Chief Justice complains over lack of judicial council

The failure to establish a judicial council "weighs heavily" on relations between the judiciary and the Cabinet, Chief Justice Susan Denham has said

The unusually strong comments from the country’s most senior judge demonstrate that relations between the two arms of the State are being adversely affected.

Proposals for the creation of such a body have been in existence for almost two decades but the programme for government negotiated in May did not include a commitment to introduce such a Bill.

In a statement issued to mark the beginning of the new legal year, she said there was “a distinct loss of momentum” on the issue. She said the possibility of a Bill was mentioned in the “all other legislation” part of the programme published in June by the Chief Whip for the last Dáil term.

This appeared to be a “demotion” of the proposal with regard to its status with the previous government.

Ms Justice Denham's statement was issued to the media on Sunday afternoon, with publication embargoed until midnight. A few hours later a spokesman for the Tánaiste and Minister for Justice and Equality, Frances Fitzgerald, issued a statement saying a Bill would be published in the coming session.

“The Tánaiste has discussed progress with the Chief Justice on a number of occasions to keep her apprised of developments and to assure her of the efforts which are being made to bring the drafting of the legislation to a conclusion and achieve publication and enactment,” he said.

In her statement, Ms Justice Denham said the State would have to report to an international body this week that it had failed to implement five recommendations made two years ago concerning the judiciary, three of which would have been met by establishing a judicial council.

The failure to establish a council was affecting the State’s international reputation “as a modern democracy governed by the rule of law”, she said. The council would facilitate communication between the judiciary and other branches of Government and provide education for judges and a mechanism for investigating complaints about judicial conduct.

The absence of the institution set Ireland apart from the overwhelming majority of EU member states, as well as leading common law jurisdictions such as the United States, Canada and Australia, she said.

‘Institutional vacuum’

Ms Justice Denham, who is due to retire next August, outlined the history of proposals for the establishment of a judicial council going back to 1996, some of which she was involved in.

“What stands out most in the timeline is the protracted period over which the establishment of a judicial council has been extended,” she said.

The “significant institutional vacuum” created by the failure to establish the council was a matter of real concern.

“A judicial council is a necessary element of the infrastructure of a modern democratic State, providing an important safeguard of the separation of powers,” she said.

She said this week Ireland is due to give an update to the Council of Europe’s Group of States Against Corruption Group (Greco), which advocated in November 2014 that a judicial council be established “with due expedition”.

The Tánaiste’s spokesman said she echoed the views of the Chief Justice as regards the importance of enacting the legislation.