There is a Judicial Studies Institute which deals with the issue of providing training, education and research for judges who are not simply left on their own. The institute has an annual budget of €350,000 which is spent on conferences, lectures, courses and the like which members of the Judiciary organise. It is not the case that people are simply appointed to the Bench, that that is the end of their intellectual development or that they are left to their own devices to read themselves further into their job. The institute is up and running and effective.
The Deputy also raised the issue of the behaviour of judges, particularly behaviour that falls short of grounds for impeachment but nonetheless raises questions about the conduct of judges in the discharge of their functions and otherwise. As Attorney General, I served on a committee established in the aftermath of a case that was the subject of great public controversy, although I will not go into that now. A detailed report was submitted to the Department of Justice, Equality and Law Reform which has been on my desk for some time. The problem is that to convert it into legislative form will require time but there are other legislative pressures on me from all quarters. Therefore, I have had to prioritise other matters in accordance with the wishes of the House. That is not to say the Deputy is wrong to remind me of the requirement for it. I believe a judicial council should be established by statute and I intend to do so. A judicial conduct committee should be part of that judicial council's structure while the Judicial Studies Institute should form another portion. It will be a parallel structure with the Courts Service. I hope the two bodies will be able to share the same secretarial and administrative functions as far as possible to minimise extra expenditure by the Exchequer.
There is a need for a degree of lay representation in the judicial conduct committee. It is important that where an instance of judicial behaviour is deemed worthy of investigation, the investigation should not be confined to members of the Judiciary. Persons from outside the judicial and legal world should be part of the procedure in order that the public will have maximum confidence in the outcome of such inquiries. It will not simply be a case of the judges investigating themselves.
Some have argued that such a body is inconsistent with the independence of judges under the Constitution. I radically disagree with this opinion. Misbehaviour by a judge is not somehow authorised or encompassed by the notion of judicial independence. On the contrary, if there is behaviour by a judge which is worthy of censure, there should be a formal system for so doing without the nuclear option of tabling a motion for his or her removal from the Bench by a decision of the Oireachtas.
It is not simply a question of judges making inappropriate remarks, although that has happened on occasion. The Deputy should acknowledge that the two members of the Judiciary to whom he referred acknowledged that they had made a mistake and apologised for it in public. God knows, if we were to be as censorious of ourselves for the mistakes made, we would spend a great deal of time apologising for the inappropriate or careless remarks everybody makes in the political process. It does occasionally happen that a well meaning remark carries an unintended implication. Those concerned suddenly realise afterwards that the remark came out wrong; they did not mean it to carry a xenophobic or racist implication.
We expect the Judiciary to deal independently and vigorously with the matters that come before it. We expect its members to deal with them immediately, not to go off to their chambers to write out the judgments and stay absolutely silent in case they might make a mistake. They are bound to make mistakes from time to time and are bound to make remarks which, in the cold light of day, do not look good. Therefore, it is to the credit of both members of the Judiciary in question that, when they saw what they had said in cold print, they took the first opportunity to explain in public, from the bench, that they did not mean to insult or belittle any section of society.
There are other forms of judicial misconduct, however, which also have to be borne in mind. One of them involves the potential situation that would arise if a judge were, for instance, to show favouritism to a particular lawyer or client, or to act in a manner which suggested prejudice of some kind. Alternatively, a judge may inexcusably delay judgment in a matter to the detriment of the judicial process and the litigants. I am not suggesting that is the case but one may well arrive at a situation where a judge might at some point, because of a problem with alcohol or a psychological problem, require some degree of counselling. It is important that members of the public should have some means of making a complaint – a serious one, obviously, not just a trivial complaint – about a judge's behaviour so that a view might be formed as to whether remedial steps can be taken concerning that grievance.
I do not believe that the Constitution impedes the creation of such a judicial council or the establishment of a body with lay participation, which would deal with those kind of matters. If a serious act of judicial misconduct were to be uncovered or established through such a process, the process itself could end up with a report being made to the Oireachtas with a view to considering an impeachment motion. Detailed work has gone into this matter and I hope to produce legislation during the first part of 2004 to advance the process of a judicial council and build on the work of the committee, on which I participated as Attorney General.
Deputy Cuffe raised the method by which judges are appointed. Under the Constitution it is a matter for the President acting on the advice of the Government. That is a constitutional prerogative which cannot be trenched upon in a way which fundamentally changes it. The Deputy will be aware of the Judicial Appointments Advisory Board. Its proceedings are confidential and it evaluates applicants for judicial office carefully and confidentially. The board provides the Government with a short-list of applicants. In furnishing it the board, in effect, certifies to the Government that those on the list are fit and proper persons whose appointment to the bench the board would recommend. That is as far as it goes, however, because under the Constitution the Government is not bound by the advice of the board. In any case, where the Government is not going to rely on such advice, it is bound to make that decision public by the simple method of not recording in Iris Oifigiúil the fact that the appointment was made on the advice of the board. It is impossible to pretend, in secret, that a particular nominee was, in fact, appointed by the board. That is the legal position.
Deputy Cuffe went one step further by suggesting that other jurisdictions have different ways of appointing judges and that we should consider the issue more broadly. He hinted at the suggestion, although I know he does not mean to push it too far, that the present situation might in some sense be seen as politicising the Judiciary. That may be, but the alternative methods might be far more politicised, such as, to take one example, the American congressional system. Under that system, the world view and personal life, as well as the social, economic and political attitudes and records of candidates are scrutinised in public by people who are highly political in their approach to these matters. Would we end up with a more or less politicised Judiciary in those circumstances? One would have to ponder that question long and hard before being able to claim it as an improvement which we should adopt in our system. Would it be desirable that the merits or demerits of any particular appointment to the bench should be examined and commented upon in public, before such an appointment was made, by a group of elected people who, with the best will in the world, frequently act in a political and partisan manner? They are elected on an ideological basis to represent one ideological world view, rather than another. The proponents of change in this area would have to establish that their new, alternative system was significantly better than the present system and was free of the pitfalls I have mentioned, before it could be adopted. I am not being unduly conservative about this but I do not think we should embrace change for the sake of it, unless we are clear that the consequences of that change would be those that were originally canvassed by its advocates.
There is no point in seeking to depoliticise the Judiciary by having a Dáil debate on the merits and demerits of every applicant for the bench. The very fact that one has such a public examination must, considering the American experience, deter some people from allowing their names to go into the bear pit of public controversy and political discussion. There must be some people who would say, "It's not worth the candle. I'm not going to subject myself to being torn apart or being cross examined as to my views, or have my attitudes since I was a student scrutinised." The investigation of members of the Judiciary in states which allow for that, have been so far reaching and personal that there is, both among solicitors and barristers, a substantial category of people who would never subject themselves to it. They would prefer not to sit on the bench rather than enter the public arena and be rejected after a hearing. Some people may ask what they have to hide. That is one view but there are cases where people simply regard their own privacy as important. In this context, I have never seen political partisanship being exercised on the part of the Judiciary.
A number of remarks were made recently in the House about the bin dispute, but I thought it was probably wiser not to intervene to contradict them. They suggested that one class's interest, one political interest or one world view was being served by the Judiciary. We, as a Legislature, live under our Constitution in which we accord independence to the Judiciary and we expect it to be impartial. A concerted campaign has been waged on the airwaves, in the print media and in this House to insinuate that people have been jailed because of their political opinions or because they engaged in a protest. However, nothing could be further from the truth. The Judiciary has not punished anyone who was not brought before the court and asked the simple question of whether he or she would obey the law of the land, established by a democratic Legislature under the Constitution, or if he or she proposed to continue to breach that law. No one who answered that question by stating that they intended to obey the law of the land and undertook to do so has been punished in any way. No one has been punished by the Judiciary for engaging in lawful protest, nor could they be because that would be an unconstitutional act by a judge and would be subject to immediate appeal if it were attempted.
The suggestion made repeatedly in this House that people have been punished by a Judiciary which is biased in some institutional sense against them because they have engaged in peaceful protest is untrue, is a black lie and is a calumny on the Judiciary. That is not what anyone has been punished for. Whatever view one has about the bin protest and the tactics adopted and whether, like some Members of this House, one sympathises with the protest, it should not be stated that anyone has been jailed for engaging in a lawful peaceful protest. That is not and will not be the case. They would immediately be entitled to habeas corpus if that was the case.
There has been a concerted campaign, which has been repeated day in and day out both in this House and in the media, to suggest the Judiciary is prejudiced and biased and is acting at the behest of Government against individuals, but nothing could be further from the truth. Just as this House passed a resolution requiring one of its former Members to comply with the law of the land in another respect and condemned his failure to do so, the same applies to someone who is found by an impartial tribunal, namely the courts, to be in breach of our criminal law in respect of the way in which he or she interferes with the provision of bin services.
I take this opportunity to emphasise that although as Minister for Justice, Equality and Law Reform I have sat through debate after debate and Order of Business after Order of Business where that calumny has been constantly repeated, it is not true and it should not be repeated in this House. It is not true that anyone has been punished for lawful peaceful protest. It is only people who have been asked solemnly and in court to indicate whether they will abide by the law of the land and who have indicated a determination not to do so who have been subjected to the process of contempt of court. It is important to make that point.
