The delay in creating a judicial council, which would address a number of the concerns and complaints sometimes made about the judiciary, is one of those conundrums that is not easily explained.
It is difficult not to read the strong comments of Chief Justice Susan Denham as an expression of her personal exasperation with the Government. That is understandable given that her involvement with the promotion of a judicial council goes back two decades.
As she argues in her statement issued to mark the new legal year, the current executive, based on its Programme for Government, would appear to have less interest in pushing through with the project than the previous one.
That is no doubt a disappointing scenario for her, given her long advocacy of the move, and the fact that she is due to retire next August.
On the other hand, there is no reason to believe the Tánaiste and Minister for Justice and Equality Frances Fitzgerald is any less in favour of the move than she was when she headed the justice ministry in the previous government.
Professional development
Within two hours’ of the Chief Justice’s statement being issued to the media, a spokesman for Ms Fitzgerald issued a short statement saying the Government is prioritising a judicial council bill for publication this session.
It is worth recalling that during the 2002 to 2007 reign of Michael McDowell as minister for justice, the inertia in relation to the establishment of the council appeared to be located more in the Four Courts than Government Buildings.
The Chief Justice, who took on the role in 2011, said the proposed council would: provide a platform for the professional development of judges; provide for appropriate interaction between the judiciary and the other branches of Government; support the independence of the judiciary; promote confidence in the administration of justice; organise courses for new judges and continuing education for existing ones; investigate complaints concerning judicial conduct; and establish a sentencing committee.
This is a list of the main concerns interested parties have with the way the current system works, save for the matter of judicial appointments.
The enormous controversy created more than 10 years ago when Circuit Court judge Brian Curtin was charged with possession of child pornography, only for the case to collapse because of difficulties with the evidence – and he to remain on as a judge – illustrated the lack of a satisfactory mechanism for dealing with judicial misbehaviour. The controversy only ended when Mr Curtin resigned on health grounds, days after passing the five-year threshold that allowed him qualify for a pension.
Selecting judges
A judicial council could investigate complaints against judges, and make recommendations ranging from seeking an apology to impeachment, while maintaining the constitutionally guaranteed independence of the judiciary.
In many jurisdictions such councils play a role in the selection of judges, but that is not envisaged here. Three of the five recommendations concerning the judiciary made to Ireland by the Council of Europe’s Group of States Against Corruption body in 2014 would be satisfied by the establishment of the Irish council as envisaged.
One recommendation that would not be satisfied is that the “ system for selection, recruitment, promotion and transfers of judges be reviewed with a view to target the appointments to the most qualified and suitable candidates in a transparent way, without improper influence from the executive/political parties”.
Like the idea of a judicial council, reform in the area of how we select judges is a topic with a long history of proposals, and little by way of action.