Draft legislation to provide for the disciplining of judges is now with the Chief Justice, Mr Justice John Murray, and the Minister for Justice is seeking his comments before it is finalised, The Irish Times has learned.
The draft is also with the Attorney General's office, which has forwarded its observations to the Department of Justice. The legislation has been planned since the publication four years ago of a report from the Committee on Judicial Conduct and Ethics, chaired by the then chief justice, Mr Justice Ronan Keane. It recommended a the setting up of a judicial council that would represent the entire judiciary in the way the Bar Council represents barristers. It would have three committees, dealing with judicial conduct and ethics, judicial training, and the pay and conditions of judges.
The sanctions it proposed, which would be imposed by the judicial committee itself, ranged from an admonishment to a private or public reprimand, to a recommendation that the Oireachtas take the steps provided for in the Constitution to remove the judge in question. The committee could also recommend education or training.
Since the publication of this report the Brian Curtin affair has intervened, highlighting the absence of any provision for the disciplining of judges, short of impeachment by both Houses of the Oireachtas.
Judge Curtin, who was acquitted of possessing child pornography, unsuccessfully challenged the process initiated by the Oireachtas in the High Court earlier this year. His appeal against the High Court judgment is listed for hearing by the Supreme Court at the end of October.
Minister for Justice Michael McDowell is anxious to distinguish the legislative proposals from the Curtin affair, pointing out that this process was initiated before it erupted.
However, legal sources consider it unlikely that the legislation will be finalised before the Supreme Court has pronounced on the issues raised in Judge Curtin's judicial review proceedings and answered by the High Court judge, Mr Justice Thomas Smyth. His judgment will be either upheld, rejected or modified by the Supreme Court, creating new law on the matter.
It is understood that the proposed legislation does not follow the Keane report in all respects. This report gave equal emphasis to the need for education and training and for a disciplinary mechanism. The draft legislation emphasises the disciplinary aspect, and also has little to say on the question, also raised in the Keane report, of representing judges in relation to their terms and conditions. It is also understood that the draft legislation contains more provision for lay participation in the disciplinary process than envisaged by the Keane report.
The composition of the judicial council, as well as of the disciplinary committee, is likely to be of concern to members of the judiciary, as well as other legal professionals. There was no provision, for example, for solicitors' representatives to play a role in the structure proposed by Keane, and it is understood that this remains the situation in the draft legislation. Solicitors and barristers, along with officials of the Courts Service, could be the main sources of complaints against members of the judiciary, as they have to deal with them on a daily basis.
The Keane proposals involved a judicial council composed of the whole judiciary. However, it is understood that earlier this year Mr McDowell and Mr Justice Murray discussed the possibility of the formation of a judicial sub-committee. Mr McDowell told The Irish Times yesterday that this "will have to be an autonomous body".