Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013: Second Stage

Tairgim: "Go léifear an Bille an Dara hUair anois."

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

I am pleased to present the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013 to the House. This Bill brings us a further step along the road towards the establishment of a court of appeal which has long been called for and was explicitly provided for in the programme for Government.

The case for the establishment of a court of appeal has been well rehearsed. The previous Government established a working group on a court of appeal in 2006. The group, which published its report in August 2009, was chaired by the current Chief Justice and comprised members of the Judiciary, representatives of the Bar Council and the Law Society, and senior officials from the Attorney General's office, the Departments of the Taoiseach and Justice.

The report includes a comprehensive analysis of the then current situation in the Supreme Court, a review of the position in other common law countries. It sets out a path, including proposed constitutional change that has garnered the support of most parties interested in the reform of our courts system. When the report was written, the waiting time for cases was two and a half years. In the intervening years, that delay has lengthened to over four years meaning that someone lodging an appeal with the Supreme Court today could not expect to have their case decided before 2017. Delay is truly the enemy of justice or as the old maxim goes, justice delayed is justice denied. A former Chief Justice of the United States of America, William E. Burger, put it well when he spoke of inefficiency and delay draining "even a just judgment of its value".

Our citizens have a right, recognised in Article 6 of the European Convention on Human Rights, to a fair and speedy trial. Ireland has already had to pay compensation to individuals who have successfully taken cases to the European Court of Human Rights on delay. It is not just our reputation from the point of view of human rights and rule of law that is in the dock. Today's international business world works best where the law is clear, where the Judiciary is independent and where those who find themselves either asserting their rights or defending their actions before the courts can expect to know the final outcome without undue delay. International investors, all things being equal, will favour a country with an efficient and effective legal system over one without such a system.

It is worth going back to see how Ireland has reached the current pass with delay in the Supreme Court. When the Courts (Supplemental Provisions) Act was passed in 1961, it provided for four ordinary members of the Supreme Court and five ordinary members of the High Court, a more or less equal allocation of resources. There are now 36 High Court judges, a six-fold increase, whereas the number of Supreme Court judges has only doubled from four to eight ordinary judges.

Over the years the volume of litigation has increased dramatically meaning that there are more cases to hear. However, as important to the growth in the backlog of cases, if not more important, is the fact that litigation has become infinitely more complex. In the commercial field, to take one example, the scope and complexity of transactions and the speed with which they can be effected could only have been imagined until recently.

A mile down river from the Four Courts is the International Financial Services Centre, IFSC, home now to banks and financial institutions from around the globe and to major international accountancy and legal firms whose clients include the world's largest corporations. The success of the IFSC, or the great work that IDA Ireland does in attracting foreign direct investment into Ireland, is done no favours by an overloaded courts system that is incapable of dealing with the administration of justice in a reasonable timescale.

However, structural reform, important though it is, is never the sole answer to problems such as the Supreme Court backlog. I am not so naive as to think that the creation of a court of appeal is, of itself, the answer. Changing structures, appointing new bodies, and so on, can create the illusion of progress and reform while leaving in place the practices and procedures that gave rise, at least in part, to the problems in the first place.

I want to place on the record my own and the Government's appreciation of the leadership provided by Chief Justice Denham and her management of the Supreme Court list. The creation of a new court provides an opportunity for the courts and the Courts Service to explore new ways of doing business, rather than replicate what already exists, to take a fresh look at how work is done and the scope for the deployment of new technologies.

The court of appeal could be an incubator of new approaches and could in time become the template for the operation of the other courts. There is an opportunity seldom afforded within an existing system to look around at other countries to see what can be done to ensure the new court develops its own distinct culture reflecting the importance of its work but also its approach to that work. My view is that such an approach should be one that is focused on efficiency and the use of all available technologies to deliver value for money and a better experience for users of the service. This is a once-in-a-lifetime opportunity not to be wasted. The court of appeal's judicial leadership will be entrusted with the pioneering task of establishing a new court. It will be in its hands to seize the opportunity that this presents and I assure it of every support in that task.

Usually Bills providing for an amendment to the Constitution are relatively straightforward. They propose an amendment of an article and the people vote on it. If it is accepted, the article is changed and that is the end of the matter. This Bill, like the one providing for the abolition of the Seanad, is considerably more complex. That complexity arises mainly from the fact that if the people vote in favour of the establishment of the court of appeal, there will be no court of appeal in existence when the President signs this Bill.

The reason for that is simple. The establishment of the court of appeal will require the enactment of an implementation Bill that will provide for the court, the appointment of judges, their remuneration, and a number of other issues. That Bill cannot be enacted unless the people approve the amendment and even then, it will take some time from the enactment of that Bill to physically establish the new court. I hope to be in a position to outline the key elements of the implementation Bill in advance of the holding of the referendum, so that there is the opportunity for people to see what it is intended to provide for in the legislation. That Bill will be enacted in the first half of 2014 and all going well, I expect that the new court will be established in the autumn of 2014.

There will undoubtedly be some interest in the number of judges to be appointed to the court of appeal. The Courts and Civil Law (Miscellaneous Provisions) Bill 2013, which is currently before the Oireachtas, provides for the appointment of two additional judges to the Supreme Court, bringing its complement, including the Chief Justice, to ten. This will allow the Supreme Court to sit in two divisions, which I expect will allow it to make progress on the backlog of cases waiting to be heard. By the time the legislation providing for the establishment of the court of appeal is being processed, we will be in a better position to decide on the appropriate number of judges to appoint to the court of appeal. It should be noted in this context that the court of appeal will be taking over the work of the Court of Criminal Appeal. That court, which currently sits on an ad hoc basis, with a combination of Supreme Court and High Court judges, also has a backlog of cases. My expectation is that the court of appeal will sit in divisions with a dedicated criminal division, at least in the initial stages. Overall, my preliminary assessment is that the new court will require ten judges, nine ordinary and a President, but the final decision on this can only be made when we have a clearer picture of the backlog which will then exist. However, there is no point in creating a court of appeal and then starving it of resources. If all this exercise results in is people waiting four years for their cases to be heard by the court of appeal rather than by the Supreme Court, it will have been an entirely nugatory exercise and a failure. Our objective must be that after the court of appeal is established, appeals from the High Court will be heard within a reasonable timeframe.

In the normal course, I would now proceed to go through the Bill section by section and explain each section. Given the way that the Bill is drafted, with most of the content in Schedules, this would be very confusing. Instead, I propose to deal with the different issues in the Bill as units and explain where they occur and what they mean. I hope that will make it easier to understand and for Deputies to engage with the Bill and frame any questions they wish to ask or issues they wish to raise.

Section 1 provides for the definitions used in the Bill. The "establishment day" is the day the court of appeal is established on foot of the enactment of "the relevant law", which is the implementation Bill referred to just now. Section 2 deals with the commencement provisions and I will deal with those as I go through the Bill. Section 3 will be commenced on enactment of the Bill. That means that on enactment, the Constitution will be amended to include the text in Schedules 1 and 2. Schedule 1 provides for the addition of the court of appeal to the list of courts contained in Article 34.2. Schedule 2 is a new Article 34A which will be inserted on enactment, but which will not appear in the text of the Constitution once the court of appeal has been established. The new Article 34A provides for the enactment of a law, the implementation Bill to which I just referred, providing for the establishment of the court of appeal, as soon as practicable after the enactment of the Bill. That law will require the Government to appoint by order "the establishment day", which is the day the court of appeal is established.

Sections 4, 5 and 6 will commence on the day the court of appeal is established. Section 4 of the Bill refers to Schedule 3, which sets out a new section 4 to be inserted in Article 34 of the Constitution. A new section 4 provides that the court of appeal will have appellate jurisdiction from the High Court and such other courts as may be prescribed by law and the decisions of the court of appeal are to be final, except in the limited circumstances where an appeal may be allowed by the Supreme Court. The section further provides that no law may be enacted to exclude cases concerning the constitutionality of statutes from being heard by the court of appeal. Section 4 also provides for a renumbering of sections 4 and 5 of Article 34 to take account of the insertion of the new section 4.

Section 5 refers to Schedules 4 and 5 of the Bill. The amendment contained in Schedule 4 provides that the Supreme Court will hear an appeal from the court of appeal, provided that it is satisfied that it concerns a matter of general public importance or that it is necessary in the interests of justice that the Supreme Court hears the appeal. The amendment contained in Schedule 5 provides for the taking of appeals directly from the High Court to the Supreme Court in exceptional circumstances. This so-called "leapfrogging" provision is intended to allow the Supreme Court to hear cases which meet the criteria set out for appeals from the court of appeal to the Supreme Court, where there are exceptional circumstances that warrant it being heard by the Supreme Court. Exceptional circumstances could include cases where there is a particular urgency and where the Supreme Court is satisfied that the case would be accepted by it on appeal from the court of appeal in any event. Section 5 also provides for the renumbering of subsection 4° following the insertion of new subsection 4° in Article 34.4.

Subsections 2(f) and (g) of section 5 provide for the deletion of subsection 5 of Article 34.4. This subsection contains the so-called "one-judgment" rule. That rule provides that the Supreme Court may only issue one judgment when it hears challenges to the constitutionality of legislation. The application of the rule in these circumstances and in Article 26 referrals was considered in considerable detail by the Constitution review group, which recommended that the rule be deleted from Article 34 but retained in Article 26.

It is my strong view that justice is best served by giving the Judiciary the freedom, where they so desire, to give judgments, including minority judgments, on important matters concerning the constitutionality of our laws. For the time being, this reform, in line with the review group's recommendation, is limited to the Article 34. Therefore, if the referendum is carried, both the court of appeal and the Supreme Court will be able to issue multiple judgments in cases involving challenges to the constitutionality of laws, in the same way as in all other cases that come before them.

Section 6 deals with a number of other amendments to the Constitution consequential on the establishment of the court of appeal. These are listed in a table set out in Schedule 6.

Article 12.8 is to be amended to provide for the inclusion of the president of the court of appeal among the list of judges before whom the President of Ireland must make his declaration or oath. Article 14.2.2° is to be amended to provide for the replacement of the President of the High Court by the president of the court of appeal as the person who would substitute for the Chief Justice on the Presidential Commission, if the position of Chief Justice were vacant, or if he or she were unable to act. Paragraph (i) of Article 31.2 is to be amended to provide that the president of the court of appeal shall be an ex-officio member of the Council of State. Article 34.3.2° is to be amended to include the court of appeal, with the High Court and Supreme Court, in the list of courts to which an appeal concerning the constitutionality of legislation may be heard. The amendment to Article 34.6.2° - currently Article 34.5.2° - provides for the swearing of the judicial declaration by judges of the court of appeal. Article 35.1 is amended to provide for the appointment of judges of the court of appeal by the President. Article 35.4.1° is amended to provide for the removal of judges of the court of appeal in accordance with the provisions of that section. I will return to this provision later when I deal with section 7 of the Bill. Paragraph (i) of Article 36 provides for the regulation by law of the number of judges, their remuneration, age of retirement and pensions. The amendment adds the court of appeal to the list of courts covered by the provision. Article 40.4.3° deals with habeas corpus cases and is being amended to provide that where the High Court is satisfied that the person is being detained in accordance with the law but that the law is unconstitutional, the High Court shall refer the question of the validity of the law to the court of appeal rather than to the Supreme Court as at present.

Section 6 also refers to Schedule 7, which deals with how the cases that are before the Supreme Court when the court of appeal is established are to be dealt with. Schedule 7 contains a new Article 64 that is to be inserted into the Constitution on the establishment day, but is not to appear in texts of the Constitution published one year after that date. It provides that cases that have been heard or part heard by the Supreme Court on establishment day will be determined by the Supreme Court. Where a case has not been heard, the Supreme Court may transfer the appeal to the court of appeal, or a party to the appeal may apply to have the case transferred.

The Schedule clarifies that the reference to an appeal having been heard in full or in part does not include the hearing of an interlocutory application in relation to the appeal or, unless the appeal itself concerns a procedural matter, the hearing by the Supreme Court of any procedural or application or motion in the matter. Section 7 deals with the interface between this Bill and the Thirty-second Amendment of the Constitution (Abolition of Seanad Éireann) Bill 2013. Both the Seanad abolition Bill and this Bill provide for the amendment of the same subsection 1° of Article 35.4. The provisions in section 7 and in Schedule 8 cover the sequencing of those amendments, should they both happen, to ensure that at all times after the establishment of the court of appeal, its judges are subject to the impeachment provisions in Article 35.4. After all that, Members will be glad to hear that the final section, section 8, deals with the citation of the Bill.
In conclusion, I do not believe that the status quo of ever-lengthening queues of cases lining up to be heard by the Supreme Court is tenable. Something has to be done. There will be arguments as to the best approach, but the Government has taken the view that the working group chaired by now Chief Justice Denham, which examined the issue for over two years and reported in 2009, provides the roadmap to the optimum solution. It is the approach favoured by those who engaged in the consultation process on the issue and is the only one that delivers a constitutionally based court of appeal. It is the solution that ensures that the Supreme Court will only hear cases that merit its attention and that there is a coherence to our courts' architecture which is not there at present. I am pleased to commend the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013 to the House and I await with interest the contributions of Members.

Fianna Fáil supports this Bill. The creation of a new court of appeal will alleviate the workload of the Supreme Court, reduce its four-year backlog and ensure that citizens have swift and less costly access to the justice system. The creation of such a court was advocated in our 2011 general election manifesto, based on a report we commissioned while in Government. The removal of the one judgment rule allows for informed dissenting opinions and greater consistency in Supreme Court rulings across the spheres of law. However, it is important that the Government overcome the unseemly spats it has had with the Judiciary and engage in meaningful consultation in the development and implementation of this legislation and future reforms.

The creation of a new court of appeal will facilitate the significant increase in the number of cases going to the Supreme Court, thereby reducing the long delays appellants face in getting their cases heard and reducing the resultant costs. The 2009 working group report commissioned by Fianna Fáil in government advocated the creation of a new court to reflect the need to eliminate undue delay in processing appeals, create an appeals structure which would be cost-effective, enhance the administration of justice in the superior courts and increase certainty in the law through the prompt publication of reasoned decisions from the Supreme Court. Chief Justice Susan Denham has previously warned that the failure to address the problem of delays in Ireland's appeal court system could damage society and the economy. Serious delays of up to four and half years in hearing Supreme Court appeals have an impact on the economy and on Ireland's international reputation.

The original legal infrastructure of the State was established in the 1922 Constitution and replicated in the 1937 Constitution. The massive increases in litigation and population since then have generated significant changes in the High Court structure. The constitutional constraints placed on the Supreme Court led to its remaining stationary in the face of the pressing need to adapt to new demands. The removal of the one-judgment rule was advocated by the Constitutional Review Group in 1996 and is widely endorsed by the legal profession as a step towards enhancing informed legal opinion and debate in the country.

Fianna Fáil is concerned about the unseemly public disputes the Minister for Justice and Equality, Deputy Shatter, has entered into with the Judiciary and we fear they may undermine the real need for a substantive engagement with the Judiciary on matters of critical importance. Tinkering with the Constitution, the fundamental law of the land, must be carefully thought out and fully debated.

Significant shifts in the population of the country and its economic structure have challenged the legal architecture of the State to adapt to new circumstances and increased demands. A new court of appeal will help us tackle these problems. The number of High Court judges has increased from seven to 36, while the Supreme Court has only expanded from five to eight judges in the same period, thus creating a major gap in capacity. While progress had been made in the establishment of a commercial court to fast-track disputes, appeals from this court were still subject to the same delays as experienced by the Supreme Court. Unlike the Supreme Courts in the United States or the United Kingdom, which hear fewer than 100 cases per year, the Irish Supreme Court cannot filter out cases that are not of exceptional constitutional and public importance. This has resulted in a waiting list of up to four years. These onerous delays in Supreme Court judgments jeopardise Ireland's international obligations. Under the European Convention on Human Rights, member states are obliged to ensure that excessive delay does not occur in domestic proceedings. Ireland is also a signatory to a Council of Europe protocol which states that everyone convicted of a criminal offence has the right to have his or her conviction or sentence reviewed. Ms Justice Denham has stated:

The current situation in the Supreme Court ... is unsustainable, it is untenable, it cannot be defended. An appeal certified as ready yesterday is in danger of not getting a date for hearing until mid 2017.

Speedy resolution of disputes is important to a successful economy and the rule of law must apply if we are to ensure swift access to justice for all. The courts also perform an important task in supervising the activities of regulatory bodies and it is important that the supervisory jurisdiction of the courts be exercised promptly and efficiently. Delays in processing such legal challenges impede the efficient performance of regulatory bodies.

The removal of the one-judgment rule in Article 34.5 reflects the need for informed dissenting opinion in creating good laws and allowing appeals to future generations of jurists who will come to the law with fresh eyes. It also illustrates the need for consistency in the legal system, given that since 2003 judges have been able to declare laws incompatible with the European Court of Human Rights, ECHR. The no single judgment rule applies to the Supreme Court in respect of the ECHR. The single judgment rule does not apply to actions by the Government or State entities such as the Garda or the Prison Service.

It is essential that we avoid a breakdown in working relations between the Judiciary and the Government. Each has to respect the constitutional role of the other. We must not see a recurrence of the situation that arose last April whereby an apparent breakdown of that relationship resulted in the establishment of a new communications forum chaired by the Chief Justice. Any proposal by this or future Governments to introduce significant changes to the workings of our courts by way of constitutional amendment must be subject to full consultation with the Judiciary. This is why it is important that the Government and the Judiciary maintain a frank and positive working relationship. We are happy to support this Bill.

This Bill provides for the establishment of a new court of appeal. A referendum is required to make the necessary constitutional provision for the establishment of such a court.

If the referendum is passed, the new court of appeal will hear appeals from the High Court, and the Supreme Court will hear cases on appeal from the court of appeal and, in exceptional circumstances, from the High Court. This reform would, as we all know, bring about a major change in the courts system and ease the four-year backlog of cases at the Supreme Court, which would in future take only appeals on constitutional issues or cases of major importance. Sinn Féin supports this legislation and the proposition that the question be put to the people.

We are currently in a situation where some very important cases of a constitutional nature are waiting a number of years to be heard. I firmly believe this should not be the case. I welcome the idea behind the legislation before us which seeks to resolve this issue. Unfortunately, the Bill does not specify the number of judges who will sit on the new court and we are told that this and the age of retirement, pension conditions and remuneration will all be set out later in legislation.

I want to take the opportunity to speak briefly on the issue of judicial appointments. We have had opportunities to engage on this in the past, but I would like to add to what has been said. As the Minister knows, I launched the Reform of Judicial Appointments Procedures Bill earlier this year. I did so in the hope that this would put an end to the system of political appointees being made judges. This should not rule out people who have been involved in politics. It is healthy for citizens to be involved in politics, but we would like more accountability in terms of the process. Our Bill would amend the way in which the Judicial Appointments Advisory Board operates in order to increase transparency and accountability in judicial appointments, a reform which is badly needed.

Confidence in the justice system is contingent on a Judiciary which is free from political control or political or other bias and it is essential that there is an independent and impartial Judiciary which is representative of the community it serves. I appreciate there have been excellent articles on the eight current judges who sit on the Supreme Court, including the Chief Justice, in the press recently. When we look at their respective CVs, we see they are people of eminent qualifications. However, sadly, when people are appointed politically, this leaves an impression we need to deal with. We cannot have a situation where there are questions regarding the appointment of people who love the law, are extremely talented and are committed to the service of the people because of the process of their appointment.

Future judicial appointments should be drawn from a wider pool of qualified candidates, which in turn would enhance confidence in the justice system. For too long, throughout the length and breadth of the State, we have all been aware of stories relating to how judges were appointed with a wink and nod after demonstrating their loyalty to either Fianna Fáil, Fine Gael, the Labour Party, the Progressive Democrats or whoever. The days of the old boys' club, which dominated the legal and political spheres in Ireland, must come to an end. They have failed our people. The practice of the Government appointing judges, senior judges in particular, must be ended if the public is to have any faith in a Judiciary free from political or any other bias. The sheer number of judges appointed politically adds to an already embedded and unfortunate public perception of the Judiciary. We in Sinn Féin call for the establishment of a fair and accountable appointment and removal process for the Judiciary that involves meaningful lay participation representative of the public interest. We believe that judicial independence is undermined by the current appointment process in the 26 counties.

The Judicial Appointments Advisory Board was established in the wake of the controversial appointment of Harry Whelehan as President of the High Court in 1994 and was meant to have removed sole discretion for judicial appointments from government. However, there is still political involvement in the appointment of the Judiciary as the Judicial Appointments Advisory Board merely provides a short list of seven qualified candidates to the Government, which then makes the appointments of judicial officeholders. The appointment procedures should be transparent in order to enhance public confidence in the process. The current Government promised to be a reforming government and to put an end to the "jobs for the boys" culture but, looking at its appointments so far, it is clear a number of them are of people associated with the Fine Gael and Labour Parties. This is unfortunate.

I also want to speak about the need for a judicial council and the capacity for people to raise their concerns. We need full accountability. The majority of people in the Judiciary who have served the State down through the years were people who were eminently qualified and who had every right to be where they were. They have given considerable service to the State, particularly those at the higher end. Consider, for example the eight current members of the Supreme Court. I have no doubt they are all eminently qualified and love the law and the work they do. However, we need to put an end to the current process of selection. Our Bill provides for this. I know the Minister has concerns, but the Bill can be amended and tweaked. We need to get to a point where we have a small shortlist, preferably a list of three, from the Judicial Appointments Advisory Board. The list should outline the reasons for their selection and the Government could then outline the reason for an appointment. This process must be set out in a way that can be shaped, argued and debated. There must be no question mark over the appointment of a member of the Judiciary so that they remain and are bona fide genuinely independent.

Another issue is that the Supreme Court decides on matters of constitutional importance. Therefore, we need a balance in the Supreme Court of people from different perspectives. To understand the need for balance, all we need to do is to listen to the debate that took place in this House till 5 a.m. This House of 166 Deputies is representative of Irish society. Participants in the debate were people from the left and people from the right, people who are liberal and people who are conservative. We need the Supreme Court to be genuinely representative of all political perspectives in the State. That is why it is important that the appointments are independent and strike the right balance, particularly given the powers these judges have in terms of the Constitution and its interpretation and in terms of holding governments to account.

Access to the courts and to justice is a constitutional right, yet the expense of these can run into extremely high figures, thereby acting as a barrier to people seeking to exercise this right. We know that if cases move faster, the chances of reducing costs are better.

Another point I want to raise concerns the referendum. We have put dozens of referendums to the people of the State over the years, some with greater success than others. The Constitution belongs to the citizens of the State and they reserve the right to change it as they see fit. We owe it to the people to do this in an appropriate fashion. We need to ensure that when this eventually goes to the people, they understand exactly what they are being asked to vote on. We need to explain the question in as clear a way as possible and explain both sides of the argument in a clear, balanced and open fashion.

The plan envisages that the new court of appeal will deal with most cases that are currently dealt with by the Supreme Court, which would therefore reduce the higher court's workload and allow it to focus on the development of the law. There are to be two tests to decide what types of appeal the Supreme Court will hear: the first is public importance, and the second is where it is in the interests of justice that the appeal by heard by the highest court in the State. In exceptional circumstances, where these tests of public interest and the interests of justice are met, the Supreme Court will be able to hear appeals directly from the High Court.

The Supreme Court in Ireland, unlike equivalent institutions in other common law jurisdictions, is the court of final appeal, not only for constitutional matters but for all appeals from the lower courts. Figures published this week by the Courts Service show that the court received 605 appeals last year, a 21% increase on 2011. It gave judgments in 121 cases, compared to 64 in the United States Supreme Court and 85 in the Supreme Court in London.

It is important to welcome the creation of a new court, where proceedings take place within a reasonable time, as an inefficient court system is costly. Runaway legal costs must be tackled. I commend the reform efforts being made in the context of the debate on the Courts and Civil Law (Miscellaneous Provisions) Bill, the Second Stage debate of which will take place tomorrow. This Bill includes some very important and welcome reforms. This is good governance and we need more of the same. I also applaud the Minister on his concept of a separate family law system.

Many exciting announcements have been made in the past few weeks. Credit where credit is due. My job is to oppose and hold to account, but it is also to acknowledge when things are moving well. Let us have the backlog in the Attorney General's office addressed, if we can. Good legislation needs to move quickly. We need to get the Legal Services Regulation Bill moving in the autumn as the delays have been very frustrating. While we may not agree on all the changes the Minister seeks to bring forward, we will probably agree on more than we disagree on. There are many exciting developments on the way in the reform of the courts system and its efficiency. I hope we can have the judicial appointments issue addressed and I will work with the Minister in the next few years to develop that debate.

This measure is welcome and we will support it. While we need to talk about the wider reforms that need to happen in the Judiciary, there are many welcome developments. I offer my support to the Bill and ask the Minister to take on board some of the concerns I have highlighted.

The establishment of a court of appeal to handle the bulk of cases emanating from the High Court is long overdue and welcome. Unfortunately, I cannot stand here and not criticise the manner in which the Bill is passing through Second Stage today, although the guillotine may not be required to be used. The Bill was published on Tuesday. We have a full slate of legislation and have had very long sittings this week to debate the Protection of Life During Pregnancy Bill, as well as committee meetings to deal with the Estimates. This is the kind of legislation of which we should have had sight earlier. It should not feel like it is a fait accompli and that there is no time to consider and table amendments that might be taken. This is especially so when it comes to constitutional amendments. I value the fact that we have a written Constitution. I would be afraid to say when I bought my first copy of the Constitution, but it is a while back and at the time one had to be 21 years of age to vote. I still have that copy in my office. We have to be very careful about what we include in it because every line and comma means something and it has to read in harmony. The courts system is part of this.

People must have confidence in the courts system. One reason they do not have confidence in it is there are long delays on issues that really should pass through the system much quicker. From that point of view, one would have to welcome the changes, both in regard to the civil courts and the proposed constitutional amendment.

To come back to the substance of the proposed amendment, the workload of the Supreme Court is unsustainable. None of us can ignore the comments of the Chief Justice, Mrs. Justice Susan Denham, in this regard. Not long ago she was very vocal, rightly so, in pointing out that it could take until 2017 at the earliest to deal with new non-priority cases and there were upwards of 70 cases on the priority list. Even in the Court of Criminal Appeal we are seeing waiting times of 15 months. The Chief Justice has moved to reduce delays, for example, by changing holiday times to help address this issue in some way, which was a positive gesture. She has rightly pointed out that it is important, both domestically and internationally, that the courts system function well and in a timely way. She has said the courts perform an important task in supervising the activities of regulatory bodies and that it is important the supervisory jurisdiction of the courts be exercised promptly and efficiently. I do not believe there is a citizen in the country who would not agree with her on that point.

To the Minister's credit, he has responded to the problems identified. The Courts and Civil Law (Miscellaneous Provisions) Bill provides for an increase in the number of Supreme Court judges to nine, which will allow for three judge panels to sit and, I hope, get through the backlog, although this obviously will take time. The move to establish an intermediate level court of appeal to help address the bulk of the delays is, therefore, extremely welcome in that context and, of course, in the context of our international obligations under the European Charter of Fundamental Rights, which I have to keep on saying was probably the only reason I could talk myself into voting for the Lisbon treaty. The European Charter of Fundamental Rights is important to me and, obviously, there is a relationship between it and the courts.

For the public to have confidence in the courts system, it is often said justice must be done and be seen to be done in a timely manner, as memories can fade. Long delays threaten public confidence in the administration of justice. Unfortunately, I know this institution has lost a great deal of confidence. We have to make sure, therefore, that we do not diminish confidence in the courts system.

There is also the economic impact, to which the Minister referred when he stated:

It is not just our reputation from the point of view of human rights and rule of law that is in the dock. Today's international business world works best where the law is clear [and] where the Judiciary is independent...

I completely agree. It should not take the Chief Justice to point this out for us to take it on board, although I am not suggesting she is the only one who did so. This is incredibly important.

Another point to bear in mind is that the quality of justice can diminish over time. As I said last week, people move on from organisations, including regulatory bodies. People's memories fade if they are asked to be witnesses. Witnesses often die, records can be lost and, given the large volume of records now available, people have to be asked to go back to remind themselves where records are located. This is very inefficient, if nothing else.

I welcome the provision that spells out which cases the Supreme Court will be able to take instead of their being taken by the new court of appeal, namely, cases of general public importance, similar to the US Supreme Court. It is critical to have swift decisions made in these cases. Does this mean that the vast bulk of the backlog of cases will merely be transferred to the new court and will that itself cause a backlog? How will this function?

Another point on which I seek clarification is whether the Court of Criminal Appeal will remain in operation. It has been intended since the mid-1990s to dissolve this court, but that could not happen because of its workload. What is the intention now? I do not believe we can look at such matters in isolation. The various levels of the courts system work in harmony.

The Minister has said that during the years the volume of litigation has increased dramatically, but the question is why this has happened. Are there measures that could reduce the workload of the courts? For example, in some areas mediation is a much more valuable tool and it may be that this service needs to be beefed up to make sure issues that could end up in the courts end in a more satisfactory arrangement for all involved.

Of course, the Government participates in a very large number of court cases.

During my previous time in the Dáil, from 2005 to 2007, I recall raising the issue of a number of cases that were taken against the State by parents seeking appropriate education for their children. I asked on one occasion how much money the Government had spent in the three years preceding 2006 in fighting those cases. The answer I received - that the expenditure amounted to some €20 million - has remained indelibly marked in my mind. I did not understand how such a situation could be tolerated, where the throughput of cases was such as to entail a level of expenditure which would have been far better allocated to the delivery of services. That figure of €20 million seemed to me to amount to an almost criminal expenditure. The parents in those cases merely wanted appropriate education for their children. The last thing they wanted was to end up in the courts and the ordeal of going through the judicial process put huge stress on their families. We must be very careful to avoid similar cases in the future. Where there is a particular class or category of claimants, such as the parents to whom I referred, the Government would do well to consider whether institutional or service provision changes might end up being less costly in the long run and providing a better outcome for all concerned.

I support the principle of the legislation, but I regret the manner in which it has been presented to us. As I recall the constitutional amendment to provide for an enhanced functionality for Oireachtas inquiries was also rushed and presented to us as a fait accompli. I pointed out at the at that the third paragraph of the text of that proposal would be problematic, which proved to be the case. The flawed process by which that legislation was brought forward meant that the outcome was inevitably compromised. The people rejected that referendum for more reasons than simply the problematic wording, but it was probably a factor in the defeat of the amendment. It is vital, in this instance, that we get the process right. In the case of any constitutional amendment, there must be an adequate lead-in process, early engagement and early publication of proposals. We must have the opportunity to table amendments which are sensible and warranted. We are all citizens of this country and it is our Constitution. We are in this House on a temporary basis, but we will continue to be citizens after we leave it. We deserve nothing less than the type of scrutiny that is afforded by the provision of sufficient time for debate and adequate forewarning of what is proposed.

I propose to share time with Deputy John Paul Phelan.

The Thirty-third Amendment of the Constitution (Court of Appeal) Bill provides for the establishment of a new court of appeal, for which a referendum is required. If the proposal is accepted by the people, the new court will hear appeals from the High Court, while the Supreme Court will hear cases, on appeal, from the court of appeal and, in exceptional circumstances from the High Court. The Bill does not specify the number of judges who will sit on the new court, their remuneration, age of retirement or pension provision. These matters will be set out in subsequent legislation.

The superior courts in this country currently comprise the High Court, the Court of Criminal Appeal and the Supreme Court. The High Court is the superior court of first instance and is invested, under the Constitution, with full original jurisdiction in and power to determine all matters and questions, whether of law or facts, civil or criminal. The original jurisdiction of a court is the right to hear a case for the first time. Appellate jurisdiction, on the other hand, refers to the right of a court to review the decisions of a lower-level court. The Court of Criminal Appeal is not mentioned in the Constitution and was instead established by way of statute. It is the only intermediate appellate court in the State. The Supreme Court is the court of final appeal. It operates mainly as an appellate court and its original jurisdiction in respect of cases not heard before another court is extremely limited.

Under the Constitution there are three fundamental organs of the State, namely, the Legislature, the Executive and the courts. The role of the latter is to administer justice. Factors affecting the operation of the courts include population growth in the State and the nature of modern litigation, including an increase in the number and complexity of cases. Ireland is currently out of line with other common law countries in so far as all appeals from the High Court are heard by the Supreme Court. Other countries, including the United Kingdom, Australia, New Zealand and Canada, have a court of appeal which hears appeals from the equivalent of the High Court, with only the more important cases, including those relating to the development of law, being heard by the equivalent of the Supreme Court.

This means that in countries far larger than Ireland, such as the United Kingdom and the United States, the supreme courts deal with proportionately far fewer cases than does our Supreme Court. Over the past 40 years there has been a sixfold increase in the number of High Court judges, but the membership of the Supreme Court has merely doubled. As a result, a rising number of increasingly complex cases are being appealed into the bottleneck that the Supreme Court has become. There is now a four-year backlog of cases before the court. This prompted the Chief Justice to announce earlier this year that the court could not admit any new cases to its priority list.

On the day the court of appeal is established, the Supreme Court will retain within its jurisdiction all appeals lodged prior to that date. A new Article 64 is being inserted into the Constitution setting out how this caseload will be dealt with. This article will appear in texts of the Constitution published one year after the establishment of the new court. Cases that have been part heard or fully heard by the Supreme Court will be determined by that court. The Chief Justice may, with the agreement of her colleagues, transfer classes of cases to the court of appeal for hearing and determination by that court. In addition, parties to an appeal may apply to the Supreme Court to have their case transferred to the new court. Appeals from the Court of Criminal Appeal will be dealt with by the Supreme Court in accordance with the rules applying to such appeals before the court of appeals is established.

I commend the Minister on bringing forward this Bill, which I very much support. A significant backlog has developed in the courts system in recent years, particularly in the case of appeals to the Supreme Court. The Minister referred to the maxim that justice delayed is justice denied. He also pointed to Article 6 of the European Convention on Human Rights, which lays out the responsibility of every signatory to ensure its citizens have access to a timely process of justice. That principle is the cornerstone of this legislation, which paves the way for a referendum later in the year on the establishment of a new court of appeal. We already have the Court of Criminal Appeal, which is not specifically referenced in the Constitution and was instead established by statute. It is appropriate that our constitutional provisions, primarily contained in Article 34, should reflect what has been a significant part of our legal system for several years.

It will become a significant part of the legal system on the civil side in the context of a substantive court of appeal. It was a commitment given in advance of the general election and contained in the programme for Government and it is appropriate that the Government is acting on it.

I hate the term "stakeholders", but this is an example of how the stakeholders have been engaged by the Minister and his officials in the Department in coming to an agreement that the question be put to the in a referendum to establish a new court of appeal system. I add my support to it and commend the Minister for his diligence.

Speaking as a member of the Joint Committee on Justice, Defence and Equality, there is no doubt that most of the legislation going through the Oireachtas is from the Department of Justice and Equality. The Minister is particularly diligent and while I do not always agree with him on everything, he is a man of exceptional ability. He takes a particular interest in making sure the courts will operate more efficiently into the future. I commend him for acting in this way and fully support the proposition which will I hope be put to the people before the end of the year.

I thank all Members who spoke on the Bill for their supportive comments. For many years it has been my view that we should have a court of appeal and that we need constitutional change. The work of the working group chaired by Chief Justice Denham substantially laid the foundations for the implementation of this change. It was a commitment in the programme for Government that we would hold a referendum. It is a referendum of crucial importance and part of the radical reforming agenda of the Government to provide the best possible justice system, modernise our structures to bring them fully into the 21st century in the interests of citizens and those engaged in business and commerce and ensure Ireland will remain an attractive destination for multinational companies wishing to locate here or those already located here which may wish to expand. There is an assurance that if legal difficulties arise which require an individual, a citizen, an individual business and a corporation or multinational company to resort to the courts, they will be assured justice will be administered within a reasonable time and that, if there is a need to go through an appellate system, the appellate system will operate within a reasonable timeframe. I thank Deputies Niall Collins and Pádraig Mac Lochlainn for the support their parties have given to the legislation and thank Deputy Catherine Murphy for her contribution.

This is an important issue and it is important that the referendum be successful. Deputy Catherine Murphy has made the point that the reason for bringing the legislation before the House this month and our objective of completing its passage during the course of this month is to ensure there will be a proper lead-in period to the holding of the referendum in order that those who will vote on the proposal will fully understand its nature, why it is of advantage to the State and every individual that we have a court of appeal and that it is worthy of an overwhelming "Yes" vote. We cannot establish the new court without the support of the citizens of the State by way of a majority voting in favour of the proposal. I hope there will be an overwhelming vote in favour of it. I do so as Minister for Justice and Equality and a lawyer for many years. It is a matter of fundamental rights that people can litigate in the courts in a manner that ensures justice is done within a reasonable time. A court of appeal will be an extra legal structure within the court architecture to ensure we fully meet our legal obligations under the European Convention on Human Rights and that court proceedings are heard and determined within a reasonable timeframe.

Deputy Niall Collins made reference to spats with the Judiciary. I can assure him that there is no spat of any description with members of the Judiciary. As Minister for Justice and Equality, I have an excellent and appropriate relationship with the Chief Justice and the presidents of the various courts. Through the Office of the Attorney General and, where appropriate, directly through the Department, we consult and engage with the Judiciary on matters of relevance to the courts and the Courts Service. There was extensive consultation with the Judiciary in the development of the Bill. There were issues to be addressed and teased out, particularly relating to the current backlog of cases awaiting a hearing in the Supreme Court and the appropriate mechanism to ensure that, within an independent court structure, arrangements would be made to address the issue in an appropriate way, should the referendum prove successful.

Deputy Catherine Murphy asked whether, when the court of appeal was established, all cases before the Supreme Court would be transferred to the court of appeal and that what was a four year backlog in the Supreme Court would become a four year backlog in the court of appeal. That must not happen. It is a matter for the Supreme Court, by the application of an appropriate legal principle, to determine the cases it is appropriate to retain and the ones that should be transferred for hearing in the court of appeal. It is important there be mechanisms to address that issue, a matter to which further attention should be given in the preparation of the establishment Bill. It will be the subject of appropriate consultation with the Judiciary.

This is a very important proposal, not just for citizens of the State but also for the economy. It is important that this country be an attractive destination for business to locate here. One of the rule of law issues examined in this context is the independence and efficiency of court systems. In the most recent survey by a global forum Ireland was rated No. 4 in the world in the context of independence and efficiency. I want us to be rated No. 1 and the enactment of this provision and the establishment of the court of appeal can bring about that result. We need the support of the general public in that regard.

Deputy Pádraig Mac Lochlainn raised the issue of judicial appointments, on which he has published a Private Members' Bill. I have said the Department is conducting a review of the legislation applying to the Judicial Appointments Advisory Board. In 2014 I hope the review will be complete and any appropriate amendment to be made to legislation will be for consideration. The Deputy has said the engagement of individuals in politics, whether as solicitors or barristers, should not exclude them from appropriate appointments to the Judiciary. However, he then went on to criticise the fact that some of the appointments made by the Government had been of individuals identified with either the Fine Gael Party or the Labour Party. A survey was carried out and 70% of the appointments made during the lifetime of the Government were of individuals with no known association, not known to me certainly, with the Fine Gael Party or the Labour Party. Two thirds of the members appointed to the Judiciary had no such association; 30% had some association, but many of them were tangential and none of the associations had anything to do with the judicial appointments made.

All of the judicial appointments which have been made by the Government of new individuals - that is, persons who were not sitting judges who were promoted - have been of individuals included in the recommended list for appointment of the Judicial Appointments Advisory Board. We have not gone outside that list of names. I emphasise that they have all been appointed on merit. It is often only when I open the paper on the morning after an appointment that I discover an appointee has a tangential relationship with someone in politics. I tend personally to be unaware of people's engagements, bar those of a very small number who I know in the legal world who engaged in politics. One cannot say, on the one hand, that we should encourage people to engage in politics and that such engagement should be no barrier to appointment to the Judiciary and, on the other, criticise the appointment of any person who has previously engaged in politics. The one thing that can be said about the Judiciary is that since the foundation of the State in 1922, it has acted independently and made decisions independent of politics. While there were concerns in this area prior to the establishment of the Judicial Appointments Advisory Board, it is very difficult to find any judgment delivered by a member of the Judiciary since 1922 which was influenced by a political allegiance. I say that as a lawyer, not as a politician. We may all disagree with the conclusions reached in some cases or the reasoning adopted. As an academic lawyer, I have written articles about judgments with which I agreed or sometimes disagreed. None of this disagreement or agreement has been about politics, any person's background in politics or any suggestion that a member of the Judiciary has made a decision based on political bias. While looking at how we can provide an even better appointments system than the one we have, we should be careful not to raise public concern about the correct, independent, decision-making processes of members of the Judiciary.

A reform that was mentioned briefly is one I consider to be of great importance. It involves improving the transparency of the Supreme Court and applying the same principles to the new court of appeal where there is a constitutional challenge to existing legislation. The reform involves providing that all judges who sit to hear constitutional challenges to existing legislation may deliver, if they so wish, individual judgments. That would provide full transparency regarding the thinking and decision-making of the individual members of the court rather than there being a composite judgment which does not set out the views of individual judges on an issue of public importance. One of the great strengths of the Supreme Court of the United States of America has been the freedom of each judge to deliver in every case his or her own judgment. Dissenting judgments that might be delivered in one era may become the majority view in a different era in which there is greater insight and understanding of an issue. Thus, fundamental and important change may be effected. It is important to have that level of transparency and that members of the Supreme Court are not shackled in any way in their independent capacity to deliver judgments on issues of very substantial importance to the State. Whenever there is a constitutional challenge to legislation enacted by the Houses of the Oireachtas, it is important that there is full visibility of the decision-making processes, the reasoning applied and the manner in which the Judiciary responded to the arguments they heard from contesting parties on issues of public importance. This is a welcome reform. It provides greater visibility on important issues of constitutional and human rights. I hope it is widely welcomed.

I thank Deputy Catherine Murphy for raising certain other issues. She will know that I am an enthusiastic supporter of mediation. As someone who worked as a practising lawyer in the courts for many years, I am firmly of the view that far too many contested cases which are only settled outside the door of the court would more rapidly have been resolved if there had been an earlier intervention and parties agreed to resolve issues of conflict by way of mediation. There would have been a great deal less stress and substantial financial savings would have been made. We are addressing court architecture in this legislation. I published heads of a mediation Bill a few months ago, but it will not come to the House in final form until the end of the year or early next year. It is a Bill designed to encourage those who seek to head down the litigation route to engage in mediation before they go too far. We must do everything we can to encourage alternative dispute resolution mechanisms.

In particular, I thank Deputies Peter Fitzpatrick and John Paul Phelan for their contributions to the debate and supportive comments. While this appears to be a simple and worthwhile reform, it is important that Deputies engage with it and understand the benefits to the State, their constituents and every citizen of bringing about this change. It will be important for them to encourage a "Yes" vote and to ensure those voting understand the benefits of the proposal when a referendum is held on the issue. It will require an engagement by all Members within their constituencies. I hope the fact that the proposal is universally supported across the political divide will convince people that it is worth voting "Yes" to.

Deputy Catherine Murphy mentioned litigation in which the State is engaged and what can be done to resolve it earlier and at less expense. Of course, mechanisms are now put in place to encourage this. We have the State Claims Agency, for example. Where litigation to which the State is party can be resolved without full court hearings or where the State has been in error, such matters should be dealt with at the earliest opportunity and not left to be resolved outside the door of a court five minutes before a case is heard when all of the relevant costs have been already incurred and taxpayers may have to carry the bill. Deputy Murphy also asked if the Court of Criminal Appeal would be abolished. The court performs a very important role. It is not a court that sits every day, but one which sits from time to time. Not only is there a backlog of cases awaiting hearing in the Supreme Court, there is a backlog of cases awaiting hearing in the Court of Criminal Appeal. The architecture being proposed in the Bill seeks to create an overall court of appeal which sits in two divisions as a court of criminal and, for want of a better description, civil appeal, respectively. It is not a question of simply abolishing the Court of Criminal Appeal, but rather one of creating a constitutional architecture and foundation for a permanent version of the court with permanent judges whose remit will be to hear appeals. This is a genuinely important reform. It is, I think I am correct to say, the first reform of our courts structure resulting in the creation of a new court since the Constitution was adopted by the people in the referendum of 1937. It is the first step along the road to structural court reform.

Deputy Mac Lochlainn mentioned the Courts and Civil Law (Miscellaneous Provisions) Bill which is currently going through the Houses. That Bill seeks to modernise the jurisdictions of the courts to bring them up to speed after 22 years, and addresses a number of other issues which were referred to in the House already and which I will not revisit.

The next step along the route in this reforming agenda is that we will be addressing the issue of providing an independent integrated family court structure. This was the subject of an important seminar held on Saturday last. I look forward to further discussion on the creation of that court and the changes that will be needed to bring it into being, but we will come to that on another day.

Cuireadh agus aontaíodh an cheist.
Question put and agreed to.

When is it proposed to take the Committee Stage?

Céim an Choiste ordaithe don Mháirt, 16 Iúil 2013.
Committee Stage ordered for Tuesday, 16 July 2013.
Sitting suspended at 4 p.m. and resumed at 5 p.m.