Privacy clause added to judicial Bill after lobbying by judges

Susan Denham told Frances Fitzgerald of concern over public misconduct proceedings

A privacy provision relating to misconduct inquires against judges was inserted into a draft of the Judicial Council Bill after the then Chief Justice Susan Denham contacted the then minister for justice Frances Fitzgerald (right) in 2015. Photograph: Gareth Chaney/Collins

A privacy provision relating to misconduct inquires against judges was inserted into a draft of the Judicial Council Bill after the then Chief Justice Susan Denham contacted the then minister for justice Frances Fitzgerald (right) in 2015. Photograph: Gareth Chaney/Collins

 

The Government decided that proposed hearings into allegations of misconduct against judges should take place behind closed doors after being lobbied by the judiciary.

The controversial proposal contained in the Judicial Council Bill 2017 also says that any court action relating to an investigation of a judge 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 a year, to disclose or publish any document or evidence relating to such an inquiry.

The privacy provision relating to misconduct inquires was inserted into an early draft of the bill after the then chief justice Susan Denham contacted the then minister for justice Frances Fitzgerald in 2015 outlining concerns from the judiciary about the bill.

Ms Justice Denham said that proceedings should be held in private and noted a previous draft of the bill from 2009 included such a provision. The final draft bill accepted the chief justice’s recommendation and went further, stating that any determinations of a Judicial Conduct Committee should also be private.

Failed attempts

The Judicial Council Bill 2017 is the latest product of more than 20 years of consultations and failed attempts to legislate on the issue. Successive chief justices have been intimately involved in the drafting of versions of the Bill.

It is understood that most senior judges are now of the opinion that hearings and inquiries should be private but that accusations should be made public if they are upheld.

Some judges are worried that a public complaints process could be abused by lay litigants, such as anti-repossession campaigners, to damage the reputation of a judge with vexatious and baseless accusations.

“In the age of social media, these accusations would follow the judge around whenever they heard a case, even if they were completely baseless,” a judge said. “And they could be used to impugn every decision that judge makes.”

The anonymity provisions have been met with strong opposition since they was reported recently in The Irish Times.

Minister for Transport Shane Ross, who has been the main sponsor of reform to the judicial appointments system, indicated he was against the idea of private hearings, as did every Opposition party in the Dáil.

Changes

Asked about the changes to the Bill, a Department of Justice spokesman said: “The 2017 Bill is broadly based on the General Scheme published in 2010 but as is normal the published Bill has been developed in the course of the drafting process.”

A senior judge said: “We’ve got to have transparency whether we like it or not.”

He added that the only reason he could see for secrecy is if a judge’s misconduct was down to a disease “like alcoholism or dementia”.

He added that there has been hardly any discussion on the issue among his colleagues. “They are far more concerned with the appointment process as it stands,” he said, in reference to the Judicial Appointments Bill which is being moved alongside the Judicial Council Bill.

Another judge told The Irish Times that there was little concern among the bench about the proposed disciplinary proceedings due to the installation of digital audio recording (DAR) systems in every courtroom.

“Now everything is picked up on the DAR. That does two things. Firstly it protects judges from vexatious complaints. Secondly it makes some of our more exuberant colleagues behave themselves on the bench, like any public servant should.”