Joint Committee on Justice debate -
Tuesday, 18 Jun 2024

General Scheme of the Courts, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Bill 2024: Department of Justice

Deputy Niamh Smyth took the Chair.

An Cathaoirleach Gníomhach (Deputy Niamh Smyth)

The purpose of this part of the meeting is to have a briefing session on the general scheme of the Courts, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Bill 2024. To provide us with a briefing on the general scheme, I welcome Mr. Andrew Munro, assistant secretary, and Ms Mary McKenna, principal officer, from the Department of Justice to our meeting. The format of the meeting is that I will invite the witnesses to provide the committee with a brief overview of the proposed legislation and then we can take questions from members.

Before the opening statement is delivered I wish to advise of the following in relation to parliamentary privilege. Witnesses and members are reminded of the long-standing parliamentary practice that they should not comment on, criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of that person or entity. Therefore, if statements are potentially defamatory in relation to an identifiable person or entity, the speaker will be directed to discontinue their remarks. It is imperative they comply with any such direction.

I call Mr. Munro to brief the committee on this matter and then we can take contributions from members.

Mr. Andrew Munro

I thank the Chair and the committee for the opportunity to brief them on the general scheme and the Bill. I will try to be as brief as possible because we have provided a short briefing note on the Bill. I will speak to what is in the scheme and maybe then update the committee on some additional elements we expect to see in the published Bill which was approved for publication by Government this morning. I will also mention other things that did not make it into publication but we expect may come as amendments to the Bill, just so the committee is aware of what will come along.

Part 1 is the usual Short Title and commencement provisions. Part 2 deals with an amendment to the Courts (Establishment and Constitution) Act 1961 to increase the number of Court of Appeal judges by one to account for the fact that Ms Justice Power is abstracted from the court for the moment to deal with the tribunal of investigation into the Defence Forces. It is maintaining the strength of the Court of Appeal.

Part 3 deals with an amendment to section 62 of the International Protection Act 2015. This will reduce the requirement for experience of ordinary members of the International Protection Appeals Tribunal from five years' experience as a practising solicitor or barrister to two years. That will appear as a later part of the Bill. It is not going to be in the published Bill and it will have to be produced as an amendment. It is one of the things that happens when we are moving at speed, that not everything gets drafted in time for publication. The Attorney General's office is still working on that one and it will appear as an amendment later.

Part 4 deals with the Firearms and Offensive Weapons Act 1990. Essentially, it deals with increasing the maximum penalties available for knife-related offences. That will be renumbered and will be Part 5 in the Bill as published. Part 4 of the Bill as published will deal with an amendment to the Judicial Council Act 2019. This is in response to a Supreme Court ruling in the Delaney case around personal injuries guidelines. Having taken the advice of the Attorney General, the Bill will respond to elements of that by providing for approval by the Oireachtas of draft guidelines produced by the Judicial Council to take account of what is in that judgement.

Part 5 of the Bill will now be the amendments to the Firearms and Offensive Weapons Acts. Part 6 of the Bill, which was not in the general scheme, will deal with some miscellaneous amendments to the European Arrest Warrant Act and the Criminal Justice (Mutual Recognition of Custodial Sentences) Act. This is fixing typographical errors in those Acts. There is nothing substantial in those amendments.

To note other things that we expect, the amendment to the International Protection Act 2015 that we referred to in the letter and the scheme is to deal with a judgment of the High Court which was critical of elements of the International Protection Act whereby countries are deemed to be safe third countries. Those amendments are still being worked on with the Attorney General's office. We are just making sure we have captured everything around that that was in the High Court judgment. We will be putting in an additional test to make sure somebody will not suffer if they are returned to a safe third country, so we are adjusting that. Elements of that High Court judgement are also going to be appealed, so it is a double-headed response, if you like. We are amending the legislation but we will also be appealing some of the principles at the back of that.

That is essentially it. I have mentioned everything we expect to see in the Bill as published. I do not want to go into detail because I want to leave time for members' questions. They have seen briefing notes on most of it. I am happy to take any questions.

An Cathaoirleach Gníomhach (Deputy Niamh Smyth)

Does Deputy Pringle have any questions?

Deputy Thomas Pringle

Mr. Munro's introduction raises a lot more questions than I had starting off. This Bill has been rushed in today before us and it seems to be being rushed through. We are now approaching July. Could the Department not have programmed its work in a better way to have this legislation come in a more planned way? Some of the aspects of this Bill have been planned and worked on and it certainly seems from Mr. Munro's contribution today that more has been thrown in and there is an attitude that we had better get this through as quickly as possible. That is worrying.

Maybe this is not for the officials but for the political people in the Department, but it is disrespectful towards the Oireachtas that it is not being given adequate time to discuss the guidelines relating to the Judicial Council Act 2019 that have to be approved by it and that these are just being thrown in, as it were. I am sure this Bill will be rushed through the House next week without any proper Committee Stage or Report Stage.

In the run up to July, Bills are rushed through. It is probably so that there will not be any scrutiny and Oireachtas scrutiny. That seems to me to be what has happened here. When I looked at this Bill, I thought it was a superannuation Bill about getting pensions, etc., right, but it seems that everything, including the kitchen sink, has been thrown in to get it through. Obviously, it is an opportunity, in that if a Bill is scheduled to come before the House, one fires everything into it to make sure they are covered.

There is approval for an extra judge for the court. On the face of it, that seems sensible but the witness said in the opening statement that this is for the moment. Does that mean the extra judge will taken out in other legislation later on? It was said we are one judge short at the moment, so does that mean it will go back to a full complement and that the legislation will be undone? It is farcical that it is left so finely balanced that we are at the right number of judges and we have to wait for new legislation to come through to get another judge in place. That is wrong.

A knife offence is quite serious should be debated on its own merits. The committee has taken a lot of time debating increasing offences. What is the merit in increasing the offence one way or the other? It was said at a previous committee meeting that the courts do not actually sentence up to the maximum amount and that the reason is that it makes more serious, but why not make it a life sentence? Then we would not have to come back next year to increase it further.

The International Protection Act needs amending and that is on foot of a judgment. It was also said that we will appeal some elements of that judgment. If the appeal against those elements of that judgment are not upheld, will that require a further amendment at a later stage? Will we have another rushed Bill for that, if that is the case?

In section 62 of the International Protection Act, experience required by solicitors is being lowered from six years to two years or whatever. What is the rationale for that? What is happening there?

Mr. Andrew Munro

I thank the Deputy. He asked why the Bill is being rushed. I would not say it is being rushed. We are responding primarily to very important judgments, one in the High Court and one in the Supreme Court. The High Court judgment is in relation to the provisions of the International Protection Act around the designation of safe third countries. What the High Court has said should be part of that test, we are happy to add that additional harm test. That is something we were doing in most cases in any event. The element that will be appealed is how the High Court reached that conclusion. It found it to be a European Union obligation under a directive to which we have not opted into and that is an important point of principle. It conflicts with previous judgments of the court. It is a technical question around when is Ireland bound by a directive. We see it as important that Ireland would only be bound by directives that we have opted into under protocol 21. It is a point of principle that we are appealing whereas the substance of doing that extra test, that is, to see whether this type of harm exists in a country before we return people to it, is something we have no issue with. It is an important technical point around preserving the point that Ireland cannot opt into measures under protocol 21, part 3 of the TFU, without the approval of the Dáil and the Seanad. That is an important point. It is important that we restore our ability to designate safe third countries.

This is also because of the judgment of the Supreme Court in the Delaney case. In the Delaney case, the Supreme Court found that the personal injury guidelines established by the Judicial Council - the ones in place for the past couple of years - are valid. However, it struck down the manner in which they are determined. That is part of section 7 of the Act. It is important, in particular in relation to insurance costs and litigation in this area, that we have certainty around those personal injury guidelines. It is an important procedural thing that the Supreme Court has found, that is, that essentially there should be Oireachtas endorsement. I am short-cutting a very complex judgment in putting it that way, but that is the proposal. When the draft guidelines are produced by the personal injuries guidelines committee of the Judicial Council, they will come to the Houses for approval before they are finally settled. It is not changing the substance of what we are doing there, in trying to provide some certainty around personal injury guidelines and the level of awards which impact on the cost of insurance and so forth. It is just about improving the manner in which they are set and adding more democratic control in relation to them. It is important there is certainty there because it will affect a lot of ongoing litigation and it could have an affect on insurance costs. It is important that the Government responded promptly to that.

My apologies to the Deputy but when I spoke first I forgot to mention the provisions in respect of the retirement age and the pension provisions for members An Garda Síochána, the Prison Service, the Defence Forces and the fire service. Those will be in the published Bill. Those provisions are going in there and that is something that has been-----

(Interruptions).

Mr. Andrew Munro

The issues to which we had to respond most quickly were the court judgments. We do not control the timing of when they arise. Something like the fixes to the typographical errors in the European arrest warrant are issues we were aware of. Work had been done and we were waiting for an appropriate legislative vehicle in which to fix them and their small technical things. As the Deputy will have seen, this is what happens when you produce a miscellaneous provisions Bill. Things get added in and things that have been awaiting a vehicle for enactment can often be taken onboard in a miscellaneous provision Bill in that way. I do not think anybody would disagree that it is important that we maintain a degree of certainty around personal injury guidelines and that we maintain certainty around the ability to designate safe countries in response to that legislation. That is why we are moving rapidly on these.

Deputy Thomas Pringle

As I understand it, the committee, as part of its normal work, would ask the Department what legislation is planned, so that we can schedule time to do pre-legislative scrutiny and do everything we are supposed to do as part of the supposed democratic process. My understanding is the Department told the committee there was nothing planned and nothing was happening but then all of a sudden we have this Bill. In fairness, the Bill contains about four or five different aspects and Mr. Munro said it is a miscellaneous-type Bill. That is fair enough, but it is rolled in here and we are being told it is going to be rushed through pre-legislative scrutiny and that we should not have it. It is probably going to be rushed through in the next couple of weeks when every Bill is going to be rushed through. This is done every year by every Department, and not just Mr. Munro's Department. In July and in December the amount of legislation that goes through goes through the roof. Coincidently, with all of the legislation, there is no time and it is rushed.

The Committee Stage and consideration stages are all curtailed and all the legislation goes through. It is an interesting part of the process and use of time by the Department and the Government in relation to how legislation is progressed. This is not the witnesses' issue as such, but it is a message they could take back to the Department. There definitely seems to be something wrong with how the system and the legislative process work if most legislation comes through in July and December when there is the least time to debate and discuss it. I believe that is planned rather than an accident.

Mr. Andrew Munro

I hear what the Deputy is saying. As the head of a legislative division, I can tell him that we do not do this by design. It puts extreme pressure on the team. It is down to the urgency of the matters. These judgments could not be left unresponded to because of the importance of the matters involved. It happens. Legislative divisions keep things under review. An issues arises, for example, a typographical error is spotted in the European Arrest Warrant Act, and a colleague will urgently await an opportunity to put it into the next criminal justice or miscellaneous provisions Bill. With respect to consideration by the Houses, there is little of substance. It points out a typographical error and fixes it. We do not do these things by design, but once we have to do a Bill urgently, we take the opportunity to fix little things like this. I have seen miscellaneous provisions Bills move quickly. I have also seen them grow legs and take three or four years to get through. There were issues in the last one we completed in 2023 for which work had commenced on the heads ten years earlier. They were just waiting for the right vehicle and then they were moved along. It is not by design. We have plenty of work to do. We do not design this to make our July busier than it would otherwise be. It really is a response to the urgency and importance of the issues.

Deputy Thomas Pringle

Important issues always come up on time for the legislative process in July when everything is chock-a-block and brought through. This is not about the Department of Justice. I am talking about the Oireachtas. That seems to be the process and it seems to be planned.

When did the judgment on the International Protection Act come in?

Mr. Andrew Munro

I cannot say exactly. Off the top of my head, it was seven or eight weeks ago. I would have to check that, but it came through recently enough. Similarly, the Delaney judgment if I recall correctly was made ten or 12 weeks ago.

An Cathaoirleach Gníomhach (Deputy Niamh Smyth)

Has the Deputy finished?

Deputy Thomas Pringle

Yes.

An Cathaoirleach Gníomhach (Deputy Niamh Smyth)

I thank the officials from the Department. That concludes our engagement on this matter. I thank Mr. Munro and Ms McKenna for their briefing today. It was informative and helpful. They should feel free to withdraw from the meeting to allow the committee to consider the matter further and communicate its decision to the Minister in due course.

Mr. Andrew Munro

If anything else occurs to members, we would be happy to deal with those matters. The clerk can email me and we will deal with specific issues. We would be happy to do so.

The joint committee went into private session at 5.34 p.m. and adjourned at 5.43 p.m. until 4 p.m. on Tuesday, 25 June 2024.