PUBLICATION OF the outline of a judicial council Bill by Minister for Justice Dermot Ahern represents a work in progress. Its provisions reflect years of negotiations between representatives of the judiciary and successive governments. Because of that narrow focus, there is scope for further improvement in terms of general transparency and the public interest. The separation of powers under the Constitution and the absence of a disciplinary code within the judicial system mean the only penalty for judicial misconduct involves removal from office.
That ultimate action requires a resolution by both Houses of the Oireachtas and it has never been successfully used. A public controversy over the “Sheedy affair”, involving the early release of a prisoner, led to the resignation of two senior judges in 1999. Five years later, Judge Brian Curtin was acquitted on a technicality for the possession of child pornography. By way of a succession of court challenges, he successfully resisted Government attempts to sack him. Finally, he tendered his resigned in 2006 and retired with a pension. His legal costs, paid for by the taxpayer, amounted to more than €1 million.
The need for reform was undeniable, but a general election in 2007 and the near-collapse of the economy in 2008 brought further delays. Now, broad agreement on a way forward has been agreed between the judiciary and the Government. The Oireachtas will retain the right to sack judges for serious offences while a judicial council will be given the power to investigate less serious allegations and propose a range of sanctions. Traditional tensions between the judiciary and the executive are evident in agreement that allows the judicial council, rather than the Government, to prepare guidelines on judicial conduct and ethics.
Judicial independence is a vital element in a functioning democracy. But, just as ministerial behaviour should be open to public scrutiny, so should that of judges. Unfortunately, one of the most striking aspects of this draft legislation is the degree of secrecy proposed. Investigations of misconduct will be conducted in private. The names of judges and complainants will not be divulged in any official reports. The release of such information will constitute a serious offence.
It has taken more than 11 years to get to this point. What is proposed, both in the establishment of a judicial council and a judicial conduct committee, represents an important advance. But the public’s right to know should be given greater weight.