Reverberations from the Philip Sheedy case continue to agitate the judicial and court systems and the Government is under intense political pressure to introduce far-reaching reforms as a matter of urgency. The Minister for Justice, Mr John O'Donoghue, has already indicated support for change by endorsing the recommendations of the Working Group on a Courts Commission and forwarding them to the Chief Justice, Mr Liam Hamilton. He also supplied the Chief Justice with more radical proposals for change generated by his own Department. At no stage, however, has either the Minister or the Government enunciated a position on the need for a Constitutional referendum, a key indicator of whether change will be radical or cosmetic. This is not good enough. Almost three years ago, a Review Group on the Constitution advocated holding a referendum to allow for the introduction of a statutory disciplinary and regulatory system for judges. It found the existing arrangements, whereby the Oireachtas is empowered to remove judges for stated misbehaviour, both inadequate and cumbersome and concluded that the situation required Constitutional change. The inability of the Chief Justice to make recommendations to the Government - never mind impose disciplinary sanctions on his colleagues - arising from his investigations in the Sheedy case, validated that view.
In contrast, the report of the Working Group on a Courts Commission, composed overwhelmingly of judges and lawyers, favoured a non-statutory approach to the difficult area of judicial conduct and ethics, involving self-regulation and the gradual evolution of new procedures and practices. The report was prepared well in advance of the Sheedy controversy and before public confidence in the administration of justice was so badly shaken. In the light of what has transpired, however, the need for a more radical approach is surely beyond question. The Chief Justice was invited by the working group to establish a committee to advise him on these matters but, given that the Chief Justice is due to retire within the year, greater urgency is required. Mr Justice Hamilton would do a considerable service to the State and to the legal profession if he addressed these issues immediately and directly and made radical proposals to the Government.
Maintaining the separations of power between the legislature and the judiciary does not require that any monitoring and disciplinary system must be self-regulating. There are plenty of examples where independent input is seen as vital in ensuring proper accountability by powerful institutions. And it certainly does not mean that it should be informal. That could perpetuate the failures of the past where judges refused even to agree general guidelines on sentencing policy.
Recommendations for reform by the Department of Justice go far beyond what the judiciary may find palatable. The constitutionality of the practice whereby judges entertain a system of "plea bargaining" in their chambers is questioned, in light of the requirement that justice must be seen to be done. And the recent innovation of a judicial "review" system is also called into question. But the Government also has a responsibility to put its house in order.
Secrecy surrounding the practice of Ministerial clemency, where court penalties are waived or reduced, must be broken. There should be an annual report on all such interventions to the Dail. And the release of prisoners, because of a revolving door policy in our overcrowded jails, should also be catalogued. As for the proposed Parole Board, its effectiveness will be limited because its remit confines it to dealing with prisoners who spend five years in prison. A more robust approach to reform is required all around.