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Dáil Éireann debate -
Tuesday, 28 Nov 1995

Vol. 458 No. 8

Courts and Court Officers Bill, 1995: Second Stage.

I move: "That the Bill be now read a Second Time."

The Courts and Court Officers Bill, 1994 was introduced with the objective of improving the courts system. That Bill which has just been withdrawn from the Dáil contained a number of measures which I have retained in the present Bill with some significant changes and improvements. The Courts and Court Officers Bill before the House today prescribes alternative and, I think, more effective remedies for the main problem facing the courts system — the arrears of cases and appeals awaiting hearing before the courts. It also contains many more provisions which will implement much-needed administrative and procedural reforms to improve the efficiency of the courts system.

The system is overdue a full reappraisal and a new approach. The courts need to be fully equipped to handle modern-day demands and pressures. The courts system has been trying to provide a reasonable level of service in recent times in the face of many challenges. There has been a marked increase, for example, in the amount of business coming before the courts over the past number of years, in particular more civil actions and personal injuries litigation, more family law business and more criminal cases. The background to this increased volume is complex, but there are legal, financial, cultural and social factors involved. Not only is there more business, but the trend is that cases and appeals are more complex now and, therefore, more time-consuming than in the past. Changes to the limits of the jurisdiction of the courts and developments in the family law area have had a tremendous impact on the amount and complexity of business coming before the courts. The courts system has not been able to keep up with this growth in the amount of cases and appeals. That state of affairs needs to be turned around urgently and that is what I am aiming to achieve with this Bill and with further proposals for reforms which I will also outline.

I was faced with two options on taking office when considering my priorities for legislative reform in the courts and judicial area. I could keep the substance of the reforms contained in the 1994 Bill on track or I could pause to reflect on the direction those reforms should take. I took the latter course and decided to take stock. The programme, A Government of Renewal, contained two key proposals that would have a major impact on the planned reforms. The first was to review the 1994 Bill to ensure in particular that it contained the measures that would best address the problem of delays in all the courts and the second related to a court commission.

Initiatives in these areas had been proposed in the 1994 Bill. A new court of appeal was to have tackled the accumulation of appeals awaiting hearing by the Supreme Court. An advisory commission on the courts was to have been set up. It is a fair indication of the extent of reassessment of the 1994 Bill that the present Bill, together with my proposals for the longer-term development of the courts system, differs markedly from what was proposed in these key areas in the 1994 Bill.

I have adopted a three-pointed approach to reforming the courts service; first, to tackle immediately the problem of delays in the courts by providing in this Bill for 17 more judges; secondly, to implement in this Bill several other changes in courts administration and procedure that will also reduce delays and enhance the efficiency of the courts service; and third, to develop a longer-term approach to improving our courts system.

On this last point, I will be taking the opportunity to refer in a few moments to the Working Group on the Courts Commission which I recently set up. It is clear that the pressing matter of delays in the system must be addressed with immediate effect. This Bill will do that, but it is vital that we address the issue now of what kind of court service we will have in five, ten or 15 years from now. We cannot lose sight of that.

The Courts and Court Officers Bill, 1995 will tackle the serious problem of delays in the hearing of actions and appeals at all levels of the court system. Long delays in having cases resolved mean that the system of justice is letting down many litigants, victims of crime and to some extent the community as a whole. Delays in the courts can also adversely affect the smooth running of the business and commercial sector. This I believe could undermine public confidence in the system of justice. It is the recognition that justice delayed is justice denied that informs my overall approach to tackling the problems in the courts system. I see access to the law and recourse to the courts as an important individual right. The current arrears before the courts means that this right is impeded. I am satisfied that this Bill will facilitate the exercise of that right.

Let me emphasise that it is not simply a once-off clearing of arrears of cases and appeals that is at issue here. It is also a question of equipping the courts with the organisational systems and resources to dispose of their workload on an ongoing basis once the arrears of cases and appeals before the courts are under control. I am confident that this Bill will achieve that.

The 1994 Bill proposed the setting up of a court of appeal comprising of three additional High Court judges to deal mainly with appeals against decisions of the High Court in personal injuries cases and to relieve the problem of delays in hearing appeals in the Supreme Court. Having reviewed that proposal. I have concluded that the proposed court of appeal would fall considerably short of the target of clearing the arrears of appeals before the Supreme Court. I was not satisfied that what would have been an appeal court hearing appeals predominantly from decisions in personal injuries cases could be justified, even though it was also to have incorporated the jurisdiction of the Court of Criminal Appeal. I reached this conclusion following consultation with the senior Judiciary and others. I was not convinced that the proportion of personal injury appeals that come to a hearing and the nature of those appeals would have generated sufficient business to keep the proposed court of appeal fully occupied. There was also the risk, I believed, that the proposed court of appeal would generate a further tier of appeals from that court to the Supreme Court. Such a development would defeat the purpose of the proposed court and would be highly inefficient as it would lead to further delays in the system and greater costs. I am not going down that road.

The real pressure on the Supreme Court comes from the very considerable increase in the length and complexity of appeals other than personal injuries appeals. That same factor equally applies in relation to civil cases in the High Court. In the Supreme Court, a further factor is that the statutory maximum number of judges of the Supreme Court has remained static at five, including the Chief Justice, for several decades while the number of judges of the High Court increased at various times over that period from six to the current maximum of 17. There has therefore been a great increase in the volume of decisions that can be appealed to the Supreme Court without a corresponding adjustment in the Supreme Court to cope with that increase. Appeals relating to the Constitution or complex appeals against decisions in major commercial law cases often require immediate attention. We have seen many of these in recent years. The necessary prioritising of business results in other appeals, especially personal injury appeals, being put back. It is unfair to the individual litigant to have to wait so long for an outcome to his or her appeal. We must enable the Supreme Court to make inroads on those arrears.

I have decided in section 6 to provide for an increase of three in the number of Supreme Court judges, bringing the number to seven judges, in addition to the Chief Justice. Section 7 provides for a major development in the structure of the Supreme Court by enabling it to sit in two divisions at the same time, thus allowing two appeals to be heard simultaneously. This will enable the Supreme Court to sit in divisions of three judges for most appeals or in two divisions of three and five judges where a court of at least five judges is required. Section 7 stipulates that a court of not less than five judges should deal with matters arising under Article 12 and 26 of the Constitution which refer respectively to the President and to the reference of Bills to the Supreme Court, or a question of the validity of any law having regard to the provisions of the Constitution. Under section 7 of the Courts (Supplemental Provisions) Act, 1961 such matters must be heard by five Supreme Court judges. By virtue of section 7 of the Bill, therefore, the Chief Justice may determine that the full court may sit in such cases. It is envisaged that the full court will sit only on rare occasions. I am convinced that enabling the Supreme Court to hear more than one case at the same time is the most effective way of tackling the arrears of appeals at Supreme Court level and enabling the court to deal with the increasing number and complexity of appeals which must be heard.

I am advised that the development of a divisional Supreme Court sitting at the same time is consistent with constitutional requirements. It represents a very significant change in the structure and composition of the Supreme Court, but our Constitution, in Article 36, envisages such developments as it permits the regulation in accordance with law of the constitution and organisation of the courts. Section 8, which allows the Chief Justice to allocate the business of the court, will help to promote consistent decisions in the vitally important areas of the law bearing on the Constitution. I am assured in any event that a decision of a court — be it a court of three judges or more — would be the decision of the Supreme Court, final and conclusive in all cases as is required under Article 34.6 of the Constitution, and, therefore, not open to challenge.

A further development affecting the Supreme Court is contained in section 2 (1) of the Bill. This section enables the Government by order, following consultation with the Chief Justice and the President of the High Court, to abolish the Court of Criminal Appeal and to transfer its jurisdiction to the Supreme Court. It is my intention that such an order will be made when the arrears of civil appeals in the Supreme Court are brought under control. At that point, I would expect the Supreme Court to have sufficient capacity to allow it to take over the work of the Court of Criminal Appeal.

Sections 9, 10 and 11 increase the statutory maximum number of judges from 16 to 18 in the High Court, from 17 to 24 in the Circuit Court and from 45 to 50 in the District Court, not including the Presidents of those courts. This is an overall increase of 14 judges in these courts. That represents a considerable commitment on the part of this Government to tackling the backlog of cases and appeals before these courts.

The accumulation of civil business including family law business in the Circuit Court is causing problems for many people. I am acutely aware of this. The provision for an additional seven judges in the Circuit Court is a considerable investment but I am confident this will produce a very worthwhile return to the public. There are two important factors that have brought about the current accumulation of cases in the Circuit Court.

First, the Courts Act, 1991, increased the jurisdiction of the Circuit Court from £15,000 to £30,000 which resulted in a major increase in the volume of civil business for hearing in the court. It appears that this increase in court business is permanent and will probably grow. Civil cases before the Circuit Court are now more numerous, more complex and more time consuming than before. The second factor at Circuit Court level is the huge increase in family law business. The Judicial Separation and Family Law Reform Act, 1989, transferred the majority of family law business in the courts to the Circuit Court. This, and the fact that more and more people are having recourse to the court in these proceedings has led to a dramatic increase in the volume of family law business in the Circuit Court.

Delays in the hearing of family law business in a number of Circuit Court venues lead to a significant human cost not only to the parties involved but also to their families. These developments were not matched in terms of the judicial resources available to the Circuit Court in recent years. Additional judges in the Circuit Court are badly needed to eliminate the present delays there and to deal with the volume of civil and family business in that court.

The Courts Act, 1991, also increased the civil jurisdiction of the District Court to £5,000 which has resulted in an overall increase in civil business in the District Court. The type of family law cases for hearing in the District Court, for example, barring orders and protection orders are such as merit immediate attention or relief. The District Court by its nature is intended to provide local courts where legal matters can be heard quickly and without formal pleadings. The provision for five additional judges in the District Court is necessary accordingly to assist in the hearing of civil, family law and criminal cases.

The appointment of additional judges to the courts is in my view an essential step to turn around the business of the courts and to improve matters in the courts system with immediate effect. I have also got Government approval for the provision of comprehensive administrative back-up for the new judges. I should make it clear however that in no way do I see increasing the statutory number of judges as the only solution to deal with the current problems. This approach will work in conjunction with other reforms contained in this Bill to improve efficiency in the courts.

The Bill provides for an increase of 17 in the number of judges. I expect that the Government will decide to have all of these additional appointments made as soon as possible after the Bill is passed. It may be that when the arrears in the various courts are brought under control over time and if the volume of business before the courts settles down it will not be necessary to fill every future vacancy that may arise after that. However, that is something which will only become clear with the passage of time.

Looking towards the longer-term development of the courts service, I have decided to institute a full re-appraisal of the entire existing courts system. With that in mind, I got Government approval last summer for the setting up of a Working Group on a Courts Commission. I set up that group, to be chaired by Mrs. Justice Susan Denham of the Supreme Court, a number of weeks ago. I made the point at that time that this initiative provides an opportunity for a thorough examination of the courts system to ensure that it is meeting the needs of today's society. This development, I have no doubt, will make a vital contribution to the modernising of our courts system. The group is very broadly representative and I consider that to be essential — we must have the views and be in a position to draw on the experience of the Judiciary, the legal professions and the relevant Government Departments as well as other types of experience such as that of Women's Aid.

I have asked the working group to review the operation and financing of the courts system with particular regard to the quality of service provided to the public. In my view that should be the bottom line for the development of the service. In the light of that, I have asked the group to consider the matter of the establishment of a commission on the management of the courts as an independent and permanent body with financial and management autonomy in line with the commitment to that effect in the Government of Renewal Programme.

I have decided that this is a better approach than adopting the advisory model for a courts commission which was a feature of the 1994 Bill. This Government has taken the view that working towards an independent body responsible to the Government for the management of the courts service would be a more effective and efficient approach. That strategy, however, needs to be carefully developed in the forum of the working group. The working group will be well placed to address all of the many and varied issues that I have no doubt will arise.

This major re-appraisal of the organisation and structure of the courts is long overdue. It is a development which I am confident, will ensure for the future that our courts system will be able to keep pace with ever-increasing and changing demands on it. We need a courts service that maximises the use of resources while providing us with a modern and efficient system for the administration of justice.

Part IV of the Bill deals with judicial appointments and provides for the setting up of a Judicial Appointments Advisory Board. This will introduce an important new dimension to the procedure for judicial appointment. Deputies will be aware that the 1994 Bill also provided for the setting up of a Judicial Appointments Advisory Board, and I will be dealing in a moment with a number of important differences between the board as proposed and the one that will be set up under the terms of the present Bill.

First let me put these new arrangements in some perspective. The procedure for appointing judges is governed by the Constitution. Article 35 provides that the judges of the Supreme Court, the High Court and all other courts shall be appointed by the President. That power is exercisable and performable on the advice of the Government. That fundamental arrangement is of course unaffected by this Bill. I need hardly say that our Judiciary is widely respected for its integrity, fairness and independence. The focus of these measures is, however, on the Government's role in the process. Because of the Government's central role in the appointment of judges, there should be guarantees to ensure that procedures to appoint judges are not only appropriate but are seen to be appropriate.

The Bill introduces a new initial stage in the procedures whereby the advisory board will short-list and recommend barristers and solicitors to the Government for appointment to judicial office by the President. The scope of this provision as defined in section 12 is similar to that proposed in the 1994 Bill in that new arrangements will not cover appointments to Chief Justice or as President of the other courts. I think this is a very prudent exclusion because I know that the Government, in considering appointments to these leading judicial posts will want to promote continuity in the courts system. That is why section 23 provides that the Government when considering those appointments, shall have to first have regard to the suitability of serving judges of those courts. Section 17 further defines the scope of the new procedures. That section provides, in effect, that where the Government proposes to advise the President to appoint a serving judge to a higher court, the procedures of the board shall not apply. In other words, the new appointments procedures will apply to the first appointment of a barrister or a solicitor as a judge.

I felt that the composition of the board provided for in the 1994 Bill was not sufficiently representative — in fact there was no provision for any representative other than the Judiciry or of the legal professions. The main change I am introducing in section 13 is that I will have the right to nominate three persons to the board. This will allow me to introduce a wide range of experience into the process. I am thinking of nominees with commercial, administrative and consumer backgrounds — in other words those who can represent people who rely on the courts on a daily basis. Representatives of victims of crime, women's groups and perhaps other bodies could bring an invaluable new perspective to the consideration of the suitability of candidates for judicial appointment. Of course all of those interests could not be accommodated in my first round of nominees but the provision for three year renewable terms of appointment allows the option of introducing a broad range of influence over a longer period of time.

A further change in the composition of the board is that the Attorney General of the day will be a member. In my view, the Attorney General of the day is uniquely suitable, with his or her knowledge of the legal profession, to be a member of the board. Under section 18, the board will be able to recommend the Attorney General for a judicial appointment. However, when the board is considering the Attorney for appointment, he or she will be required to withdraw from the deliberations of the board.

Section 16 provides for the submission by the board of the names of all persons who have been considered by the board for appointment, with the board recommending at least ten persons. Requiring the board to recommend only three to five names as was proposed in the 1994 Bill would restrict unduly the Government's discretion in the matter of judicial appointments which it has by virtue of the constitutional arrangements relating to this matter. For this reason the board should be required to recommend a reasonable number of names. I have considered this carefully and I am satisfied that at least ten names is the right formula.

The Bill provides that where fewer than ten persons wish to be considered for appointment or where the board is unable to recommend ten persons, the board may recommend a lesser number of names for appointment. Where more than one vacancy arises the board will be required to submit at least ten names for each vacancy unless the Minister specifies otherwise. The intention here is to avoid imposing an obligation on the board to produce a very large number of recommendations which could prove to be difficult, in the event of a number of vacancies arising in the same court.

The recommendations of the Advisory Board will not be binding on the Government. That is appropriate, mindful of the constitutional position relating to judicial appointments. It is nevertheless expressly provided in section 16, that the Government shall first have regard to the names recommended by the board in advising the President on the appointment of a judge. That is a significant direction to Government and one that highlights the pivotal role I expect the new board to have. To ensure that the input of the board is on the public record, section 16 also requires that the notice of appointment published in the Iris Oifigiúil shall indicate when a judge has been appointed on the recommendation of the board.

The 1994 Bill set out a committee system for the nomination of suitable persons for judicial appointment. I prefer to leave it to the board members as is provided in section 14 to decide for themselves if they want to delegate tasks to sub-committees. That may well be a practical and workable arrangement to decide recommendations at the different levels of the court structure.

Section 48 will enable me to provide funds for judicial training courses arranged by the Judiciary. The provision of suitable courses is necessary to enable judges to keep up-to-date with developments in a range of legal and other areas. I know that the senior Judiciary have already taken initiatives in this area and funding has already been provided for seminars. I am particularly pleased by an initiative taken by the Chief Justice who is setting up a Judicial Studies Institute which will have responsibility both for induction courses for newly-appointed judges and continuing courses of education and training for members of the Judiciary.

Also on the subject of judicial training, under section 19, persons wishing to be considered for judicial appointment by the Advisory Board must agree to take training courses if appointed and if so required by the Chief Justice or President of the Court to which they are appointed. This is a better approach than that proposed in the 1994 Bill whereby the Minister would make regulations requiring training for candidates aspiring to judicial appointment. I am sure that would be unworkable, not least because it would discourage well-qualified persons from seeking judicial appointment as they would be required to undertake courses without any guarantee of being appointed.

Aside from increasing the number of judges, this Bill contained several measures to improve efficiency in the interests of users of the courts. I will explain the most significant of these. Section 25 will increase the jurisdiction of the Master of the High Court to enable the Master to deal with a range of applications that at present must be dealt with by judges in the High Court. This will ensure that the fullest possible use is made of the Office of the Master of the High Court in the judicial area. This new business will be allocated to the Master of the High Court for hearing by the President of the High Court. There are of necessity a number of matters that the Master will not be empowered to hear, including criminal proceedings, and these are set out in section 25. This section also provides that under Rules of Court, additional powers to deal with pre-trial procedures may be conferred on the Master. That would mean that the Master of the High Court would, under such rules, have jurisdiction to simplify and narrow in so far as possible all the issues which may arise in an action. When the Master has disposed of pre-trial issues, the action would then be submitted to court. This will help to keep hearings as short as possible. The purpose of the provision is to release High Court judges from the time spent on various applications and other matters preliminary to hearing the central arguments in a case and to reduce legal costs. Section 23 provides for the swearing in of the Master of the High Court in like manner as a judge. This is appropriate as the Master will be empowered to exercise similar powers to a judge of the High Court in certain circumstances.

Section 33 confers additional powers on county registrars. A county registrar is assigned to each Circuit Court and his or her function is the control and management of the business of that Circuit Court office. The Bill confers new powers on county registrars which are set out in the Second Schedule to the Bill. As with the provisions relating to the Master of the High Court, this measure will maximise the potential of the offices of county registrars. These additional powers correspond to those which are currently exercised by the Master of the High Court in respect of the High Court. The effect of this proposal is that county registrars will be empowered to deal with many motions that judges of the Circuit Court are at present required to hear. County registrars will, for example, be able to deal with motions to remit actions to the High Court, notices for discovery and motions to join a third party. I am satisfied that this will effect considerable savings of court time, will help to reduce delays at Circuit Court level and should reduce legal costs. Section 33 also provides that appeals from decisions of the county registrars shall be to the Circuit Court.

Section 45 gives the Superior Courts and Circuit Court Rules Committees the power to make rules requiring parties in High and Circuit Court personal injuries actions to disclose, without having to apply to court, the reports of experts, such as doctors, whom it is intended to call to give evidence. This is aimed at speeding up the hearing of actions and should help to reduce legal costs for litigants.

Currently, appeals in civil cases from decisions of the Circuit Court outside Dublin cannot be heard by the High Court sitting in Dublin. Section 42 will allow such appeals to be heard in Dublin where the parties consent to that or by the direction of the High Court where the interests of justice require it. This will allow appeals to the High Court to be dealt with more efficiently.

Section 41 will improve efficiency in the hearing of appeals by the High Court against decisions of the Circuit Court sitting outside Dublin. The present requirements are very inflexible. For example, the half-yearly sittings of the High Court on circuit must be held simultaneously and the High Court cannot sit in more than one appeal town in any one of the High Court circuits save in exceptional circumstances. These arrangements impede efficiency and the Bill removes those requirements.

I have been concerned for some time about the ease with which criminal trials, often of very serious offences, can be switched for hearing from the Circuit Court sitting outside Dublin to the Dublin Circuit Court. This exacerbates the problem of delay in the Dublin Circuit Court and can be a costly exercise from the point of view of bringing gardaí and witnesses to the Dublin Circuit Court. Under the Courts Act, 1981, once the required notice is given, an application to transfer a trial to the Dublin Circuit Criminal Court is automatically granted. I do not accept that transfers in all these cases can be justified. There may well be legitimate grounds in certain circumstances to grant an accused a trial before a jury from a region other than, say, where the accused lives. Section 31 provides that an application to transfer the trial to Dublin will only be granted to the Court if the judge is satisfied that it would be manifestly unjust not to do so.

The Bill also rationalises the territorial jurisdiction of judges of the District Court. At present, an accused before the District Court may only be tried in the District Court district where he or she lives or was arrested or where the offence was committed. This can give rise to inefficiencies and unnecessary costs. Section 40 will allow for much greater flexibility in the hearing of criminal cases by District Court judges. It will allow for the trial of an offence and the processing of other matters by any District Court judge in any District Court district in certain circumstances.

A number of the measures in the Bill will have the effect of reducing legal costs by increasing efficiency and speeding up business in the courts. However, I am acutely conscious of the need for an effective control mechanism in relation to legal costs when costs are in dispute. The settling of disputed legal cost bills is the function of the Taxing Masters of the High Court. Significant deficiencies in the powers of the Taxing Masters have been identified following a number of court decisions. Section 27 will give much-needed additional powers to the Taxing Masters of the High Court, and to county registrars in the Circuit Court, to evaluate solicitors' and counsels' fees and fees charged by expert witnesses in actions and to allow or disallow such fees. These powers will also be available to the Taxing Masters in relation to solicitor and client bills of costs. I am confident that this move will help to restore effective control over legal costs where these costs have not been agreed.

Section 50 will confer on the Master of the High Court and other court officers the discretion that only judges currently have to order the payment of interest on awards. The Bill will ensure that a plaintiff who seeks an award of interest will not have to apply separately to a judge at additional cost.

Under section 46 of the Bill, I will have a new residual power to make party and party costs rules. These costs are paid by an unsuccessful litigant to a successful litigant. This power could be used where a court's rules-making body fails to make costs rules or where costs rules are submitted to me which I consider to be excessive.

Section 36 gives the President of the District Court the power, currently vested in the Minister for Justice, to temporarily assign judges of the District Court. This is consistent with the position in the Circuit Court whereby the President of that court exercises the power to temporarily assign Circuit Court judges. At present all of the practical arrangements relating to the temporary assignment of District Court judges are made by the President and I am satisfied that it would be more efficient to devolve my assigning authority in respect of these assignments to the President.

Under the Courts (Supplemental Provisions) Act, 1961, the Minister for Justice, after consultation with the President of the District Court, determines the number of judges to be permanently assigned by the Government to the Dublin Metropolitan District. At present, the Government cannot permanently assign more than one judge to any other district. The effect of section 39 is to enable me to determine that two or more judges may be assigned to any District Court district. The intention here is to provide for the permanent assignment of a second or subsequent judge to any District Court district where the workload of the court warrants this.

I would like to mention briefly some important changes relating to the legal profession and the Judiciary. Under the Bill solicitors will, for the first time, be made eligible for appointment as Circuit Court judges. At present only barristers are eligible for appointment to the Circuit Court. This measure widens appreciably the pool of talent from which the Judicial Appointments Advisory Board can draw when making recommendations for appointment to the Circuit Court. The former Fair Trade Commission in its 1990 Report on the Legal Profession found that experience of court practice and procedure as well as of the law is probably more important than advocacy skills. I feel that experience of advocacy is one important factor in determining whether a person is suitable for appointment as a judge but I am not convinced that it should be the primary factor. I am well satisfied that the solicitor's profession as a body possesses the kinds of attributes appropriate to these appointments. Sections 28 to 30 of the Bill makes provision for this matter.

Section 47 provides for a retirement age of 70 years for newly-appointed judges to the Supreme and High Courts. The current retirement age for judges appointed to these courts is 72 years. Circuit Court judges retire at 70. In the District Court, a judge can seek a retirement age extension from 65 to 70. This new provision for Supreme and High Court judges will, over time, effectively bring about uniformity of retirement ages for judges of all courts. The 70 years retirement age will not apply to judges who hold office at the time the provisions come into effect, including judges who are subsequently appointed from a lower court to the Supreme or High Court.

Section 49 provides that the wearing of wigs in court by barristers and solicitors will be prohibited under provisions of the Bill. The wearing of wigs by barristers and solicitors in family law proceedings and in the examination of a witness by way of television link in certain proceedings including a sexual offence is already prohibited by statute. The purpose of that reform was to ensure that these proceedings were more informal and I am more than satisfied with the effect of those changes.

Section 43 of the Bill provides for an amendment to the law in relation to qualification for appointment as a judge of the Supreme Court and the High Court. The Bill addresses an anomaly under the existing law. At present, 12 years practice as a barrister is required to qualify for appointment as a judge of the Supreme Court and High Court. Service as a judge of the Circuit Court counts as practice as a barrister. However, service as a judge of the European Court of Justice, the Court of First Instance attached to that court or as an Advocate-General of the Court of Justice does not make up practice as a barrister. Section 43 deems such service to be practice at the Bar for the purpose of qualifying a person for appointment as a judge of the Supreme Court and High Courts. A similar provision was included in the 1994 Bill.

I have already dealt with the measures contained in the Bill to speed up the handling of criminal trials in the courts. I want to take the opportunity to expand briefly on my further legislative proposals for tackling crime.

The Government recently approved the general scheme of a Criminal Justice (Drug Trafficking) Bill and this measure is now with the parliamentary draftsman for drafting as a matter of priority. The Bill will provide for increased powers of detention in drug trafficking cases; the issue of search warrants by Garda superintendents in certain circumstances in drugs cases; and the involvement of customs officers in questioning of suspects detained by the Garda. I have also requested my Department to review the law in relation to renewal of licences of premises where the sale and-or misuse of drugs is suspected including an examination of systems of control for unlicensed premises where drug sale and-or abuse is suspected. This review is well under way.

A Criminal Justice (Miscellaneous Provisions) Bill will further improve efficiency in the courts particularly by taking steps to reduce the amount of time which gardaí have to spend in court through, for example, allowing certain evidence to be given by way of certificate.

A new Criminal Law Bill will place the power of arrest on a modern statutory basis. A Non-Fatal Offences Against the Persons Bill will involve the repeal of much of the Offences Against the Persons Act, 1861 and will consolidate and update our law in this area. The Juvenile Justice (Children) Bill will be a major reforming measure in dealing with the area of juvenile crime. A Fraud Offences Bill will amend and update the law on fraud offences with reference to recommendations made by the Law Reform Commission and the Government Advisory Committee on Fraud.

These are all measures on which a considerable amount of work has been completed in my Department and I mention them briefly in the context of assuring the House that the measure before it today should not be seen in isolation and that I have a major programme of criminal law reform well under way. We have been working hard with our European collegues in developing anti-crime measures and initiatives and this work will be intensified, with particular emphasis on the drugs front during our EU Presidency next year.

The operation of the entire legal system can have a very profound and lasting effect on the lives of individuals in the community. Central to the success of that system is the delivery of justice. That is why an efficient courts system is so crucial. What I am most concerned with is how that system performs as a service — that is the issue of real importance to the individual member of the public. I am confident that this Bill will set the courts service on course to provide a greatly enhanced service for the future. I am also satisfied that this progress can be further underpinned by my proposals for the further development of the courts system I have outlined today.

I look forward to hearing the views of the Deputies today. I pay tribute to my predecessor, Deputy Geoghegan-Quinn, who did a great deal of work in preparing a similar Bill in 1994. It did not reach the debating stage, but if it had I am confident she would have considered a number of the changes I made in this Bill. I am sure some of her party colleagues who are members of the legal profession would have indicated that some of these changes were necessary. I thank the Leas-Cheann Comhairle and the House for allowing me extra time.

Is the Minister also looking forward to hearing what the rest of us will say on the Bill tomorrow and on other days? I am distressed that she was referring only to Deputies O'Donnell and O'Donoghue.

I said I look forward to hearing the views of Deputies today, I also look forward to hearing them on other days.

I join with the Minister in warmly congratulating Deputy Geoghegan-Quinn who was responsible for all the positive measures incorporated in this Bill. I will refer later to other measures in the Bill subsequently introduced by the Minister.

In the circumstances I am sure the great giant of English literature, William Wordsworth, will forgive me for saying that one year has passed, one summer with the length of one long winter, since Deputy Owen became Minister for Justice. The Minister's reign has been correctly described as the "year of the criminal". To date 100,000 indictable offences have been committed under her reign, thousands of criminals are on temporary release, thousands of crimes are being committed by people on bail and no legislation has been introduced in the House by the Government to tackle a problem that is now seriously out of control. The "year of the criminal" has been marked by procrastination on the Minister's part.

Many people would have believed that the Minister had left the country and abandoned us to our fate were it not for the fact that she was able to initiate or imitate three Fianna Fáil Bills during the year. None of those worthy Bills dealt directly with the crime problem. Accordingly, Fianna Fáil felt obliged to publish several Bills in which the Minister for Justice did not show any interest. That did not surprise us but it appalled the public.

The Courts and Court Officers Bill, 1995 should and would have been introduced in 1994 if the Tánaiste and the Labour Party had kept their word following last year's famous Baldonnel meeting. Historians, political connoisseurs and cynics alike will recall that the Tánaiste held the previous Administration to ransom in order to expedite as a matter of extreme urgency a similar Bill in 1994.

It was an urgent imperative for the Labour Party one year ago. Ultimately, when the tarmac began to run out at Baldonnel, the Tánaiste pressed the ejector seat button and catapulted himself, his party and his flexible priorities into another partnership to avert the unthinkable — a general election. Since returning to power, without ever having left it, the Tánaiste marched his merry band of followers into an administration, cobbled together out of chaos and held together with the momentum created by the greatest back-pedalling display ever seen in Irish politics.

Meanwhile the Courts and Court Officers Bill retained its urgency and importance to the extent that the Government worked flat out to ensure that it would take a full year before a minimally revised Bill saw the light of day. That is extraordinary when one considers that the Labour Party deemed this to be an urgent imperative a year ago. This is not the first time, nor will it be the last, that the Labour leader and his party have made Machiavelli look like a boy scout. In fact they might consider as their motto for the next general election: "Come fly with me but bring your parachute and watch your back on the way out".

Just over a year ago I welcomed many provisions of the Courts and Court Officers Bill, 1994, which was before the House, but I raised some questions regarding the constitutionality of certain provisions which I perceived as having a Labour Party hallmark. In our Constitution the doctrine of the separation of powers underpins the Government of the State. There are very good reasons for that. The Judiciary may not interfere with the Executive and, conversely, the Executive may not interfere with the Judiciary. In November 1994, on this crucial point, I asked if we were coming perilously close to the Government's role in the appointment of the Judiciary becoming merely interventionist in its scope. This raised the question of the extent to which the sovereign duty of the Government or the Executive is circumscribed. I warned in November 1994 that the Executive has a constitutional mandate to advise the President on the selection of judicial appointments and the 1995 Bill, on balance, maintains the prerogative. It is true that the Judicial Appointments Advisory Board's role is advisory only. Its purpose is defined in section 13 as identifying persons and informing the Government of the suitability of those persons for appointment to judicial office.

The composition of the Judicial Appointments Advisory Board has been radically altered, under the 1995 Bill, compared with the 1994 Bill. It is no longer deemed appropriate that the Chairman of the Law Reform Commission should serve as a member of the board; instead, the Minister has proposed the appointment of the Attorney General, the first law officer in the land and the law officer to the Government.

That does not say much for the Government's impartiality and the Minister owes the House an explanation in this respect.

While an Attorney General's competence to advise the Government on judicial appointments is highly desirable, it would be far more desirable if the Attorney General was not a member of the board so that the holder of that office could provide a more independent role in assisting with such appointments.

In perusing the proposed membership of the board my scepticism is, to say the least, enhanced by the Minister's proposal to appoint up to three persons whose qualifications are not specified. There is no reason given for their appointment and it must be assumed that the Minister intends to appoint three politically partial or favourable individuals to ensure the Government has a representation of 40 per cent on the board. The original Bill scrupulously avoided any political interference in its proposals. This lack of partiality is consistent with my party's policy in regard to judicial appointments over the last quarter of a century.

Fianna Fáil has a proven and established record of having staffed the Bench with numerous lawyers whose political affiliations were known to apply to other political parties. These appointments apply to all courts. As there have been attempts for years to tarnish Fianna Fáil, it may come as a surprise to some people — but not to the membership of the party and to reasonable people — that this was and has been the position since the foundation of the party. This commendable attitude has never applied to the Minister's party during its many years in office. It is manifestly obvious from the text of the Bill that we can expect no change in Fine Gael's attitude or in that of the Labour Party. It is a case of more jobs for the boys despite the pretence of what the Minister might claim. The House is entitled to a satisfactory explanation. I assume that the political "yes" men have already been selected, thereby destroying the commendable proposals which my party and the former Minister for Justice, Deputy Geoghegan-Quinn, made while in Government.

What exactly was wrong with the original proposal? The answer is quite clear, that the Bill submitted by Fianna Fáil would have been impartial while the present Bill is designed to kill the spirit of the original Bill and to load the dice in favour of the Government's carefully selected nominees for judicial office. There is an air of unreality in the requirement imposed on the board. I refer to section 16, under which the board will have a duty to recommend to the Minister at least ten names in respect of each vacancy for a judicial office. It is proposed to create an additional three High Court judges and seven Circuit Court judges. On the basis of this statutory requirement, the board will have to recommend the names of at least 70 members of the Bar, which is slightly less than 10 per cent of the profession. If one excludes the number of barristers who have less than ten years' experience — and who are not, therefore, eligible for consideration — we may find that the figure of 70 barristers represents about one quarter of those who are eligible for the Bench. By widening the net the Minister is deliberately undermining the more considered recommendation in the original Bill where the board was given an option of recommending three, but not more than five, persons for a vacancy. There can only be one conclusion, the Minister will decide who the judges are.

While my party stressed the independence of the courts, which was subsequently validated by its hands-off approach to the Judicial Appointments Advisory Board, the Government has made its intentions clear. It wishes to control the board charged with the recommendation of appointments. Therefore, its recommendations to the President will become predictable. I stress that I recognise the sovereign duty of the Government to make the appointments in accordance with Articles 13 and 35 of the Constitution. The position whereby ten names are submitted to the Minister represents nothing less and nothing more than window dressing as we approach Christmas.

The Government's claim that it is doing all possible to ease the burden imposed by the increased usage of courts facilities has a hollow ring. Deputy Spring and his party sat in Government with Fianna Fáil from January 1993. I quote from the Fianna Fáil and Labour Programme for a Partnership Government 1993-97 to remind the Tánaiste, his Ministers and his party, as follows:

We believe the independence of the Courts must be enhanced. We will establish a Judicial Commission comprising the Presidents of the Courts, and the Attorney General. The Judicial Commission will be independent and will examine and make recommendations to Government on:

(a) Overall management of the courts and the streamlining of court services,

(b) The fixing of the courts' financial needs for submission to the Oireachtas and the fixing of court charges,

(c) The review and reform of Court practices.

Some recognition was given to this policy document in the Government's agreed policy published in January 1995. This document envisaged the establishment of a commission as the manager of the courts as an independent and permanent body with financial and management autonomy but, as usual, nothing has been done.

My party published a Courts and Court Officers Bill in November 1994 and I am not saying it was a perfect example of what such a Bill should contain. Because it was rushed we have to recall it was an urgent imperative for the Labour Party but it was headed in the right direction. It included a provision for a courts commission to advise the Government on the organisation and management of the courts and courts service. It was the intention of Fianna Fáil that a courts commission should be established as a matter or urgency. The Government's response, in keeping with its overall profile, was to do nothing.

This Bill is a disappointing successor to an admittedly less than perfect progenitor. It is well known that last year the Tánaiste and his party insisted on the introduction of a less than perfect article instead of waiting for a more carefully analysed product. This Government has no such excuse. It has been in office for almost a year and the groundwork for the Bill had been proposed by the Minister's predecessor in office.

We have witnessed procrastination by the Minister whose sole contribution to the crises involving the administration of our judical systems has been to assure us that she was considering the matter. We have experienced a full year of what I can only describe as masterly inactivity. Absolutely nothing has been done in the past 12 months. There is no provisions in the Bill for a courts commission. The Minister has decided to make that a separate issue. In recent weeks the Minister announced she had established a working group to review the operation of the courts. Why did that take so long? Fianna Fáil's Bill provided for such a committee.

It did not.

I assume it will take six to eight months before the committee completes its deliberations and, presumably, many more months will elapse before the Government gets around to amending its proposals. Meanwhile, our citizens' demands on our courts for their constitutional entitlements to have their cases litigated are denied them. The delay in processing cases, both civil and criminal, is scandalous.

In 1988-89 a total of 9,839 civil bills were processed through the Dublin Circuit Court office. That figure escalated to almost 13,000 in 1993-94. The Minister informed us on 25 May last that, as of 22 July, there were 8,710 cases listed for hearing in the Dublin Circuit Court. One must assume that by the end of this year that figure will have ecalated to 20,000 and beyond. The Minister also informed us that the average length of time between the date of notice of lodgment of a notice of trial and the date of hearing of a civil case in the Dublin Circuit Court was 21 months. I can inform the Minister that the 21 months has become two years. For High Court personal injuries actions in Dublin there is a wating list of almost three years and in Cork, Limerick and Galway the delay is critical. It is extremely difficult to accept that the Government is intent on reducing the backlog of cases. The increase in the number of judicial appointments must go hand in hand with the coherent development of a courts management system.

The Bill amends the 1977 Courts Act by increasing the number of permanently assigned Circuit Court judges in Dublin to ten. That is a sound idea but there is a problem. Unfortunately, there is no facility in the Four Courts to accommodate any extra judges, either High Court or Circuit Court. The Minister had advance warning of this and, despite that, she and her colleagues in Government — that includes the Tánaiste and the Minister for Social Welfare — spent a year in a nightmare dungeon of indolence, opulence and indifference.

New courts accommodation is urgently required in Dublin but before it is either built or premises are acquired the country must wait for the recommendations of the working group whose brief is to advise the Government on the establishment of a commission on the management of the courts. Presumably the commission, which may not sit for another year, will then take a further year to provide the additional facilities. By the time the new accommodation has been provided, the backlog will have increased to perhaps three or four years, yet on 8 June last the Minister told the House that the Courts and Courts Officers Bill would contain measures to deal with the need to tackle the backlog of cases to be heard in all the courts.

The Bill contains only half measures to tackle the problem. By removing section 29 providing for the courts commission, the Minister has emaciated the 1994 Bill and the House is left to debate what can only be described as an inadequate measure. That leaves Fianna Fáil with serious misgivings about the Government's true intentions. Without the provisions of a courts commission the Government's intentions have been unmasked and the purpose of this Bill is to ensure that the Government gets its nominees onto the Bench.

The abandonment of a statutory courts commission is another marker for the Labour Party, another dashed promise, another illustration of a battle with its conscience which its conscience lost, another blemish on the steel mirror of openness and transparency it heralded as a new dawn which never broke and never will while the Labour Party is in power.

One way to get around the inadequate court facilities in Dublin is to provide a High Court judge to be based permanently in Cork. The High Court sits in Cork for personal injuries actions for a period of nine weeks each year. In Limerick and Ennis the court sits for six weeks while in Waterford the period is four weeks. That comprises a total of 19 weeks of sittings by two judges for each sitting. Additionally, the High Court spends two weeks annually in Cork hearing appeals from the Circuit Court. For the south western circuit, comprising Kerry, Limerick and Clare, the period is almost two weeks. Waterford has a similar period which has the High Court sitting for six weeks on appeals or 25 weeks per annum for those counties. As the legal year, by which I mean the number of weeks the courts are in session, of 37 weeks is shorter than the calendar year it will be realised that the High Court is involved in these counties for most of the legal year. In those circumstances, I strongly advocate to the Minister that there is a need for a High Court situated in Munster.

We are all well aware of the hardship caused to citizens who are forced to wait for seemingly interminable periods to get their compensation. Many of them are having to settle their actions for considerably less than full value because the delay imposes an unbearable degree of hardship on them. The beneficiaries are the insurance companies who, despite their protestations, continue to make record profits annually, and let nobody be under any illusion about that.

The appointment of extra judges for Dublin is of little use to those whose matrimonial problems, for example, are being litigated in court. There are approximately 600 judicial separation cases listed for hearing in Dublin alone and, with the passing of the recent referendum, it is clear there will be even more cases. I understand that the court list is full until this time next year. If there are no court facilities for additional judges, this Bill, with its inadequate measures, would only amount to a mockery of justice.

For some reason I can never understand — I declare my interest in that I am a solicitor — the present position in Irish law is that solicitors may not be appointed to judicial office in Ireland except to the District Court. At present, under the Courts Supplemental Provisions Act, 1961, only a person who is for the time being a practising barrister of not less than 12 years standing is qualified for appointment as a judge of the Supreme Court or the High Court, and only a person who is for the time being a practising barrister of not less than ten years standing is qualified for appointment as a judge of the Circuit Court. This also applies to certain other judicial or quasi-judicial offices.

While I welcome the provision which will allow solicitors to be appointed to the Circuit Court, and congratulate the Minister for endorsing Deputy Geoghegan-Quinn's proposal. I strongly believe that higher courts should not be the preserve of only one branch of the legal profession. The ban on solicitors becoming members of the higher courts is essentially based on the view that one should have experience as an advocate in the higher courts before being appointed as a judge of the higher courts. This is a patently unsound argument. If applicants can demonstrate that they have the required intellectual ability, experience, knowledge and character, they should be regarded as qualified for appointment. This is the view of the law society of England and Wales and of the Incorporated Law Society of Ireland.

While experience as an advocate is desirable — I am not denying that — it should not be regarded as a sine qua non for eligibility. The best advocates do not necessarily make the best judges and it has to be stressed that some of our best judges did not have distinguished careers as advocates. The Fair Trade Commission endorsed the view that experience as an advocate should not be the sole criterion for eligibility for judicial office. The Law Society of England and Wales supported this view and pointed out that there could be disadvantages in not selecting people who have vast experience of dealing with clients directly.

Heretofore and under the provisions of this Bill, 80 per cent of the legal profession here is excluded from the possibility of ever being appointed to the higher courts, irrespective of their ability, individual merit, academic qualifications or standing or experience within their own profession. This is unacceptable and downright ridiculous. It is ironic that Ireland was the first jurisdiction in these islands to give unlimited rights of audience to solicitors in courts. That change was brought about as far back as far back as 1971 under the Courts Act of that year. I do not have to reiterate that things have changed dramatically since 1971. Nowadays solicitors specialise in particular areas of law and some have become acknowledged experts in their field and do their own opinion work. In addition, many solicitors would happily act as advocates in the higher courts but genuinely feel inhibited from exercising their right of audience because the Judiciary in the higher courts are invariably former barristers. The Fair Trade Commission acknowledged this difficulty in its report and put its view as follows: "We believe that the presence of former solicitors as judges would encourage more solicitors to engage in advocacy since they may well be partly inhibited from exercising their right of audience at the moment because all judges are former barristers, and the possibility of judicial appointment for solicitors/advocates also might encourage more court appearances by solicitors."

In virtually all other common law countries where there continues to be a divided profession of solicitors and barristers, solicitors are eligible for appointment of judicial office on a much wider basis than applies here. This is so in the Federal States of Australia, in New Zealand and, in general terms, in England and Wales as well. In Northern Ireland solicitors are eligible for appointment at the level of Circuit Court but there are legislative proposals to amend the law there to bring it into line with the current law in England and Wales. This will mean that solicitors in Northern Ireland will be eligible for appointment to the higher courts. In Scotland, solicitors with rights of audience in the High Court are eligible for appointment to judicial office in that court.

The law should be changed to make solicitors eligible for appointment to all judicial posts here. This would have the desirable effect of eroding the present rigid lines of demarcation between solicitors and barristers and help to bring to an end any restrictive practices currently extant in the professions. The exclusion of solicitors from appointment as High Court or Supreme Court judges is a restraint of trades, excludes new entrants, and is contrary to the common good.

The rigid lines of demarcation which I have previously referred to between solicitors and barristers should be ended and the professional education of lawyers should be unified in one law school. There should be freedom of movement between one profession and the other. This would open up new opportunities for young lawyers who are at present corralled into one profession or the other irrespective of their talents and ambitions. Movement between the professions is a desirable objective which can be achieved in this Bill if the political will exists. If the Minister refuses to entertain my proposal then she is merely underpinning the Bar's monopoly of advocacy in the higher courts and of the appointment of judges to them. Nothing highlights the anomaly of the present position more than the fact that one must be a barrister to be appointed as a legal assistant in the Attorney General's office but a solicitor can be the Attorney General. That is extraordinary.

It is clear that rules restricting movement between both branches of the profession and excluding the appointment of solicitors to the higher courts are outmoded and archaic and have no place in a modern democracy. For fear the Minister might be feeling optimistic or more light-hearted following my contribution on the elevation of solicitors to the higher courts, let me assure her that I am not interested.

I was just thinking what a good advocate the Deputy is.

It is desirable that a person seeking judicial office should attend a course of training after being appointed and not before the appointment is made, as originally required. The new requirement, contained in section 19, is to be monitored by the Chief Justice and the Presidents of the other courts who will know from experience how these courses should be conducted. I suggest that newly appointed judges might listen to such worthy organisations as the Victim Support Group who are helping in large measure to assist victims of crime.

I welcome the changes proposed for the Master of the High Court. The function of this office is not generally known or appreciated. I am glad that the Master will be entitled to exercise additional powers and functions and I expect that this change will not only enhance the office but will greatly assist the High Court in the exercise of the jurisdiction conferred on the Master.

I agree with the proposals contained in sections 41 and 42 relating to the High Court on circuit. As the amount of time for the attendance of the High Court in any one town is very limited, the transfer provisions of section 42 in particular are sensible. I agree also that in special cases an appeal to the High Court on circuit should be heard by the High Court sitting either in Dublin or in another town sitting in the circuit. This will reduce the time element in waiting for the appeal. Allowing for a transfer to either Dublin or another town on the circuit should help to facilitate litigants and their witnesses. This procedure should be encouraged and I hope it will help to reduce costs.

Section 43 is an important provision. There are two courts of the European Union. The Irish judges sitting in Luxembourg have acquired a unique experience in helping to achieve a jurisprudential fusion that is unique in the world. We must now recognise that the Irish members of these courts can bring a special contribution to our courts.

Section 45 (1) proposes that the Rules Committees of both the superior courts or the Circuit Court may make rules to compel parties to disclose certain information without the necessity of making an application in court. We follow the common law tradition and where a person prosecutes a case, be it criminal or civil, the onus remains on the prosecutor to prove the case. Some of the proposed disclosures may be challenged in court. There is a difference between, on the one hand, seeking particulars of a statement from the Department of Social Welfare indicating what payments have been made to a plaintiff subsequent to an accident and, on the other hand, requiring a party to a case to give the name of a witness or to produce the statement of an expert whose evidence may relate to a medical opinion or requiring an engineer to divulge information of an evidential nature which may have a vital bearing on his client's case.

The principle of privilege from discovery of documents prepared either during or in anticipation of legal proceedings is long established. There are numerous High Court precedents recognising the existence of the privileged status of such documents. Equally, the rule against hearsay evidence is a centuries old tradition which the Minister proposes to abolish. I oppose section 45 which seeks to abolish the evenlykeeled law of evidence which has served its purpose and which I regard as a cornerstone of our laws.

I cited my objection to earlier proposals to reduce the retirement age of judges to 65. It takes some years for a judge to acquire the additional insight that is required of the holder of such an office. Most judges are well into middle age when they are appointed. Many judges have delivered remarkable judgments when they were 70 years and over. There is to be uniform age of retirement of 70, and this is a sensible compromise.

Barristers are no longer to wear a wig. I will shed no tears at its departure. The wig served its purpose and its presence has become an anachronism. I would also recommend to the Minister that the apparel of the Bar should be replaced by a simplified gown more in keeping with the 21st century. The Bill makes no reference to judicial apparel. The section should be amended to make such a provision. Apparently, barristers will no longer wear wigs in court but judges will continue to do so, and there is no sanction in the Bill which could be imposed on a barrister who arrives in court wearing a wig. Therefore, I assume that the judge, although himself wearing a wig, will hold the barrister in contempt if he comes into court wearing a wig.

The Deputy could say there would be wigs on the green.

There will be wigs on the green. It appears that way in many courts. If wigs are no longer relevant for practice at the Bar, it makes little sense to retain the wig on judges' heads. The amendment should provide for a new form of judicial gown such as that worn in the European courts or at the International Court of Justice sitting at the Hague. If this proposal were to be incorporated in the Bill, it would provide a sense of direction for the Bar who could then feel entitled to introduce a similar change in their own attire. The Circuit Court rules state that judges shall be addressed as "a Thiarna" or "My Lord". We do not have lords but we have judges and they should be addressed as such. Given that we are a modern young Republic in the European Union I strongly believe that judges should be called judges, not "My Lord".

I am more disappointed with what has been omitted from the Bill than with what has been included. There is no justifiable reason for omitting a provision in regard to a courts commision. If the Minister was satisfied that she should not include such a provision in the Bill then she should have appointed the working party at a much earlier stage. If setting up a courts commission is recommended — and the House knows that such recommendation will be made — then it will require statutory recognition and we will have to debate yet another Bill, thus prolonging a pressing provision.

The Bill has been altered in many material respects — some of these have been for the worse — since it was first deemed by the Tánaiste to be an urgent imperative. I wish to remind him and his party that the poet of the Yukon, Robert Service, once wrote, "A promise made is a debt unpaid". Given that the Tánaiste has not kept his promises to the electorate, as a destroyer is with a lighthouse, he is on a collision course and they are looking for a head.

When the Bill was published on 16 November I welcomed it as it was long overdue and the State urgently needed to tackle the absurd delays and backlogs which have dogged the justice system over the past ten years by the appointment of new judges and reform of the courts generally. The delays in the administration of justice have caused injustice and contributed to the high cost of litigation.

When I examined the Bill in detail my optimism turned to gloom. Some of its major provisions are very disappointing while those which attempt to depoliticise judicial appointments have been substantially diminished since 1994 when the previous Bill was introduced. That Bill was born out of chaos and the need to put some respectability on the deal agreed by the Tánaiste and others at Baldonnel. At the time I believed that the proposal to introduce reform in the appointments system for judges was one of the good measures to have come out of that chaos. During the Second Stage debate of the 1994 Bill there was cross-party support for its substance and the motivation behind it. The débâcle surrounding the appointments of the Presidents of the High Court during that time brought politics, the Judiciary and the legal profession into disrepute; it was an unseemly affair during which the names of possible nominees for judicial office were bandied about in a very political way. It would be a welcome step in politics and law if the appointments of judges could be divorced from party politics. This Bill is disappointing in the sense that it will not divorce party politics from judicial appointments.

It is ironic that the 1994 Fianna Fáil-Labour Bill was regarded by Fine Gael and Democratic Left as failing to provide a sufficient degree of accountability. The then Fine Gael spokesperson on Justice, Deputy Gay Mitchell, said, "There is a burning desire in the hearts of the people for greater accountability. It is time that became a fire in the hearts of the Members of this House". I wholeheartedly agree with those sentiments. I miss Deputy Mitchell's presence on this side of the House where he made such heartfelt pleas for accountability. It is a pity that Fine Gael's then burning desire has been transformed into this damp squib of a Bill which is worse than the previous Bill.

The single most important reform the Minister is attempting to introduce is depoliticising the judicial appointments process. The controversy surrounding the appointments of the Presidents of the High Court in 1994 demonstrated with mortifying clarity the need to provide for a system of judicial appointments which was demonstrably free from political bias. That squabble diminished everyone involved and it was mortifying to see people's names bandied about politically.

The principle of judicial independence is central to our democracy. In the main our judges have served us extremely well and have observed the principle of judicial independence. However, there is something very wrong with a system of appointments when the first point of inquiry by people speculating as to who will fill a judicial vacancy is the political affiliation of prospective candidates. While political activity should not be a bar to appointment to an important public office such as that of a judge — it is a civil right protected in our Constitution, while some might say it is a civic duty — it should not be the reason for the appointment. For many years the dignity and authority of the Judiciary has been undermined by the linking in the public mind of judicial appointments with political services rendered. Such a situation should not be permitted to continue.

The 1994 Bill provided for the establishment of a judicial appointments advisory board which would sit in committees and would, when a judicial office fell vacant, submit to the Minister a list of three-five nominees who would be suitable for judicial office. It also proposed that the final decision would be made by the Minister as required under the Constitution. This mechanism was not perfect and the committee system seemed cumbersome but it was a novel idea. By and large all parties could live with the Fianna Fáil-Labour proposal for the reform of judicial appointments. Deputy Gay Mitchell had no problem with the proposal although he lamented the lack of accountability of the proposed board. With the possible exception of Deputy Gilmore, who seemed to think the number was too high, none of the Deputies who spoke during the debate had any real problem with the proposal that the Minister should make her decision on the basis of at least three to five names supplied by the board. I would have expected this Government, which came into office on the back of a crisis surrounding a high court appointment, would have been keenly aware of the need to completely divorce the judicial appointments process from party politics.

Given what appears to have been a broad acceptance by the House in 1994 for a board consisting of senior judges and representatives of the legal profession which would present the Minister with three to five names, it seems extraordinary that we are presented with this proposal. The composition of the judicial appointments board has been radically altered. Perhaps the previous Bill could have been criticised on the basis that the board consisted entirely of lawyers, however, this could easily have been remedied by an amendment requiring the appointment of a senior civil servant, such as the Secretary of the Department of Justice or somebody from the Institute of Public Administration and this would have added much needed expertise to the board without politicising it or undermining its status as an impartial body.

Under this Bill, however, the composition of the board has been so radically altered as to completely undermine its status as an independent and apolitical body. The board has been transformed into something so political and so crammed with people with party political affiliations as to call into question its very purpose. It is proposed to add the Attorney General to the board. I appreciate that the Attorney General is an independent officer under the Constitution——

It is also proposed to add the President of the Bar Council and the President of the Law Society.

The Minister will have three appointees and the Attorney General and that is a very high percentage of the board.

40 per cent.

A good shareholding.

Experience shows that Attorneys General by virtue of the manner of their appointment are inextricably enmeshed with the politics of Government. The Attorney General is legal adviser to the Government. Attorneys General are political appointees and are highly likely to take a political view on the appointment that should be made. To appoint a person with known political affiliations to a supposedly non-political body is a nonsense and fatally undermines the capacity of the board to make independent and apolitical decisions. This is compounded by what is contained in section 13 (2) (c) under which three members of the board are to be appointed directly by the Minister. This is an extraordinary change. The section is silent as to what these people might be. The Minister has given some indications in her speech of the categories from which they may be drawn but the Bill does not require them to have any special skill, special knowledge of the courts or the legal system and does not require them to have any special insight into what it takes to be a good and fair judge. It is totally in the Minister's gift. The Minister has discretion to appoint anyone she likes, they may be people of excellent experience or of none; they may be political "babes in the wood" or diehard political hacks but all we know about them is that they will have 30 per cent of the board's voting power.

That is not all that is wrong with the Minister's proposal. Not only do we have an appointments board, 40 per cent of whom are political appointees of one sort or another but this highly political body is required to come up with not three to five names as originally proposed but with a minimum of ten.

Deputy Eamon Gilmore, now a Minister of State and I presume a supporter of this Bill could not have put it better during the debate of 2 November 1994 on the Courts and Court Officers Bill, 1994, Official Report column 1429 volume 446 when he said:

The concept of a judicial appointments advisory board contained in the Bill is acceptable in principle provided three criteria are met — first, that it covers all judicial appointments without exception; second, that the Government is prepared to abide by it and, third, that it is structured in a democratic way and is empowered to make specific recommendations to the Government, not a panel of three or five prospective judges given to the Minister who, in the time honoured tradition, may pick from it the person who is closest to the political party in power at the time.

A party that considered an appointment system whereby three to five names are put to the Minister to be open to abuse and termed the 1994 Courts and Court Officers Bill as "all white feather and no red rose" should now be happy to weigh in behind a system which requires a board — a board packed with the Minister's pals — to forward a minimum of ten names. In the course of her Second Stage speech today the Minister unconvincingly said that three to five "would unduly restrict the Government's discretion". The Minister, having fatally undermined the status, authority and independence of the judicial appointments board, having transformed it from a genuinely non-political body into a body packed with Government supporters——

A bit like the board of CIE.

——is now proposing to take its job away from it. Under the 1994 Bill the proposed appointments body was demonstrably free from political involvement. Furthermore it had a real function to perform: not only was it required to receive and scrutinise applications it was also required to weigh, consider and filter them. It was required to look at the totality of applications and come up with three to five suitable names. This limited number of names required active consideration of the merits and demerits of the applicants. Under this Bill the board will be required to come up with a minimum of ten names for each appointment. This is a huge number of names as has been pointed out and it could empty the bar library. In ordinary circumstances most legal practitioners would be hard pressed to come up with the names of more than five or six senior practitioners who would be willing and able to take on the onerous duties of a judicial appointment.

Many are willing.

Under this provision the board's main function will be to receive applications. It may occasionally have to filter out a non-starter but in the main it will be so hard pressed to come up with the requisite number of ten that it will simply pass on every application that satisfies the basic criteria. It will not consider, filter and weigh up the merits of one candidate against another. It will receive applications and pass them on to the Minister, in other words the board will be no more than a glorified post box.

The Minister will have plenty of choice with ten names for each appointment. Having received the list of names, the Minister will — as Deputy Gilmore said in November 1994 —"in the time honoured tradition pick from it the person who is closest to the political party in power at the time" and if she cannot find the right person from the list of names put forward she need not worry because under section 16 (6) the Government is under no obligation to select any of those candidates, so long as it considers them.

A nice little piece of window dressing coming up to Christmas.

This proposal not only fails to depoliticise the Judiciary but its approach is cynical and is a naked attempt to preserve the status quo in putting on a statutory basis the current arrangement where the Minister appoints whom she wants.

It was the same in your Bill. Do not give the impression it was something else.

The Minister is giving the impression that hers is something else.

We will thrash it out on Committee Stage.

It places on a statutory footing the link between politics and the Judiciary which former generations of politicians were embarrassed to admit existed. How can the Minister say the judicial appointments procedure proposed in the Bill is an improvement on what was proposed before? I cannot see how she can say it is more fair, more balanced, less political and more transparent when she is proposing that a minimum of ten names be put forward by the board. How can she say that a proposal which permits her to hand 30 per cent of the voting power of the board to her appointees is more fair and less political than the previous proposal? What is the purpose of forwarding ten names? Nobody now in Government suggested there was anything wrong with the proposal from the then Fianna Fáil-Labour Administration or that there was a problem with the system whereby a list of three to five names could be put to the Minister; nobody suggested there was a need for the judicial appointments board to include ministerial appointees among its members.

Another aspect of the Bill that mystifies me is the failure to deal with the Presidency of the High Court or with promotions in the Judiciary. During the Second Stage debate on the 1994 Bill there was unanimity that the Office of President of the High Court was an office which ought to be subject to the new appointments procedure. The then Opposition Member, Deputy Gilmore was particularly energised when he said, as reported at column 1421 volume 446 of the Official Report:

The most remarkable feature of the Bill before us is that although it emerges from the row over the Presidency of the High Court, and ostensibly it is to provide for new procedures for judicial appointments, it expressly excludes from its terms of reference the High Court Presidency. ... That is an omission which this House might hope to correct and certainly I will be tabling an amendment on Committee Stage to include the High Court Presidency,...

I hope I can rely on the support of the Minister of State, Deputy Gilmore, when I table similar amendments on Committee Stage. The Bill should deal with the appointment process for the President of the High Court and other courts. It should also deal with promotions within the courts system and there should be a provision to assist the Judicial Appointments Board to achieve a gender balance in the people it recommends. Surely a few women should be included in the ten appointments.

In many other respects the Bill represents a lost opportunity. It concentrates to little purpose on the manner in which judges are appointed but fails to deal with the conditions under which they serve. The courts system is the Cinderella of the public services. While judges in our superior courts are supposed to have the authority and status of Ministers, they do not have the support and back-up services of programme managers and so on. This matter should be examined. Our courts service would be much more efficient if judges were provided with proper back-up assistance. As this is the norm in other jurisdictions, it is ironic that we supply our judges with a ceremonial tipstaff — a crier — but not with proper research facilities.

In line with other public servants, judges should retire at the age of 65 and it is a missed opportunity not to have dealt with this issue in the legislation. There is no reason judges should be exempt from the normal rule that requires public servants to retire at the age of 65. At present the Judiciary has an increasingly youthful age profile but in 15 years' time our superior courts will be dominated by people of advanced age. Is this what we want? When the Minister stated she consulted widely with the Judiciary on this legislation, she may have consulted with them too extensively in regard to this provision. It is in the public interest that judges should retire at the age of 65. Their reservations about pension entitlements should not be a reason for the Government failing to grasp the opportunity to introduce a lower retirement age for judges. Pension matters could be dealt with without compromising the paramount public interest factor of putting in place a useful Judiciary not comprising judges over 70 years who are passed the intellectual and energy levels required to carry out their duties properly. The argument that many judges over 65 have a wealth of experience to bring to bear on cases could be made in respect of any person who has worked in a job for approximately 40 years. It is true of senior civil servants, teachers and nurses and, therefore, judges should not get special treatment. I do not agree with changing legislation to suit the earning patterns of the senior Bar and the pension concerns of judges.

I welcome the provision that allows solicitors to become Circuit Court judges. If solicitors are permitted to appear as advocates before all courts and are considered competent to be appointed as judges of the District and Circuit Courts, why should they be barred from appointment to superior courts? This is an anachronism in this day and age. Solicitors have a wealth of experience, particularly in the area of family law, which should be tapped. There is a crying need for judges with specialist knowledge in family law, particularly as divorce will soon be available in our jurisdiction. Many solicitors in Dublin alone appear in family law courts on a daily basis. Why deny them the opportunity to apply for appointment to the benches of the superior courts when their skill, knowledge and expertise is desperately needed? There is not parity of esteem between the two professions. By excluding eminently qualified solicitors from the possibility of being considered for judicial office, the Government is pandering to Bar élitism. This is a shame and much of the legislation reforming the courts and the justice system tends to pander to the élitism of the Bar. Now that the Government has bitten the bullet in allowing solicitors to become Circuit Court judges, there is no justifiable reason for excluding them from consideration for higher judicial office.

There is another glaring omission from the Bill in respect of the working group on the courts commission. The previous Bill proposed the establishment on a statutory footing of a commission to examine all aspects of running our courts. The appointment of such a body has been desperately needed for years. While the working party has been established by the Minister, because of its exclusion from the Bill it lacks a statutory basis. The commission should be put on a statutory footing under the provisions of the Bill.

Overcrowding in court lists has reached a crisis and the system is unable to cope with the numbers. The position has deteriorated significantly since the joint solicitor and Bar proposal was submitted to the Government two and a half year ago and is particularly acute in the area of family law. In a country that claims to value the family and has given many guarantees in that respect in recent times, it is unacceptable that battered women, abused children and men and women seeking justice in the area of family law may have to wait years to have their cases heard. I understand that more and more women are applying for barring orders and maintenance under the jurisdiction of District Courts rather than becoming involved in costly judicial separation actions which are outside their income capacity.

While it has not been mentioned in the Bill, the question of courthouses must arise when one speaks of the appointment of additional judges. Do we expect newly appointed judges to operate in the existing accommodation chaos? In other jurisdictions courthouses are important civic buildings which reflect their constitutional status, but many of them here are inadequate. In some rural areas courts sit in night clubs and dance halls and, in many cases, consultation facilities do not exist. While the proposal to appoint additional judges is welcome, where will they be accommodated? What services will be provided for them? The Minister must indicate the Government's commitment to providing accommodation and back-up services for those new appointees.

In the superior courts there is a pressing need for some sort of centralised authority, such as exists in Northern Ireland, to deal with the administration of the courts service. This would take an onerous administrative burden off the shoulders of our already overworked and hard pressed Judiciary. The Minister has already set up a working group under Mrs. Justice Susan Denham with a brief to ensure that the system meets the needs of today's society. This is welcome but it should be put on a statutory footing.

This Bill fails in its main purpose which is to divorce party politics from judicial appointments. This Bill is being rushed through all Stages so that a judicial appointment can be made without delay. There is a degree of ad hockery and a lack of forward planning. I sincerely regret that this is very much a dilution of the previous Bill which was one of the good things to have come out of the chaos of last November.

It is not. There is far more in it than in the last Bill. That is a travesty.

I welcome the Bill, which contains a number of important provisions. First of all it brings the courts system into the 20th century, and that is long overdue. We have a problem with long delays and more High Court and Circuit Court judges are required. The situation has come about because we have an epidemic of compensation cases and family court cases which did not occur up to ten or 15 years ago. No matter what happens to anyone anywhere, compensation is immediately sought and until such time as we address that issue long court delays will continue.

I listened with great interest to Deputy John O'Donoghue.

Another lawyer.

Another lawyer, yes.

I am glad you said lawyer.

Deputy O'Donoghue was so concerned about this Bill and there were so many things wrong with it that I wondered what Fianna Fáil had done while in Government to eliminate the problems that this Minister took on board almost 12 months ago. I suggest that Deputy O'Donoghue's party did nothing.

That is wrong.

It is my view. I cannot understand the attitude of Deputy O'Donoghue who suggests that 12 months ago, when Fianna Fáil was in power, nobody was in jail, there were no court cases and no rapes or murders.

There were.

How times have changed.

The Deputy is becoming cynical.

Not at all, I am just facing the facts. Deputy McGahon should know me better than that. There are long delays and they are getting worse but at least the Minister has faced reality in appointing 17 judges.

I agree totally with Deputy O'Donnell that judges should retire at 65 years of age. Everybody working in the Civil Service and local authorities must retire at 65.

We do not.

What do judges have which makes them so special that they can go on and on?

They are like politicians.

Speak for yourself.

Like some of the old Chinese leaders.

They do not go senile.

I did not realise that. The Bill is a welcome step in dealing with a situation which has developed over the past six or seven years. There is a demand for statutory sentencing because while one sentence might be imposed for a crime in one area, a different sentence can be imposed for the same crime by another judge in another court area.

The public seems to think that if you are wealthy you can appoint the best counsel, barristers or solicitors, and that is a cynical attitude.

There are two of them opposite us.

I am not talking about those two in particular.

They are the best.

I am saying that if you have enough money you can virtually get away with anything. There was a case in America quite recently which we will not go into. It indicates that the power of money is effective and that should not be the case.

If statutory sentencing came into effect there would be a greater acknowledgement by the public that the courts are fair and honourable in handing down sentences commensurate with the crime involved.

Instead of being laughable.

Perhaps so. This Bill is welcome and will take us into the 20th century. The Minister must be commended for introducing this Bill and facing up to the reality of what has been happening over the past number of years.

The Bill will give the Garda much more power in dealing with drug enforcement. That is long overdue. Every village, town and city is now virtually awash with drugs. At least, the Garda can now have a greater involvement and can become more effective in bringing drug pushers to court more easily.

Under the terms of the Bill, gardaí will not have to spend so much time in court because, by swearing an affidavit, they can be out doing what the public expects them to do. Gardaí spend far too much time in courts giving evidence day after day.

The Bill also provides for certain cases to come before local courts instead of being heard in Dublin, thus cutting the costs involved. One case — which I am not going to go into in detail but which arose near my home area — involved 60 witnesses who had to travel to Dublin for near two weeks. What did it cost the State? There was no conviction but the point is that the case should have been heard where the people came from.

The removal of wigs should have taken place long ago to make courts more pleasant places for witnesses. It has already come into effect for cases dealing with children. The wigs should be removed in all cases because they create an impression that those wearing them are very special and are above ordinary people, which I do not accept.

The Deputy does not like lawyers.

I did not say that. I said I do not like people with wigs, which is a totally different thing altogether.

There are a few in here and they are not lawyers.

Does that include judges?

Is that only judges? I see a lot of hands going to heads.

Debate adjourned.