The idea for a Judicial Council dates from the political equivalent of the Cretaceous period. In 1999, in the aftermath of the resignations of then Supreme Court judge Hugh O'Flaherty and his High Court colleague Cyril Kelly as a result of the Sheedy affair, an All-Party Committee on the Constitution recommended the establishment of a body charged with handling judicial conduct.
Senior judges initially resisted the proposal, seeing it as an incursion onto their territory as demarcated by the separation of powers but, in time, as the idea evolved and judges began to see its benefits for them as well as for public confidence in their role, they became its most vocal champions. There were echoes of the same trend recently in barristers’ approach to independent regulation of their profession – a plan the law library firmly opposed until it could see it had lost the argument and focused instead on trying to shape the legislation to accommodate its own concerns.
The 20-year process that culminated this week in the coming-into-effect of the Judicial Council Act is an indictment of the legislative process and the lack of priority successive governments have attached to legal reform. Again and again, governments would pledge to produce a Bill. Each time, it would disappear from the agenda. Praise for the current Fine Gael-led administration for finally getting the legislation over the line must be tempered by the fact that it took the party eight years in office to get it done. On the legal reform front, it wasted years battling to enact a flawed judicial appointments Bill designed mainly to mollify an independent minister who had made it a condition of his support in keeping Fine Gael in office.
The council itself is badly needed. As things stand, there is no way to investigate complaints against judges and no way to sanction judicial misbehaviour apart from removal from office by the Oireachtas. Nor is there a system for training judges or providing for their ongoing education. The new Act fixes this, with complaints to be handled by a Judicial Conduct Committee comprising judges and lay members. A late attempt to block the public naming of reprimanded judges was successfully resisted. In addition, the Judicial Council has been empowered to draft guidelines on sentencing and personal injuries – two steps that are long overdue.
Yet some of the thorniest aspects of legal reform remain untouched, and sadly there is no sign that the current Government, now in its final days, had any interest in taking them on. Legal education remains in the hands of monopolistic players. Our Byzantine legal system is designed around the interests of those who work in it rather than those who need to use it. And prohibitive costs make a daily mockery of the idea of justice for all. These are the real problems that need tackling. Everything else is just tinkering at the edges.