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Formal training is needed to ensure judicial excellence

The establishment of the Judicial Council is a significant development in the ongoing process of reform and modernisation of the Irish court system, writes Dr Rónán Kennedy of the NUI Galway School of Law. 

Coming two decades after the establishment of the Courts Service, which gave proper status to the administration of justice, the creation of a body dedicated to supporting and assisting the work of judges brings into sharp focus some key issues and controversies in the legal system.

Ambitious

The Judicial Council Act also sets out ambitious and demanding timelines for some areas of effort, while leaving others relatively open and undefined.

Most importantly, it offers a crucial and unrepeatable opportunity to develop modern, innovative, and fit-for-purpose mechanisms for key functions such as judicial conduct and ethics, and judicial education and training.

The functions of the Judicial Council include promoting and maintaining:

• Excellence in the exercise by judges of their judicial functions,
• High standards of conduct among judges,
• The effective and efficient use of resources,
• Continuing education of judges,
• Respect for the independence of the judiciary, and
• Public confidence in the judiciary and the administration of justice.

Developing mechanisms, processes, and institutional arrangements to achieve these challenging but very desirable goals will provide the Irish judiciary, and the Irish people, with a system that protects judicial independence and vindicates human rights.

Currently in Ireland, there is no well-developed system of judicial education and training. From an international perspective, this is very unusual.

In a survey from 2016, it was noted that in all of the ten European jurisdictions surveyed, there existed mandatory initial or induction training for all new judicial appointees. This included England and Wales.

However, no such comprehensive system exists in Ireland. A Council of Europe Report on efficiency of justice in European Judicial Systems from 2018 notes that Ireland is one of only three states that do not provide continuous training.

Training for judges is mandatory since 1996, under section 16 of the Court and Court Officers Act 1995, but what has been provided to date is relatively limited – conferences and seminars, bench books, limited induction, shadowing, and funding for judges to attend courses abroad.

Concern

This has been a matter of concern for judges for many years and, while practices have developed in the District Court in order to help new appointees, those appointed to the Superior Courts have been expected to learn as they go along.

The establishment of a formalised training and education system is thus a necessary development, and it will be vital to learn from experiences in other jurisdictions in order to ensure excellence in the processes to be established.

Ireland is also in a relatively unique position in not having any formal system for complaints and investigation of judicial misconduct.

The recent controversy related to the ‘Golfgate’ event also demonstrated the importance and need for established and formalised processes for the investigation of potential judicial misconduct, and for the availability of formal sanctions and a set process for initiating the judicial-removal process, with in-built protections for judicial independence, and for transparency.

With funding from the Irish Research Council, and in collaboration with the Trust for Civil Liberties, Human Rights and Fundamental Freedoms, I will be convening two seminars, together with Dr Laura Cahillane of the University of Limerick.

The first, to take place in October 2021, will explore judicial conduct arrangements in Ireland.

Misconduct

This seminar will examine the system that was established by the 2019 act to deal with complaints of judicial misconduct.

In particular, it will concentrate on the forthcoming guidelines on conduct and ethics and on informal resolution of complaints, the definition of misconduct, the form of reprimands and admonishments, and the interaction between the council and the Oireachtas on removal motions.

It will also compare this to best practice in other jurisdictions to determine whether the reforms introduced by the Oireachtas adequately provide for both accountability and transparency, while also protecting the paramount principle of judicial independence.

Judicial training

The second, in November 2021, will rigorously benchmark judicial education and training in Ireland against best practice in other jurisdictions, in order to move beyond the challenges of the past and the present.

It will focus on the place of skills in judicial education, the role of technology and blended learning, judicial independence, judicial well-being or resilience, and how judicial education should respond to changes in Irish society. 

It will look at how this can integrate with work underway in Europe and internationally, where a great deal is being done to modernise judicial education and training.

Following peer review, papers may be published in a special issue of the Irish Judicial Studies Journal. Calls for papers will be issued shortly – please contact ronan.m.kennedy@nuigalway.ie to be included in the circulation list.

• Dr Rónán Kennedy will partner with the Trust for Civil Liberties, Human Rights and Fundamental Freedoms, and with Dr Laura Cahillane of the University of Limerick, to examine whether the establishment of the Judicial Council will bring the Irish approaches to judicial conduct and ethics and judicial education and training up to international best practice.
• This is one of ten projects from NUI Galway which have received funding of over €113,000 from the Irish Research Council to connect researchers with community and voluntary organisations.