Clear procedures to remove judges

Deputy Brendan How lin, in his article on the 22nd Amendment of the Constitution Bill dealing with judicial conduct and removal from office, which was carried in The Irish Times on April 25th, is fundamentally mistaken in the conclusions he draws.

I disagree with him when he says my proposal will make it substantially more difficult to remove a judge. I believe that, even with a simple majority requirement, no government would or should attempt to push motions through the Dail and Seanad to remove a judge in the absence of a broad level of consensus in the Houses that the judge should be removed.

A situation in which a judge would be sacked following a divisive debate polarised along Government/Opposition lines would be harmful to public confidence in the administration of justice. The two-thirds majority requirement will never hinder the removal of a judge who should be removed. It will make it clear that there is a substantial and broad level of support for the removal.

This should reduce the scope for constitutional crisis rather than increase it, as the deputy has suggested. I am surprised to see him taking the fundamentally illiberal line of advocating greater prerogatives for the Government in relation to the removal of judges com pared with what I am proposing.

My proposed wording will guarantee security of tenure at the constitutional level to judges of the lower courts as well as to the judges of the superior courts. At present, statutory provisions give judges of the lower courts the same security of tenure as judges of the higher courts. Mr Howlin's argument appears to be that the Oireachtas could take away this security of tenure if it so wished.

I am advised, however, that security of tenure is already effectively guaranteed to judges of the lower courts at constitutional level because any amendment to the existing statutory provisions which negatively affected their independence as judges would implicitly be constitutionally invalid.

My reasons for wanting to give security of tenure explicitly to judges of the lower courts in the Constitution are, apart from the removal from office provision, the [fact that the] rest of Article 35 refers to all judges: judges of the lower courts are now invariably lawyers of long standing and such courts have no lay members.

Their independence in carrying out their judicial functions is no different and no less important than that of judges of the superior courts. The Circuit and District Courts have substantial and increasing responsibilities.

The Circuit Court has full jurisdiction in serious criminal offences affecting basic freedoms. In the recently published Courts and Court Officers Bill, the general civil jurisdiction of the Circuit Court is being increased to almost £80,000 while that of the District Court is being increased to almost £16,000.

The deputy makes the point that it is a necessary quid pro quo that superior court judges, who may be deciding issues of major controversy against the interest of the executive, are not answerable to the Government or the Oireachtas. He implies that this independence should not exist in the case of Circuit and District Court judges. I reject this proposition.

All our judges must be independent in the discharge of their functions. This is just as important in the case of a District Court judge sentencing a person to a year's imprisonment for a minor offence or a Circuit Court judge hearing a claim for substantial damages against the State, as it is for a High Court judge dealing with a constitutional action. Security of tenure is an implication of judicial independence and, therefore, should be exactly the same for all judges. Mr Howlin finds fault also with my proposals to provide a constitutional basis for a new body to investigate possible judicial misbehaviour.

It should be noted that, in this respect, I am implementing the recommendation of the All-Party Oireachtas Committee on the Constitution on which the deputy's colleagues, Derek McDowell and Senator Kathleen O'Meara, served. That committee recommended that there should be a provision in the Constitution to the effect that judicial conduct could be reviewed by a judicial council.

As regards the sanctions which would be available to this body, I quote from the committee's report:

"If the complaint was upheld, the review body might, through the president of the relevant bench, express its disapproval and/or propose counselling/training, make administrative arrangements to avoid a repetition of the problem, issue a written apology to the complainant or publish a summary of its findings."

These are not legal sanctions, they are moral sanctions.

Yet Mr Howlin totally ignores these recommendations, endorsed implicitly by his own party, when he accuses me of proposing a "toothless investigative body". The fact is that my proposed wording provides for the essentials of what was recommended by the all-party committee.

This means the new body will not "enforce" punishments against judges. It will recommend courses of action to a judge who has misbehaved in some minor way. If the judge chooses to ignore the recommendation, which I would not expect to happen, a new situation arises. If the matter were sufficiently serious, one could envisage the possibility of impeachment as a result of the judge's failure to modify his or her behaviour in line with the recommendation.

Mr Howlin is also mistaken in his criticism of the remit of the body when he says that it will deal with "the very grounds for which impeachment is the sanction".

It is true that the body will deal with misbehaviour and incapacity, but there is a range of possible misbehaviour. Only that which, in the opinion of the House, renders the judge unfit to continue in office justifies his or her removal.

THE important change that I am proposing is that there will, for the first time, be an appropriate fo rum to deal with misbehaviour which does not warrant removal from office.

Incompetence and inefficiency, unless they arise out of misbehaviour or incapacity, are not included. To give the new body any jurisdiction in such areas would represent an unwarranted intrusion into judicial independence. It would make judges accountable to another body, not just in respect of wrongdoing, but in terms of their performance day to day, how they organise their work etc.

I do not believe that we should treat judges as minor functionaries whose activities must be closely supervised by some outside body in this way. We should know when we advise that a person be appointed a judge that he or she is fully competent to carry out the functions of that high office.

In summary, my proposals will provide a clear procedure for re moving a judge from office, which all are agreed is essential. In doing so, it should not in practice be more difficult to remove a judge where that is the appropriate course of action, while at the same time ruling out removal for partisan reasons. The proposals also provide a mechanism for dealing effectively with less serious instances of misbehaviour.

I believe these proposals will enhance confidence in the administration of justice and will receive the support of the people.