Seanad Éireann debate -
Thursday, 6 Mar 1997

Vol. 150 No. 8

Courts Bill, 1997: Second and Subsequent Stages.

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

Minister for Justice (Mrs. Owen)

When I became Minister for Justice I was acutely aware of the need for reform of our courts system. A full reappraisal of where the courts stood and where the system was going was long overdue. A fresh approach was badly needed. A vastly increased volume of civil actions, family law business and criminal cases over a number of years meant that the entire courts system was under considerable strain. The most serious and immediate problem was, of course, the delays in the hearing of actions and appeals at all levels of the courts system. This adversely affected litigants, victims of crime, the business sector and the community as a whole.

The first major step I took to turn around this unsatisfactory state of affairs was to introduce and secure the enactment of the Courts and Court Officers Act, 1995. That Act provided for a total increase of 18 in the statutory maximum limit of judges — three in the Supreme Court, three in the High Court, seven in the Circuit Court and five in the District Court. All but three of those extra judges have been appointed. The 1995 Act contained other innovative reforms that improved the position considerably — for example, by enabling the Supreme Court to sit in two divisions which could hear appeals simultaneously and by giving the Master of the High Court and county registrars the power to deal with business that previously only judges could handle.

Last summer I brought forward the Courts Bill, 1996, to increase the maximum statutory limit on the number of judges of the Circuit Court by a further three to 28 judges, including the President of the Circuit Court. The Courts Act, 1996, and the 1995 Act have provided for an additional ten Circuit Court judges, that is, an increase of more than 50 per cent in the number of judges of that court. Developments in the family law area and changes to the limits of the jurisdiction of the courts in 1991 had a major impact on the volume and complexity of business coming before the courts system as a whole but this affected the Circuit Court in particular.

The implementation of divorce legislation is likely to impact further on the volume of business, particularly in the Circuit Court. It is not yet possible to assess its long-term requirements for judicial and staffing resources but in the short term it is expected that there will be a considerable number of applications to the courts. My Department is currently in touch with the Department of Finance regarding the provision of additional staff in this regard. If a continuing upward trend becomes apparent, I assure the House that the Government will examine the need for additional judges and staff in that specific context.

The appointment of additional judges has enabled the President of the High Court to arrange additional sittings of the Central Criminal Court and the President of the Circuit Court to arrange additional sittings of the Circuit Court around the country, particularly in areas where delays are most acute. Alongside my legislative programme, this development has had a significant effect on the arrears of cases before those courts. My strategy has been to combine the allocation of additional judicial resources with practical legislative and administrative reforms to quickly equip the courts system with the means to make inroads on delays in hearing cases and appeals.

This strategy has produced excellent results. The existing backlogs in the courts are well on the way to being cleared. For example, in the Dublin Circuit Court I understand that new litigants in civil cases can now obtain a court date within six weeks of the lodgment of their case. This compares to a delay of two years last July. In family law cases in the Dublin Circuit Court the delay has been reduced from 16 months to four months and there are now no delays in the hearing of criminal cases in the Dublin Circuit Court. I hope Members will recognise that a serious attempt is being made to reduce the delays and that the strategy the Government and I adopted has produced excellent results.

Delays in the hearing of personal injury actions in the High Court have been reduced from 35 months to 20 months and delays in the hearing of cases in the Central Criminal Court have been reduced to as low as six months in some cases. There have been similar substantial reductions in delays in the hearing of cases in the provincial Circuit Court. For example, delays in the hearing of civil cases in Galway have been reduced from two years to as low as three months and delays in the hearing of family law cases, involving a great deal of trauma, which were up to six months have been eliminated. The vast majority of provincial Circuit Court venues have experienced this pattern of reductions in the level of delays in the hearing of cases.

A major step has been taken to reform the courts system with the establishment of the working group on a courts commission which I set up at the end of 1995, chaired by Mrs. Justice Susan Denham, to review the operation and financing of the courts system with particular regard to the quality of service provided to the public. I also asked the group to consider the matter of the establishment of a commission on the management of the courts as an independent and permanent body with financial and management autonomy in line with the commitment to that effect in the Government of Renewal programme.

Last November, the Government approved the recommendation contained in the working group's third report, Towards the Courts Service, to the effect that steps be taken as a matter of urgency to legislate for a courts service as an independent and permanent body and accorded priority to the drafting of this Bill. The legislation which is required to enable the new courts service to be established is being dealt with as a priority in my Department and this measure will be published as soon as possible.

The working group is continuing its work on the review of the day to day operation of the courts system and it will submit further reports to me as appropriate. This is valuable work and I take this opportunity to again thank Mrs. Justice Denham and the other members of the working group for the very important work they have undertaken in this area. This strategy for the longer term development of the courts system is, in my view, crucial. Too many sticking plasters were put on other areas of the courts and prison system in the past and these fundamental and long-term changes need to be made to the courts system. The reason the working group has been so successful is that all those involved, including the members of the group, the staff associations and the staff who sent submissions and met the group, have been positive about the concept of a new courts service.

Another major area of concern which I am actively addressing is the standard of court accommodation. A major courts building programme has been drawn up and a number of works are under way throughout the country. I am aware that, despite work carried out in recent years, the standard of much court accommodation throughout the country is seriously inadequate and is failing to provide the facilities necessary for persons using the courts. Therefore, I have obtained £7.5 million from the Government this year to carry out capital projects and a further £1.6 million for maintenance projects. This is the highest amount to be allocated in one year since financial responsibility for courthouses was transferred to the Exchequer in March 1990 and is an indication of the Government's commitment to provide modern court accommodation which is necessary for the effective discharge of court business. During the next month or so new courthouses will be provided at the former River-bank Theatre and the former Richmond Hospital in Dublin, at Carrick-on-Shannon and at Naas. Work on the building of a new courthouse in Tallaght has just commenced and major projects in Ennis, Listowel, Longford, Trim and Cork city will also get under way this year.

Turning to the Bill, Senators will be aware of recent Government decisions to appoint two judges of the High Court, Ms Justice Mella Carroll to the Nursing Commission and Mr. Justice Brian McCracken to the Dunnes tribunal. These developments will naturally have implications for the existing judicial resources in the High Court and that is the background to this Bill. I would be most concerned if the progress that has already been made in reducing delays in hearing criminal and civil cases before the High Court was adversely affected by the appointment, albeit temporary, to other duties of the two judges I mentioned.

The purpose of the Bill is to increase the statutory limit on the number of judges of the High Court, not including the President of the High Court, from 19, as set by the Courts and Court Officers Act, 1995, to 22. This will be raised to 23 where one of the judges of the High Court is appointed to the position of commissioner in the Law Reform Commission, which is a standard provision. It is my intention that one new judge should be appointed to the High Court when the Bill has been enacted.

The Bill takes account, therefore, of the need for possible future increases that may be required in the number of High Court judges. I believe that approach makes better sense than legislating to increase the complement of judges on an ad hoc basis on each occasion that an additional judge might be required. Urgent circumstances could arise in the future which would require the appointment of an additional High Court judge. This Bill means that it will be possible to respond to such a need without having to bring forward another Courts Bill.

We had not anticipated that two High Court judges would be working for the State in connection with the nursing commission or the Dunnes tribunal. The legislation provides that the Government of the day may, if necessary, appoint two additional judges to the High Court.

As Minister for Justice, my key priorities are tackling immediate problems and implementing a longer term development strategy for the courts. The reforms I have already put in place and ongoing reforms will ensure for the future that the courts will have the capacity to respond effectively to the demands placed on them. This commitment of resources and longer term planning is vital for the operation of an efficient system of justice. That is a standard the public is entitled to expect and which I am confident my reforms will deliver.

The Bill is an important measure that will enable the very significant progress that has been achieved in the operation of our courts system to be maintained and developed further and I commend it to the House.

Mr. Mulcahy

It is always welcome when progress is being made. I will not take from the progress made by the Government in respect of the appointment of additional judges. I agree with many of the sentiments in the Minister's contribution.

Enormous progress has been made in Circuit Courts throughout the country and the backlog in the Dublin Circuit Court has been virtually eliminated. The Minister stated that new litigants in civil cases can obtain a court date within six weeks of the lodgement of their case. However, the correct position is that a case will be heard within six weeks by the Dublin Circuit Court when notice of trial has been served and all pleadings in that case have been closed. That is to be welcomed because justice delayed is justice denied.

I am slightly puzzled by the fact that additional judges were not appointed in the past. Lack of resources may have been one of the reasons for this. Past years were not as bounteous as this or last year and the cost to pay and maintain a judge is quite high. The figure provided in the explanatory memorandum is approximately £131,000, which includes payments to support staff, etc. Therefore, the appointment of judges is an expensive process. However, I remain puzzled why additional judges were not appointed in the past. In fairness, the Minister's predecessor, initiated the Courts and Court Officers Act, 1995, which contains a provision for the appointment of additional judges but she was not in power when the legislation was finally passed.

The Minister may be pleased to discover that I do not intend to shout or roar about anything to which she referred. I genuinely welcome the appointment of additional judges and the progress that has been made. I also welcome the fact that, on many country circuits, two Circuit Court judges hear cases. This has a double effect: it ensures that cases are heard sooner, previously one judge served five to six counties, and barristers can no longer withhold a number cases to have them heard on the same day. For example, a barrister may have a case in County Longford and one in County Laois on the same day and cannot deal with both. This has streamlined the system and ensures that cases are heard sooner.

I am not convinced about the High Court. The Minister stated that the delay in cases coming before this court has been reduced from 35 to 20 months, approximately. This remains an unacceptable waiting period. I am not stating that I have all the answers. I believe the late Justice Niall McCarthy stated that a person who had to wait such a long period for their case to be heard might well have good cause to take a case for judicial review.

The Constitution makes it clear that people have a right to avail of the administration of justice. Implied in that right is a further right to have one's case heard within a reasonable period. I believe that the 20 month waiting period might be too long. I am not accusing the Minister of being complacent but I ask her to review that figure and work further to reduce it.

I have a general reservation about the Bill and I would be failing in my responsibility were I not to mention it. If some of the additional judges appointed are going to be involved in criminal cases, one must ask if they are serving any useful purpose. In an article which appeared in yesterday's Evening Herald a judge appointed by a previous Government was quoted as stating that the law was being brought into disrepute because of the “revolving door” prison system. The article further states that Judge Gerard Haughton refused to hand down a prison sentence to a serial shoplifter who admitted several theft charges. Those are his words not mine. I know the prisons issue is not being discussed here today.

An Cathaoirleach

I remind you that court judgments are not open for debate in the House.

Mr. Mulcahy

I am not questioning the judgement, but quoting it.

An Cathaoirleach

It is not open for discussion.

Mr. Mulcahy

I am not discussing it.

Mrs. Owen

The Senator is discussing it because that is his judgment.

Mr. Mulcahy

I am not discussing it; I am only repeating what he said.

An Cathaoirleach

You are debating it.

Mr. Mulcahy

I cannot close my eyes to the fact that a judge said there is no point sending someone to prison because there is no prison place for them. Can the Minister assure me that prison places will be available for people convicted by these new judges? If the Minister is not able to give me such assurance and if some of these judges are involved in criminal trials, is it not open to a charge of vacuousness to appoint a judge in such circumstances? It is entirely different if they are dealing with civil matters. The Minister must accept my concern at appointing judges to hear criminal cases in circumstances where there is no effective sanction available for the people who are convicted.

On 9 October 1996 the Minister for Finance, Deputy Quinn, said in this House: "I am the person who proposed postponing Castlerea prison because, at the time, the programme for its construction would not have created extra prison places until 1998". Perhaps the Minister has no view on the matter, but she did not inform the House about whether she agreed with that proposal. Given this Government's alleged commitment to openness and transparency, it is not unfair of me to ask her to state publicly if she was aware of that proposal and, if so, if she agreed or disagreed with it. Given the serious problems in the administration of justice, an answer should be forthcoming. I have not called for the Minister's resignation or for the resignation of any member of the Government. However, if the Minister for Finance proposed to postpone Castlerea prison, he has questions to answer, particularly in light of the shortage of prison places as exemplified by the judge's comments. I am not saying the Minister is obligated to answer on his behalf, but he should answer these questions to alleviate the public's concerns.

Fianna Fáil wants to assist in the fight against crime. We welcome the appointment of new judges and we hope their addition to the bench, whether for civil or criminal cases, will assist in speeding up the administration of justice and in bringing criminals to bear responsibility for their activities.

Mr. Neville

This Bill is part of the Minister's package to improve the criminal justice system and to give the courts a stronger role and make them more efficient so that law and order is restored in our society and the State is able to protect its people. This is one of many measures the Minister has brought before the Houses of the Oireachtas. I welcome the fact that the problem of delays in the courts, which was discussed in both Houses for many years, has been tackled. As Senator Mulcahy said, further improvements are needed, but we should recognise that considerable progress has been made.

Delays in the litigation area have been reduced from 35 months to 20 months in the High Court. While we would like to see this reduced further, the process which has developed over the years is a delaying factor in itself because parties wish to discuss the issues involved. While the majority of cases are resolved outside the court, a system has developed which makes it more difficult to speed up these cases. I am sure Senator Mulcahy understands better than I the steps the court takes to postpone cases to see if a settlement can be reached.

Mr. Mulcahy

Which is of assistance.

Mr. Neville

Which I would question, although a settlement is found in many circumstances. I also question the compensation culture which has developed in society and the role our legal system plays in this area.

Many genuine claimants, who were advised not to return to work as it would affect the outcome of their cases, suffered from stress as a result of these delays. At least the delays will be reduced from 35 months to 20 months as a result of the appointment of additional judges.

Many of the Bills the Minister introduced are now law. This has led to an increase in the number of citizens sentenced to prison, which is putting extra pressure on the prison services. The Minister has provided 160 extra prison places in the past two years and an additional 850 spaces will be available by the end of 1998. This represents a one third increase in prison places. The prison population is currently 2,300, but it is increasing like in other western countries. The Minister said the US authorities, for example, would need to build a prison every three days to meet the increase in crime. The Minister has also been criticised in the past two weeks for creating an extra 100 places by doubling up the number of prisoners in each cell. None of us would like to see that happen but we must recognise that because of pressure on the prison system, the Minister took an unpopular decision, which could be criticised, to increase the number of places in this way. While we do not like it, we have to recognise that it was necessary in the present circumstances.

Mr. Mulcahy

Will the Minister for Finance, Deputy Quinn, apologise for the inconvenience to prisoners caused by overcrowding?

An Cathaoirleach

Senator Neville without interruption. Senator Mulcahy has had an opportunity to contribute.

Mr. Neville

I would like to remind Senator Mulcahy that Castlerea Prison is open.

Mrs. Owen

It was opened in 1996.

Mr. Neville

Every time Senator Mulcahy comes in here he talks about the Minister for Finance and Castlerea.

Mr. O'Kennedy

Say it again. Castlerea is open? I do not believe it.

Mrs. Owen

It was opened in 1996. We will organise a private visit for Senator O'Kennedy.

Mr. Mulcahy

Can the Minister lay on a helicopter?

Mr. O'Kennedy

Is this the one that was closed and reopened?

An Cathaoirleach

I am sure Members will take up the Minister's offer.

Mr. O'Kennedy

Is it the same Castlerea that was postponed?

Mr. Neville

Senator O'Kennedy is probably aware that I am responding to the contribution made by Senator Mulcahy.

Mr. O'Kennedy

We are singing off the same hymn sheet.

Mrs. Owen

The Senator is doing all right in Tipperary.

Mr. Neville

The Minister has, at last, recognised the fact that there is an urgent need for improving the conditions of our courts. While I cannot put a figure on it, the conditions in many of our courts are appalling. As a member of the Employment Appeals Tribunal since 1989 I have visited many of these courts, especially in the south-west and I am surprised they have been allowed to deteriorate to such an extent. Such conditions would not be tolerated in other State sectors. At times, judges have rightly refused to sit in certain courts.

We should, however, recognise that for the first time the Minister is investing £7.5 million to carry out capital projects as well as providing a further £1.6 million for maintenance projects. That is the highest amount to be allocated in one year to this sector since 1990 when it became the responsibility of the Exchequer. It is a small but important area that the Minister is dealing with. The Minister and the Government should be encouraged to improve the contributions to that area to ensure that out prison standards reach a level of acceptability. The Minister is making a serious attempt to reduce delays in the court system. She has successfully done so to date and this will contribute to that effort.

This is an important Bill which I welcome as a small contribution in the context of ensuring that the criminal justice system, including the courts, is more efficient, and that our citizens can be protected.

Ms Honan

I appreciate the efforts being made by the Minister for Justice to deal with the problems of the court system. We all welcome the principle of the Bill, which is to increase the statutory maximum number of ordinary judges of the High Court. The Minister is acutely aware of the need for reform of the court system and has taken steps to establish the working group and the Courts Commission, which was set up almost two years ago, as well as the appointment of Mrs. Justice Susan Denham to review the operation of funding and financing of the court system.

I was going to ask how the recommendation relating to the establishment of the Courts Commission was progressing but the Minister already said it is being dealt with as a priority within her Department and will be published as soon as possible. I welcome that fact. I also welcome the increase in the number of judges in the High Court, a move that has reduced the backlog by allowing additional sittings to take place. While the progress that has been made in that area is welcome, and we are never satisfied with everything the Minister does, she has made quite a number of improvements in this difficult area.

I wish to comment on areas of the court system which need attention. All these areas have a cost factor and I appreciate the Minister does not have unlimited resources at her disposal. However, she must make decisions and try to target those areas she feels need particular attention. In a recent report on the family law courts, the Law Reform Commission referred to what it described as "the negative ethos of the court system as it currently operates in the area of family law".

As a politician, more and more people come to me with difficulties they are experiencing in the family law area. With the introduction of the Family Law (Divorce) Act, and given the incidence of family breakdown and separation, family law is an area with which we are becoming more familiar.

When referring to the negative ethos of the court system, the Law Reform Commission explained it as follows:

Instead of concentrating on the empowerment of individuals to resolve their own family disputes by encouraging negotiation and agreement, the emphasis of our system, with its concentration on adjudication, is on solutions which take control away from the participants. A humane system of family law is one which encourages the responsible resolution and management of disputes wherever possible by members of the family themselves. Judicial intervention is, of course, necessary to prevent exploitation or abuse between family members. The ideal of empowerment should not blind us to the problems of inequality which may arise in a system of private ordering. This apart, it is perhaps time to consider how reforms in our legal process may help in the process of family empowerment.

One of the key recommendations of the Law Reform Commission is the establishment of a system of regional family courts based in 15 centres around the country, operating as a separate division of the Circuit Court and presided over by judges nominated to serve for a period of at least one year who are assigned on the basis of their suitability to deal with family law matters.

I appreciate the Minister's efforts, and those of the Government, to increase the number of judges and to establish the principle of judicial training. Much remains to be done, however, and it is disappointing that neither the Family Law (Divorce) Act nor this Bill has taken on board the family law reforms suggested by the Law Reform Commission. It is a difficult situation and the Minister cannot solve every problem at once, but I am concerned about this area, nonetheless.

Another idea of the Law Reform Commission is that each regional family court should have attached to it a family law information centre with responsibility for providing impartial and objectively presented information relating to possible alternatives to litigation, the implications of separation, court processes and the availability of support services. This is an excellent idea.

While the Family Law (Divorce) Act, like the Judicial Separation Act, obliges a solicitor to inform clients of the availability of mediation services, there must be a danger in many cases that this will be no more than a ritual to be gone through. While the concept of mediation has much to recommend it, one wonders whether there exists a sufficiently comprehensive service to meet the levels of demand, particularly those that can be envisaged after the passing of the Family Law (Divorce) Act.

We need to establish a regulatory regime involving accreditation and recognition of training qualifications if we are sincere about shifting family disputes away from the courts and into the area of mediation.

I have already dealt with the establishment of the Courts Commission and I welcome the Minister saying this will be a priority in the Department of Justice. All Members would have to say they are in favour of more judges as we would be in favour of more gardaí or hospitals. I appreciate the efforts the Minister is making in this area and I welcome and support this Bill.

Mr. O'Kennedy

The Minister of State in her speech said that the Bill being debated today is an important measure that will enable the very significant progress achieved in the operation of our court system to be maintained. This important measure allows for the appointment of one High Court Judge.

Mrs. Owen

The Bill will allow for three.

Mr. O'Kennedy

The framework will allow for three but this means that one High Court judge will now be appointed. To call that an important measure is an abuse of language. The Minister appears to have indicated that the reason for this important measure "to enable the immediate appointment of a High Court judge" is that Mr. Justice Brian McCracken has been allocated to the Dunnes Stores tribunal.

The Government set their face against appointing a tribunal on this issue and strongly resisted that idea. When a similar Bill to the present one was introduced recently, it was on the basis that the complement of judges in the High Court and the Circuit Court was adequate. Otherwise, the Minister could have increased the panel or limit as I invited her to do. Then she would have been able to work within that limit to appoint judges. However, the Government did not want any extra appointments at that time and made no such provision. Now they have reversed their decision on the Dunnes Stores tribunal and have brought in what the Minister calls a very important measure that will enable her to appoint one High Court judge.

This raises questions about the rationale behind the repudiation of a tribunal and the subsequent appointment of one that will demand considerable time from Mr. Justice McCracken. I have no reservations about a tribunal but I query how a Government can make it clear they do not want a tribunal and subsequently announce they have changed their decision, appointing an extra judge because Mr. Justice McCracken is busy with the tribunal. It is a gross distortion of language to say this is important legislation on that basis.

The Minister gave this Bill a brief introduction. I cannot recall any legislation having such a limited purpose as this one in my time in the Oireachtas; the Minister herself said so. The Bill enables the Minister to appoint an extra High Court judge.

Mrs. Owen

The Senator should be accurate or he would lose his court cases.

Mr. O'Kennedy

The intention is to appoint one High Court judge.

Mrs. Owen

This is an enabling Bill.

Mr. O'Kennedy

I know. The Minister could have introduced an enabling power for some time, as I invited her to do.

Mr. Neville

Other Ministers could have done so also.

Mrs. Owen

We did so in 1995.

Mr. O'Kennedy

Some months ago, I invited the Minister to amend the legislation she was bringing through the House if she wanted to be able to appoint extra judges.

Mrs. Owen

The Senator is missing the point.

Mr. O'Kennedy

The Minister has now come back with time consuming legislation to do what could have been done over six months ago. The Official Report will show that the Minister said she did not propose to increase the level of judges. Now we are increasing them. This Government should know where it is going.

Mrs. Owen

Did the Senator know the nurses' commission was going to be set up?

Mr. O'Kennedy

With the Government's serious and responsible position on the management of public finances, any group can be guaranteed they will not be refused by the Government; the worst they will get is a commission. There will be other commissions——

Mrs. Owen

Does the Senator not support the nurses' commission? We will have to tell them that.

Mr. O'Kennedy

I did not say that.

Mr. Neville

The Senator did.

Mr. O'Kennedy

The gardaí met last night. Will the Government appoint an extra commission for them?

Mrs. Owen

I do not yet know what we will do.

Mr. O'Kennedy

The Minister could again shelter behind a judge to avoid the Government's responsibility. Why not appoint another commission for the gardaí? The Government could again shelter behind the Judiciary instead of acting effectively. If the teachers approach the Government, another judge could be appointed to a tribunal because we now have the framework to appoint more judges to the bench. The incoming Government will act responsibly, as it has since 1987, in the interests of the people.

Anyone familiar with the courts will be aware that there has been an improvement in the Circuit Court where there was a very severe backlog; I supported the Minister on that issue. Now the appointment of Circuit Court judges has been vindicated, although I have some queries nonetheless. The Minister may have to consider extra appointments.

When the Minister for Equality and Law Reform was in the House I queried one provision of his divorce legislation; it concerned people living apart in the same house. That Bill is now law, and one can only qualify for divorce proceedings by being separated or living apart for four years. The Minister for Equality and Law Reform introduced the provision where people could be living apart in the same house and I queried the effect this would have on the presentation of evidence. The Minister's response was that the judge would know who was telling the truth. How can a judge reject the only evidence available to him or her in the Circuit Court if two people collude to say that they have been living apart for four years in the same house?

The Minister mentioned the divorce legislation so I want to refer her to some concerns that the Bar Council has in relation to that, arising out of a seminar they held last weekend.

An Cathaoirleach

That seminar is not part of this legislation.

Mr. O'Kennedy

The seminar is very relevant when the Minister speaks about the divorce jurisdiction of the Circuit Court. It is contained in the Minister's speech.

(Interruptions.)

Mr. O'Kennedy

I quote from the Minister:

Last summer I brought forward the Courts Bill, 1996, to increase the maximum statutory limit on the number of judges in the Circuit Court by a further three to 28 judges, including the President of the Circuit Court.

I invited the Minister to do the same thing last summer but she did not do it. The Minister, in her speech, went on to say that the 1996 Courts Act provided for an additional ten Circuit Court judges and so on. The Minister goes on to say:

Developments in the family law area and changes to the limits of the jurisdiction of the courts in 1991 had a major impact on the volume and complexity of business coming before the courts system as a whole but this affected the Circuit Court in particular.

I am sure I do not need to remind the Minister of her own speech, she goes on to say:

The implementation of divorce legislation is likely to impact further on the volume of business, particularly in the Circuit Court. It is not yet possible to assess its long-term requirements for judicial and staffing resources but in the short term it is expected that there will be a considerable number of applications to the courts.

If what I have quoted from the Minister's speech is her idea of a passing reference, we have a different understanding of the use of the English language. In that context I want to make the point that it is now accepted by those who are most competent in the legal area that the provision which I queried at length in the course of that Bill, namely, the provision that people are allowed to live apart in the same house and qualify——

Mrs. Owen

That was not my Bill.

Mr. O'Kennedy

I know that.

Mrs. Owen

I want to be sure that the Senator is not quoting me. He keeps referring to the Minister and I am the Minister present in the House.

Mr. O'Kennedy

I did not say I was quoting the Minister for Justice, but I presume the members of this Government communicate with each other.

Mrs. Owen

Of course we do.

Mr. O'Kennedy

That is good.

Mrs. Owen

The Senator was confusing me.

Mr. O'Kennedy

I am perfectly clear about what I said. The Minister for Equality and Law Reform, Deputy Taylor, insisted that there could be no collusion in this matter. The judge would know. The only evidence presented to the court may come from the two parties who are at odds with each other and who want to attain a divorce. If both of them say — which may not be in accordance with the facts — they have been living apart in the same house for four years, I specifically invited the Minister to tell me how any judge could have any basis in evidence or in law for reaching any judgment other than that the people were living apart for four years. I will come to the significance of this argument in relation to what the Minister said here today.

It is now the considered view of all the professionals operating in this area that this scenario will give rise to a flood of cases in the Circuit Court. This will give rise to a huge increase in the Circuit Court jurisdiction because there is no means known to the legal profession, of which the Cathaoirleach himself is a distinguished practitioner, through which people can be prevented from coming in and defeating the purpose of the Minister's Bill even though they may be giving evidence within the terms of that Bill. If a husband and wife come into the courts, the Minister is providing——

Mrs. Owen

The Senator is supposedly making a case about the number of judges but he is actually making a case about the detail of the divorce legislation. I wonder what bearing that has on the increased number of judges.

Mr. O'Kennedy

It would result in a huge increase in the volume of applications in the Circuit Court or perhaps in the High Court, if that is the appropriate jurisdiction. It will be possible, and indeed probable, that people can defeat the Minister for Equality and Law Reform's intention while working within the basis of his Bill by colluding together. I specifically queried that in this House. Now I find the professional associations — particularly the Bar Council, who have had an entire seminar on this issue — expressing grave concern with that same provision and pointing out that there will be a volume increase in what was perceived to be the likely number of Circuit Court applications. This Government is once again acting inconsistently because no provision is made here for the increase in the number of Circuit Court applications.

Mrs. Owen

The Senator will notice I still have some space for the Circuit Court.

Mr. O'Kennedy

Yes, I do. For the record, I am saying that the experience will show that, because of the lack of co-ordination between Government Ministers, that there will be a huge, unprecedented and apparently unexpected volume of increase in divorce applications because the law which was brought through this House, which I resisted, will allow for collusion between parties who would not qualify according to the terms introduced by the Minister for Equality and Law Reform.

In this Minister's and her predecessor's terms of office, I have resisted the nonsense of an interview board and a consultation procedure which was intended to give the impression that the Government of the day was suddenly going to abide by different standards and ensure that judges would not have any taint of political association.

Mrs. Owen

That was the Fianna Fáil Party's idea.

Mr. O'Kennedy

It was not my party's idea. I spoke very strongly against the idea when I entered this House and it is an issue about which I feel deeply. I am on the record of the House to that effect. The Minister's party found themselves in Government with those same custodians of virtue — the Labour Party — with which I am happy to say the Fianna Fáil Party had only a very shortlived partnership.

Mrs. Owen

The Senator should be careful; if he wins his seat at the next election he might be in trouble.

Mr. O'Kennedy

I do not have to be careful at all. My views on this are very clear. In representing the interests of people in Tipperary and elsewhere I will resist any association in Government with the Labour Party until I have drawn my last breath. I do not think I could make it any clearer than that. I like people to be consistent and I will be consistent on that point. I do not want a presentation of virtue. I was part of a Government for a long time who appointed some very fine judges, many of whom were staunch members of the Minister's Party. If she wishes me to name them I will. If she has any doubts about this I can inform her that that was the position.

Mrs. Owen

I do not have any doubts.

Mr. O'Kennedy

That is good. There is a considerable list of these staunch supporters at the highest level of the Minister's party. However, I prefer not to get personal about this. We did this consistently. Now we find that this new interview board has been introduced because the Left have demanded it. Not surprisingly, we find that we have two appointees to the Circuit Court who practised together and were active supporters of Democratic Left. I know that is coincidental.

Mrs. Owen

They came through the system.

Mr. O'Kennedy

Of course they did. They were certainly the most eminently qualified; and it is entirely coincidental that almost all of the judges — I can think of only one exception — that have been appointed since this very open, honourable, accountable and transparent and honest system was introduced were unashamed supporters and backers of the membership of the current Government. I know of many such judges at Circuit and High Court level.

Mrs. Owen

The Chief Justice, the Presidents of the High and Circuit Courts all sit on the judicial advisory board. The Senator is essentially saying that he does not believe or trust them. The Senator should be very careful what he says.

Mr. O'Kennedy

Over the years we have never had any problems or suggestions of lack of standing of judges. It is wrong to give the impression that those appointed to the superior courts over the years were other then the most suitably qualified people. If I have any power in Government I will ensure a continuance of that. I believe in honesty above everything else.

The Minister may increase the number of High Court judges by one through this legislation and later on by two or three. However, the low courts operate in isolation. A court can only function as part of the overall administration of justice, particularly in the area of criminal law. The law is brought into disrepute even more so than at present when the backup for the court decision is not provided. I am particularly referring to prison places. The law is being brought into further disrepute with each extra judge appointed without the provision of adequate prison accommodation. The judge will impose a sentence that cannot be put into effect or can only be put into effect by releasing a convicted criminal. Appointing one extra judge is very bad business if we are going to increase the numbers of people sentenced, particularly in the criminal courts, without having places for them.

The Minister is happy that sometime in 1998 the prison in Castlerea——

Mrs. Owen

It is open.

Mr. O'Kennedy

They postponed it. I have sympathy with the Minister because the leftist partners in Government——

Mrs. Owen

I am tired of hearing this.

Mr. O'Kennedy

I am sure the Minister is.

Mr. Neville

Did Senator Mulcahy give the Senator his script?

Mr. O'Kennedy

If the Minister had been allowed to do what she wished to do two or three years ago in relation to prison places, bail reform and related matters, we would have a more workable criminal penal system. However, because she was not allowed do that, appointing an extra judge without the necessary prison accommodation will bring the law into further disrepute. I greatly regret that.

Dr. Henry

I would be sorry if the Minister had missed part of the fan club. I am extremely glad that she had tackled the difficulties in the courts' system in the way she has. The decision to appoint additional judges is very important. The delays in the judicial system were intolerable and very hard on those who had to come before it for trial and on victims, particularly in criminal cases. It was also difficult in civil cases where urgent business problems had to be brought before a court. The delays in the family law area also caused the most appalling problems for people.

I am delighted that the Minister has embarked on the courts building programme. In particular, I am glad of the imaginative steps being taken, such as establishing courts in Tallaght. Why should the major centres within the metropolitan area not have courts, thus forcing everybody to go to the back of the Four Courts? They should have the same rights as people in small towns which have their own courts. The additional staff will take longer to recruit and I understand that this is causing problems because, naturally, there is much expertise needed among the staff. It is not just the judges who run the courts — they rely heavily on other staff.

Last night the House debated delay within the courts. In the presence of the Minister for Equality and Law Reform I expressed the hope that with so few delays in the Circuit Court, cases of sexual harassment can be heard there as well as in the Labour Court when the new legislation is passed — and I say "when" rather than "if" as I have confidence that the Government will ensure enactment of the legislation. I hope that, while the Labour Court has longer delays, people stick with it because it has great expertise in this area. It would cause difficulties if Circuit Court judges down the country were obliged to learn the intricacies of sexual harassment cases in addition to the other cases they deal with. Also, the confidentiality of the Labour Court is not to be under-estimated.

Fewer delays have greatly helped the problems with bail. I was not enthusiastic about the expansion of the terms under which bail could be refused. While not wishing to be critical of the Judiciary, there seemed to be a number of people on bail who were in a position to interfere with evidence, if not with witnesses. The delays in bringing people to trial was a major problem. The additional sittings have transformed the length of time people have to wait and I welcome that.

The Minister mentioned the need of High Court judges for tribunals — and I am delighted to say that Ms Justice Carroll and Mr. Justice McCracken are friends of mine. I hope we do not reach the situation where High Court judges are over committed to an increasing number of tribunals. We should keep retired judges in mind. Having attended the hepatitis C tribunal virtually everyday, I can say Mr. Justice Finlay did a magnificent job should a reference ever be needed.

We have not tackled discrimination against District Court judges on what was referred to as the "age ground" during last night's discussion of the employment equality legislation. The Minister is aware that I have raised this issue on several occasions. District Court judges have to be recertified every year after the age of 65 until they are 70 in order to ensure that they are in a fit state to carry out their duties. However, those in the Supreme Court, High Court and Circuit Court do not need to be recertified. I dislike this discrimination, considering the damage they could in the context of the important cases they try.

In last night's debate Senator Lee tabled an amendment increasing the age in the employment equality legislation from 65 to 70. The amendment was not accepted by the Minister on the grounds that it would interfere with pensions. However, all judges should be treated equally. I know the age for their retirement will be gradually reduced, but this may take a long time. I hope the Minister looks at the position of District Court judges, who do an enormous amount of the coal face work in family law, criminal cases and lesser civil cases. They are an extraordinarily important part of the Judiciary. It is a slight that they have to be recertified every year while those at other levels of the Judiciary do not.

I congratulate the Minister on the Bill. The improvements in the standard and speed of service in the courts must be welcomed. I prefer money being spent on the courts and the probation service and on improving the spaces in prisons rather than increasing them. That makes the judicial system much more acceptable not only to those accused of crime but also the victims of crime.

Minister for Justice (Mrs. Owen)

I thank all who contributed to the debate for welcoming this Bill.

This is an important Bill and I am surprised at Senator O'Kennedy's contribution as he is involved in the law. He is a Senator but he also has another job as a barrister. Judges are senior members of society and to say that any legislation dealing with the appointment or widening of the panel of judges of this State is not a matter of importance diminishes the importance of judges in a democracy. If I was given five minutes, I could tell Senator O'Kennedy that the Statute Book is full of legislation which contains only one or two sections; it is not always the number of sections that make a Bill important but the purpose of that Bill. I found a number of his arguments confused, inconsistent and frankly not well researched.

He also said this was only a Bill to allow one extra High Court judge. That is not the case. It is a Bill to expand the panel of the High Court by an additional three judges. In 1995 when I introduced the Court and Court Officers Bill I assessed the situation with the co-operation of the President of the High Court and the Chief Justice. It was decided that the appropriate number by which to extend the High Court at that time would be three judges and three extra judges were appointed to the High Court. In the fullness of time, and not so much due to the appointment of Mr. Justice Brian McCracken but to the recent appointment of Ms Justice Mella Carroll to chair a nurses commission which is not due to report for at least a year or longer if other issues arise, I decided with the agreement of the Government that I could not leave the High Court short one judge of Ms Justice Mella Carroll's eminence for that length of time. The departure of Mr. Justice Brian McCracken to a tribunal is also very important but that will probably be of a more limited duration and perhaps the court could have survived without him. I have deliberately provided that we can add more High Court judges if the Government decided that, for example, Mr. Justice Brian McCracken will be away from his duties in the High Court for longer than we anticipate at present and the Government of the day must decide whether it will avail of the capacity to appoint an additional judge.

It is a practical and reasonable Bill and I make no apologies for introducing it as speedily as I did to ensure the kind of delays I inherited in the courts would not be allowed to build up again. I could have ignored the fact that the President of the High Court is short two judges at present. Had I done so, the President of the High Court would have been stuck with a limited number of judges. In other words, the benefits of three new judges which the Government gave the President of the High Court one and a half years ago has been reduced by two and, therefore, the delays would no doubt gradually build up again. Instead, I have moved speedily and practically to fill the gap so that the judges of the High Court will be able to continue their excellent work to reduce the delays in the court.

As Senator Mulcahy rightly said, the reduction in delays from 35 to 20 months is something for which to be thankful but it needs to be reduced even further. That mainly relates to personal injury cases but, as Senator Neville alluded, there are times when people talk anecdotally about the length of delays in court case. They often send me details of cases to see if I can do anything about them but I cannot get in touch with a judge and ask him or her to take this or that case more quickly. From the evidence I have been given, the delays are often not in the courts but between the two protagonists who cannot reach an agreement to let the case be heard. It is often not until they get the date of the court hearing that they actually come to some agreement. There can be long delays which can be explained not by the lack of a court and a judge but of agreement between the people taking the case and over-burdened solicitors or barristers who cannot proceed.

It would be facile and silly of us to think that the only way in which we can reduce the length of time cases take to come to court is by providing extra judges. It also requires a smartening up of the way cases are prepared before they come to court. Solicitors and barristers told me over the past two years that they are being told they must have their work done to bring cases to court and that they cannot leave certain cases to one side because they cannot assume there will be delays of two years. They must smarten up now because they know they will receive a hearing much sooner and that is good for the barristers, the solicitors and, most importantly, the clients who may be waiting to have business matters settled as there is much expense attached to court actions. It is good for the victims of crime also because they will see the cases coming to fruition and sentences handed down to the convicted.

Although Senator Mulcahy mentioned it, the only comment I can make about what a judge might say in court is that it is for the Oireachtás to pass the laws which decide what sentences can be handed down for particular crimes and it is for the judges to implement decisions in court based on the law. It is for the Government of the day to decide how sentences will be managed once they are handed down by the courts and how many prison places will be provided, and this Government has taken that matter very seriously. I will say no more other than that this is the difference between my responsibilities and those of the judges. What they say about prison places is their business but it is also their business to implement the law.

I cannot give Senator Mulcahy an assurance on what will happen in regard to the sentences which a new judge will hand down. All I know is that, as of now, people who are convicted and given sentences go to prison. I cannot give a guarantee they will stay in prison for the full length of their sentence mainly because, since 1960, periods of temporary or early release can be given to prisoners and, due to the lack of a structured building programme in the prison system over the past five to six years, a lack of resourcing for the non-custodial sentences which can be handled down by judges and the lack of resources in the probation and welfare services which must monitor people on non-custodial sentences, there has been an increase in the number of people not completing their sentences mainly to let the next batch take their place. I will continue to have to do that until the full prison building programme is implemented. In the meantime, I have had to take steps which are not, as Senator Neville said, universally acceptable to ensure I make the best use of the prison places available to enable as many people as possible to serve out their sentences. I will not apologise for that. As far as possible I am obliged to keep people in prison for the length of their sentences to protect the greater good so that prisoners are not free to commit more offences and harm more people.

The decision to postpone Castlerea Prison was extremely advantageous for this Government because it allowed me time to examine again the plans which Fianna Fáil had supposedly put in place for its construction. Of course I found that nothing had been done, other than one line in a phony budget and an announcement in the proper place, in County Roscommon, because it suited at the time.

Nothing else was done to provide the prison places. The Cabinet decision to postpone the project allowed me to examine how the prison in Castlerea might be provided and I have now opened the prison. There are already 25 places occupied and the building works are underway. The prison will be fully open before the end of 1997. If I had continued the project as Fianna Fáil had left it, the former patients would still be in the building, none of the building works would have been done and there would not have been a single prisoner in the prison. Had I continued with the Fianna Fáil plan, the 1998 date would not be attainable.

I hope this is the last time I will have to explain this matter to this House. It is embarrassing for Fianna Fáil Senators to continue to raise the matter. I invite Senator O'Kennedy and Senator Mulcahy to walk around the Castlerea campus so they can see the prisoners and the builders on site. I will be going to visit Castlerea shortly and perhaps I will invite them personally. They might wish to be photographed beside the buildings. The Leas-Chathaoirleach is well acquainted with the area and hence he never says the prison is not open.

Senator Honan and Senator Henry raised the issue of the family courts. The Law Reform Commission's concept of having a separate structure of family courts is being examined in the context of Mrs. Justice Susan Denham's working group. Each new major court building project includes a full and separate family courts suite. There is one in Galway and there will be one in Tallaght and Carrick-on-Shannon, which I will open shortly. The suites include a family court and family rooms so that the two sides in a family dispute can be accommodated separately. It is not easy for the mother and her children to be in the same room with her husband in such cases.

Although it may take a couple of years, I hope that in the fullness of time we will have strategically placed family law suites in our major court towns so that the cases can be held there. Some may complain that people will have to travel some distance to have their cases heard in a family court suite. However, sometimes people prefer not to have their cases heard in their local town where they may be seen by their neighbours. I would envisage that in a couple of year's time we will have a more structured family law network of courts.

It was also suggested that judges should be specially nominated. The Government takes that into account when selecting people for appointments. We are examining the areas of competence that will be needed to ensure we will have a good balance of experience. Ms Justice Catherine McGuinness was assigned for some time as a family law judge in the Dublin area and when she was appointed to the High Court another judge has been similarly assigned in the Circuit Court. The presidents of the courts understand that the courts' requirements must be matched with the experience of the judges available. This is having an effect in reducing the delays in family courts, particularly in the Dublin area, where the delays had become untenable.

The issue of mediation with regard to family law and divorce is a matter for the Minister for Equality and Law Reform and I am sure Senators have raised the issue with him.

Senator Neville referred to the state of court buildings. There are some very bad court buildings. Until 1990 the responsibility for court buildings lay with the local authorities. I was a member of a county council for a long time and I am aware that the county councils never had the resources to keep the court buildings in good condition. In 1990 the situation was so bad that an arrangement was reached between the Department of Justice and the local authorities whereby the Department would provide the finance and the county councils would retain responsibility for the management and caretaker functions of the buildings. There is an improvement now in the standard of court accommodation because the responsibility of the county councils to find funds from their budgets has been transferred to the Department. It will take time to improve all the court buildings because of the large volume of work to be done, but £7.5 million has been made available this year for that purpose.

I do not know whether judges will have to become more available to chair tribunals and commissions. When such investigations are set up there is a demand for an independent chair who does not have an axe to grind and everybody looks to judges or retired judges. The pool of retired judges is fairly limited because to date Supreme Court judges retired at 72 years of age and as they get on in age they may not wish to take on a further burden in their retirement. However, we have used retired judges for such investigations; Mr. Justice Finlay, for example, has done excellent work since his retirement.

It will arise no doubt that a High Court judge will be the desired person to chair such a commission and we need to have capacity on the High Court bench if we need to make them available for the nursing commission, for example. Senator O'Kennedy expected me to have been able to look forward from 1995 to 1997 and know that a judge would be required for a commission on nursing and that I should have made an extra place available in 1995. We made three places available and it was decided to fill them immediately. We have now decided that when this legislation is enacted a further judge will be appointed. However, we will continue to review the situation and if one judge does not prove enough or if Mr. Justice McCracken has to chair the tribunal for a lengthy period, I will have to inform the Government that the President of the High Court requires the vacancy to be filled.

The Government has moved to act quickly so that blockages in the system do not build up again. We will be able to put a judge in place quickly and extra judges will be available if the need arises. I thank Senators who contributed to the debate.

Question put and agreed to.

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

An Leas-Chathaoirleach

When is it proposed to sit again?

Mr. Neville

At 10.30 a.m. on Wednesday, 12 March 1997.