A JUDGES’ REFEREE

There is no need for the Chief Justice to look to the State of New York for a disciplinary code for our judges.

He has one already; it’s just not activated. The indefinite intention is that it will be deployed on the creation of a Judicial Council. (What, if not that, is the top table in the Kings Inns?)

In its editorial of 8th December 2007 the Irish Times is confident that legislation will be necessary to underpin the code.

Why the certainty? After all, the full edifice of Judicial Review in Ireland is resting on the provisions of Order 84 of the Rules of the Superior Courts, which Rules are in the form of a Statutory Instrument and are devised by the rules committee of the Superior Courts, an obscure bunch of unelected people. (They wouldn’t think they are obscure, but most people would.) The implications of Order 84 far outweigh the effect of a disciplinary code for judges.

The constitutionality of Order 84 has been questioned in academic writing for the reason, that is, that the civil, property and constitutional rights of citizens cannot be lawfully adjudicated on within the narrow parameters and inadequate legal basis of Order 84 and that, at the very least, primary legislation is required to underpin the legality of Irish Judicial Review. If this is correct, there being no such legislation, Irish Judicial Review is built on foundations of sand. This legitimation crisis is all the more acute in that the Irish Commercial Court (unlike the London Commercial Court) will admit Judicial Review into its list. The Rules of the Commercial Court are of no better provenance than Order 84.

All power is but an unabated nuisance, a barbarous assumption, an aggravated injustice, that is not directed to the common good: all grandour that has not something corresponding to it in personal merit and heroic acts, is a deliberate burlesque, and an insult on common sense and human nature. That which is true, the understanding ratifies: that which is good, the heart owns: all other claims are spurious, vitiated, mischievious, false – fit only for those who are sunk below contempt, or raised above opinion.

William Hazlitt; the Liberal, 1823