Dáil Éireann debate -
Wednesday, 17 Dec 1997

Vol. 485 No. 3

Courts (No. 2) Bill, 1997 [ Seanad ]: Second Stage.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

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

This Bill is concerned with two important issues relating to the courts. It provides for an increase in the statutory limit on the number of ordinary judges of the High Court from 22 to 24, not including the President of the High Court, and that all future appointments as Chief Justice, President of the High Court, President of the Circuit Court and President of the District Court will be for a maximum, non-renewable period of seven years.

I will deal first with the increase in the number of High Court judges. Earlier this year the House was involved in the enactment of the Courts Act, 1997. That Act increased the statutory limit on the number of ordinary judges of the High Court from 19 to 22. It was brought forward in the context of pressure on the number of judges in the High Court due to commitments arising from non-court duties involving the Nursing Commission and the pending Dunnes Tribunal. The Act was welcomed by the House because its objective was to ensure the progress being made in reducing delays in hearing criminal and civil cases before the High Court would not be adversely affected by the temporary appointment of High Court judges to carry out other duties.

Deputies will be aware that the work of the Nursing Commission is ongoing and that further tribunals are in the course of being established. Because of the involvement of High Court judges in the proposed tribunals, these developments threaten the considerable progress which has been made in reducing delays, particularly in hearing personal injury actions in the High Court and in dealing with cases in the Central Criminal Court. Deputies, I am sure, will agree that litigants, victims of crime and the community as a whole which has an interest in the efficient operation of the courts system should not be adversely affected by the developments to which I have referred. That is one of the main reasons I have brought forward this Bill which, in section 2, provides for an increase in the statutory maximum limit on the number of judges of the High Court from 22 to 24, in addition to the President of the High Court. The Government has approved the filling of one of these new vacancies immediately and the need for the filling of the second High Court vacancy created by the Bill will be kept under review.

Section 3 amends the Law Reform Commission Act, 1975, to make provision for an increase by one in the number of judges of the Supreme Court or the High Court where one of the judges of those courts is appointed to the position of commissioner in the Law Reform Commission. This is essentially a technical matter and all that is involved is a tidying up of earlier amendments which have been made to the 1975 Act.

The second overall objective of the Bill is to provide that all future appointments as Chief Justice or as President of the other courts, who are described as presiding judges in the context of the Bill, will be for a maximum, non-renewable, seven year period. This was recommended by the working group on a Courts Commission chaired by Mrs. Justice Susan Denham in its second report entitled Case Management and Court Management. The relevant provisions of the Bill for that purpose are sections 4 to 12 inclusive.

The recommendation of the working group in relation to seven year court Presidencies was made with reference to the extremely heavy administrative workload involved in these key judicial positions which must be managed along with the normal judicial functions of those positions. This is a very sensible approach and reflects the modern trend with regard to limiting the term of senior office in areas of professional and public life.

Section 4 is the central provision with regard to the new maximum periods of appointment for presiding judges, subsequent sections being consequential on this section. There are a number of significant aspects resulting from the provision for new periods of appointment for presiding judges. First, only appointments made after the enactment of these measures will be affected. Second, the Bill does not preclude the appointment as presiding judge of a person who has less than seven years to serve before full retirement as a judge. Third, an appointment as a presiding judge will not be capable of being renewed at the end of the seven year period although, of course, the Bill does not preclude a further appointment as presiding judge of another court. Last, when a presiding judge has completed his or her seven year term and has not reached retirement age, he or she will continue to serve as a judge of the relevant court. This last element of section 4 gives rise to the need for the directly consequential provisions of sections 5 and 6.

When, for example, a Chief Justice completes his or her seven year term and continues as a judge of the Supreme Court, the maximum number of judges of that court will be unaffected where another judge of the Supreme Court is appointed as the new Chief Justice. If, however, the new Chief Justice were to be appointed from outside the Supreme Court, the former Chief Justice continuing to serve as a judge of that court would breach the statutory limit on the number of judges of the Supreme Court.

Section 5 takes account of this by providing for an increase in the number of judges attached to a particular court in such circumstances notwithstanding the statutory provisions relating to the limitation on the number of judges of the courts. However, section 6 makes it clear that this increase in the maximum number of judges will be temporary, or will not occur at all, depending on the position in the relevant court with regard to vacancies. Again, taking the Supreme Court as an example, where there is already an existing vacancy, the former Chief Justice will automatically fill that vacancy and the provisions of section 5, increasing the number of judges, will not apply in that case. Where there is no immediate vacancy, the number of judges in the Supreme Court will be increased by one temporarily until the next vacancy arises which will be filled automatically by the former Chief Justice.

Section 6 applies this provision for the filling of vacancies by former residing judges to each of the courts. I might add that the new seven year terms may give rise to the presence on a court bench of more than one former presiding judge. The provisions relating to increases in the numbers of judges and the filling of vacancies take full account of that possibility.

Section 7 adapts existing provisions whereby the Chief Justice is ex officio a judge of the High Court and the other Presidents are ex officio judges of the next superior court. The section provides that, when a presiding judge has completed a seven year term and continues as a judge of the relevant court, he or she will retain his or her position as ex officio judge until retirement. This is being done to ensure that no constitutional problem will arise out of the removal of judicial duties conferred by virtue of ex officio membership of a court.

Article 35.5 of the Constitution prohibits the reduction of the remuneration of a judge during his or her continuance in office. Accordingly, I have provided in section 8 that a former presiding judge will continue to be paid the salary payable to the presiding judge and that pensions and other entitlements will be paid at the higher judicial rate. Would that the same applied in the case of Members of the Oireachtas.

Section 9 adapts existing provisions relating to the order of the precedence of judges of the Supreme and High Courts to take account of the position of former presiding judges. A former Chief Justice will have precedence after the Chief Justice and the President of the High Court but before the ordinary members of the Supreme Court. A former President of the High Court will have precedence after the President of the High Court and after the judges of the Supreme Court but before the ordinary judges of the High Court. A former President of the Circuit Court, who will be ex officio a judge of the High Court, will rank after the President of the Circuit Court but before the ordinary judges of the Circuit Court.

Section 10 provides that only a presiding judge will be capable of exercising a statutory function of a Chief Justice or President of the court. Any such statutory function will not continue to be exercisable by a former Chief Justice or President who continues to serve as a judge. This provision has been included for the avoidance of any doubt in the matter.

Section 11 takes account of various existing provisions conferring functions on the "senior ordinary judge" of the Supreme Court or High Court. For example, legislation provides that the Chief Justice, or in his or her absence the senior ordinary judge of the Supreme Court, may determine that an appeal before the Supreme Court may be heard by a division of five or three judges. This section makes it clear that a former Chief Justice or a President of the High Court who continues to serve as a judge of the Supreme Court or High Court, respectively, will be the "senior ordinary judge" by virtue of his or her ranking ahead of the other judges of the court under the provisions of section 9.

Under the Courts Acts the President of the District Court is permanently assigned by the Government to the Dublin Metropolitan District. Section 12 provides that a former President of the District Court who continues to serve as a judge of the District Court will continue to be permanently assigned to the Dublin Metropolitan District but also will be in a position to avail of the normal transfer arrangements for District Court judges.

I am sure Members will appreciate that this Bill is important in the move towards a more modern courts system very clearly signalled by the Courts Service Bill considered at Second Stage in the Seanad last week. Under that Bill, the establishment of an independent Courts Service to manage the courts system more efficiently is a key priority of Government. It is my firm belief that the public is entitled to expect an efficient, quality service from our courts and that this Bill will contribute in a significant way to the continuing programme of reform of our courts system.

I commend the Bill to the House.

Mr. Higgins

(Mayo): I welcome the Bill in that, by increasing the number of High Court judges, it should lead to speedier justice. Emphasis on speedier justice was very much to the fore of the agenda of the former Minister for Justice, Deputy Nora Owen, within whose tenure in office investment in the courts increased from £23.8 million in 1994 to £30.5 million in 1997. The working group on the Courts Commission laid the basis for the Courts Service Bill, passed by the Seanad, which will be discussed in this House shortly and was based on the detail of four major reports.

In addition, the number of judges permitted by legislation was increased from 86 to 110; in other words, 24 extra judges were appointed to our courts in just over two years compared with an additional ten in the preceding ten years. A second Supreme Court was established so that two cases could be heard simultaneously in that court.

Furthermore, additional court sittings were arranged to reduce the backlog. The net result is that the period for obtaining a court date has been reduced from two years to within six weeks of lodgment. In the Dublin Circuit Court the period for obtaining a court date in family law cases has been reduced from 16 months to four months and delays in the hearing of criminal cases have been virtually eliminated. In the Dublin High Court delays in hearing personal injury actions have been reduced from 35 to 20 months.

However, there are certain accepted norms and procedures which, if abolished, would certainly speed up the administration of justice in our courts and might even dispense with the need for the extra judicial appointments proposed in this Bill.

I visited the Four Courts last week. Not being a lawyer I was absolutely fascinated to see Court 12, for example, packed with barristers and a High Court judge presiding over the setting of the timetable and calendar for court hearings, part of what is known as listings. Every Monday morning there are two common law listings with High Court judges tied up on basic administrative work which could just as efficiently be carried out by a specially trained civil servant or clerk. Alternatively it could be easily filtered by a registrar as is the case in Britain where there is a listing system twice a month when defence lawyers, almost guru-like in style, receive a rap on the knuckles for failure to file in time. There is also a warning list and a call-over list in relation to personal injuries. That is a gross waste of time and valuable judicial experience and personnel.

The United Kingdom system deals efficiently with the rather mundane work involved in listings and releases judges to their primary function of dispensing justice. That problem could be remedied in this country in 70 per cent of cases, perhaps in all cases except those where legal issues are to be determined. We must revisit procedures and dispose of traditional but time wasting practices which have become an unnecessary and ingrained part of the system.

I welcome the Bill and the appointment of two extra judges because of the assigning of judges to tribunal duties. Tribunals, by and large, have been invaluable in terms of sifting through some of the more unseemly aspects of political practice and behaviour over recent years. It is crucial for the restoration of confidence in the body politic that the tribunals currently afoot can fully discharge their functions, establish full facts and send out a clear signal that shadiness and shoddiness have no place in Irish political life. As I said in the House last week, if either tribunal fails to fulfil its remit, I have no doubt that more damage than good will accrue.

I welcome in particular the decision to limit the appointments of Chief Justice and the Presidents of the High Court, the Circuit Court and the District Court to seven years. Indeed, that practice might well be replicated in other walks of life. I proposed a similar idea, when I was education spokesman for my party a number of years ago, for school principalships from the point of view of enhancing promotional prospects and incentives in the teaching profession as well as acknowledging the burn out factor which is a feature of modern schools. I did not envisage, however, that they would settle back to less onerous positions with their emoluments intact, as happens in this case.

I do not understand the motivation of the people who drafted section 35 of the Constitution but it should be adequate for judges' pension entitlements to be enhanced by the percentage of the additional salary for the seven year period in question they are presiding over the court without the guarantee of the full higher rate, even though he or she no longer continues to do the management job. That seems to be a bad principle and a wrong practice which is impossible to explain. I do not understand the reason for it. Perhaps the Minister would indicate what is behind this section of the Constitution which determines that even though a person is no longer doing the job they continue to draw the pay.

I agree with the flexibility the Bill introduces in terms of accommodating short-term adjustment of the number of judges in the various courts depending on whatever procedural or promotional positions are put in place. There is a strong case for examining the possible unification of the legal profession, in particular the eligibility of solicitors to become judges of the Supreme Court. Since solicitors can appear and have the right of audience in the Supreme Court they should at least be eligible to be judges of that court. People should be assessed on their qualifications and competence to do the job and, without wishing to be judgmental of judges, it is generally agreed that solicitor-judges are recognised as good judges.

The Courts and Court Officers Bill, 1995, allowed, for the first time, solicitors to be appointed to either the Supreme Court or the High Court. As a result, a solicitor became eligible to become a judge of the Circuit Court. Any solicitor who has been a judge of the Circuit Court for four years or more becomes eligible for appointment to the High Court and from that to the Supreme Court. I hope the Minister will accept my amendment which will introduce full uniformity in judicial appointments.

In view of the fact that the Minister is in the process of introducing two Bills to the Oireachtas, the Courts (No. 2) Bill and the Courts Service Bill, for which I am sure he will be willing to claim and accept the credit, I hope he will realise that there is a consequent obligation and responsibility to answer questions. The refusal of the Minister to make any attempt to explain to the Dáil the systems failure in relation to the arrest and release, re-arrest and re-release, of persons connected with the Tallaght cannabis haul was not good enough. The Minister initially refused to divulge any of the relevant details to which this House and the general public are entitled. He eventually came into the House the following week and gave the facts, which he had not done the previous week, as they transpired in the intervening period. It then transpired that the Minister imparted the wrong information in relation to the number of judges in the Dublin Metropolitan Area. The Minister had to come into the House on Tuesday, 2 December and again tell the House that a third judge had been appointed for the purpose of the Criminal Justice (Drug Trafficking) Act. I ask the Minister if he is absolutely satisfied that no other judge who had not been nominated for the purpose of this Act acted in relation to the extension of detention warrants.

I agree with the thrust of the Bill and I join with the Minister in commending it to the House. I have tabled an amendment which has substantial merit and substance and I hope he will see his way to accept it because it is the right direction in which to go.

Dr. Upton

I welcome the Bill, the main provisions of which seem to be necessary, relevant and sensible in the context of the increasing demands now being placed on the Judiciary. The main provision of the Bill is to increase the total number of judges in the High Court to 24 which is reasonable in the context of the increasing workload in the courts and the involvement of judges in tribunals, commissions and so on. The amount of work carried out by judges in areas outside the courts over the past number of years has been exceptional by any standards.

There is no doubt that tribunals and commissions consume an enormous amount of judicial time. While tribunals have a function and are necessary, I hope we are coming towards the end of the current spate of tribunals. The public will become exhausted with them and their cost.

It is important that the Bill should lighten the workload and the pressure on judges because it is essential that they have an opportunity to reflect at some length, particularly in certain cases, before they make judgments. Such decisions should be arrived at in a calm manner. Judges should not feel under pressure to reach decisions as a result of their workload. It is more important that the decisions arrived at are given a little more consideration than is normally the case.

The placing of a limit of seven years on non-renewable appointments for the positions of Chief Justice and Presidents of the High Court, the Supreme Court and the District Court is in accordance with modern thinking on the appointment of key decision makers throughout the public service and in business. In the wider public service, county managers and people of similar status are normally appointed on a five year contract. Many of those in business have similar contracts including the heads of institutions such as universities. It is worth bearing in mind, however, that while this should be the normal procedure, there may be exceptional circumstances in which it might be necessary to deviate from that general principle. As a general rule, however, it is desirable and it will greatly enhance the functioning of the courts.

I am pleased the Minister has decided this provision will only apply to appointments made after the Bill has been enacted. That is a wise decision because an attempt to apply the new measures to existing appointees may give rise to some discord as well as exposing the State to the risk of legal challenges which, in the event of their being successful, would be very undesirable. It is sensible that retiring presidents of the various courts should be allowed serve in the relevant court after their presidential appointment has expired. I have no doubt those people will have accumulated a good deal of wisdom during their period of appointment and that some of that wisdom will be transferred and transmitted in the general environment in which judges find themselves. That is desirable rather than much of the wisdom and experience they would have accumulated being lost when they retire. It is worthwhile that ex-presidents of the various courts should be still practising, as it were, in the courts so that those who may want to seek their advice would be able to obtain it.

I am fascinated the Minister included a section in the Bill which lays down the pecking order of the various judges after they have retired. I would have thought such a matter would be determined by custom and practice and the tradition associated with law rather than it being necessary to write that into the Bill. It might be a precaution to avoid wigs on the green in the event of someone overstepping the mark. In the world of high decorum I associate with the law I would have thought it might not have been necessary for the Minister to include that provision in the Bill, but perhaps we should not underestimate the capacity for contention and discord in some circumstances.

I understand the catalyst for the introduction of this Bill was the retirement of Mr. Justice Declan Costello from his position as President of the High Court. During the debate in the Seanad a number of tributes were paid to him for the manner in which he carried out his duties as a judge and carried on his career as a lawyer and a politician, which included the role of being a TD and Attorney General. I wish to be associated with the tributes paid to him in the debate in the Seanad. He seemed to be an excellent judge, but I do not speak from a position of having any great insights into the law as I am not a lawyer. His career as a politician was worthwhile. He filled the role of a TD and the position of Attorney General with a good deal of distinction. His role as a political thinker and writer had a significant influence on Irish politics generally. He is credited with having written "Just Society", a forward looking and progressive document at the time it was published. The ideas contained in it are in sharp contrast to some of the other cautious ones that were prevalent at that time. I wish Mr. Justice Costello every happiness and fulfilment in retirement after his very distinguished career on a number of different fronts.

I am also fascinated by Deputy Higgins's amendment which he mentioned during his Second Stage contribution. It deals with the idea that solicitors can go all the way to the top. That is not a matter on which I have a well grounded view. I would not like to get involved in any exchanges of discord about it, suffice to say I have met a number of barristers who are quite disturbed — a stronger word might be more appropriate — at the prospect of solicitors going all the way to the top. However, that is a matter I am happy to leave to the rarefied atmosphere of the higher end of the legal profession, but I am sure the Minister, who is also a solicitor, has a view on that which he may be too cautious to share with us or is not prepared to take the risk that would be attached to expressing it.

Ms McManus

I would like to be associated with the good wishes and congratulations other Deputies and Senators expressed to Mr. Justice Declan Costello on his retirement. He has made a tremendous contribution and that is justly recognised.

This Bill recognises the increasing role of judges in legal and non-legal duties. I accept fully the need for extra judges to be appointed to meet these new and changing needs. The appointment of judges to head up tribunals has proved to be an effective means to ensure that tribunals can and do carry out their functions. We had a fine example of the effectiveness of the judge appointed in the recent McCracken tribunal into payments to politicians. That tribunal carried out its work with great speed, clarity and effectiveness. The growth in the number of tribunals is a relatively recent phenomenon and reflects a great public requirement for accountability in the political system.

Many politicians have expressed their dismay at the scandals attached to the political system in recent times. However, there is another perspective on recent events. Irish politics will only be strengthened in the long run if it is subjected to consistent public scrutiny. In the past there was too much secrecy, too many strokes, too much of the "nod and wink" and too little disclosure and access to information. However, at a practical level such scrutiny requires resources. In increasing the number of judges we are recognising the changed circumstances within which we now operate; circumstances that have changed for the better.

In this spirit of change it is a pity that the substantive Courts Service Bill is not being taken with this Bill. Changes proposed in that Bill will radically transform courts services, including the establishment of a new courts service. Great credit is due to Mrs. Justice Susan Denham and the working group charged with this work and I pay tribute to her and the group for their contribution. Her work is a reminder that this country has been served well by its Supreme Court. The current Chief Justice follows a long line of distinguished holders of that office who have brought credit to the Judiciary and set wise precedents in difficult cases where sometimes politicians failed to live up to their obligations and it was left to the Supreme Court to make a determination in the absence of legislation. The judgment in the "X" case was one in point. We have also been well served by our Chief Justices who have steered their courts through often difficult times while maintaining the absolute independence and integrity of the Supreme Court.

In this Bill the change proposed will limit the appointment of Chief Justice and other appointments to a maximum non-renewable seven year term. I understand this recommendation from the group headed up by Mrs. Justice Denham reflects a need to recognise the workload involved. A seven year limit is now commonplace in the appointment of secretaries to Government Departments and of county managers of local authorities. There are cogent arguments for a limit which leads to a more dynamic and effective management, but it is worth pointing out that the appointment of judges and their advancement is very different from any other category of appointment. For example, Article 35.5 of the Constitution states, "The remuneration of a judge shall not be reduced during his continuance in office." That Article has significant implications for this Bill.

Section 7 provides that when a presiding judge has completed a term and continues as a judge he or she will retain his or her ex-officio judicial position until retirement. This means, in effect, that ex-presidents at each court level will benefit financially on an ongoing basis after their seven years are up. As there will be many more ex-presidents, the additional pension demand will also be significant. I am unhappy that the cost of this generosity by the Oireachtas is not spelt out in the Bill. It should be because that information might indicate that such generosity to our judges deserves to be given more consideration than this debate allows for.

In particular, even if we pay this extra cost and it does not address the underlying problems in running the courts, it is evident that the administrative workload is creating problems. What is needed to improve the efficiency of the courts is a chief executive and a proper administration. Judges are ultimately appointed to judge, not to be administrators although, as seen by the great improvement in dealing with the delays in the courts, the Chief Justice and the Presidents of the High, Circuit and District Courts have done their work. However, effective administration is needed to back them up. Otherwise serious problems can and will arise.

No doubt the Minister can recall — how could he forget? — the recent debacle where a District Court judge was unaware he did not have authority to grant an extension to the detention of five men detained following a major drugs find. In that case, the President of the District Court had responsibility for the appointment of specific judges under the legislation, yet Judge Windle was unaware of this, and the Garda and the Minister's Department were also unaware of it. Indeed, even when the Department received the information, there was a final extraordinary twist to the tale when it was discovered that the information given to the Minister as to the number appointed for the Dublin area was inaccurate. As a consequence, the Minister was duty bound to come back into the House to correct the record.

In this regard, I considered it normal practice for the Minister to advise Opposition spokespersons when he intended to come into the House to make a statement of this kind. I was not informed. I do not know whether the other spokespersons were advised. That is a courtesy which should be maintained.

This kind of failure in the system does not serve anyone except the criminals. It undermines confidence and leads to the evasion of justice. I look forward to the Minister bringing the Court Services Bill before the Dáil soon — I think the Minister has undertaken to do that — so we can set about the true and comprehensive reform which the courts need to provide an efficient, prompt and fair service.

Mr. Shatter

I welcome the Bill but there are a number of issues arising out of it which need to be addressed.

Yet again we have a Bill increasing the number of members of the Judiciary. One of the primary reasons given by the Minister for this measure is the existence of so many tribunals and commissions which are being presided over by members of the High Court. I have no objection to members of the High Court presiding over tribunals and commissions, but it needs to be said on each occasion when we are dealing with these matters that the only reason we require tribunals to investigate certain issues is that the committee system of this House does not allow for the type of investigations provided for by committee systems in other parliaments. Whereas we have, with each successive Government, tried to reform our committee system, I hold firmly to the view that if our committee system was revamped to a more radical degree, some of the matters which we must currently refer to tribunals could be dealt with promptly by committees of this House.

Having said that, I recognise and accept that, in the position in which the Minister finds himself, he is right to increase the numbers of the Judiciary. Indeed, if he did not, he could be open to criticism and probably would be criticised by this side of the House if a backlog of court proceedings developed arising directly from the reduction in the number of judges available, particularly in the High Court, to preside over court hearings due to their involvement in other matters.

I think I am accurate in my view, although I have not undertaken an exact count, that, following the enactment of this Bill and additional appointments being made to it, there will be almost double the number of judges which existed approximately 20 years ago, a substantial increase.

In that context, I want to return to an issue to which I referred on occasion on Committee Stage of various courts Bills of different Administrations, including, on occasion, those in which my party was involved. The pool of lawyers from which we select the Judiciary is far too narrow. The appointments to the High Court and Supreme Court have been, since the foundation of the State, the preserve of members of the Bar Library. It was the Courts and Court Officers Act, 1995, which finally allowed solicitors to be appointed as judges of the Circuit Court and provided that members of the solicitors' profession, who had served for four years or more as a circuit judge, could be elevated to the High Court.

At the time when it was finally agreed to render solicitors eligible for Circuit Court appointments, there was a degree of uncertainty about the capacity of solicitors to act as members of the Judiciary at Circuit Court level despite the fact that solicitors had acted as district judges since the foundation of the State and the vast majority of district judges derive from the solicitors' profession.

It is fair to say that we have seen, since the 1995 Act came into force and a number of solicitors were appointed to the Circuit Court, that they can act with great competency in a judicial capacity. The persons so appointed should by now have set aside residual doubts of any nature as to the capacity of solicitors to serve as members of the Judiciary in courts higher than the District Court.

Before I am accused on an issue in respect of which I have a vested interest, I want to make a declaration which comes as no surprise to any Member, that I happen to be a member of the solicitors' profession. This is not exactly a national secret, but I want to make the point that I am not engaged in special pleading for a profession to which I belong because as a solicitor for many years I have acted as an advocate in the superior courts in a personal position and, indeed, I have probably acted in a great many more cases than some members of the Bar Library. I am not saying that to score a point or to pat myself on the back. I am merely saying I have a view of the courts system based on my personal involvement and experiences in it both as advocate and solicitor.

The measures taken in the 1995 Act have proved that there is no reason to maintain in place the narrow pool from which we select judges to the High Court and Supreme Court. There is no particular reason that somebody who is a barrister of 12 years' standing or longer, who is regarded as having a degree of legal expertise which warrants his or her appointment to the Judiciary, should be simply eligible to be appointed to either the High Court or the Supreme Court whereas a solicitor of 12, 15 or 25 years' standing cannot be appointed to the High Court unless he or she has first served a circuit court apprenticeship.

I am disappointed the Minister has not used this Bill to amend the relevant provisions in the Courts (Supplemental Provisions) Act, 1961, which confines direct appointments to the High Court and Supreme Court from practising lawyers to members of the Bar Library. The Minister should have taken the opportunity of this measure, bearing in mind the great increase in the number of the Judiciary, to widen the pool. Having had experience of the 1995 Act, I urge the Minister to table an amendment to this Bill on Committee Stage which will simply render all solicitors practising in the State who have a minimum of 12 years' experience, as in the case of barristers, eligible to be appointed directly to the High Court or the Supreme Court.

There is no logical reason that this should not happen. There is a concern expressed by the general public, which is not always a fully informed concern but which is sometimes sincerely held, that appointing members of the Bar Library solely to the High Court and Supreme Court means there is a very narrow focus on the part of the Judiciary within those courts in the context of certain day to day matters on which they must often pronounce. That is an unfair criticism of the Judiciary which I do not accept, but it is a perception because the public cannot see any reason for confining appointments to the superior courts to members of the Bar Library. In my view, successive Attorneys General have had a vested interest in preserving the monopoly of the Bar Library on superior judicial appointments. That should not be the case.

In the context of appointments to the High Court, the Supreme Court, the European Court of Justice, which operates under the European Union Treaties, and the Court of Human Rights in Strasbourg, members of the solicitors' profession should have the same eligibility for appointment. They should also go forward for appointment under the same system. The Independent Appointments Commission receives applications for appointments to the Judiciary, has a remit to interview those seeking appointments and can make recommendations to the Minister for Justice, Equality and Law Reform in respect of those qualified to be appointed. That sifting process should guarantee that people unqualified for appointment do not proceed through the system. However, there is no reason the system should have a narrow focus when it comes to making such appointments.

I urge the Minister to reconsider this issue because the Bill before us is the correct vehicle to deal with it. It is worth pointing out that in some European Union countries and in the United States a number of eminent people who were not practising lawyers but who made their names in the academic world of legal scholarship and who have proven to be erudite and dynamic judges have been appointed to the judiciaries of those countries. Subsequently, they have been appointed to the highest courts in their respective states.

It is time to radically reform the eligibility criteria and the Minister has the opportunity to do so. A portion of that reform has worked well in the Circuit Court and it should now be applied to the other levels of the court structure to which I referred.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I thank the Deputies who contributed to the Second Stage debate on this important Bill. I welcome the general support the legislation has received in the House.

As Members are aware, the Bill forms part of a comprehensive series of measures I propose to introduce for the purpose of reforming the operation of our courts. One of the main elements of that programme is provided for in the Courts Service (No. 2) Bill, 1997, which is concerned with the establishment of an independent body to be known as the Courts Service. This body will assume my statutory functions in respect of the administration of the courts. The Bill is currently before the Seanad and I look forward to having it debated in this House at an early date. In addition, there are other reforms relating to the courts which I intend to address and I envisage the publication of further courts legislation in 1998.

I have no doubt that Deputies appreciate the need to make additional provision for the appointment of High Court judges as set out in the Bill before us. It is vital that the significant progress achieved to date in reducing arrears in the hearing of High Court cases, including trials in the Central Criminal Court, should be maintained and should not be put at risk because a number of judges of that court will be involved in tribunals of inquiry and other non-judicial work.

The introduction of seven year court presidencies represents a significant step in the development of the court system. As the working group on the Courts Commission indicated in its second report, the administrative burden attached to presiding over a court can be considerable. Furthermore, the proposals in the Courts Service (No. 2) Bill envisage that court Presidents will be members of the board of the new service and, as such, administrative and related responsibilities could become more onerous. In the circumstances, I believe there is broad agreement that it would be in the interests of the judges concerned and the general administration of justice that appointments to these important judicial positions should be for a specified term.

As stated in my initial contribution, the new arrangements will not apply in the case of the President of a court who is serving in that position. When the provisions of the legislation come into operation, any other approach would create constitutional problems in the context of the Bill. I will now deal with some of the points raised by Deputies in the course of the debate.

Deputy Jim Higgins referred to the question of paying superannuation to presiding judges who continue to serve after the expiration of their seven year terms. This is dealt with in section 8. Arising from a decision of the Supreme Court in the area of judicial pensions, the Attorney General has advised that there is no alternative but to provide that the judges in question should be dealt with on the basis that they should receive superannuation at the higher judicial rate for their entire period of service once they have been appointed as presiding judges.

Deputy Upton referred to the question of precedence. He considered that this should not happen in what he colourfully described as the rarefied atmosphere of the Four Courts. The precedence among judges is already the subject of existing legislative provisions and the Bill merely adapts those provisions to take account of a former Chief Justice, President of the High Court and President of the Circuit Court retiring to the Supreme Court, the High Court and the Circuit Court, respectively, under the provisions of the Bill.

Deputy Shatter made an erudite call for the extension of the pool from which superior court judges are chosen and Deputy Higgins has tabled an amendment in this regard. I acknowledge that there are some eminent solicitors and academic lawyers who would, without question, make outstanding judges in the superior courts. I have not taken the opportunity to introduce what would be relatively radical amendments in this legislation. However, a working group was established by my predecessor to consider this topic. I understand this was done in December 1996. I also understand the working group will be reporting to me in the near future. When that report comes to hand, I will consider this matter carefully.

There is no question that a decision will be placed on the long finger. It is my intention to bring forward further courts legislation in 1998. If there is to be a change, it would be appropriate that it be contained in that legislation. Such an approach would be radical and different. As Deputy Upton point out, it will meet with resistance in some quarters. Nonetheless, where the Judiciary is concerned, it is the duty of the Houses of the Oireachtas to provide the best talent available.

It is true there are eminent people in the solicitors' profession who have written authoritative works of law and there are others who work full-time as academic lawyers who have done likewise, lectured on the subject of law and been responsible for educating many Chief Justices, Presidents of the High Court, members of the superior courts and members of the general courts. In my former life I was a solicitor and I may be again. In that context, I have no ambition, nor would I aspire, to become a member of the superior courts. That rids me of the declaration of interests section of my address. However, it does not mean there are not others who would not be interested and who are eminently qualified. It is something to which I should return in the not too distant future.

I hope that summarises comprehensively the replies to all the queries raised by Deputies on Second Stage.

Question put and agreed to.

Agreed to take Committee Stage now.

Acting Chairman (Mr. McGrath)

According to the order of the Dáil the proceedings on Committee and Remaining Stages, if not previously concluded, shall be brought to a conclusion at 10.30 p.m. by one question which shall be put from the Chair and which shall, in relation to amendments, include only those set down or accepted by the Minister for Justice, Equality and Law Reform.