Independence, accountability and the irish judiciary

• Author: Tanya Ward
• Position: 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)
• Pages: 1-66

2008] Independence, Accountability and the Irish Judiciary 1

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INDEPENDENCE, ACCOUNTABILITY

AND THE IRISH JUDICIARY

TANYA WARD*

INTRODUCTION

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:

http://www.iccl.ie/DB_Data/publications/ICCL-Justice-Matters-2007-part-

1.pdf and http://www.iccl.ie/DB_Data/publications/ICCL-Justice-Matters-

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

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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”.

Article 6 of the European Convention on Human Rights

(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

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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

principles.

2008] Independence, Accountability and the Irish Judiciary 3

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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

European Convention on Human Rights (ECHR) Act, 2003, 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

judges.

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

rights.

15 Refer to the Government’s Legislative Programme for 2008 accessible on

the Department of the Taoiseach’s website at: www.taoiseach.gov.ie.