Judicial Conduct in Ireland: a Framework Fit for Purpose?' the Bangalore Principles and the Judicial Council Act 2019

• Author: Raymond Byrne
• Position: Adjunct Full Professor, Sutherland School of Law, University College Dublin
• Pages: 1-31

IRISH JUDICIAL STUDIES JOURNAL

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

JUDICIAL CONDUCT IN IRELAND: A FRAMEWORK

FIT FOR PURPOSE?’ THE BANGALORE PRINCIPLES

AND THE JUDICIAL COUNCIL ACT 2019

Abstract: This paper examines the international context for the provisions on judicial conduct in the Judicial

Council Act 2019. In doing so, reference is made to the Bangalore Principles of Judicial Conduct. The paper

provides the background, rationale, and main aims of the Bangalore Principles. It discusses the six Bangalore

Principles in the Judicial Council Act 2019 and highlights how the six Bangalore Principles reflect the

existing core elements of the judicial function that can be found in the Constitution. Finally, the paper

illustrates that, while the Constitution contains reference to the same six principles on judicial conduct, the

Bangalore Principles go a step further in envisaging a regulatory framework on judicial conduct.

Author: Raymond Byrne, Adjunct Full Professor, Sutherland School of Law, University College Dublin.

Former full-time Commissioner, Law Reform Commission (April 2016-July 2021).

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Author’s Note: this paper was originally presented at the Judicial Conduct Online Seminar on 22 October

2021. On 4 February 2022, in accordance with the Judicial Council Act 2019, the Judicial Council adopted

Guidelines for the Judiciary on Conduct and Ethics, which are largely based on the text of the Bangalore

Principles. This paper has not been revised to take account of the Guidelines adopted on 4 February 2022.

Introduction: 2002 Bangalore Principles and 2007 Commentary

This paper looks primarily at the international context for the provisions on judicial conduct

in the Judicial Council Act 2019 (2019 Act). The six general principles on judicial conduct in

the 2019 Act can be traced to the same six principles in the 2002 Bangalore Principles of

Judicial Conduct. This paper focuses on the background to, and rationale for, the Bangalore

Principles, in particular that they form the basis for a regulatory system to support excellence

in judicial conduct, and are therefore a fundamental pillar to support judicial independence,

and confidence in the judiciary.

The Bangalore Principles emerged from a suggestion by two leading members of

Transparency International, Prof Nihal Jayawickrama and Dr Jeremy Pope. As a result,

following discussions between Transparency International and eight Chief Justices from four

African and four Asian countries, in 2000 an informal group of Chief Justices and senior

judges, the Judicial Group on Strengthening Judicial Integrity, usually known as the Judicial

Integrity Group, was formed.

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The Chief Justices met in Vienna in 2000 under the auspices

of the UN Global Programme Against Corruption and, after that, in a series of meetings

held between 2000 and 2002. The rapporteur throughout the development of the Bangalore

Principles between 2000 and 2002 was Kirby J, former judge of the High Court of Australia

and former inaugural Chair of the Australian Law Reform Commission.

In 2003, in resolution 2003/43, the UN Commission on Human Rights adopted the

Bangalore Principles; and, in 2006, in resolution ECOSOC 2006/23, the UN Economic and

Social Council (‘ECOSOC’) also adopted them. This 2006 ECOSOC resolution, with the

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This paper, originally presented at the Judicial Conduct Online Seminar on 22 October 2021, is written in a

personal capacity.

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The website of the Judicial Integrity Group, https://www.judicialintegritygroup.org/, i ncludes a history of

the development of the Bangalore Principles as well as contemporary developments in this area.

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

Bangalore Principles annexed, is in Appendix A of this paper. Significantly, the ECOSOC

resolution also invited the UN Office on Drugs and Crime to support the Judicial Integrity

Group in preparing a detailed Commentary, and this was completed in 2007.

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The 2007

Commentary on the Bangalore Principles is similar to Expert Reports and travaux préparatoires

published with many internationally agreed documents, which are often cited and relied on

by courts.

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We might therefore expect that the 2007 Commentary will influence the content

of judicial conduct guidelines to be prepared under the 2019 Act.

The six Bangalore Principles in the 2019 Act; and pre-2019 knowledge of

their content

It is clear that the general principles on judicial conduct in the 2019 Act can be traced to the

Bangalore Principles. The six Bangalore Principles (see Appendix A) are:

1. independence,

2. impartiality,

3. integrity,

4. propriety,

5. equality and

6. competence and diligence.

In the 2019 Act, judicial misconduct is defined as involving a ‘departure from acknowledged

principles of judicial conduct’, and sections 7(1)(b) and 43(2) of the 2019 Act both refer in

identical terms to: ‘the principles of judicial conduct requiring judges to uphold and exemplify

judicial independence, impartiality, integrity, propriety (including the appearance of

propriety), competence and diligence and to ensure equality of treatment to all persons

before the courts.’ The 2019 Act reversed the order of the fifth and sixth Bangalore Principle,

but otherwise the list is identical.

There is no explicit reference to the Bangalore Principles in the 2019 Act, although there

were occasional references to them during the Oireachtas debates.

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There is, however,

extensive reference to the Bangalore Principles in the Department of Justice’s 2017

Regulatory Impact Analysis (‘RIA’) for the Judicial Council Bill 2017.

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The RIA contains an

informative account of the domestic context for the enactment of the 2019 Act, as well as

the international context, including not only the Bangalore Principles but also the very poor

rating that Ireland received from the Council of Europe’s Group of States against

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Judicial Integrity Group, Commentary on the Bangalore Principles of Judicial Conduct (United Nations Office on

Drugs and Crime, 2007)

<https://www.unodc.org/documents/nigeria/publications/Otherpublications/Commentry_on_the_Bangal

ore_principles_of_Judicial_Conduct.pdf> accessed 11 February 2022.

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See, for example, Law Reform Commission, Discussion Paper on Domestic Implementation of Internat ional

Obligations (LRC 124-2020), at paras 3.114-3.121.

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See the Second Stage Seanad Éireann speech of the then Minister for Justice and Equality on the Judi cial

Council Bill 2017, and the Minister’s reply to the Second Stage debate (Seanad Deb 22 November 2017, vol

254) <https://www.oireachtas.ie/en/debates/debate/seanad/2017-11-22/12/> acce ssed 11 February 2022;

and the Second Stage Dáil Éireann speech of the then Minister for Justice and Equa lity on the Judicial

Council Bill 2017, and the reference to the Bangalore Principles during the Second Stage debate by Deputy

Broughan TD (Dáil Deb 4 July 2018, vol 985) <https://www.oireachtas.ie/en/debates/debate/dail/2019-07-

04/19/> accessed 11 February 2022.

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Department of Justice, Regulatory Impact Analysis for the Judicial Council Bill 2017 (May 2017)

<http://www.justice.ie/en/JELR/Judicial_Council_Bill_2017_RIA.pdf/Files/Judicial_Council_Bill_2017_R

IA.pdf> accessed 11 February 2022.