Judicial Council: Motion

I move:

That Seanad Éireann:

- recognises that judicial independence is enshrined in Article 35.2 of Bunreacht na hÉireann;

- recognises that judicial independence is an integral component of the doctrine of the separation of powers;

- recognises that public confidence in the independence of the Judiciary could be enhanced if formal procedures were established to review the conduct of all judges and to promote excellence in the exercise by judges of their judicial functions;

- acknowledges the work of the Committee on Judicial Conduct and Ethics and the recommendations contained in the committee’s report of December 2000;

- supports, in particular, the recommendation of the Committee on Judicial Conduct and Ethics which called for the establishment of a judicial council of all serving members of the Judiciary to oversee judicial conduct and ethics;

- recognises the experience and positive outcomes associated with establishment of judicial councils and commissions internationally, particularly in Canada and New South Wales;

calls on the Government:

- to legislate to establish a judicial council to provide a framework of judicial conduct and ethics;

- to commit to the early publication of the Judicial Council Bill which incorporates the comprehensive recommendations of the Committee on Judicial Conduct and Ethics to provide for effective remedies for complaints about judicial misbehaviour, including lay participation in the investigation of complaints;

- to consider ways to support and improve the operation of the Judiciary by providing for judicial studies and support committees, as envisaged by the Judicial Council Bill, in order to bring about greater efficiency and uniformity in judicial services and to improve their quality.

I thank the Minister of State, Deputy David Stanton, for attending. I want to preface my remarks by saying we have an exemplary Judiciary and that in no way does anything I am suggesting seek to undermine the calibre or integrity of the Judiciary which has served the nation with distinction.

The independence of the Judiciary is a central tenet of our democracy and enshrined in the Constitution. Article 35.2 of the Constitution states: “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”. Judicial independence does not just apply for the benefit of judges but also for the people. It ensures public confidence in the administration of justice and without that confidence, the rule of law would be threatened.

The objective of a judicial council was not set out as an objective of the Government in the current programme for Government and there is no reference to such a council in the document that guides Government policy. That is not to say it is not supportive in principle and I have spoken to a number of people in government who are sympathetic and supportive of the principle behind a judicial council. In order to safeguard public confidence in the Judiciary, I propose the motion and call on the Minister to publish a judicial council Bill without further delay.

With regard to the background to the motion, in 1999 the Working Group on a Courts Commission provided a report for the then Chief Justice, Mr. Liam Hamilton, now deceased, on the question of judicial conduct and ethics. This was against a backdrop of the resignation in that year of a High Court judge in what was known as the Sheedy affair. One of the recommendations of the working group was the establishment of a judicial council which would promote excellence and efficiency in the performance by judges of their judicial functions and would provide a process for investigating complaints of alleged breaches of judicial ethics. The Chief Justice established a committee to examine the general issue and it produced a report in December 2000, known as the Keane report. The report concluded that the existing structures for dealing with concerns about judicial misconduct were inadequate. It contained reasonably detailed proposals for new legislation.

In 2010 the then Fianna Fáil Minister, Mr. Dermot Ahern, introduced the general scheme of a Bill to give effect to the recommendations of the 2000 report, the Judicial Council Bill 2010. The general scheme of the Judicial Council Bill was published in August 2010 and took into account the recommendations of the 2000 report. The purpose of general scheme of the Bill was to establish a judicial council of all judges to promote high standards of conduct among judges and supports for judges. Central to the Bill is provision for effective remedies for complaints about judicial behaviour.

The provisions include the establishment of a judicial conduct committee, with lay participation in the investigation and consideration of complaints. This is very important and I hope it will be taken on board when a new Bill is finally published. The Bill envisaged the establishment of the judicial council as an independent corporate entity with its own board. It would also facilitate the ongoing support and education of judges through the Judicial Studies Institute and by the establishment of a judicial support committee. The general scheme of the Bill proposed the establishment of a judicial council of all serving members of the Judiciary which would be independent in its functions and have its own seal. Functions of the judicial council should be to maintain and promote the following: excellence in the exercise by judges of their judicial functions; high standards of conduct among judges; the efficient and effective use of judicial resources; continued education among judges; and respect for the independence of the Judiciary. I acknowledge and stress the last point. The judicial council might consider other matters, perhaps a register of interests for judges, but that would be a matter for it. I am very conscious of the separation of powers and the issue of interference by the Executive in the workings of the Judiciary.

The establishment of a judicial council is not just being called for by me but also by the Chief Justice, Mrs. Susan Denham. In an article in the October edition of the Law Society Gazette the Chief Justice said the lack of action in establishing a judicial council was a matter of real concern both for the Judiciary and the State. She added that the Judiciary had been advocating for its establishment for over 20 years. The establishment of a judicial council is long overdue. I look forward to hearing from the Minister of State with an exact timeline for the publication of a judicial council Bill. I commend the motion to the House for its careful consideration and support.

I second the motion. I welcome the Minister of State, Deputy David Stanton. I concur fully with and support completely what has been said by Senator Victor Boyhan.

By way of background, I was appointed Attorney General in 1999. I succeeded Mr. David Byrne as a member of the Committee on Judicial Conduct and Ethics which had been established, as Senator Victor Boyhan said, in the wake of the Sheedy affair. I became Minister for Justice, Equality and Law Reform in 2002 and my Department set about the preparation of legislation to give effect to the judicial council idea as recommended in the report. It was my intention at the time that we should do so in consultation with the Judiciary and I set about, through the usual channel, seeking the views of the Judiciary rather than seeking to impose on it without consultation the model recommended in the report.

It is a matter of record, one about which I was reminded recently while reading about it in a newspaper, that the process never came to fruition while I was the Minister for Justice, Equality and Law Reform. The impatience on the part of the current Chief Justice was to be found at that time in the Department. As far as it was concerned, the reason the matter was not being dealt with as a matter of urgency lay in the Four Courts, although precisely where the blame lay in the Four Courts is a different matter.

Whatever the history of the issue, the heads or scheme of a Bill were published in 2010, as Senator Victor Boyhan stated. Six years later, the need for a judicial council is as obvious now as it was then. Such an institution is badly needed to protect the Judiciary and guarantee its independence. In these circumstances, we should have an assurance from the Government that the scheme is about to be published in Bill form.

There has been controversy in recent times about whether there is an arrangement in place, at Cabinet level at least, between some members of the Government and the Independent Minister for Transport, Tourism and Sport, Deputy Shane Ross, that no new appointments will be made to the Bench until the Bill the Minister favours is passed through the Houses of the Oireachtas and made into law. There is no evidence that the exact scheme, as adumbrated in the programme for Government, has the support of a majority in either the other House or this House. Deputy Jim O'Callaghan has tendered a Bill which is a better model and one that is more likely to produce better recommendees for appointment to the Bench. I do not know what other Senators' views are on the matter. Whether Deputy Jim O'Callaghan's Bill is progressed, whether the Government introduces a Bill or whether some kind of consultative process commences between the Government and the Deputy that gives rise to the early progressing of his draft legislation is beside the point. The real point is that there cannot and should not be a circumstance where members of the public are told by one Minister's political advisers, through the media, that there is a moratorium on the appointment of judges. I note the chairman of the Bar Council has pointed out that this is improper. It is wrong to hold up the process of appointing badly needed judges pending the delivery of legislation which has not even be drafted, let alone put before a committee for pre-legislative scrutiny. The Judiciary should not be used in this manner and the issue of appointments to the Judiciary should not be hijacked to make a political point.

If the Government has so little confidence in its members collectively to select good judges, it says more about it than anybody else. The Government is not even bound to accept recommendations made by the Judicial Appointments Advisory Board. If it has so little confidence in its ability to select good members from either side of the legal profession to become judges - people of quality, integrity and independence - it speaks very badly of the board. I ask the Minister of State to clarify whether the suggestions made by the Minister that he has secured an agreement, understanding or decision at the Cabinet that no judicial appointments will be filled pending the passage of the Bill referred to in the programme for Government is correct. I have read newspaper editorials on the issue, about which I also wrote an article. The public is entitled to a fair, straight answer on this issue. If such an arrangement is in place, it should be repudiated because it attacks the Constitution, which states it is the duty of the Government collectively to appoint in accordance with the law. If no such an arrangement is in place, we should be told and the non-appointment to current vacancies should be explained.

I fully accept that the Minister for Transport, Tourism and Sport and the Independent Alliance have an appetite for reform of the Judicial Appointments Advisory Board. While the two Houses are putting in place reforming legislation, there is no reason the board cannot be trusted to carry out its constitutional duty to select good people to be appointed to the Bench. It is a scandal that one Minister could give the Government the impression that he has effectively put his foot on the brake to stop such appointments because he does not trust himself and his colleagues to make proper appointments.

Cuirim fáilte roimh an Aire Stáit go dtí an Teach. It is great to have a busy Minister of State take time to come to the House and show respect for the Seanad and the work it does. I thank Senator Victor Boyhan for proposing the motion. He and his team put much thought into justice issues, as is reflected in the important motion before us.

I listened carefully to Senator Michael McDowell outline his experience as Attorney General and subsequently as Minister for Justice, Equality and Law Reform in the eight-year period between 1999 and 2007. During that period, it was not only problematic but nearly impossible to move on this issue. This shows how slowly the wheels are turning on this issue. I have no doubt that the fault lies in the Four Courts, as the Senator noted. The Department may be much maligned, but it would certainly not delay a measure by eight years. Large bodies move slowly and many traditional bodies do not want change, as was evident during the previous Government's term when the Legal Services Regulation Bill was challenged. While some of the concerns raised about that legislation were genuine, and they were addressed in the final product, as it were, they were symptomatic of a profession that is slow to embrace change, although to be fair, when it embraces change it does so fully.

I share the concern expressed by Senator Michael McDowell on media speculation that a certain Minister has an issue with the making of judicial appointments and wants specific legislation passed before any meaningful judicial appointments are made. This does not say much for the eminent judges who were appointed in the past 20 years by various Governments under what may be described as the old system. Ireland is extremely fortunate to have judges of the utmost integrity and it is appropriate that the separation of the Judiciary, Executive and Legislature is observed to the nth degree.

When legislation finally comes before the House it will introduce safeguards and proper checks and balances to ensure a procedure is in place for dealing with a member of the Judiciary who is not following the eminent traditions of the Judiciary, if one likes. Such legislation is necessary and would bring us into line with many of our European neighbours in respect of the appointment of judges.

In my experience, motions of this nature in the Seanad are important because they ensure a Minister comes to the House to account for the Government's position on the subject of the motion. I am pleased to note the Government is not opposing this motion.

It is a very positive statement that they agree with the principle behind the motion.

We have a unique facility in Seanad Éireann by which any one of us can table a motion. The Government is then required to outline its position. I certainly look forward to what the Minister of State, Deputy David Stanton, will have to tell us, particularly about the timeline. We all know that the legislation is imminent. We all know that it is in the autumn legislative programme, known as the A list. If it is on the A list, it means that it is the Government's absolute intention that it should be with us prior to the Christmas recess. We are probably talking about seven or eight weeks. The Minister of State may even be in a position to tell us in which week it will come before us. He will be delighted to know that we in Seanad Éireann will have no problem initiating the Bill and putting it through this House in the first instance, as we have done with many other Bills, in the unlikely event that the Dáil schedule is packed with legislation. From where I am standing, the Dáil has plenty of time to discuss legislation because there is precious little going through it. In the event that the Dáil has a problem and there are difficulties with timetabling, we would be very happy to initiate the Bill in this Chamber.

I offer many congratulations to Senator Victor Boyhan and his assistant for putting the motion together. I look forward to hearing the rest of the contributions.

I commend Senators Victor Boyhan, Michael McDowell and Gerard P. Craughwell for bringing forward the motion on the establishment of a judicial council. The establishment of a judicial council is hugely important and something the Fianna Fáil Party and I fully support. As outlined by Senator Victor Boyhan, Fianna Fáil brought forward a judicial council Bill in 2010 in an attempt to ensure continued public confidence in judicial integrity. As a result, an interim judicial council was established in 2011. It was tasked with dealing with pending legislation to provide for a judicial council. Following this, the previous Fine Gael-Labour Party Government pledged to legislate to establish a judicial council with lay representation to provide an effective mechanism for dealing with complaints against judges. The pledge was not honoured and the Government reneged on yet another of its promises. I, therefore, find it difficult to believe, as the Tánaiste stated in this Chamber last week, that a Bill to provide for the establishment of a judicial council will be produced in this session.

The establishment of a judicial council would go a long way to ensuring Ireland would fulfil its commitments under the Council of Europe's group of states against corruption, GRECO, report recommendations. GRECO's evaluation report published in November 2014 stated Ireland should establish a judicial council within 18 months following the adoption of the report and that it should report to the group on the actions it had taken in response to the recommendations. This deadline was extended to the end of September 2016, yet still no serious action has been taken by a Government that continues to drag its heels on the issue. The current placement of the Judicial Council Bill under all other legislation displays the demotion of its status from previous Government legislative agendas. The Judiciary and other concerned bodies have been advocating for the establishment of a judicial council for more than 20 years in an attempt to ensure the Judiciary would have a forum for the professional development of judges, a standard setter in the area of judicial ethics and a safeguard for the separation of powers. A judicial council would facilitate interactions between the Judiciary and other branches of government, supporting the independence of the Judiciary and providing a mechanism for the investigation and handling of complaints about judicial misconduct.

I again commend Senators Victor Boyhan, Michael McDowell and Gerard P. Craughwell for bringing this issue before the Chamber. I hope this House can put pressure on the Government and the Tánaiste and Minister for Justice and Equality to act on the GRECO recommendations and finally establish a judicial council to promote and support the continued excellence of judges in performing their judicial functions. I also wish to be associated with the comments made by Senator Michael McDowell on the lack of progress in filling vacancies in the Judiciary. As the Senator outlined, it is unacceptable for one member of the Cabinet to hold the judicial system to ransom on this issue. We need clarification from the Minister of State on the matter. He must be able to confirm or deny that this is actually happening. What steps is he going to take to fill the positions in the near future?

I commend the Senators for framing an excellent motion. My party and I agree 100% with the sentiments expressed in it. It is outrageous, frankly, how long it has taken to address this issue. It is indefensible. The Chief Justice, Mrs. Justice Susan Denham, has repeatedly raised the need to address it. We talk about ombudsmen, oversight and all the various institutions that have emerged in the past two decades. Clearly, there has been a need for judicial oversight. In terms of the separation of powers, it obviously has to be by a judicial council. There is also a need for the training of members of the Judiciary on an ongoing basis and to ensure consistency in sentencing, accountability and so on. It is absolutely vital. I argue it is fundamental to our democracy. I hope the Minister of State's comments will give some indication of a timeframe within which we will see a Bill and the issue moving forward.

I want to make some related comments on the issue of judicial appointments. It is very unfortunate that there has been a perception that some members of the Judiciary were appointed not because of their ability but because of their political affiliations. That is unfortunate because I believe if someone has been a member of or an adviser to a political party, it should not rule him or her out of being appointed to the Judiciary. There is a process that is better than the one we now have . I tabled a Bill in the previous Oireachtas that laid out that there would be a shortlist of three for every judicial vacancy, that the shortlist would be given by the relevant body in place now to the Government to make a decision and the reasons would be published. There would be full accountability as to the reason each person had been appointed to the Judiciary. That would take away any perception of criticism or any question over the decisions the Judiciary would make.

A problem also presents itself at Supreme Court level. One of the main tasks of the Supreme Court judges is to interpret the Constitution. Obviously, it is critical that there be a Supreme Court that is representative of society. There must be a balance of progressive and conservative and left and right within the Judiciary. If one member of the Judiciary is seen to be representative of the political establishment or to have been appointed by the political establishment, regardless of whether it is correct, it impacts on confidence in the decisions made. The Chief Justice is rightly concerned about the delays. By the way, the Bill I tabled, interestingly, recommended exactly the same system the Chief Justice, Mrs. Justice Susan Denham, recommended. She is obviously a very respected person and has been advocating for changes to the way judicial appointments are made, for more accountability and a judicial council. We need to sort out this issue.

I want to comment on the need for a sentencing council. In England and Wales there is a commendable model for a sentencing council. I know that the Minister of State is familiar with it and I am a big supporter of that system. There is a council that is significantly made up of members of the Judiciary, other experts from academia and so on. They consult the wider public on the range of sentences appropriate to a particular offence. There is still, however, a degree of flexibility. One is not saying to a member of the Judiciary that he or she must hand down a sentence of two years for a particular offence.

A range of sentences is available but whatever sentence they hand down, judges must be clear on the reasons for it. The public has been consulted about what is appropriate, a range of sentencing has been put in place and it has been ensured the Judiciary is accountable. If a decision is made in the Circuit Court in County Donegal, Cork or Waterford, there must be a commonality in sentencing in order that people can have more confidence in the system. A sentencing council should be established. I published legislation on the matter and presented it to the previous Dáil and may well reintroduce it in this Seanad.

The Government needs to sort out the issue of judicial appointments, introduce legislation to establish a judicial council and a sentencing council. It must be ensured the public can have full confidence in the sentencing the Judiciary is tasked with and in the training and the ongoing dialogue between judges to ensure consistency across the State.

I commend the Senators for their motion which is spot on and has been well drafted. I hope it will create an impetus for the Government to act in due course.

I welcome the Minister of State and thank the Senators for tabling the motion. It is important that we discuss this matter because it has been discussed for more than 16 years and we should now try to move forward. Members have outlined the delays, but it is important to recognise the changes that have been made in the courts in recent years, in particular, the establishment of a Court of Appeal, which has taken a significant workload from the Supreme Court. I recall waiting for three years for a case to be listed for hearing in the Supreme Court, as a result of which many decisions were delayed. The Court of Appeal helps the process and is dealing with cases efficiently and quickly. Recently a matter was referred by way of case stated from the High Court to the Court of Appeal because there had been two conflicting decisions in the High Court. When the matter came before a High Court judge, she referred it by way of case stated to the Court of Appeal and the matter was dealt with and a decision given in a short time, which is a welcome development.

I agree that a judicial council is needed. The Chief Justice and all other members of the Judiciary have been looking for one for some time and it is important that there not be a further delay in introducing it.

I also agree with colleagues that there should not be delays in judicial appointments. It is important that at all times we have an efficient judicial system. A number of years ago there was a four-year wait to get a High Court case heard in Cork. There were 6,000 cases on a waiting list to be heard in Cork at the time. We have come a long way since. Recognition should also be given to the Courts Service, given the significant increase in commercial law work because of the downturn. This took the form of liquidations and receiverships. The courts dealt with them efficiently, despite that the fact that their workload had increased dramatically. A proper system of checks and balances is needed and a judicial council is the way forward in that regard. It has been talked about for a long period. The Judiciary is in favour of it and has given its views on how it should be dealt with. The Government is drafting a Bill which should be brought forward and dealt with at an early date. We would have no difficulty if the legislative process commenced in this House. There are enough Members who could give their views on the draft legislation and it could be processed efficiently. Given the new system of pre-legislative scrutiny, it is important that there not be further delays and that the council be established.

I also agree with colleagues that we have been fortunate down the years to have had a good and fair system. People felt some judicial appointees in the past 20 or 30 years would follow a particular line, but they went down a contrary line to make sure they maintained their independence. They took a number of constitutional cases which established good law. In these cases, the legislative process had been delayed and, unfortunately, the courts had to intervene to make sure what was in place was appropriate for the times in which we lived. The courts are not in place to formulate legislation, but where the Legislature falls down, they have to make sure citizens can access services and that their constitutional rights will be protected in the process.

I welcome the debate. I agree this legislation should be brought forward at the earliest date.

I welcome the Minister of State. I also welcome the motion. My colleague, Senator Frances Black, is our spokesperson on justice and equality and would normally have contributed, but she is unable to be present.

I had the opportunity last week to participate at the parliamentary assembly of the Council of Europe in the election of new judges to the European Court of Human Rights. It was interesting to observe the process in action. A shortlist had been selected and scrutiny and oversight were transparent. The curricula vitae and qualifications were scrutinised fully and only a few candidates were allowed to go forward on a shortlist before we had the opportunity to vote. I do not suggest that is the system for Ireland, but it sent a great signal of confidence because people fully trusted and engaged with it to appoint judges. There is an opportunity here to instil that sense of strength, confidence and engagement. I do not impugn the processes followed in the State, but this system presents an opportunity to have something better.

The Group of States against Corruption, to which Ireland subscribes, has explicitly among its 11 recommendations for Ireland, in ensuring the visible absence of corruption and sending a strong signal to others across Europe, the establishment of a judicial council. We had that signal from Europe, but we also have champions in the State on this issue. The Chief Justice, Mrs. Susan Denham, has been emphatic and strong in pleading for progress on this issue following many years of delay. She described a council "as a necessary element of the infrastructure of a modern democratic state." She has made a strong and credible case, but she has also referred to something which is more important now than at any point previously, that the council should be instrumental in promoting public confidence in the administration of justice. There is a lack of public confidence in the justice system in Ireland and many other parts of the world. People must not only experience the administration of justice as being fair and equal, but it must also be seen to be transparently so.

Building and strengthening public confidence in the justice system is vital. I recognise, of course, the complete independence of the Judiciary and that, as public representatives, we have a separate and different role. However, there are things within these proposals which could serve to strengthen and underscore public confidence in the Judiciary, one of which was spoken about by Senator Victor Boyhan who referred to a judicial conduct committee with lay participation. That is a constructive and positive proposal which could help to build public confidence.

Senator Pádraig Mac Lochlainn spoke about the idea of having a sentencing committee which might engage with NGOs and civic society. There is a huge role to be played to build public confidence and engagement in the area of training. It is an area on which I wish to focus, in particular. As an appropriate and positive way to strengthen judicial training, one area where it might be looked at I respectfully and constructively suggest is violence against women. The UN Handbook for Legislation on Violence Against Women has highlighted the importance of training and capacity building for judiciaries in areas such as this. It has also been highlighted in respect of the introduction of new legislation. For example, as Ireland ratifies the Istanbul Convention, access to justice will be part of the process. It is important that there be an appropriate, independent mechanism to facilitate that training and engagement.

Recognising that it is a question for a judicial council, not us, I support the idea of having a register of interests for the Judiciary. It is a very constructive proposal. While it is not for us to determine, it would be constructive and strengthen and underscore public confidence in all udges. This is an opportunity. It is a positive and constructive step forward. Whichever Bill it comes through, whichever proposals are adopted and whatever shape it takes, what is important is hearing from the Minister about how she can respond on how this will move forward in the next year. How will she send that signal at a time when it is most needed?

I welcome the Minister of State, Deputy David Stanton. It was a pleasure to work with him on the Joint Committee on Justice, Equality and Defence in the lifetime of the last Seanad and Dáil. I look forward to working with him on many of the issues on which the joint committee worked so hard in those few years. It is also worth paying tribute to the proposer and seconder of the motion, Senators Victors Boyhan and Michael McDowell. It is a motion which deserves wide support, which I understand it has received on a cross-party basis.

The principle of the establishment of a judicial council has been with us for a long time. Senator Victor Boyhan kindly gave me a copy just before the debate of the Law Society Gazette article from October 2016 with the headline "Chief Justice Slams Government over Judicial Council Delay". I said to the Senator that I had the full text of the Chief Justice's speech from 26 September 2016. While the position is perhaps somewhat overstated in the headline, she was certainly very critical of the 20-year delay in enacting legislation on a judicial council. This proposal has been around for a long time and there is widespread support for it. As we know from the Chief Justice and others, the Judiciary has been to the fore in calling for this legislation.

Before turning to the substance of the motion and legislation, I note that we debated the issue of judicial appointments this day last week. In that context, I spoke about the need for diversity in the Judiciary. It is something on which I have worked for a long time. In 2003 we published a report in Trinity College Dublin on gender injustice which looked at gender discrimination in the legal profession and the lack of women among senior judges. That is something that has changed since the report was published in 2003. We have seen much better representation of women among the Judiciary, albeit there are still low numbers of women represented at senior ranks in the Law Library among senior counsel and at senior ranks in the solicitors' profession also. However, the great improvements made in the numbers of women appointed to the Judiciary must be acknowledged. It is very welcome because greater diversity is to be welcomed in general. In that context, I tabled a motion in the lifetime of the last Government seeking clarity on whether the maternity leave arrangements would extend to serving judges, an issue which the then Minister acknowledged had not actually come to light previously. It had simply not arisen, given the particular demographic make-up of the Judiciary until then. It is now clearly an issue and very welcome to see that we are moving on it. I received a good response from the Minister, Deputy Frances Fitzgerald, and will certainly be renewing my work on the issue.

Turning to the substance of the motion, the proposal for a judicial council has been with us for 20 years as the Chief Justice and others have explained. It was mooted in the 1996 report of the Constitutional Review Group which recommended that judges should regulate judicial conduct within a legislative framework embracing all courts. Part of the difficulty has been the different approach taken between judges of the Superior Courts and judges of the District Court. In accordance with Article 35 of the Constitution, there is a distinction between such judges. Looking at the language of Article 35, we see the particular problem as identified by Hogan, Whyte and others which is the lack of a definition of "incapacity" or "stated misbehaviour". Article 35.4.1o provides that a judge of the Supreme Court, the Court of Appeal or the High Court shall not be removed from office except for stated misbehaviour or incapacity and then only on resolutions passed by Dáil Éireann and Seanad Éireann calling for his removal. It does refer to "his".

Part of the difficulty is how one defines "incapacity" and, in particular, "stated misbehaviour". As we know, there have been a number of instances in which there have been issues around the potential impeachment of judges, notably the Sheedy affair in 1999 and the Curtin affair. In those instances, three judges in total resigned before any action was taken or could have been taken under the Constitution. The Chief Justice and others have identified that part of the difficulty has always been the extremely difficult burden in moving an impeachment motion. It is a very onerous requirement. If we look at examples from elsewhere, as the Oireachtas Library and Research Service did in its spotlight paper of 2014, there are other jurisdictions in which different procedures are in place. Mixed systems are in place where we see processes equivalent to a judicial council having been introduced. That is the model we should follow. Others have commented on the international impetus for this. We see in the GRECO recommendations that a judicial council should be established and that Ireland should report on the action within 18 months of the GRECO report of November 2014. That 18-month period expired in April this year and was extended to September.

The heads of the Bill have been published and others have spoken about them. There is momentum behind this idea, including domestically. The Irish Council for Civil Liberties and other bodies have also called for the establishment of a judicial council. There is a great deal of consensus on the issue and we simply now need to see movement on it. The motion calls on the Government to legislate and commit to the early publication of a Bill. Others have called for a timeframe. I echo those calls. We need a timeframe. The principle is clear and the consensus evident.

I commend those who moved the motion for bringing it forward and keeping it on the political agenda. At a time when there is controversy surrounding judicial appointments, this is an issue about which there is no controversy and everyone is agreed on the need. We need simply to see early publication of legislation.

I thank Senators for their welcome. I also thank Senators Victor Boyhan, Michael McDowell and Gerard P. Craughwell for tabling the motion and raising this matter. I am here on behalf of the Tánaiste and Minister for Justice and Equality who, unfortunately, cannot be here. She sends her apologies.

I acknowledge that the motion raises a very important and significant issue. I have listened carefully to Senators and congratulate them on the issues they have raised and the quality of the debate so far. I am happy to note that the Government has decided to accept the motion as proposed and welcomes the opportunity it provides to reflect on core issues in terms of the proper functioning of the judicial system.

The motion calls on the Government to legislate for the establishment of a judicial council and commit to the early publication of a Bill to provide for its establishment. As indicated in the current legislative programme, a judicial council Bill is among those Bills which are a priority for publication this session.

To be clear, that is before the next session starts in January. This session will end when the Dáil and Seanad rise in December. There is intensive work taking place to ensure the timetable will be adhered to.

As colleagues have said, the value of an independent Judiciary cannot be disputed. It is fundamental to the working of our democracy and essential in upholding the rule of law on which all citizens rely, whether in the private family zone, commercial relationships, protecting against criminality or vindicating rights where the State is often the opposing party.

Senators will be aware that, as matters stand, Article 35.4.1° of the Constitution provides that a judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity and then only on resolutions passed by Dáil Éireann and 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 Court 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 which are not sufficiently serious to merit the invocation of the constitutional provisions.

This and previous Governments have been conscious of the fact that there is a need for an alternative structure to be put in place to deal with allegations of that nature and the development of such a structure is a key driver behind the judicial council Bill. Any legislative proposal must be mindful of Article 35.2 of Bunreacht na hÉireann which, as acknowledged in the motion, provides that judges shall be independent in the exercise of their functions and subject only to the Constitution and the law. The principle of independence derives further strength from international best practice. I need only reference Article 10 of the Universal Declaration of Human Rights which proclaims the entitlement to a fair and public hearing by an independent and impartial tribunal and Articles 6 and 14 of the European Convention on Human Rights and the International Covenant on Civil and Political Rights, respectively, which also affirm the values of judicial independence and impartiality.

It is well known that the judicial council Bill has had a rather long gestation period. The first key milestone was in 1999 when the Working Group on a Courts Commission reported to the then Chief Justice on the question of judicial conduct and ethics. That was against the background of the Sheedy affair, as has been referenced, the background to which need not be revisited on this occasion. Subsequently, in December 2000 the report known colloquially as the Keane report was published. As Members are aware, it found that the existing structures for dealing with concerns about judicial misconduct were inadequate as there was no mechanism in being which would allow for the investigation of instances of judicial misconduct which were not so serious as to bring the constitutional sanction into play. The report contained reasonably detailed proposals for legislation which were subsequently fleshed out in the form of a draft Bill prepared by Mrs. Justice Susan Denham who is now the Chief Justice.

While that activity was happening on the domestic front, there was also activity taking place at an international level. In 2000 the United Nations Centre for Crime Prevention invited a group of chief justices from common law jurisdictions, known as the Judicial Integrity Group, to address the loss in many countries of confidence in judicial systems. The Judicial Integrity Group recognised that the principle of accountability demanded that the national judiciary should assume an active role in strengthening judicial integrity by effecting such systematic reforms as are within the judiciary’s competence and capacity. The group also recognised the need for a universally acceptable statement of judicial standards which, consistent with the principle of judicial independence, would be capable of being respected and ultimately enforced at national level without the intervention of either the executive or legislative branches of government.

Following extensive consultations with other common and civil law jurisdictions, the Bangalore Principles of Judicial Conduct emerged. The principles recognise fundamentals which are widely accepted in regional human rights instruments and in many countries, whether enshrined in domestic constitutions, statutory provisions or flowing from the common law. The core values which they reflect include independence, impartiality and integrity. Propriety, equality, competence and diligence are also acknowledged. The Bangalore Principles remind us of the need to ensure public confidence in the judicial system and in the moral authority and integrity of that system. They aim to ensure judges, both individually and collectively, respect and honour judicial office as a public trust and strive to enhance and maintain confidence in the system in which they operate. They provide guidance for judges and legislators. They also offer a framework for regulating judicial conduct.

It is generally accepted, in relation to the regulation of judicial conduct, that such regulation must be undertaken by a body which consists, in the main, of members of the Judiciary. There are two reasons for this. First, regulation of this nature will ensure independence is maintained. Second, it recognises that the primary responsibility for the promotion and maintenance of high standards of judicial conduct lies with the Judiciary.

As I stated, successive Governments have held the view that a structure needs to be put in place to deal with allegations of judicial misconduct and facilitate the establishment of a platform for the promotion of excellence and high standards of conduct by judges. However, despite the best efforts of many who have collaborated on this project during the years, it has not yet proved possible to publish a judicial council Bill. That is not because of any conspiracy or hidden agenda; rather, I will echo Harold Macmillan in saying, "It’s events." Drafting of the Bill has had in the past to give way to other pressing priorities, some of which arose from our troika commitments, while some concerned important social and societal issues such as the establishment of the Court of Appeal, the passage of the Children and Family Relationship Act 2015 and the marriage referendum last year. However, every effort is now being made to bring the drafting of the Bill to a timely conclusion to ensure it is published this term, before the next session starts.

I will turn to specific elements of the motion. I note that its proposers have called on the Government to provide for effective remedies for complaints about judicial misconduct to include lay participation in the investigation of those complaints. In that regard, the current draft of the Bill provides for the establishment of a judicial council and board which will promote excellence and high standards of conduct by judges. It also provides a means of investigating allegations of judicial misconduct and, in this context, envisages the establishment of a judicial conduct committee with lay representation. The motion also calls on the Government to provide ways to support and improve the operation of the Judiciary by providing for judicial studies and support committees. It is intended that the Bill will make provision for such committees in order to facilitate the ongoing support and education of judges in a structured and focused manner.

It may be useful at this stage to outline briefly the Bill’s main provisions, as envisaged, with the health warning that the provisions may be further developed during the ongoing drafting process. Central to the Bill’s provisions is the establishment of a judicial council of all serving members of the Judiciary and a board which will exercise, on behalf of the council, the functions conferred on it by the Bill. These functions are intended to include: the maintenance and promotion of excellence in the exercise by judges of their judicial functions; high standards of conduct among judges; the efficient and effective use of judicial resources; continuing education among judges; respect for the independence of the Judiciary; and public confidence in the Judiciary.

In the area of judicial conduct, the Bill will define "judicial misconduct" and establish a judicial conduct committee comprising both judges and lay members. The committee will be independent in the performance of its functions. These functions will include the consideration and investigation of complaints, with the possibility to resolve a complaint by informal means. Additional functions will include the preparation and submission to the board of the council of draft guidelines concerning judicial conduct and ethics and the specification and publication of the procedures to be followed in investigating a complaint, including the publication of guidelines for resolving a complaint by informal means.

Formal investigations will be conducted by a panel of inquiry. Such a panel will have the power to make various recommendations to the judicial conduct committee which may accept or reject them, as appropriate. Recommendations which could be made include the issue of advice to the judge concerned, recommending a course of action the judge should follow, for example, that the judge should attend a specified course, the issue of a reprimand to the judge concerned, the issue of a recommendation to the President of the court of which the judge is a member and a recommendation for procedural or organisational change.

I draw the attention of Senators to the allocation in the recent budget of more than €30 million in additional funding for the courts. The increased funding brings the total gross allocation to €140 million next year. Included in the enhanced provision is capital funding of approximately €23 million. Provision is also made for expenditure of €4.5 million on information and communications technology in court houses and to upgrade and enhance ICT functionality in the courts. The additional funding will also boost staffing across the Courts Service in areas such as probate, wards of court and change management, as well as in provincial court offices, thus driving reform and alleviating delays in front-line services.

The Government is mindful of the need to introduce legislation which has regard to the requirements of a modern Judiciary in a fully functioning democratic society. As indicated, publication of the judicial council Bill is a priority for the Government and I hope it will be debated in this House in the near future. I look forward to hearing the further contributions of Senators on this important matter.

I thank all of the Senators who participated in the debate. I also thank the Minister of State, Deputy David Stanton, for his report which is very similar to what I said to him. I can see many of the same sentences and the same language in his contribution. It appears that we are all at one on the issue.

I do not wish to keep emphasising it, but I was talking to a number of colleagues who had raised these issues. We know that there is no mention of a judicial council in the programme for Government. I am delighted that in recent times somebody decided, for whatever reason - I would like to think it was due to many of us raising the issue - that the Bill should be on the A list. That is great, but as the Chief Justice, Mrs. Justice Susan Denham, has pointed out in the past, there has been promise after promise after promise. To be fair, Fine Gael has been in government for the past five years. We need a timeline. We need an absolute timeframe for the delivery of the Bill.

The situation is unique in that the Judiciary is looking for this. There is no battle.

I do not propose to comment on the issue of judicial appointments other than to echo what previous speakers said in that regard. There are serious constitutional implications in what the Minister for Transport, Tourism and Sport, Deputy Shane Ross, might be suggesting on which we need clarification. We will have an opportunity to raise the matter again tomorrow in the Seanad and it is my intention to do so. We need clarification on whether, as has been expressed repeatedly in the past few days, a special, cast iron agreement has been made with a member or members of the Independent Alliance on appointments to the Judiciary. Justice delayed is justice denied. If there are vacancies in the Courts Service for judges, they should be filled, regardless. This is about justice, not politics or politicians.

I thank the Minister of State for coming to the House for this debate. It is important that we have momentum and a timeline for the publication of the Bill. What is important is that we see progress on the matter.

Queston put and agreed to.

When it is proposed to sit again?

At 10.30 a.m. tomorrow.

The Seanad adjourned at 5.20 p.m. until 10.30 a.m. on Thursday, 20 October 2016.