Judges in Regulatory Space: Towards Responsive Regulation of Judicial Conduct

• Author: Colin Scott
• Position: Professor of EU Regulation and Governance at University College Dublin
• Pages: 103-117

IRISH JUDICIAL STUDIES JOURNAL

103

[2022] Irish Judicial Studies Journal Vol 6(1)

103

JUDGES IN REGULATORY SPACE: TOWARDS

RESPONSIVE REGULATION OF JUDICIAL

CONDUCT

Abstract: In formal terms, the regulation of judicial conduct in Ireland has been limited to a single formal

procedure for removal of judges set down in the Constitution. However, the absence of formal rules and

procedures has not left the regulatory space wholly empty. This article investigates the nature of the regulatory

space with respect to judicial conduct to ask how the introduction of new actors, rules and procedures, under

the terms of the Judicial Council Act 2019, will affect the regulatory space and what changes might be expected

to support a more responsive approach to the regulation of judicial conduct.

Author: Colin Scott is Professor of EU Regulation and Governance at University College Dublin, where he

currently serves as Vice President for Equality, Diversity and Inclusion, Dean of Social Sciences and

Principal in UCD College of Social Sciences and Law. He served as Dean of Law at UCD from 2011-

2014.

Introduction

Judicial independence is a key principle of democratic governance in Ireland and elsewhere.

However, this does not mean that judges are unregulated with respect to conduct. The

conduct of judges is a significant contributor to the standing and legitimacy of the judiciary.

In formal terms the regulation of judicial conduct in Ireland has been limited to a single

formal procedure for removal of judges set down in the Constitution. Thus, as previously

observed, judges in Ireland have had a very high degree of independence with respect to their

conduct, even from each other.

1

However, this does not mean there has been no regulation. A

variety of actors have had, sometimes very limited, informal and/or non-mandated, capacity

to suggest norms, to feedback instances of allegedly inappropriate conduct and to exert

pressures which seek to change behaviours. In other words, the absence of formal rules and

procedures has not left the regulatory space wholly empty.

This article investigates the structure regulation with respect to judicial conduct in Ireland to

ask how the introduction of new actors, rules and procedures, under the terms of the Judicial

Council Act 2019 (the 2019 Act), will affect the regulatory space and what changes might be

expected to develop a more responsive approach to the regulation of judicial conduct. The

focus is not so much in determining what kinds of behaviours might attract censure. Rather,

I examine the interplay of new actors and procedures with those already within the regulatory

space, and how new practices for setting norms, monitoring conduct and application of

sanctions might develop such as to support compliance with the norms. A key aspect of

enhancing regulation of judicial conduct is to balance this with the principle of judicial

independence, by enhancing judicial self-governance within the reformed regulatory regime.

2

1

Colin Scott, 'Regulating Judicial Conduct Effectively' in Eoin Carolan (ed), The Judic ial Power in Ireland

(Institute of Public Administration 2018).

2

David  Self-Governance in

Europe' (2019) 19 German Law Journal 1567; Katarína  and others, 'Judic ial Self-Governance Index:

Towards Better Understanding of the Role of Judges in Governing the Judiciary' (2022) Regulation &

Governance.