Joint Committee on Justice and Equality debate -
Wednesday, 16 Jan 2019

General Scheme of European Convention on Human Rights (compensation for delays in court proceedings) Bill 2019: Discussion

Chairman

The purpose of this afternoon's engagement is to conduct pre-legislative scrutiny of the European Convention on Human Rights (compensation for delays in court proceedings) Bill. We are joined from the Bar Council of Ireland by Mr. Micheál P. O'Higgins, chairman; Mr. Conor Dignam, senior counsel and chairman of the council's human rights committee; and Mr. David Perry, barrister. I understand they may have colleagues in the Gallery I also extend a welcome to them. From the Free Legal Advice Centres, FLAC, we are joined by Ms Eilis Barry, chief executive; and Ms Sinéad Lucey, managing solicitor. They are all very welcome.

I will shortly invite the witnesses to make opening statements but first I must draw the attention of witnesses to the matter of privilege. Please note that witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members of the committee should be aware that under the salient rulings of the Chair, they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I invite Mr. O'Higgins to make the opening statement on behalf of the Bar Council.

Mr. Micheál P. O'Higgins

It is very much appreciated by the Bar Council of Ireland that we have been invited to address the Joint Oireachtas Committee on Justice and Equality on this Bill. We have put together a submission that the committee may have seen and it conveys the points we wish to make; I will speak to that rather than read it for the committee in order to highlight a few points. Mr. Dignam will deal with any queries on what we suggest might be imperfections in the Bill as it currently stands but I will speak more to the main point in the submission, which is the suggestion that perhaps the model selected in the draft Bill is not the best way to go about addressing what is an important matter.

I should start by saying that it is to be welcomed that there is a legislative response to the important issue of Ireland being in default with respect to its international obligations under the European Convention on Human Rights. It has been made clear in court and Ireland has accepted it in a number of cases. Perhaps it is boring to say it but it must be said that the root cause of court delays is the fact that our courts are not properly resourced. There are not enough appointed judges, registrars or support for the judges. If this persists, it is likely the problems associated with court delays will also persist. Nonetheless, it is proper to address the concerns raised in the Bill.

The Bill chooses a non courts-based model of providing compensation to those affected by court delays. The Bill envisages there would be an administrative tribunal or body set up that would be staffed by a retired judge or judges, who would then adjudicate on the question of whether compensation should be awarded, and if so, in what amount.

The point we have offered is that while it might appear superficially attractive to take the function out of the courts, take it away from lawyers and, as it were, make it simplified and cheaper, and while those are legitimate and proper concerns, we believe that it may not be in the public interest, as we have laid out in our submission. It may not be the best way of approaching this issue and delivering on the objectives the Bill is directed to meet.

One of the reasons is expense. It is difficult to identify a good, valid reason as to why the Exchequer should be hit with the undoubted significant cost associated with setting up a whole new administrative structure, staffing it, paying salaries, paying for clerical staff, paying for an office through rent or purchase, and resourcing it. For this reason we suggest that this is perhaps not the ideal way to proceed.

There is a pre-built, existing structure that is very efficient when it is working well, which is the courts. We make the point in our paper that the Oireachtas, in earlier legislative provisions, decided that the best way to deal with meeting our objectives under the European Convention on Human Rights and providing justice for our citizens across a range of legal areas is to do it on the courts-based model. For instance, section 3 of the existing European Convention on Human Rights Act allows a citizen who has been wrongly deprived of his or her liberty to go to the Circuit Court to make a case to be awarded compensation if he or she has been locked up unlawfully and suffered the indignity of being put into prison without just cause. That was a legislative decision made by the Oireachtas, and the Bar Council of Ireland feels that it is difficult to identify a good reason the same model should not be followed here. It is not known quite how many cases there might be of plaintiffs seeking relief for court delays. There are likely to be more than those who would seek damages for being unlawfully imprisoned, but there may not be too many.

This is the other point. Whatever about the issue of principle, it is difficult to see why it would be justified economically. The pure, raw numbers make it difficult to see how it could be justified to set up an entirely new administrative structure for what may not be ultimately a large number of cases. That issue, however, is a little bit unknown.

At the level of principle and given the potential legal complexity that is associated with claims for compensation for breaches of Article 13 and the right to speedy access to justice, and given that the European Convention on Human Rights has identified that these claims can be really quite complex, although not always, this is an issue that is best left to the courts that are well used to receiving submissions, weighing up competing interests and judging how best to give justice when there has been a breach of rights. These are routine matters for a Circuit Court, High Court or District Court judge or whoever it might be to add to his or her bundle of cases. There would not have to be the extra amount of training and costs associated with setting up an entirely new separate structure. The Bar Council of Ireland believes that this can be properly dealt with under the existing courts structure. That would be most fair to the citizen and best suited to the public interest with regard to these various headings.

There is also a risk, if one proceeds down the road of setting up a separate administrative body, that the body itself could be at risk of being judicially reviewed or having complaints made against it on grounds of delay. It also could be challenged for making what might be thought of as unreasonable decisions if it decides to refuse an application for compensation or if it awards what the citizen feels is too little. We believe that this is a further stand-alone ground for leaving these cases to the parties that are best equipped to deal with the issues, namely, trained judges who are independent and well used to dealing with legal cases and the complexity of legal issues.

We have made a number of recommendations in our paper, which members may have seen. We suggest that these matters be left to the courts and perhaps a similar model chosen along the lines of section 3 of the European Convention on Human Rights Act.

The idea is simply to create the statutory remedy of going to court and allowing that to be done. As to which court, it would be a matter entirely for the Legislature of course. We do not believe there is any particular reason to depart from the pre-existing model of doing it in the Circuit Court or perhaps doing it in the High Court. That is entirely a matter for the Legislature. We acknowledge there may be different reasons for choosing whichever comment committee members might make.

It is undoubtedly an issue that has a degree of urgency in that Ireland is in default. That is not inconsequential and needs to be immediately addressed. We believe that delayed claims need to be considered and dealt with properly under the existing and well-provided established structure. The ideal environment for the fair and just determination of these Article 6 breach claims is the court's model. By taking that approach we believe there would be consistency in the law. It is already being done in that way and we do not find the case persuasive – although it is a matter entirely for the Houses – for lifting it and creating an entirely new structure. We do not find that would really be the way to proceed from a practical point of view, from a justice point of view or from a principle point of view. I would be happy to take any questions on the issues arising.

Chairman

Go raibh maith agat. I would now like to invite Ms Eilis Barry of FLAC to deliver her opening statement.

Ms Eilis Barry

We have submitted a more detailed paper but I will speak to some of the points we have made rather than read it out. We are a voluntary independent legal rights organisation that exists to promote access to justice. We believe access to justice includes not only legal aid but access to the courts, to effective remedies and to fair, just and socially inclusive laws. We welcome the opportunity to contribute to this pre-legislative scrutiny and we welcome that the matter will be put on a legislative basis.

We also view delay as the major inhibitor of access to justice. From our work we see that delay arises in several arenas, including waiting times for legal aid. The most recent figures from the Legal Aid Board show a waiting time of up to 42 weeks for a first appointment in the Blanchardstown Legal Aid Board law centre and more than six months in several other centres. The processing time for social welfare appeals is a problem. The most recent social welfare appeals report showed that the average time to process social welfare appeals was 23.6 weeks and 30.3 weeks in the case of supplementary welfare allowance, which is supposed to provide a basic safety net payment. The most recent report of the social welfare appeals office states that 63.6% of oral appeals were successful. The Court of Appeal was set up to reduce delay but individuals now must wait for up to two years before getting an appeal heard there.

We are keen for the committee to look at the issue of delay not only in respect of the contents of the Bill but as a systemic issue. There is a commitment in the programme for Government to commission an annual study on court efficiency and sitting times to provide accurate measures for improving access to justice. We urge that this commitment would be fulfilled. There is a real need to have accurate measures to measure improvements in access to justice.

A review of the administration of civil justice is ongoing. It is being carried out by the High Court President, Mr. Justice Peter Kelly. One of the aims of the review is to improve access to justice. Clearly, the issue of delay will be looked at by this review group. We submit that the outcome of this review should be of fundamental interest to the committee. We ask that the committee would make access to justice a central ongoing feature of its work.

I will comment on the heads of the Bill. We have seven basic points to make and I will go through them quickly. Delays that occur before quasi-judicial bodies and tribunals should be included in the legislation. This is important from the perspective of calculating when proceedings commence and should be taken into account in determining any compensatory remedy for unreasonable delays that arise in proceedings before such bodies.

Whether a delay in a particular case arises directly or indirectly through delays in a related case should not make any difference to the entitlement to apply for compensation and to be awarded it, if merited.

Our third comment on the heads of the Bill is that the direct linking of any financial compensation payable under the proposed legislation to the principles and practices of the European Court of Human Rights is problematic and undesirable. We suggest that the removal of specific references to the ECHR and Article 41 under head 8 would provide a more fluid and flexible remedy for court-based delays. In turn, we could more readily provide a remedy for any breach of EU law that might arise in that regard than the present formulation would allow.

The fourth point in respect of the heads of the Bill is that, as proposed, the assessor would be a retired judge. It is unclear to us why there is a need for a requirement for the High Court to approve awards of compensation given that it is also the forum for the determination of appeals under the proposed legislation.

Our fifth point relates to multiple claims. The proposed Bill is silent in respect of further delays that might accrue after an award has been made and if the proceedings are not determined by that time. We believe that the legislation should provide clarity in that regard.

The sixth point relates to where a case is ongoing in any application for case management before the courts. We believe that judicial notice could be taken of any determination under the proposed Act by an assessor that unreasonable delay has occurred and the reasons for same.

The final point relates to costs. There is no provision under the heads of the Bill for the expenses of making a successful application to be discharged by the State or Minister. Inevitably, this means that such costs will be taken from the award. This could possibly undermine the effectiveness of such a remedy. We are suggesting that this issue could be remedied by providing for a flat fee to a practitioner who assists the client to make a successful application. Such a measure should, in turn, require the practitioner to undertake not to seek further payment for an award.

These are our summary comments on the Bill. Ms Lucey will be happy to answer any detailed questions.

Chairman

I will now open the discussion up to members. I know that one of the Deputies had his hand up first. Deputy Wallace had approached me to indicate that he wished to speak. I will invite Deputy Wallace to go first, if that works. Then we will hear from Deputies O'Callaghan, Chambers and Ó Laoghaire. That is the way I saw your hands.

Deputy Mick Wallace

Thank you very much, Chairman. I was simply letting you know that I had to go away. I need someone from the legal profession, whether I like it. I am sorry that I have to rush out but I will thoroughly read all the submissions so that we are better informed. I have much to learn about what it is all about.

I have one question. The Bar Council briefing suggests the council finds it hard to understand, and does not see the logic in, the State reinventing the wheel by coming up with an elaborate new organisation when we could simply do it using the courts model, which would cost far less and would seem to be far less cumbersome. Why does the council believe that the Government has come up with the idea to invent a new large entity rather than go down the route suggested by the council? Why did the Government do that?

Mr. Micheál P. O'Higgins

The question is what prompted the Legislature, the Department of Justice and Equality or those behind the Bill to do it that way. In fairness, I imagine they had legitimate objectives in mind. Perhaps the thinking was to provide it informally in what would be a streamlined way and, bluntly, with no need to involve the lawyers. I imagine it was out of a desire to make it as straightforward and as cost-efficient as possible. I suppose that was the thinking. However, it is our respectful view that perhaps choosing the model they have chosen does not best achieve that objective. I imagine it was thought that was the appeal of that road.

Deputy Mick Wallace

Without knowing much about it, it seems to me as if the proposed model is almost bound to cost more. Generally, the Government does not make decisions that cost it more money. It tends to go in the opposite direction most of the time.

Is it not blatantly obvious that this will cost more?

Mr. Micheál P. O'Higgins

I respectfully agree. I would have thought it should be obvious, but it may be that the view was, if it was a court-based or court-caused delay, let us lift it out of the courts and have a compensation system for that delay. We feel that would not be a strong reason to lift it out of the custom-built system that normally adjudicates on the question of competing rights, that being, the courts.

Deputy Mick Wallace

Mr. O'Higgins's opening comment was that the courts were not resourced enough and that not enough judges had been appointed. Given how obvious that is to the Bar Council, why has the Government dragged its feet on changing the situation?

Mr. Micheál P. O'Higgins

I imagine it is a matter of competing resources. For every laudable objective, there is another behind or ahead of it in the queue. It is a question of the Legislature choosing between competing interests. If the ultimate objective is to solve the problem of court delays, that issue is more important than the narrow issue of providing compensation. The first and foremost approach to tackling the problem should be addressing the root cause of delays, which is the under-resourcing of our courts. That is the fundamental difficulty. An holistic approach should be taken and the full problem should be tackled head on, but the issue of providing compensation where delays occur should also be addressed.

Deputy Mick Wallace

I do not know the answer to my next question. Does Mr. O'Higgins know the cost to the State of facilitating the running of the courts system?

Mr. Micheál P. O'Higgins

I do not have the total figure. Often, these matters would be cost neutral. For instance, the courts system earns money from court pleadings and filing charges. The more litigation there is, the more revenue comes into the central office from parties looking to get their pleadings filed. In addition, the State earns a sizeable income stream from taxation on the professional fees of lawyers operating in the system as well as value added tax on those fees. This is a point that we sought to make in our proposal to the Government, which thankfully the Government has accepted and decided to support. That proposal is on attracting in foreign investment and legal services - we call it the Brexit initiative - to prepare for the strong possibility that the United Kingdom will be leaving the European Union at the end of March.

I do not have the exact figure for the cost of running the courts, but we should not lose sight of the fact that many of these measures would be cost neutral or have a positive cost aspect. Some of the improvements and reforms in terms of adding to the number of judges and resourcing them properly would be self-financing. It is not all about a bad hit on the Exchequer. There are positive financial aspects to making these necessary reforms as well.

Deputy Mick Wallace

If I told the Minister to get real and resource the courts properly and, in response, he asked me how much I thought doing that the way I liked would cost approximately, would it be impossible to put a figure on that?

Mr. Micheál P. O'Higgins

I do not have those figures, but we welcome the indication that six additional judges will be appointed to the Court of Appeal to deal with the great backlog at the appellate tier of the system. That commitment has been given and we understand it to be in train. It will ease the burden, but it will not cure the problem. It certainly will not address the problem of not having sufficient judges at the High Court, Circuit Court and District Court levels. It is a start towards that, but more needs to be done under that heading.

Deputy Mick Wallace

Mr. O'Higgins mentioned foreign direct investment. What does that entail exactly?

Mr. Micheál P. O'Higgins

In fairness, I should not have referred to the Brexit initiative as just a Bar proposal. It came from across the legal profession, including the solicitors' body and some law firms.

One of the objectives was to make it known and proclaim widely the fact that many firms, including law firms, chose to litigate their business in London because of the access to a common law country's legal jurisdiction with an overlay of EU law. If the UK leaves in March or whenever Brexit happens - hopefully, it will not happen - it means that a number of parties, including corporations and law firms, will want to transact their legal business in Dublin. Without being disrespectful to Malta and Cyprus, we would be the main common law jurisdiction left in the Union and would be an excellent choice for that business, which we are anxious to attract. That has implications for foreign direct investment beyond legal services. Hopefully, there will be a move away from London being the hub to Dublin being the hub, at least in respect of part of that business. It is attractive from society's point of view and from the point of view of the Irish Exchequer.

Deputy Mick Wallace

I thank Mr. O'Higgins. I hope that the foreign direct investment in question does not have the same negative impact as it has had on the housing sector, with people selling out to anonymous friends and so on.

Chairman

We wish the Deputy good luck at his next meeting. Before I call Deputy O'Callaghan, and for the information of the panel, the witnesses should feel free to intervene. Deputy O'Callaghan may direct his question to Mr. O'Higgins or Ms Barry, but I would like everyone to feel able to participate openly. Witnesses should just indicate.

Deputy Jim O'Callaghan

I thank FLAC and the Bar Council for attending and for their helpful submissions, which I have read and which the committee will find helpful when we are producing a report.

It is important to note that it is an infrequent occurrence for people to go before the courts or seek justice. Generally, people only do that once or twice in their lives. Some people are lucky and never have to do it. It is an extremely stressful process. The good aspect of having the Bar Council and FLAC in attendance is that they are aware of the stress that the invocation of one's rights and having to seek justice can place on individuals. Sometimes, people on the outside do not appreciate that. Delay can have an aggravating impact on that stress. Recently, a woman who was a complainant disclosed her identity in a rape trial. One of the things she said after the accused had been convicted was that she had found the delay of four years, from her making her complaint to the years spent in the court process, extremely stressful. There is a purpose behind the provisions within the European Convention on Human Rights, ECHR, on why there should be a speedy and effective remedy when delay has been introduced into the system.

My first question is for the Bar Council. I may be wrong but, when we contemplate delays, there are two types in the court system, the first of which is the delay caused by a case not getting on for a period of time. For example, it might not be listed on the first occasion or the next occasion. The second type is the delay caused by a judge who, after hearing the case, does not give judgment promptly. Are those the two types of delay we are considering?

Mr. Conor Dignam

Yes, but I will address the Deputy's comments on the stress of court proceedings first. In many respects, that is what is being directed by the jurisprudence of the ECHR. An anomaly arising from the heads of the Bill is that a victim or complainant in, for example, a criminal trial who has suffered stress and damage as a result of delays in our system does not appear to be one of the categories of person who can seek compensation.

In relation to the delays, the two types of delay the Deputy identified are the ones which we have also identified. These are, as the Deputy stated, the delay in a case getting on because of the shortage of judges or resources in the courts system to enable cases to get on when they should, and also the post hearing delay of a judge not giving judgment expeditiously. Of course, the latter delay is not the fault of the judge. That judge finishes one case on a given day, takes up another case the next morning and when he is finished that case, takes up yet another case. The demands on judicial resources are such that it is difficult for judges to provide judgments in cases that they may have heard two, three or four cases ago within a reasonable and quick period of time such as to avoid any complaint or delay. Those are the two principal types of delay.

Deputy Jim O'Callaghan

In terms of the latter delay where it is after a hearing has concluded, a judge in that case will have other factors or issues that he or she must deal with. In terms of the delay, what resources does a judge have in such a case to write his judgment? By comparison, this committee holds hearings every Wednesday morning and produces six or seven reports a year. Obviously, there are the Chairman and the members, but there are approximately four full-time members of staff assisting them in producing the committee's report. What support does a judge have?

Mr. Conor Dignam

High Court judges-----

Deputy Jim O'Callaghan

I refer to High Court judges. It is not a problem in the Circuit or District Courts, is it?

Mr. Conor Dignam

There can be delays in getting one's cases on in the Circuit Court or District Court-----

Deputy Jim O'Callaghan

After hearing.

Mr. Conor Dignam

-----but after the hearing, one does not experience the same delays because there is not the same necessity for written judgments or reserved judgments.

The resources available to High Court judges, generally speaking, are: a judicial researcher, access to a judicial library, and some, but only some, secretarial support. That is the extent of the backup that is available to our judges. I suppose the point has to be emphasised that it is, of course, the responsibility of the judge to provide the judgment. While that support is available to him or her, it is only support. The process and work of delivering a judgment on a case which may have run for one or two days, or two, three or four weeks, is the responsibility of the particular judge who has heard that case.

Deputy Jim O'Callaghan

In terms of resources, is it correct that the way to cut down on delay is to ensure that the courts are more properly resourced-----

Mr. Conor Dignam

Yes.

Deputy Jim O'Callaghan

-----and to have more High Court judges appointed so that people can get their cases heard promptly? Is the first type of delay, the delay of not getting one's case on, ultimately the fault not of the judge but of the State resourcing?

Mr. Conor Dignam

Yes.

Deputy Jim O'Callaghan

In terms of the proposal that the Bar Council made, have Ms Barry or Ms Lucey of FLAC the same concerns about the legislation as proposed in the general scheme of the Bill? Do they have a preference for it to be dealt with in the Circuit Court, is having an assessor the correct way to deal with it or have they an open mind on it?

Ms Sinéad Lucey

We largely have an open mind but with the caveat that we do not think that having an informal system will exclude the requirement to have lawyers assisting the person making the application. We say that because the processes before the courts can be quite mysterious to the particular client. Clients do not really understand why their case has gone back and another case has gone forward, why their case was put into a holding list while another goes ahead or why they have to wait for the respondent to do something in particular. In that regard, to make that into a case for compensation will require the lawyers who were involved in the case to sift through those various elements of delay that can happen and waiting, and decide which ones were unreasonable, or which ones to say or claim were unreasonable, or which are not. We do not see that one will wholly exclude the participation of lawyers and, therefore, make this a cheaper, more accessible system. That needs to be taken into account.

Deputy Jim O'Callaghan

I suppose there were attempts to do that with the establishment of PIAB, one of the statutory bodies FLAC referred to, but lawyers are not excluded from that. It is a matter for an individual. What we are talking about here is an individual trying to have his or her convention rights vindicated. It is an assessment of whether or not that individual's rights have been breached by the State. Presumably, the individual is entitled to have lawyers to assist him or her in that.

Ms Eilis Barry

Our concern would be that if lawyers go to these assessors and there is no provision for some version of legal aid, whatever award they get will be diminished by the fees that they will inevitably end up paying the lawyers. That intersects with our point about how quantum is to be determined under the proposed legislation.

Deputy Jim O'Callaghan

One of these bodies made the point about an appeal where the scheme allows for there to be an appeal by an applicant against any award but the Minister seems to have a broader right of appeal. Was that point made in one of their submissions?

Mr. Conor Dignam

Yes.

Deputy Jim O'Callaghan

Can Mr. Dignam elaborate on that?

Mr. Conor Dignam

The system which seems to be established by the heads of Bill is that an appeal shall lie to the claimant in respect of any award made by the assessor. That seems to mean that an award has to be made in order for the right of appeal for the claimant to arise but, of course, one option which should be available to the assessor or whoever the decision-maker may be is to refuse to make an award. The way the heads of Bill are currently drafted, they would seem to mean that the claimant may not appeal a refusal to make an award but the Minister may appeal any award which is made. Once any money is awarded to a claimant, the Minister may appeal but the claimant may only appeal against a certain species of decision made by the assessor. That seems to us to be inherently unfair in that it deprives a claimant of what is undoubtedly an entitlement and right under any system of law.

Deputy Jim O'Callaghan

Ms Lucey mentions in FLAC's submission the quasi-judicial bodies, such as the WRC, the RTB and PIAB. What percentage of those coming into FLAC would have issues concerning their rights which relate to quasi-judicial bodies that would be determining it? Would there be many?

Ms Sinéad Lucey

The main area where we would be working would be around social welfare, in which case it would be the Social Welfare Appeals Office. There may be a debate as to whether it is a quasi-judicial body or an administrative body. Clients we would have would now be waiting even over a year to get an appeal heard. This is the most basic safety net of social security. There are concerns. Historically, there were significant delays before the former Equality Tribunal that went on for up to three years. That has now been resolved with the WRC but that does not preclude-----

Deputy Jim O'Callaghan

It happening again.

Ms Sinéad Lucey

-----that it can happen again.

We do not see that there is a basis for wholly excluding those bodies, either as a matter of cumulative delays - if one ends in the courts, it does not mean one has not spent two or three years dealing with one's issue before a quasi-judicial body before one even gets there and, therefore, why would one truncate the compensation somebody would get - but also because we question why somebody should not be able to recover some kind of compensation if his or her issue before the quasi-judicial body was not determined.

Deputy Jim O'Callaghan

Is Ms Lucey aware whether a case has ever been taken against the State because of the delay of the social welfare appeals tribunal?

Ms Sinéad Lucey

Not that I am aware of. Presumably, if it becomes excessive, that would become a matter of judicial review if somebody would have the resources to do so but he or she would be unlikely to have the resources to raise that issue in the first place.

Ms Eilis Barry

A case was taken against the former Equality Tribunal for a delay and the High Court found that a delay of three years was not inordinate.

Deputy O'Callaghan mentioned two different forms of delay that occur. In FLAC's experience, there are significant delays in legal aid. Before people even get in the door of the court, there can be delays of over six months in getting access to a Legal Aid Board solicitor. The Legal Aid Board solicitors will primarily only be dealing with family law. Then there is a significant number of people who are trying to recommend themselves who are lay litigants before the courts. They contribute to delay because they find the whole process so difficult and so inaccessible.

There were serious hits to the Courts Service, particularly IT, during the recession. There is a real need for there to be considerable investment in the Courts Service, such as the website to make forms and procedures much more accessible and to provide for the lay litigant who may never be represented before the courts.

Deputy Jim O'Callaghan

Therefore, there is a delay that starts from the time a person wants to invoke his or her right to challenge what he or she says is the injustice up and until the determination.

Ms Eilis Barry

Yes.

Deputy Jim O'Callaghan

As has been emphasised, part of the delay precedes what we are talking about, but it is just as significant.

Ms Eilis Barry

Yes.

Deputy Jim O'Callaghan

I want to ask Mr. O'Higgins and Mr. Dignam two questions. How many claims of a general delay are made against the State each year? Is it a common occurrence each year?

Mr. Micheál P. O'Higgins

I do not have the figures. We do not envisage that there would be an avalanche of such claims, but it is difficult to predict with any degree of accuracy. There has been one guide to indicate that it is a significant systemic problem, as there have been a number of successful claims in the European Court of Human Rights, before the convention. Ireland held up its hands in many of these cases and stated, "We are terribly sorry for the delay. We are going to improve the position and get it sorted". In the most recent one, as we have tracked in the paper, that was precisely the approach taken. The court in Strasbourg stated that was not good enough as we had been saying this for four years. It was acknowledged by Ireland that it had been in violation of Article 13 for a long time in giving an effective remedy to citizens. This is a timely initiative that we, respectfully, suggest should be refocused.

Deputy Jim O'Callaghan

In regard to the scheme, is it intended or do we know whether the assessor will adjudicate on these cases in public or private?

Mr. Conor Dignam

We do not know. If we read into the heads of the Bill, it seems to be envisaged that it will be largely a paper exercise in that there is a requirement that the decision be made on the basis of written reports. There does not seem to be any obligation on the assessor to invite submissions or oral evidence. We can deduce from the heads of the Bill that it will be a paper exercise and, therefore, carried out in private. FLAC made a point and it is one that bears emphasis. The heads of the Bill seem to envisage a streamlined process and we can deduce from them that it is to be largely a paper exercise. The ECHR has stated the decision as to whether there has been a culpable or compensatable delay is one which involves a degree - sometimes a significant degree - of legal complexity. On pages 10 and 11 of our main submission which members of the committee can read in due course we identify the considerations the ECHR has stated must be taken into account when deciding whether there has been a delay and what compensation it should attract. Because of the legal complexity the ECHR has identified in this instance, litigants may require legal assistance, legal advice and representation in order to advance their claims. It is our submission that it would be dangerous to have any system that would preclude an individual from availing of legal assistance or representation in advancing his or her claim. That, in itself, could become open to challenge.

Deputy Jim O'Callaghan

To answer the question raised by Deputy Wallace, one of the benefits, from the Government's point of view, of establishing an assessor system and a separate office, if the matter is to be dealt with in private, is that it will not be exposed to the embarrassment of significant delays being exposed in public in the Circuit Court. The delegates do not have to comment on the matter.

I express my condolences to Mr. O'Higgins on the death of his former colleague, Mr. Garrett Cooney, SC, who was a very fine barrister and played a very significant part in the development of the legal system. I had the privilege of knowing him and he was a splendid barrister. I think he was also a former chairman of the Bar Councill. He was very formidable.

Mr. Micheál P. O'Higgins

I thank the Deputy. We will convey his condolences to our late colleague's son whom, as he will know, is a practising barrister and also called Garrett.

Chairman

The committee would like to be associated with those words of sympathy.

Mr. Micheál P. O'Higgins

I thank the committee.

Deputy Jack Chambers

I thank the delegates for coming before the committee. Many issues have been covered, but I would like to ask a couple of questions. The delegates called for more resources to be provided. We hear all of the time that more resources would help to resolve many difficulties in public administration and bureaucracy. Aside from that, can the delegates recommend ways by which the courts structure could be reformed to deal with existing difficulties? For me, when I consider all aspects of the public service, including the courts system, the provision of more resources is not always the answer.

In terms of the administration of the courts system, does the Bar Council have ideas, in line with extra resources, on how the Courts Service could reform some of the clear inefficiencies in the system, some of which are caused by judges? More judges may lead to an improvement but I do not believe it would automatically lead to better outcomes for people who would be affected by this legislation. I would like to hear some initial thoughts from the witnesses.

Mr. Micheál P. O'Higgins

The short answer is "Yes". The Bar Council, as the representative body for barristers, is constantly engaged with the notion of systemic reform. Yesterday, if not last week, we finalised a submission to a review that is under way at the moment on the civil justice side of the system, not the criminal side but the superior courts civil justice system. Mr. Justice Peter Kelly, the President of the High Court, is conducting that review across a range of areas, for instance, judicial review, which is associated with supervising the powers and activities of lower tribunals and lower courts in the High Court. It also includes the whole area of discovery, which is a big issue in litigation, including the costs associated with discovery, the delays that discovery brings and undesirable aspects of discovery.

We very much engaged with the process that is under way. Various interested parties have put forward their views, not just lawyer groups but officials in the Courts Service and those involved in the system, with a view to trying to achieve efficiencies and improve access to justice, which is really what this should be all about, and also creating a situation where members of the public are informed about their rights so that they are encouraged to go to court and participate in what is a very important forum for the vindication of their rights. These initiatives take many forms. One simple path that we are following at the moment is an endeavour to try to make the law less mysterious and use plain ordinary English in legislation, regulations and submissions that barristers make. There is an encouragement being given to people - I know this seems odd - to actually speak in the English language, rather than in obscure old fashioned legalese which, unfortunately, has been a feature of the system, certainly in the past and perhaps not only in the past. The aim is to make the system more accessible and relevant to litigants and members of the public so that they will know their rights and have an opportunity to access the courts to vindicate those rights. That is another project that is very much under way. Much has been done under that heading but more remains to be done.

I agree with the Deputy that this is not a simple case of calling for more money or resources to be thrown at the courts. Just as I am sure those advocating for reforms on the health side would say the solution is not all about appointing more doctors, nurses, hospital porters or whomever. It is about channelling those resources, improving efficiencies and reforming the system so that a better product is delivered and a better service is provided to members of the public. We are very much aware of that and that is why we have not just called for an increase in resources but, in fact, a correct channelling of those resources.

Deputy Jack Chambers

Can Mr. O'Higgins point to anything in the past number of years that has improved in terms of reform within the system?

Mr. Micheál P. O'Higgins

Yes. In 2011, there was the judicial review system for accessing the High Court in bringing challenges to lower courts or tribunal decisions or decisions, for instance, under allocation of housing or social welfare matters and so on. That system was overhauled and a new one, Order 84, was introduced. There are further reforms under way to further hone and refine that but that is an important matter. It is somewhat on a legal footing but, at its heart, it is simply an attempt to make the system more straightforward, understandable and streamlined and less costly.

That is one example; there is a range of others. Judges are more aware of the necessity to speak in the English language and to communicate with people. I do not suggest it is a fully achieved and concluded project, as some lawyers tend to slip into legalese occasionally. I am sure I am guilty of it myself, inadvertently. People take the view that the best lawyer is the person who connects with non-lawyers who are, maybe, at the back of court or in the audience. We are very much conscious of that.

Deputy Jack Chambers

Mr. O'Higgins referred in his submission to additional resources and allocations rather than having the assessor model. He also mentioned the cost to the State and establishing a structure would obviously involve a cost to the State. Would the risk and cost to the individual of going to the High Court not be greater than they would be under a new model that could potentially vindicate their rights? I would welcome the view of FLAC on that question and also on whether people would avail of an informal means of vindicating their rights if the costs and risks involved were lower than they would be if they were to take a case to the High Court where they might not be vindicated. People fear engaging with the courts system even when they have a clear-cut case. Perhaps people would be more likely to seek to vindicate their rights through structures outside of the system. I would welcome the witnesses' thoughts on those points.

Mr. Conor Dignam

We are not suggesting or advocating which court should deal with claims. We are not suggesting it should be the High Court. The reason we identified the Circuit Court as the appropriate court is that the Oireachtas has already identified the Circuit Court as being the appropriate court to deal with claims under section 3A of the Act. From a consistency point of view, we do not see any good reason to depart from the model that was put in place by the Oireachtas as recently as 2014 when the amendment was introduced.

On the substance of the point, which is whether a court based system would be a disincentive to individuals, the first point to note is that there is an appeals process in place. If the assessor model, as currently framed, is established, an individual can bring a claim to the assessor. If he or she is successful in that claim, the award is then appealable by the State and the appeal goes directly from the assessor to the High Court. This means the individual is then dragged into the High Court despite not wanting to be there. Avoiding a court based model at first instance does not avoid an individual ending up before the courts. For this reason, it seems to us there is no good reason the individual should not be permitted to go to court with his or her claim.

The second point is that individuals want their claims to be determined in a fair and transparent manner. As I mentioned, the European Court of Human Rights, ECHR, has clearly stated that the question of a delay and compensation for delay is one of complexity. An individual does not want his or her complex issue to be determined by an assessor on the basis of paperwork and written reports. Some cases will be straightforward but others will not. The claimant will want to have his or her say in regard to whether compensation should be awarded.

Equally, the assessor model deprives the State of the right to participate at that first stage. The claim is submitted and the State has no right to participate or make submissions on whether compensation should be awarded. If compensation is awarded, there is then an automatic appeal on the part of the State, not to the Circuit Court or District Court, but to the High Court. There does not seem to us to be the disincentive which Deputy Chambers mentions attached to a court based system as opposed to an assessor system. It would seem to us that the assessor system provides for greater curtailment on an individual's rights and entitlements to have his or her case disposed of fairly and transparently.

Deputy Jack Chambers

Does FLAC have an opinion on the matter?

Chairman

I invite Ms Barry or Ms Lucey to respond.

Ms Eilis Barry

We are not tied to any particular model but we are concerned that whatever model is adopted would be accessible, speedy and at a low cost. Earlier, the Deputy asked how the courts system could be improved. The current court system model is predicated on the fact that people will be represented by lawyers. There is a lot that could be done in this regard in terms of simplifying forms and procedures. These are matters that need to be taken into account in whatever system is decided on.

Ms Sinéad Lucey

On the Deputy's question regarding efficiencies, I refer the committee to the decision in the Airey v. Ireland case before the European Court of Human Rights, which prompted the introduction of a civil legal aid system. There is a huge question as to whether we are in compliance with that decision in terms of our current legal aid system, the number of exclusions, the time it takes to access legal aid and the financial threshold at which a person qualifies for aid. This feeds into the efficiencies. There has been an exponential rise in lay litigants going before the court, leading to judges having to spend a huge amount of time guiding the lay litigant through the system and procedures so they can at least get their cases heard. While judges are very good at doing this, they do not really have the time to do it. Often, cases are misconceived and people expose themselves to cost, which if they had had access to a lawyer they would have known at an earlier stage. This is a cost on the system that a properly functioning legal aid system might diminish and improve efficiencies as well.

Deputy Donnchadh Ó Laoghaire

I thank the witnesses for being here. I will be brief as I have leave to attend another meeting. I echo and support the points made by FLAC and the Bar Council in regard to access to justice and resourcing of the Courts Service. It is an issue of which Sinn Féin is very conscious. In our pre-budget submissions in recent years we have advocated additional resources for the Courts Service to improve access to justice. Are the witnesses aware if, prior to the ECHR decision, the idea of compensation for delays was considered by the Oireachtas or the Law Reform Commission?

Ms Eilis Barry

No.

Mr. Micheál P. O'Higgins

What has been floating around for a long time is the idea of the possibility of bringing a constitutional action by reason of court delays. The idea of looking for compensation is new but it has been found that the most direct form of compensation for court delays in respect of stress, disappointment and so on is a financial award. As to when it first came into the system, I am not sure. What we have tracked in the paper is the number of cases that have progressed to the ECHR and the Strasbourg court has found that Ireland is in default and that remains the case.

Deputy Donnchadh Ó Laoghaire

These would be matters for the assessor rather than the courts. Is there much ECHR jurisprudence on what constitutes an unreasonable delay?

Mr. Micheál P. O'Higgins

There is. The emphasis has been on an examination of the subject matter of the proceeding and the level of complexity involved in the proceedings. The ultimate question that the assessor, the judge in the model we are suggesting, would be the relative causes for the delay and the justifications for it. It is not simply a question of the ECHR case law making this clear or a question of looking at the raw level of the length of the delay.

Rather, it is a question of measuring the delay and assessing how culpable it is in the context of the nature of the proceedings at issue, what was at stake for the litigant and whether the justifications put forward on behalf of the responding party passed muster. It involves measuring and weighing up justifications against one another with a view to arriving at an answer to whether the delay was unreasonable, has it been justified and is it just to award compensation by reason of the delay.

Something else that must be borne in mind regarding how the ECHR jurisprudence treats of this issue is an assessment of the impact the delay has had on the individual litigant. Some litigants are stoic and can deal with a lot of delay, such as, perhaps, a young person who is not terribly bothered. There are also people who are highly stressed, elderly or, perhaps, do not have long to live, or whatever the particular personal circumstances may be. All of these feed into the measurement. We do not suggest every case is hugely complex but many cases have these complexities. The drafters of the Bill seem to acknowledge this because they have provided that it should be a judge or retired judge who is the assessor. For this reason it appears to be common case that these issues are somewhat complex, or certainly have the potential for complexities.

Deputy Donnchadh Ó Laoghaire

Are the Bar Council and FLAC stating it is not clear whether there will be hearings in public or whether it will be largely a paper exercise? This being the case and if it is not currently provided for, is there a need for some form of hearing or opportunity for the aggrieved parties to put their cases in person, or is it best that this remains a paper exercise as it is the most effective way of conducting it?

Ms Sinéad Lucey

We believe there should probably be a flexible approach. If a delay was very straightforward, such as that a case was heard on a particular date and it took three years to get the judgment there probably will not be a huge complex need to have somebody examine it and provide oral evidence. However, in a long protracted case with many loops, a delay would need to be explained. It could be unclear how the impact on the person could be understood purely on a paper basis without the opportunity to present direct evidence to an assessor as to what the impact has been and the importance of the case to the person on a personal basis. It could also be on a commercial basis. Oral evidence does have a value in this regard and to exclude it totally would seem to be incorrect. There may be cases that can be perfectly decided on paper without any particular difficulty. Both approaches are possible but we need to keep the opportunity for oral input into any hearing or determination.

Ms Eilis Barry

This is particularly the case for claimants who are not represented or who may have literacy problems. A paper exercise may not be suitable.

Deputy Donnchadh Ó Laoghaire

I may be wrong but I presume that FLAC would consider this an area for which one could get legal aid.

Ms Eilis Barry

We consider there should be legal aid from the beginning and it should follow through all the way.

Mr. Micheál P. O'Higgins

We agree with what Ms Lucey and Ms Barry have suggested for FLAC. A point that bears mentioning is that one advantage of not doing things in secret and providing an oral hearing, even if it is streamlined, informal and, I hope, cost effective, is there is tremendous value in litigants feeling they have had their day in court, whether that is full court, quasi-tribunal or whatever shape it takes. There is a difficult to calculate advantage and positive element to litigants feeling they have had their day in court with barristers standing up for them and telling the judge there was a wrong done. Even if they lose the case they come out of court feeling that somebody advocated for them. These positive benefits will follow a transparent court or quasi-court hearing. They will not follow if it is done in secret in an unnamed office purely on paper. This is something else we believe should be borne in mind.

Mr. Conor Dignam

There is another particular feature. A section 3A claim for compensation for unlawful detention, which is directed into the Circuit Court by the ECHR Act, can only be made where there has already been a finding by a court that there was unlawful detention. In such a case the substantive issue has already been decided and, in effect, what is being decided by the Circuit Court in this instance is the level of compensation. Under the system being established in the Bill the first things that have to be decided is whether there was a delay, whether there was a culpable delay, in other words whether the State is guilty or responsible for that delay, and how much compensation should be paid. Under the proposed system the first two elements, which are really the substantive findings that have to be made, are being passed to an assessor to determine on the basis of the papers. To draw an analogy, it would be like having an assessor deciding based on papers whether a person has been unlawfully detained. This would not allow the person to make full submissions or representations and would not allow the person alleged to have unlawfully detained the person to make submissions or representations on whether the detention was unlawful. It seems anomalous to put a more complex issue, which is the compensation for delay, into an assessor system with the more straightforward issue of compensation for a detention that has already been found to be unlawful going to the Circuit Court. That seems to give rise to an anomaly.

Deputy Donnchadh Ó Laoghaire

I wish to make several more points before I conclude. Obviously delays can be caused by a number of factors. A delay can be caused by a simple complexity and it may not be unreasonable. A delay can be caused by the resourcing issues we touched upon. In some instances, delays can be caused by a judge not discharging his or her responsibilities adequately or quickly enough. This question is addressed to FLAC and the Bar Council. Are there areas the Courts Service or the Legislature need to address in terms of the administration of the courts? Are there systematic improvements that can be made to the effectiveness of the courts in dealing with cases, aside from resourcing?

Ms Eilis Barry

I will repeat our point on providing for lay litigants and making forms and procedures more accessible for them. This would improve the system and make it more accessible, and it may reduce delay in the long term.

Ms Sinéad Lucey

Some of these points were made earlier with regard to processes and how court rules can be improved. Funnily enough, we made a submission recently in which one of the observations that it is almost easier and more straightforward to introduce a case to the High Court than the District Court, which makes no sense. Procedurally it is easier and more straightforward. There is definitely very significant scope in the rules to streamline and make it much more straightforward to bring a case and get through the court system much quicker.

Mr. Micheál P. O'Higgins

To pick up on what Ms Lucey has said, in some of our submissions, perhaps because of the questions that have emerged, we have dealt with High Court and Circuit Court level. In many ways the most important court in the land is the District Court. On the criminal side it is certainly the most important. It is the court where citizens of the country have the most interface and contact with the criminal justice system. Equally on the civil side, for people looking for debt collection, aggrieved at a dog barking next door or whatever it might be, the District Court is the most important because it is where the citizenry is in contact with the system most frequently.

We are trying to treat of these issues at superior court level but these points have even greater relevance and impact with respect the lower courts, where the business of the country is more frequently transacted with the citizenry of Ireland.

Deputy Donnchadh Ó Laoghaire

I have two related points, both concerning head 8 pertaining to the quantum of compensation. The first relates to FLAC's submission but the Bar Council of Ireland might wish to comment also. FLAC identified an inconsistency in the approach. It identified inconsistency regarding the European Court of Human Rights Act 2003. I understand it is related to the fact that compensation in the Bill is based on ECHR principles and that it is a sort of compromise based on the arrangements across the various jurisdictions under the ECHR, some are very different economically, socially and legally. Could the delegates comment on that?

Let me refer to another point FLAC made, which also applies equally to the alternative put forward by the Bar Council of Ireland. I refer to a case where there is a delay in determining the quantum of compensation and where that compensation is determined by the High Court. When such a case returns to the High Court under the process, there is a perception of a conflict of interest or of a lack of independence, even if there are different judges.

Could the representatives from FLAC address both of those points? Could the representatives from the Bar Council of Ireland address them briefly also?

Ms Sinéad Lucey

Our point on head 8 was on the quantum effectively being linked to the approach of the European Court of Human Rights. Our point is that the State is really required to put in place a remedy that is effective in the domestic sense rather than replicate a remedy that might be available to a litigant who takes the very long road to get to the European Court of Human Rights.

The difficulty we perceive is that the quantum before the European court is quite different from what would be awarded by the Irish courts in similar cases but that is because the European court is doing a completely different job when it decides a case against the State than an Irish court or quasi-judicial tribunal when it decides on a dispute before it. Often the European court will say it has decided there has been a breach of rights, in the view that the simple act of deciding the case in one's favour and declaring there has been a breach is adequate compensation or, as it often calls it, "just satisfaction". It will often not provide any remedy in damages at all. On other occasions, where it does consider providing remedy in damages, it is often an amount that might well be a very effective remedy in Bulgaria but that would hardly pay for one's flight from Ireland to Strasbourg if one were to go there to have one's case heard. The same applies to legal aid. That can be awarded by the European court.

It is like apples and oranges. While we should be providing for apples, we have ended up providing for oranges, and that seems to be the proposal. Consider the position if we were to reconsider all those cases that went before the European Court of Human Rights and found Ireland in default. If we actually had a properly functioning system of compensation for delays operating in a domestic sense, there never would have been a finding against Ireland. Therefore, the absence of a domestic remedy was the issue but there is now no need to bring in a European remedy and to try to transplant it into the Irish context. To us, there seems to be no real justification for making the direct linkage, and that direct linkage is not made in the European Court of Human Rights Act 2003, which is the main legislation providing remedies for breaches of the convention.

The other problem we have identified, which is probably speculative to some extent, concerns the question of an excessive delay in obtaining a remedy for a breach of one's rights under EU law. If somebody takes a case before the courts, where is he or she supposed to go for a remedy?

If machinery is already being put in place by the State for delays, why should it not accommodate delays in whatever context they arise, be it EU law or a breach of Article 6 of the convention? Again, it seems to be a misplaced notion that this is purely a remedy that should stand in the European Court of Justice rather than before the domestic courts.

The other issue raised is the loop that seems to have been included in the legislation whereby an award made goes to the High Court to be approved and then to the same court for an appeal to be heard on it. While a High Court judge will no doubt act independently if considering an appeal, it could create a perception that the appeals process is not wholly independent if the same forum that approves the award hears the appeal. That is just a basic point. Maybe it needs to be considered.

Chairman

Would the representatives from the Bar Council of Ireland like to add to that?

Mr. Micheál P. O'Higgins

Everything has been said eloquently. There is very little left to be said. We made a point in our paper to do with a restriction that is implicit in the model selected for the Bill that we believe is either directly unfair or could potentially be unfair — that is, the provision in the same head that Ms Lucey discussed, Head 8, which states that in making an award of compensation, the assessor shall compensate the applicant only to the extent that he or she suffered injury, loss or damage because of the breach. If that is intended to mean that one must produce a medical report to show a psychiatric injury or such like, for instance, it would be setting the bar too high and would cut away from a right to compensation people who have suffered stress, a loss of enjoyment of their life, or who have had an unnecessary disappointment visited upon them. We believe that would be a mistake, and we have said that in the paper.

Deputy Donnchadh Ó Laoghaire

Could the delegates address the other point? It would apply to the model proposed by the Bar Council of Ireland also. A court, particularly the High Court, might have to adjudicate on its own delay.

Mr. Conor Dignam

The system that is proposed is that the assessor would decide and that the award would then be approved by the High Court. Where, for the sake of argument, the assessor would decide without the State being involved in the assessment, it would then go to the High Court without the State being involved and the High Court would approve the award. The State would have a right of appeal against that award and the appeal would go to the High Court. FLAC's concern is that the same court would be deciding on the award and the assessment. We do not regard that, on the level of principle, as being a difficulty because High Court judges, day in, day out, have to exercise independent judgment and engage in independent decision-making. Therefore, we do not see a difficulty with a High Court judge hearing an appeal where a different High Court judge has already approved the award. This is because they would be hearing different arguments and would have the benefit of the argument made by the State. What we do believe it underlines is that the drafters of the heads of Bill have identified that the question of compensation for a delay in proceedings is a very significant issue, so significant that it warrants the High Court being involved in deciding that the award is an appropriate award. To us, that underlines that the matter is so significant it should actually be determined by the courts in the first instance rather than an assessor. Other than somebody in drafting the heads of the Bill having identified it as a significant issue, we do not see any other reason the High Court could be involved. If the High Court is to be involved in approving the award in the first place, why not simply have the courts determine the substantive issue and the quantum of damages? I refer to putting it into the Circuit Court, if it is to be consistent with section 3A, or such other courts as the Oireachtas may determine to be appropriate.

Chairman

That leaves me with nothing else to do but thank the delegates sincerely. I thank them all for their attendance and participation today. I also thank their colleagues who have joined them in the Visitors Gallery.

Other business of the House has clearly impacted on attendance, for which I apologise. There are 11 members of the committee and I am particularly grateful to those who have made the time and availed of the opportunity to engage with the representatives. The witnesses' views, through written submissions and responses to the various questions, will be very beneficial to this committee when preparing its report on this proposed legislation.

I thank each of the witnesses and wish you all a very happy 2019, and success in all your work undertakings. I shall adjourn the meeting now and with just myself remaining it is very simple; I am sure this never happens in court.

At our next meeting the committee will address equality and rights in the context of Brexit, which is a very interesting subject and very relevant at this point.

The joint committee adjourned at 3.56 p.m. until 9 a.m. on Wednesday, 23 January 2019.