Judicial Impartiality in the Judicial Council Act 2019: Challenges and Opportunities

AuthorBrian Barry
PositionLecturer in Law, Technological University Dublin
Pages38-54
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[2022] Irish Judicial Studies Journal Vol 6(1)
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JUDICIAL IMPARTIALITY IN THE JUDICIAL
COUNCIL ACT 2019: CHALLENGES AND
OPPORTUNITIES
Abstract: The Judicial Council is tasked with promoting and maintaining high standards of judicial conduct.
The Judicial Council Act 2019 identifies judicial impartiality as a principle of judicial conduct that Irish
judges are required to uphold and exemplify. Despite its ubiquity, judicial impartiality is perhaps under-
explained and under-examined. This article considers the nature and scope of judicial impartiality in
contemporary Irish judging. It argues that the Judicial Council ought to take a proactive, multi-faceted
approach to promote and maintain judicial impartiality, to address contemporary challenges that the Irish
judiciary face including increasingly sophisticated empirical research into judicial performance, the proliferation
of judicial analytics tools, and more probative and critical media and social media coverage of the Irish
judiciary.
Author: Dr Brian M. Barry, Lecturer in Law, Technological University Dublin
Introduction
Judicial impartiality is a core value that judicial systems the world over espouse, and that
judges are expected to adhere to. Despite its ubiquity as a principle of judicial conduct,
judicial impartiality is under-explained and under-examined. More often than not, it is only
meaningfully considered when an allegation of judicial bias or judicial misconduct is made
against a judge. However, a more substantive reflection on judicial impartiality is arguably
necessary, considering new challenges that judiciaries, including the Irish judiciary, now face.
These challenges include:
- the growth of empirical academic research that reveals a multitude of extraneous,
non-legal factors that can affect judges’ behaviour, performance and decision-
making;
- the proliferation of sophisticated judicial analytics tools that lawyers rely on in their
practice to measure and predict judicial behaviour and outcomes; and,
- more probative and critical media coverage and social media commentary on judges’
performance on and off the bench.
These challenges test judiciaries’ and individual judges’ efforts to perform and convey judicial
impartiality.
The formative years of the Judicial Council present an important opportunity for the Irish
judiciary to meaningfully engage in what it means to be an ‘impartial’ judge. In an age where
judging is becoming more scrutinised and more measurable than ever before, the Council
ought to take a more proactive and multi-faceted approach towards promoting and
maintaining judicial impartiality, to directly address these, and other challenges that the Irish
judiciary currently face or will face in the near future.
The Judicial Council Act 2019 (the ‘2019 Act’) mentions judicial impartiality twice. It
identifies judicial impartiality as a stated principle of judicial conduct, alongside
independence, integrity, propriety (including the appearance of propriety), competence and
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diligence and to ensure equality of treatment to all persons before the courts.
1
S7(1)(b) of the
2019 Act, which details the functions of the Judicial Council provides:
The functions of the Council shall be to promote and maintain
(b) high standards of conduct among judges, having regard 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.
S43(2) sets out the functions of the Judicial Conduct Committee, a committee comprising
13 members to deal with matters of judicial conduct, as follows:
The function of the Judicial Conduct Committee shall be to promote and
maintain high standards of conduct among judges, having regard 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.
Three key points arise from these sections: first, judges must uphold and exemplify judicial
impartiality (among other principles of judicial conduct), second, one of the Council’s core
functions is to promote and maintain high standards of judicial conduct, including the principle
of judicial impartiality and, third, a committee within the Council, the Judicial Conduct
Committee, is specifically designated to this function. The 2019 Act does not define judicial
impartiality, nor does it set out specifically how the Council or the Judicial Conduct
Committee ought to promote and maintain high standards of judicial conduct, including
judicial impartiality.
To briefly outline the work of the Judicial Conduct Committee to date, the Committee was
established on 30 June 2020. Three subcommittees were subsequently formed, each focused
on dealing with a distinct element of the judicial conduct regime: one dealing with drafting
guidelines on judicial conduct and ethics, one tasked with preparing procedures for
resolution of complaints by informal means, and one considering and drafting complaints
procedures.
2
The Committee submitted draft guidelines to the Council’s Board on 28 June
2021, and the Council duly adopted those guidelines on 4 February 2022. The Bangalore
Principles, which are discussed further below, formed the basis of the draft guidelines,
including the guidelines’ treatment of the principle of judicial impartiality.
3
The principle that judges must be impartial is almost ubiquitous in judicial systems around
the globe, yet judicial impartiality is an amorphous concept that does not enjoy a precise
1
s 7(1)(b) of the 2019 Act.
2
Judicial Council, ‘Annual Report’ (Judicial Council 2020) 26.
3
Impartiality is set out as ‘Principle 2’ in the Judicial Council’s Guidelines for the Judiciary on Conduct and
Ethics. The text adopted by the Council is almost identical to the equivalent text describing impartiality in the
Bangalore Principles, except for the addition of Principle 2.6 in the Council’s guidelines which provides
guidance to judges on the the issue of recusal from a case. See further, Judicial Council, ‘Judicial Conduct and
Ethics Guidelines’ (4 February 2022) -council-conduct-and-ethics-
guidelines/> accessed 7 March 2022.

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