure that we would take on many of its other practices.

I thank the Senator for raising this issue and, on behalf of the Minister for Justice and Equality who cannot be here today, I acknowledge the importance of the matters to which the Senator refers. We are very lucky in this country that our Judiciary is independent and acts with great integrity. We can all agree that an independent Judiciary, the integrity of which is beyond question, is fundamental to the working of our democracy and essential in terms of upholding the rule of law upon which all our citizens rely. The Senator will be aware that Article 35.4.1 of the Constitution states that a judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and Seanad Éireann calling for his or her removal. This constitutional process has been extended by statute to the question of removal and dismissal of Circuit and District Court judges. That is an improvement. Otherwise, with the exception of statutory provisions dealing with investigating and reprimanding judges of the District Court, there is no means of investigating or dealing with allegations which are not sufficiently serious to merit the invocation of the constitutional provisions. Both this and previous Governments have been conscious of the fact that there is a need for an alternative structure to be put in place to deal with allegations of this nature and the development of such a structure is a key driver behind the Judicial Council Bill.

The current draft of the Bill provides for the establishment of a judicial council and board that will promote excellence and high standards of conduct by judges. It will also provide a means of investigating allegations of judicial misconduct. In this context, a judicial conduct committee, which will have lay representation, will be established. Finally, it will facilitate the ongoing support and education of judges through a judicial studies committee and through the establishment of judicial support committees. I assure the Senator that there is no hidden agenda behind the fact that the Bill has yet to be published. It is a regrettable reality that the finalisation of the Bill has had to give way to other pressing priorities in the legislative area, but the Government remains firmly of the view that it is of the utmost importance that this legislation be advanced within a speedy time frame. I should add that the various drafts of the Bill have benefited from review by the Judiciary, who have considered it as part of the work of the interim judicial council which has been established pending the Bill’s enactment.

Finally, with specific reference to the Bangalore Principles of Judicial Conduct, those principles enshrine key values relating to independence, impartiality, integrity, propriety, equality, competence and diligence which, in many ways, are self-evident characteristics of a properly functioning judicial system. It is to be anticipated that any future guidelines concerning judicial conduct and ethics will be reflective of those principles. This would not be surprising since the Government would have every confidence that judicial conduct, at present, accords with these principles and, indeed, the Government would not support any implication that values such as independence and integrity are not intrinsic to the way in which our courts operate. I believe the Senator would agree with that.

Jim Walsh (Fianna Fail)
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The Minister clearly signalled at the start that her response would be unsatisfactory. Obviously, it is. This Bill will fall with the fall of the Government and therefore will not be enacted in this term.That is an appalling situation, given the fact that we have been waiting for over ten years. The Minister of State was silent on whether it had been stalled by vested interests. That silence tells its own story and we can draw the obvious conclusions.

Kathleen Lynch (Cork North Central, Labour)
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The Senator may draw an inference. I do not.

Jim Walsh (Fianna Fail)
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I did not interrupt the Minister of State. She will get her chance to speak. It is obvious to any objective observer why she did not address that in her reply. She mentioned no timeframe. We know it is going to fall, so in fact it has been long-fingered. It is reminiscent of the dereliction of this and the last Government in failing to implement the recommendations of the report from the Competition Authority in 2006 which specified that increased competition was needed for consumers of legal services. The troika and others emphasised that, and I know the members of the troika were still pressing it at their most recent meeting here. This is evidence of a failure to recognise what the priorities should be. The Minister of State's reply rings very hollow. She stated that it was "of the utmost importance that the legislation be advanced within a speedy timeframe," but we have been bloody well waiting ten years for it. Whoever writes this kind of gobbledegook should be brought to heel. If someone in the House takes the matter seriously, it is not good enough to come back with a reply like this. It does the Minister of State no justice. I know it is not her fault, as she is in the Department of Health, but it reflects badly on the Department of Justice and Equality. We are very well aware from the report last year that we have a dysfunctional Department of Justice and Equality.

Kathleen Lynch (Cork North Central, Labour)
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Whoever wrote the speech is a good civil servant. We should be very conscious of that. We are fortunate with the people who work in the administration of democracy in this country. There are other countries we could name here, of which the Senator will know a few, that are not as fortunate in their civil and public servants as we are. I was reared with the ethos that one should never judge others by one's own standards. No one sitting on our benches every day of the week to administer justice operates only in his or her own self-interest.

Jim Walsh (Fianna Fail)
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I never said that. I certainly have not said that. That is a poor kind of sophistry in which the Minister of State is engaging.

Kathleen Lynch (Cork North Central, Labour)
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They operate on the basis of the administration of justice-----

Jim Walsh (Fianna Fail)
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I acknowledged that at the start.

Kathleen Lynch (Cork North Central, Labour)
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-----and none of us is above the law. To imply, as the Senator does, that somehow or other-----

Jim Walsh (Fianna Fail)
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I have not implied. I said clearly. The Minister of State should look at my introductory remarks.

Terry Brennan (Fine Gael)
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The Minister of State, le do thoil.

Jim Walsh (Fianna Fail)
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I cannot allow that kind of thing to go on the record unchallenged. The Minister of State knows exactly what she is at. She is deflecting from the dereliction of duty of her ministerial colleagues in the Department of Justice and Equality.

Terry Brennan (Fine Gael)
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Bhí an seans agat, a Sheanadóir.

Kathleen Lynch (Cork North Central, Labour)
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To imply, which is what the Senator is doing, that somehow or other our judicial system has a vested interest in preventing this from proceeding is unfair and, in this instance, unjust.