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Seanad Éireann debate -
Wednesday, 16 Jul 2014

Vol. 233 No. 5

Court of Appeal Bill 2014: Second Stage

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

I welcome the Minister for Justice and Equality.

Before I address the Bill, in accordance with Standing Order 136, I am requesting the Acting Chairman to direct that the following correction be made to the text. In section 19, page 19, line 5, the reference to section 9 should read section 10, as this is the section which inserted section 7C into the Act of 1961.

I will convey that correction to the Clerk

It gives me great pleasure to be in this Chamber to discuss the Court of Appeal Bill 2014. Members may recall that last July the House dealt with the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013. Subsequently, on foot of the passage of that Bill, a referendum was held last October on the proposition that a court of appeal should be established. That proposition was accepted by over 65% of voters. During the referendum campaign it was made clear that the implementing legislation necessary to establish the court of appeal would be advanced as quickly as possible. During the debate in the House it was indicated that July 2014 was the likely target date for enactment of the legislation. As Members can see, we are well on course to honour that commitment and I thank Senators for their co-operation in making the necessary time available to deal with the Bill before the start of the summer recess. I am conscious of the fact that there may not be as much time to discuss it as some Members might wish. However, it is important to bear in mind the fact that the policy of the Bill has already been settled by the referendum result last year and that the legislation we are discussing simply gives effect to that policy choice. I also acknowledge that, on the face of it, the Bill is not the most accessible. However, this is inevitable, given that it is primarily directed towards the amendment of a range of Acts dealing both with the courts system and other areas. As such, it is technical legislation which is intended to create the necessary legal infrastructure which will enable the court of appeal to be accommodated within the existing courts structure.

I am sure I do not need to justify in this House the establishment of a court of appeal. The unacceptable delays in appeals to the Supreme Court cannot be defended. This is notwithstanding the extraordinary efforts on the part of the Judiciary to manage matters in order that appeals can be dealt with in a more efficient manner. I pay credit to the Chief Justice for all the work she does in this regard. However, there is a basic reality which cannot be denied in relation to the ever-growing volume of litigation and the imbalance which has developed as between the High Court and the Supreme Court.

The last truly significant change in the courts system happened in 1961 when the existing courts were established pursuant to Article 34 of the Constitution. At the time there were five Supreme Court judges and seven High Court judges. Today there are 36 High Court judges and ten Supreme Court judges, the last two of whom were appointed within the past year. This has put the Supreme Court under considerable pressure and means that even when mechanisms have been put in place at the level of the lower courts to deal with cases promptly, these gains are being lost because of the time it takes to get a case from the High Court to the Supreme Court. I am thinking, in particular, of the Commercial Court which has its own procedures designed to expedite the cases which come before it and which has been very successful in reducing the waiting times for cases involving very substantial sums of money.

It has already been observed that Ireland is unusual among common law jurisdictions in not having an intermediate court of appeal. This deficiency was remedied in principle by the constitutional amendment. The practical adjustments required to have the new court of appeal operational form the essential substance of the Bill. It may be beneficial if I dwell briefly on the framework provided by the new provisions in the Constitution as that framework informs the content of the Bill which can only be understood when placed within that framework. By virtue of these provisions, there is an obligation to enact a law providing for the establishment of the court of appeal as soon as is practicable. That obligation is being met by the Bill. The law is to require the Government to appoint, by order, a day on which the court of appeal shall be established. Section 5 does this.

The Constitution also specifies that the Court of Appeal is to have appellate jurisdiction from the High Court and such other courts as may be prescribed by law and that its decisions are to be final, except in the limited circumstances where an appeal may be allowed by the Supreme Court. What is referred to is the provision that the Supreme Court will hear an appeal from the court of appeal, provided that it is satisfied that it concerns a matter of general public importance or that it is necessary in the interests of justice that the Supreme Court hear the appeal. There is also a provision whereby appeals may be taken directly from the High Court to the Supreme Court in exceptional circumstances. This so-called "leapfrogging" provision is intended to allow the Supreme Court to hear cases which meet the criteria set out for appeals from the court of appeal to the Supreme Court where there are exceptional circumstances that warrant it being heard by that court.

I draw the attention of Senators to the new Article 64 that is to be inserted into the Constitution on the establishment day, but is not to appear in texts of the Constitution published one year after that date. It provides that cases that have been heard or part heard by the Supreme Court on establishment day will be determined by the Supreme Court. Where a case has not been heard, the Supreme Court may transfer the appeal to the Court of Appeal or a party to the appeal may apply to have the case transferred.

I wish to outline some of the key provisions in the Bill. Section 6 provides for the establishment of a Court of Appeal in accordance with the terms of Article 34A of the Constitution and the appointment to that court of a President and nine ordinary judges. Section 14 sets out the remuneration of the President and ordinary judges of the Court of Appeal. In this regard, following consultation with my colleague, the Minister for Public Expenditure and Reform, it has been agreed that the President of the Court of Appeal shall be paid €200,000 per annum, and that the salary of ordinary judges of that court shall be €177,803 per annum. These rates of remuneration have regard to the rates which would be payable in respect of appointments to the office of Chief Justice and President of the High Court post-January 2012.

In relation to pensions, the legislation recognises the fact that for any serving judges who may be appointed to the Court of Appeal, and who were appointed to judicial office prior to 1 January 2013, it will be necessary to maintain the existing pension provisions which are complex and spread over a number of Acts. This is provided for in sections 15, 16 and 17 of the Bill. For serving judges appointed on or after 1 January 2013, or for appointees who are not serving judges, the single public service pension scheme will apply, and no special provision is required in this Bill in respect of such persons. Section 18 provides that, in the main, the age of retirement of a judge of the Court of Appeal shall be 70 years. This section also specifies that, as an exception to the general rule, a judge of the Court of Appeal who is already a judge of another court and who is entitled to retire at age 72, shall continue to be entitled to retire at that age.

In relation to the appointment of judges to the Court of Appeal, Senators will recall that the Government has announced Mr. Justice Seán Ryan as President-designate of that court. The tenure of a President of the Court of Appeal will be for a period of seven years, as is the case with other presiding judges. Sections 12 and 13 make the necessary amendments to provide that the Judicial Appointments Advisory Board will have a role as regards the appointment of ordinary judges of the Court of Appeal except of course in relation to serving judges who do not go through the JAAB process.

On a more general note, Senators will be aware that a major review of the judicial appointments process is under way to ensure that it reflects current best practice, that it is open, transparent and accountable and that it promotes diversity while also protecting the independence of the Judiciary. My Department is currently examining submissions from the public consultation which have been received. I will bring forward proposals later in the year.

Following the current practice, provision is made in section 6 for the Chief Justice and President of the High Court to be ex-officio additional judges of the Court of Appeal. That section also provides that the President of the Court of Appeal shall be ex-officio an additional judge of the other Superior Courts. Furthermore, ordinary judges of the Supreme Court or the High Court may sit as additional judges of the Court of Appeal when, because of illness or for other reasons, there are insufficient judges available to transact the business of the Court of Appeal. In this regard analogous provisions are to be found in section 32 with regard to the High Court, and section 43 which concerns the Supreme Court.

Section 8 sets out the jurisdiction of the Court of Appeal which flows directly from the Constitution. The Courts (Supplemental Provisions) Act is amended by the insertion of a new section 7A which provides that the Court of Appeal shall be a superior court of record. In broad terms the Court of Appeal will have the jurisdiction which, immediately before the establishment day, was vested in or capable of being exercised by, the Supreme Court, the Court of Criminal Appeal and the Courts-Martial Appeal Court. The Court of Appeal may sit in divisions of three judges, which divisions may sit simultaneously. The section also provides that interlocutory applications may be heard either by the President of the Court of Appeal sitting alone, or by another judge sitting alone who has been nominated for that purpose.

There are certain provisions in Part 4 which also have a jurisdictional import. Section 74 deals by way of general amendment with the numerous references which at present exist in a variety of enactments in relation to appeals to the Supreme Court, including proceedings by way of cases stated to that court. For ease of reference Schedule 2 deals with those Acts where consequential textual amendments are required.

Section 75 contains a provision in respect of decisions of the High Court in respect of which further appeal is possible in certain circumstances. This provision, which is general in nature, is to the effect that where there is a limitation in legislation on an appeal from the High Court to the Supreme Court, the limitation shall be read as being without prejudice to the provisions of Article 34.5.40 of the Constitution to the effect that the Supreme Court shall have appellate jurisdiction from decisions of the High Court in exceptional circumstances. However, the limitation will continue to be valid in relation to the Court of Appeal.

A similar provision in respect of decisions of the High Court which are final and not subject to further appeal is to be found in section 76. A further related provision is set out in section 9 which amends the Courts (Supplemental Provisions) Act 1961 by inserting a new section 7B. That section 7B provides that the Court of Appeal may, in certain circumstances, stay proceedings before it in respect of an appeal from a decision of the High Court. The purpose of this would be to enable the applicant to apply to the Supreme Court for leave to appeal the decision of the High Court under Article 34.5.40 of the Constitution.

An issue which obviously arises on the establishment of the Court of Appeal is how to deal with appeals to the Supreme Court which have not yet been heard at the time the new court is established. Essentially what is envisaged is that the Chief Justice may, if satisfied that it is in the interests of the administration of justice and the efficient determination of appeals to do so, and with the concurrence of the other judges of the Supreme Court, give a direction that appeals falling within a certain class of appeal which are pending before the Supreme Court shall be heard and determined by the Court of Appeal. On application by any of the parties to an appeal, the Supreme Court may, if it is satisfied that it is just to do so, cancel or vary the effect of that direction insofar as it relates to that appeal. Specific provision is not made in this Bill, given the detailed arrangements which are set out in the Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013.

As a consequence of the establishment of the Court of Appeal, both the Court of Criminal Appeal and the Courts-Martial Appeal Court will be abolished. Section 8 amends the Courts Supplemental (Provisions Act) 1961 to provide that, subject to the transitional provisions to which I shall return shortly, the jurisdiction of the Court of Criminal Appeal and the Courts-Martial Appeal Court shall be vested in the Court of Appeal. Section 73 repeals a number of relevant provisions which touch upon those courts while section 78 puts in place transitional arrangements for cases which are in being before those courts on the day of the establishment of the Court of Appeal. There is much consequential change involved in the various courts following the establishment of the Court of Appeal. Essentially what is envisaged is that where an appeal to either the Court of Criminal Appeal or the Courts-Martial Appeal Court has been initiated and heard, either in full or in part by either of those courts, that those courts will retain their appellate jurisdiction in respect of the case in question.

The establishment of the Court of Appeal requires certain adaptations in both the civil and criminal legal aid regime and these are to be found in sections 45 and 54 respectively. Associated provisions which have a bearing on the courts-martial appeal legal aid regime are to be found in sections 49 and 50 of this Bill.

Senators will be aware that the Court of Criminal Appeal currently sits on an ad hoc basis, relying on a combination of Supreme Court and High Court judges. Approximately 570 cases are currently lodged before that court. While section 19 provides that it shall be the function of the President of the Court of Appeal to arrange the distribution and allocation of the business of the court, and to arrange the divisions which are referred to in section 8, I anticipate that the Court of Appeal will have a dedicated criminal panel, at least in the initial stages, until such time as the current backlog of cases before the Court of Criminal Appeal has been addressed.

Section 8 provides for a single judgment rule in criminal appeal cases heard by the Court of Appeal, as is the practice in the Court of Criminal Appeal and the Special Criminal Court.

It is not every day that we establish a new court. In recognition of the fact that some issues may require attention in the future, section 3 gives a broad power to make regulations to deal with unanticipated difficulties that might arise in bringing provisions of the Bill or specified articles of the Constitution into operation. The provision will apply for a two year period. If any regulation needs to be made under the section, it will be subject to an approval resolution by each House of the Oireachtas. While a provision of this nature is not commonplace, it is not without precedent and a similar provision can be found in the Local Government Reform Act 2014.

The creation of the Court of Appeal provides an opportunity for the courts and the Courts Service to explore new ways of doing business. In particular, it presents an opportunity to reform some of the practices and procedures in place in the Supreme Court and put in place appropriate case management structures in the Supreme Court and the Court of Appeal. The Bill, as published, did not contain provisions in respect of this matter, but amendments have been introduced to give the Supreme Court the tools it needs to manage its business in a more effective manner. Such tools are already well established in the leading common law jurisdictions at supreme or superior court level and the necessary changes have been accommodated in section 44. Equivalent provisions in respect of the Court of Appeal are to be found in section 10. The changes introduced will also allow the Chief Justice and the president of the Court of Appeal, as appropriate, to issue practice directions in respect of appeals or applications made to these courts. It is envisaged that such practice directions may relate to civil and criminal proceedings.

A further new provision that relates to the Supreme Court concerns its ability to deal with the appeal applications allowed for under the Constitution on the papers. Any ensuing appeal will be dealt with in the ordinary way.

At this point, it would be appropriate to record my appreciation and that of the Government of the leadership provided by Chief Justice Denham in this project. As the House knows, she chaired the working group that recommended the establishment of the Court of Appeal and has been a driving force ever since in carrying the project forward.

Other provisions in the Bill accommodate judges of the Court of Appeal within the order of precedence that applies to judges of the existing courts. This is set out in section 28. Section 20 concerns the president or ordinary judges of the Court of Appeal travelling with and sitting as part of the High Court on circuit. Section 20 provides for the making of rules of court in respect of the Court of Appeal, while sections 24 and 25 provide for the establishment of the office of registrar of the Court of Appeal, the appointment of the registrar and the appointment of the registrar's deputies. The provisions relating to the office mirror those that apply to the Supreme Court.

Part 3 contains amendments to a range of Acts to take account of the establishment of the Court of Appeal. For example, section 40 amends the Seanad Electoral (Panel Members) Act 1947 to allow a judge of the Court of Appeal to be chairman of the appeal board that hears appeals arising from decisions of the Seanad returning officer. Section 39 amends section 2 of the Irish Legal Terms Act 1945 to allow a judge of the Court of Appeal to be a member of the Irish Legal Terms Advisory Committee. Section 68 modifies the definition of "judicial office in the Superior Courts" in the Charities Act 2009 to take account of the new court. Further amendments introduced subsequent to the Bill's publication provide for the adaptation of a range of criminal law statutes, most notably the Criminal Procedure Act 1967 and the Criminal Procedure Act 2010.

As Senators will have noticed, it is proposed that there will be an earlier signature motion in respect of the Bill. There may be some curiosity as to why this is the case and it might be helpful if I were to set out the context that informs the proposal. The current process for the appointment of judges is set out in sections 12 to 17, inclusive, of the Courts and Court Officers Act 1995 which established the Judicial Appointments Advisory Board, JAAB. Under that process which is the subject of review, the board submits to the Minister for Justice and Equality the names of the persons who have applied for appointment and whom it recommends as suitable for appointment. The judge or judges are appointed by the President on the advice of the Government. If the Court of Appeal is to be operational in the autumn, certain arrangements need to be put in place. These include convening the JAAB, advertising and seeking expressions of interest and identifying suitable candidates. This process needs to commence without delay to ensure the new court can be operational within the required timeframe.

I note that this House has an honourable tradition when it comes to dealing with matters of national import. I have had the privilege of working in the Chamber and know and appreciate the value of the work done by all of the representatives who come from different traditions and represent a range of important interests. The establishment of the Court of Appeal is something that transcends party boundaries. It will represent a sea change in our judicial landscape and I hope Senators will support this vital piece of legal infrastructure. I thank them for making time available and commend the Bill to the House.

I welcome the Minister. For reasons on which I might touch during my contribution, it is also welcome that she is not a lawyer and that she is coming to the Bill with a layman's common sense. That will benefit the Department of Justice and Equality and some of the decisions that emerge from it. From observing the Minister while she was a Senator and in her previous Ministry, I do not doubt that she will do justice to her current position, if she will pardon the pun.

The House is debating the Bill because of the 2013 referendum result. We will support the Bill which deals with civil and criminal cases. In 2009 the Fianna Fáil Government commissioned the working group to examine the problems in the courts system. The group advocated the following: the creation of a new court to reflect the need to eliminate undue delays in processing appeals; create an appeals structure that would be cost effective - a point to which I will revert; enhance the administration of justice in the superior courts; and improve certainty in the law - the Minister might comment on this issue - through the prompt publication of reasoned decisions by the Supreme Court, thereby enhancing the legal process. At the time there were delays in the Supreme Court of up to four and a half years. There probably still are, which is unacceptable. I could never understand how the sitting hours, days and weeks of the courts were so limited. It was almost as if the work lifestyle of the judges dictated the administration of justice. Something should be done about this. We live in a republic and no one is above the law. Given the burden we have asked society to carry, everyone must share it.

Some factors have evolved because of the increase of 2 million in the population between 1961 and 2011, the nature of modern litigation which has resulted in a number of complex cases and the increased number of legislative provisions, many of them from the European Union. The Minister might consider creating a system whereby the legislation we pass is simplified and our propensity for new legislation is reduced in favour of consolidating and amending core Acts relating to certain spheres of justice.

It should be done by amendment to simplify the process.

It is interesting that the number of High Court judges increased in recent years from seven to 36 while the number on the Supreme Court increased from five to eight. The Commercial Court was created to fast-track disputes but it was also subject to similar delays. A bugbear of mine has been that we have inherited almost blindly, without great critical analysis, the common law system of our colonial days. The Minister might usefully consider the provision of a court of mediation and arbitration based exclusively on an inquisitorial basis rather than on the expensive advocacy basis we have. It might be a toe in the water in respect of examining the overall structure of our justice system.

The European convention obliges us to ensure that excessive delays are not incurred, and that is important from the point of view of the domestic economy because SMEs and so on are badly affected by such delays. Speedy resolution of disputes is important in a successful economy where the rule of law applies fairly, ensuring swift access to justice for all. For justice to be open to all, which should not only be an aspiration but a sine qua non for a republic, it must be accessible. Given the unnecessary and large exploitative legal fees that apply, justice is not accessible to those without great wealth. The high cost of legal services has been criticised by the European Commission, which has raised concerns. In particular, it pointed out that economic growth could be restricted because of such costs. Legal service costs in this State are 12.1% higher than in 2006, which is markedly in contrast with developments in this sector in other post-crisis countries.

The Legal Services Regulation Bill 2011 was intended to address this but, in its current form, it is unlikely to result in dramatic reductions in fees. I am surprised that the Government appears to have made a U-turn by deleting the section to provide for the creation of multidisciplinary practices.

The Minister can correct me. I understood that was the case, and it would be a missed opportunity.

A group of members of the justice committee travelled in 2005 to examine justice administrations in other jurisdictions and we returned strongly convinced about, and advocated for, the establishment of a judicial council. To the best of my knowledge, that has not been set up. I also understand from my party's time in government that this was resisted by Supreme Court judges in particular, which is unacceptable. Everybody should be subject to oversight. It should not be political oversight. We met a supreme court judge in Massachusetts who said a group of his peers sat on a council and examined infringements. For example, a judge in this jurisdiction should have been successfully prosecuted for a criminal offence. Instead, the Oireachtas tried to impeach him and he ended up resigning without sanction and in receipt of an enhanced pension, which is unacceptable. Another Supreme Court judge honourably resigned for making a misjudgment when he made an imprudent approach regarding a case. Everybody agreed at the time that it was not an offence that should lead to dismissal, but there was no interim way of dealing with the issue other than by taking the honourable course, which he did. That was a decade ago. A judicial council is overdue.

The Minister should also consider a register of interests for judges. This should have been introduced before now. Their bank loans, in particular, should be registered. There is a perception that many members of the legal profession, including the Judiciary, may have been heavily leveraged when the crash happened and, as a consequence, that may have an impact on judgments. There should be no doubt or perception about that. Their current position should be clear and transparent.

Recently, I read that the pensions of judges, which were accruing at the rate of one-fortieth per year, are now accruing at the rate of three-eightieths, which is an increase. Will the Minister clarify this? It runs contrary to everything that has happened in the public service over the past six years.

A Competition Authority report has been sitting in the Minister's Department since December 2006. It made a series of recommendations regarding reductions in legal fees to make them more competitive. The report has not been implemented, which is a disgrace, and I hope the Minister will ensure during her tenure that the recommendations are fully implemented to bring down legal costs. It is galling that, given the crisis we have experienced as a nation and the hardship and austerity that has been imposed on our citizenry, two groups have profited beyond expectation from it: first, corporate banks, and second, the legal profession. It is disgraceful that two groups, one of which contributed significantly to the crisis and the second of which makes no tangible contribution to our GDP, growth rate or economic recovery, have been the greatest beneficiaries. I ask the Minister to bear that in mind when she pursues these issues.

I welcome the Minister to the House. Since her appointment, she has spent a great deal of time here. She is welcome and she has a great regard for the Seanad, given that she was a former leader of the Opposition.

The Bill, which is straightforward, will give effect to what the people decided in the referendum on a court of appeal. The legislation will bring our legal structures into line with best international practice. A court of appeal should have been set up years ago. The Supreme Court is logjammed with appeals, many of which are not suitable to be heard by it. It is the court of final appeal, but in most countries the supreme court deals with issues of constitutional importance, where a judge believes it is sufficiently in the national interest that they be heard by the highest court in the land. Unfortunately, many of the cases referred to our Supreme Court, for one reason or another, do not relate to issues of national importance that could have a fundamental effect on the lives of citizens. However, they are important for the individuals involved. The court of appeal will provide a structure similar to that in many other jurisdictions. The Minister said the legislation provided for significant tidying up to ensure our legal structures are fit for purpose, particularly in the High and Supreme Courts. This is long overdue and it is welcome.

She also referred to the review of the judicial appointments process that was announced last week in the Dáil. When judges are appointed to the court of appeal, I presume the review will not be complete, given that the timeframe for the review process is a number of months. Will she clarify that?

I agree with much of Senator Walsh's contribution. There is a merit in a register of interests for the Judiciary.

A register of interest for Oireachtas Members is publicly available. While a register of interest for judges need not necessarily be publicly available, it might be available to certain individuals in order to ensure there are no conflicts of interest when they hear cases. Perhaps there might be room in the regulations to do it in the future.

I have a certain sympathy with Senator Walsh's point about the legal profession playing its part in the economic downturn. While they are not all responsible, a certain element was signing off on ten mortgages on one property. Much cleaning up has already happened.

In the past three or four weeks I raised the issue of e-conveyancing, and the justice committee had a very interesting hearing on it during which the Law Society of Ireland outlined the benefits of e-conveyancing whereby the conveyancing of a property would be done in seven days rather than seven weeks and there would be effective checks and balances and cross referencing. It would be moving with the times. Given that seven of the top ten IT companies have their headquarters here, we should embrace ICT at the highest and best level to ensure the integrity of our administrative processes.

All we are doing here is giving effect to something in favour of which over 65% of voters approved. We have no role here, apart from implementing the will of the people. I thank Members from the various groupings for agreeing to do all Stages of this legislation this evening. It is appropriate that we do not delay the passage of this important piece of legislation.

I welcome the Minister and fully support the Bill. As has been said, this is the will of the Irish people. On 4 October 2013, 65% of them voted in favour of the establishment of the Court of Appeal, for which the Bill would provide. Many of the provisions of the Bill, as the Minister said, are based on the Report of the Working Group on a Court of Appeal, published in 2009 and chaired by the now Chief Justice of the Supreme Court, Mrs. Justice Susan Denham. I thank her for the work she has done.

There is a need for the Court of Appeal. Unlike in other law jurisdictions, the Irish Supreme Court is the court of final appeal in all appeals from the lower courts. In 2012, the Supreme Court received 605 appeals, a 21% increase on the previous year. According to Mrs. Justice Denham, the Irish Supreme Court is one of the busiest of its kind in the world. In 2012, it issued 114 judgments, up 56% from the previous year. It is a questionable load compared with the US and UK Supreme Courts, which in the same year made 64 and 85 judgments, respectively. There is a four-year, systemic backlog of cases at the Supreme Court which, according to the Report of the Working Group on a Court of Appeal 2009, would continue to grow in the absence of action.

The establishment of a Court of Appeal will represent a major reform and streamline our court system, bringing Ireland more in line with Article 6 of the European Convention on Human Rights. Sitting between the High Court and Supreme Court in the courts structure hierarchy with civil and criminal jurisdiction, it will retain a right of appeal to the Supreme Court, in line with well-defined constitutional standards. It will help reduce the backlog of cases by removing from the Supreme Court's remit cases that are not appeals on constitutional issues or of major importance. This will make the Supreme Court more of a constitutional court in its truest sense. An efficient and effective court system will help make Ireland more attractive to investors and multinationals, which will benefit the economy. It is also extremely important to a healthy and progressive democratic society.

I welcome the Bill and congratulate the Minister on progressing it. We had the referendum in October 2013 and it will be in place within a year. The only sad note I have is on the children's referendum in November 2012. There were reports issued today on children in the care of the State. When the provisions of the children's referendum are in place it will mean all children will get the same protection from the State and children will be eligible for adoption. As each day passes, those rights are being expunged. While I appreciate that it is being challenged and is before the Supreme Court, time is passing for these children and we are failing them. I hope, by establishing the court of appeal, we will release some backlog and allow a decision on the children's referendum, which was voted by 58% of the people. While the court of criminal appeal will be in place within a year of the referendum, we continue to fail to implement the children's referendum.

I welcome the Minister to the House. This is my first opportunity to address her as Minister for Justice and Equality and I commend her on the work she has done on the brief since she took over the portfolio and on bringing forward this very reforming Bill, which is very welcome, not only for consumers of legal services but for many legal professionals. The Bill is a key part of legislation and fundamental to the modernisation and reform of the courts and legal services, given that it provides for the establishment of the new Court of Appeal.

Ireland is out of kilter with other common law jurisdictions in that all appeals from the High Court are heard in the Supreme Court. Other countries, including the UK, Australia, New Zealand and Canada, have courts of appeal that hear appeals from their High Court equivalents. Only the more important cases, including those involving the development of law, are heard by the Supreme Court. Consequently, the highest courts in countries with much larger populations, such as the US and UK, deal proportionately with fewer cases than the Irish Supreme Court. A total of 605 cases were appealed to the Supreme Court in 2012, representing a 21% increase on the previous year. It issued 121 judgments, compared with 64 and 85 judgments issued by the US and UK Supreme Courts, respectively. Given the population sizes, the situation is unsustainable.

The new Court of Appeal to be established will have two prongs, a court of civil appeal and a court of criminal appeal. Much time and deliberation have gone into the Bill's proposals, which are based on the Report of the Working Group on a Court of Appeal published in 2009. The report concluded that, among other measures, the court's establishment would be necessary and would have a positive effect in terms of the efficiency and effectiveness of the courts system.

The court will be tasked with hearing appeals from the High Court. From my time working as a lawyer in the Four Courts, the new court will be a welcome departure, in that it will assist in reducing the time within which an appeal can be heard and will limit the remit of the Supreme Court, which will hear only cases on appeal from the Court of Appeal and, in exceptional circumstances, from the High Court. Given the robust economic situation of the Celtic tiger and the fallout from it in the shape of increased litigation, our court infrastructure has struggled to keep up to speed. Our population has also grown, given the influx of people and businesses from other jurisdictions. All these factors place further demands on our court system.

The ultimate appellate court, the Supreme Court, is dealing with a four-year backlog of cases. Exacerbating the situation is the fact that, in the past 40 years, there has been a six-fold increase in the number of High Court judges whereas the size of the Supreme Court has only doubled. Down the years, a plethora of new cases have necessitated the appointment of extra High Court judges in order to allow the system to operate effectively. However, the by-product of this is that more cases have been appealed to the Supreme Court, placing a large burden on the workload of the judges in that court. These delays pose significant issues for consumers of the legal process.

From the infrastructure outlined in the Bill, it is clear that the appeals clogging up the list system in the Supreme Court will be dealt with by the proposed Court of Appeal and will not need the engagement of the Supreme Court. This is to be welcomed by legal services, as it is in the interests of justice that a litigant be allowed to litigate a claim within a reasonable time. Unfortunately, under the current regime, this has not always been the case, given the aforementioned backlog. The establishment of the new court will change the situation dramatically and is to be welcomed. It is important that we give a clear indication to businesses nationally and internationally that we have the best court system possible. In particular, a permanent court of criminal appeal is an essential cog in the functioning of a criminal law system.

This court will have the benefit of ensuring that those who are found guilty will be able to avail of the appeals process more quickly, as will the Director of Public Prosecutions, DPP, when appealing the leniency of a sentence or otherwise. From the point at which the Bill is passed, the Supreme Court will be able to focus on cases of general public importance or on cases where there are specific reasons, in the interests of justice, for an appeal to be taken to that court. In doing this, we will ensure that the current delays will not be repeated. As a Member of the Oireachtas, I am proud to have campaigned for a "Yes" vote in last year's referendum. I am happy to commend the Bill, in its totality, to the House because I am of the view that it is in everyone's interests.

The Senator campaigned for "Yes" votes in both referenda.

I welcome the Minister. I recall engaging in public debates with Senator Higgins in another referendum that took place on that day.

I am sure Senator Mullen has got over it.

I am of the view that 4 October 2013 was a very good day for good governance in Ireland. On that date, we protected the ability of the Legislature to do its work and having two Houses is a very important part of that. The case in that regard was eloquently made by my colleagues. The people wisely followed our lead in respect of the matter.

It must be remembered that 4 October 2013 was also a good day for the judicial branch of the Executive. A marked feature of the common law systems in England, Canada and Australia is the fact that each has an intermediate court. Senator Walsh gets it right in respect of many matters but he does not sufficiently appreciate the merits of our common law system. One need only recall the great judicial reasoning that has occurred here over the years, the operation of principles of equity in our courts, the existence of concepts such as habeas corpus, etc. The Senator may have made some valid points with regard to the cost involved for ordinary citizens in the context of the way the legal system here is currently structured. However, our common law system has a great deal to recommend it.

It is to be hoped that the change proposed in the Bill will lead to the bulk of cases ending in the new Court of Appeal. As is only right, there will be scope for bypassing the court in some instances. For example, High Court cases relating to constitutional matters will be able to be referred directly to the Supreme Court. In addition, cases will sometimes go, on appeal, from the Court of Appeal to the Supreme Court. As the Minister is aware, the American and English supreme courts each deal with approximately 100 cases per year. At present, approximately four or five times that number come before the Irish Supreme Court. What we are seeking is a future where there will pretty much be an absolute right to appeal virtually every High Court case to the new Court of Appeal. As previous speakers indicated, it will become a constitutional court. There will be an element of front-loading because the Supreme Court is currently assessing the cases on hand in order to determine which appeals should be hard by it and which should be deal with by the court of appeal. I understand the US Supreme Court receives approximately 10,000 cases each year through which it is obliged to sift before choosing the 100 or thereabouts it will hear.

We hope that proper funding will be provided. Perhaps the Minister will outline the likely cost of establishing, operating and maintaining the new court. Will funding be provided in time for the court of appeal to be up and running by October? The Minister referred to the motion for earlier signature, which will enable the appointment of new judges in a timely fashion. I understand there have been discussions regarding appointing nine or ten judges who would sit in panels of three. From what the Minister indicated, I can infer that the procedure in this regard has not yet commenced. Establishing the court is going to cost money. Every court needs a registrar and an officer and there are many different headings under which new costs will be incurred. It is worth noting that as a result of legal initiatives taken in a respect of personal insolvency and the appointment of special insolvency judges, some judges have been left with no work to do. That will certain not be the case in the context of the new court of appeal.

As the Minister indicated, section 8 provides that in so far as criminal cases are concerned there will be just one judgment. That is both desirable and necessary and it follows current practice in the court of criminal appeal where only one judgement is delivered. This is necessary in order that we might have coherence, continuity and certainty in respect of criminal matters in particular. That to which I refer dates back to the foundation of our system in the 1920s and echoes the English rule of 1908. I am glad the Bill provides that in criminal matters, just one judgment will be handed down and the fact of whether dissent occurred will not be disclosed. This is extremely important in the context of consistency and certainty in the criminal law.

I thank the Minister for bringing forward the Bill, which I support.

I also welcome the Minister. There is no doubt that the Bill is urgently required. The waiting time for hearings before the Supreme Court is approximately four years. We all agree that the current situation is completely untenable. Until now, there existed an almost automatic right of appeal from the High Court to the Supreme Court in respect of civil matters. Coupled with the albeit much slower pace of criminal appeals, this ensured that the Supreme Court has been more concerned with correcting errors of law as opposed to what it should be doing, namely, setting down policy guidelines and expanding areas of the law that were previously ignored. With 36 High Court judges sitting regularly and the Supreme Court only being in a position to sit in three divisions at most, it has been patently obvious for many years that a backlog would inevitably be created.

As an island nation, we must be careful with regard to our reputation in the context of rectifying disputes under maritime law. At present, it is quite conceivable that an admiralty marshal, the official who formally issues warrants and takes possession of and manages vessels until such time as an admiralty case is decided, could very well be dealing with the same ship for four years or more pending the outcome of any appeal to the Supreme Court. This is a huge disadvantage in terms of our commercial reputation.

I realise that her hands are rather full at present with the much-warranted reform of the criminal justice system but would the Minister consider reviewing the rules of the Superior Courts in order to bring about greater efficiency to case management on the civil side. In addition to the lack of a Court of Appeal, it seems that much of the delay and extra cost relating to litigation stems from cases not being ready, though listed for trial. Cases which are listed and ready are often not heard as a result of the fact that the relevant court is overburdened. It appears that much of this is now avoided by the special rules put in place in respect of matters dealt with by the commercial court. In my view, this could be usefully reviewed at a future date.

It is to the credit of the previous Minister, Deputy Shatter, that he initiated the process relating to introducing the Bill before us in the aftermath of the recent referendum on this issue. I congratulate the current Minister, Deputy Fitzgerald, who is on the cusp of steering this vital enabling legislation through both Houses. The Bill is completely practical and long-overdue. I thoroughly support it.

Cuirim fáilte roimh an Aire. Tá áthas orm bheith in ann seasamh anseo anocht agus tacaíocht a thabhairt don Bhille seo atá ag teacht tríd.

As everyone is aware, the referendum which took place on 4 October 2013 was required in order to make the necessary constitutional provision for the establishment of the Court of Appeal. It was carried by 65% of the people. The new Court of Appeal will hear appeals from the High Court and the Supreme Court will hear cases, on appeal, from the Court of Appeal and, in exceptional circumstances, from the High Court. This reform will bring about a major change in the courts system and ease the four-year backlog of cases before the Supreme Court. In future, the latter will only take appeals on constitutional issues or cases of major importance. We are currently in a situation where some important cases of a constitutional nature have been waiting three or four years to be heard. I firmly believe that this should not be the position. It is simply not acceptable. I welcome the fact that the legislation seeks to resolve the problems that exist in this regard.

As the Minister is aware, my party colleague, Deputy Mac Lochlainn, launched the Reform of Judicial Appointments Procedures Bill 2013 earlier this year, which is part of Sinn Féin's campaign to end the political cronyism that is embedded in Irish society. We launched the legislation in the hope that it would put an end to the system of political appointees being made judges in Ireland. The Bill would amend the way in which the Judicial Appointments Board operates in order to increase transparency and accountability in the area of judicial appointments, which is badly needed. Confidence in the justice system is contingent on a Judiciary which is free from political control or political or other bias. It is essential that there is an independent and impartial Judiciary here which is representative of the community it serves. Future judicial appointments should be drawn from a wider pool of qualified candidates, particularly as this would enhance confidence in the justice system.

For too long we have all been aware of stories throughout the length and breadth of the State where judges were appointed with a wink and nod after demonstrating their loyalty to Fianna Fáil, Fine Gael, the Labour Party or the Progressive Democrats. The days of the old boys club that dominates the legal and political spheres in Ireland must come to an end. They have failed our people. The practice of the Government appointing senior judges must be ended if the public is to have any faith in a Judiciary free from political or other bias.

If this Government was serious about ending corruption it would have supported this Bill. The sheer number of politically affiliated judges adds to an already embedded public perception of the Judiciary as an elite to whom the law of the land does not apply equally.

Sinn Féin is calling for the establishment of a fair and accountable appointment and removal process for the Judiciary that would involve meaningful lay participation representative of the public interest. Sinn Féin believes that judicial independence is undermined by the current appointment process in the Twenty-six Counties. The Judicial Appointments Advisory Board was established in the wake of the controversial appointment of Harry Whelehan as President of the High Court in 1994 and was meant to have removed sole discretion for judicial appointment from the Government. However, there remains political involvement in the appointment of the Judiciary as the Judicial Appointments Advisory Board merely provides a list of seven qualified candidates to the Government, which, in turn, makes the appointment of judicial officeholders. The appointment procedures should be transparent to enhance public confidence in the process. The Fine Gael-Labour Party Government promised to be a reforming Government and put an end to the jobs-for-the-boys culture but from an examination of its judicial appointments so far it is clear that many of its political cronies have received jobs.

I wish to discuss the cost to people of taking cases in the courts.

I remind the Senator that he needs to be very cautious about making references to the Judiciary in the House.

Ceart go leor. Go raibh maith agat. Access to the courts and to justice is a constitutional right and yet the expense involved can run into astonishingly high figures, thereby acting as a barrier to people seeking to exercise this right. We know that if cases move faster the chances of reducing costs are better. We know the plan under discussion envisages that the new court of appeal would deal with most cases that are currently dealt with by the Supreme Court, which would, therefore, reduce the higher court's workload and allow it to focus on the development of the law.

Two tests will decide what type of appeals the Supreme Court will hear. First, that they are of public importance and second, where it is in the interests of justice that the appeal be heard by the highest court in the State. In exceptional circumstances where these tests of public interest and the interests of justice are met, the Supreme Court will be able to hear appeals directly from the High Court. The Supreme Court in Ireland, unlike equivalent institutions in other common law jurisdictions, is the court of final appeal not only for constitutional matters but for all aspects of law from the lower courts.

Figures published last year by the Courts Service show that the court received 605 appeals in the previous year, a 21% increase on 2011. It gave judgments in 121 cases compared to 64 in the Supreme Court of the United States and 85 in the Supreme Court in London. It is important to welcome the creation of a new court where proceedings take place within a reasonable time as an inefficient court system is costly. Runaway legal costs hamper even small businesses and therefore I welcome the initiative to end this. In finishing I offer my support for the Bill and call on the Minister to take on board some of the concerns I have highlighted. Tá áthas orm go raibh mé in ann tacú leis an mBille agus go bhfuilimid ag dúl tríd na céimeanna éagsúla go tapaidh anocht.

I thank the Senators who have contributed to the debate this evening. I acknowledge the support and co-operation shown by the House in making the time available. The goal and deadline is to ensure that we establish the court of appeal in sufficient time to have it operational in the autumn. As several Senators have noted, basically we are giving effect to the decision of the people in a referendum.

This is a technical Bill but there are some interesting innovations which will ensure greater efficiencies in the courts and several Senators have referred to these. They include improved case management and giving authority to judges to oversee case management in line with international best practice. This will be available to judges as a result of the legislation that we are passing this evening. This is to be welcomed because, as many Senators have commented, there can and often there are long delays in our Supreme Court at present due to the increasing litigation and the various demands. The establishment of this court of appeal will make a real difference in this regard. We do not want to have justice delayed. Clearly that has happened up to now but this provides a real opportunity for more timely access by litigants to court, and that is right and proper.

This Bill is an important milestone in terms of modernising our court system. Many people will benefit from it. We are creating something valuable and worthwhile with the legislation we are passing. As part of the programme for Government, we sought to respond to the express wish of the people in the referendum and that is what we are doing. We are well on our way in this regard.

The Bill proposes the most radical change in the structure of our courts since the foundation of the State. Senators will be aware that the courts system in Ireland has its origins in the 1922 Constitution, which provided for the setting up of new courts that had evolved previously under the British Administration. New courts were established in 1924 under the Courts of Justice Act 1924 and the current courts were set up by the Courts (Establishment and Constitution) Act 1961, pursuant to Article 44 of the 1937 Constitution. Notwithstanding history this is the first time that we are moving to establish a truly new court under the Constitution. When enacted, the Bill will herald the establishment of this court which will come with attendant resource commitment from Government. Several Senators asked questions in this regard. I will give the costings of the new court and of the number of judges presently. It will also have state-of-the-art technology capability and, as I have already said, the necessary powers for the new case management, including the management of oral input to appeals.

When we look back in several years at the decisions taken tonight in respect of the Court of Appeal, we will see that the results are far from technical, although bringing the legislation into law has involved considerable technicalities. Anyway, I believe the results generated will be great indeed.

Senators have focused on the timely and successful implementation of this major reform in their contributions and that is important. The reform will deliver an appeals system in the superior courts to support the legitimate expectation of our citizens that their cases will be brought to conclusion with the least possible delay. Senator Walsh mentioned this in particular. It will also create a situation in which the highest court under our Constitution, the Supreme Court, is appropriately orientated towards hearing only those cases that merit its attention. Senator Higgins and others mentioned this aspect.

The Bill introduces a level of coherence into the courts structure which is in line with best international practice. It has been interesting to hear Senators discuss the number of appeals heard in other jurisdictions and the work rate of our Supreme Court. It has a backlog but that is not because it is not delivering large numbers of judgments every year.

I thank everyone who has been involved in getting us to this point. The point was made that many parties have contributed. Senator Walsh referred to his party's work on this Bill, which I acknowledge. I acknowledge the contribution of the former Minister, Deputy Alan Shatter, who successfully steered the referendum and got this innovative reform through Cabinet initially. I am honoured to have had the opportunity to bring this to conclusion this evening. I acknowledge the support of all the Opposition spokespersons in the Dáil and the Seanad who have supported the timely passage of the Bill in order that we can move on with establishing the court in October. That is very important and it will make a real difference. The courts can get on with working out the range of detail involved in setting up a new court as well as all of the administrative issues.

A huge amount of work was done by Ms Regina Terry and Ms Mary Joy, the two officials in the Department of Justice and Equality who gave up many a weekend to make sure we are at this stage of the Bill.

A number of people mentioned the delays, which are a reflection of our current system, which is why we are putting in the new court. The creation of a new court of appeal will address the endemic problem of delay and align us with other common law countries that have a court of appeal embedded in the legal system. Despite the difficult times and economic situation, we have been in a position to provide one-off costs of the order of €2 million for the start-up of the court, which will be used for accommodation and the development of an ICT package. It is a substantial investment behind the reform. The estimated ongoing cost of running a new court should amount to €2.5 million a year and a significant percentage of the funding relates to the deployment of the new judges. I have already, in my speech on Second Stage, outlined the number of judges. It will allow the new court to work in divisions of three. It means they can get on dealing with cases in an efficient and effective manner. It means we must provide more resources, but the cost benefit analysis shows that, from an economic point of view and from the point of view of businesses setting up in this country, having an effective and efficient court system that deals with issues in a timely way, as the Commercial Court does, provides a good message to businesses about our country and how we do business.

I have addressed a number of points made by Senators. Senator Jim Walsh talked about consolidation, which may merit attention. He also referred to legal costs. I am committed to reforming this area. The Legal Services Regulation Bill started in the Dáil last Thursday and will continue on our return in September. We will have an opportunity, when looking at the Bill, to examine legal costs and address the matter in more detail. It remains an ongoing issue. Senator Trevor Ó Clochartaigh also mentioned that point.

Senators Jim Walsh and Jillian van Turnhout referred to the judicial council Bill, which is very important. It is essential we have that possibility. The purpose of the Bill is to establish a judicial council of all judges to promote high standards of conduct among judges and support for judges. Central to the Bill is the provision of an effective remedy for complaints about judicial behaviour. Many judges want to see this in place and it is the right direction. The provisions under ongoing consideration include the establishment of a judicial conduct committee, with lay participation, to investigate complaints. The Bill also facilitates the formal establishment of the judicial council and the ongoing support and education of judges through a judicial studies institute. These are important changes coming down the track later this year which will address some of the concerns the public has about these issues. The vast majority of judges welcome this measure, if not all.

The vast majority. It is an important direction to head in.

A number of Senators mentioned the new case management system, which is very important and will ensure a more efficient system. Senator Jillian van Turnhout referred to the importance of a Supreme Court that functions in a way that conforms to the best practice in other jurisdictions. For this to happen, the Supreme Court needs to be freed from the more routine cases that are clogging the system at present. Senator Lorraine Higgins made the same point and talked about the benefits that would come from the new system.

I think I have covered other points and the amount of resources put towards this. We are also reviewing the appointments system and work is ongoing on it. We have had a public consultation process and received 40 submissions, which are being examined. These address issues such as the role of the Judicial Appointments Advisory Board, its members and how the system of appointment of judges should be reformed. It is also on the agenda and I expect to publish the judicial council Bill in late September or October.

In concluding the debate on Second Stage, I thank the Senators who contributed to the debate. A significant impetus behind the establishment of the court of appeal is the necessity for legal certainty, which is crucial to the smooth running of a democratic society and essential for the economy. Structures have been set up in preparation for the establishment of the court, which will facilitate it in meeting the demands of this rapidly changing legal and economic environment. By putting forward the Bill, we have taken the opportunity to provide the Supreme Court with the tools it needs to function to optimal effect and to ensure that its status as the highest court in our land is enhanced and that it can concentrate its efforts on developing the law in a considered and more rational way. I thank the Senators who have contributed.

Question put and agreed to.

When is it proposed to take Committee Stage?

Is that agreed? Agreed.

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