Irish Times

Monday, February 26, 2001

Keane calls for setting-up of complaints system

Mr Justice Keane admits some judicial opposition to lay person involvement in review procedures. He spoke to Carol Coulter, Legal Affairs Correspondent

Carol Coulter
Irish Times

Ronan Keane would like to see Government action as soon as possible on the proposals from the Committee on Judicial Conduct and Ethics. This reported last month, recommending that a Judicial Council be set up on a statutory basis, which would have a committee to deal with the disciplining of judges.

The Chief Justice also admitted there had been opposition within the judiciary to proposals to have lay representation on the body which would inquire into complaints against judges. However, the committee recommended that a lay person sit on the three-person Panel of Inquiry envisaged in its report.

In an interview with The Irish Times, the Chief Justice expressed surprise at the absence of public debate about the recommendations. The Minister for Justice welcomed the report in the Dáil earlier this month, and said he would develop proposals for constitutional change and legislation arising out of it. But apart from that there was little discussion.

A spokesman for the Minister for Justice told The Irish Times that implementation of the recommendations in the report would constitute radical and far-reaching changes in judicial oversight. The recommendations also need to be considered along with earlier recommendations from the Oireachtas All-party Committee on the Constitution, he said. This recommended a constitutional amendment permitting a system of review of judicial conduct.

In his interview, Mr Justice Keane said the present situation for dealing with complaints against judges was very unsatisfactory, and judges wanted a system of self-regulation.

"Of course there are complaints," he said. "We deal with them as best we can. But we deal with them in an ad-hoc fashion. The only procedure that exists is the procedure in the District Court when the Minister can ask me to nominate a High Court judge to inquire into a complaint, and this only exists for the District Court. A void exists."

If a complaint is made against a judge in the Circuit or higher courts, the president of the court in question can ask to talk to the judge complained against, but he cannot compel him to attend a meeting. "It has happened that a judge, when a matter has been drawn to his attention, may choose to say something in court to allay anxiety," he said.

Asked what the volume of complaints against judges was, he said it was impossible to say. His office received a number, usually not about Supreme Court judges, for which he is directly responsible, and he referred them to the president of the appropriate court. "It's a steady trickle," he said.

He said under the system proposed by the Committee on Judicial Conduct and Ethics there would be statistics about complaints, and a report would be prepared annually which would be made public.

The committee proposed the setting up of a Judicial Council, of which all judges would be members. The council would have a board and a number of sub-committees and one of these committees would be a Judicial Conduct and Ethics Committee. All of the committees would be composed entirely of members of the judiciary.

The Judicial Conduct and Ethics Committee would receive complaints about the conduct of judges and filter them, sending serious complaints to a Panel of Inquiry. This would be made up of two judges nominated by the committee, and one lay person from a pool of three appointed by the Attorney General. This panel would then conduct an inquiry which, when considering allegations of serious misconduct, would hold its hearing in public.

It would report back to the Conduct and Ethics Committee, which would recommend action, including either a public or private reprimand. It would not have the power to remove a judge. This would remain with a resolution of both Houses of the Oireachtas, as spelt out in the Constitution.

When the report was published it was criticised by the Law Society for not allowing for representation from the other branches of the legal profession. Solicitors and barristers are most likely to suffer if a particular judge shows a pattern of discourtesy or misconduct in court.

Mr Justice Keane agreed there could be complaints which would not concern an isolated incident. "If these are well-founded they should be dealt with. How you do it is another matter. A complaint can come from a litigant, a member of the public, or solicitors or barristers.

"Solicitors or barristers would be an obvious vehicle of complaint, but if they were sitting on the committee they would be adjudicating on these complaints."

But did the committee not recommend a Panel of Inquiry where judges would be adjudicating on complaints against judges?

"One of the issues on which we had to make a decision was whether in principle this should be under the control of judges. There are a number of reasons [why it should]. Firstly, there is the Constitution.

"The [Conduct and Ethics] committee can't fire anybody. But even if it has no dismissive power, it has the power to censure. This would have a considerable impact on a judge's standing, on whether he can continue. He may feel he has to resign. If that was done by some other body it would be bound to raise questions about judicial independence.

"We have asked for some form of judicial self-regulation. It is possible it may only be done constitutionally by a body under the control of judges."

The report drew heavily on the experience of the Judicial Commission of New South Wales. However, it departed from it in that four out of the 10 members of this commission are non-judges, and one of them is a legal practitioner. The proposed Judicial Council in Ireland will have no lay representation on its board or committees, but only on its Panel of Inquiry, and has no provision for representation from the legal profession on this.

"There were arguments for and against [representatives of the legal profession]," Mr Justice Keane said. "There was some opposition to representation from the professions and we didn't detect any great groundswell for it. The public are the real users of the courts, and we felt it would be wrong for the Panel of Inquiry to be exclusively judicial.

"But having lay participation was not the view of a good number of judges. We didn't feel the case had been established to have in addition representatives of the legal profession. We felt we had gone as far as we could.

"Ultimately it is a matter for Government and for the Oireachtas. They will decide on how our recommendations will be implemented. The Law Society can make their case. I don't regard this as a crucial matter, the Oireachtas might take a different view, and so be it."

On whether there should be lay representation on the Judicial Council itself, which was recommended by the Oireachtas Committee, he said there was lay input already into judicial education and training, where specialists from other disciplines were invited to judicial training seminars. He felt this was the appropriate form for lay input into these non-disciplinary areas.

Asked if there was any discussion of lay participation on this issue, he said there was, but starting from some resistance to any lay representation it was felt the best way to have lay people involved was on the Panel of Inquiry.

The pool of three from which these will be drawn will be appointed by the Attorney General, himself a member of the legal community and, possibly, if the past is anything to go by, a future judge. Why should they not be made by the Minister for Justice, who is directly accountable to the public?

"The Attorney General is not only the legal adviser to the Government, he is the guardian of the public interest under the Constitution. The Minister is a political person, and there could be a perception, however ill-founded, that the appointments would be on a political basis. The Attorney General would provide an assurance that these appointments would be made in an absolutely impartial manner."

© 2001