Wednesday, 22 November 2017
Judicial Council Bill 2017: Second Stage
I am very pleased to have the opportunity to introduce this important legislation in the Seanad this afternoon. I recall that in October of last year the Government accepted a motion tabled in this House which called for the setting up of a judicial council and the publication of a Bill which would provide for it. This is important and long-awaited legislation and I look forward to hearing the comments of Senators on it. It has had a somewhat tangled history, and many hands have made a contribution to its making. However, it would be remiss of me if, at the outset of this debate, I did not single out for special appreciation the contribution made by the former Chief Justice, Mrs. Justice Susan Denham, since the start of this work. Her commitment to this project was beyond question. Her vision and energy were very much in evidence on more than one occasion in the course of the debate leading up to the introduction of the Bill this afternoon.
The primary purpose of the Bill is to provide for the setting up of a judicial council. It has long been recognised that the absence of such a judicial council in Ireland is somewhat out of step with other countries which share our value system, including those countries which have a similar legal background and tradition. Indeed, this absence has been the subject of critical comment by the Council of Europe's Group of States against Corruption, commonly referred to as GRECO. Judicial councils are generally seen as having an important role to play in safeguarding the independence of judiciaries. They also provide a vehicle for addressing matters such as further education and training, as well as matters pertaining to discipline. In keeping with this approach, the Bill affirms the independence of the proposed judicial council and provides that one of its key functions will be to promote and maintain excellence in the exercise by judges of their judicial functions. In addition, the Bill institutes a complaints regime for judges, which will address instances of misconduct which do not warrant the invocation of Article 35.4.1° of the Constitution. As Members know, that article relates to the removal of a judge from office for stated misbehaviour or for incapacity.
The Judiciary is one of the fundamental pillars of our democracy and its independence is guaranteed by our Constitution. However, the fact that it represents a separate branch of Government does not mean that it is in any way separate from the society which supports it and which it, in turn, supports. The Bill before the House has a delicate balance to maintain. That is why I look forward to hearing the views of Senators in the course of the debate this afternoon.
The Bill must respect the independence of the Judiciary, which is essential if our citizens are to have confidence in the free and impartial administration of justice in the State. However, that independence is not a privilege for the individual judge in his or her court, rather it is a protection for the individual rights and freedoms of our citizens under our laws. It follows that independence on the one hand must be balanced by accountability on the other. The fact that justice is, for the most part, administered in public is one aspect of accountability. The ability to appeal a particular judgment is another. However, the accountability gap which has existed heretofore, and which this Bill proposes to address, relates to the absence of a mechanism for dealing with complaints about judicial misconduct which would not require an intervention under our Constitution.
Before dealing with the content of the Bill, I wish to raise two matters which have recently been in the public eye - the need for the so-called secrecy provisions in the Bill to be removed, and the need to establish a public register of pecuniary interest for members of the Judiciary. Regarding the secrecy provisions, I have had the opportunity to review the Bill since becoming Minister for Justice and Equality. It is fair to say that some of the provisions intended to protect the confidentiality of the complaints process do not sit well with current understandings of accountability or transparency. I am considering, therefore, the nature of amendments which might be made to these provisions.
With regard to a register of interests, there are not many models in the common law world upon which we can draw in putting such a register in place. While many jurisdictions have seen debates about the need or otherwise for a register of interest for judges, very few have as yet decided to go down that path. Nonetheless, I can see that such a register may have a function in maintaining public confidence in the integrity of the judicial process, and I will explore options in that regard. My preliminary thinking is that the Oireachtas should have a role in setting out the broad parameters informing the creation of a register, but the operational aspects should be embedded in the structure of the judicial council itself. In this way, we would recognise the balance which needs to be struck between the two branches of Government. While acknowledging the need for greater openness concerning pecuniary matters, we would also acknowledge the independence with which judges are vested by virtue of their constitutional office. This is a matter to which I hope we can return on Committee Stage.
Turning to the Bill itself, I wish to refer to its main provisions. Part 1 deals with matters of a general nature such as definitions and repeals. One of the most important definitions is that of judicial misconduct. In broad terms, this means conduct which constitutes a departure from acknowledged standards of judicial conduct and brings the administration of justice into disrepute. It is specified that standards in this context should have regard to certain principles, which are essentially those commonly referred to as the Bangalore principles of judicial conduct. These principles were adopted at a round table meeting of chief justices held in the Peace Palace in the Hague in November 2002 and endorsed by member states of the United Nations Commission on Human Rights in 2003.
Part 2 of the Bill concerns the council itself and provides for its setting up. In addition to the function of promoting and maintaining excellence in judges' exercise of their judicial junctions, to which I have already referred, the council will also be tasked with promoting and maintaining high standards of conduct among judges; the efficient and effective use of judicial resources; continuing education of judges; respect for the independence of the Judiciary; and public confidence in the Judiciary and the administration of justice. The council will consist of all members of the Judiciary. It is anticipated that it will generally meet on an annual basis, with the Chief Justice acting as its chairperson.
Part 3 of the Bill deals with the board of the council and its committees. However, it does not deal with the judicial conduct committee, which is covered in Part 5. The board will be responsible for the performance of the council's functions on a day-to-day basis. It will be chaired by the Chief Justice and will include among its members the president of each of the courts, five judges elected from each of the courts, and one judge who will be co-opted from each of the courts on a rota basis. Provision is made for the Chief Justice and the presidents to nominate a replacement judge to act in their stead. The board will hold a minimum of four meetings per year and will establish committees to assist it in its work from time to time. Under this Part, the council is also obliged to establish a judicial studies committee, a sentencing information committee and judicial support committees.
The judicial studies committee will have a role in facilitating the continuing education of judges and in the training of judges. This will be broader than the role now undertaken by the current committee of the same name concerning matters of education and training. The sentencing information committee will be involved in the collation and dissemination of sentencing information, and will also have a research function. It will take on, albeit in an expanded way, the role currently carried out by the steering committee of the Irish sentencing information system, which has been in existence now for a number of years. The judicial support committees will be available to advise each of the courts, and to assist the council in the performance of its functions concerning their particular court. It will be possible for the judicial council to appoint persons who are not judges to be members of both the judicial studies committee and the sentencing information committee.
Part 4 of the Bill deals with staffing and funding issues. Provision is made for the appointment of a secretary to the council, who would also act as registrar of the judicial conduct committee. Funding for the council will be provided via the Department of Justice and Equality Vote, and the council will be required to prepare an annual report of its activities, which will be laid before each House of the Oireachtas.
Part 5 is a core element of the Bill. It creates the formal structures which will, for the first time, provide a delivery mechanism to allow for the investigation of complaints of judicial misconduct which fall outside the current constitutional framework. I have already referred to Article 35 of the Constitution, which provides that a judge of the superior courts shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by 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 Court and District Court judges. 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 of judicial misconduct to which Article 35 of the Constitution would not apply.
Many in this House will be aware of the history of the Bill. However, in order to contextualise the complaints provision in particular, I would recall for Senators the fact that the genesis of those provisions lies in the report of the Committee on Judicial Conduct and Ethics, which was established in 1999 and which reported in the year 2000. That committee concluded that the existing structures for dealing with concerns about judicial misconduct were inadequate and that formal structures should be put in place to deal with misconduct which would not justify the invocation of the formal Oireachtas procedure. The type of misconduct instanced included discourtesy, prejudice, demonstrated insensitivity to the feelings of litigants, witnesses, members of the public or anybody engaged in the services of the courts.
At the heart of Part 5 is the provision relating to the establishment of the judicial conduct committee. The function of that committee will be to promote and maintain high standards of conduct. Given the importance of this function, I think it would be helpful to Senators if I set out some of the ways in which the Bill envisages this function will be carried out in day-to-day practice. The committee will consider complaints and refer them for resolution by informal means for investigation. It will prepare and submit draft guidelines to the board concerning judicial conduct and ethics within 12 months of its establishment, with a view to their adoption by the council. Furthermore, it may provide advice and recommendations to an individual judge, or to judges generally, on judicial conduct and ethics.
The committee will have 13 members. It will be chaired by the Chief Justice and it will include the presidents of all of the courts. It will be possible for these judges to nominate another judge to perform their functions from time to time. There will also be three elected judges on the committee. Finally, five lay members will be appointed by the Government following on from a selection process that will take place under the aegis of the Public Appointments Service.
In keeping with the need for transparency in respect of the investigation of complaints, the committee will be required to publish the procedures which are to be followed in the making, the investigation and the determination of complaints. In broad terms, the process will be as follows. The registrar applying the criteria set out in the legislation will determine whether a complaint is admissible. If the complaint is deemed to be inadmissible, it will be open to the complainant to have that determination reviewed by the complaints review committee. That committee will consist of three members of the judicial conduct committee - two judges and a layperson. The complaints regime will only apply to judicial misconduct that will be alleged to occur after the regime enters into force. In order to introduce certain efficiencies into the process, provision is being made for the possibility that a judge may consent to being reprimanded by the judicial conduct committee, either before a complaint is investigated or while it is being investigated by a panel of inquiry.
There are also provisions which address what will happen in the event that a complainant or, indeed, a judge fails to co-operate with a panel of inquiry. Furthermore, it will be open to the judicial conduct committee to investigate judicial misconduct even where no complaint has been received or where a complaint has been withdrawn. The rationale for these provisions is that it is clearly not in the public interest that a clear sense of judicial misconduct should go without process or without investigation simply because no complaint has been made. The actual investigation of a complaint will be carried out by a panel of inquiry. The panels of inquiry would have three members - two judges and one layperson. The latter will be drawn from a nominated group of individuals recommended to the Government by the Public Appointments Service.
Special provision has been made to deal with two separate scenarios. The first concerns the possibility that the alleged judicial misconduct may be related to the health of the judge concerned. The second relates to the interface between the conduct regime proposed by the Bill and Article 35.4.1o of the Constitution. The effect of the latter provision is that if an investigation discloses that the matter under investigation is of such gravity as would warrant the tabling of a motion under Article 35.4.1o, any subsequent action becomes a matter for the Legislature and not for the committee. This affirms the prerogative of the Legislature in respect of this matter, a prerogative which is given explicit recognition by way of a statement in the legislation that nothing in it should be construed as affecting the power of the Oireachtas to remove a judge from office under the law.
Once the investigation of a complaint has been completed, a panel of inquiry will submit a report to the judicial conduct committee setting out its findings. Prior to that submission, both the judge and the complainant will be provided with a copy of the report and given the opportunity to make submissions if they believe that fair procedures have not, in the circumstances, been observed. Where a panel of inquiry finds that an allegation in a complaint has been proved, the recommendations for the reprimand of the judge concerned may include the issuing of advice, a recommendation as to the pursuit of a specified course of action, such as attendance at a training course and the issuing of an admonishment.
I recognise that somewhat antiquated terms, such as the "issuing of advice" or "the issuing of an admonishment", may not sound serious or, indeed, punitive to modern ears but I am sure that Senators, lawyers and constitutional experts in the Chamber will agree that these may be considered quite serious sanctions for a judge in the context of the authority and, indeed, having regard to the independence of that important office. It should also be borne in mind that this Bill does not displace the constitutional role of the Oireachtas nor, indeed, its powers under Article 35.4.1o to remove a judge from office for stated misbehaviour or to remove a judge from office in the event of him or her being incapacitated. Furthermore, additional recommendations directed towards safeguarding the administration of justice are also possible.
It will be open to the judicial conduct committee to accept - with or without any modification - a recommendation made to it by a panel of inquiry. It will be also open to it to reject such a recommendation. In any event, prior to the committee issuing its determination, both the judge and the complainant will be given an opportunity to make submissions regarding the recommendations included in the report and, where necessary, an oral hearing may be required to be held.
A final provision to which I wish to draw the attention of Senator relates to the annual report which the judicial conduct committee will be required to produce. The Bill sets out an extensive range of statistical data which must be included in that annual report. This will provide a useful perspective on the work of the committee. It will also provide a means of evaluating the effectiveness of the proposed complaints regime.
I thank Senators for their attention. I want to hear their observations on the Bill. As a result of its centrality, I have spent some time dealing with the complaints regime that the Bill will establish. However, it is right to recall and place on record the fact that we are particularly fortunate to have a Judiciary which is extremely well regarded in terms of its perceived independence and its integrity. This is reflected in the fact that Ireland has consistently received very high rankings in this area in successive global competitiveness reports from the World Economic Forum and from the EU justice scoreboard. It is very important that we bear this in mind as we debate the Bill. We need to have a full understanding of the special position of judges in our country, our courts and under our Constitution. The Bill achieves the appropriate level of balance between independence, on the one hand, and accountability, on the other.
I thank Senators for their attention and I commend the Bill to the House.
I welcome the Minister back to the House. I am taking this matter on behalf of my colleague, Senator Clifford-Lee. She must attend another meeting and apologises for not being here.Fianna Fáil will be supporting the Bill and is committed to strengthening the measures contained in it. As the Minister has outlined, the country has been very well served by the Judiciary and that has been internationally recognised. The establishment of a judicial council by the Bill will ensure continued public confidence in judicial integrity. Fianna Fáil has long called for the introduction of a procedure for investigating allegations of judicial misconduct. The public currently has no formal procedure through which to make a complaint against a member of the Judiciary. I ask the Minister to clarify in his closing remarks whether it is open to members of the public to make a complaint to the president of the court of which a judge is a member. Has he any statistics in respect of the number of complaints that the presidents receive in that regard?
In 2010, the former Fianna Fáil Minister for Justice, Equality and Law Reform, Dermot Ahern, published a scheme for a judicial council Bill. It sought to establish a judicial council to investigate allegations of judicial misconduct and provide options for dealing with misconduct where the nature of the misconduct warranted investigation and action but was not sufficiently serious to call for the removal of the judge from office. Much like the Bill before the House today, the council was to be an independent body charged with the promotion of excellence in the exercise by judges of their judicial functions. The 2011 Fine Gael-Labour Party programme for Government contained a commitment to establish a judicial council. Regrettably, like so many other promises in that programme for Government, that was not delivered upon. However, I am glad a similar Bill is now before the House.
Fianna Fáil believes that one major flaw in the Bill is that it provides for inquiries into the misconduct of judges to be held in private under section 55 and that reprimanded judges will not be named. Fianna Fáil will table amendments to remove that secrecy. If a judge is reprimanded, the public is entitled to be informed of his or her identity. The goal of the Bill, which is to improve public confidence in the administration of justice, is undermined if the identity of judges who are sanctioned is kept secret.
The Bill includes provision for the establishment of a sentencing information committee to collate information on sentences imposed by the courts and to share that information with judges and other persons. Fianna Fáil believes in the need for improving consistency in criminal sentencing and is committed to achieving that. It introduced the Judicial Sentencing Commission Bill in 2013 which sought to support judges in their decision making while maintaining their independence. While the Bill before the House today goes some way to improving consistency in sentencing, we believe that we should proceed with our judicial sentencing Bill as the proposals in the Judicial Council Bill do not go far enough.
From my own experience in court as a defendant and a witness, I was very impressed by the workload the Judiciary in the District Court deals with on a daily basis. In my experience as a defendant in minor cases such as speeding and as a witness in some other cases in that court, they do so very professionally and humanely and are very overworked.
All Members are familiar with the term "if it is not broken, do not fix it" but there has been an attempt by some members of Government who do not have direct responsibility for the appointment of judges to interfere in that process. As both the Minister and I have said, the country has been well served by the Judiciary. The appointment of judges should remain the constitutional function of the Government and the process that is in place is sufficient and should be left alone.
There are other issues I would like to be dealt with but they are not up for debate today. As I raised with the Minister's predecessor, the retirement age of a judge of the District Court is 65, although they are entitled to apply on a yearly basis for extensions up to the age of 70. That is demeaning to them and they should be entitled to retire at 70, the age at which judges of the other courts may retire. That age should be raised to 72 for all judges because it takes a number of years to build up the expertise needed to become a judge and if a person is appointed in his or her 60s it gives them very limited time to exercise that function. That should be considered. It is not relevant to today's Bill but it should be discussed further down the road.
Fianna Fáil is very happy to support the Bill and we look forward to the Minister's closing remarks.
I warmly welcome the Minister, Deputy Flanagan, to the House and do so in particular because he is carrying the Bill under his arm. As Senator Wilson said, others have stood in the Minister's place and failed to deliver on this matter. I occupied his position for five years. Prior to my being Minister for Justice it was the desire of the Judiciary to have a judicial council established by law. While I was in office, the situation was slightly different in that I was taking all the initiative and at times it felt as if I was playing handball against a haystack. Happily, several people have now brought about this particular departure in law, which I welcome. I also welcome and hope that the Judiciary, the Executive and the Legislature are singing from the same hymn sheet in respect of what can and cannot be done and what should and should not be done.
I echo what Senator Wilson said regarding our Judiciary being generally and almost universally of a very high quality. We have been very well served by them. Their appointments have generally been wise and appropriate. I echo his sentiment that recent experience shows that very good appointments can be made without the introduction of a very elaborate Judicial Appointments Advisory Board. The cost of the board, estimated at €1 million per annum, seems to be a waste. The real issue is excellence of choice by the Cabinet, excellence of advice by the Attorney General and the Minister for Justice and Equality as to who the best people are who come through whatever filtration system there is and courage on the part of the Government to appoint people on the basis of merit, whatever their political leanings or whether they have any political leanings at all.
I welcome what the Minister said about the terms of the Bill. I particularly welcome his remarks about revisiting section 55(5) which appears to provide for a general regime of secrecy in regard to the manner in which the judicial conduct committee would carry out its functions. I do not believe the majority of judges want that stipulation even if some expressed a desire for it at an earlier stage. It is misguided and most people feel it should not be countenanced.On the other hand, the Judiciary is in a weak position and it must be protected from malicious, vicious attacks on it and there is, in the Bill, a screening mechanism to ensure that people do not bring complaints and have them adjudicated in public just simply in a kamikaze effort to destroy or impugn a person's reputation by having the opportunity under privilege to attack him or her. I believe this is right.
Some people may say that admonishment is not much of a sanction, but we do have to remember, as the Minister said, that the ultimate sanction is vested in these Houses, and that is the sanction of removal under the Constitution. Admonishment may sound somewhat Victorian as a term of criticism, but no judge would lightly disregard a public admonishment from a State council composed of a majority of his or her colleagues on the Bench. Short of removing a judge, it is hard to know what to do that would go beyond admonishment. Nobody is suggesting there should be a system of fines, and that would be, in my view, a very strange thing to do.
The Minister mentioned the question of a register of interests, and that is something about which I have had some worries. I fully accept what the Minister is feeling his way towards, which is some kind of private register that would be internalised into the process of a judicial council. The post of being a Superior Court judge, and I will deal with this for the time being, is not all that attractive today. If one had to lay bare what land or property one owned or what one's means were, in my view it would make people who had any substantial assets reluctant to start announcing what they were. It is an inhibition to those people who do have substantial assets going into politics that they have their private affairs raked over as to what they do or do not own. A lot of people who have wealth would avoid going into politics because they would see it as one area of their privacy which would be interfered with. It has always struck me that probably the greater issue for many judges is to whom they owe money rather than by whom they are owed money or what property they own. If one is indebted for €3 million to a particular bank should one hear a case involving that bank? Is that not much more of a worry? I only mention this to point out the difficulty. I do not suggest that every judge has to register his or her debts to function on the bench. I think that is excessive.
I also want to mention the wording of section 58, which refers to accepting a "reprimand", and section 63(5), which uses the term "admonishment". I presume they are intended to be more or less the same thing. If they are, it would be a good idea if we decided one way or the other in the legislation to opt between "reprimand" or "admonishment" as the name of the declaratory criticism sanction we are dealing with.
The definition in the Bill of judicial misconduct set out in section 2 could perhaps be looked at again. It states judicial misconduct:
means conduct (whether an act or omission) by a judge, whether in the execution of his or her office or otherwise, and whether generally or on a particular occasion, that -(a) constitutes a departure from acknowledged standards of judicial conduct, such standards to have regard to the principles of judicial conduct referred to in section 7(1)(b) and 30(2)
The only thing I would say about it is the phrase "acknowledged standards" seems to be a little vague. There should be generally accepted standards as well as those laid down in any code of conduct. There could be arguments about what is or is not an acknowledged standard. The phrase "generally accepted standards of judicial conduct" might be more objective than "acknowledged standards".
With these few remarks, I congratulate the Minister for bringing the Bill through. I regret it took so long for it to be put before the Houses. Subject to the Minister's points about revisiting some of the sections of the Bill with a view to their improvement, given that these Houses sometimes have a dearth of legislative activity to carry out, this Bill should get fair wind in its sails and be put through with expedition, because there are mishaps in politics and it would be a tragedy if, after getting the Bill to this Stage, anything were to stop it going any further.
I welcome the Minister. I apologise for being slightly late. Senator Conway was to deal with this matter and he was delayed so I apologise on his behalf also. I welcome that the Minister has brought forward this Bill. Like my colleagues, I would also set out that over the past 90 years the Judiciary has served us well and has enjoyed total independence from the Oireachtas and the Government of the day. It has arrived at very fair decisions in its dealing with the public, whether in family law, criminal law or in any other area. There are times when we need to look and see what changes need to be brought about. The Minister has come forward with the Bill, setting out what those changes should be.
Regarding the courts system, there are checks and balances in our Constitution, in that the Government can be held to account through the courts system. Likewise, within the courts there are various appeals processes, whereby in the lower courts one can appeal from the District Court to the Circuit Court, cases initially tried in the Circuit Court can be appealed to the High Court on circuit, and matters in the High Court can go to the Court of Appeal. We introduced amending legislation in this regard in recent years.
The judicial council is something that, as Senator McDowell has outlined, has been sought by the Judiciary for some time. It is welcome that we are bringing it forward. I agree with Senator McDowell on the Judicial Appointments Advisory Board. I am just concerned about the cost of it, in particular when I look back over the years regarding the fair and appropriate manner people have been appointed to the Bench, no matter who has been in government. As I have said, all of the judges down through the years have served us well and have enjoyed that independence without interference from the Government.
I have a concern about the complaints procedure as set out in the Bill. I believe there need to be checks and balances. Whether a case is about a dispute between neighbours or family law, no one will be totally satisfied.I recently spoke to a colleague about a family law case that has gone on for over 16 years in which a lay litigant has used all sorts of mechanisms within the court system to prolong a matter. Every member of the Judiciary operated in a very fair and appropriate manner and gave considerable leeway to the lay litigant. The problem is that the process has now taken a long time to deal with. That is because the judges felt they needed to give that space to the lay litigant. It is about having checks and balances. Nobody could complain about any of the decisions, but the problem for the person on the other side was that delay in the process. The members of the Judiciary are very concerned that a matter coming before the courts is dealt with in a speedy and timely manner. A decision needs to be reached and it should not be allowed to drag on ad infinitum.
The Court of Appeal was put in place due to a delay of over four years in having matters dealt with in the Supreme Court. I understand that a list is now building up in the Court of Appeal, which removes one of the advantages of setting it up. Hopefully that will also resolve itself.
Overall the Bill is welcome. The issue regarding the Judicial Appointments Advisory Board should be reconsidered. While going through the Bill in this House or in the Dáil, serious consideration should be given to that issue. Why do we need to introduce it at this stage given that there will be a cost factor? If the process that has been there for some time needs to be strengthened, so be it. I am not clear if we need to introduce the amendments that are now proposed.
I thank the Minister for introducing the Bill. I thank the Department of Justice and Equality officials for their work. Careful consideration should be given to the amendments.
Gabhaim buíochas leis an Aire. Mar an gcéanna le roinnt de na cainteoirí go dtí seo, tá mé sásta an Bille seo a fheiceáil ag teacht ós ár gcomhair inniu. I welcome the Minister and welcome the Bill, much of which is in concert with what I have been requesting during my short time in this House, as have many others going back even longer, as Senator McDowell said. I am happy to say that my party will be supporting the Bill through the various Stages although we will be proposing amendments on Committee Stage. I know the Minister will welcome and encourage those amendments, and participation by us and others.
The Bill on first reading appears to aim to promote excellence and best practice among judges and the functioning of the Judiciary. It put in place a system to deal with complaints about judges, which fall below the level necessary to trigger impeachment but are deemed not to be abiding by principles of best practice when administering the law of the State.
The judicial conduct committee, to be established under the Bill to examine complaints, will issue an annual report on its investigations. However, to the Bill's detriment, judges' names will not be published in that report unless they fail to co-operate with the committee or fail to complete a sanction imposed on them. I am unsure as to why such a provision would be in place. I ask the Minister to elaborate on that.
While I understand everybody is afforded the right to privacy as a citizen of this State, I fail to see a compelling argument as to why such a clause should be inserted in this Bill, something my party will seek to amend on Committee Stage. Under the Bill, inquiries will be held in private and it will be an offence, attracting a fine of up to €5,000 or a jail term of up to 12 months, to publish any document or evidence provided to the inquiry.
It is worth noting that the Legal Services Regulatory Authority will be holding inquiries into the conduct of barristers and solicitors in public and that no anonymity will be provided. It is not uncommon in other professions, so I do not understand why protections should be afforded to this one as some sort of privilege.
Public confidence in the Judiciary requires not only accountability for misconduct, but also transparency. However, that is not achieved under the legislation currently. Judges who behave improperly should be named. Judges who intend to act properly into the future should have nothing to fear from the inclusion of a measure to publicly name those who act improperly.
My colleague and Sinn Féin justice spokesperson in the last Dáil, Senator Mac Lochlainn, published legislation on 8 October 2015 that sought to introduce a sentencing council in this State. The Senator put months of work into that comprehensive legislation. We plan to introduce many of its provisions on Committee Stage as we feel it would further strengthen the Bill and would complement it.
A sentencing council already operates in England and Wales and provides sentencing guidelines to the Judiciary. This has ensured that sentences handed out for criminal offences in their courts are consistent and accountable across the board. Concern has arisen over recent years about the perceived inconsistency of sentencing in our courts. Of particular concern and controversy have been some sentences handed out for sexual offences, an issue that has again arisen only today after a very small sentence administered to a prominent journalist for a very grave and sickening crime.
Senator Mac Lochlainn has examined the model of the Sentencing Council for England and Wales for some time. We believe that this model of consistency and accountability should be introduced in this State. A key strength of the sentencing council model is that it involves a range of key stakeholders such as victim support groups, academics, senior police officers, senior parole officers and the wider public in the process of establishing sentencing guidelines for the Judiciary. As members of the Judiciary are the majority members of the Sentencing Council for England and Wales and a senior member of the Judiciary chairs the council, they are still central to the process.
However, the sentencing guidelines issued ensure that the Judiciary must stick to the range provided for the category of offence before them. They must also clearly indicate why they have sentenced an offender within that range, taking into consideration the impact on the victim and the blameworthiness of the offender. This ensures consistency and accountability across the court system and across the State.
Similar to the Sentencing Council for England and Wales, the sentencing council we are proposing for this State would develop sentencing guidelines and monitor their use, and assess the impact of guidelines on sentencing practice. It may also be required to consider the impact of policy and legislative proposals relating to sentencing when requested by the Government, and promote awareness among the public regarding the realities of sentencing and publishing information regarding sentencing practice in our court system.
We must consider the impact of sentencing decisions on victims and monitor the application of the guidelines to better predict the effect of them. We need to play a greater part in promoting understanding of and increasing public confidence in sentencing and the criminal justice system overall.
I again reiterate my party's support for the Bill. I commend Senator Mac Lochlainn on his work on our amendment. I thank the Minister for making this Bill a priority and bringing it before us.
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.
I shall now turn to the issue of the sanctions and the refusals. With regard to the reprimand or admonishment, for clarification the reprimand is something that happens at an earlier stage and an admonishment is at the conclusion of an investigation. Section 58 covers where there is failure or refusal by a judge to co-operate and the panel of inquiry makes a report to the judicial conduct committee, but it is hard to see where it goes after that.
My final point is on the secrecy. I am delighted to hear the Minister commit, I think, to making amendments on the issue of proceedings to be heard otherwise than in public. Sections 55 and 69 currently are weighted the wrong way and I suggest that we have a good precedent in the Medical Practitioners Act 2007, section 65 of which states that, "A hearing before the Fitness to Practise Committee shall be held in public unless....". The presumption is, therefore, that hearings are held in public.
I shall not repeat what everyone else has said, although it has all been very valid. I welcome the Minister and I welcome this legislation. The very first thing I did when I came into the House was to propose a motion under Private Members' business, which was passed by this House, when the Tánaiste, Deputy Frances Fitzgerald, was the Minister for Justice and Equality. The motion was broadly welcomed. It was suggested that in December 2016 it would come back to the House. It has been a long time coming and I welcome that. I note in particular the tone in the Minister's speech in the House today. It is clear that he has taken a fresh look at it. The Minister referred to that in his statement.
I have listened to Senator McDowell's contribution and I am interested in the area of the register of interests for the Judiciary. I note the Minister's comments in this respect. We have to tread carefully but I believe there is a case for instilling confidence and there is a desire by people that we have some greater understanding of the process. I am aware that it must be careful. We need to encourage people into this profession. The Minister has made the point that this legislation has to be balanced. This is very important. In his final comments the Minister said that he believes the Bill, "achieves the requisite balance between independence and accountability". That is a really important balance. Personally, I would favour some sort of register of interests for the Judiciary. As politicians we have to complete registers of interests in respect of our work and we are all pretty familiar with that. Local government practitioners, councillors and all sorts of professions now have registers of interest. We must guard carefully what it is about. Senator McDowell raised the valid point about a register of debts of people in the profession. Independence is important.
Maeve O'Rourke was in the House when my colleague across the House discussed the Criminal Justice (Victims of Crime) Bill. The Government opposed an amendment to that Bill that I had tabled, and which was agreed by this House. It was opposed in the Dáil. The amendment proposed a provision for mandatory reporting around the training of the Judiciary, especially in the areas of victims of crime. Perhaps the Minister might take that on board as part of the process.
On balance I believe the Bill to be fair and it is welcome. It is an area that people want to understand. They want to see that the Judiciary is treated like any other profession with a regime regarding conduct. It is welcome legislation.
I am aware that we will have a further Stage on which to table amendments but I particularly welcome the clear set of rules being proposed around the conduct of the Judiciary and the issue of pecuniary interests. It is a balanced Bill. I am not saying that it is open season. We may look at other models and there may be a private register that could be inspected. These are all sensitive issues but they should be addressed.
Cuirim fáilte roimh an Aire go dtí an Teach. On a personal note I thank the Leader of the Seanad, Senator Buttimer, for allowing Senator Colm Burke to cover for me on this issue earlier. I was unavoidably detained in my constituency.
This legislation is long overdue and very welcome. The establishment of a judicial council brings Ireland in line with best international practice. The Minister may have referred already to the unparalleled record of excellence in the manner in which members of the Judiciary do their job. This is well recognised internationally. When the troika was in Ireland it could not challenge the absolute integrity of the Judiciary in Ireland and the independence afforded to the Judiciary directly through the Constitution. Ireland is probably one of the European countries with the longest tradition of democracy. This has been underpinned, in part, by the excellence and independence of the Judiciary. That message needs to go out from Seanad Éireann loud and clear as we begin a new chapter in the distinguished existence of our Judiciary in bringing it into line with best international practice. We are proofing the Judiciary going forward. No more than any profession there will be bad eggs from time to time. When this happens, the bad eggs need to be dealt with in an open and transparent manner.
I absolutely agree about the detail of the Bill. The proposed judicial council will bring the Judiciary into a very modern era. The Chief Justice has allowed cameras into the Supreme Court recently to record the delivery of a judgment. This is a reflection of how the Judiciary wants to see the profession modernised and evolving with modern times.
The proposals in the Bill have a significant amount of positives. I am sure that as we move on to Committee Stage there will be amendments tabled, not just from across the House but also from the Minister, as the legislation continues to firm up. The notion of a system where people declare their interests is very important. I agree with the comments made on this by Senator Boyhan. As Members of the Oireachtas, Senators must submit information annually on properties we own to the Standards in Public Office Commission. Given the important role played by the Judiciary, and in order to prevent any suggested conflicts of interest, a register is certainly worth continued discussion.
The power to impeach a judge remains with the Oireachtas, under the Constitution - I believe it is Article 35.4.1°. That is enshrined in the Constitution and is the ultimate sanction.
The contributions made here today have been positive overall. I thank the Minister for initiating this legislation through Seanad Éireann. I look forward to and hope for a positive engagement to ensure the legislation is as good as we can produce.
I acknowledge what was a very constructive debate. Many important points were raised and I thank Senators Wilson, McDowell, Ó Donnghaile, Bacik, Boyhan and Conway for their contributions. Valid points have been made.
Almost all of the Senators who spoke made reference to the length of time involved in the preparation of this legislation. In this regard I will be very open to giving positive consideration to any reasonable proposals that come by way of amendments on this legislation. The wide-ranging nature of the debate underlines the importance of the issues and the concerns we all share around the need for a Judiciary that adheres to the highest standards of probity and which continues to have a very high degree of trust and confidence of the people.We have that currently but it is important we maintain it on the basis that judges continue to have a vital role to play in our society. Citizens come before the courts daily in large numbers, and going to court can be a stressful experience and a time of worry, difficulty, challenge and, in some respects, trauma. That said, I believe that all our citizens and everyone appearing before the courts enjoys a legitimate right to expect that the highest standards of independence, impartiality, integrity and behaviour will prevail at all times.
The relationship we have as a society with the members of our independent Judiciary is complex. As an institution, the Judiciary derives strength from the confidence we repose in it, and it acts without fear or favour, as it should. We in turn, therefore, feel secure in the knowledge that we can trust it to do its job to the highest possible standards. Judicial independence continues to be recognised, and rightly so, as a core value within our society. The founders of the State were wise in the way in which they gave explicit constitutional effect to that recognition. I believe it is important, therefore, in the context of whatever final shape this Bill has when it goes for enactment, that it will continue to foster that culture of independence and impartiality. It will also ensure there is appropriate oversight in respect of the conduct of judges and will be of benefit in supporting continuing professional development among judges, having regard to the advances in our economy and our society, technological or otherwise. All of us in our professional lives, no matter what we do, need to keep abreast of new developments in advancing technologies, changing practices and anything else that can enhance and further develop our capacity to work in a way that can be described as more efficient. Judges are no different in this regard, and I know they welcome the more structured approach to education and training provided for in the Bill.
I will very briefly advert to some of the points raised by Seanadóirí in the course of the debate. Again, I would be keen to ensure a sufficient lapse of time between Second Stage and Committee Stage to allow for many of the issues we discussed to manifest themselves in amendments, and I assure the House of my full co-operation in this regard.
I welcome Senator Wilson's indication that his party, Fianna Fáil, will support the Bill. As I mentioned at the outset, the Bill has a long history and it has outlived many Governments. I also acknowledge the support of the Opposition, including Senator Ó Donnghaile's and Senator Bacik's welcome for the Bill. I note the point that was made about confidentiality. I have already given a commitment to bring forward amendments on this point but I am open to hearing the views of other Senators. Senators McDowell and Ó Donnghaile also referred to this matter. I agree there is a greater willingness to embrace transparency in this area and I very much welcome that. I acknowledge what Senator Wilson said in reference to the possibility of a member of the public making a complaint against the president of a court where the judge concerned is a member of that court. I understand that this may happen, but on an informal basis. I do not have statistics in that regard at this point. Should I be in a position to provide the Senator with further information on this, I will be happy to do so.
Both Senators Bacik and McDowell referred to the definition of judicial misconduct. I note the reference to "acknowledged standards of judicial conduct". I feel that must be read against the explicit reference to the Bangalore principles. Looking at the Bangalore principles, I think there is a reasonable precision there. As for the use of the term "a code of conduct" as opposed to "guidelines", as referred to by Senator Bacik, I acknowledge that differing terms are used in different jurisdictions. In essence, I do not see any significant difference between the terms. If a better understanding or clearer interpretation would come from the use of one over the other, I am happy to consider it.
I note Senator McDowell's reticence about the matter of the register of interests and I would be happy to hear more from Seanadóirí in this regard. This is a sensitive issue and a delicate matter, but we should be mindful of developments in other jurisdictions, particularly jurisdictions of a similar common law nature to ours. As I said in my initial remarks, I am giving careful consideration to what in the circumstances might be feasible, whatever shape such a register might take. I would be happy to discuss this issue with Senators openly but we have an opportunity here to see how best we can deal with this issue, and I hope we can do so.
Senators Colm Burke, Michael McDowell and Diarmuid Wilson mentioned the Judicial Appointments Commission Bill. Senators will be aware that Bill is currently making its way through Dáil Éireann. It was published in June, and Second Stage was taken before the summer recess. We spent a day discussing the Bill on Committee Stage before the Select Committee on Justice and Equality last month. I can now say that Committee Stage is due to resume in January - I think the date of 18 January was given. It is whatever the Wednesday that is closest to 18 January. I acknowledge, as Seanadóirí will be aware, that a large number of amendments have been tabled. I have an open mind about some of the areas raised in amendments to that Bill but I will have difficulty agreeing to any amendments or making any changes that cut across the basic tenets of A Programme for a Partnership Government and the commitment towards a new judicial appointments commission with an independent chair and what has been described as a non-legal or lay majority. This House will have an opportunity to debate that legislation in its entirety at an appropriate time to be considered after the Dáil has completed its deliberations some time next year.
Senator Ó Donnghaile referred to the need for a sentencing council. The Bill provides for the setting up of a sentencing information committee. The functions of such a committee are to collate an appropriate level of information on sentences imposed by the courts and to disseminate that information from time to time to judges or interested stakeholders, who may be persons other than judges. However, I do not envisage that such a committee will have a role in preparing sentencing guidelines, which, in essence, would be binding on judges. Without seeing the detail of the Bill referred to by Senator Ó Donnghaile, I would hazard a guess that it goes a little further, perhaps considerably further, than what is envisaged under this Bill in the sentencing information committee. However, regarding that committee, it would be expected that the transmission of such information would be very valuable in promoting the overall approach which I think we all agree needs to be consistent regarding the practice of sentencing, not in any way interfering with the fact that each and every criminal case has its own particular circumstances.It would not be wise to impose any restrictions that the Judiciary might consider cut across its independence in terms of sentencing. The House dealt with such a Bill earlier today and I appreciate it is a matter of concern for Senators.
The sentencing information committee will be mandated to conduct research on sentences imposed by the courts, which will undoubtedly be of benefit to judges, practitioners and the wider public, including those who appear before the courts and those who do not but have an interest in the matter as citizen stakeholders.
A number of Senators, including Senators Bacik and Boyhan, referenced the need to be more explicit in terms of the training required, which is a reasonable point. I am open minded on the issue but it is often better to have a general inclusive provision rather than a list as that runs the risk of something being omitted. Having a general framework is often more inclusive. However, we can revisit the issue on Committee Stage.
Senator Bacik referred to the adequacy of the guidance offered to a panel of inquiry when it comes to the reference of a matter to the Minister for action under Article 35 of the Constitution. I again caution against a list as being too prescriptive. However, I am willing to look at the language of the provision and I am happy to engage on it. As regards the refusal by a judge to co-operate with a panel of inquiry, it is explicit in the Bill that in such a case the name of the judge would be published in the annual report with the appropriate adverse consequences that would ensue.
I acknowledge the useful nature of today's debate and the positive tone of all who made a contribution. I apologise if I have not addressed all the points made by Senators in the time available to me but I assure the House that I have been carefully listening and will give appropriate consideration to all points made and proposals mentioned and look forward to a more detailed examination of the Bill on Committee Stage. I reiterate that I am open to offering a positive response to what might be regarded as reasonable proposals for amendment. Let us hope that we can put legislation on the Statute Book that will stand the test of time and acknowledge the very detailed consideration the legislation has had in draft form over many years and Governments.