Should judges be required to publicly declare their interests?

Nuala Haughey: Should judges should be obliged to make annual declarations of interests – such as property, gifts, land, and shares – in much the same way as TDs and Senators already do?

Minister Shane Ross thinks so. Explaining the rationale for this proposal, the Minister cited a recent case of a High Court judge who stepped aside from hearing a long-running dispute involving the cement company CRH, after concerns were raised about his ownership of CRH shares.

“How many cases are there out there where judges have had interests, haven’t actually thought of it as having a conflict of interest, where it’s there and it’s never emerged during the trial and they have given judgments on it,” he asked during a recent interview with RTÉ Radio’s Morning Ireland programme, on foot of a Sunday Times report.

When it comes to regulating conflicts of interest, a one-size-fits all approach does not work - it important to tailor rules for different categories of official and to the specific legal or constitutional environment in which they carry out their public duties.

Minister Ross, by raising the issue beyond the confines of the cabinet table, may have usefully initiated a debate on the case for and against requiring Irish judges to make annual public declarations of interest.

Interest declarations as a tool to tackle conflicts of interest

It is well recognised internationally that declarations of interests are a vital component of any framework for tackling conflicts of interest – which, as the Mahon Tribunal noted, are a root cause of corruption.

A World Bank survey in 2013 showed that, of 90 countries examined (excluding Ireland), 80 per cent had asset declarations in place for some or all public officials. In the majority of cases, these included members of the judiciary.

However, a peculiar characteristic of a number of mainly western European countries is that judges, even at Supreme Court level, are exempt from any duty to declare private interests.

According to a 2007 study which covered 21 EU countries, 11 states (including Ireland) did not have a register of interests for judges of the supreme court (Demmke 2007). (The absence of a public register does not always mean that there is no duty to submit a declaration in private to designated authorities.)

The fact that declaration systems for public officials do not always cover judges could be due to the special respect for judicial independence and the separation of powers, what appears to be a priori trust in the integrity of judges, as well as the fact that judges of European countries, unlike politicians, are not elected by popular vote.

The table below, from an OECD study in 2011 shows the varieties of approaches within countries, with some establishing common asset declaration systems covering officials from all three branches of authority – legislative, executive and judicial. (Click on the table for a pop-out view.)

Source: OECD (2011)

Judges and interests in Ireland and the UK

The current situation in Ireland is that any judge who has an interest in a dispute which is the subject of proceedings listed before him or her is obliged to recuse himself or herself from hearing the proceedings.

The UK approach is much the same, with the rationale in part being that it would not be feasible for judges to produce a comprehensive register of interests, as it would be impossible for them to identify all the interests which might conceivably arise in any future case that came before them.

“To draw up a register of interests, which people believed to be complete, could potentially be misleading,” according to the UK Supreme Court’s website.

The difference between assets and other interests

However, the problem of the comprehensiveness of an annual register of private interests is one that besets declaratory regimes for all public officials, not only judges.

This is why there are two separate obligations under the current rules for TDs, Senators and councillors, which cover both pecuniary interests such as assets/income as well as other interests.

Assets and income refer to concrete financial ownership or benefits. These are the sorts of interests that TDs and Senators must report in their annual registers of declarable interests which are published on the Oireachtas website. 

But ‘interests’ can also encompass a wider range of benefits that may at the time of an annual declaration not have provided the public official with any concrete benefit.

Examples could include membership of a business association, but also any position that results in the official being subject to certain private incentives – for example a job held by a relative.

To provide for controlling interests that are not already declared, TDs and Senators currently must make what are called ad hoc declarations on a case-by-case basis at meetings of the Houses of the Oireachtas, local authorities and certain boards and committees.

These ad hoc disclosure rules are an acknowledgement that it is indeed impossible to prevent public officials and their family members from holding any personal interest that might at some unforeseen future time give rise to a conflict.

The key issue here is that conflicts of interest are natural and an inevitable consequence of the fact that people occupy more than one social role - the question is whether a particular interest can interfere with, or appear to interfere with, the discharge of official duties.

Will the judiciary resist publishing declarations of interests?

In his RTÉ radio interview, Minister Ross said he anticipated that his proposals would be resisted by the judiciary. 

However, the Council of Europe’s Group of States against Corruption, GRECO, recently reported that it had discussed the advisability of introducing mandatory asset declarations with representatives of the judiciary, and “received no opposition in principle to such a measure” (GRECO 2014).

The GRECO evaluation team (GET) team noted that the Irish judiciary is “strictly regulated in respect of accessory activities and the like under the Constitution and is also one of the most trusted state institutions in Ireland."

It concluded that it “sees no immediate need to introduce mandatory asset declarations. Having said that, such a measure could well be considered when constitutional safeguards of the judiciary and employment conditions are being dealt with.”

Nuala Haughey works for TASC

References:

Demmke, C., M. Bovens, T. Henökl, K. van Lierop, T. Moilanen, G. Pikker and A. Salminen (2007), “Regulating Conflicts of Interest for Holders of Public Office in the European Union: A Comparative Study of the Rules and Standards of Professional Ethics for the Holders of Public Office in the EU-27 and EU Institutions”, European Institute of Public Administration in co-operation with the Utrecht School of Governance, the University of Helsinki and the University of Vaasa.

GRECO, Group of States Against Corruption (2014) "Corruption prevention in respect of members of parliament, judges and prosecutors, Evaluation Report, Ireland."

Mahon, Justice Alan (2012) "The Final Report of the Tribunal of Inquiry into Certain Planning Matters and Payments." Dublin.

World Bank (2013) Financial Disclosure Systems. Declarations of Interests, Income, and Assets Background Primer prepared by the Public Accountability Mechanisms (PAM) Initiative of The World Bank Public Sector and Governance Group. Washington DC.

OECD (2011), Asset Declarations for Public Officials: A Tool to Prevent Corruption, OECD Publishing. http://dx.doi.org/10.1787/9789264095281-en

Tighe, Mark The Sunday Times, 13 November 2016, "Ross: Judges must declare interests" (paywall) http://www.thetimes.co.uk/article/ross-judges-must-declare-interests-m5glv0x62