IRELAND’S REPUTATION IS at risk because of the lack of a judicial council, the country’s top judge has said.

The Honourable Mrs Justice Denham has issued a “statement of concern” regarding Ireland’s reputation as the beginning of a new legal year for the country.

She says in the statement that an issue of “real concern” is the lack of a Judicial Council in Ireland, which she describes as “significant institutional vacuum”.

A judicial council would help to maintain and promote “excellence in the exercise by judges of their judicial functions”.

The membership of the council would consist of the Chief Justice and ordinary judges of the Supreme Court; and the Presidents of the High Court, Circuit Court and District Court and ordinary judges of those courts.

Separation of powers

Mrs Justice Denham said that the council is something that has been advocated for for two decades, and it is a “necessary element of the infrastructure of a modern democratic State, providing an important safeguard of the separation of powers”.

In 1996, the idea of a council was mooted by that year’s Report of the Constitution Review Group.

Denham pointed out that the Programme for Partnership Government doesn’t contain a provision for a Judicial Council Bill.

However, the Judicial Council Bill is described as ‘heads approved, drafting at an advanced stage’ under the list of programme of legislation in the current session of the government.

Denham said that the fact the bill is listed under “all other legislation” means that it has been demoted.

The failure to progress this institutional reform with the urgency it deserves weighs heavily, both on relations between the Judiciary and the Executive, and on the State’s reputation internationally, as a modern democracy governed by the rule of law.

The absence of such an institution – by whatever name it may be called – sets 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 noted that the absence of a judicial council has even been remarked upon by the United Nations, which recommended that the government would:

Expedite the enactment of legislation to allow for the statutory establishment of the Judicial Council, providing it with adequate financial and human resources.

In addition, the Group of States Against Corruption (Greco), which is a body established by the Council of Europe, advocated the establishment of a Judicial Council in Ireland. It recommended that the current system for selection and appointment of judges be reviewed and that a code of conduct for judges be formally established.

It said that Ireland should report back within 18 months, but this timeframe was then extended. There were five recommendations by the Greco, and Denham said three of them would be met by the establishment of a Judicial Council.

“It is clear that there is an expectation that the State will take the GRECO recommendations seriously and implement them accordingly,” said Denham.

She noted that the mandatory nature of the rules regarding members of Greco “has obvious ramifications for Ireland”.

Denham concluded that:

In face of the strong consensus in Ireland and internationally as to the need for the establishment of a Judicial Council and legislation for a judicial conduct regime, it is therefore a matter of the most real concern to observe what would appear to be a distinct loss of momentum in delivering this historic institutional reform.

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