Court of Appeal Bill 2014: Committee and Remaining Stages

Sections 1 to 7, inclusive, agreed to.

SECTION 8

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I move amendment No. 1:

In page 11, to delete lines 19 and 20 and substitute the following:

"(9) In this section—

(a) 'the establishment day' has the same meaning as it has in section 2 of the Act of 2014, and

(b) a reference to an 'interlocutory application' includes a reference to an application which may be made under any enactment to the Court of Appeal in criminal proceedings concerning the grant of a certificate of entitlement to legal aid.".".

This is a technical amendment, as are many of the amendments I will move. It provides clarification as to the meaning of an interlocutory application for the purposes of this section. While it may not be strictly necessary, it was thought desirable to specify that applications of this kind include applications for criminal legal aid. This section as published already contains a definition of "the establishment day" which is defined by reference to section 2 as the day appointed by Government order to be the establishment day.

Amendment agreed to.

Section 8, as amended, agreed to.

SECTION 9

Deputy Frances Fitzgerald

I move amendment No. 2:

In page 12, line 9, to delete "of the proceedings" and substitute the following:

"of those proceedings, which order of discontinuance shall be confined to the grounds upon which the Supreme Court granted leave to appeal".

Section 9 of the Bill as published allows the court of appeal to stay proceedings to enable an applicant to apply to the Supreme Court for leave to appeal to that court from a decision of the High Court. The provisions of Article 34.5.4° of the Constitution refer. Provision was also made to allow the court of appeal to provide for the discontinuance of proceedings where the Supreme Court grants an application for leave to appeal in respect of those proceedings. However, it became obvious that this discontinuance provision was too broad in scope and that it should be confined solely to the grounds upon which the Supreme Court granted leave to appeal. This is the objective which is achieved by this amendment.

Amendment agreed to.

Section 9, as amended, agreed to.

NEW SECTION

Acting Chairman (Deputy Catherine Byrne)

Amendments Nos. 3, 7a, 8 and 16a will be discussed together.

Deputy Frances Fitzgerald

I move amendment No. 3:

In page 12, between lines 20 and 21, to insert the following:

"President of Court of Appeal may issue practice directions

10. The Act of 1961 is amended by the insertion of the following section after section 7B (inserted by section 9 of the Court of Appeal Act 2014):

"7C. (1) In the interests of the administration of justice and the determination of proceedings in a manner which is just, expeditious and likely to minimise the cost of those proceedings—

(a) the President of the Court of Appeal sitting alone, or

(b) any other judge of the Court of Appeal sitting alone as may be nominated for that purpose by the President of the Court of Appeal,

may, subject to any practice direction issued under subsection (2), make any order or give any direction he or she thinks appropriate in relation to the conduct of proceedings before the Court of Appeal.

(2) In the interests of the administration of justice and the determination of proceedings in a manner which is just, expeditious and likely to minimise the cost of those proceedings, the President of the Court of Appeal may issue directions (in this section referred to as ‘practice directions’) in relation to the conduct of appeals or applications made to the Court of Appeal.

(3) A practice direction may relate to—

(a) civil or criminal proceedings, or both, or

(b) a class or classes of civil or criminal proceedings, or both,

and may make provision for such incidental, supplementary and consequential matters, including in respect of a failure to comply with any matter provided for in a direction, as appear to the President of the Court of Appeal to be necessary or expedient for the purposes of the direction.

(4) A practice direction shall be published in such manner as the President of the Court of Appeal may direct.

(5) This section is without prejudice to any powers of the Court of Appeal in respect of proceedings before it.

(6) In this section—

'appeal' includes a cross-appeal or request to vary an order under appeal;

'party' includes a notice party or a party permitted by the Court of Appeal to intervene in proceedings.".".

While some of amendments on the supplementary list are very technical, simply inserting the word "the" and making a number of other very minor changes, amendment No. 3, and a related amendment which concerns the Supreme Court, are two of the most important amendments which I will bring forward during the course of Committee Stage. This particular amendment seeks to ensure the new court will be equipped with the tools necessary to supervise the progress of the litigation which is before it. Provision is made to allow a single case management judge to be able to manage cases actively on his or her own initiative, independently of any application made to him or her by the parties to the proceedings. It does this by providing the necessary order-making and direction-giving powers to such a judge. I envisage that this provision will be of considerable assistance in meeting our obligations under the European Convention on Human Rights regarding the need to ensure cases before our courts are dealt with in a reasonable time.

The establishment of the court of appeal has provided us with the opportunity to consider the most appropriate means of ensuring appeals can be disposed of in an efficient and expeditious manner. The measures being proposed accord with those existing within the procedural regimes which apply in respect of appellate courts in other common law jurisdictions. I believe we would be failing in our duty were we not to act in a way which gets the new court of appeal off to the best possible start by equipping it with the tools to manage the litigation before it in the appropriate manner.

The amendment to section 18 is consequential upon the insertion of a new section 7C into the Courts (Supplemental) Provisions Act 1961.

Amendment agreed to.

Section 10 agreed to.

SECTION 11

Acting Chairman (Deputy Catherine Byrne)

Amendments Nos. 4 and 5 are related and will be discussed together.

Deputy Lucinda Creighton

I move amendment No. 4:

In page 14, between lines 5 and 6, to insert the following:

"(d) in section 16 by the substitution of the following subsection for subsection 5:

"(5) Where more than one judicial office in the same court stands vacant, or in advance of more than one vacancy arising in the same court, at the request of the Minister, the Board shall submit to the Minister the name of each person who has informed the Board of his or her wish to be considered for appointment to judicial office and shall recommend to the Minister the names of three persons in respect of each vacancy, and will make public the reasons for recommending these names.".".

This is a timely Bill. Amendments Nos. 4 and 5 are being taken together because obviously they are linked. I hope the Minister will agree that these amendments represent an excellent opportunity to inject two badly required elements into the appointment members of the Judiciary, which sadly has become, or perhaps always was, an inherently political process. These amendments provide an excellent opportunity to take the politicisation out of the appointment of members of the Judiciary and add two improvements to that process. One is to appoint members of the Judiciary on the basis of merit and the second is to inject a much greater degree of transparency into the process which is greatly needed and overdue.

I was pleased recently to have an opportunity to support a Bill sponsored by Deputy Ross, which strove to achieve the same ends. His was a proposed amendment to the Constitution, but I believe this is a very obvious and logical way to achieve essentially the same outcome.

Perhaps to lend weight to the argument and to illustrate that this is not simply something that is being sought from members of the Opposition or perhaps some more silent Members on the Government benches, it is also something the Judiciary itself is seeking. The Chief Justice, Ms Justice Susan Denham, whom I believe everybody in this House would hold in extremely high regard, has explicitly warned about how politicised the appointment process of the Judiciary continues to be. I am sure the Minister will be well aware that in a report by the judicial appointments review committee in January, which essentially my amendment addresses, the Chief Justice stated: "It is increasingly clear that the relative success of the administration of justice in Ireland has been achieved in spite of, rather than because of the appointment system." That came from the most senior member of the Judiciary in the land.

The report further stated:

The key to reforming the judicial appointments system rests on reform and development of the Judicial Appointments Advisory Board.

The number of candidates for a single judicial post submitted by the Judicial Appointments Board for Governmental decision should be reduced to three. Where there are multiple vacancies in a Court, the number of candidates should be increased by no more than the number of additional vacancies.

That is precisely what my amendment No. 4 would achieve. If the Minister accepts it, it would without any delay ensure that instead of the ludicrous situation where nine nominees are suggested to Government, the Government would only have a choice of three from which to select.

The establishment of the court of civil appeal is obviously long overdue. We should use this opportunity to provide genuine reform in how the new judges of this court will be appointed and further vacancies for other courts. The Irish legal and judicial system is not comparable to that in many other jurisdictions in Europe and around the world. However, relatively similar common law systems exist in Northern Ireland, Scotland, England, Wales and Australia, all of which have judicial appointments commissions. There are now judicial appointments commissions in the United Kingdom jurisdictions of Northern Ireland, Scotland, England and Wales, while the Commonwealth Attorney General of Australia is statutorily obliged to consult widely with his state counterparts and legal colleagues.

My amendment, which would essentially echo what emerged from the report of the judicial appointments review committee in January, would be a really important, constructive and reforming stepping stone to a radically reformed appointments process. I believe it is urgently needed, as do members of the Judiciary, including the most senior judge in the land. We would end up with, first, a system that is based on appointment on the basis merit and, second, as I said at the outset, a much more transparent system because my amendment would require that an explanation of the three nominees would be provided to Government for consideration.

Further to that, my amendment No. 5 would require that the Government would be required within 14 days in advance of his or her appointment to disclose a report indicating the reason it has recommended a certain person for appointment to the bench or promotion from one court to another.

All of this is logical and tallies with the Government parties' commitment before the last general election to introduce much more transparency, end cronyism and take the politicking out of these sorts of appointments. It was a clear commitment regarding State boards and so on. It makes sense that we completely depoliticise the Judiciary. I believe we have an excellent Judiciary that has, by and large, served the State with some distinction. However, it is important that the process of appointment is beyond reproach and is entirely independent, and does not come under any form of political intervention, pressure or interference. I believe this is the way to achieve it. It is very clear that the Chief Justice also shares that view, as does the independent review body which made its recommendations in January.

Being new to the brief, and with the zeal of a newly aligned Cabinet and a regenerated junior ministerial bench as of today, I hope the Minister will seize the opportunity to introduce a radical and yet long-overdue reform. I look forward to her response. I hope she will accept these two amendments.

Deputy Frances Fitzgerald

We have a commitment in our programme for Government about the reform of judicial appointments that we intend to keep. I believe we have excellent judges in this country, as the Deputy has said. Obviously given the critical importance of the role of our courts and our Judiciary, we have been very fortunate when one considers the experience of other countries in judicial appointments.

Both of these amendments are directed towards modifying the current regime which applies to the appointment of judges. The first amendment seeks to adjust the arrangements whereby the Judicial Appointments Advisory Board gives effect to its functions as a recommending body in respect of judicial vacancies by providing for the recommendation to the Minister of three names in respect of each vacancy.

It may be helpful to outline the provisions that apply to these matters. I am conscious that we recently discussed the same amendments when Deputy Mac Lochlainn recently introduced some legislation in the House. Under the Constitution, judges are appointed by the President on the advice of the Government. The current process for the appointment of judges in Ireland is set out in sections 12 to 17 of the Courts and Courts Officers Act 1995, which established the Judicial Appointments Advisory Board.

Upon request by the Minister, the board advertises and considers applications from persons interested in judicial office. The board is required under section 16 to forward the names of all applicants and recommend a minimum of seven candidates. Where there are fewer than seven applicants and where the board is unable to recommend to the Minister at least seven persons, it must submit to the Minister the name of each person nominated and recommend to the Minister for appointment to that office such of those persons as it considers suitable for appointment. Therefore, the role of the Judicial Appointments Advisory Board is extremely important and it has people of the highest calibre serving on it.

Section 16(5) provides that where more than one judicial office in the same court stands vacant, or in advance of more than one vacancy arising in the same court, at the request of the Minister, the board shall submit to the Minister the name of each person who has informed it of his or her wish to be considered for appointment and shall recommend to the Minister the names of at least seven persons who are suitable for each vacancy or such lesser number of names as the Minister shall specify following consultation with the board. The Deputy seeks to amend this particular provision.

The Deputy is suggesting a new section 16(5) of the Courts and Court Officers Act 1995. This would have the effect of allowing the advisory board to recommend three names for appointment for each vacancy where there is more than one vacancy. However, this would leave intact the existing provision whereby at least seven names would be furnished in respect of a single vacancy under section 16(2).

One would have the fairly extraordinary anomaly - I do not believe the Deputy meant this - whereby seven names could be recommended for one judicial vacancy and only six names would be recommended for two vacancies.

Amendment No. 5 tabled by the Deputy seeks to introduce a new provision whereby the Government shall, no later than 14 days in advance of the appointment of a judge, disclose a report indicating the reason it has recommended a person for appointment or promotion. At present, under section 16(6), in advising the President regarding the appointment of a person to a judicial office, the Government must first consider for appointment those persons whose names have been recommended to the Minister, as I have stated, by the Judicial Appointments Advisory Board. Section 16(8) then goes on to recommend that the names must be published in Iris Oifigiúil and the notice shall, if it be the case, include a statement that the name of the person was recommended by the board to the Minister pursuant to this section. I note the current Administration certainly has never gone outside the names that have been recommended by the Judicial Appointments Advisory Board.

I observe that, ultimately, a desire for more transparent and accountable procedures must be balanced against the requirements of confidentiality that are relevant to any appointment and it is in this context that the publication of reasons for appointing a person to judicial office needs careful consideration. I am sure the Deputy will agree that if one is to give public reasons regarding a person's appointment or non-appointment, as the case may be, by implication one must consider carefully the objective thereof, how it would be done and what was the precise objective - in respect of the level of detail - of publishing such information in advance of an appointment. I understand the Deputy is proposing that this be done 14 days before the appointment. I am not quite clear what is intended by the Deputy's amendment with regard to that period.

The Deputy will be aware that the Government and I are overseeing a consultation process on the system of judicial appointments with the intention of instituting reforms to enhance the current system. The Department received a significant amount of material earlier this year as part of the process, with views ranging across a significant number of areas including different aspects of the eligibility provisions, the precise role of the Judicial Appointments Advisory Board and a variety of other issues, including the arrangements for appointing judges. Quite a number of submissions were received for that review, which was initiated in December 2013 by the former Minister, Deputy Shatter, and obviously a time limit was set on the consultation period. A report on the outcome of the consultations, signalling key emerging issues, will become available shortly and options for legislative reform are at an advanced stage of preparation in the Department. It is inevitable that when I publish it, this report will become the focus of a further consultative process with all relevant stakeholders. It is anticipated that this process will take place in the second half of this year. I thank all those who made submissions to this process and an outline of legislative proposals will become available towards the end of 2014. In view of the ongoing consultation process in which the Government is involved and the submissions received from a variety of stakeholders on the very issue about which the Deputy has tabled her amendments, I hope she will understand that I do not wish to pre-empt the outcome of the process, which is well under way, and for that reason I am not in a position to accept the amendments.

Deputy Lucinda Creighton

I thank the Minister. I am aware that the consultation process is ongoing. It is obviously wider and broader than the subject matter of these amendments and I do not perceive the process as necessarily being a justification for not considering the application and implementation of the proposal I have outlined. It is simple and is very much in line with the clear recommendation that came from the judicial appointments review committee last January. I would be surprised were a further consultation process to throw up anything that would be anathema to that or which somehow would deviate from the spirit of my proposals. I accept the perhaps unintentional anomaly. I am sure it is something that could be easily rectified by ministerial amendment, were the Minister so inclined.

I have not suggested for a second that the Government has gone outside the parameters set down by legislation and believe the Government has adhered to the letter of the law. I am talking about changing the letter and the spirit of the law and, essentially, that is what my two amendments aspire to do. It would be in line with commitments in the programme for Government and the pre-election promises of both Government parties, were the Government inclined to do that. The idea of limiting the scope and choice in respect of the numbers that go before the Government obviously would ensure there would be far less scope for ensuring political appointment, which all Members are aware does occur. It would restrict and limit and ultimately would ensure a lot more trust in the process for the public at large, who at this stage are well aware of how politicised is the process of appointment. Moreover, from her remarks, I do not think the Minister disagrees with this in any sense.

At this stage, the Judicial Appointments Advisory Board simply has outlived its useful purpose. It is out of date and is not in line with best international practice, and the procedures that are set out in legislation allow for manipulation of the process. They certainly do lead and have led repeatedly to political appointments. As a member of the Law Library and as a non-practising barrister, I hold my hand up and am well aware, as are all my colleagues, of just how politicised is this process. More than three years into the lifetime of the Government, it is extraordinary that the aforementioned process was only launched before Christmas of last year. It is disappointing and should have been prioritised by the Minister's predecessor because it is actually a simple reform that could have been done very quickly. It is popular in Europe these days to talk about reforms within 100 days and this certainly is a reform that should and could have happened within the first 100 days of the lifetime of the Government. While this did not occur, I really hope the Minister will now accelerate the process. I worry that a further process of consultation will bring Members to the end of this year and who knows what lies ahead in 2015? There could well be an election before the summer of next year and for a Government that promised and was elected on a wave of popular support for radical reform and change, as well as the ending of cronyism and all the political problems which blighted both previous Governments and this country and which created a toxic culture here, it would be a shame for it to miss an opportunity to make such a simple but important reform. It certainly would be a major disappointment not only to those of us who care about transparency in public life, but also to the wider public, who had high hopes for the Government.

The Minister sought clarification on the proposed obligation on the Government to publish its reasons. I do not believe this is anything about which Members should be concerned. I do not believe it would give rise to any sort of confidentiality concerns but simply would oblige the Government to put forward logical and reasoned explanations as to the qualifications and suitability of members of either legal profession in respect of their appointment to the Bench. That is perfectly logical and is something that should be expected and demanded in a free and open democracy such as ours, not something that should be feared. We should be moving well beyond the days of appointments behind closed doors, nods and winks and so on. The process should be clear and transparent and the logic behind this proposal is simple. There is no mystery to it and there is certainly no fear of threat in respect of confidentiality. It is simply that if a person is good enough to be appointed to the Bench, the Government would be obliged to demonstrate, in appointing the person, that he or she had the requisite talent, experience and qualifications.

I see no reason or logic for not doing that.

Deputy Frances Fitzgerald

Deputy Creighton is speaking about qualifications and experience on a curriculum vitae. It was not clear from the amendment precisely what the Deputy had in mind in respect of publication.

I assure Deputy Creighton that the issues of transparency and accountability in the process of judicial appointments will be fully considered in the review process. There should be no doubt about that. I am open to a fundamental and thorough review of the judicial appointments process and the implementation of significant reform. The current system has been in place since 1995, almost 20 years, and it is important that we approach the issue in an overall rather than piecemeal fashion.

Deputy Creighton stated her amendment is straightforward. Views differ, however, on the role of the Judicial Appointments Advisory Board and the numbers involved. The Deputy cited the report published in January. This will form part of our considerations of the submissions we have received. We all accept the issue is important. I intend to address it in a measured manner and I will consider the submissions received. I expect to have legislation prepared by the end of the year. While we all want to move forward on this issue, I am conscious of the need to treat the submissions appropriately. For this reason, I will not accept an amendment that deals with one aspect of reform in advance of consideration of and decisions on the range of recommendations and submissions that have been made, and the Government's decision on how we will handle the overall process.

Deputy Niall Collins

I welcome this discussion on judicial appointments as part of this debate because the issue is integral to the passage of the legislation. I look forward to the outcome of the consultation process. As the Minister pointed out, the current system of judicial appointments has been in situ for more than 20 years and it is time to reform it. The Fianna Fáil Party supports reform of the appointments process and the promotion of transparency. Our position is that the final decision on the appointment of members of the Judiciary should remain with the Government. In that respect, we differ from other political parties which would like the final decision to be made by an independent appointments commission. The appointment of judges should be the responsibility of the Government because Governments can be held to account in the event that something goes wrong.

The House has debated this issue on a number of occasions, notably when my party and Deputies Mac Lochlainn and Ross proposed legislation in this area. Deputy Creighton used the same citation from the Chief Justice, Mrs. Justice Susan Denham, as I used in a previous debate. It is ironic that current members of the Judiciary find fault with the process under which they were appointed. It is also ironic that during debates on the appointment of the Judiciary, Deputies first point out perceived flaws and speak of the need for reforming the system before complimenting current members of the Judiciary on the excellent job they do. We should bear these ironies in mind in this debate.

I can recall only two judges, the former Judges Curtin and Perrin, who had to vacate office. To be fair to the current system, the activities that resulted in the removal from the bench of the two judges in question would not have screened out by any process or system.

Does the proposal to state reasons for the decision to appoint or not appoint candidates for judicial appointments give rise to privacy or constitutional issues? A person who applies for a job is entitled to privacy. If, for example, a solicitor in employment applies for a judicial position, is he or she entitled to have the application dealt with confidentially? A successful applicant will fill the position, whereas an applicant who fails to be appointed may potentially experience damage to his or her career if this information enters the public domain. I am concerned about this possibility. If the three names that go forward are in the public domain, we will know who the successful candidate is as soon as the appointment is made.

The Minister indicated she does not propose to accept the amendment on this occasion. I am sure the House will debate this issue again once the current consultation process has been completed. I ask the Minister to comment on whether it would be appropriate to issue a public statement setting out the reasons persons have not been appointed. Should those engaged in the appointments process not be afforded some degree of privacy?

Deputy Frances Fitzgerald

I touched on that matter. I take the Deputy's point on some of the ironies that arise in this discussion. While we all accept the need to reform the system after 20 years, we all agree that we have been lucky with the Judiciary. I have no hesitation making that statement and I expect every Deputy agrees with it in respect of judicial action and decision making over the decades.

The Deputy makes an interesting point, although I do not necessarily believe the issue she raised is a constitutional one. One is always conscious of the separation of powers in respect of a decision or initiative the Government takes on the Judiciary. I agree with the Deputy that decision making in this area would need to be carefully calibrated, notwithstanding Deputy Creighton's argument that the amendment is simple and straightforward. Deputy Creighton also referred to curriculum vitae qualifications and expertise, which are straightforward. However, in terms of additional information and the reasons for a decision, it is likely that further issues would arise that would require careful calibration. It is not the case that I am resistant to the idea behind the amendment. We need to know precisely what we are talking about and how it would be done.

Deputy Pádraig Mac Lochlainn

I commend Deputy Creighton on her amendment. The issue here is one of perception. While I do not wish to use terms such as "the majority" or "the overwhelming majority", on the whole the Judiciary has served the State well. A lack of consistency in decision making, particularly in the District Courts, is an issue that arises regularly, although such issues could be addressed through the establishment of a sentencing council which provided clear sentencing guidelines to the Judiciary. There are various ways of addressing that issue.

There remains a perception that many judicial appointments are based on the political affiliations of the person appointed. The Government has justifiably challenged the perception that the legal fraternity has regulated itself over the years. While the Judiciary has a system of regulation in place and there is also an independent adjudicator, the perception persisted that it was regulating itself. This perception is being addressed through the establishment of an independent legal services regulator. The issue is that we must deal once and for all with the perception.

When one speaks of members of the Judiciary who have served the State well the Chief Justice, Mrs. Justice Susan Denham, must feature at the top of the list. She has produced a measured set of proposals on behalf of fellow members of the Judiciary. A number of Deputies, including me, have introduced various Bills to address the issue. I flatter myself in stating that the Chief Justice's proposal was identical to mine in that it recommended having the Judicial Appointments Advisory Board draw up a short-list of three names, from which the Government would make an appointment, with provision also to have the reasons published. That is the purpose of the amendment.

The Legal Services Regulation Bill has been dragging on for three years. There is a myth abroad that the previous Minister took on vested interests who were popping champagne corks when he departed from office. They did not have much to fear given that it took three years to pass the legislation to establish an independent regulator and address a perception. The legislation will not address to any great extent the main issue facing people, namely, the cost of legal services. The idea that the previous Minister was courageously taking on vested interests was a myth and nonsense.

He did not deal with this issue, but it could be dealt with so quickly. It is really frustrating. I commend Deputy Creighton for availing of this opportunity to raise the issue. I appreciate that we are not going to change the Minister's mind today, but the sooner she gets this perception of judicial appointments sorted out the better.

For example, there are people who had affiliations to political parties, as members or candidates, and that is okay. It may well be that a person ran for Fine Gael, Sinn Féin or Labour and happened to be the best person for the job. Somebody's political affiliation should not rule them out from being appointed to the Judiciary. If we have a transparent and open process that is beyond challenge, it takes away any negative perception. That is the issue. The sooner we get to that place the better and particularly for the Judiciary.

It makes our job easier on this side of the House that somebody of Mrs. Justice Susan Denham's calibre has led the way in providing a solution. It is pretty much the solution that both I and Deputy Creighton have put forward in this amendment. If the Minister is not going to accept the amendment today, she should get the review concluded as soon as possible so as to address this matter.

Amendment put and declared lost.

Amendment No. 5 not moved.

Section 11 agreed to.

Section 12 agreed to.

SECTION 13

Acting Chairman (Deputy Catherine Byrne)

Amendment No. 6 is in the name of Deputy Mattie McGrath who is not here. Amendments Nos. 6 and 7 are related.

SECTION 18

Amendment No. 6 not moved.

Amendment No. 7 not moved.

Section 13 agreed to.

Sections 14 to 17, inclusive, agreed to.

Deputy Frances Fitzgerald

I move amendment No. 7a

In page 17, line 33, to delete “section 7B” and substitute “section 7C”.

Amendment agreed to.

Deputy Frances Fitzgerald

I move amendment No. 8:

In page 17, line 35, to delete “7C. It shall” and substitute “7D. It shall”.

Amendment agreed to.

Section 18, as amended, agreed to.

Sections 19 to 42, inclusive, agreed to.

SECTION 43

An Ceann Comhairle

Amendments Nos. 9, 41 and 42 are related and will be discussed together.

Deputy Frances Fitzgerald

I move amendment No. 9:

In page 28, to delete lines 24 to 27 and substitute the following:

“(i) by the insertion of the following subsection after subsection (3):

“(3A) Without prejudice to the generality of subsection (3), an interlocutory application relating to an appeal before the Supreme Court or, unless the appeal itself is confined to a procedural matter, any procedural application or motion in the matter, may be heard and determined by—

(a) the Chief Justice sitting alone, or

(b) any other judge of the Supreme Court sitting alone as may be nominated for that purpose by the Chief Justice.”,

(ii) in subsection (4), by the insertion of “or subsection (4) of section 1A” after “section 1”,

(iii) in subsection (5), by the insertion of “or subsection (4) of section 1A” after “section 1”,

(iv) by the insertion of the following subsections after subsection (5):

“(6) In the interests of the administration of justice and the determination of proceedings in a manner which is just, expeditious and likely to minimise the cost of those proceedings—

(a) the Chief Justice sitting alone, or

(b) any other judge of the Supreme Court sitting alone as may be nominated for that purpose by the Chief Justice, may, subject to any practice direction issued under subsection (7), make any order, or give any direction he or she thinks appropriate in relation to the conduct of proceedings before the Supreme Court.

(7) In the interests of the administration of justice and the determination of proceedings in a manner which is just, expeditious and likely to minimise the cost of those proceedings and, without prejudice to the generality of Article 64 of the Constitution and the powers of the Supreme Court in that regard, the Chief Justice may issue directions (in this section referred to as ‘practice directions’) in relation to the conduct of appeals or applications made to the Supreme Court.

(8) A practice direction may relate to—

(a) civil or criminal proceedings, or both, or

(b) a class or classes of civil or criminal proceedings, or both, and may make provision for such incidental, supplementary and consequential matters, including in respect of a failure to comply with any matter provided for in a practice direction as appear to the Chief Justice to be necessary or expedient for the purposes of the direction.

(9) A practice direction under this section shall be published in such manner as the Chief Justice may direct.

(10) Subject to subsection (11), the following applications may be determined by the Supreme Court otherwise than with an oral hearing:

(a) an application seeking leave to appeal against a decision of the Court of Appeal or the High Court, as the case may be, (in this section referred to as ‘leave to appeal’);

(b) an application referred to in Article 64.3.3° of the Constitution;

(11) Where the Supreme Court considers it appropriate to do, having considered the documents lodged in respect of an application referred to in subsection (10), it may direct that the application, or any matter arising on the application, be determined with an oral hearing.

(12) Where the Supreme Court directs under subsection (11) that an application be determined with an oral hearing, the direction shall be published in such manner as the Chief Justice shall direct.

(13) Subject to subsections (14) and (15), the determination of an application referred to in subsection (10) shall be published in such form and manner as the Chief Justice shall direct.

(14) Leave to appeal shall be granted by way of a certificate of the Supreme Court specifying the ground or grounds on which such appeal may be brought.

(15) Where the Supreme Court determines an application referred to in subsection (10), the Court shall state its reasons for the determination and such reasons may be stated briefly and in general terms.

(16) Where, upon application to it in that behalf by any party to an appeal against a decision of the High Court, the Supreme Court grants leave to appeal against the decision of the High Court, such grant of leave to appeal shall operate—

(a) where an appeal has also been made to the Court of Appeal, to discontinue the appeal proceedings before the Court of Appeal in respect of the grounds on which the Supreme Court has granted leave to appeal, or

(b) where no appeal has, at the time of the grant of the leave to appeal, been made to the Court of Appeal, to preclude such an appeal being made to the Court of Appeal on those grounds.

(17) Subsections (6) to (16) are without prejudice to any powers of the Supreme Court in respect of proceedings before it.

(18) In this section—

(a) ‘appeal’ includes a cross-appeal or request to vary an order under appeal, ‘party’ includes a notice party or a party permitted by the Supreme Court to intervene in proceedings,

(b) a reference to an ‘interlocutory application’ includes a reference to an application which may be made under any enactment to the Supreme Court in criminal proceedings concerning the grant of a certificate of entitlement to legal aid.”,”.

There are three elements contained in amendment No. 9, which I should like to highlight for the information of Deputies. The amendment itself concerns proceedings in the Supreme Court. The first element provides a statutory basis for the determination of interlocutory applications, either by the Chief Justice sitting alone or by such other judge of the Supreme Court as may be nominated by the Chief Justice. This is addressed in the new subsection (3A).

The second element deals with case management and practice directions. It mirrors the provisions which I have already detailed in relation to the Court of Appeal. The new subsections (6) to (9) refer.

The third and final element – new subsections (10) to (16) - is an innovation and relates directly to certain provisions which are now set out in the Constitution. Essentially it means that it will be possible to deal with a limited category of applications on the papers, that is, without the need for an oral hearing. This is in keeping with the practice in other common law jurisdictions and should enhance the capacity of the Supreme Court to hear and determine substantive appeals.

The applications in question are the following: applications for leave to appeal to the Supreme Court from a decision of the Court of Appeal or the High Court; applications referred to in Article 64.3.3o of the Constitution seeking to cancel the effect of a direction that a particular appeal be determinable by the Court of Appeal; and applications referred to in Article 64.4.1o seeking to have a particular appeal determinable by the Court of Appeal. It is provided that the determination of these applications will be made available publicly by electronic and other means. Leave to appeal will be granted by way of a certificate specifying the grounds on which the appeal may be brought. In an additional transparency measure, it is further provided that the court is to state its reasons for any determination which it makes. However, in an appropriate case it will be possible for the Supreme Court to decide that an oral hearing should take place and, again, any direction in this matter will be published in such manner as the Chief Justice shall direct.

The new provisions also deal with what is to happen when the Supreme Court grants leave to appeal against a decision of the High Court. Essentially this will act to preclude an appeal being made to the Court of Appeal or to discontinue any proceedings which are in being before that court. In both cases this is limited by reference to the grounds on which the Supreme Court has decided to entertain the proceedings.

The remaining amendments Nos. 41 and 42 relate to the Long Title and are consequential upon the proposals which I have just outlined

Amendment agreed to.

Section 43, as amended, agreed to.

SECTION 44

An Ceann Comhairle

Amendments Nos. 10 to 13, inclusive, are related. Amendments Nos. 10 and 11 are consequential on amendment No. 12, therefore, amendments Nos. 10 to 13, inclusive, will be discussed together.

Deputy Frances Fitzgerald

I move amendment No. 10:

In page 32, to delete line 24.

Notwithstanding the amount of text contained in these amendments, they are in reality very straightforward and, like many of the other amendments relating to this Bill, they are also quite technical. In essence, they introduce a further amendment into the Criminal Justice (Legal Aid) Act 1962 to cater specifically for the various scenarios which may arise where an appeal or application is before the Supreme Court and the appeal in question is subsequently dealt with by the Court of Appeal. They provide that, in the event that a legal aid (Supreme Court) certificate is in being, a legal aid (appeal) certificate or a legal aid (case stated appeal) certificate shall be deemed to have been granted in respect of the person who is the subject of the Court of Appeal proceedings. This is simply an efficiency measure which is intended to minimise the duplication which would otherwise ensue if a further hearing were to be necessary in relation to an application to obtain legal aid for the Court of Appeal case.

Amendment agreed to.

Deputy Frances Fitzgerald

I move amendment No. 11:

In page 32, line 42, after “person.”,” to insert “and”.

Amendment agreed to.

Deputy Frances Fitzgerald

I move amendment No. 12:

In page 32, after line 42, to insert the following:

“(iv) by the insertion of the following subsections after subsection (3):

“(4) Where on or after the establishment day --

(a) an appeal before the Supreme Court is subsequently determinable by the Court of Appeal pursuant to a direction given under Article 64.3.1° of the Constitution or an order made under Article 64.4.1° of the Constitution, or

(b) an application to the Supreme Court seeking leave to appeal against a decision of the High Court is refused by the Supreme Court and an appeal against the decision of the High Court is subsequently brought to the Court of Appeal, and a legal aid (Supreme Court) certificate was granted in respect of the person the subject of the appeal referred to in paragraph (a) or the application referred to in paragraph (b), as the case may be, a legal aid (appeal) certificate or a legal aid (case stated appeal) certificate, as the case may be, shall be deemed to have been granted in respect of the person in relation to the proceedings before the Court of Appeal.

(5) In this section “the establishment day” has the same meaning as it has in section 2 of the Court of Appeal Act 2014.”,”.

Amendment agreed to.

Deputy Frances Fitzgerald

I move amendment No. 13:

In page 33, line 5, to delete “application” and substitute “appeal”.

Amendment agreed to.

Section No. 44, as amended, agreed to.

Section 45 agreed to.

NEW SECTION

Deputy Frances Fitzgerald

I move amendment No. 14:

In page 33, between lines 17 and 18, to insert the following:

“Amendment of section 34 of Criminal Procedure Act 1967

46. Section 34 of the Criminal Procedure Act 1967 is amended --

(a) in subsection (1), by the substitution of “may, without prejudice to the verdict or decision in favour of the accused person, refer a question of law arising during the trial to the Court of Appeal for determination or, in the case of a person who is tried on indictment in the Central Criminal Court, make application to the Supreme Court under Article 34.5.4° of the Constitution to refer a question of law arising during the trial to it for determination” for “may, without prejudice to the verdict or decision in favour of the accused person, refer a question of law arising during the trial to the Supreme Court for determination”,

(b) in subsection (2), by the substitution of “the Court of Appeal or the Supreme Court, as the case may be,” for “the Supreme Court”,

(c) in subsection (3), by the substitution of “the Court of Appeal or the Supreme Court, as the case may be,” for “the Supreme Court”,

(d) in subsection (4), by the substitution of “The Court of Appeal or the Supreme Court, as the case may be,” for “The Supreme Court”,

(e) in subsection (5), by the substitution of --

(i) “The Court of Appeal or the Supreme Court, as the case may be,” for “The Supreme Court”, and

(ii) “referred to in this section” for “under this section”,

(f) by the substitution of the following subsection for subsection (6) --

“(6) If the acquitted person wishes to be represented in proceedings referred to in this section before the Court of Appeal or the Supreme Court, as the case may be, and a legal aid (appeal) certificate, or as the case may be, a legal aid (Supreme Court) certificate, is granted under subsection (7) or is deemed to have been granted under subsection (8), he or she shall be entitled to free legal aid in the preparation and presentation of any argument that he or she wishes to make to the Court of Appeal or the Supreme Court, as the case may be, and to have a solicitor and counsel assigned to him or her for that purpose in the manner prescribed by regulations under section 10 of the Criminal Justice (Legal Aid) Act 1962.”,

(g) by the substitution of the following subsection for subsection (7):

“(7) The acquitted person may, in relation to proceedings referred to in this section, apply for a legal aid (appeal) certificate to the Court of Appeal or a legal aid (Supreme Court) certificate to the Supreme Court, as the case may be, either --

(a) by letter to the registrar of the Court of Appeal or, as the case may be, the registrar of the Supreme Court, setting out the facts of the case and the grounds of the application, or

(b) to the Court of Appeal, or the Supreme Court, itself, as the case may be,

and the Court concerned shall grant the certificate if (but only if) it appears to the Court that the means of the person are insufficient to enable him or her to obtain legal aid.”,

(h) in subsection (8), by the substitution of --

(i) “a legal aid (appeal) certificate or a legal aid (Supreme Court) certificate, as the case may be,” for “a legal aid (Supreme Court) certificate”, and

(ii) “referred to in” for “under this”,

and

(i) in subsection (9), by the insertion of “, ‘legal aid (appeal) certificate’ ” after “ ‘legal aid (Supreme Court) certificate’ ”.”.

This amendment is primarily directed towards modifying section 34 of the Criminal Procedure Act 1967 to take account of the establishment of the court of appeal and I would stress that it does not change the substance of the section in any way. Section 34 of the 1967 Act allows the Attorney General or the DPP, as the case may be, to refer a question of law which has arisen during a trial to the Supreme Court for determination in circumstances where the person tried on indictment has been acquitted. This referral is without prejudice to the verdict in favour of the accused person.

The key modification is introduced in subsection (1) of the 1967 Act. The amendment provides that the referral on a question of law will now be to the court of appeal rather than to the Supreme Court. It also makes provision, in the case of a person tried on indictment in the Central Criminal Court, for an application to be made to the Supreme Court under Article 34.5.4° of the Constitution seeking the leave of that court to refer the question to it. It will be recalled that Article 34.5.4° of the Constitution envisages that in exceptional circumstances the Supreme Court shall have appellate jurisdiction from a decision of the High Court. The remaining amendments are consequential upon the amendment to subsection (1) and, unless the Deputies wish for some additional information in relation to them I do not propose to dwell upon them further.

Amendment agreed to.

Sections 46 to 48, inclusive, agreed to.

NEW SECTION

Deputy Frances Fitzgerald

I move amendment No. 15:

In page 35, between lines 8 and 9, to insert the following:

“Amendment of section 4 of Criminal Justice Act 1993

49. Section 4 of the Criminal Justice Act 1993 is amended by the substitution of the following subsection for subsection (2):

“(2) Where an application has been made to the Court of Appeal under section 2 --

(a) a legal aid (appeal) certificate shall be deemed for the purposes of the Criminal Justice (Legal Aid) Act 1962 to have been granted in respect of the person whose sentence is the subject of the application, and

(b) the person shall be entitled to free legal aid in the preparation and conduct of his or her case before the Court of Appeal and to have a solicitor and counsel assigned to him or her for that purpose in the manner prescribed by regulations under section 10 of that Act.”.”.

This amendment is also technical in nature. Section 4 of the Criminal Justice Act 1993 contains a number of minor provisions to facilitate the operation of that Act, such as the giving of sentencing reports to the DPP and the provision of legal aid. The amendment involves the deletion of references to the Supreme Court in that section.

Amendment agreed to.

Sections 49 to 55, inclusive, agreed to.

NEW SECTION

An Ceann Comhairle

Amendments Nos. 16 and 20 are related and will be discussed together.

Deputy Frances Fitzgerald

I move amendment No. 16:

In page 37, between lines 17 and 18, to insert the following:

“Amendment of Jurisdiction of Courts and Enforcement of Judgments Act 1998

56. The Jurisdiction of Courts and Enforcement of Judgments Act 1998 is amended --

(a) in the First Schedule, by the substitution --

(i) in Article 37(2) of the English text, of “in Ireland, by an appeal on a point of law to the Court of Appeal,” for “in Ireland, by an appeal on a point of law to the Supreme Court,”,

(ii) in Article 37(2) of the Irish text, of “in Éirinn, trí achomharc ar phointe dlí chuig an gCúirt Achomhairc;” for “in Éirinn, trí achomharc ar phointe dlí chuig an gCúirt Uachtarach;”,

(iii) in Article 41 of the English text, of “in Ireland, by an appeal on a point of law to the Court of Appeal,” for “in Ireland, by an appeal on a point of law to the Supreme Court,”, and

(iv) in Article 41 of the Irish text, of “in Éirinn, trí achomharc ar phointe dlí chuig an gCúirt Achomhairc;” for “in Éirinn, trí achomharc ar phointe dlí chuig an gCúirt Uachtarach;”,

and

(b) in the Tenth Schedule (inserted by section 1(b) of the Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012), by the substitution, in Annex IV, of “in Ireland: an appeal on a point of law to the Court of Appeal,” for “in Ireland: an appeal on a point of law to the Supreme Court,”.”.

Amendment 16 relates to the Brussels Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which used to govern relationships in these matters between EU member states, and to a companion convention which continues to govern relationships between the EU and Iceland, Norway and Switzerland. All that is being proposed is that the possibility to lodge an appeal on a point of law will henceforth lie to the court of appeal rather than to the Supreme Court. Amendment 20 is directed to the same purpose and relates to the Council regulation which now governs the recognition and enforcement regime between EU member states.

Amendment agreed to.

Sections 56 to 59, inclusive, agreed to.

SECTION 60

Question proposed: "That section 60 be deleted."

Deputy Frances Fitzgerald

The proposed deletion is linked with Amendment No. 17 which is a direct replacement for it. The reason for the deletion is that the original amending section was located in the wrong place.

Question put and agreed to.

SECTION 61

Deputy Frances Fitzgerald

I move amendment No. 16a:

In page 40, line 8, to delete “section 7C” and substitute “section 7D”

Amendment agreed to.

Section 61, as amended, agreed to.

NEW SECTIONS

Deputy Frances Fitzgerald

I move amendment No. 17:

In page 40, between lines 10 and 11, to insert the following:

“Amendment of Criminal Law (Insanity) Act 2006

62. The Criminal Law (Insanity) Act 2006 is amended--

(a) in section 7, by the deletion of subsection (5), and

(b) in Schedule 1, in paragraph 2, by the insertion of “, Court of Appeal” after “High Court”.”.

This amendment was in the Bill as published. However it was in the wrong place and the amendment simply corrects the unintended error.

Amendment agreed to.

Deputy Frances Fitzgerald

I move amendment No. 18:

In page 40, between lines 10 and 11, to insert the following:

“Amendment of section 181 of Criminal Justice Act 2006

63. Section 181(4) of the Criminal Justice Act 2006 is amended by the substitution of the following paragraph for paragraph (c):

“(c) in relation to proceedings before the Central Criminal Court, to a judge of the Court of Appeal,”.”.

The purpose of section 181 of the Criminal Justice Act 2006 was to provide for anonymity for witnesses with a medical condition who might be reluctant to come forward and give evidence because in giving such evidence they might have to reveal their medical condition. If the application for anonymity is refused by the Central Criminal Court or the court of appeal, provision is currently made for an appeal from that refusal to be made to the Supreme Court. The effect of the amendment will be to direct such applications to the court of appeal.

Amendment agreed to.

Sections 62 to 65, inclusive, agreed to.

NEW SECTION

Deputy Frances Fitzgerald

I move amendment No. 19:

In page 42, between lines 18 and 19, to insert the following:

“Amendment of Criminal Procedure Act 2010

66. The Criminal Procedure Act 2010 is amended --

(a) in section 2(1), by the insertion of the following definition:

“ ‘legal aid (appeal) certificate’ has the meaning it has in the Act of 1962;”.

(b) in section 23 --

(i) by the substitution, in subsection (1), for “may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court” of “may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to --

(I) the Court of Appeal, or

(II) in the case of a person who is tried on indictment in the Central Criminal Court, the Court of Appeal or the Supreme Court under Article 34.5.4° of the Constitution”,

(ii) by the substitution of the following subsection for subsection (2):

“(2) Where a person’s conviction of an offence on indictment is quashed on appeal by the Court of Appeal and the Court makes no order for the retrial of the person in respect of the offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General, as may be appropriate, may, subject to subsection (3) and section 24, appeal the decision of the Court of Appeal not to order a re-trial of the offence concerned on a question of law to the Supreme Court under Article 34.5.3° of the Constitution.”,

(iii) in subsection (3) --

(I) by the substitution of “An appeal referred to in this section” for “An appeal under this section”,

(II) by the substitution of the following paragraph for paragraph (a):

“(a) a ruling was made by a court --

(i) during the course of a trial referred to in subsection (1), or

(ii) during the hearing of an appeal referred to in subsection (2), which erroneously excluded compelling evidence, or”,

(iv) by the substitution of the following subsection for subsection (4):

“(4) An appeal referred to in this section shall be made on notice to the person who is the subject of the appeal within 28 days or such longer period not exceeding 56 days as --

(a) in the case of an appeal referred to in subsection (1), the Court of Appeal or the Supreme Court, as the case may be, or

(b) in the case of an appeal referred to in subsection (2), the Supreme Court, may, on application to it in that behalf, determine, from the day on which the person was acquitted or the conviction was quashed, as the case may be.”,

(v) in subsection (5), by the substitution of “the Supreme Court or the Court of Appeal, as the case may be,” for “the Supreme Court”,

(vi) in subsection (6), by the substitution of “For the purposes of considering an appeal referred to in this section the Supreme Court or the Court of Appeal, as the case may be,” for “For the purposes of considering an appeal under this section the Supreme Court”,

(vii) in subsection (7), by the substitution of “The Supreme Court or the Court of Appeal, as the case may be, shall assign counsel to argue in support of the acquittal referred to in subsection (1) or the decision not to order a re-trial referred to in subsection (2), as the case may be, if” for “The Supreme Court shall assign counsel to argue in support of the acquittal referred to in subsection (1) or the decision of the Court of Criminal Appeal not to order a re-trial referred to in subsection (2), as the case may be, if”,

(viii) by the substitution of the following subsection for subsection (8):

“(8) Where an appeal referred to in this section has been made to the Court of Appeal or the Supreme Court and a legal aid (appeal) certificate or, as the case may be, a legal aid (Supreme Court) certificate, is granted under subsection (9), or deemed to have been granted under subsection (10), in respect of the person who is the subject of the appeal, he or she shall be entitled to free legal aid in the preparation and conduct of any argument that he or she wishes to make to the Court of Appeal or the Supreme Court, as the case may be, and to have a solicitor and counsel assigned to him or her for that purpose in the manner prescribed by regulations under section 10 of the Act of 1962.”,

(ix) by the substitution of the following subsection for subsection (9):

“(9) The person may, in relation to an appeal referred to in this section, apply for a legal aid (appeal) certificate to the Court of Appeal or a legal aid (Supreme Court) certificate to the Supreme Court, as the case may be, either --

(a) by letter to the registrar of the Court of Appeal or, as the case may be, the registrar of the Supreme Court, setting out the facts of the case and the grounds of the application, or

(b) to the Court of Appeal, or the Supreme Court, itself, as the case may be, and the Court concerned shall grant the certificate if (but only if) it appears to the Court that the means of the person are insufficient to enable him or her to obtain legal aid.”,

(x) in subsection (10) --

(I) by the substitution of “a legal aid (Supreme Court) certificate or a legal aid (appeal) certificate, as the case may be,” for “a legal aid (Supreme Court) certificate”, and

(II) by the substitution of “in relation to an appeal referred to in this section” for “in relation to the proceedings under this section”,

(xi) in subsection (11) --

(I) by the substitution of “On hearing an appeal referred to in subsection (1) the Court of Appeal may” for “On hearing an appeal under this section the Supreme Court may”,

(II) in paragraph (a) --

(A) by the deletion of “or reverse the decision of the Court of Criminal Appeal, as the case may be,”, and

(B) in subparagraph (i) by the substitution of “subsection (3)(a)(i) or (b)” for “subsection (3)(a) or (3)(b)”, and

(III) in paragraph (b), by the deletion of “or the decision of the Court of Criminal Appeal, as the case may be”,

(xii) by the insertion of the following subsection after subsection (11):

“(11A) On hearing an appeal referred to in this section, the Supreme Court may --

(a) quash the acquittal or reverse the decision of the Court of Appeal, as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied --

(i) that the requirements of subsection (3)(a) or (b), as the case may be, are met, and

(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,

(b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Appeal, as the case may be.”,

(xiii) in subsection (12), by the substitution of “In determining whether to make an order under paragraph (a) of subsection (11) or (11A), the Court of Appeal or the Supreme Court, as the case may be,” for “In determining whether to make an order under subsection (11)(a), the Supreme Court”, and

(xiv) in subsection (13) --

(I) by the substitution, in paragraph (a), of “The Court of Appeal or the Supreme Court, as the case may be,” for “The Supreme Court”, and

(II) by the substitution, in paragraph (b), of “the Court of Appeal or the Supreme Court, as the case may be,” for “the Supreme Court”,

(i) by the substitution, in subsection (2), of “the Court of Appeal or the Supreme Court, as the case may be,” for “the Supreme Court”, and

(ii) by the substitution, in subsection (3), of “The Court of Appeal or the Supreme Court, as the case may be,” for “The Supreme Court”,

and

(d) in section 26 --

(i) by the substitution, in subsection (2), of “the Court of Appeal or the Supreme Court, as the case may be,” for “the Supreme Court”, and

(ii) by the substitution, in subsection (3), of “A legal aid (appeal) certificate or a legal aid (Supreme Court) certificate” for “A legal aid (Supreme Court) certificate”.”.

On the face of it this is a lengthy and complex amendment. However, on closer scrutiny it will be seen that it involves extensive adaptation of just one key section in the Criminal Procedure Act 2010 to take account of the establishment of the court of appeal. I emphasise that no substantive change is being made to the section and any such change would clearly be outside the scope of this Bill. It may help if I outline briefly the background to section 23. When introduced it provided, for the first time, for a with prejudice appeal against an acquittal at first instance and an appeal against a decision of the Central Criminal Court not to order a retrial. These appeals are restricted to points of law relating to the erroneous exclusion of compelling evidence or an erroneous direction to a jury to acquit.

At the time the decision was taken that an appeal against a first instance acquittal should lie to the Supreme Court rather than to the Court of Criminal Appeal, with the former being a superior court with full constitutional jurisdiction. Clearly, with the establishment of the court of appeal, it is now appropriate that an appeal against acquittal should lie to that court, and that is one of the key changes introduced by the proposed amendment to subsection (1) of section 23. Due to the leapfrogging jurisdiction set out in Article 34.5.4o of the Constitution, a reference to the Supreme Court is also retained in that subsection.

The only other change I would like to dwell upon relates to that being made to subsection (2) of section 23. That subsection concerns the right of the DPP or of the Attorney General to appeal a decision of the Court of Criminal Appeal not to order a retrial where a person’s conviction for an offence on indictment has been quashed by that court. That right of appeal is subject to the conditions which I mentioned at the outset. Under the new constitutional dispensation, were this subsection to be repealed, the DPP would be at liberty to appeal every case where a retrial was not ordered provided the conditions for an appeal as set out in the Constitution were met. The view taken was that this did not accord well with the decision taken by the Oireachtas a few short years ago that this was a matter where some regulation was desirable. However, if the subsection was not to be repealed it clearly could not stand completely unaltered. The approach proposed is to continue to regulate the circumstances in which the DPP may appeal a decision not to order a retrial. However this is not in any way to except such appeals from the Supreme Court. Rather, the legal advice received is that it amounts to a permissible regulation under the Constitution.

In this context I draw the attention of Deputies to the Article 34 reference which is also to be included in the subsection, courtesy of the amendment. This is to reinforce the basic idea that we are regulating the circumstances in which the Director of Public Prosecutions may appeal rather than seeking to exclude cases from the Supreme Court. I do not propose to dwell on the other amendments as they flow from the approach I outlined and are technical in nature to allow for the change outlined.

Amendment agreed to.

Sections 66 and 67 agreed to.

SECTION 68

Deputy Frances Fitzgerald

I move amendment No. 20:

In page 43, between lines 16 and 17, to insert the following:

"(4) The reference in Annex IV to Council Regulation (EC) No. 44/2001 of 22 December 20001 on jurisdiction and the recognition and enforcement of judgment in civil and commercial matters, to "in Ireland, an appeal on a point of law to the Supreme Court" shall, without prejudice to Article 34.5.4° of the Constitution, be construed as a reference to "in Ireland, an appeal on a point of law to the Court of Appeal", unless the context otherwise requires.".

Amendment agreed to.

Section 68, as amended, agreed to.

SECTION 69

Deputy Frances Fitzgerald

I move amendment No. 21:

In page 43, to delete lines 23 and 24 and substitute the following:

“the High Court, or as the case may be, the Supreme Court—

(a) shall be construed as being without prejudice to Article 34.5.4° of the Constitution, and

(b) in respect of a reference in that regard to the “Supreme Court”, shall be construed as a reference to the Court of Appeal unless the context otherwise requires.”.

As it stands, section 69 specifies that references in any enactment to decisions of the High Court being final, subject to a right of appeal to the Supreme Court in certain circumstances, are to be construed as being without prejudice to Article 35.5.4° of the Constitution. By virtue of that article the Supreme Court has jurisdiction to hear an appeal from the High Court where there are exceptional circumstances warranting such an appeal.

The exceptional circumstances set out in the Constitution would not necessarily dovetail with the existing statutory regulation. For example, it is not unusual to provide that an appeal to the Supreme Court on a point of law requires certification by the High Court that the decision in question involves a point of law of exceptional public importance. Another formula applied is that an appeal on a point of law is subject to the leave of the High Court. Under the new constitutional regime such regulation is no longer possible in so far as the Supreme Court is concerned. However, it is possible with the court of appeal. The amendment is intended to make clear that any regulation in existing legislation which attaches a leave or certification requirement before an appeal can be taken to the Supreme Court is to be read as attaching such a requirement to the court of appeal.

Amendment agreed to.

Section 69, as amended, agreed to.

Section 70 agreed to.

SECTION 71

Deputy Frances Fitzgerald

I move amendment No. 22:

In page 43, line 31, to delete "section 68" and substitute "section 72".

This is a technical amendment relating to an incorrect cross-reference included in the Bill as published.

Amendment agreed to.

Section 71, as amended, agreed to.

SECTION 72

An Ceann Comhairle

Amendments Nos. 23 to 30, inclusive, and amendments Nos. 32 to 39, inclusive, are related and will be discussed together.

Deputy Frances Fitzgerald

I move amendment No. 40:

In page 44, between lines 28 and 29, to insert the following:

"(5) Where an order has been made by the Supreme Court in relation to an interlocutory application, procedural application or motion concerning an appeal which is subsequently determinable by the Court of Appeal pursuant to a direction given under Article 64.3.1° of the Constitution or an order made under Article 64.4.1° of the Constitution, the order shall be binding on the Court of Appeal in respect of the issue which is the subject of the appeal.

(6) Subsection (5) is without prejudice to any change of circumstance which may warrant a variation in the terms of the order referred to in that subsection.".

Deputies may recall that under Article 64.3.1° of the Constitution provision is made for the Chief Justice to give a direction that a class of appeals specified in the direction be heard and determined by the court of appeal. However, that article only applies where the appeal in question has not been heard in full or in part by the Supreme Court before establishment day. In general, the mere hearing of an interlocutory application will not in itself mean that the appeal has been heard in part by the Supreme Court. However, it may be appropriate for the Supreme Court's order to be binding on the court of appeal and the amendment is directed towards achieving that end. If there is a change in the circumstances which informed the original order, it will be possible to apply to the court of appeal to vary its terms.

Amendment agreed to.

Section 72, as amended, agreed to.

Section 73 agreed to.

Schedules 1 and 2 agreed to.

TITLE

Deputy Frances Fitzgerald

I move amendment No. 41:

In page 7, line 8, to delete "that court, and" and substitute the following:

"that court; to provide that the Supreme Court may, in certain circumstances, hear certain applications made to it in respect of decisions of the Court of Appeal or the High Court otherwise than with an oral hearing; to provide that the Chief Justice or the President of the Court of Appeal may issue directions in relation to the conduct of appeals or applications made to the Supreme Court or the Court of Appeal; to make provision in relation to the conduct of proceedings before those courts;".

Amendment agreed to.

Deputy Frances Fitzgerald

I move amendment No. 42:

In page 7, to delete line 11, and substitute the following:

"repeal of certain enactments; and to provide for related matters.".

Amendment agreed to.

Title, as amended, agreed to.

Bill reported with amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Deputy Niall Collins

I welcome the passage of this Bill because it will enable the establishment of the court of appeal which will help people access justice more quickly. When will the court sit and be in a position to hear cases? Will that happen in the autumn term after the courts’ summer recess?

We have been debating legal costs for several years in respect of the Legal Services Regulation Bill 2014. The costs had gone out of control and access to justice was a problem on two fronts, First, in gaining access to courts and second, the cost of legal services and representation is a barrier. One of the concerns that I and my colleague, Deputy Mac Lochlainn, articulated in the debate on the Legal Services Regulation Bill 2014, was that while there is a perception the Bill would deal with vested interests and legal costs for the public, that is not the case. There is nothing in the Bill which will force or drive costs down. The opposite is the case, particularly in the multidisciplinary practices. With that in mind, and given that the High Court goes on circuit outside Dublin, will the court of appeal also sit outside Dublin? If the court sits outside Dublin, where the main actors in the appeals and their legal representatives are based, it would lead to lower costs.

Minister for Justice and Equality (Deputy Frances Fitzgerald)

Establishment day is envisaged for October and yes, provision is made in the Bill for judges in the court of appeal to go on circuit.

I thank those present, Deputies Niall Collins and MacLochlainn, for the support they have given this Bill and for their assistance in ensuring its smooth passage. It is important if we are to reach that establishment day in October that the Bill complete its passage through the Houses of the Oireachtas. The Government and I appreciate the Deputies’ support for the establishment of the court of appeal. It was decided by the people by way of referendum to establish it but it was important to ensure its smooth passage here. It is a very important court, and an important milestone on the way to modernising our court system. As both Deputies have said, and everybody agrees, it should be of considerable benefit to a wide range of litigants. In progressing the Bill we are creating a very valuable and worthwhile legacy. I am confident that it will stand the test of time. I look forward to the establishment of the court in October. Many people, not least the judges, have been concerned about the delays in hearings in the Supreme Court. This new court provides a real opportunity to deal with those issues. Passing this legislation is a historic event.

Question put and agreed to.

Sitting suspended at 7.05 p.m. and resumed at 7.30 p.m.

Dáil Éireann debate - Tuesday, 15 Jul 2014

Court of Appeal Bill 2014: Committee and Remaining Stages

Dáil Éireann debate -
Tuesday, 15 Jul 2014