Independence, accountability and the irish judiciary

AuthorTanya Ward
PositionDeputy Director of the Irish Council for Civil Liberties (ICCL) and Lecturer in Human Rights for the M.Phil. in Ethnic and Racial Studies programme (Trinity College Dublin) and the Masters in Equality Studies (University College Dublin)
2008] Independence, Accountability and the Irish Judiciary 1
Human rights cannot be protected without an independent
judiciary functioning under the rule of law.1 Broadly speaking
judicial independence requires that judges be protected from
governmental and other pressures so they can try cases fairly and
impartially. An independent judiciary charged with upholding
rights through a system of judicial review is crucial for the proper
functioning of our democracy. However, judicial independence
does not just happen and requires institutional and individual
protections in the form of constitutional mandates, legislative
provisions and administrative structures.2
The purpose of this article is to examine international
human rights standards on judicial independence and assess the
adequacy of Irish law and policy in light of this international
framework. Access to a competent, independent and impartial
court or tribunal is a fundamental human right and is found in
several legally enforceable human rights treaties which Ireland is
a party to. For example, Article 14 of the International Covenant
* Deputy Director of the Irish Council for Civil Liberties (ICCL) and Lecturer
in Human Rights for the M.Phil. in Ethnic and Racial Studies programme
(Trinity College Dublin) and the Masters in Equality Studies (University
College Dublin). This article draws heavily upon research originally conducted
for the ICCL and published by the author in the form of Ward, Justice Matters
(Dublin: ICCL, 2007). It is accessible on the ICCL’s website at:
1.pdf and
2007-part-2.pdf. The main phase of research for this study took place between
2006 and 2007 and involved 17 face-to-face interviews with Irish judges.
Many thanks are due to Deirdre Duffy and Mark Kelly for helpful comments
on an earlier version of this paper.
1 Apple, “The Role of Judicial Independence and Judicial Leadership in the
Protection of Human Rights” in Cotran and Sherif, (eds.) The Role of the
Judiciary in the Protection of Human Rights (London: School of Oriental and
African Studies, CIMEL Book Series No. 5, 1998), p. 198.
2 Apple, op.cit., p. 201.
Judicial Studies Institute Journal [2008: 1
on Civil and Political Rights (ICCPR) provides that: “everyone
shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law”.
(ECHR) also guarantees a right to a fair trial before an
independent and impartial court. Judicial independence has been
interpreted by the European Court of Human Rights to mean that
courts must be independent of the executive and the parties to a
case.3 The model of judicial independence that is applied is
institutional.4 When determining whether a court or tribunal
meets the requirements of independence, the European Court of
Human Rights examines the overall manner of judicial
appointments, the duration of terms of office,5 the existence of
guarantees against outside pressures6 and the overall “appearance
of independence”.7
Standards on judicial independence are also found in soft
law, for example the United Nations (UN) Basic Principles on the
Independence of the Judiciary8 and the Bangalore Principles on
Judicial Conduct,9 which have been given little attention in
Ireland. Adopted in 1985, the UN Basic Principles on the
3 Ringeissen v. Austria (1979-80) 1 E.H.R.R. 455 at para. 95.
4 Starmer, European Human Rights Law: The Human Rights Act 1998 and the
European Convention on Human Rights (London: Legal Action Group, 2001),
p. 261.
5 Le Compte, Van Leuven and De Meyere v. Belgium (1982) 4 E.H.R.R. 1.
6 Piersack v. Belgium (1983) 5 E.H.R.R. 169 at para. 27.
7 Campbell and Fell v. United Kingdom (1985) 7 E.H.R.R. at para. 78.
8 Office of the High Commissioner for Human Rights, “Basic Principles on the
Independence of the Judiciary”, adopted by the Seventh United Nations
Congress on the Prevention of Crime and the Treatment of Offenders held at
Milan from 26 August to 6 September 1985 and endorsed by the General
Assembly in Resolution 40/32 of 29 November 1985 and Resolution 40/146 of
13 December 1985.
9 The Bangalore Principles of Judicial Conduct (E/CN.4/2003/65) are a product
of several years work by the Judicial Group for the Strengthening of Judicial
Integrity (JGSJI) comprising ten Chief Justices from Asia and Africa.
The Bangalore Principles were endorsed by the UN Commission on Human
Rights in Resolution 2003/43 of 23 April 2003. The UN Office on Drugs and
Crime has since issued a Commentary on the Bangalore Principles of Judicial
Conduct (Vienna: UNODC, September 2007) to give depth and strength to the
2008] Independence, Accountability and the Irish Judiciary 3
Independence of the Judiciary set out standards for Member
States to incorporate into their national legislation and practices.10
Outlining a framework for regulating judicial conduct, the
UN Human Rights Commission endorsed the Bangalore
Principles of Judicial Conduct in 2003.11 The Bangalore
Principles were initially approved by a roundtable of Chief
Justices held in The Hague in November 2002, and complement
the UN Basic Principles which do not deal with judicial conduct
and complaints in any great detail. In addition, the Council of
Europe’s (COE) Committee of Ministers adopted a
recommendation on judicial independence12 and while it is not
legally binding, it is worth mentioning that the European Court of
Human Rights has used it as a guide for interpreting Article 6 of
the ECHR.13
There are two important developments which make the
subject of this paper particularly relevant. First, pursuant to the
ECHR is now part of domestic Irish law.14 Second, the Judicial
Council Bill is expected to be published in 2008.15 The purpose
of this Bill is to establish a Judicial Council to be representative
of the judiciary and to provide a system of effective remedies for
10 The UN Economic and Social Council adopted Procedures for the Effective
Implementation of the Basic Principles on the Independence of the Judiciary,
in Resolution 1989/60, at its 15th plenary meeting of 24 May 1989.
This document requires UN Member States to respect and integrate the Basic
Principles into their justice systems, as well as publicising them to all acting
11 UN Commission on Human Rights, Resolution 2003/43.
12 COE Committee of Ministers, Recommendation No. R (94) 12, adopted on
13 October 1994 at the 518th meeting of the Ministers’ Deputies.
13 In several dissenting judgments, reference is made to the Recommendation,
for example, Judge Martens in Saunders v. United Kingdom and Judge Ress in
Sigurdsson v. Iceland, cited in Kuijer, The Blindfold of Lady Justice, Judicial
Independence and Impartiality in Light of the Requirements of Article 6
(The Hague: Kluwer Law Publications, 2004).
14 Adopting an interpretive model, s. 2(1) of the Act obliges courts to interpret
statutory provisions or rules of law in a compatible manner with Convention
15 Refer to the Government’s Legislative Programme for 2008 accessible on
the Department of the Taoiseach’s website at:

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