Court of Appeal Bill 2014: Second Stage (Resumed)

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

I propose to share time Deputy John Paul Phelan. I welcome the opportunity to speak on the Court of Appeal Bill 2014 and I congratulate the Minister on getting the legislation to this stage. I also congratulate the Minister for Justice and Equality on her continuation in office. It is appropriate that, on this day, there is another justice reform being progressed by a Government that has made more reforms in this Department, and so many others, than the last crowd did in its 14 years in office.

The Bill is technical in nature and we all know how we got to this point. The Bill follows a referendum in October 2013 and gives effect to the decision, bringing the country in line with best international practice in having a court of appeal. We know the phrase that justice delayed is justice denied and a backlog in the Supreme Court means many people face substantial delays in having cases heard by the Supreme Court. It is not an adequate situation. The Court of Appeal was mooted for many years and the previous Government established a working group on the issue. The working group reported in 2009 and was chaired by the current Chief Justice, Ms Susan Denham. That we have arrived at this point is welcome, as is the commitment of the Minister, earlier today, that the court will be in place for the commencement of the new legal term in the autumn.

I will use this opportunity to comment on greater matters concerning the Judiciary, some of which is linked to the Bill. Looking at the gender balance on the High Court and Supreme Court, the list on the Courts Service website shows that three of our Supreme Court justices are women. The Chief Justice is one of those. The High Court has six women out of 36 judges. It is an appallingly low rate on a day when the Cabinet doubled its representation of women. This amounts to the highest number of women ever in Cabinet although it is still quite low. We must ask ourselves about gender balance in our court system, particularly the High Court where women represent six out of 36 or one sixth. It is an interesting and a worrying statistic.

The Minister referred to judicial appointments in her speech on Second Stage. There have been controversies about appointments in general. I am not sure there is ever a perfect system and a significant amount of work is being done on this. One of the themes of the review is the potential for the Judicial Appointments Advisory Board and this is welcome. As well as the board, we should look at the criteria for judges. Gender is a factor that should be considered. We need the Judicial Appointments Advisory Board to complement the reforms the Minister is making in introducing this new court.

There is a question of who judges the judges. I have come across this in my constituency. Judges are human beings and can make mistakes. It is very important to have separation of powers, which I strongly support and respect as essential in a democracy. There must also be a degree of judicial oversight, something that has been talked about for many years. Are we really saying that impeachment is the only way to address a matter if a judge makes a genuine error or if there is an allegation of wrongdoing? I came across a family law case recently where a judge had given an oral verdict on custody, access and other issues. The order produced by the registrar did not mirror what the judge said in court, in the eyes of one of the parties. Under current rules, I cannot write to the Minister about it, which is proper order given judicial independence. I cannot write to a judge, nor should I. The court registrar does not seem to have a role in this. If there is a genuine error, are we telling families in family court case that they must return to court? There must be a process that allows the errors that occur in all our lives to be quicker and easier to remedy without putting substantial new costs on people who are already struggling with the high cost of the law in this country. I ask the Minister to examine this matter in respect of typos in judgments. Typos can make a big difference where, for example, the first Saturday of every month is replaced with the second Saturday of every month. I have seen an extensive exchange of correspondence between my constituents and the Courts Service and it seems the only option open to the family is to return to court, join the waiting list, get a hearing and run up more legal fees. We must examine this.

We must also examine our free legal aid system and resourcing it. The Minister is aware of the report released this week or last week on the number of people using free legal aid in respect of personal debt. This is due to the economic situation the country found itself in and people finding themselves in this situation has placed an additional burden on our free legal aid structures. This must be examined and we cannot have a situation where someone is up against a bank in court for mortgage arrears or to protect a property and is entitled to free legal aid but cannot access it in time.

This legislation arises in the context of giving effect to a decision in a referendum. A commitment in the programme for Government refers to having an electoral commission. It does not come under the responsibility of the Minister for Justice and Equality but I appeal to her, as a member of the Cabinet, to fulfil the commitment in the programme for Government. The former Minister for the Environment, Community and Local Government, Deputy Phil Hogan, did substantial work on it. We will have a series of referendums in this country. It is inefficient to set up a referendum commission every time because we can do so much in respect of voter education, voter registration and providing people with information. There is a commitment about the electoral commission in the programme for Government. The referendum commission did a good job in terms of providing people with information about the Court of Appeal referendum. Considering a court of appeal is of such benefit, it was quite difficult for the referendum to get the hearing it deserved because it was run on the same day as the referendum on the Seanad. I welcome the establishment of the new Court of Appeal and I welcome the fact that we are at this point. I welcome that the court structures will be in place by autumn. I ask the Minister to examine gender in judicial appointments, judicial oversight, and the broader issue of how we conduct referendums and provide people with information in the run-up to a referendum.

I am glad to have the opportunity to make some brief points on the Court of Appeal Bill, which I welcome and support. I saw only part of the Minister's contribution in which she outlined that she hopes to have the court in operation by the start of the next legal term.

This is an issue that has been waiting to be resolved for a number of years and the introduction of this legislation follows on from the referendum last year to introduce a court of appeal. I will not rehash the points made by previous speakers but there are massive delays in our legal system that have an immediate impact on families, individuals and businesses because of the absence of a court of appeal. The Supreme Court, which is the ultimate appellate court, has been clogged in recent years and focusing more of its time than was originally intended when the Constitution was drafted hearing appeals from decisions of the High Court.

It is interesting to examine some of the information on the establishment of the Court of Appeal. In the 1960s there were five Supreme Court judges and now there are ten. There were seven High Court judges; I did not realise the number was so low. I understand there are now 36.

We have seen a huge increase in the workload of the Supreme Court and the High Court, and in the Circuit and District Courts. The role of the Supreme Court has changed substantially from what was originally envisaged, namely, to examine matters such as legislation referred by the President after consultation with the Council of State, the constitutionality of legislation passed by the Oireachtas, and other such matters. It was a deliberative court set-up but in recent years much of its time has been taken up hearing appeals from the High Court, which was not to be its main function.

Appeals will continue to be heard by the Supreme Court in a limited number of instances. That is necessary and important, but it is hoped that the establishment of the Court of Appeal will see the end of delays of three or four years in hearing appeals. Deputy Harris is correct that justice delayed is justice denied. It is a bit of a cliché but it is the truth, and in this instance it is apt to what we are discussing. That is why I am delighted the Minister is in a position to establish the court before the next legal term begins.

I apologise for not hearing the Minister's entire contribution but on the construction of the new Court of Appeal, how is it envisaged to deal with cases either currently before the Court of Criminal Appeal or in the system? What will be the transitional arrangement? The Minister might outline in her concluding comments the way those cases will be dealt with.

I echo the points Deputy Harris made on the free legal aid system. As politicians, we often get complaints in that regard. It is a tricky situation in the sense that the general public often correctly believes it is inappropriate that people with multiple convictions continuously avail of free legal aid at the expense of the taxpayer. The overriding purpose of our legal system must be to ensure that those people who cannot afford to defend themselves have the right to put up a defence in court. They are two conflicting positions. While the rates paid to lawyers under the free legal aid system as it currently operates have been reduced, that service is essential. People who find themselves in court may lose their liberty for a long period of time, and they have a right to a defence. I support the free legal aid service.

On the issue of family law matters, I welcome Deputy Harris's reference to the number of reforms the Government introduced in the Department of Justice and Equality in particular but also in the courts. Access is being given, partially at least, to reporting some of the judgments of the family law courts and I understand written judgments are now coming into play in the family law courts where a series of inconsistencies that may have existed in the past will not, hopefully, prevail in the future.

I agree with the point the Deputy made on the case in question. It seems harsh that a family member would have to go back into court, under order of the court, because of an error in drafting. The changes initiated by the Minister's predecessor on lifting the veil on some of the operations of the family law courts will lead to more consistency in terms of judgments. The fact that judgments are being reported upon and written judgments handed down should lead to more consistency, and under that proposal it is hoped the situation Deputy Harris outlined will not happen in the future. The Minister might correct me if I am wrong about that but I understood that was the case following some of the legislative changes introduced by the former Minister, Deputy Shatter.

The Minister might outline the current position with regard to cases before the Court of Criminal Appeal in the transitional period. I fully welcome this important legislation, as I am sure do all the absent Members of the House.

I thank all the Deputies who contributed to this debate. Some of them will have been in the House this time last year. If they checked their diaries from that time they will have seen it is precisely one year to the day when the Second Stage debate on the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013 took place. At that time it was indicated that an establishment Bill would be required and that the timetable for that foresaw enactment of that Bill before the end of July 2014. I am very pleased that we are on track to adhere to that timetable and I fully acknowledge the co-operation of Deputies on all sides of the House, which is reflected in their willingness to give time to this Bill now and over the coming days to make sure it is enacted before the end of this Dáil term.

In bringing this Bill before the Oireachtas at this time, the Government is fulfilling its commitment to introduce the relevant legislation in such time as to enable the new court to be established by the autumn of this year. That is what is intended. The structures being put in place in preparation for establishment will facilitate the court system in meeting the demands placed on it in this ever-changing environment, as the Deputies present noted. The objective is to provide a first class service to judges, practitioners, court staff and, most importantly of all, the users of the court system.

In this context I note that as well as the public consultation process undertaken by way of last year's referendum, a Courts Service Implementation Committee has been set up to consider the organisational structure, staffing, accommodation and operational requirements of the new court. The Judiciary has also set up a committee of superior court judges to prepare for the establishment of the court.

Frequently we are critical, and rightly so, of introducing new layers into pre-existing structures. However, in this instance it is clear there is considerable merit in the establishment of an intermediate court between the High Court and the Supreme Court.

I am confident that the establishment of the Court of Appeal will have the beneficial effect of increasing overall efficiency in processing appeals in the superior courts. It will also ensure that the Supreme Court will be facilitated in developing the law in a principled and considered way and that its stature as the pre-eminent court within our courts system will be enhanced.

There should also be a positive effect for individual litigants, as a substantial decrease is anticipated in the average waiting time for cases to be heard. As both Deputy Harris and Deputy John Paul Phelan stated today, that is critical in terms of access to justice. In addition, the establishment of the Court of Appeal may have positive consequences for the wider economy. This is because the attraction for foreign investors of a courts system which is functioning to its optimal level should not be underestimated. Equally, commercial operators with a domestic base should also benefit from the new efficiencies.

The Government's commitment to the establishment of the new court is evidenced by the financial provision made by it in these difficult economic times. Sufficient resources will be available to the court and to its staff so as to ensure it can operate in an efficient and effective manner and evolve in a dynamic fashion. Indications are that additional expenditure of the order of €2.5 million will be incurred each year in the running of the Court of Appeal. In addition, one-off costs of the order of €2 million will be incurred in providing accommodation and facilities for judges and staff, including €900,000 on IT hardware, the installation of digital audio recording facilities and the development of a new case management system. This is substantial investment to ensure that we have an effective and efficient court of appeal.

The Government has agreed to appoint ten judges, including the President to the Court of Appeal. A benefit of appointing such a number of judges is that the Court of Appeal may sit in divisions of three judges. Those divisions will be constituted in such a way as to take account of the volume and range of business to be transacted in the court at any time. In addition, the president or another judge of the court may hear and determine interlocutory applications while the divisions are sitting.

While appointing a lesser number of judges to the Court of Appeal would have had a reduced impact on Exchequer finances, the expenditure incurred has to be balanced against the positive effects of appointing a sufficient number of judges to address, in a realistic fashion, the current backlog of cases which is before the Supreme Court and the likely flow of appeals from decisions given in cases before the other courts. We are a litigious society and it may safely be said that the volume of business coming before our courts is unlikely to diminish in the coming years.

In the course of their examination of the Bill, Deputies may have noted that no particular measures are to be put in place to provide for enforcement of and compliance with the provisions of the Bill on its enactment. It will be a matter for the Superior Courts Rules Committee to develop and apply appropriate rules of court which will facilitate the new arrangements. Furthermore, the nature of the Bill is such that it does not contain a provision for its review. The critical criterion for success is the establishment of a court of appeal which meets the needs of users and practitioners. In this regard a key performance indicator for the new court is a substantial reduction in the waiting time for an appeal to be heard and determined.

In the course of the debate, Deputies referred to a range of issues which relate to our courts system. They also raised various aspects of the operation of the courts system. I want to reply to some of those.

Deputy John Paul Phelan asked about the cases before the Court of Criminal Appeal. These will continue to be heard by that court. Those pending but not heard will be dealt with by the new court.

In response to Deputy Harris, work is ongoing on the judicial council Bill which will address many of the issues which he raised in his contribution. We hope to have that important Bill ready later this year. I hope it will be published in September.

Deputy Niall Collins referred to the fact that it had taken a number of years to bring this ambitious project to fruition and that many parties have collaborated in order to bring us to the point where we are today. He referred specifically to the Commercial Court and the problems faced by the fact that the prompt way in which that court dealt with cases before it cannot through no fault of its own be matched by equal promptness on the part of the Supreme Court. It is precisely this bottleneck that we intend to address with the establishment of the new Court of Appeal.

Deputy Mac Lochlainn referred to the need to reform the judicial appointments process. As he acknowledged, and as I stated, we are undertaking a review of that process. That review will consider how best to ensure and protect the principle of judicial independence and includes the consideration of issues, such as the appointments process, eligibility criteria for the role of the judicial appointments advisory board, which Deputy Harris also raised, and the need to promote equality and diversity. I take the points Deputy Harris made in relation to gender as well.

The judicial council Bill, which as I stated is being prepared, will establish the judicial council of all judges to promote high standards of conduct among judges and supports for judges. Central to the Bill is provision for effective remedies for complaints about judicial behaviour. The provisions, which are under ongoing consideration, include the establishment of a judicial conduct committee with lay participation in the investigation and consideration of complaints. It will also facilitate the formal establishment of the judicial council and the ongoing support and education of judges through the Judicial Studies Institute.

I thank all Deputies who contributed to the debate. While the Bill is essentially technical in nature, it is, nonetheless, critical legislation in terms of giving effect to the decision of the people that a new court of appeal should be established. In overseeing the legislative building blocks of a new court, we are participating in a truly historic moment. For that reason, notwithstanding its somewhat specialist character, this is a very significant Bill to bring before the House and everyone can be proud of the part we all are playing in the establishment of this new court.

Question put and agreed to.

When is it proposed to take Committee Stage?

Committee Stage ordered for Tuesday, 15 July 2014.
The Dáil adjourned at 5.58 p.m. until 2 p.m. on Tuesday, 15 July 2014.