Judicial Council: secrecy threatens public confidence

Proposed legislation would reinforce impression judges are a cosseted elite

 

Judges’ decisions can have profound, life-altering effects on the State they serve and the individuals who come before them. Yet the importance of the judicial office has never been reflected in the structures by which we select, train, scrutinise and regulate those who sit on the bench. Judges are chosen through an opaque, ad hoc and indefensible system. When they take office, they receive no instruction on how to be a judge. When they behave badly, nothing – or at least nothing short of the nuclear option of impeachment – can be done to censure or punish them.

A flawed selection system was tweaked in the 1990s, and is in the process of further change. But for almost 20 years, successive governments have promised a regime for the disciplining, education and training of judges, and each administration has failed to deliver. The proposal for a judicial council first emerged in 1999. Every governing party since then has supported the idea, and the judiciary – despite initial resistance within its ranks – has long been calling for it, but still nothing has materialised.

Good judges have nothing to fear from a transparent disciplinary regime of the kind that operates in other common law countries

Now, with the Fine Gael-led coalition finally about to put that right, it emerges that its draft legislation – the Judicial Council Bill – contains provisions that, if enacted, will undermine some of the very principles behind the reform. Under the Bill, the identity of judges reprimanded for behaving improperly will be protected. Only in exceptional circumstances will inquiries into alleged misconduct by judges be held in public, and any court action related to an investigation will take place behind closed doors. What’s more, anyone who discloses information used in such an inquiry will face a fine of up to €5,000 or a year in jail.

With this entirely wrong-headed emphasis on secrecy, a measure designed to instil confidence in the judicial system will have the opposite effect, reinforcing the impression that judges are a cosseted elite held to different standards of transparency to other public-office holders. It also appears to fit a pattern. A system that purports to care about open justice does not, in general, allow access to court documents and other basic information routinely available in other jurisdictions.

It’s a pious mantra in the legal profession to say we are blessed with our judiciary. As anyone who has ever sat in court knows, the truth is that judging is a profoundly human business that naturally reflects the best and the worst of the legal profession and, more broadly, of Irish society itself. Good judges have nothing to fear from a transparent disciplinary regime of the kind that operates in other common law countries, including England, Wales and Canada. On the contrary, such a system will help strengthen the high public esteem in which, according to opinion polls, judges continue to be held. The Government should amend its Bill.

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