Amendments Nos. 1, 5 and 30 are consequential on amendment No. 10 and all may be discussed together.
Courts and Court Officers Bill, 2001: Report and Final Stages.
I move amendment No. 1:
In page 7, line 14, after "1973," to insert "THE LAW REFORM COMMISSION ACT, 1975,".
On Committee Stage there was an extensive discussion about a proposal, which would have repealed a provision in the Law Reform Commission Act, 1975, whereby service as a barrister appointed as a whole time commissioner or officer of the Law Reform Commission is deemed to be practice at the bar for the purpose of qualification for appointment as a judge. In the case of solicitors, the equivalent provision allows for such service to be deemed to be practice for appointment as a District Court judge. I gave careful consideration to the arguments advanced as to why this provision should not be repealed. On reflection, I accept it might act as a disincentive in terms of the future recruitment of individuals of appropriate calibre and expertise to the commission. In consequence, therefore, I have decided to introduce the changes which are largely contained in amendment No. 10, to which this amendment is related.
I welcome the Minister's listening attitude, which will characterise the progress of Report Stage. I support the amendment.
Amendment agreed to.
Amendment No. 2 is consequential on amendment No. 29. Both may be taken together by agreement.
I move amendment No. 2:
In page 7, line 24, after "MATTERS," to insert "TO PROVIDE FOR THE ESTABLISHMENT AND MAINTENANCE OF A REGISTER TO BE KNOWN AS THE REGISTER OF RESERVED JUDGMENTS,".
On Committee Stage I indicated that I hoped to be in a position to bring forward a Report Stage amendment which would provide for the establishment of a register of reserved judgments. I also indicated that such a provision had the potential to introduce a measure of accountability into this area. The amendment provides for the establishment of such a register. The intention is that its establishment and maintenance will be a function of the Courts Service and that it will be accessible to members of the public. A variety of administrative arrangements will have to be put in train before the register is up and running. For that reason, much of the operational detail which will attach to its establishment will be prescribed by ministerial order. This will facilitate the widest consultation with those who will be called upon to give day to day effect to this proposal.
This is essentially envisaged as a monitoring provision. It is of importance that there be no unreasonable delay in the delivery of court judgments. Litigants have a right to expect that judgment in their cases will be delivered within a reasonable timeframe and I hope the existence of a register of reserved judgments will help to secure the realisation of that legitimate expectation.
This issue was discussed in detail by Deputy Shatter on Committee Stage and I welcome the Minister's view that such a register should be available. It will facilitate the administration of justice through access to judgment by practising lawyers but also by members of the public, where appropriate. I welcome the Minister's listening ear again and support the amendment.
I apologise for being late as I was detained on another matter. However, I heard the debate and welcome the amendment.
Amendment agreed to.
I move amendment No. 3:
In page 7, between lines 38 and 39, to insert the following subsection:
"(3) Sections 21, 28 and 45 shall come into operation on such day or days as the Minister for Justice, Equality and Law Reform may appoint by order or orders either generally or with reference to any particular provision and different days may be so appointed for different provisions.”.
The purpose of the amendment is to provide for commencement provisions in respect of three specified sections. Section 21 will enable increased powers to be devolved to county registrars. Section 28 concerns the enhanced pension arrangements for Mr. Justice Frederick Morris and section 45 deals with the register of reserved judgments, the establishment of which is the subject of another amendment which I will move later. In all three cases, it is appropriate that some measure of discretion be provided in relation to the coming into operation of the provisions.
Amendment agreed to.
I move amendment No. 4:
In page 8, line 3, after "provisions", to insert ", the Courts (No. 2) Act, 1991,".
My advice is still that the amendment is appropriate to ensure the proper citation of the Act. The Minister indicated it is not absolutely required but it is a test of the Minister's openness in terms of a comprehensive Bill whether these technical amendments can be accepted.
Having listened to Deputy Howlin's contribution on this matter, I am pre pared to accept the amendment. This is in line with an undertaking given on Committee Stage.
I am grateful to the Minister.
Amendment agreed to.
I move amendment No. 5:
In page 8, to delete lines 29 to 36 and substitute the following:
"3.–The enactments specified in column (2) of Schedule 1 are repealed to the extent specified in column (3) of that Schedule.”.
Amendment agreed to.
Amendment No. 7 is an alternative to amendment No. 6 while amendments Nos. 8, 15 and 16 are related. Amendment No. 16 is an alternative to amendment No. 15. All may be discussed together by agreement.
I move amendment No. 6:
In page 9, lines 9 to 19, to delete all words from and including "appointment con-" in line 9, down to and including "1950," in line 19 and substitute the following:
"appointment concerned–
(i) a judge of the Court of Justice of the European Communities,
(ii) a judge of the Court of First Instance attached to that Court,
(iii) an Advocate-General of the Court of Justice of the European Communities,
(iv) a judge of the European Court of Human Rights established under the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November, 1950,
(v) a judge of the International Court of Justice established under the Charter of the United Nations,
(vi) a judge of the International Criminal Court established under the Rome Statute of the International Criminal Court done at Rome on the 17th day of July, 1998, upon the entry into force of that Statute,
(vii) a judge of an international tribunal within the meaning of section 2 of the International War Crimes Tribunals Act, 1998,".
On Committee Stage, persuasive arguments were made about extending eligibility for appointment to the superior courts to Irish judges who might in future serve on certain other international courts and tribunals, aside from those already specified in section 4. There were certain technical difficulties inherent in the amendments tabled by Opposition Members, which made it impossible to accept them in the form in which they were drafted. However, an undertaking was given to consider the matter further with a view to tabling an appropriate amendment on Report Stage. The amendment honours that undertaking. The amendment to section 9 is consequential on the adjustments I propose in respect of section 4.
Both Deputy Howlin and I raised these issues on Committee Stage and I welcome the Minister's amendment.
The Minister has decided to broaden the scope of the section to encompass judges who were excluded and accept the content of our amendments. I welcome his amendment and will not press my own.
Amendment agreed to.
Amendments Nos. 7 and 8 not moved.
Amendment No. 14 is related to amendment No. 9 and both may be discussed together by agreement.
I move amendment No. 9:
In page 9, line 27, to delete "2" and substitute "4".
This issue is important. Existing law provides for the appointment of a judge of the Circuit Court to the High Court after four years service. The Minister proposes to reduce the four year requirement to two. Four years is a reasonable period for a judge to experience the operation of the Circuit Court before he or she moves to the superior courts. Otherwise, there could be quick promotions for different branches of the judicial profession and people could move quickly from the District Court to the High Court, which might not be in the best interest of the scrutiny of judges before their appointment. It is a matter of subjective judgment but I am much happier with the four year provision rather than the Minister's proposal.
Essentially, the Deputy proposes that a barrister or solicitor should be eligible for appointment to the Supreme or High Court after 12 years practice while a person who is already a judge would not be so eligible until he or she had aggregated at least 14 years as a practitioner and a judge. Implementation of this proposal would result in inequitable treatment and is not something I could stand over. I am satisfied the approach taken in the legislation, whereby Circuit Court judges who have served as such for not less than two years, are eligible for appointment as a judge of the superior courts, is a reasonable one and there are no proposals to revert to the existing statutory provisions.
The Minister is proposing change, not me. There is nothing inequitable in what I suggest. It is a provision which has been passed by the Oireachtas. I am defending the status quo, which has been argued for by Ministers in the past and agreed by the Oireachtas. However, if the Minister is minded to make this change, for whatever reason, I will not argue further about it.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 10, between lines 12 and 13, to insert the following:
"7.–Section 14 of the Law Reform Commission Act, 1975, is amended –
a) in subsection (2) –
(i) by the substitution of ‘Subject to subsection (2A) of this section, when a person who is a barrister or a solicitor is appointed' for ‘When a person who is a barrister is appointed', and
(ii) by the substitution of ‘shall be deemed to be practice as a barrister or a solicitor, as may be appropriate' for ‘shall be deemed to be practice at the Bar',
and
b) by the insertion of the following subsection after subsection (2):
‘(2A) Service as a Commissioner in a whole-time capacity or a whole-time officer of the Commission shall not be deemed to be practice as a barrister or a solicitor to satisfy the requirement in subsection (2)(a) of section 5 (as amended by section 4 of the Courts and Court Officers Act, 2002) of the Act of 1961 of a continuous period of not less than 2 years practice by a person as a barrister or a solicitor immediately before the appointment of the person as a judge of the Supreme Court or the High Court.'.”.
Amendment agreed to.
Amendments Nos. 12 and 13 are consequential on amendment No. 11 and all may be discussed by agreement.
I move amendment No. 11:
In page 10, between lines 12 and 13, to insert the following:
"PART 3*
Judicial Conduct
7.–(1) Every judge shall uphold at all times the standards set out in this Act and in any code of conduct which may be adopted in accordance with law applying to judicial conduct, the dignity and high standing of the office of judge and his or her own standing as a holder of that office.
(2) It is the duty of every judge –
(a) to comply with the provisions of this Act and of any code of conduct which may be adopted in accordance with law applying to judicial conduct,
(b) not to engage in conduct (whether in the exercise of the office of judge or otherwise) which is dishonest or which may otherwise bring the office of judge into disrepute or which is prejudicial to the administration of justice, and
(c) to observe the ethics and etiquette of his or her office.
(3) Without prejudice to the generality of subsection (2), a judge shall –
(a) act with total impartiality in relation to all persons and matters and shall refrain from treating, or from taking any step or making any comment which could give rise to him or her being seen to treat, any party, witness or lawyer with affection or ill-will,
(b) ensure that all persons appearing before him or her are given a full opportunity to be heard consistent with rules of court,
(c) refrain from any unnecessary criticisms of persons (whether parties, witnesses or lawyers) appearing before him or her, or from any comment, opinion or innuendo extraneous to his or her judicial functions,
(d) act with the utmost courtesy and respect to all persons appearing before him or her, whether parties, witnesses and lawyers, and
(e) be and be seen to be conscious of his or her role as a public servant.
(4) A judge who holds office on the 31st day of December in any year shall, not later than the 1st day of February in the following year, prepare and furnish to both Houses of the Oireachtas a statement in writing (which shall be made available to the public) in such form as may be determined by resolution approved by both Houses of the Oireachtas or in a form to the like effect of his or her interests (within the meaning of the Ethics in Public Office Act, 1995) and additional interests (within the meaning of section 13 of the said Act) during that year.
(5) A judge shall not perform a function of his or her office where he or she or a connected person (within the meaning of the Ethics in Public Office Act, 1995) has a material interest in a matter to which the function relates.
(6) A judge may not accept or retain a gift in circumstances corresponding to circumstances in which an office holder would be precluded from accepting or retaining a gift pursuant to section 15 of the Ethics in Public Office Act, 1995.".
We did not have a substantial debate about this amendment on Committee Stage. It would be difficult for a Member to take great exception to its content.
It mirrors in the judicial system the code of conduct we have applied to ourselves. I gleaned some of the phraseology from my service as a member of the Committee on Members' Interests. It is appropriate that there should be a code of conduct for judges, that there should be a legal requirement to act in the manner which I have outlined in a very detailed amendment and that it should be enforced. Amendment No. 11 sets out the requirements for a code of judicial conduct and the essential conduct that would be appropriate for a judge. No one would object to a requirement for judges to refrain from unnecessary criticism of those appearing before them or from any comment, opinion or innuendo extraneous to their judicial functions. We have seen cases in the past where extraneous comments were made and that does not lend dignity or add public support to the judicial system, upon which our democracy is based.
Amendment No. 12 proposes to enforce the new section with breaches being deemed misconduct so action could be taken. Amendment No. 13 sets out some definitions. The Minister was of the view that this is not an appropriate vehicle for recommendations on judicial conduct whatever their merits. In responding on Report State, I hope the Minister will indicate that, whatever the outcome of the election, he will support the early enactment of judicial conduct legislation.
This is a general matter the Deputy raised on Committee Stage. Even he will acknowledge that the Bill does not provide the correct context for the provisions he proposes. He will also acknowledge that the amendments before us represent only part of the judicial oversight system he had in mind because some of the provisions he earlier sought to have included in the Bill were ruled out of order. These included the establishment of a judicial ethics tribunal to inquire into complaints about alleged misconduct by judges. Leaving aside any other misgivings I have about the Deputy's proposals, it would be totally ineffective to propose ethical standards without an enforcement system. A judicial coun cil or ethics body of some kind is needed for this purpose.
Judicial conduct and ethics have been considered in the recent past by the constitutional review group and by the Oireachtas All-Party Committee on the Constitution which, inter alia, recognised the need for improved oversight of judicial conduct and, in the case of the all-party committee, recommended the establishment of a judicial council to review judicial conduct. More recently, a report from a judicial committee established by the Chief Justice also recommended the establishment of a judicial ethics and oversight body. I framed proposals to act immediately in this area by proposing a constitutional amendment to be followed by legislation to establish a judicial council and ethics committee. Regrettably the Government felt compelled to withdraw the proposals because of the failure of the main Opposition parties to support them.
It is unfortunate that the attitude of the Opposition led to the withdrawal of these proposals, thereby depriving the judicial system and the public of a new, open and accountable system for investigating complaints and a clear and fair procedure for removing a judge from office should that become necessary at any time in the future. I remain convinced, however, of the need for action in this area, particularly for a judicial ethics and oversight body. In that respect, preliminary work on legislative proposals has continued in my Department.
Amendment, by leave, withdrawn.
Amendments Nos. 12 to 14, inclusive, not moved.
I move amendment No. 15:
In page 11, lines 22 to 29, to delete all words from and including "of" in line 22, down to and including "office" in line 29 and substitute the following:
"of–
(a) judge of the Court of Justice,
(b) judge of the Court of First Instance attached to that Court,
(c) Advocate-General of the Court of Justice,
(d) judge of the European Court of Human Rights established under the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November, 1950,
(e) judge of the International Court of Justice established under the Charter of the United Nations,
(f) judge of the International Criminal Court established under the Rome Statute of the International Criminal Court done at Rome on the 17th day of July, 1998, upon the entry into force of that Statute,
(g) judge of an international tribunal within the meaning of section 2 of the International War Crimes Tribunals Act, 1998,
shall vacate the office concerned before the President appoints the person to a judicial office".
Amendment agreed to.
Amendment No. 16 not moved.
Amendments Nos. 17, 18 and 19 are cognate and will be taken together by agreement.
I move amendment No. 17:
In page 12, line 12, after "qualifications" to insert ", ability in the Irish language".
There was some díospóireacht on Committee Stage on this matter and I was disappointed at the Minister's attitude. He was pressed for time but the essence of his response was that individuals in Gaeltacht areas had access to judges with ability in the Irish language. That runs counter to the point I was trying to make – a consensus point in this House and certainly one notionally advanced by the Government – that all citizens of this country have the right to do their business through the Irish language, trí Ghaeilge más mian. It is not a right that falls simply to citizens who happen to reside in Gaeltacht areas.
The majority of Irish speakers live in the Gaeltacht. In Dublin a huge number of people use Irish as a means of communication and send their children to scoileanna lánGhaelacha. The Gaelscoil movement is raising a new generation of citizens with an even greater facility in the Irish language than their parents. Therefore, it is reasonable to include ability in the Irish language. The amendment was suggested by Comhdháil Náisiúnta na Gaeilge, a group that would have the respect of the House. I hope the Minister will demonstrate his south Kerry and Fianna Fáil credentials in defence of an teanga Gaelainn and accept the amendment.
This proposal was discussed at some length on Committee Stage and I cannot accept it. I indicated previously that bilingualism is not a requirement for judicial appointment. Sections 44 and 71 of the Courts of Justice Act, 1924, state that circuit and district judges assigned to areas where Irish is in general use should possess a sufficient knowledge of Irish to dispense with an interpreter only in so far as may be practicable. Recording a subjective view of a person's ability in the Irish language is no indication of the ability of that person to conduct court proceedings through Irish, which requires fluency. The fact that judges are not required to be fluent in the Irish language in no way reflects on their ability as judges. I do not propose to have statis tics collected on matters that are not directly relevant to the question of suitability to be a judge.
Ba mhaith liom, áfach, mo chomhghairdeas a dhéanamh leis an Teachta Howlin as ucht an mhéid Ghaelainn atá aige – tá sí go flúirseach aige agus níl aon Gaeltacht in a dháilcheanntar.
Tá mé buíochach as an méid atá ráite ag an Aire fá mo chuid Ghaeilge. Is mór an trua nach bhfuil sé toilteanach an leasú a ghlacadh.
Amendment, by leave, withdrawn.
Amendments Nos. 18 and 19 not moved.
I move amendment No. 20:
In page 12, after line 48, to insert the following:
"(3) For the purposes of this section a case shall be deemed to be partly heard only if the judge concerned has embarked upon the actual hearing of the case for a significant period of time and in particular a case shall not be deemed to be partly heard only by virtue of the fact that the judge has dealt with any interim or interlocutory aspect thereof or with the listing of the case for the purpose of fixing a date, the giving of directions, or any other purpose.".
It was the intention of the Minister, in inserting a retirement age for judges, that where a case had been commenced by a judge, he would hear the case to its conclusion, notwithstanding the passing of a chronological age. The amendment seeks clarity regarding the control of a case in order that a judge who has only preliminary dealings with a case does not regard it as necessary to continue with it for months beyond his or her statutory retirement date. The amendment is reasonable and fair in that it clarifies what judges should do in these circumstances and may lead to different attitudes being adopted with regard to the retirement date of judges. I hope the Minister has had a chance to reflect on the matter since Committee Stage and will accept the amendment.
I have broad sympathy with the basic premise that litigants are entitled to expect that the hearing of their case is not frustrated by matters outside their control. The provision I have inserted in the Bill provides that a judge who is appointed to a higher court may complete cases which he or she has partially heard in the lower court. I am satisfied that this progressive arrangement is sufficient to deal with the vast majority of cases which may arise in future and I am not prepared to accept the amendment.
The provision in question was the subject of consultation with the presidents of the various courts. It is important that a measure of discretion is given to the presidents in so far as the day to day running of court business is concerned. This provision is flexible and achieves this. The flexible, discretionary approach is preferable to the one suggested by the Deputy which, while calling for statutory definition of "partly heard" is also very general in its approach in that it includes phrases such as "significant period of time" and "any other purpose".
I argued my case on Committee Stage and as I am not fundamentally at odds with the Minister on this matter, I will not press the amendment.
Amendment, by leave, withdrawn.
Amendment No. 21 in the name of Deputy Shatter arises out of committee proceedings and amendments Nos. 22, 23, 24 and 25 are related. The amendments may be discussed together by agreement.
I move amendment No. 21:
In page 13, line 6, to delete "€100,000" and substitute "€70,000".
This series of amendments relates to the increased jurisdiction which the Minister proposes be extended to the Circuit Court. His proposal extends the current Circuit Court jurisdiction to litigation involving claims of up to €100,000. This is a very broad extension of the present jurisdiction which gives rise to two problems. First, it is widely accepted and of great concern among the legal profession that the Circuit Court will have a huge amount of additional work as a consequence of the change and will lack both the resources and staff to cope. Second, there is a concern that, should the need to recruit and train additional staff cause a lengthy delay in implementing the change, it may in practical terms take another year to 18 months before the Circuit Court has the increased jurisdiction necessary to take into account not only inflation since 1981, but also the reality that cases which should really fall within the jurisdiction of the Circuit Court are being dealt with at High Court level. These cases could be heard quicker and at less legal expense to the litigants involved in the Circuit Court. I propose, therefore, that the Circuit Court jurisdiction maximum be €70,000 rather than €100,000.
By directing that claims be dealt with at Circuit Court level where they involve a sum not sufficiently substantial to go before the High Court, the Minister also had in mind the possibility of reducing insurance charges in the context of compensation claims for which insurance companies are liable. The insurance industry has expressed concern that, by raising the maximum order to such a dramatic degree, the provision may have the reverse effect to that intended by the Minister. This would result in increased compensation orders being made by the courts and higher insurance premiums for motor insurance and other general liability insurances. Were the Mini ster to take on board my amendment, the resourcing of the Circuit Court to facilitate it coping with the additional jurisdiction would not be as great a difficulty as it might be otherwise.
The second amendment deals with the District Court jurisdiction, which the Minister proposes to increase to €20,000. I propose a figure of €15,000 having regard, again, to the capacity of the District Court and the resources which may be needed as a result of the dramatic increase currently proposed. The very real concern is that it would detrimentally impact on the capacity of the District Court to deal with litigation in other areas such as family law. There is a substantial and growing backlog of family law cases in a number of District Courts. If the additional jurisdiction in general litigation is conferred on the District Court, the huge number of additional cases which would descend on it would create additional difficulties in terms of the time required to process family cases. For these reasons, I ask the Minister to accept the amendments.
I support the amendments. There has been a great deal of debate outside the House on the proposed extension of jurisdiction, in particular, of the Circuit Court. There is a strong view emanating from legal circles, which is even stronger in the insurance industry, that it would have repercussions not envisaged by the Minister. I am minded, in particular, to listen to the insurance industry's argument that the measure will add to insurance costs. The Minister would be among the first to recognise that the one thing we do not need is further pressure on insurance costs.
Insurance, whether public liability, motor vehicle or business insurance, has a huge impact on the viability of companies and the mobility of individuals. The viability of a number of companies, all of which have made representations to various Deputies, is at stake because of insurance costs. If the insurance industry alerts us to a real danger, it behoves us to respond in kind, not dismiss its real fears. If the measure leads to higher insurance costs, it will impact on employment in a very difficult period in which small firms are struggling. Insurance is already the second most onerous cost on companies after payroll costs and if matters continue, it will challenge payroll as the most significant cost. I seek an assurance from the Minister that these matters are being carefully analysed. Will he indicate to us what specific contacts and dialogue he or his officials had with the insurance industry in this regard and give an absolute assurance that the consequences people fear from this measure will not become a reality?
I am aware of the Deputies' concerns about the proposed increases and the monetary jurisdictions of the Circuit and District Courts which are envisaged in the Bill. I believe these concerns will prove to be unfounded. It is more than a decade since the jurisdiction limits were last increased. The increases now provided for are being pitched at a realistic level and are appropriate to today's society. They will, I hope, remain valid for some time. As I am convinced they are appropriate, I do not propose to accept the Deputy's amendment.
In deciding on the levels of increase the Government was anxious to ensure that the resources available to our courts are used in a more rational and efficient manner. It is desirable that our citizens have easier access to the court system and that access should be at a level of cost which is not excessive. The jurisdiction increases are geared towards achieving these twin aims.
I envisage that the impact of reduced costs will be beneficial both to the State, where it is a party to an action, and the individual litigant. We must trust our judges in terms of their competence in dealing with the increased jurisdiction limits. As to the need for increased resources, the proposed jurisdictional increases are to be brought into effect by ministerial order which will facilitate the appropriate timing of the changes. It is premature to assume our courts will not have the capacity to deal with the changes when introduced. I have confidence in the innate flexibility of our system. The impact of the changes will also be monitored from the outset. Should remedial measures be called for, any necessary action can be taken. I am not prepared to act hastily in this matter, however.
Representations on the question of increasing the jurisdictions of the courts came from the self-insured task force group of public sector bodies. Representations were also received from the Irish Insurance Federation and from IBEC. I met them, listened to their arguments and told them I was not convinced that the proposed increase in jurisdictions would lead to increased claims and settlements. I instanced, for example, the proposal to establish a new personal injuries assessment board to provide an alternative and less costly means of determining damages – not liability – as something which may greatly impact on the whole area of personal injury litigation.
I am conscious that on Report Stage the Minister may not get in again but I invite him to give one sentence to clarify something.
I detailed my concerns and do not want to detail them again. I am sorry the Minister is unwilling to take them on board. I note from his contributions both on Committee Stage and today that he does not want to change these provisions but is saying he will not change them in a precipitate way. I agree with the Minister on one point – there is an urgent necessity to increase the jurisdiction of both the Circuit and District Courts, whose jurisdiction has remained unchanged since 1991 despite the increases in inflation since then. However, the Minister is not indicating to the House by what date he expects to bring in these provisions. My concern is that if the Minister has pitched the increased jurisdiction too high, in a year or two he may still be looking for the resources to enable these provisions to be brought into force and instead of us improving the position regarding the courts, matters may remain as they are for a lengthy period.
I invite the Minister to indicate when, should he still be in office after the next election, he would envisage making the ministerial order required to introduce the new extended jurisdiction in the Circuit and District Courts. While doing so will he indicate if he will introduce the new extended jurisdiction he is proposing in the family law area practically immediately? Those do not raise the concerns expressed here and really deal with the inflation issue. There is an urgent need to give the District Court, for example, a broader jurisdiction in granting maintenance support orders than it has at present and that has remained unchanged for 11 years.
It is certainly not intended to long finger these proposals.
Question, "That the figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 22:
In page 13, line 12, to delete "€20,000" and substitute "€15,000".
Question, "That the figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 23 to 25, inclusive, not moved.
I move amendment No. 26:
In page 19, between lines 42 and 43, to insert the following:
"31.–Section 27 of the Act of 1995 is amended by the substitution of the following subsection for subsection (6):
‘(6) Without prejudice to the provisions of Order 99, rules 12(1), 38(2), 29(12) and (14) of the Rules of the Superior Courts, 1986, or without prejudice to any enactment regulating the charging of fees payable in the Taxing Master's Office on the taking up of a certificate of taxation, on the taxation of a bill of costs (whether on a solicitor and client or party and party basis) no solicitor or legal cost accountant or other cost drawer shall be entitled to any fees, disbursements, charges or expenses in relation to the taxation of costs as against the opposing party, but save as against the party who incurred such fees, disbursements, charges or expenses.'.".
This is a somewhat complicated issue that has already been discussed at some length on Committee Stage. It is primarily to ensure that the successful litigant in a court case is not frustrated by the losing litigant in obtaining funds as a result of an order for costs made in favour of the successful litigant. I drew to the attention of the Minister a court judgment in 2001 which unexpectedly changed what had been the legal position going back to 1905 and this sought to redress the difficulty deriving from that court judgment.
Without going over the ground I covered on Committee Stage and delaying the House in doing so, I add one further point. This issue is also of importance to the State because when the State is successful in litigation, gets an order for costs against an unsuccessful litigant and the Taxing Master of the High Court determines how much the unsuccessful litigant has to pay towards the legal costs incurred by the State, by lodging objections to the decision of the Taxing Master an unsuccessful litigant against whom an order for costs has been made may be able to string out for some time the possibility of the taxation of costs process being complete. As a consequence the State may be delayed from securing the costs to which it is entitled. On the basis of changes introduced to this Bill the unsuccessful litigant who behaves that way will suffer no serious interest penalty as a consequence of the Minister reducing the interest that accrues to costs in these circumstances from 8% to 2%.
The amendment is not just to protect the successful private litigant who gets an order for costs but is also designed to protect the position of the State in recouping costs against those who are found to have brought proceedings wrongly against the State and against whom an order for costs has been made.
On Committee Stage I indicated that while I had some sympathy with the arguments which the Deputy put forward in support of this amendment, the matter needed to be looked at further. I also indicated that the area of taxation is a somewhat arcane branch of the law and was the subject of a detailed review in the context of a number of provisions advanced in the 1995 Courts and Court Officers Act.
In the time available I have not been able to satisfy myself that the removal of the discretion provided for in Order 99, Rule 38(2) is inadvertent. I regret therefore that I am not in a position to accept this amendment at this time. While I am not accepting the amendment, the Deputy has raised an issue which warrants further consideration and if, on closer examination, there seems to be merit in restoring the discretion in question, I am sure the Minister of the day will be willing to incorporate an appropriate provision in a subsequent courts Bill.
It seems that objections to taxation are properly regarded as one aspect of the taxation process. The argument about drawing out proceedings is also applicable to the general taxation process. For example, if one party is willing to agree costs the other can still insist on taxation. This highlights the fact that this may not be a net issue and must be viewed in a broader context. Therefore I have said there should be a willingness to examine this matter further and to deal with the issue if it proves necessary.
I regret that the Minister is not willing to take this on board. The court case to which I referred is one which involved the State and in which the State appealed a High Court decision to the Supreme Court. It changed what had been the perceived legal position since 1905. In the circumstances I would have expected the Minister to welcome this amendment, which will inevitably be defeated today. I urge the Minister to go back and look at this amendment in the context of progressing this legislation before the Seanad. It is in the public interest to adopt this amendment and also in the interests of the State.
Amendment put and declared lost.
Amendment No. 27 not moved.
I move amendment No. 28:
In page 23, to delete lines 33 to 43 and in page 24, to delete lines 1 to 25.
This is a peculiar issue to have in a statute. The amendment seeks to delete section 37 which deals with the 2000 Act. All Acts referred to in the definitions section of this Bill are Courts Acts, with the exception of the Planning and Development Act, 2000, which is known as the "Act of 2000" in section 37. Although the Minister says he is merely interested in preserving the status quo, it seems that is not the case, as we have enacted new planning legislation since the original Courts Acts. Part of the running process of planning legislation is to ensure the State and its agencies are subject to planning considerations in the same manner as other citizens. There are certain provisions for certain public works, such as the Part X provision, but it is important that the State does not, by and large, exempt itself from the planning laws it deems appropriate for everyone else. When the Supreme Court ruled on plans for an interpretative centre at Mullaghmore, my colleague, Deputy Michael Higgins, argued that the right of the State to overrule normal planning should be extremely circumscribed.
It is inappropriate to amend the Planning and Development Act as the Minister proposes in this section. I hope he has reflected on the matter since Committee Stage and that he will not proceed with this section. If he does proceed, it is incumbent on him to give a compelling reason for doing so. It is not good enough for him to say he is simply preserving the status quo of a Courts Act of many years ago. There needs to be a coherent reason why planning law introduced in 2000 should be amended and circumvented as is envisaged.
The Deputy appears to object in principle to the fact that the courts service has a certain status in relation to planning matters. It should be borne in mind that enactment of the provisions of section 43 will ensure that the historical position of the courts in planning matters is maintained. If the courts service were to be subject to the full rigours of the Planning and Development Act, certain adverse consequences would ensue. For example, the time taken to complete planning procedures would increase from two months to a year. Delays in new projects would result in increased exponential and short-term repairs to buildings of a poor standard and expose the State to substantial inflationary pressures. There would be adverse cost implications for the courts service and its users if venues were closed, for whatever reason, without a temporary or permanent replacement venue being available from an early date because of the length of the planning permission process. There would be a loss of momentum in the capital programme and the capacity to respond urgently to acute accommodation problems would be reduced. Finally, there would be a risk of legal censure due to delays in meeting obligations arising from mandamus proceedings in respect of certain venues.
I assure the Deputy that the courts service consults with Dúchas, An Taisce and local authorities on the restoration of courthouses and has a good record of sympathetic consideration. The proposal for the courts would put them in the same position as the Garda and the prisons service. I am conscious, as I am sure Deputy Howlin is, of the fact that we are dealing with an issue of security.
I find the Minister's reasoning very unsatisfactory, as, in essence, he is telling us that the planning laws we deem appropriate for citizens are a hindrance to his Department. The argument that projects would be delayed is flawed, as developers and others involved in worthwhile commercial or social construction projects are subject to planning regulations in the normal manner. This House enacted the Planning and Development Act to create a framework for proper planning and development, but while that is grand for ordinary citizens, the Minister is saying it is too burdensome for his Department. It is not good enough that we should cut corners, to use a phrase which has been in vogue this week, in case a judge might say he cannot get on with his job quickly enough.
I do not agree with the Department's argument that court buildings should be exempt from normal planning. There is a much more compelling argument in the case of a prison as it may be regarded as anti-social by those in its vicinity, but courts do not attract the same degree of opposition, by and large. Regardless of whether there is opposition, planning regulations should not be ignored on the grounds of being too burdensome. If they are genuinely burdensome, they should be amended for everybody. The notion that the system is grand for everybody but not for court buildings is simply unsustainable in an era where planning is an extremely important issue and where views on planning are of paramount importance to those who defend them trenchantly. There is something unacceptable about inserting a small section in a Bill stating that planning legislation does not apply to State agencies, given that we have only recently enacted general provisions for planning, after years of preparation and debate.
The fact that it was always intended that the courts service would be a State authority for the purposes of the 2000 Act puts the issue beyond doubt and mirrors the position enshrined in the Courts Service Act, 1998. I assure Deputy Howlin that there are holding cells in courts as well.
Amendment, by leave, withdrawn.
I move amendment No. 29:
In page 24, after line 30, to insert the following:
"45.–(1) The Courts Service shall establish and maintain in the prescribed form and manner a register of every judgment reserved by the Supreme Court, the High Court, the Circuit Court and the District Court in any civil proceedings to be known as the Register of Reserved Judgments (in this section referred to as ‘the register').
(2) Such particulars as may be prescribed in respect of any proceedings in which judgment is reserved shall be entered in the register.
(3) Subject to subsection (6), if judgment in the proceedings concerned is not delivered within the prescribed period or periods from the date on which it is reserved, the Courts Service shall list the proceedings before the judge who reserved judgment therein on a date not later than such period as may be prescribed after the first-mentioned prescribed period and shall give notice of the listing in the prescribed form to the parties to the proceedings and a copy of the notice to the President of the Court concerned.
(4) The judge concerned shall, on a listing of proceedings under subsection (3), fix a date not later than such period as may be prescribed after the listing by which judgment in those proceedings shall be delivered.
(5) The date fixed under subsection (4) shall be entered in the register in relation to the proceedings concerned.
(6) Subsection (3) shall not apply if the judge who reserved judgment in the pro ceedings concerned dies, or if the judge concerned is ill, for the duration of his or her illness or in such other circumstances as may be prescribed.
(7)(a) The register or any part of it shall be kept at a place or places to be prescribed and shall be made available for inspection by any person on payment of such fee (if any) as may be prescribed and at such times as may be prescribed.
(b) A person may, on a request being made by him or her in the prescribed manner and on payment of such fee (if any) as may be prescribed, obtain a copy certified in such manner as may be prescribed of any entry or entries in the register.
(8) The functions of the Courts Service under this section shall be performed by the Chief Executive Officer of the Courts Service, but such of those functions as may be specified by him or her may be performed by such member or members of the staff of the Courts Service as may be authorised in that behalf by him or her.
(9)(a) The Minister for Justice, Equality and Law Reform may by regulations provide for any matter referred to in this section as prescribed or to be prescribed.
(b) Different periods may be prescribed under subsections (3) and (4) in respect of proceedings of different kinds and, in particular, shorter periods may be prescribed in respect of applications for interim or interlocutory orders.
(10) In this section, references to a judge shall, in the case of a court constituted of more than one judge, be construed as references to the presiding judge of the court.
(11) In this section—
‘prescribed' means prescribed by the Minister for Justice, Equality and Law Reform by regulations under this section;
‘reserved', in relation to a judgment in court proceedings, means where a decision in the proceedings or the reasons for such decision or both are not announced by the court immediately upon the conclusion of the hearing of the proceedings but instead are postponed—
a) without a date for such announcement being specified at the time, or
b) for a period of not less than 14 days after such conclusion.".
Amendment agreed to.
I move amendment No. 30:
In page 25, line 5, to delete "Subsections (2) and (3)" and substitute "Subsection (3)".
Amendment agreed to.
Bill, as amended, received for final consideration and passed.
Sitting suspended at 6.50 p.m. and resumed at 7 p.m.