Courts and Court Officers Bill, 1995: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

I am pleased to have an opportunity to contribute to the debate on this Bill. Because of the extremely serious background to the introduction of this Bill, and the fact that one of the most effective Governments in the history of this State went out of office on account of a related issue, I would like to initially comment on the origins of it. Towards the end of last year the appointment of the President of the High Court became a matter of serious controversy between the two partners in Government, and, in particular, between the Taoiseach and Tánaiste. The Tánaiste was particularly concerned about the appointment of the Attorney General to the Presidency of the High Court. The main cause of his concern seemed to be that the suggested appointee was too conservative and without experience as an ordinary judge of the High or Supreme Court.

In order to narrow any possibility of serious controversy in the future regarding senior appointments to the Judiciary, it was agreed between Fianna Fáil and Labour that a more formal legal framework should be provided for use in the future management of such appointments. Such a move was strongly supported by both parties and drafting of the appropriate legislation was virtually complete at the time of the change of Government.

The question therefore immediately arises now as to why there has been a delay of 12 months in bringing the rainbow coalition version of the Bill before this House. Since the Labour Party was fully involved in bringing the previous draft to near completion, why has it taken at least one-third of the life time of this Government to bring the Bill before us? To put it mildly, it is extremely difficult to reconcile the headlong haste of late 1994 with the leisurely pace adopted in dealing with this legislation in 1995.

The first question to be addressed when examining the 51 sections, many sub-sections and the schedules of the Bill, is has the delay been worthwhile and has it resulted in any refinement of excellent legislation? The answer unfortunately seems to be no on both counts. While some aspects of the proposed legislation are good it is extremely disappointing in general. It is particularly weak in dealing with senior appointments of the type which caused such serious controversy and damage last year. Taking the various provisions of Part IV as a whole, can anyone argue with conviction that some value-added component has been added to the process?

Part I of the Bill involves transferring the responsibilities of the Court of Criminal Appeal and the Courts-Martial Appeal Court to the Supreme Court. At first glance this seems to be a sensible proposal and may result in the more efficient operation of these courts. Similarly, Part II seems to be largely without controversy. The increase in the number of ordinary members of the Supreme Court is welcome and signifies an acknowledgement of the massive overload of these systems at the present. The decision to allow the division of sittings of the Supreme Court is also a practical acceptance of the implications of increased throughput and workload.

The increases in the number of judges of the High, Circuit and District Courts are also welcome as the credibility of our court system is continually undermined by understaffing.

Part IV deals with judicial appointments and is without doubt the kernel of the legislation. If the happenings of last year are to mean anything, then this element of the Bill should provide a clear example of openness, transparency and accountability in senior State appointments. Is this the case?

The answer is unfortunately a very definite no. The proposed structure seems as likely to cause controversy and confusion and result in a new standard. Despite the various provisions of sections 12 to 23, the new advisory board seems to have little teeth in the final analysis. I am surprised it is proposed that the Government, through the Minister for Justice, may directly appoint as many as three of the ten person board as well as the Government appointed Attorney General as anex officio member. In the context of last year's controversy, this simple initial proposal could easily be interpreted as cynical and almost unbelievable.

Similarly, the manner in which the proposed list of candidates is drawn up raises a number of questions. I am surprised to note the general nature of the board's procedures. Other than employing a number of routine techniques for recruiting staff, for example advertising, head-hunting to a certain degree and interviewing candidates, what precise value-added qualities does the Bill bring to the process? For example is there any attempt to specify minimum professional qualifications? Other than refer to minimal experience requirements, the Bill does not set precise minimal standards in the appointment of new judges.

In terms of fair play and justice I have serious reservations regarding the provision which allows the board to consult persons concerning the suitability of applicants. Since the board is to operate with total confidentiality, what safeguard has an applicant to ensure that his or her candidacy is not seriously undermined by unknown parties?

The ultimate task of the board seems to be simply to provide a crude shortlist to the Minister which he, or she, may or may not decide to use. The provision in section 16 (6) that "the Government shall firstly consider for appointment those persons whose names have been recommended" does not seem to offer much in terms of real power to the Advisory Board which has laboured to produce the shortlist of ten applicants. Presumably the board cannot express its order of preference for the individuals on the shortlist.

Another matter that concerns me is the extremely vague guidelines given to the board by which it must presumably assess all applicants that come before it. For example, it must ensure the applicant has a degree of competency appropriate to the position of judge. In what manner and at what cost in terms of time is this task to be carried out?

Since the proposed Advisory Board is to include the most senior figures in our judicial system, will the requirements of section 16 (7) place a major further workload on the shoulders of the already hard pressed individuals involved? How is the group to fully and fairly assess the character and temperament of each applicant? It seems in reality such tasks will of necessity be delegated to the administrative support staff of the Advisory Board which would not be consistent with the objectives of placing the overall process in the hands of the most senior figures in our judicial system.

While I can understand the purpose of section 17 which removes sitting judges from the consideration of the board, it further dilutes the relevance of the work and recommendations of the Advisory Board.

I welcome the proposals in section 19 which oblige newly appointed judges to undertake, where considered necessary, further courses of education and training subsequent to their appointment. If our Judiciary is to maintain the necessary mastery of both domestic and European Union legal developments, it is critical that the necessary resources are allocated and provisions are made to ensure the maximum possible degree of participation in continuing education.

Anyone who followed the dramatic events of November and December last year, will be surprised when they read section 23 which deals with the appointment of the Chief Justice, President of the High Court, President of the Circuit Court and President of the District Court. It simply states that the Government must have "regard first to the qualifications and suitability of persons who are serving at that time as judges".

In general, I welcome a number of provisions which deal with the Master and Taxing Master of the High Court, the Circuit and District Courts. As a layman I am somewhat surprised at the provision in Part X, section 68 (3) which involves both the Chief Justice and the President of the High Court in determining the number of judges sitting on a High Court circuit. I welcome the specific provision of resources for further training in section 80.

I support specific elements of the Bill while I am extremely disappointed with the provisions on the appointment of new members of our Judiciary. Despite the best intentions of those who drafted this legislation, the net effect is likely to be either trivial or act as a source of confusion and controversy. Any pretence at serving the cause of openness and transparency seems to have little substance.

I am glad of the opportunity to contribute to the debate and congratulate the Minister for Justice on introducing this important legislation. It is interesting, given the changes in Irish law, the increased volume of legislation passed in the House, the increased access to the courts which the people have and our tendency to use the law, the increasing amount of EC legislation which is interpreted in the courts, the general change in social attitudes and the increasing number of family law cases which come before the courts, that the court system has been unreformed for so long. The Minister for Justice has inherited a system which badly needs to be overhauled and modernised and is in need of a new framework as well as additional personnel and resources.

It is understandable that Fianna Fáil would ruminate over this legislation given the role of the original version in the events surrounding the change of Government, but its ambivalence is not justified. The Bill has been streamlined. The suggestion that there should be an extra tier, a court of appeal, has not been incorporated in this Bill as there is no necessity for it. The issue is being dealt with in a different way.

The Bill covers a range of issues, including the appointment of judges and the establishment of a new body to play a part in that process as well as administrative matters which remained to be dealt with for many years. The many Fianna Fáil Ministers for Justice failed to do the work that needed to be done in the courts system. The public is very much aware of its inadequacies.

For many years I have listened to women speaking about the barriers to be overcome in gaining access to the courts, the formalised rituals they find off-putting and the delays. Frequently, cases are adjourned which, in turn, can lead to others much further down the list, unexpectedly having to attend court. This caused problems for the public and, unfortunately, brought the law into disrepute as there is a perception that justice is not being done. I welcome the Bill for all these reasons.

Various changes have been made since 1927, but this is the first time legislation as strong as this has been introduced. It is strange that we have had to wait so long for it. Legal matters were a major part of the debate prior to the divorce referendum. This illustrates the central role of the legal system in introducing social change. There is a necessity to ensure that the justice system is strong, well administered, organised and speedy.

The passing of the divorce referendum will generate an extra volume of cases. There are already long delays in bringing civil and criminal cases to court due to the shortage of judges. For example, in the Dublin Circuit Court there are delays of up to two years between the date a case is listed for trial and the hearing date. When one considers what this means for people on matters central to their lives, one begins to understand the extreme stress this causes.

It is not easy for the judges, barristers or solicitors working within such a system either. They have had to tolerate bad working conditions and extraordinary pressure. There has been much criticism of the legal system, but this is the other side of the coin which also has to be considered.

Delays in criminal cases are particularly damaging. Offences can be committed while an accused is on bail, witnesses can be compromised and the recollection of events can diminish. The administration of justice requires that the courts operate efficiently. The old maxim "justice delayed is justice denied" is apt in the unacceptable circumstances which have prevailed.

I welcome the decision to appoint more judges in the High Court, Circuit Court — where there are long delays in hearing civil and family law cases — and District Court. A number of groups have inidicated to me that they believe the appointment of seven extra judges to the Circuit Court will do little to eliminate the backlog if the available facilities are not improved. Particular problems have been encountered in the area of family law.

The Bill provides for a welcome increase in the number of judges in the Supreme Court from five to eight, including the Chief Justice. It further provides for the division of the court into groups of three and five to enable two appeals to be heard at the one time. This is necessary given the extra demands on the court at present. It is overburdened with civil appeals from the High Court, particularly with regard to personal injury actions. This often results in a two to three year delay for appellants.

Having listened to the advice of the independent commission, I hope the Minister will ensure that more women judges are appointed as the judicial system is overwhelmingly male dominated. This needs to change. As more and more women are entering the profession and the barriers and glass ceilings have, thankfully, been removed, it is important that more women are appointed.

There was an extremely interesting discussion on UTV last night on the question of whether the justice system in the United Kingdom is race blind. It proceeded along the lines of whether juries should be comprised of people of different races to ensure justice, so that where an Indian comes before the courts his peers will play a role in reaching a judgment on the question of guilt. There has been a judicial review in many states in America of the ways in which their courts have been gender blind. Such an analysis should be carried out here.

In this context the question of training of judges is relevant. Thankfully, the system is beginning to change, but we should not become too complacent. It took a long time, for example for us, to take seriously crimes against women. Only in recent years have we seen legislation tackling issues such as marital rape and domestic violence. We have to keep the lens on the justice system as we do on many other areas.

This Bill for the first time provides legislative support for the concept of ongoing training and education of judges. This is a realistic recognition of the need. I have taken part in discussions in which it was argued that judges did not need training. It is an extraordinary assumption that, unlike others, judges are immune to the need for training. I welcome the fact that the Bill finally lays that assumption to rest and that resources will be provided.

The new regulations which allow expert witnesses' reports to be dealt with more speedily are important. They involve streamlining the use of expert witnesses in courts. The use of such witnesses has got out of hand and will have to be evaluated and monitored. This should mean that costs will be reduced and that the process will be speeded up for individual claimants.

The increased powers of county registrars, and more strict criteria on decisions which go to court, will, I hope, deal with the most unsatisfactory situation which frequently means that people do not know if their cases will be reached on a particular day. The increased powers involve a steamlining of procedures which hopefully will mean that when people go to court it will be a more predictable experience for them.

I welcome the fact that solicitors can now be appointed judges of the Circuit Court. Solicitors would strongly argue that the Minister should not stop at this point and that they should also be appointed to other courts. They would argue that appointees should be well versed in and have a good sense of the law, should be of good judgment and should have good managerial ability. Solicitors are no less qualified on these scores than barristers and they might score more heavily on matters of managerial and administrative experience.

If a person is not a solicitor or a barrister — Deputy O'Donoghue has the advantage here — it is hard to grasp the complexities between the two professions on this. The issue is worthy of teasing out and discussion. I am not sure that any group should have an absolute monopoly and the Bill changes the approach to appointments by providing that solicitors can be appointed to particular courts. This is an important change and will be welcomed by many.

The issue of the wearing of wigs generates extraordinary emotion. What is important is not whether barristers wear wigs but that we make the law more accessible and that people develop confidence in the speedy administration of justice. One would have to be an insider to grasp the high emotion generated by this issue. There is a feeling that this matter should not be prescribed in law but should be left to the Bar Council or the legal profession itself to regulate. The Bar Council has already changed its ruling on this and it is left to individual barristers to decide how to tackle it. The issue is to do with formality and accessibility. For those outside the legal profession wigs are probably off-putting, formalised and unusual whereas they are taken for granted by members of the legal profession.

There has been criticism of the proposed judicial appointments advisory board. People appointed to the board, particularly the three Government nominees, should have expertise in areas like consumer, equality and human rights. There is concern, given that the Minister is being given flexibility, that the system of appointments could be abused. It is important that people from outside the legal area should be appointed to the board because this would help people to see the law as transparent and the appointments system within it as open, not closed.

In many ways the legal profession has probably been perceived as being closed, like other professional groups, but this has been changing over the years. The same applies to medicine. We are seeing a move to a more democratic situation where a greater balance is being achieved between professional groups and their clients. The board will ensure that this move continues within the legal system and I hope the Minister will carefully consider the people who are to be appointed to it.

The provision of resources is a major issue with regard to the courts system. I know there is a programme to improve court facilities; this is important and it affects resources. It seems as if the maintenance of the courts has fallen between two stools, that is local authorities and the Department. The end result has been a huge deterioration in the courts and it is good that this situation is being changed and that there is a programme to deal with it.

People have expressed concerns about some aspects of the Bill. The AIM group for family law reform is concerned about the transfer of nullity cases from the High Court to the Circuit Court and it feels this could create long delays in the court system. The Minister should consider this. An independent working party is examining the idea of a courts commission and I await with interest the conclusions it will draw on how issues should be handled. The provision of additional judges and courtrooms in Dublin and perhaps outside the capital raises the question of extra support staff. The Minister will have to consider the question of resources.

The judicial appointments advisory board is precluded from advising on the promotion of judges from one court to another and on the appointment of presidents of courts. It is interesting that the concept is considered good for some appointments and not for others. I would be interested to hear the Minister's views on this.

During the months of August and September offices of the High Court are open to the public only from 10.30 a.m. to 1 p.m. each day. The Minister should look at this issue, which I presume involves resources and facilities. This created enormous problems last summer. During court vacations the offices are open only from 10.30 a.m. to 2 p.m. The urgency of family law cases arises in this regard and I ask the Minister to consider before next summer whether there is any way of dealing with some of the urgent cases which cannot be handled because of the limited resources which are available at present.

Courts and courts officers are important and have been neglected over a long period. They are in need of reform and additional resources. I welcome the Bill and I am sure the debate on Committee Stage will be interesting.

My only interest in this Bill, apart from the wide ranging contributions made by our spokesperson and others, is to put on record the origin of sections 12 to 23, which relate to the judicial appointments advisory board. I wish to point out the basis for the charade which forms part of these sections. I was one of the authors of the principle if not the detail of the Bill. The Bill has been put forward as a proper aspect of judicial reform but it has nothing to do with such reform. I am disappointed that the Minister has become entangled in even greater complexity with the Labour Party proposal, born out of desperation when it was seeking a way out of an impasse which has nothing to do with judicial reform. It had nothing to do with the Courts and Court Officers Bill but was incorporated in that Bill in an attempt to save face on behalf of the Tánaiste. There is much evidence to suggest that this Government is spending a lot of time trying to save face on a range of issues. I wish to take this opportunity to outline the thinking behind this part of the Bill, which should not be included in the legislation. Any provisional agreement reached on this matter when I was a member of Government has nothing to do with judicial reform or efficacy of the courts system.

A committee was set up to investigate the events leading to the downfall of the last Government and the Tánaiste misled that committee on a number of points, particularly that the setting up of the Judicial Appointments Board was part of a programme of judicial reform. That was not the case. The famous sub-committee consisting of the four wise men — obviously we were not as wise as was believed — was set up for the purposes of incorporating measures of judicial reform that were matters of high principle to the Labour Party. That is in direct contravention to the Government statement of 5 October 1994 which reads:

The Cabinet decided today to appoint a sub-committee consisting of Ministers Quinn, Cowen, Howlin and Dempsey to examine the present impasse in relation to filling the position of President of the High Court.

The Ministers were requested to look for a resolution which they would present to the Taoiseach and Tánaiste as early as possible.

That was theraison d'être for setting up that sub-committee. It had nothing to do with judicial reform but simply to try to break the impasse on filling the position of presidency of the High Court.

It is interesting that subsequently, as people sought to justify what had happened at that committee, it was suggested by the Tánaiste in his direct evidence that this was part of a programme of judicial reform. The purpose of the committee, the deliberations of which were confidential at the time, was to get the Tánaiste off the hook since he had agreed on a number of occasions with the then Taoiseach that Mr. Whelehan would be appointed President of the High Court. Deputies will recall the "News at One" radio programme on which practically all the parliamentary Labour Party confirmed they did not give a damn who was appointed President of the High Court as long as a general election was not called. We recall how miffed the Tánaiste was at the subsequent parliamentary party meeting when he berated his backbenchers for having taken the ground from under him.

I ask the Minister for Justice to delete sections 12 to 23, inclusive, of this Bill because they were incorporated in response to an impasse which has since been broken — we heard much today about the need for compromise to break the impasse in the peace process. Sections 12 to 23, inclusive, were a political response to a temporary political problem which had nothing to do with the proper administration of the courts. As a practitioner in the courts I anticipate many problems in the event that those sections are agreed. They should be deleted because they were never part of the thinking of the Department of Justice, I can confirm they were never part of the thinking of the Fianna Fáil Party and I am sure they were never part of the thinking of the Labour Ministers on the sub-committee. I can confirm without privilege that they were the invention of the bureaucratic think tank that seeks to save face for the Tánaiste whenever he is in difficulty.

I urge the Minister to delete, as soon as possible, sections 12 to 23 of the Bill. I was the author of that measure and was involved in three days of intense negotiations in a Cabinet sub-committee whose sole purpose was to get the Tánaiste off the hook — I and my Labour Party colleagues thought we had got him off the hook. When we put forward this complex solution and I explained to the Government how we overcame the problem, the Government issued a statement on 11 October 1994. I am sure the Minister and her Labour Party colleagues in Government will confirm that they were overjoyed at the fact that we had found a solution and broke the impasse.

Subsequent to a meeting held on 11 October the Government issued a statement:

The Government considered the progress made by the Cabinet Sub-Committee in relation to the question of judicial appointments.

The Sub-Committee has recommended changes in procedures which will require legislative change. The Government has indicated its agreement to these proposals. It is proposed to incorporate these changes in the Courts and Court Officers Bill which will be brought forward as a matter of priority.

I am glad this Government fulfilled its priorities with such speed and competence.

The final sentence in that Government statement reads: "When the legislative changes are approved by Government an appointment to the Presidency of the High Court will be made". The following week the legislative changes proposed by the sub-committee were put to the Government and, from my recollection, were agreed by the Government at a meeting on 15 October 1994. The agreement of 11 October was that the appointment to the Presidency would be made immediately after the changes were approved. History has shown that it took a further month for the Tánaiste to extricate himself not only from an agreed Government statement but from two Government decisions. Anyone who is aware of the procedures of Government will know that if one wishes to overturn a Government decision it is necessary to put a formal motion to Government. I invite the Minister for Justice, when writing her memoirs, to examine the minutes of the Government meetings of November 1994 to see whether the Tánaiste put a formal motion seeking to withdraw the agreements he made on 5 October 1994 and 11 October 1994.

I will not be writing my memoirs.

That is a pity because I am sure they would be very interesting. I am giving the facts of what happened in regard to this part of the Courts and Court Officers Bill, which has no place in a programme of judicial reform. As I said, the committee was set up to get people off the hook, as confirmed by the Government statement of 5 October; the Government statement of 11 October confirms the conditions under which that agreement was reached. The record shows that those who dishonoured that agreement are not on this side of the House; they are now in Government on the basis that they are honourable people who have standards of integrity to which I should aspire on a daily basis. I have heard so much political cant, certainly in my ministerial life, that I wish to outline the facts when I have that opportunity. I am not doing this out of vindictiveness because I am not a bitter person, but for the record of the House to ensure that the facts are known and that people do not get the wrong impression.

When the Cabinet meeting was held on 5 October 1994 at the suggestion of the Tánaiste, the then Taoiseach put the proposal to it that the sub-committee should be set up to try to find a solution to the impasse which had been reached. A Government statement of 5 October confirms that fact. It was stated by the Tánaiste in his direct evidence to that committee that the sub-committee was set up to agree judicial reforms. That is incorrect because the sub-committee was formed to see if we could come up with any proposals which might resolve the impasse as regards the appointment of the President of the High Court.

The proposals regarding judicial appointment procedures only emerged in the context of how to fill the vacancy in the presidency of the High Court. The sub-committee met on a few occasions that week and suggestions were made by the Labour members to broaden the context in which this appointment had to be filled by looking at the system of judicial appointments. Deputy Dempsey and I were prepared to discuss the matter with them without prejudice. I made it clear there would be no question of Fianna Fáil agreeing to such a new system of judicial appointments without the vacancy in the presidency of the High Court being filled and that the new system would not apply in relation to the filling of that vacancy.

When our discussions were coming to an end on Friday, 7 October 1994 Labour Party Ministers suggested that we should put out a statement which would report progress. I disagreed and said that no such report could be given to the press as no progress had been made on filling the vacancy. Labour Party Ministers suggested that they did not have the authority to decide on the matter. I told them that if that was the case, there was no point in continuing the discussions. We had agreed that once the sub-committee was set up no one on the committee would speak to the press. That was honoured by all four members throughout the discussions.

On the Sunday radio programme,News At One, Labour Party Deputies were adamant that this was not an election issue and that it should be resolved. They did not seem to mind who was made President of the High Court. On that Sunday evening the Tánaiste and the then Taoiseach met at Baldonnel. Deputy Dempsey had reported the up-to-date position to the Taoiseach and had checked the position with the then Minister for Enterprise and Employment, Deputy Quinn, who confirmed that no progress had been made. Deputy Dempsey gave specific and detailed evidence on that point to the committee and I agreed with him. The Tánaiste asked the Taoiseach if the matter could be resolved. The Taoiseach told him he had spoken to Deputy Dempsey and asked if he had spoken to Deputy Quinn. The Tánaiste confirmed that he had spoken to him and the then Taoiseach indicated that the approach which had been taken by the sub-committee and discussed between Deputy Quinn and Deputy Dempsey could solve the problem. The Tánaiste replied that the Labour Party could “do business on that basis”.

On Monday, the then Minister for Health, Deputy Howlin, and I met. Both of us were aware of the Baldonnel meeting, but our meeting was more relaxed. When we worked out the details of the proposals, which are now sections 12 to 23 of this Bill with some amendments, we discussed what had happened on the previous Thursday and Friday. We were both relieved that the immediate problem was being resolved at last with new procedures being put in place for the future. I provided an account of the agreement which we had reached at the sub-committee to the Cabinet the following day, 11 October. The new system of judicial appointments was being put forward on the basis that the High Court vacancy would be filled.

When the then Minister for Justice, Deputy Geoghegan-Quinn, prepared and brought the extra provisions for the Courts and Court Officers Bill before the Cabinet the following week they were approved. The mistake we made was that we did not put the memo to the Government to fill the presidency of the High Court in line with the honourable compromise we had reached. We assumed honour on all sides. We delivered our part of the proposals to settle the matter and we always felt honour and integrity demanded that the agreement would be carried out. As I said, no formal proposal to the contrary was ever put to the Cabinet up to the time the Labour Party walked out of Government.

We took the Tánaiste at his word — I warn the Minister not to do so — when he sought a deferral of the decision, but there was never any question that the appointment would not be made. The then Taoiseach agreed to a number of deferrals to accommodate the Tánaiste. The Tánaiste eventually agreed with the Taoiseach to take the decision in the week in which it was to be taken. The existence of the Smyth case was already in the public domain at that stage. The Smyth case, when it emerged, was being used as anex post facto justification for the non-appointment of Mr. Whelehan as President of the High Court, which was consequent on an agreement reached in Cabinet. Fianna Fáil had delivered its part by incorporating these foolish provisions in the Courts and Court Officers Bill.

It is important that the Cabinet is allowed to make a decision on judicial appointments. That has always been the case. This Bill is setting up quangos to create an aura of objectivity and we know this by the number of nominations put to the Minister for her appointment, which is her constitutional duty. This is a smoke screen as regards the judicial appointments advisory board which is not relevant to judicial reform. It was a political response to a political problem. Whenever one seeks to incorporate 11 sections of the Bill on that basis, it is a flawed Bill. I encourage the Minister to delete these sections at the next Cabinet meeting as they are not relevant to judicial reform.

Can anyone suggest a judicial appointment which was made by the Cabinet and which has proven controversial to the extent that this House has undertaken its constitutional option of seeking to impeach such an appointee? Has anyone ever suggested that under the system that has served us well for 70 years people have failed to uphold the constitutional oath they took to administer justice equitably in the pursuit of their duty? This is a failed attempt to politicise the Judiciary and to attack a basic fundamental principle of our Constitution which involves a separation of powers. The Judiciary is not accountable to Parliament which has no say over the appointment of people to judicial office, apart from the appointments made by the Cabinet. That is how our Constitution works.

I listened to discussions during the sub-committee's deliberations at that time and people sought to bring in an American-style judicial appointments system where people in this House would seek, without any legal expertise, to run someone through the mill regarding their competence to serve independently under the courts. However, this is not the American system but the Irish system which has served us well. I ask the Minister to delete these sections because the idea is to politicise the judicial system. We saw what happened during the controversy 12 months ago when the Labour Party politicised the office of the President of the High Court. The attempt to suggest that a person should be of a particular liberal or conservative disposition which would determine how they would actin situ as a judge is an insult to the judicial system and to anyone who has ever sat in a court in this country since independence. It is an insult to everyone who has taken an oath to administer justice equitably, regardless of their personal position or disposition. That is a fundamental in our system which has been attacked under the guise of political correctness. I encourage the Minister to delete the sections as they represent a simple effort to circumvent democratic accountability in this House by seeking to impose people into positions who have a particular disposition with which Deputies opposite may find favour at any given time, in what is supposed to be an independent arm under our Constitution. That is a grave disservice. It is a misnomer in terms of judicial reform and must be quelled immediately. Those sections should be deleted as they have no place in the Bill.

I have no hesitation in welcoming the Bill. If anything, it may be too restrictive and perhaps not enough judges are being appointed. Those of us who have to deal with people involved in court cases are aware that there is an enormous backlog, particularly in the Circuit and High Courts. I ask the Minister to keep the position under constant review to determine if the additional number of judges she proposes to appoint under the measures in this Bill are sufficient to deal with the problems that have arisen in recent years.

It has come to my notice in recent times that a committee was set up several years ago to examine the question of rationalisation of the Circuit Court system. I understand the committee produced findings which recommended the number of venues for Circuit Court sittings should be reduced, that many provincial towns which at present have Circuit Court sittings should no longer have that facility and that the Circuit Court hearings should be more centralised in locations like Dublin, Cork, Waterford, Limerick and Galway. That was an idiotic finding as the Circuit Court sittings in the major centres of population I mentioned have not been able to cope with the position which has pertained for a number of years. To suggest that towns like Dungarvan and Youghal should no longer have Circuit Court sittings and that the cases should be heard in centres like Waterford and Cork, where there is a major log jam in dealing with cases, is unrealistic. I ask the Minister to clearly indicate that the findings of that committee will not be acted upon. It would be crazy to overcrowd an already crowded position. Solicitors in my constituency and an adjoining one were appalled at the prospect that venues, some of which I named, would be eliminated from the Circuit Court list. It is important we are reassured on this issue.

The necessity for appointing a number of new judges to various courts is so serious that it was brought to my notice by members of the legal profession that some judges, particularly those in the Circuit Court, are on a go slow in an effort to bring attention to their predicament and that of people who must attend the Circuit or High Courts six or seven times before their cases are heard. Is the Minister aware of that? I have no doubt it is an unofficial go slow, a means by which the judges in question wish to highlight existing problems. That is why I am doubtful that the appointment of 17 new judges to the various courts will be sufficient to deal with the problem. Five additional judges will be appointed to the District Court, seven to the Circuit Court, two to the High Court and four to the Supreme Court. It seems a sizeable percentage increase, but it may not be sufficient.

The training and suitability of judges is often called into question. The Minister stated that training courses for judges would be provided. How are judges assessed? Have judges been reprimanded? Can they be removed from the Bench or when appointed do they remain there until they reach retirement age? It is difficult to understand how judges can remain in office until a retirement age of 70 or 72 in the case of Circuit and High Court judges, but that retirement age will now be reduced to 70. A retirement age of 70 is quite old. Are judges subject to medical checks to determine if they are capable of performing their duties? That is particularly relevant today when Alzheimer's appears to be more commonplace with people in their 50s suffering from it.

We are not yet in our 50s.

I not the Deputies opposite are smiling. Do people in senior positions, such as those in the Judiciary, have regular medical checks to ascertain if they are capable of adjudicating in cases? I notice Deputies opposite are giggling.

We are not giggling. Is the Deputy referring to physical or psychological examinations?

I never heard of any judge other than one appointed by Fianna Fáil.

I could name a few.

What about Pat McCartan?

I heard Deputy O'Donoghue complaining about jobs for the boys, but I never knew of any judges other than those appointed by Fianna Fáil.

I will not name them but I could give the Deputy a list.

If there is such a thing, I have never come across it.

The Deputy should be thankful he is a law abiding citizen and he does not have to face them every week like us.

I have never met one inside or outside the courts.

They are independent.

Will the Minister indicate if there is a system of assessment for judges and if judges are monitored on an ongoing basis to ascertain if they are up to the task of performing their duties?

While an appointee may have been a competent solicitor or barrister, he or she may not be a good judge. Are there instruments by which a judge, if considered unsuitable, could be removed from the Bench? I have never heard of such a case, but such things happen in every job. Can such a measure be exercised in the case of judges? Some judges are tough, some are lenient, sometimes people may get away with blue murder, more times judges seem unduly harsh, but I would never blame one for being so in our society. In my area there is a district judge who is notorious for his sentences, but fair dues to him. He is presumed to be a friend of a member of the Opposition and that is how he got his position, but that is only hearsay.

They are independent.

Let us avoid reflection on people of that kind who are identifiable. Please desist from bringing personalities into the debate.

Will the Minister indicate if judges are subject to assessment and medical checks as it is important they should be? The Minister has taken a positive step to allow solicitors to be directly appointed to the Circuit Court.

The overburdening of the courts is due to a variety of reasons, one of which is the compensation culture. Some people are making bogus claims and professional gangs are organising others to make bogus claims. The Garda has been active in curtailing the activities of some of these gangs and has got some positive results. Certainly, the number of bogus claims has been very significant. Also, the courts are overburdened by the number of drugs abuse cases coming before them. I noticed in Waterford District Court recently that on one day there were 11 separate cases relating to drugs abuse. It is easy to understand the reason courts have a difficulty in dealing with the number of cases coming before them.

When replying will the Minister refer to the result of the divorce referendum and how it will affect family law courts? Obviously, we must expand the family law courts to deal with divorce cases. Will she give us specific details of the type of court and the number of additional judges she will appoint to deal with divorce cases? This is a real, topical and immediate problem.

I welcome the establishment of the Judicial Appointments Advisory Board to appoint judges. Up to recently the Cabinet appointed judges on their political affiliations. Now a list of people will be submitted to the advisory board from which the most suitable persons can be appointed. I do not see any reason to criticise that. The late Deputy John Kelly, as Attorney General, set up such a board to appoint State solicitors. He was criticised for doing so but it was the right thing to do. It is improper of the Opposition parties to suggest there will be political patronage. The board will be independent.

The Government could help by adopting a tougher line where legislation is concerned. When the Minister attempted to stiffen the bail laws some months ago, she met a chorus of dissent from people who are generally called "do-gooders". One can overdo the civil rights issue. The victim of crime is often the last person to be cared for. We can be far too sympathetic to the criminal. A wise old sage in my locality said, when we were talking about crime recently that the law in this country only applies to law-abiding people. That is a bit cynical but there is much truth in it. The habitual hardened criminal seems to be able to circumvent the law while the ordinary decent person cannot. I ask the Minister not to be put off by people who pretend to act in the public interest. She should think of the ordinary defenceless citizen who is assaulted, intimidated and insulted on almost a daily basis and direct her attention towards the criminal and give the Garda and the courts every possible assistance to do their jobs properly.

I thank the many Deputies who contributed to the debate. The proposals generally have been well received both inside and outside the House. The Bill generated a great deal of interest, but this did not surprise me, because as Deputy Frances Fitzgerald said, this is the first major overhaul of the courts system since the 1920s. I have listened carefully and noted many of the points made during the debate. The Bill contains many reforming measures which will affect many parts of the judicial system. It is right to keep the structure and form of the court systems under constant review. The Courts and Court Officers Bill is major reforming legislation to change our courts system. I am confident the reforms will provide us with a greatly enhanced judicial system.

I stress the independence of and the respect with which we hold the Judiciary. Many Members have alluded to the perception that the appointment of judges from time to time may have been seen or interpreted as being political. I am not aware of any decision made by members of the Judiciary which was seen to be of a political nature. It is important for us to recognise that.

Deputy Deasy made some comments which might give the impression that some of our judges were operating when they were incapacitated in some way. The Judiciary is independent of me, as Minister for Justice, and of this House but, as far as I am aware, without checking on it, there is one mechanism by which judges can be removed and that is through a motion in this House. To the best of my knowledge, judges are not subject to regular medical checks that would decide whether they can continue to be judges. Nobody has asked me to do a medical to see whether I can continue being a TD or stand again at the next election.

I reiterate the independence of and the respect with which the Judiciary is held. From time to time people who are distressed will make comments about different judgments and sentences etc.

And before they become judges in some cases.

Indeed, they do. We have an independent Judiciary of which we can be proud. I may not be able to deal comprehensively with all the issues raised now but we will have a Committee Stage debate next week during which we can tease out the details.

Many Members raised the issue of delays in the courts. The extent of the delays in appeals to courts is unacceptable and I do not wish to minimise them. Tackling these delays was one of my priorities in reviewing the 1994 Bill. The changes I have made to the 1995 Bill will be more effective in ending delays in the courts system. I accept it will take some time to reduce those delays but the provision for an increase of 17 judges indicates a real commitment on my part. In the 1994 Bill the number of additional judges to be appointed was not specified, but the former Minister indicated she would bring in amendments on Committee Stage.

Deputy Cowen raised a number of points in respect of the 1994 Bill. It is fair to say that that Bill came into the House after a short gestation period. I am satisfied that had that Bill continued on and there had not been a change of Government, the then Minister would have had reflected carefully on and made a number of changes to that legislation.

A number of Deputies criticised the fact that it has taken until now to bring this Bill forward. I do not accept that it represents little advance on the Courts and Court Officers Bill of 1994. That Bill contained only one major measure, namely, the setting up of a court of appeal to tackle the delays in the court system. When I took office I initiated a detailed review of the Bill and took soundings from the Judiciary. There was not time, because of the speed involved in the preparation of the 1994 Bill, to take those soundings but the process of review and consultation I carried out led me to believe that a court of appeal was not the right way to proceed but to extend the Supreme Court. I am satisfied the Bill is better for that reason. It is a more comprehensive measure. The Bill also contains a number of measures such as new powers for county registrars, rationalisation of the criminal jurisdiction of the District Court, new arrangements for the transfer of criminal cases in the Circuit Court and so on.

Much of the debate concentrated on the Judicial Appointments Advisory Board. Speaker after speaker from Deputy Cowen's side of the House copperfastened their commitment to the board in so far as each of them suggested how it could be improved. Deputy Cowen wanted me to remove what were described as these foolish proposals.


He was a member of the Government which put forward those foolish proposals.

I have explained that.

He may have explained it but has he never heard of Cabinet collegiality and responsibility?

Yes, and I have no problem with that.

The Minister's time in replying is very limited. She must be allowed to utilise her time without interruption of any kind.

May I ask a question, with the Minister's agreement?

I have very little time and many points to make.

The Deputy was heard with the utmost courtesy and devoid of interruption.

I heard what the Deputy said but it does not get away from the need for Cabinet responsibility.

It is my personal opinion. I do not care what anyone else says.

Let us hear the Minister.

Many Deputies referred to the inclusion of three persons who are not members of the Judiciary and were not lawyers, solicitors or barristers. I believe that strengthens the advisory board in the sense that we can appoint to it people with wide-ranging administrative and consumer interests. That will be added value for the board because these people use our court services. I would like to see representatives of victims of crime, women's groups and commercial interests having an opportunity to participate on the advisory board. I make no apologies, therefore, for widening the remit of the board.

I equally make no apologies for including the Attorney General on the board. The Attorney General, in his or her role, is the adviser to the Government on all matters relating to law and he or she is the defender of the Constitution. It is appropriate that he or she would be available to advise the Government on the soundings of the advisory board. I believe the Attorney General was not included for appointment to the board, as outlined in the 1994 Bill, for expediency reasons due to the tension that existed with regard to the Attorney General and his relationship with the then Government. Such an amendment would have been made eventually to the Bill.

Many Deputies raised the question of the number of names submitted. The 1994 Bill referred to three to five but I believe three was too restrictive. It would restrict the Government in advising the President as to who should be appointed as a judge. The Government should have a reasonable choice of names to enable it make good judicial decisions on who should be appointed to the Government. It impinges on the Government's role that it must, under the Constitution, make the name known to the President. That is the Government's responsibility and it cannot assign that responsibility to anybody else. It must bear the responsibility for deciding who will be appointed to the Bench.

Deputy O'Dea raised the question of the Government being required to accept a recommendation. The Deputy knows that the Constitution requires the Government to make that appointment. That was part and parcel of the 1994 Bill.

The Minister accepted the Attorney General's advice. She should not be bluffing.

The Deputy was a Minister of State in the Department of Justice when that was included.

We had a realistic system, not this rubbish.

Deputy O'Dea knows that in the 1994 Bill the board his Government was proposing——

The Minister for rid of the board.

Deputy O'Dea must desist.

——was advisory. Deputy O'Dea asked me to give an assurance that there would be no more appointments before this Bill becomes law. It is my intention that when the Bill is enacted any appointments to judicial office will come under the remit of the new advisory board. One can never tell, however, what will happen in the future. I could have given that commitment six months ago only to find that, sadly, one of our judges was killed tragically.

There are a few more available.

Many Deputies wondered why appointments to judicial posts of Chief Justice and Presidents are exempted from the advisory board. This is an extraordinary query for Deputies to raise because once a person is appointed as a judge, we should have confidence in that person. It is not appropriate, having appointed somebody to the Bench, to then say we do not have confidence in them and we will subject them to making an application for appointment to a higher office. There is no automatic right to appointment to a higher court but if judges want to go forward for promotion to the higher courts, we should have confidence in them and consider them on their merits. It is appropriate that we do not include them among those who must go to the advisory board.

The Minister should take out the seniority provisions.

We should have more women judges and a number of Deputies, particularly Deputies Fitzgerald and O'Donnell, raised this matter. The addition of some new nominations to the board will ensure there is proper gender balance on the advisory board which, in turn, will result in gender balance being maintained in the appointment of judges.

The Minister had two women on a State board yesterday and she threw them out.

The Minister should be allowed to conclude her remarks.

All the current Presidents of the courts are male and they will be appointed to the Judicial Advisory Board. I hope that the three outside nominations will also help to correct the gender balance on that board.

In regard to the working group on a courts commission. Deputy O'Donoghue, and others, asked why was this not part of the Bill. When I set up a working group on a courts commission I do not have to put that into legislation. The 1994 Bill adopted a minor and unstudied approach to the question of a courts commission and it was only an advisory courts commission that was proposed in that legislation. If this working group advises the setting up of a proper, statutory, stand alone courts commission, that will be set up under legislation.

A committee to examine a commission?

Deputy Fitzgerald raised the issue of the sitting hours of courts. Issues such as that are in the remit of the working group and I have specifically asked it to report to me on an ongoing basis so that if changes can be made in the current practices of the courts I will examine the possibility of implementing them.

Deputies Crawford, O'Donnell, O'Keeffe, Hughes, Ring and Fitzgerald raised the issue of accommodation which is important for the proper running of our courts. In 1995, a sum of £6 million was provided for capital works and a sum of £1.59 million for maintenance work on the courts. There is a commitment in the Department of Justice to continue this refurbishment programme and to include in all refurbished courts a family law suite where people can have their cases heard with humanity and privacy, recognising the trauma that is often attached to family law cases. A number of areas have provided such accommodation — Letterkenny, Athlone, Galway and Cork have fine facilities. I will continue to make improvements.

A number of Deputies raised the issue of the retirement age of judges. The retirement age has been reduced from 72 to 70 years for newly appointed judges to the High Court. I do not accept the arguments that it is necessary for judges to retire at the age of 65.

I agree.

Some very good judges have great wisdom to bring to the Bench after that age. In fact, most of the District Court judges are considered suitable to continue to the age of 70. For example, in Belgium, Spain, Portugal, the Netherlands, Greece, England and Wales the retirement age is 70. Until last March the retirement age in England and Wales was 75.

I thank all the Deputies who contributed to the debate and look forward to a lively Committee Stage debate.

The Minister can depend on it.

As it is now 7 p.m. I am required to put the following question in accordance with an order of the Dáil of today: "That the Bill be now read a Second Time."

Question put and declared carried.