Strasbourg, 12 January 2007

CCJE REP(2007)7
English only

Consultative Council of European Judges (CCJE)

Questionnaire for 2007 CCJE opinion concerning the Councils for the Judiciary: Reply submitted by the delegation of Ireland

Part I – General context concerning the judiciary

1. Is there possible interference of the legislative power concerning judges?
The judiciary in Ireland are governed by the “separation of powers doctrine” as prescribed by Article 6 of the Constitution of Ireland. This doctrine is one which is of considerable constitutional importance and the judicial power of applying the law alongside the principle of judicial independence as provided for in Article 34.1of the Constitution is jealously guarded. The encroachment of the legislature and the executive in the determination of a judicial decision has been rejected by the Supreme Court. In Buckley v. The Attorney General [1950] I.R. 67, the Supreme Court held that the Oireachtas could not determine the outcome of civil proceedings. In Byrne v. Ireland [1972] I.R. 241, the Supreme Court ruled that the English Crown’s old prerogative of immunity from suit had not been transferred to the Irish State after Irish independence, meaning that citizens were now permitted to sue the state of Ireland. This paved the way for a new era of constitutional litigation against the State. In addition, Article 26 of the Constitution contains a mechanism for the judicial review of legislation. This allows the Irish Supreme Court, when requested by the President, to review legislative measures in the light of the Constitution before they are passed into law.

2. Is it possible for the legislative power or the Parliament to order investigations or to establish commissions:

§ In general concerning judges?
Judges are totally independent when carrying out their judicial functions. They are employed directly by the State and not by the Courts Service. Under the Irish Constitution, the Separation of Powers prevents the legislative power or the Parliament from likewise investigating the judicial function. The Constitution does allow for the removal of a judge of the Supreme Court, High Court or Circuit Court may be removed from office on the grounds of stated misbehaviour or incapacity, if resolutions are passed by both Houses of the Oireachtas (both the upper and lower Houses of Parliament) but this procedure has never been pursued to conclusion although it has been commenced in one case.

§ Concerning judicial performance?
No

§ Concerning facts already submitted to courts?
The Supreme Court has held that the legislature cannot pre-empt the evaluation of evidence (Maher v. Attorney General [1973] IR 140) and that the legislature could not usurp the judiciary’s discretion to fix the sentence appropriate to a particular case (Deaton v. AG [1963] IR 170).

§ Concerning procedural act (e.g. telephonic tapping, police custody)?
Not Applicable

3. Is there possible interference of the executive power concerning judges?
The independence of the judiciary is set both from the point of view of their legal position and functionally at the level of individual judges. The executive does not have power to interfere with the role of the judiciary as Article 35.2 of the Irish Constitution gives a functional guarantee of independence and by prescribing that the judiciary is only subordinate to the Constitution and the law.

4. If yes to Q.3, is it possible for the executive power to interfere:

§ In selection, training, career, disciplinary procedures of judges? (If yes please specify authority)

Under Article 35.1 of the Constitution, judges are appointed by the President on the advice of the Government from legal practitioners with the requisite number of years in practice However, in practice it is generally acknowledged that judges are selected on merit The Courts and Court Officers Act 1995 established a Judicial Appointments Advisory Board for the purposes of ‘identifying persons and informing the Government of the suitability of those persons for appointment to judicial office.’ This applies to the appointment of all ordinary judges but excludes the Chief Justice and Presidents of the Courts.

§ In designation of the presidents of courts? (If yes, please specify authority)

See above

§ In management of courts (If yes, please specify authority)
Not applicable

5. Are the judicial staffs working under the authority of a judge, the president of the court or the Ministry of Justice?
Section 23 of the Courts Service Act, 1998 provides:
(1) The Board may appoint such number of persons to be members of the staff of the Service as may be approved by the Minister (of Justice) with the consent of the Minister for Finance.
     (2) The Board shall determine the grades of staff of the Service and the numbers of staff in each grade as may be approved by the Minister with the consent of the Minister for Finance.
     (3) A member of the staff of the Service shall be a civil servant in the Civil Service of the State.

6. What are the competences of the president of the Court:

§ To evaluate the work of the judges of the court?
Under section 36 (2) (a) and (b) of the Courts (Supplemental Provisions) Act, 1961, the President of the District Court may investigate the conduct of a colleague where it appears that such District judge’s conduct is prejudicial to the prompt and efficient discharge of the business of that Court. The President must consult the judge in question and may report his or her findings to the Minister for Justice. There are no similar statutory provisions for Presidents of the Circuit and High Court.

§ To distribute the work between judges?

Section 10 (3) of the Courts (Supplemental Provisions) Act, 1961 provides
“It shall be the function of the President of the High Court or, where he is not available, the senior ordinary judge of the High court who is for the time being available to arrange the distribution and allocation of the business of the High Court.”

§ To act as a disciplinary authority vis-á- vis judges?
There are at present no legislative provisions dealing with the investigation of complaints made against judges of the superior court in the discharge of their duties. The legislature’s right to regulate the terms of appointment of District Court judges has found expression in s.10 (4) of the Courts (Supplemental Provisions) Act, 1961, as amended by s. 21 (2) of the Courts Act, 1991 which provides that:
“Where the Chief Justice is of opinion that the conduct of a justice of the District Court has been such as to bring the administration of justice into disrepute, the Chief Justice may interview the justice privately and inform him of such opinion.”

§ To intervene in the careers of judges?

None

Part II – General concerning Councils for the Judiciary

7. Is there a Council for the Judiciary in your judicial system?
There is no Council for the Judiciary in Ireland. The management of finances, budgets, service provision etc. is conducted by the Courts Service, an independent corporation established in 1999. This has involved a decentralisation of management of the Irish courts from the Department of Justice, but it has not affected the judiciary. Accordingly, while customer service, customer orientation and benchmarking have been evident in the Courts Service’s approach to the management of the court system, the judiciary has not been affected as any move in this direction would cause constitutional difficulties and would be at odds with the principle of judicial independence.

8. What is the exact title/denomination of this body? (In the case there is no such body, which department or structure is responsible for the tasks of the Council?)
There is no Council in Ireland. The Courts Service oversees the management of the courts system.

9. What is the legal basis for the Council of the Judiciary:
There is no council for the judiciary in Ireland. There is however a Courts Service. The Courts Service is an independent organisation established on 9th November, 1999, following the enactment of the Courts Service Act, 1998. The Courts Service is an administrative organisation, its primary tasks being the administration and management of the courts, establishing or making available facilities and services for judges, providing information to the general public about how the administration of justice functions in Ireland, to care for and manage the accommodation of the judicial organisation and taking care of facilities for the clients of the judiciary.

There is no direct relationship between the President of Ireland and the Courts Service, The President has no control or right of input over the manner in which the Courts Service operates.

The Minister for Justice, Equality and Law Reform has little control over the Courts Services’ exercise of powers. However, the consent of the Minister is required where the Board of the Courts Service seeks to exercise its power to hire consultants and advisors in connection with the performance of the courts. Furthermore, when drawing up its three year strategic plan, such plan setting out the key objectives, outputs and related strategies (including use of resources), the Board of the Courts Service must pay attention to the Minister’s policy wishes. In addition, section 8 of the Act of 1998 requires the Courts Service to submit an annual report to the Minister of Justice on its activities during that 12 month period, as well as any additional information which the Minister may direct. The Minister must then lay a copy of that report before each House of the Oireachtas.

The Houses of the Oireachtas control the accounts and decide on the Annual Budget of the Courts Service. Section of the Act of 1998 requires the Courts Service Board to each year draw up and submit to the Houses of the Oireachtas a report setting out the policy objectives and financial outlay of the Courts Service.

Despite the extensive remit of the powers of the Courts Service, it must be noted that the administration of justice is, under the Constitution, the responsibility of the judges. Judges are employed directly by the State and not by the Courts Service. They are totally independent when carrying out their work. This is expressly stated to be the case in section 9 of the Courts Service Act, 1998.

10. Please give a brief historical overview (why there is no such Council?)
The independence of the judiciary is enshrined in the Constitution of Ireland and judges cannot be answerable to the government or the Irish parliament in the exercise of the judicial function. However, that being said, in extreme circumstances a judge of the Supreme Court, High Court or Circuit Court may be removed from office on the grounds of stated misbehaviour or incapacity, if resolutions are passed by both Houses of the Oireachtas (both the upper and lower Houses of Parliament). This procedure has never being utilised since the coming into being of the Constitution. In the case of the District Court, there is the added sanction of an inquiry by a Supreme Court or High Court judge at the request of the Minister and a private interview by the Chief Justice with the judge in question. At an informal level, complaints can be and are made to the Presidents of the different court levels as to alleged misconduct on the part of individual judges.

The resolution procedure aside, there is no formal structure within which instances of less serious judicial misbehaviour on the part of judges of the Supreme, High or Circuit Court may be dealt with. In 2000, the Committee on Judicial Conduct and Ethics agued in favour of the introduction of such structures and the establishment of a “Judicial Council” as such measures would assist in maintaining public confidence in the impartiality and independence of judges. However, such a Council has not been established.

Part III – Composition

11. What is the composition for the Council for the Judiciary?
Not Applicable

12. Please describe the procedure of appointment.
Not Applicable

13. How is the President and/or Vice President of the Council appointed?
Not Applicable

14. What is the term of office for a member of the Council?
Not Applicable

15. May a member be removed from office against his/her will and, if so, under what circumstances?
Not Applicable

Part IV – Resources

16. Where does the Council receive its financial resources?
Not Applicable

17. Does the Council have its own staff?
Not Applicable

18. If not, who are the personnel provided by?
Not Applicable

19. What is the staff number?
Not Applicable

20. What are the qualifications of the staff?
Not Applicable

21. Must the staff be composing, albeit in part, by judges?
Not Applicable

22. What are the tasks of the staff of the Council:
As already stated there is at present no council for the judiciary. The Courts Service’s are set out in section 5 of the Courts Service Act 1998 and include:

(a) managing the courts,
(b) providing support services for the judges,
(c) providing information on the courts system to the public,
(d) providing, managing and maintaining court buildings, and,
(e) providing facilities for users of the courts.

§ preparing materials for the Council members?
Not Applicable

§ providing them with analysis and evaluation of the courts’ practice?

Not Applicable

§ other? Please specify.

Not Applicable

Part V - Tasks

23. Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):

§ in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?

There are 130 judges statutorily provided for. The Supreme Court is comprised of the Chief Justice and seven ordinary judges, the High Court is comprised of the President of the High Court and 32 ordinary judges, the Circuit Court is comprised of the President of the Circuit Court and 33 ordinary judges and the District Court is comprised of the President of the District Court and 54 ordinary judges.
Under Article 35.1 of the Constitution, judges are appointed by the President on the advice of the Government. In Ireland the President exercises a largely ceremonial role, meaning that in practice the appointment of a judge is the decision and act of the Government. The Courts and Court Officers Act 1995 established a Judicial Appointments Advisory Board for the purposes of ‘identifying persons and informing the Government of the suitability of those persons for appointment to judicial office.’ This applies to the appointment of all ordinary judges but excludes the Chief Justice and Presidents of the Courts.

The board consists of the Chief Justice, the Presidents of the High, District and Circuit Courts, the Attorney General, a practising barrister and solicitor and not more than 3 people nominated by the Minister for Justice. Any person who wishes to be considered for judicial appointment may inform the board of this in writing. Once this is done the Board will submit recommendations to the Minister for Justice. The Board can recommend any person who complies with the relevant qualifications which are set out in the Courts (Supplemental Provisions) Act 1996 and the board must be of the opinion that the person:

    - has displayed in his or her practice as a barrister or solicitor, as the case may be, a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned.
    - is suitable on grounds of character and temperament
    - is otherwise suitable and,
    - undertakes in writing to the Board his or her agreement, if appointed to judicial office, to take such course of training or education, or both, as may be required by the Chief Justice or the President of the court to which the person is appointed.

The Supreme Court currently sits in 1 location, the High Court in 28, the Special Criminal Court in 1, the Circuit Court in 56 and the District Court in 180.

§ in area of initial and/or continuous training for judges and/or courts’ staff3?
The Judicial Studies Institute (JSI) is responsible for the ongoing training and education of judges and was established pursuant to section 19 of the Court and Court Officers Act, 1995. It organises training sessions, seminars and conferences for the further and continuing education of the Judges. It is managed by a Board chaired by the Chief Justice and comprising the Presidents of each court and a member of each court nominated by the President of that court. It also publishes the Judicial Studies Institute Journal twice a year, containing conference papers and articles on legal topics aimed at the judiciary. Although not answerable to the Courts Service, supporting the work of the Judicial Studies Institute was stated to be one of the tasks of the Courts Service in its Strategic Plan 2002-2005.

There are no schemes to provide judges with initial training on International and European law. However, in-service training is provided in these areas and since the inception of the JSI numerous topics under International and European law have been discussed.

§ in area of courts’ performance in general (assessment of quality of court performance4, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?
It is not a function of the Courts Service to appraise the role of the judiciary and judges will not be liable as a result of the contents and consequences of their rulings provided that the have acted within their jurisdiction.
However, section 8 of the Act of 1998 requires the Courts Service to submit an annual report to the Minister of Justice on its activities during the previous 12 month period, as well as any additional information which the Minister may direct. The Minister must then lay a copy of that report before each House of the Oireachtas. Article 21 of the Act requires the Chief Executive, at the request in writing of an Oireachtas Committee, to attend before it to give account for the general administration of the Service, including the 3 year strategic plans laid before the Houses of the Oireachtas under section 7, as may be required by the Committee. In this section ‘‘Oireachtas Committee’’ means a Committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee on Members’ Interests of Dail Eireann or the Committee on Members’ Interests of Seanad Eireann) or a subcommittee of such a Committee. The Courts Service also sets outs its vision objectives in its periodic Strategic Plan. The current Plan 2005-2008 seeks to put emphasise on assisting and supporting the judiciary. The Plan has set performance goals and standards to provide a high quality service to all court users, efficient processing of court business and to allocate resources efficiently.

Misappropriation of funds for personal benefit is a serious matter and will lead to serious disciplinary action, including dismissal and may require prosecution of a criminal offence.

§ in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements5)?
Not Applicable

§ in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?
The disciplinary procedure against judges of the Superior Courts is set out in the Irish Constitution and therefore the Courts Service has no power to bring a disciplinary procedure against a judge. Presidents of the courts may take informal steps regarding the conduct of a judge of his or her jurisdiction but the impeachment process required under the Constitution of Ireland to remove a judge from office has never been put into train.
There are some disciplinary procedures which apply only to the judges of the District Court. Under s. 10 (4) of the Courts (Supplemental Provisions) Act 1961 where the Chief Justice forms the opinion that a District Court judge’s conduct is such that “to bring the administration of justice into disrepute” he may “interview the judge privately and inform him of such opinion”. No sanction is provided to compel the judge to mend his ways. S.36(2) of the same Act provides another control mechanism. When it appears to the President of the District Court that the conduct of a colleague is prejudicial to the prompt and efficient discharge of the business of the court, the President may investigate the matter and may report the result to the Minister for Justice. The President must consult the judge concerned. If an unfavourable report were received, the Minister might well invoke the powers conferred by the Courts of Justice (District Court) Act 1946, s.21. From this the Minister may request the Chief Justice to appoint a Supreme Court or High Court Judge to hold an inquiry into the District Court Judge’s conduct. The judge appointed may conduct the inquiry as he thinks proper and conduct it in private or public. On completion of the inquiry a report is sent to the Minister for Justice who would then consider initiating the procedure for the judge’s removal by resolutions of the Dáil and Seanad. This procedure has only been used once in 1957 and in that case the judge concerned resigned.

§ in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?
Article 35.5 of the Constitution states that a judge’s remuneration cannot be reduced during his period of office. The purpose of the bar on the reduction on judicial salaries was not to prevent deductions per se but to stop a repressive government from attempting to interfere with judicial independence by threatening financial penalties however judges are liable to pay income tax on their salaries. The provisions of Article 35 helps to ensure that judges are free from State interference in the exercise of their constitutionally mandated function of administering justice in courts established by law.
Matters relating to the number of judges, terms of appointment, remuneration, age of retirement and pensions are regulated by statute.
The salaries of judges are paid by the Department of Finance. It is paid in monthly instalments in arrears at the end of each month. Salaries are paid net of income tax, superannuation and social insurance.

§ in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify
Not Applicable

24. Does the Council have investigation powers? If yes, please specify
Not Applicable

25. How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe
Not Applicable

26. What are the types of norms that the Council can issue:
§ opinions on the functioning of the judiciary?

None. Section 9 of the Act of 1998 provides: “No function conferred on or power vested in the Service, the Board or the Chief Executive, under this Act shall be exercised so as to interfere with the conduct of that part of the business of the courts required by law to be transacted by or before one or more judges or to impugn the independence of—
     (a) a judge in the performance of his or her judicial functions, or
     (b) a person other than a judge in the performance of limited functions of a judicial nature conferred on that person by law.”

§ recommendations?
Not Applicable

§ instructions to the courts?
Not Applicable

§ decisions?
Not Applicable

27. Are the functions or responsibilities of the Council described in law or other norms? Please specify.
Not Applicable. There is no council, however, the functions of the Courts Service are prescribed by the Courts Service Act 1998 but the Act does not regulate the duties and functions of the judiciary.

28. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?

Not Applicable

29. Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?
It has been taken as almost self-evident that a judge should not involve himself in a political controversy. Where a judge has previously been involved in a personal capacity in proceedings which subsequently come before a court, it is his duty to withdraw from the case. In a number of cases before the Irish courts, convention has generally dictated that a judge will offer to withdraw from hearing the case if it may be perceived that he has an interest in the case, or where there are grounds on which a reasonable person might have a concern that he would not get an independent hearing in respect of the issues involved. However, there is not any statute law preventing a judge from hearing a case in which he may have an interest. Speaking extra-judicially in a statement published in a newspaper about the independent position of the judiciary from the executive branch of government, the late Mr Justice O’Hanlon ( said that “that there is no power whatever conferred on the Executive to “summon” a Judge of the High Court to attend a meeting with the Taoiseach, or to require him to explain his position about anything”.1

In terms of behaviour falling short of misbehaviour or incapacity, a judge is required to comply with the basic principles of natural justice and fair procedures, namely audi alteram partem and nemo judex in casua sua. These principles essentially require a judge to hear both sides fairly and impartially and that he or she not be biased or have even have the appearance of bias. The requirement to hear both side fairly would be breached if, for example the judge became actively engaged in the proceedings by excessive interruptions of the legal representatives in their submissions or examination of witnesses. The rule against bias means that a judge should not be involved in any matter in which they have an interest, whether financial or otherwise; where they may have advised one of the parties involved in the case or where they may have expressed a view on the issue in question.
The rule that a judge would recuse him from hearing a case is one of convention rather than statute. No case-law to date has dealt with the propriety of a judge, who had previously been a member of the Oireachtas hearing a case on the constitutionality of an Act passed or debated while he or she was a member of the Oireachtas. However, judges have withdrawn from cases when they have been members of an organisation which may have a perceived interest in that case.
In November, 1998, the then Chief Justice received a Report from the Working Group on a Courts Commission concerning Judicial Conduct and Ethics and he accepted its recommendations. The Committee concluded that the existing structures for dealing with concerns as to judicial misconduct are inadequate and recommended that formal structures should exist to deal with instances of judicial misbehaviour. The principle function of the Judicial Conduct and Ethics Committee would be to consider complaints of judicial conduct by members of the public. Where the Committee would be satisfied that the complaint is of a sufficiently serious nature to warrant further investigation, it should refer the matter to a Panel of Inquiry which would consist of three members: two judges and a lay person. The Committee recommended that any sanctions should be moral rather than legal in nature. The Committee also recommended that a general Code of Ethics may be drafted and published when approved. To date, these recommendations have not been implemented and apart from the impeachment process prescribed by the Irish Constitution, judges’ code of ethics continue to be prescribed by convention and disciplinary matters are dealt with relatively informally and, although this system has worked well in practice it is likely that the position will be reviewed on the establishment of a Judicial Council if and when such is established.

30. Does the Council handle external relationships of the courts:

§ has it a public relations department?
Not Applicable

§ how does it ensure the transparency of its functioning and organisation?
Not Applicable

31. Are decisions of the Council published and available to all?
Not Applicable

Part VI – Assessment of the self-governance and the independence of the judiciary
Not Applicable

32. To what extent is the work of the Council influenced by:
§ the executive power?

Not Applicable

§ the legislative power?

Not Applicable

33. Is the Council independent from other States entities, so that it is not subject to control liability in their respect?
Not Applicable

34. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?
Not Applicable

35. Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?
Not Applicable

36. Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?
Not Applicable

37. Who decides which the priorities of actions of the Council are?
Not Applicable

38. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?
Not Applicable

39. Which instruments or practices are used by the Council:

§ to guard the independence of judges?
The functions of the Courts Service do not include the administration of justice nor is the Service accountable for judicial decisions.

§ to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?

Not Applicable
§ to intervene in case of attacks against its own interests6?

Not Applicable

§ to improve the working methods of judges?
Not Applicable

Part VII – Future trends of Councils for the Judiciary

40. Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.
Not Applicable

41. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.
Yes – the establishment of a judicial council is contemplated and it is expected that such will be established in the not too distant future. It is expected that it will deal with inter alia some disciplinary matters affecting judges.

42. Are there relations between the Council for the Judiciary and judges' professional organisations or associations?
Not Applicable

43. If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:

§ concerning the national actions of your Council?
Not Applicable

§ concerning international co-operation?

44. Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.
Not Applicable

Part VIII – Countries without a Council of the Judiciary

45. Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?
The judiciary in Ireland are governed by the “separation of powers doctrine” as prescribed by Article 6 of the Constitution of Ireland. This doctrine is one which is of considerable constitutional importance and the judicial power of applying the law alongside the principle of judicial independence is provided for in Article 34.1of the Constitution. (see answer to Q. 1)

46. How and by who are judges appointed and promoted?
Under Article 35.1 of the Constitution, judges are appointed by the President on the advice of the Government from practitioners with the requisite years of practice In Ireland the President exercises a largely ceremonial role, and in practice the appointment of a judge is the decision and act of the Government. The Courts and Court Officers Act 1995 established a Judicial Appointments Advisory Board for the purposes of ‘identifying persons and informing the Government of the suitability of those persons for appointment to judicial office.’ This applies to the appointment of all ordinary judges but excludes the Chief Justice and Presidents of the Courts.

The board consists of the Chief Justice, the Presidents of the High, District and Circuit Courts, the Attorney General, a practising barrister and solicitor and not more than 3 people nominated by the Minister for Justice. Any person who wishes to be considered for judicial appointment may inform the board of this in writing. Once this is done the Board will submit recommendations to the Minister for Justice. The Board can recommend any person who complies with the relevant qualifications which are set out in the Courts (Supplemental Provisions) Act 1996 and the board must be of the opinion that the person:

    · has displayed in his or her practice as a barrister or solicitor, as the case may be, a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned.
    · is suitable on grounds of character and temperament
    · is otherwise suitable and,
    · undertakes in writing to the Board his or her agreement, if appointed to judicial office, to take such course of training or education, or both, as may be required by the Chief Justice or the President of the court to which the person is appointed.

There is no bar in Irish law to prevent a former member of the Dáil or Seanad from becoming a member of the judiciary. Under Article 35.3 of the Irish Constitution such a person if appointed as a judge is taken to have automatically vacated his parliamentary seat.. In keeping with their role as administrators of justice, the Constitution provides that judges may not work in another job which offers remuneration while they remain in office. On appointment, a judge makes a constitutional declaration under Article 35.5.1 to “duly and faithfully and to the best of [his] knowledge and power execute the office without fear or favour, affection or ill-will towards any man, and that [he] will uphold the Constitution and the laws.”

47. Does any authority (body) independent7 of the government and the administration take part in the appointment and promotion process:
See answer to Q. 46 above

§ If yes, how is this authority composed? Is a certain share of judges fixed?
The Courts Service in Ireland consists of an administration (the Board) a chairperson (the Chief Executive Officer) and judicial staff. The competences of the Courts Service remains with the board. The Chief Executive acts as implementing organ of the board, of which he is officially a member, but he also has some independent competences in the area of reporting, budgetary justification and providing information (especially in the area of the external justification and the external information supply). The Chief Executive can be called before a Parliamentary committee for justification, in order to give a decisive answer about the efficiency figures of the judicial organisation or the policy of the Courts Service itself. Furthermore, the Chief Executive is responsible for the daily management of the Courts Service and is, as such, responsible for the financial management of the board and the personnel.

§ How are the members selected?

Not Applicable

§ what are the detailed competences of the authority with respect to the appointment and promotion of judges?

Not Applicable

48. How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

The cost of the Courts cannot be assessed from a single document. It is rather to be gleaned from a variety of sources. The salaries of the permanent judiciary and pensions of retired judges are paid from Central Fund. The salaries of all Courts staff and the general operating costs of the Courts are paid out of the Courts Vote. The costs of the Department of Justice headquarters staff dealing with central management of Court Services, of criminal legal aid and of payments to the Incorporated Council of Law Reporting are borne on the Vote of the Office of the Minister for Justice. The Courts Service is accountable to the Minister for Justice, Equality and Law Reform and, through the Minister, to the Government and to the Dáil Public Accounts Committee for money spent and value-for-money provisions.

49. Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?
In its Report, the Committee on Judicial Conduct and Ethics recommended that a body be established in Ireland to be called ‘The Judicial Council’. All judges would be members of the Council and newly appointed judges would automatically become members. The Judicial Council would have jurisdiction in the areas of judicial conduct and ethics; judicial studies and publications and judicial remuneration and conditions of work generally. It was envisaged that three committees of the board would be established: the Judicial Council and Ethics Committee, the Judicial Studies and Publications Committee and the General Committee. Each Committee would consist of the President of each court, four ordinary judges for a term of four years with outgoing members to be entitled to be re-elected and a judge co-opted by each committee for a term of four years. The co-opted judge would not be entitled to be re-elected but would be succeeded by a judge of another jurisdiction. It was recommended that the Board should be required to meet at least once a month an publish an annual report on the activities of the Board and each of its three sections The report should contain details of all complaints received by a Complaints Officer by members of the public made concerning the conduct of any member of the judiciary and set out how such complaints were dealt with. This should include details of any private reprimand other than the identity of the judge concerned. The Committee also recommended that the Council be established on a statutory basis with financial resources provided to discharge its functions. At present the establishment of a council for the judiciary under very active consideration and is contemplated in the relatively near future. The precise composition and functions of the council have not been decided. However it is contemplated that it would have some disciplinary functions in relation to judges.

1 Irish Times 9 April 1992

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