NUJ calls for ‘unacceptable secrecy provisions in Judicial Council Bill to be revisited

The National Union of Journalists has called on the Government to redraft “unacceptable secrecy provisions” in new legislation which will protect the identity of judges reprimanded for behaving improperly.

The Judicial Council Bill 2017, introduced in conjunction with the Judicial Appointments Bill , aims to promote excellence in judicial functioning.

It will put in place, for the first time, a system to deal with complaints about all judges that fall below the level necessary to trigger impeachment.

In contrast with many other countries, including in England, Wales and Canada, and unlike in regulated professions here, the public will not know when a judge has been rebuked.

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Inquiries into allegations of misconduct made against judges will be held in private, unless there are exceptional circumstances. Any court action related to the investigation will also be held in private.

It will be an offence, attracting a fine of up to €5,000 or a jail-term of up to 12 months, to disclose or publish any document or evidence used in such an inquiry.

The union said it believed the balance should be adjusted and that inquiries should be held in public, other than in exceptional circumstances identified by the judicial conduct committee to be established under the legislation.

It said the provisions that judges cannot be named or details of any censure published could only serve to undermine the very principles which were supposed to underpin the judicial council.

The union regarded the proposed offences as “draconian” and said it could be argued the provisions ran contrary to the spirit of judgments of the Supreme Court and the European Court of Human Rights.

NUJ acting general secretary Séamus Dooley said the publication of information on a sanction imposed on a judge “would clearly pass the public interest test”.

“The integrity and independence of the judiciary is fundamental in a democratic republic,” Mr Dooley said.

“That independence can only be enhanced by openness and transparency, while having due regard to the right to due process. We hope senators will revisit the Bill and use the legislative process to amend the unacceptable secrecy provisions. ”

Mr Dooley noted the Bill had been initiated in Seanad Éireann, where the Government does not have a majority, and called on all non-government senators, including Fianna Fáil members, to co-operate in securing amendments to the proposed legislation.

“We are entering Alice in Wonderland territory when it is proposed that judges who are censured for misconduct by the new council after a comprehensive inquiry chaired by a senior judge should be protected by a cloak of anonymity,” he said.

The secrecy provisions defeated the aim of the legislation, which was to instil confidence in the judiciary and the judicial process.

“Those who appear before the courts are entitled to know if a judge has been censured. The vast majority of judges will never appear before the council and should not be tainted by the suspicion which secrecy inevitably breeds,” Mr Dooley said.

"Notwithstanding the distinct role of the courts in a democracy it is difficult to see why judges who have been sanctioned should be afforded a degree of anonymity not available to individual doctors, nurses, social workers, pharmacists or in the case of the BAI and Press Council of Ireland and media organisations," the union said.

It said it was worth noting that the Legal Services Regulatory Authority will be holding inquiries into the conduct of barristers and solicitors in public and that no anonymity will be provided.

The judiciary has been calling for a judicial council for at least 20 years and legislation was first drafted in 2001, but has never progressed.

Dr Laura Cahillane, lecturer in law at the University of Limerick, said reprimanded judges should be named in the interests of public accountability. The judiciary was one of the few institutions left in Ireland for which there was effectively no accountability, she said.

“There is an aura of respect, and that is of course a good thing, but at times we go a bit too far, and judges may think they are untouchable.”