Dáil Éireann Debate, Wednesday - 5 May 2004
2 Mr. J. O’Keeffe asked the Minister for Justice, Equality and Law Reform when he will introduce legislation to fulfil the commitment made in the programme for Government to legislate for judicial misbehaviour; the reason the matter has not been addressed to date; and if he will make a statement on the matter. [12871/04]
Amharc ar fhreagraAs I indicated in my written response last Thursday to a question tabled by Deputy Jim O'Keeffe, work is under way in my Department on the development of a scheme of a Bill on judicial conduct and ethics, arising out of the reports on these matters produced by the All-Party Oireachtas Committee on the Constitution and the committee on judicial conduct and ethics chaired by Ms Justice Susan Denham. Among the matters to be provided for in the Bill is a process for the investigation of complaints about judicial misbehaviour, including lay participation in the investigation of complaints. This process would not be a substitute for impeachment as the ultimate sanction available for dealing with allegations of the most serious misconduct, although the expectation is that in appropriate cases the process could result in a recommendation to the Houses of the Oireachtas that impeachment proceedings be considered.
As indicated in the Government legislation programme for the summer 2004 session, which was announced by the Chief Whip on 26 April, I expect to be in a position to seek Government approval to publish the Bill in the current year.
Does the Minister accept this issue should have been tackled with some degree of urgency? It is over four years since the Sheedy affair but we are in the same position now as we were then. What is being proposed? There was an abortive effort to change the Constitution in 2001. Is the Minister proposing merely legislation at this stage? What will that legislation do? Will it underpin Article 35 of the Constitution with regard to impeachment or is a separate constitutional Bill proposed, as was envisaged in 2001?
A proposal was canvassed in the House but it was withdrawn due to the absence of an all-party consensus on holding a referendum which would copperfasten the establishment of a judicial council. A report was received from the Denham committee, to which I referred earlier. That report included proposals for legislation. It was implicit in the report, and clear from the report's terms, that amendment of the Constitution was not necessary for the establishment of a judicial council, one of whose functions would be to investigate allegations of misbehaviour against judges. It is my belief that it is not necessary to amend the Constitution to provide for such a mechanism, provided it is consistent with the terms of the Constitution and does not infringe on the clear constitutional function of the Oireachtas with regard to the ultimate sanction of removal from office.
Short of that ultimate sanction, there can be circumstances in which a judge could, for example, be reprimanded for inappropriate behaviour, cautioned about his or her behaviour or, in certain circumstances, advised on his or her behaviour. An example would be if a judge's performance was being adversely affected by an addiction to alcohol or the like. There are a number of actions far short of impeachment with which the council could deal.
It is envisaged by the Denham report and by me in my legislative programme that a judicial council approach will consist of a body in which there will be lay participants. It will not be a question of judges investigating themselves. There will be a genuine lay element so the public will be satisfied that an objective and non-self serving inquiry, if one can describe it that way, will take place on every occasion.
Does the Minister accept it might be useful to have all-party discussions on the proposals? The judicial council proposed in the Denham report consists solely of judges. All judges would be members of the judicial council and only in the case of one of the committees, the committee on ethics and conduct, is there a proposal for lay membership. This would be appointed from a pool of three persons by the judicial council, following advice from the Attorney General. Bearing in mind the problem we have to deal with, it might not be appropriate to have a judicial council where all judges are members of the council. That would be the body charged with responsibility in this area.
I accept the Deputy's point that different models or approaches within the broad framework of some form of judicial council or college are possible. If there were a college of the Judiciary, for example, it would be possible to have a council of that college which would have lay participation. Lay participation in respect of matters such as judicial studies and the like might be qualitatively different from lay participation with regard to misbehaviour allegations. I have an open mind on that.
I agree that all-party consideration of this issue would be desirable. When the heads of the Bill are in a reasonable format, it is my intention to do what I did with other important legislation, namely, bring it before the joint committee on justice so Members of both Houses can have a pre-emptive look at how the legislation is developing.
That would be a wise move. A degree of urgency would also be wise.
