Speech by Mr Charlie Flanagan TD on the Judicial Council Bill 2017

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It is a pleasure to be here today to discuss the Judicial Council Bill 2017. This is an important and long-awaited Bill and its early enactment is a priority for the government.

The primary purpose of the Bill as published is to provide for the establishment of a Judicial Council. Such Councils are generally seen as having an important role to play in safeguarding the independence of the judiciary. They also provide a vehicle for addressing matters such as further education and training as well as matters pertaining to discipline. In keeping with this approach, the Bill affirms the independence of the proposed Judicial Council and provides that one of its key functions will be to promote and maintain excellence in the exercise by judges of their judicial functions. Furthermore, the Bill will establish a complaints regime, which will address instances of misconduct by judges, which do not warrant the invocation of Article 35.4.1 of the Constitution. As you know that Article relates to the removal of a judge from office for stated misbehaviour or incapacity.

Before dealing with the content of the Bill, I would like to comment on some amendments, which were made to it during its progress through Seanad Éireann, the first of which concerns personal injuries guidelines. Originally, it was not envisaged that the Judicial Council would have a role in setting personal injury guidelines. However when the Second and Final Report of the Personal Injuries Commission was published in July 2018, it recommended that the Judicial Council should have a role in compiling guidelines for appropriate general damages for various types of personal injury. The government recognised the clear opportunity presented by their recommendation to give the Council a key role in this important task. Accordingly, the government has proposed a package of amendments to the Bill to provide for the establishment of a Personal Injuries Guidelines Committee within the framework of the Judicial Council.

One function of this Committee will be to develop personal injuries guidelines for adoption by the Judicial Council. Another function involves the review of adopted guidelines at least once every three years and, if necessary, the preparation of amendments to the guidelines.

In drawing up the guidelines, the Committee will be empowered to consult widely with external stakeholders, including the Personal Injuries Assessment Board, and to obtain information about court decisions in this jurisdiction and in other comparable jurisdictions. A number of factors will be taken into account in drawing up the guidelines, including the level of damages awarded in personal injuries actions by courts in this State and by courts in other jurisdictions. Guiding principles drawn from those set down in recent Court of Appeal decisions, which affirm that modest injuries should attract moderate damages, will also be relevant, as will the need to promote consistency in the level of personal injuries damages awarded.

In carrying out its task, the Personal Injuries Guidelines Committee will have access to relevant domestic and international expertise. To complete the circle, so to speak, provision is also made for the courts to have regard to any guidelines, which might be in being when a personal injuries action comes before them. Where a court departs from those guidelines, the reasons for that departure must be stated in the decision.

The membership of the Committee consists solely of 7 judges. This membership configuration is both for reasons of efficiency and to avoid any impression that the Committee is being captured by vested interests. The membership arrangement respects the independence of the judiciary and facilitates the undertaking of the work of the Committee in a dispassionate and objective way.

Provision has also been made for the training function of the Judicial Studies Committee to include a specific reference to training in assessing damages in personal injuries cases. I will return to the issue of training more generally in a few moments, but for now I would like to move to another core area of this Bill, that of sentencing guidelines.

Deputies will recall that there had been a strong public desire that there should be genuine and demonstrable consistency in relation to the imposition of sentences in criminal cases. While it has to be acknowledged that guidelines developed by the judiciary are increasingly being used as a technique for structuring sentencing discretion, it was felt that confidence in the criminal justice system would be enhanced by the production of formal guidelines. In that context amendments were proposed, which provide for the establishment of a Sentencing Guidelines and Information Committee rather than the Sentencing Information Committee originally proposed in the Bill.

The Sentencing Guidelines and Information Committee will consist of 8 judges and 5 lay members. The government following a recommendation from the Public Appointments Service on foot of a selection process will appoint the latter. The Committee will draft sentencing guidelines and submit those guidelines for review by the Board of the Judicial Council, prior to their adoption by the Council itself. The Sentencing Committee may, for the purpose of performing its functions, have access to court documents relating to criminal proceedings. The Committee may also draw upon external expertise in preparing draft sentencing guidelines. The most critical element of this sentencing package specifies that a court shall, in imposing a sentence, have regard to sentencing guidelines relevant to the proceedings before it, unless the court is satisfied that to do so would be contrary to the interests of justice. As is the case with the personal injuries guidelines, the reasons for departing from the sentencing guidelines are to be stated by a court in its decision.

I would like to touch briefly on one other area, which concerns the hearing of a complaint in public. The Bill as published provided that a hearing of a complaint before a panel of inquiry should be conducted otherwise than in public unless the Judicial Conduct Committee directed that, in order to safeguard the administration of justice, it should be conducted in public. A similar arrangement applied in respect of a hearing conducted by the Judicial Conduct Committee in relation to a complaint that had been the subject of an investigation by a panel of inquiry and in respect of which a report had been submitted to the Judicial Conduct Committee. Such arrangements did not sit well with contemporary understandings of accountability and transparency, and the Bill now specifies that the default arrangement is that a hearing will be held in public, unless the Judicial Conduct Committee directs that, in order to safeguard the administration of justice, such a hearing should be conducted in private.

Having discussed some of the Bill’s key provisions, I would now like to provide an overview by outlining some of the other main provisions, which have been central to the Bill since it was first published.

Part 1 of the Bill deals with matters of a general nature such as definitions and repeals. A significant definition is that of judicial misconduct. In broad terms, this means conduct which constitutes a departure from acknowledged standards of judicial conduct and which brings the administration of justice into disrepute. Standards, in this context, should have regard to certain principles which are essentially those commonly referred to as the Bangalore Principles of Judicial Conduct.

Part 2 of the Bill concerns the Judicial Council itself and provides for its establishment. In addition to the function of promoting and maintaining excellence in the exercise by judges of their judicial functions, the Council will also be tasked with promoting and maintaining high standards of conduct among judges, the efficient and effective use of judicial resources, continuing education of judges, respect for the independence of the judiciary and public confidence in the judiciary and the administration of justice. The Council also has functions relating to sentencing guidelines and personal injuries guidelines and I have already discussed those guidelines in some detail.

The Council will consist of all members of the judiciary and it is anticipated that it will generally meet on an annual basis with the Chief Justice acting as its chairperson.

Part 3 of the Bill deals with the Board of the Council and its Committees. However, it does not deal with the Judicial Conduct Committee, which is covered by Part 5 of the Bill. The Board will be responsible for the performance of the Council’s functions on a day-to-day basis. It will be chaired by the Chief Justice and will include among its members the Presidents of each of the Courts, 5 judges elected from each of the courts and one judge who will be co-opted from each of the courts on a rota basis. Provision is made for the Chief Justice and the Presidents to nominate a replacement judge to act in their stead. The Board will hold a minimum of 4 meetings per year and may also establish committees to assist it in its work from time to time.

Under this Part, the Council is also obliged to establish a Judicial Studies Committee and Judicial Support Committees in addition to the Personal Injuries Guidelines Committee and the Sentencing Guidelines and Information Committee to which I referred already. To allow for some phasing in the establishment of the Committees, the Council will, within stated limits, have some latitude in relation to specifying the establishment dates.

The Judicial Studies Committee will have a role in facilitating the continuing education and training of judges, which will be broader than the role currently undertaken by the current committee of the same name in relation to these matters. The existing committee does not, of course, have a statutory basis. It will be possible for the Council to appoint persons who are not judges to be members of the Judicial Studies Committee. The Committee will have a broad training remit and the Bill sets out examples of potential training areas such as European Union law and international law, human rights and equality law and the conduct of trials by jury in criminal proceedings.

Judicial Support Committees will be available to each of the Courts to advise and assist the Council in the performance of its functions insofar as matters relevant to the Court to which the Committee relates are concerned.

Part 4 of the Bill deals with staffing and funding issues. Provision is made for the appointment of a Secretary to the Council who will also act as Registrar to the Judicial Conduct Committee. Pending the establishment of the Council, the Chief Justice may appoint a member of the staff of the Courts Service to act as interim Secretary. That person will be tasked with putting as much preparatory work as possible in train to enable the Council to carry out its functions from an early stage.

Part 5 is a core element of the Bill. It creates the formal structures, which will provide an open and coherent mechanism to allow for the investigation of complaints in relation to judicial misconduct which falls outside the framework of Article 35 of the Constitution.

At the heart of Part 5 of the Bill is the provision relating to the establishment of the Judicial Conduct Committee. The function of that Committee is to promote and maintain high standards of conduct. A key function of the Committee will be the preparation of draft guidelines concerning judicial conduct and ethics. Those guidelines will include guidance as to the matters a judge should consider when deciding whether he or she should recuse himself or herself from presiding over legal proceedings. Furthermore, the Committee may provide advice and recommendations to an individual judge or to judges generally on judicial conduct and ethics.

The Chief Justice will chair the Committee. In addition to the Presidents of all of the courts there will also be 3 elected judges on the Committee, and 5 lay members who will be appointed by Government after a Public Appointments Service selection process.

In keeping with the need for transparency in relation to the investigation of complaints, the Committee is required to publish the procedures, which are to be followed in the making, the investigation and the determination of a complaint. The Committee may refer complaints for resolution by informal means or for investigation by a panel of inquiry. Where a panel of inquiry finds that an allegation in a complaint has been proved, the recommendations for the reprimand of the judge concerned may include the issuing of advice, a recommendation as to the pursuit of a specified course of action such as attendance at a training course and the issuing of an admonishment. The Judicial Conduct Committee may accept, with or without modification, a recommendation made by a panel of inquiry. They may also reject such a recommendation.

A final provision to which I would like to refer relates to the Annual Report of the Judicial Conduct Committee. The Bill sets out an extensive range of statistical data, which must be included in that Report. This will provide a useful perspective on the work of the Committee and will also provide a means of evaluating the effectiveness of the proposed complaints regime. In keeping with the transparency provisions to which I referred earlier, the Annual Report shall contain the name of any judge who fails or refuses to cooperate with a panel of inquiry.

In conclusion, I would like to thank Members for their attention and I look forward to hearing your observations on this Bill.

ENDS