Check Against Delivery

Judicial Council Bill 2017
Second Stage - Seanad Éireann
 Speech by Mr Charlie Flanagan, TD, Minister for Justice and Equality 
22 November 2017


I am very pleased to introduce this Bill in the Seanad.   Indeed, I would recall that, in October of last year, the Government accepted a Motion which was put down in this House calling for the establishment of a Judicial Council and for the publication of the Bill which would provide for that establishment.   

This is an important and long-awaited Bill and I look forward to hearing the comments of Senators in relation to it.  It has had a somewhat tangled history and many hands have contributed to its making.   However, it would be remiss of me if I did not single out for special appreciation the contribution which has been made since the outset of the work by the former Chief Justice Mrs Susan Denham.   Her commitment to this project was beyond question and her vision and energy were very much in evidence on more than one occasion.

The primary purpose of the Bill is to provide for the establishment of a Judicial Council.   It has long been recognised that the absence of a Judicial Council in Ireland has meant that we have been 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 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 the judiciary.   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 will institute 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 you know that Article relates to the removal of a judge from office for stated misbehaviour or incapacity.

The judiciary is one of the fundamental pillars of our democracy and its independence is guaranteed by the Constitution.   However, the fact that it represents a separate branch of government does not mean that it is separate from the society which it supports and which, in turn, supports it.   The Bill which is before the House has a delicate balance to maintain.  It 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.   However, that independence is not a privilege for the individual judge.   Rather, it is a protection for the individual rights and freedoms of citizens under the law.  

It follows, therefore, 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, an accountability gap which has existed heretofore, and which this Bill proposes to address, relates to the absence of a mechanism for dealing with complaints by individuals about judicial misconduct which would not require an intervention under the Constitution.

Before dealing with the content of the Bill, I would like to touch upon two matters which have recently been in the public domain – the need for the so-called secrecy provisions in the Bill to be removed and the need to establish a public Register of Pecuniary Interests for judges.

In relation to the former, I have had the opportunity to review the Bill since becoming Minister for Justice and Equality and I think it fair to say that some of the provisions which aim to protect the confidentiality of the complaints process do not sit well with current understandings  of accountability and transparency.   I am considering the nature of the amendments which might be made to these provisions

In relation to the latter, there are not too many models in the common law world upon which we can draw in putting a Register in place.   Indeed, while many jurisdictions have seen debates about the need, or otherwise, for a Register of Interests 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 am exploring options in this regard. 

My preliminary thinking is that the Oireachtas would have a role in setting out the broad parameters which should inform the creation of a Register but that the operational aspects would be embedded within 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 and, while acknowledging the need for greater openness in relation to pecuniary matters, we would also acknowledge the independence which judges are vested with by virtue of their constitutional office.   This is a matter to which I would hope to return during the course of Committee Stage

Turning now to the Bill itself, I would like to outline its main provisions. 

Part 1 of the Bill 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 which 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 the Round-Table Meeting of Chief Justices held in the Peace Palace in The Hague on 25-26 November 2002 and endorsed by the Member States of the UN Commission on Human Rights in 2003.  

Part 2 of the Bill concerns the Judicial Council itself and provides for its establishment.  In addition to the function of promoting and maintaining excellence in the exercise by judges of their judicial functions 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 and 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 by Part 5 of the Bill.   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 Presidents of each of the Courts, 5 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 4 meetings per year and may also 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 and training of judges which will be broader than the role currently undertaken by the current committee of the same name in relation to these matters.

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 it in an expanded way, the role currently carried out by the Committee on Sentencing Information which has been in existence for a number of years.   

Judicial Support Committees will be available to each of the Courts to advise and assist the Council in the performance of its functions insofar as matters relevant to the Court to which the Committee relates are concerned.  

It will be possible for the Council to appoint persons who are not judges to be members both of the Judicial Studies Committee and of 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 will also act as Registrar to the Judicial Conduct Committee.  Funding for the Council will be provided via the 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 of the Bill 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 in relation to judicial misconduct which falls outside the 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 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 would not apply.

Many in this House will be aware of the history of this Bill.   However, in order to contextualise the complaints provisions in particular, I would recall 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 the following year.  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 and demonstrated insensitivity to the feelings of litigants, witnesses or members of the public.

At the heart of Part 5 of the Bill is the provision relating to the establishment of the Judicial Conduct Committee.  The function of that Committee is to promote and maintain high standards of conduct.  Given the importance of this function, I think that it would be helpful for Senators if I set out some of the ways in which the Bill envisages that this function will be carried out in practice.

The Committee is to consider complaints and refer them for resolution by informal means or for investigation.  It is to prepare and submit draft guidelines to the Board concerning judicial conduct and ethics within 12 months of the Committee’s establishment with a view to their adoption by Council.   Furthermore, it may provide advice and recommendations to an individual judge or to judges generally on judicial conduct and ethics.

In terms of its membership, the Committee will have 13 members.  It will be chaired by the Chief Justice and 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 3 elected judges on the Committee.  Finally, there will be 5 lay members who will be appointed by Government following on from a selection process which will take place under the aegis of the Public Appointments System.  

In keeping with the need for transparency in relation to the investigation of complaints, the Committee is required to publish the procedures which are to be followed in the making, the investigation and the determination of a complaint. In broad terms, the process will be as follows.   The Registrar, applying the criteria set out in the legislation, will determine whether or not a complaint is admissible.  If the complaint is determined 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 3 members of the Judicial Conduct Committee – 2 judges and 1 lay person.   It should be noted that the complaints regime will only apply to judicial misconduct that is alleged to occur after that regime enters into force. 

In order to introduce certain efficiencies into the process, provision is made for the possibility that a judge may consent to being reprimanded by the Judicial Conduct Committee either before the 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 a judge fails to cooperate 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 case of judicial misconduct should go without investigation simply because no complaint had been made. 

The actual investigation of a complaint will be carried out by a panel of inquiry.  Panels of inquiry will have 3 members – 2 judges and 1 lay member.   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 35.4.1. 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 35.4.1, any subsequent action becomes a matter for the legislature and not for the Committee.   This affirms the prerogative of the legislature in relation to this matter, a prerogative which is given explicit recognition by way of a statement in the Bill that nothing in the Act should be construed as affecting the power of the Oireachtas to remove a judge from office.  

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 that report and given the opportunity to make submissions if they believe that fair procedures have not 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 “admonishment” may not sound very serious or punitive to modern ears - but I am sure that the lawyers and Constitutional experts in the Chamber will agree that these may be considered quite serious sanctions  for a judicial officer holder in the context of the authority and independence of that office.   It should also be borne in mind that this Bill does not displace the constitutional role of the Oireachtas nor its powers under Article 35.4.1 to remove a judge from office for stated misbehaviour or incapacity.  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 also be 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 in relation to the recommendations included in the report and, where necessary, an oral hearing may be held.  
A final provision to which I would like to draw the attention of Senators relates to the Annual Report which the Judicial Conduct Committee is required to produce.    The Bill sets out an extensive range of statistical data which must be included in that Report.   This will provide a useful perspective on the work of the Committee and will also provide a means of evaluating the effectiveness of the proposed complaints regime.

In conclusion, I would like to thank Senators for their attention and I look forward to hearing your observations on this Bill.   Because of its centrality, I have spent some time in dealing the complaints regime which the Bill will establish.   However, I think it right to recall that we are fortunate in that we have a judiciary which is extremely well regarded in terms of perceived independence and integrity.   This is reflected in the fact that Ireland has consistently received high rankings in this area both in successive Global Competitiveness Reports from the World Economic Forum and in the EU Justice Scoreboard.   It is very important that we remember this as the debate on this Bill goes through the Houses and that we have a full understanding of the special position of judges under our Constitution.  I believe that the Bill achieves the requisite balance between independence and accountability and I commend it to this House.