Seanad Éireann debate -
Thursday, 14 Mar 1991

Vol. 128 No. 2

Courts (Supplemental Provisions) (Amendment) (No. 2) Bill, 1990: Second and Subsequent Stages.

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

Minister for Justice (Mr. Burke)

The purpose of the Bill is to extend to members of the Judiciary and to specific court officers, namely, the Master of the High Court, taxing masters and county registrars, certain pension benefits which are already available to most other groups in the public service. The Bill, which is broadly similar to one which was introduced in 1984 but which lapsed with the dissolution of the 24th Dáil, would honour a commitment made by the Taoiseach of the day, Deputy Garret FitzGerald, to a member of the Judiciary who vacated office for the purpose of taking up a position with the European Communities. The commitment has since led to threats of legal action if not put in place.

I propose to take each proposal in turn as it occurs in the Bill, set out the background and explain, as clearly as I can, its implications. The first proposal appears in section 2. The purpose of this section is to enable temporary service to reckon for pension purposes. Temporary Circuit Court judges may be appointed under section 14 of the Courts of Justice Act, 1936 and temporary District Court justices may be appointed under section 51 of the same Act. As the House will be aware, the need for temporary judges and justices has arisen frequently over the years to meet unusual increases in the work and commitments of the Circuit and District Courts. The section provides that a judge of the Supreme, High or Circuit Courts who has served as a temporary Circuit Court judge may have this service reckoned for pension purposes. Similarly, a justice in the District Court who has service as a temporary justice may have such service reckoned for pension purposes.

The principle of allowing temporary full-time service to count for pension purposes was conceded in the Civil Service as far back as 1967. It was applied to other public sector groups in the 1970s. I am satisfied that extension of the concession to members of the Judiciary is timely.

The next proposal is in section 3 which would allow part of a year, rather than, as at present, full years only, count for pension purposes. The principle of reckoning part years for pension purposes was one of a number conceded in the Civil Service under the conciliation and arbitration scheme in 1975. Again, I suggest that extension of the principle to the Judiciary and court officers is not unreasonable.

I should like to emphasise that failure to reckon temporary service and part-years can result in serious short-changing. I should like to give one example, which is neither hypothetical nor unusual. A member of the Judiciary retired with total service of 13 years and 362 days. Temporary service which accounted for 115 days did not reckon for pension purposes and neither did the balance of 247 days because of the fact that full years only could be counted. This meant that pensionable service was taken as 13 years only. If temporary service and the other "odd" days had been allowed to reckon, the value of his pension would have been 7 per cent higher. I suggest that it is quite inequitable to deprive any pensioner of such an amount on what can only be described as a technicality.

Section 4 proposes to give power to the Minister for Finance to make regulations setting up a formal spouses' and children's pension scheme on the lines of the informal, voluntary scheme which has been operating on an adminstrative basis since 1969. The scheme would be similar to that operating already for other public service groups. It is a contributory scheme, the level of contributions having been established on an actuarial basis to make it self-financing. Basically, the scheme provides that in the event of death in office of a contributor a pension becomes payable to the deceased's spouse and children based on the number of years service the deceased would have given had he survived to normal retirement age. It also provides for payment of a pension on the death, subsequent to retirement, of a person who was a contributing member while in office. A deduction is made from the lump sum of appropriate contributions for any notional years' service and for any years for which no contribution had been made during temporary service, for example. For all persons appointed to office subsequent to the making of the regulations membership will be compulsory. Nothing out of the ordinary is proposed in this scheme and I am sure the House will see the merits of formalising it.

I come now to sections 5 and 6 which propose that the Minister for Finance may make regulations providing for preserved pension benefits for members of the Judiciary and certain court officers. This proposal gave rise to an amount of controversy when the 1984 Bill was published. However, I am prepared to continue with this.

Determination of retirement age is dealt with in section 6. Normally benefits would be payable in no case earlier than at age 65. In the case of Supreme and High Court judges the age could be anywhere between 65 and 72 and in the case of Circuit Court judges between 65 and 70. The only exceptions would, as I have said, be in the case of death or permanent disability.

Before leaving sections 5 and 6, I should draw attention to the proposal under which the Minister for Finance may make regulations to provide for the purchase, at full actuarial cost, of notional years' service for pension purposes. This proposal would enable persons who would qualify for a pension in the normal course, but who would not have the potential for enough service for a full pension by normal retiring age, to buy additional years of notional service to enhance their pension. Purchase would be at full actuarial cost so that, overall, the proposal would not be an additional cost to the Exchequer. The usual means of purchasing notional years is by periodic contributions from salary or by reduction from the retirement lump sum payment.

Section 7 provides for the laying of regulations, when made under sections 4 and 5 of this Act, before the Houses of the Oireachtas. Subsection (1) is confined to "judicial" regulations and in accordance with normal practice, does not provide for power of annulment. The provisions at subsection (2), which will apply to "court officer" regulations, are the usual ones requiring that regulations be laid before each House of the Oireachtas for 21 sitting days during which they can be annulled by a resolution of either House.

Sections 8 and 9 would have the effect of abolishing the requirement for a minimum of five years' service to qualify for a death gratuity and so bring this group of people into line with the rest of the public service. At present, judges and justices must, under section 2 of the Courts of Justice and Court Officers (Superannuation) Act, 1961, have served for at least five years before a death gratuity becomes payable. The same rules applies to court officers under section 4 of the same Act. By abolishing the minimum service requirement this section would contribute towards the alleviation of distress in the vent of the untimely death of a judge, justice or court officer. The amount payable as death gratuity would, of course, continue to be equal to the yearly amount of the salary of the judge, justice or court officer at the time of his death.

Section 10 provides for retrospection for various provisions in the Bill. The dates chosen are related broadly to the dates on which similar changes were made for other public sector groups.

These, then, are the changes to pension arrangements proposed in this Bill. They are quite limited in extent and are in line with arrangements already in force for most other groups in the public sector. There are no changes in the broader provisions for pensions for the Judiciary and the specific court officers which are contained in the Courts (Supplemental Provisions) Act, 1961 and the Courts of Justice and Court Officers (Superannuation) Act, 1961. Judges of the Supreme, High and Circuit Courts qualify for full pension after 15 years' service. The pension amounts to a maximum of two-thirds of remuneration. However, pension is reduced to one-half remuneration for the purpose of providing for payment of a gratuity on retirement. District justices and court officers qualify for full pension after 20 years' service and the manner of calculating maximum pension, with and without a retirement gratuity, is otherwise the same as that for judges. As I have said, no change is proposed in relation to these entitlements.

I regard the limited measures proposed in this Bill as fair and reasonable and, accordingly, I commend the Bill to the House.

Mr. Manning

I welcome the Minister to the House. On the last occasion he was here he was wearing his Communications hat. There was, maybe, more heat than light at that time. The atmosphere is cooler here this morning. The Minister has shown himself to be a reforming Minister in an area which affords unlimited scope for reform — the whole area of prisons and the administration of justice and so forth. He has also been very responsive to requests from members of my party who have come to him with individual cases. That is much appreciated.

The nub of the Bill is very simple. The Minister has explained it in his speech, which, while delivered at some speed, nonetheless gives a clear indication of what is involved. The purpose of the Bill is, as the Minister said, very simple. It is to extend to members of the Judiciary and specific named court officers superannuation benefits which are already available to most other groups in the public service. The central position, as I understand it, is that civil servants who leave voluntarily before normal retirement age have their pensions and superannuation rights deferred to normal retirement age. There is statutory provision for this to enable those, for example, who go to serve in international bodies, or in the European Community, or, indeed, go to work elsewhere, to get their deferred pension rights at the normal retirement age. We would all like to encourage the practice of mobility, and especially to encourage people in senior positions to move on in order to give them the opportunity in their own interest and in the interest of the country, to serve in international fora. It is important that we make it possible for people to do this without damaging their pension rights. Up to now, these rights did not apply to judges. Under this Bill they will. There is nothing exceptional in that. As the Minister said, it is a very limited Bill which, in effect, is bringing certain categories within the normal ambit of what applies in the Civil Service. The Bill is clear and straightforward in that.

May I trespass very briefly on the opportunity this morning to impress on the Minister, while this is not specifically within the Bill, the urgency for major reforms within the whole administration of justice? There has been much discussion in recent times, at various levels, among the professional bodies, the general public and politicians about the need to tackle the main sources of concern. These are the inordinate delays which occur so often, the archaic method of the administration of justice, and the cost. These, in particular, are the three main areas of concern. There have been very many proposals put forward, for example, from my own party, for a court of civil appeal which would certainly help ease the number of appeals that can be taken by parties so that when there is the possibility of parties taking appeals to delay the conclusion of a case, these could be referred to a court of civil appeal which could sift through much of the work there.

Likewise, there have been calls for more comprehensive pre-trial procedures, especially dealing with expert witnesses.

A proposal was put forward by the Committee on Court Practices and Procedures, as far back as 1972, to extend the role of the Master of the High Court. There is a need for even further changes in the whole area of family law tribunals and for a consumer tribunal.

These proposals are outside the scope of what we are dealing with, but I believe very strongly that a Minister for Justice who takes on, in a major and serious way, the whole question of the reform of the administration of justice in this country, will go down in history as one of the great Ministers for Justice. I believe such a Minister will find a much more ready response today from the legal profession and from the judges themselves who are aware of some of the problems. The Minister will certainly receive from the long suffering public a great deal of gratitude if he could produce a White Paper covering these and other areas and begin in a serious way to amend the procedures for the administration of justice.

I welcome this Bill. It is a simple straightforward Bill. It was explained clearly by the Minister and I have pleasure in supporting the Second Reading.

Mr. O'Donovan

Like the previous speaker, I welcome the Minister to the House and I concur with the remarks of Senator Manning to the effect that this Minister, in his portfolio, has shown foresight and diligence. Indeed, as mentioned by Senator Manning, he is a reforming Minister. He should be complimented for this. I also agree with the sentiments expressed by Senator Manning to the effect that the whole situation in relation to the administration of justice is one where there is much scope for manoeuvre. In complimenting the Minister on his excellent work to date, I would urge him to continue that work so that the public demand for more law reform can be met quickly.

This legislation is, in effect, amending legislation which extends to members of the Judiciary and specific court officers, such as taxing masters, the same pension rights as apply to other members of the public service. This is to be welcomed and is most desirable. There was some pressure for court action to be taken to compel the Government to bring in this legislation arising out of a situation in the previous administration in 1984.

As a member of the legal profession, I would like to welcome this amending legislation which allows the Minister for Finance, after due and proper consultation with the Minister for Justice, to make appropriate regulations. This Bill will apply right across the board from district justices, to Circuit Court judges and to High Court judges. It also includes certain other court officers, as already mentioned, such as taxing masters and county registrars.

It is important to point out that the concepts and principles contained in the Bill are not entirely new. What is being done by this Bill is to amend, update and modernise existing legislation. The whole principle of the Bill is based on the 1961 Act — the Supplemental Provisions Act — which set out the premise of pensions for judges. The legislation here merely updates that. People might say that the costs involved are extreme. This is not true. The total cost in any given year is estimated at £100,000, which is not a huge sum of money. I would also welcome the provisions of the Bill whereby temporary service of a judge in the Circuit or District Court can now be added on to permanent service and reckoned as pensionable service. This is a defect that did exist. The Minister quoted an anomaly whereby in one given case a person could lose seven per cent of his pensionable income. That clearly outlines the vacuum that existed.

Sections 4, 5 and 6 allows the Minister for Finance, after consultation with the Minister for Justice, to make certain regulations. It concludes pension schemes for the spouses of children, judges and court officers. This is desirable. It also includes provision for the payment and pension referred to if there is retirement sooner than normal retirement age in the event of permanent disability or otherwise. I welcome that aspect. Prior to this, if a district justice, a taxing master or a Circuit Court judge did not have the minimum five years' service they were placed at a severe disadvantage. This has now been deleted, and the provision updated. There is a provision where a judge or court officer can purchase notional years' service at an actuarial cost value. There would be no additional cost to the State. It is an aspect that must be welcomed and appreciated.

Justices from the District Court, judges, county registrars and taxing masters play a very important role. Certainly, they must be treated in the same manner as other people in the public service. In many instances, district justices who are appointed are going into situations less remunerative than if they stayed on in private practice. This applies also to a High Court judge. In many instances, eminent senior counsel are slow to accept appointments to the Bench on the basis that there are more lucrative pickings in private practice. Consequently, when people are appointed to these positions of great esteem and honour, they must be respected. Anything that this legislation can do to improve their situation must be welcomed.

The position has been clearly outlined by the Minister. Again, it is amending legislation. The concept and principles involved are not entirely new. It is something that was initiated in or around 1984, under the administration of Deputy Garret FitzGerald. Due to the lapse of the 24th Dáil, this Bill was left on the back burner. It has now been re-introduced. I would urge the Seanad to accept the provisions set out by the Minister so that this Bill would become law as soon as possible.

I thank the Minister for coming to this House and for his excellent work in his portfolio. Certainly he has performed extremely well in the Department of Justice. Now, with the shackles of the Department of Communications removed, I am quite sure we will see a lot of reforming legislation along the lines pointed out by Senator Manning. It would be most welcome. There is a quagmire out there. There is a minefield where there is a need for much reform and new legislation. Now that the two portfolios have been separated, the Minister can certainly concentrate on this need.

Professor Conroy

I, too, would like to join in the remarks in relation to the Minister. He has been approachable and courageous in the actions he has taken so far in the portfolios he has held. The Department of Justice portfolio is a particularly difficult one.

This Bill is basically similar to the one introduced in 1984, and which lapsed with the dissolution of the Dáil. If anything, it is overdue. It is a humane and necessary Bill. I am pleased that the Minister has made allowance for spouses and children. The Minister is aware of one or two rather sad situations. It is a very sensible Bill. It also tackles the question of temporary service. It was very much an anomaly that while this service should be recognised in the Civil Service, members of the Judiciary fell outside the provisions of this principle, which the Minister and his predecessors have very rightly decided to follow. It raises the whole question of temporary service. It was once a feature of appointments.

I can remember dispensary doctors in years gone by being appointed on a temporary basis and being seven, ten or 20 years in such a situation. It has largely been cleared up now in relation to Civil Service and Government appointments, but there is an increasing tendency at the moment in private institutions and industry to appoint people on a temporary basis for, perhaps, 12 months, and renewable then perhaps for another 12 months, renewable for yet another 12 months. The situation of such people can be severely compromised as regards pension rights. Pension rights should relate to any service, any work that somebody is doing. Provision should be made and those same pension rights should be transferable. I am glad that in this Bill one particular anomaly in that respect is being covered. I particularly welcome section 4. There was already a voluntary scheme and an involuntary scheme, but it was high time that that was part of the full, formal scheme and that people coming into it would have compulsory membership in it.

With regard to pensions generally, at a time when it is easy to do something about them very often it is the last thought in people's minds and then at a later stage, when it is much more difficult, perhaps they tend to turn their attention to them not only from a pension point of view but from the point of view of the implications for their wives or children.

Other speakers have said and the Minister has shown already that he is very much a reforming Minister. He has also shown, by his willingness to take on the communications portfolio and put a Bill through under very difficult circumstances, that he is capable of tackling necessary reform. I think that is the difference between a legislator, a states-person and someone who is simply a politician. Full credit to the Minister for that. But we do have in this country an extraordinarily complicated situation as regards law and indeed we must be very grateful in a number of ways to these people for whom we are passing this Bill today.

It is very easy to criticise the Judiciary and the legal system but we are very fortunate in this country that we have a legal system upon which we can rely. There are relatively few countries in the world in which that is the situation. We were talking yesterday about the relatively few countries in which there is democracy. In very few countries is there a free, able, reliable and fair judicial system. I think we have cause for pride in that regard but a great deal of reform is needed within the law.

The Minister will remember the situation in relation to ground rent. It seemed a very simple matter. Yet, when we look into just one aspect of law, property law, we find we have to relate to the 1922 legislation in this country since we got our independence, legislation in the United Kingdom from 1800 until we got our independence, and then the preceding legislation, some of the books of which are alongside the approach to the Dáil Chamber. Legislation here relates to a written Constitution but in fact much of our law is on the principles which governed United Kingdom precedent. We still take case precedents from the United Kingdom as well as precedents in our own courts and now, particularly important to us all, and I am sure the Minister is more than aware of this, there are the implications of European Community law which is often based on a totally different legal system, the mainland, Napoleonic, or whatever you like to call it, legal system, which is beginning to have effects of very considerable magnitude in this country.

A Minister for Justice always has many difficulties. His is a difficult, unpopular job. It is one which I know this Minister will be looking at very carefully to see what reforms can be brought in and I am sure that, if he does, he will bring them in both with compassion, as shown in this Bill, and with vigour and thoroughness as shown in his other work. I welcome the Bill.

Minister for Justice (Mr. Burke)

I thank the Senators who have contributed to the debate and welcomed the Bill. I would also like to thank them for their very generous comments in relation to my own performance and to touch on the main points that were mentioned by the Senators. They were the need for reform within the justice area and in particular in the courts area, the need to make the courts more accessible to people and the need to tackle the problem of costs and delays and the need to bring legislation forward.

I can tell Senator Manning and Senator Conroy that much work has been carried out in the Department on this. Within the next couple of weeks I will be publishing a new Courts Bill which will increase the levels of jurisdiction of the District Court from £2,500 to £5,000 and of the Circuit Court from £15,000 to £30,000 and that will do much to speed up the procedures and the handling of cases and it will do much for the costs because obviously the costs in the District Court and the Circuit Court are a lot lower than they are in the High Court and the Supreme Court.

I am also committed to a Bill in relation to civil appeal because so many of the cases before the courts are civil type cases it is essential that we have a court of civil appeal. I hope to introduce that before the end of the year. I am also looking at the concept of a small claims court and how that would operate. I am not 100 per cent sure yet in relation to that, so I do not want to make an overall commitment to it. It is something I am examining.

I will also be publishing a new Solicitors' Bill before the summer and hopefully that will be very much on the lines of the Fair Trade Commission's report. Much work had been done on a Solicitor's Bill prior to the publication of the report and I have now taken on board many of the points in the Fair Trade Commission's report. There is a lot of work under way. I fully accept that there is a lot more to be done. I believe we can improve the quality of the life of our citizens in a very special way in the justice area by increasing and improving the operations of our courts and increasing their efficiency.

I take the opportunity here to echo what Senator Conroy said in relation to how fortunate we have been in this country in having such a Judiciary since our independence. We are truly blessed as a nation in the quality of the men and women who have given up lucrative careers in private practice and were prepared to serve their country by taking on onerous appointments to the Bench from Supreme Court to District Court levels. We are very fortuante in that. I believe they are entitled to recognition and protection for themselves and their families and that is included in this Bill. That is vitally important. It is a measure of reform. It is not an earth-shattering one that will grab public attention, it is a small but very important piece of legislation.

Question put and agreed to.

Agreed to take remaining Stages today.

Bill put through Committee, reported without amendment, received for final consideration and passed.

Sitting suspended at 11.15 a.m. and resumed at 2 p.m.