The scheme of the Judicial Council Bill balances judicial independence with accountability, writes CAROL COULTERLegal Affairs Editor
THERE HAVE been many occasions in recent years when the judiciary, or certain of its members, have been embroiled in controversies which have sharply exposed the absence of any body that might either represent the judiciary as a whole, or deal with complaints of judicial misconduct.
Last year the question of the pension levy, and the cumbersome procedure drawn up between the chairman of the Revenue Commissioners and the Chief Justice providing for individual judges to pay it voluntarily in a variety of ways, sharply revealed the absence of any collective voice for the judiciary which could have put forward a collective proposal.
From time to time, the behaviour of individual judges hits the headlines. Often this concerns no more than eccentric remarks or discourtesy in court. There is nowhere for a person who feels offended to go. If the president of the jurisdiction in question (District, Circuit or High) seeks to deal with the matter by speaking to the judge in question, the judge is not obliged to respond.
More seriously, there have been two occasions where judges have resigned following controversy. The first concerned the “Sheedy affair”, when two very senior judges resigned after their conduct was criticised in a report drawn up by the then chief justice, Mr Justice Liam Hamilton. This related to the circumstances surrounding the early release of a man convicted of drink driving, causing the death of a Dublin mother.
Five years later Judge Brian Curtin was acquitted by direction of the trial judge of charges of child pornography due to a defect in the warrant under which his computer was seized. Following a protracted process where the Oireachtas sought to dismiss him, involving a Supreme Court challenge, he resigned on health grounds.
This period saw a number of attempts to establish a judicial council. In 1999 the Working Group on a Courts Commission, chaired by Mrs Justice Susan Denham, recommended the establishment of a Judicial Council, to promote excellence and efficiency within the judiciary and provide a mechanism for dealing with complaints against judges, and a draft Bill was appended to a report on the matter drawn up by a committee established by then chief justice Mr Justice Ronan Keane to consider the issue further.
Its recommendations were broadly accepted by the then government, and draft legislation was drawn up in 2001 which included amending the Constitution to permit the removal of a judge from office, but this failed to obtain all-party support and was withdrawn. Then the Curtin affair further delayed the matter.
There the matter languished for a number of years as relations between the leaders of the judiciary and various governments waxed and waned. It was no secret that some members of previous governments did not want a judicial council that might enhance the strength of the judiciary, while certain members of the judiciary were wary of proposals for investigating complaints, involving lay participation, that they feared might impact on their independence.
A joint committee made up of a representative of the Chief Justice and a civil servant from the Department of Justice worked on a draft Bill last year and the project received fresh impetus when in May this year a conference of the judiciary gave its approval to the draft Bill. Minister for Justice Dermot Ahern then brought firm proposals for the drafting of a Government Bill to Cabinet.
The scheme of the proposed Bill, published today, seeks a balance between the desire of the judiciary for a body that does more than deal with judicial conduct and ethics, and defends judicial independence, and that of the Government to have an effective body for dealing with just those issues of judicial conduct, and which would have lay participation to assure the public of its accountability.
The Bill therefore has two parts, one dealing with the establishment of a judicial council, the other with a judicial conduct committee.
The judicial council will be an independent legal and corporate entity, with its own staff and its own secretary reporting to the Comptroller and Auditor General and the Oireachtas Public Accounts Committee. It will have a board of nine judges from all four jurisdictions to run its affairs, chaired by the Chief Justice with the President of the High Court as its vice-chair.
Among its functions will be adopting guidelines on judicial conduct and ethics, promoting the efficient and effective use of judicial resources, continuing education among judges and respect for the independence of the judiciary. This all suggests it can play a major role in bringing about more homogeneity among the judiciary in terms of work practices, sentencing and conduct.
The reference to promoting “the independence of the judiciary” raises the question of it playing a representative role and speaking publicly on behalf of the judiciary, something that has never happened in the past.
The second part of the proposed Bill deals with the establishment of a judicial complaints committee, with its own administrative and support staff. This will be separate from the board of the judicial council, not a sub-committee of it, as was envisaged by the Keane report, though it is likely to have some common membership and to be chaired by the Chief Justice. It will also have two representatives from each court jurisdiction, along with three lay members, who may not be retired judges, lawyers or public representatives, and have the powers of the High Court to compel witnesses.
The scheme of the Bill makes it clear that complaints relating to judicial decisions, or frivolous or vexatious complaints, will not be entertained.
However, members of the public, court staff and members of the legal profession who have a complaint about judicial conduct will have a forum to go to.
There is extensive provision for the resolution of complaints in an informal manner, and for dealing with issues relating to a judge’s mental or physical health. But there is no doubt that if required, the judicial conduct committee will have teeth.
Judicial bill main points
Establishment of a judicial council
Creation of a judicial conduct committee
New guidelines for judicial ethics and conduct
Creation of procedures for investigating complaints against judges
All investigations will be carried out in private, and the identity of neither the complainant nor the judge may be made public.
The publication of any information or evidence in relation to complaints will be an offence, punishable on summary conviction to a fine of up to €3,000.
Provisions for carrying out an investigation into the mental or physical health of judges.
The judicial conduct committee will have the powers of the High Court in compelling witnesses and ensuring the production of documents.
The judicial council will promote high standards, efficiency and continued education among judges.
It will have a number of committees, including a judicial studies institute, to further education and to provide information, including on sentencing, and judicial support committees.