I welcome the Bill. I will not reiterate what has been said earlier as to the reason it is in the House. I have advocated, for many years, reform of our courts system and the formation of a court of civil appeal which could reduce the backlog in the courts in dealing with appeals which currently snarl up the High Court and result in many cases having to go to the Supreme Court which could be resolved more speedily at a court of civil appeal level. The structure the Minister proposed for a new court of appeal, involving the Court of Criminal Appeal, as it currently stands, and the new civil court all in one court of appeal is correct.
I should preface any remarks, be they praiseworthy or critical, by declaring an interest, which will not come as any great surprise to anyone here. As well as wearing my political hat, as everyone knows, I am still a practising solicitor and do some legal work which I regard, to some extent, as a sanity preserver. If I did nothing but spend my day in this House speaking to an empty Chamber I would have been carried out many years ago in a strait-jacket. It is no harm to reflect that this is probably the only place in Ireland where people are expected to stand up and deliver a lengthy address to a normally empty Chamber. Indeed, if the practices in which we engage in this House were engaged in outside it, most of us would, long ago, have been certified and be inpatients in a mental establishment.
In declaring an interest I know people in this House have a view of me which is sometimes complimentary and at other times uncomplimentary but within the legal profession I am something of a legal hybrid. I regard myself as one of Dessie's children. When I was qualifying as a lawyer Deputy O'Malley, fortunately, was Minister for Justice. His Courts Act, 1971, granted solicitors a right of audience in the superior courts and was designed as one step along the road to providing a unified legal profession. When I say I am something of a legal hybrid, I mean that apart from delivering occasional addresses to Members or absent Members of this House, one of the things I have been doing, going back to 1978, is acting as an advocate in the High Court and in the Supreme Court in a variety of different cases — some of which have been cases of importance and some which have affected not merely constitutional changes, in the sense of helping in the development of constitutional rights — but which also on occasions required this Chamber to introduce emergency legislation.
I speak about the courts not as someone from the outside looking in but as a person who has been inside the courts and inside this House. Something which has added to the gaiety of our nation has been the attachment which members of the Law Library have to wearing horsehair on their heads. As a person who has appeared in the courts in many cases over the years I always regarded it as a cause of personal amusement that lawyers acting opposite me, acting as advocates, felt the necessity to wear 17th century garb before appearing in court. As we have been told recently in quotes emanating from the Law Library they feel it provides some degree of sexual equality and anonymity and ensures that barristers are neuter gender. Whether that means that barristers have been legally or physically neutered — or perhaps the neuter gender is confined to their appearance in court — escapes me. During the past 18 years or so it has not been a legal impediment not to have been able to wear pieces of horsehair on my head in the courts. That I have not balanced a piece of horsehair on my head in the way my forefathers did 300 years ago has not taken from the solemnity of the occasion or the seriousness with which judges treat either legal submissions or my attempts to cross examine witnesses. That view of life was the catalyst for the inclusion of a provision in the Judicial Separation Act, 1989 which abolished the wearing of wigs and gowns by barristers and judges in family law cases, the first legislation to deal with the issue of horsehair. Since 1989 both senior and junior counsel have regularly appeared before the courts in major family law cases wearing neither wigs nor gowns but, nevertheless, they were taken seriously.
The Minister of State, Deputy O'Dea — who shares my prejudices on this matter — and I, have gone on the airwaves about this issue. In a vote held in the Law Library, we are told, a majority voted in favour of wearing wigs, but I am not sure if we have an accurate report of what took place. It would be interesting to request the chairman of the Bar Council, not merely to tell us the result, but to publish the questionnaire which was distributed to members of the Law Library which I understand was much more obtuse than merely asking barristers if they wished to wear wigs.
In modernising our courts, we need to blow the cobwebs out of the system, including the earlobes of the legal profession. I am somewhat confused by section 41 which states that a barrister or a solicitor shall not wear, in any court established under the Constitution, a wig of the kind heretofore worn. Does that mean they can wear a different type of wig? Does it mean that barristers who feel a sentimental attachment to their wigs — which are usually a dirty looking grey colour and have not been washed since the year dot — can have them dyed black, pink or blue and continue to wear them in court? Would that constitute wearing a wig of a different kind to that heretofore worn?
Senior counsel tend to wear more elaborate and interesting wigs than junior counsel in that some have tassels floating behind. Will they be perceived as wearing wigs of a kind not heretofore worn if they take a shears to the tassels but appear in the court still adorned in horsehair? I fail to understand the need for "a wig of the kind heretofore worn". Such phraseology was not necessary in the Judicial Separation Act which ensures that judges and barristers do not wear wigs. I am conscious that many bald headed people like to wear hairpieces and the Minister may wish to ensure those who wish to wear hairpieces do not have to shove them in their pockets as they enter court. That might cause recognition difficulties for colleagues, clients or instructing solicitors used to seeing them wearing hairpieces. It may be necessary to tease out in the legislation how we can allow people wear a hairpiece but not the type of wig that represents the 17th century in all its glory. However, the phraseology in the Bill is rather odd and if recalcitrant members of the Bar Library, who have as much legal ingenuity in this matter as I or any other Member of this House, wish to retain their wigs, it will guarantee that the horsehair, slightly altered, will be used following the enactment of this legislation.
Why does the legislation not refer to the wearing of wigs by judges? It requires barristers to appear in court naked from the neck up, but judges will sit in court, frazzled from wearing horsehair particularly on hot summer days. While some judges dote on their wigs and resent taking them off for family law cases, many are happy not to wear them. Has a survey been carried out on the members of the Circuit, High and Supreme Courts to ascertain if they are taken more seriously by the public because they wear wigs? Members of the Supreme Court in the United States do not deem it necessary to wear wigs. If barristers do not have to wear wigs, why should judges have to wear them? District justices do not wear wigs. While some might suggest it would interfere with the independence of the Judiciary, the 1989 Act has worked well. Are we to have barristers who will appear in court naked from the neck up until they become judges when once again they will reach for the horsehair? What will that add to the judicial system? The Minister did not explain the need for judges to continue to wear wigs. Will they wear them in the new Court of Appeal? Will this be a brand new, whiter than white court in which people will not wear wigs? Will new rules of court be drawn up requiring the wearing of wigs in the Court of Appeal? Would that not be odd at a time when we are abolishing the wearing of them by barristers? Will some Minister explain why it is deemed necessary for judges to wear wigs?
While welcoming the establishment of a court of civil appeal, it is extraordinary that despite everything said about the incapacity and inadequacy of our current court system to deal with family law cases, there is no suggestion of establishing a new structure of family courts. A working document published by the Law Reform Commission last spring described our family law courts as a sad parody of justice and recommended the formation of eight regional family courts.
That report was a damning indictment of the current court system in that it claimed the system cannot cope with the volume of cases before it, the courts do not structurally provide proper facilities for dealing with family and marriage breakdown cases and an unacceptable burden is imposed on judges. Delays of up to three years in having a judicial separation case determined for couples whose marriages have collapsed is totally unacceptable. It may take up to three years for a battered wife to have her case heard. Judges under pressure feel the need to short circuit the hearing of cases and in some cases a system of conveyor belt justice operates in which insufficient consideration is given to difficult family problems and decisions made affecting the future welfare, not just of wives and husbands but of children, are hastily reached without adequate consideration. That is not acceptable. Since taking up office the Government has been accident prone in dealing with divorce. As a prerequisite to a divorce referendum, legislation should be introduced to provide for the establishment of proper family courts with adequate back up services. Despite all the crocodile tears shed for the plight of the victims of broken marriages it is a scandal that there is at present no back-up service provided by the welfare services to the courts system to produce family assessments when required to judges. There is one welfare officer with the Dublin district court which deals with thousands of custody, barring and maintenance applications every year. If at present a district judge wants a family assessment carried out to determine which parent should have custody of children in the event of a conflict, or an application for a barring order or where there is an allegation of violence, it can take a minimum of 12 months for such reports to be prepared and recommendations made to the court. I raised that issue through questions in the past 12 months. I was told by the Minister that she is aware of the problems and will give consideration to them. We should not shed crocodile tears in public about these issues when we have the capacity to take action to deal with them. The back-up service that the Judiciary want to deal with family cases should be provided as a matter of urgency.
In her speech the Minister said she would appoint additional judges which would help clear the backlog. It will not unless there are adequate court facilities for the hearing of cases. It will not resolve the problem unless the judges appointed have some understanding of marriage breakdown, family law and the needs of children. Lawyers who have appeared in criminal or personal injury cases cannot be appointed to the family courts and be expected to have an understanding or a background in social training to deal with these issues properly. This Bill should have been the vehicle for addressing this issue but the Government did not avail of the opportunity to do so.
Another issue I wish to raise — it is as well I made a declaration of interest — concerns a widening of the type of people from whom judicial appointments can be made. The Bill proposes — I welcome this aspect — that it should be possible that a solicitor be appointed to the Circuit Court. There are approximately 1,500 barristers in this State and 5,500 solicitors. Solicitors are appointed to conduct multi-million pound arbitrations and take decisions on them. Solicitors are appointed to preside over employment appeals tribunals and a variety of other bodies that take fundamental decisions affecting the rights of individuals. If the Minister is finally grasping the nettle she should grasp it in full and not by halves. The monopoly of the Law Library in the appointment of the Judiciary should not simply be dented, it should be broken. The Law Library has been operating a cartel on judicial appointments, with the support of barristers operating within one area of our Civil Service, who have a vested interest in assisting the Law Library to maintain that cartel.
There is no reason it should not be possible to allow for the appointment of a solicitor as a judge, not merely to the Circuit Court but to the High Court and Supreme Court. Obviously, people should not be appointed unless they have the ability but we should dramatically widen the pool of experienced lawyers from whom our Judiciary can be selected. The Minister is not doing that and, if it is not done in this Bill, it will not be done for the next 20 years.
I would like the Minister to explain a provision in the Bill I do not understand. She said there will be special training for judges. I expressed the view many times that those who wish to practise in marital and family cases should have some background expertise and training. Where will the Minister provide this training? Will it be provided in the universities? Are aspirant barristers to be asked to indicate if they would like to be judges and be sent off to participate in courses? Who will conduct the courses? Where will they take place? What will be their duration? In what areas of law will they be conducted? None of those questions was answered in this Bill.
The final issue I wish to mention briefly concerns the Attorney General's office. I am unhappy at the level of political vitriol and character assassination that has formed part of our politics over the past few weeks. It seems it is open season at present to assassinate the characters of individuals. Perhaps the need to do so is heightened by by-election fever. It seems there have been problems in regard to the Attorney General's office that did not begin with the incumbent but go back a long way. That office is yet another Law Library monopoly, is unwieldy in the manner in which it operates and too slow in dealing with matters. There is no reason recruitment of legal personnel to that office should also be confined to qualified barristers.
There is a need for a radical overhaul of the Office of the Attorney General regardless of what person happens to be its incumbent. There is a need, as happens in other countries, to ensure that a forum is provided, so that whoever happens to be the incumbent must give an account of the running of that office to Members of this House to whom he or she should be politically responsible. The way that office operates at present is not satisfactory. Many years ago when Declan Costello, now a High Court judge, was a Member of this House the position was different. We need to ensure that if the Attorney General is not a Member of this House there is a mechanism which allows him or her to account to this House for the functioning of the Office of the Attorney General. The way we deal with this at present is undemocratic and entirely unsatisfactory.