JUSTICE MATTERS Independence, Accountability and the Irish Judiciary TANYA WARD 22473_ICCL_Judiciary_cover_sectio1473_ICCL_Judiciary_cover_sectio1 1 111/07/20071/07/2007 111:26:561:26:56 Th e Irish Council for Civil Liberties (ICCL) is Ireland’s leading independent human rights watchdog, which monitors, educates and campaigns in order to secure full enjoyment of human rights for everyone. ABOUT THE AUTHOR: TANYA WARD is Senior Research and Policy Offi cer with the Irish Council for Civil Liberties. 22473_ICCL_Judiciary_cover_sectio2473_ICCL_Judiciary_cover_sectio2 2 111/07/20071/07/2007 111:26:581:26:58 CONTENTS ABOUT THE ICCL 5 SECTION 4 Personal Independence and the Irish Judiciary 45 ACKNOWLEDGEMENTS 7 4.1 Introduction 46 4.2 Appointments 46 4.2.1 Selection and Criteria 46 SECTION 1 Introduction 9 4.2.2 Th e Judicial Advisory Appointments Board 1.1. Introduction 10 (JAAB) 50 1.2. Aims and Objectives of Study 12 4.3 Conditions of Service and Tenure 54 1.3. Methodology 13 4.4 Adequate Remuneration 56 1.4. Report Outline 14 4.5 Freedom of Expression and Association 57 4.5.1 Representation and Association 57 4.5.2 Extra-Judicial Comment and Educating SECTION 2 International Human Rights the Public 58 Standards on Judicial Independence and 4.6 Competence, Diligence and Judicial Studies 60 Impartiality 15 4.6.1 Judicial Studies in Ireland 60 2.1 Introduction 16 4.6.2 Induction 62 2.2 What is Judicial Independence? 16 4.6.3 Human Rights Education 63 2.3 What is Judicial Impartiality? 18 4.6.4 Further Academic Studies 65 2.4 International Human Rights Law Standards on 4.7 Judicial Accountability 65 Judicial Independence 19 4.7.1 Constitutional and Statutory Provisions 66 2.4.1 UN Instruments 19 4.7.2 Th e ‘Sheedy Aff air’ 67 2.4.2 European Convention on Human Rights 20 4.7.3 Proposals for Reform 68 2.5 Sources of International Non-Legal Principles on 4.7.4 Th e Curtin Case: Th e Impeachment Judicial Independence 23 Process Considered 69 4.7.5 Th e Committee on Judicial Conduct and Ethics (2000): Perspectives of Judges 71 SECTION 3 Functional Independence and 4.8 Recommendations 72 the Irish Judiciary 25 3.1 Introduction 26 3.2 Separation of Powers and Judicial Review 26 SECTION 5 Impartiality and the 3.2.1 Judicial Power 28 Irish Judiciary 75 3.3 Independence in Decision-Making 32 5.1 Introduction 76 3.3.1 Are Judges Subject to any External Pressure 5.2 Impartiality and Irish Law 76 when Adjudicating? 33 5.3 Disqualifi cation 78 3.3.2 Do Government Ministers Make Statements 5.4 Personal Bias and the Irish Judiciary 80 Adversely Aff ecting the Independence of Judges? 35 5.5 Corporate Bias and the Irish Judiciary 82 3.3.3 Are Judicial Decisions Subject to Revision? 37 5.6 Managing Fair Court Proceedings 85 3.4 Jurisdictional Competence 37 5.7 Recommendations 88 3.4.1 Jurisdictional Competence in the Irish Courts 37 3.4 2 Jurisdiction of the High Court 38 3.4.3 Jurisdiction of the Supreme Court 39 SECTION 6 Administrative Independence 89 3.5 Th e Right and Duty to Ensure Fair Court 6.1 Introduction 90 Proceedings and Deliver Reasoned Decisions 40 6.2 Adequate Resourcing 90 3.5.1 Failure to Provide Reasoned Decisions in the 6.3 Administration of the Courts 94 District Court 42 6.4 Allocation of Cases to Judges 96 3.6 Recommendations 43 6.5 Recommendations 96 SECTION 7 Summary of Recommendations 97 22473_ICCL_Judiciary_cover_sectio3473_ICCL_Judiciary_cover_sectio3 3 111/07/20071/07/2007 111:26:591:26:59 CONTENTS (continued) APPENDICES 102 LIST OF FIGURES Appendix 1: UN Basic Principles on the Figure 1: Structure and Jurisdiction of the Courts 8 Independence of the Judiciary (1985) 102 Appendix 2: Th e Bangalore Principles of Judicial Conduct 104 LIST OF TABLES Appendix 3: Interviews 112 Table 1: Number of Judges Elevated by Appendix 4: List of Interviews with Members Government 2002-2005 52 of the Irish Judiciary 113 Table 2: Received Salary from 1 December 2006 56 Appendix 5: Judiciary Advisory Group Members 114 Table 3: Funding for the Courts Service, 2002-2006 91 Table 4: Th e Workload of the Courts in 2005 92 LIST OF BOXES Box 1: What is the Function of a Judge? 12 Box 2: UN Special Rapporteur on the Independence of Judges and Lawyers 23 Box 3: What is Judicial Review? 26 Box 4: Th e case of the Refugee Appeals Tribunal (RAT) 29 Box 5: Judicial Declaration 33 Box 6: Standing Order 57: Debate matters sub judice 35 Box 7: Jurisdiction of the High Court 38 Box 8: Criteria for Judicial Appointments in New Zealand 50 Box 9: Criteria for Judicial Appointments in Canada 51 Box 10: Increasing Diversity in the Judiciary – England and Wales 84 Box 11: Extract from Law Reform Commission Report on Family Courts – A System in Crisis 90 Box 12: Working Group on a Courts Commission (1996) Observations on Court Administration 94 22473_ICCL_Judiciary_cover_sectio4473_ICCL_Judiciary_cover_sectio4 4 111/07/20071/07/2007 111:27:011:27:01 About the ICCL Th e Irish Council for Civil Liberties (ICCL) is Ireland’s leading independent human rights watchdog, which monitors, educates and campaigns in order to secure full enjoyment of human rights for everyone. We believe in a society which protects and promotes Th e priorities under each area: human rights, justice and equality. MONITORING HUMAN RIGHTS Th e ICCL campaigns to strengthen: • the implementation of international human rights obligations in Irish law; • the practice of rights through participative democracy; • individual autonomy from disproportionate interference by the state. PROMOTING JUSTICE Th e ICCL campaigns for: ICCL - Irish Council for Civil Liberties, 9-13 Blackhall Place, Dublin 7 • eff ective, accountability structures for the Gardaí that have the trust of the public, and eff ective, proportionate police powers; WHAT WE DO • eff ective penal policy not focused on incarceration, particularly in the area of youth justice; Th e ICCL campaigns in three key areas: Monitoring Human • independence and accountability for the judiciary, Rights, Promoting Justice and Securing Equality, through: specifi cally in the area of equality, racism and human rights. • Advocating positive changes in the area of human rights; • Monitoring government policy and legislation to make sure that it complies with international standards; SECURING EQUALITY • Conducting original research and publishing reports on issues as diverse as equality for all families, Th e ICCL campaigns to secure: Garda reform and judicial accountability; • equality proofi ng of law and policy; • Running campaigns to raise public and political • eff ective advocacy for marginalised communities; awareness of human rights, justice and equality issues; • recognition for all of equal rights in personal and • Working closely with other key stakeholders in the family relationships. human rights, justice and equality sectors. ICCL Justice Matters 2007 5 22473_ICCL_Judiciary_cover_sectio5473_ICCL_Judiciary_cover_sectio5 5 111/07/20071/07/2007 111:27:021:27:02 About the ICCL (continued) Founded in 1976 by, among others Mary Robinson, former President of Ireland and UN High Commissioner for Human Rights and Professor Kader Asmal, an anti-apartheid campaigner and former South African Government Minister, the ICCL has always adopted a rights-based approach to its work. From its early campaigns for Garda reform, through its PROMOTING JUSTICE advocacy of equal rights, to its ongoing eff orts to ensure the full implementation in Ireland of international human rights • Contributing to the Garda Human Rights Audit; standards, the ICCL has tirelessly lobbied the State to respect • Establishment and membership of the the inherent dignity of the individual. Garda Strategic Human Rights Advisory Committee; • Establishment of an independent Garda Ombudsman ICCL has played a leading role in some of the most successful Commission (2007); developments in human rights in Ireland, these include: • Producing a guide to the ECHR for all serving Garda members (2006). MONITORING HUMAN RIGHTS SECURING EQUALITY • Ireland incorporating the European Convention on Human Rights (ECHR) with the ECHR Act 2003; • Introduction of multi ground equality legislation; • Establishment of the Irish Human Rights • Removal of the Constitutional ban on divorce (1995); Commission (2000); • Promoting equality for gay women and men which • Th e Freedom of Information Act, 1997; contributed to decriminalising homosexuality (1993); • Promoting human rights elements of the • Placing issues including mental health, refugee rights Good Friday (Belfast) Agreement, 1998. and immigration on the political agenda. 6 ICCL Justice Matters 2007 22473_ICCL_Judiciary_cover_sectio6473_ICCL_Judiciary_cover_sectio6 6 111/07/20071/07/2007 111:27:021:27:02 Acknowledgements Th is project could not have been undertaken without the Th e ICCL would like to thank all those who agreed to support and assistance of the Courts Service and the ICCL participate on the Advisory Group for this project and would like to extend its gratitude to its staff , and in particular, for their input and feedback on the report. Th ey include: to: Mr Brendan Ryan, Director of Corporate Services; the Honourable Mr Justice Donal Barrington, Ms Noeline Ms Elisha Darcy and Ms Catriona Gilheaney. Th e ICCL Blackwell, Director of FLAC (Free Legal Advice Centres); would also like to thank all those who met with the researcher Sergeant Mick Byrne, An Garda Síochána; Ms Alma and agreed to be interviewed, including sitting and retired Clissmann, Parliamentary and Legal Reform Offi cer, members of the Irish judiciary. Law Society of Ireland; Ms Fiona Crowley, Legal and Research Manager, Amnesty International (Irish Section); Mr Michael Various individuals provided information and guidance Finucane, Solicitor; Ms Mary Ellen Ring, Senior Counsel; to the researcher which the ICCL wishes to acknowledge. Ms Judy Walsh, Law Lecturer, and in particular, Ms Aileen Th ey include: Mr Michael Farrell, Solicitor; Mr Michael Donnelly, Senior Counsel, who convened and chaired Finucane, Solicitor; Mr Michael Lynn, Barrister at Law the group.