Removing a judge remains difficult despite recent reforms

The Judicial Council recently published its long-awaited guide to Judicial Conduct and Ethics as well as its guide to the complaints procedure which is due to be commenced in the coming months.

The establishment of the Judicial Council and structures for training judges – and for complaints in relation to judicial misconduct – is a very welcome and positive step. It had long been called for. But some opportunities have been missed in this process and a number of elements may yet prove troublesome.

The Judicial Council Act 2019 defines judicial misconduct for the first time in this jurisdiction; it provides that it involves conduct that constitutes “a departure from acknowledged standards of judicial conduct” and “brings the administration of justice into disrepute”. It is very useful to have this definition in law but for the “nuclear option” of removing a judge, the standard comes from another document, the Constitution.

The Judicial Council can recommend that a removal motion be brought but the ultimate action must be taken by the Oireachtas and only for what the Constitution calls “stated misbehaviour”. Neither the Act nor the guide define the constitutional standard or clarify the relationship between “judicial misconduct” and “stated misbehaviour”.

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There can obviously be misconduct which is not sufficiently problematic to require removing a judge from office, but where the line between the two is to be drawn is not clear. While the new judicial conduct regime will allow for judicial misconduct to be investigated and sanctions applied if necessary, the removal of a judge is still a matter for the Oireachtas. “Stated misbehaviour” has never been defined and because we have never removed a judge in this jurisdiction, there is little precedent to act as guidance.

This brings us to a further problem. While the Act provides lots of detail on the procedures involved in investigations of judicial conduct, it does not provide any guidance on the process to be undertaken if the Judicial Council recommends a removal motion be initiated in the Oireachtas.

Past examples have demonstrated the difficulties which can arise – when the Oireachtas attempted to remove Circuit Court Judge Brian Curtin, he challenged the procedures involved, leading to a protracted legal battle. By the time the Supreme Court gave judgment in the matter, there was no time for the Oireachtas Committee to recommence its hearings before the judge retired.

During the Golfgate controversy, politicians refused to even discuss the possibility of a removal motion for fear of falling foul of the separation of powers, which demonstrates a poor understanding of how this operates since the Constitution plainly gives the role of removing judges to the Oireachtas.

There is a clear lack of knowledge and process around what should be done when an issue is raised that could lead to the removal of a judge. An opportunity was missed to provide guidance on this in the Judicial Council Act 2019, but this is still something which could be done.

A further issue which has the potential to be problematic is in relation to the informal resolution process for judicial complaints and the issue of reprimands. Very sensibly, the Act has set up a process whereby complaints can be dealt with informally, if everyone agrees, or alternatively if the issue is more serious, it can proceed to a full investigation. While it makes sense on a number of levels to have an informal option, the process set out in the Act is somewhat confusing and unfortunately, the guidelines published recently have not clarified this process at all. In fact, it is unclear why it took so long for these guidelines to be published in the first place since, essentially, they just replicate the provisions in the Act itself.

As an alternative to the informal process, a judge who is the subject of a complaint can simply consent to a reprimand and therefore put an end to any further proceedings. Again, there are advantages to a process which finds a quick resolution however the problem with this process is that the consent of the complainant is not necessary in this situation and furthermore, no details of this reprimand will be published – neither the name of the judge nor details of the reprimand. The danger here is that due to the lack of transparency, a complainant may see this as an escape mechanism for an errant judge.

A final issue relates to the vague references to reprimands in the Act. In a couple of different sections we are told that a reprimand may consist of advice, a recommendation to pursue a course of action such as attending a course, and/or an admonishment. We are not told what exactly “advice” consists of or what exactly is an “admonishment” and what follow-up is expected. There are no financial sanctions or possibility of suspension or anything similar mentioned.

It is disappointing that the guides published recently did not attempt to clarify any of these issues and it is to be hoped that solutions can be found to these issues in practice once the complaints process is up and running later this year.

These issues, and more, are discussed in a report jointly published with the Irish Council for Civil Liberties, reviewing the issues of judicial training and conduct and the first full year of operation of the Judicial Council.

• Dr Laura Cahillane is senior lecturer in law at University of Limerick and Dr Rónán Kennedy is senior lecturer in law at NUI Galway.