Seanad Éireann debate -
Monday, 7 Dec 2015

Vol. 244 No. 4

Courts Bill 2015: Second Stage

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

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I am pleased to have the opportunity to introduce the Courts Bill 2015 to the House and look forward to engaging with Members as we progress the Bill through the various Stages. It is brief in content, having just one single purpose, to provide for an increase in the maximum number of High Court judges from 35 to 37. Under Article 36 of the Constitution, the number of judges of the different courts is fixed from time to time by legislation. The existing cap on the number of ordinary judges of the High Court was set in 2007 by the Courts and Court Officers (Amendment) Act. As is the case with the Bill before the House, that Act amended the Courts and Court Officers Act 1995 by providing that there would be no more than 35 ordinary judges of the High Court. Earlier I looked at the OECD figures for the proportion of judges to the population. Ireland is very low down in that OECD comparison, although people sometimes erroneously think it is not.

The best part of a decade has passed since the last adjustment of the statutory number of High Court judges. I am sure Senators will acknowledge the growth in that period of time, as in so many other areas, in the volume and complexity of proceedings and litigation before the courts system as a whole. While the pressure on the courts has been managed very effectively and professionally by the Judiciary and the Courts Service, in some important areas of High Court business waiting times are longer than any of us would want them to be. The allocation of a further two judges to the High Court is not solely about addressing waiting times, although this measure will address, in particular, the waiting times being experienced in the Central Criminal Court. In fact, it is more to do with ensuring the court can work more efficiently, for example, by reducing the number of reserved judgements handed down. I will return to the position in the Central Criminal Court and the question of reserved judgments.

A separate problem that I cannot overlook relates to the changes in the High Court due to the setting up the Court of Appeal and the recent loss of a significant number of judges from the High Court. Some of this loss is, of course, accounted for by retirements but much of it is due to the fact that we have set up the new Court of Appeal, to which nine High Court judges were appointed to ensure the Court of Appeal would be up and running. Senators will be aware of the significant work that has been done in the past year and the numbers of cases that have been dealt with by the Court of Appeal under the presidency of Mr. Justice Seán Ryan. It has been really effective in dealing with the various cases referred to it and made a lot of headway. These judges have been replaced by a strong cohort of new judges, but, clearly, I must make the point about the huge loss of experience. Another point that will be of interest to Senators concerns the huge number of cases now taken by lay litigants. This is an option people are choosing to take, but it is also leading to cases taking far more time to deal with for obvious reasons.

All of these factors are leading to increased waiting times for cases to be heard in some areas of the courts and an increase in the number of cases not proceeding on days listed for hearing, as well as a significant number of reserved judgments. For these reasons, I asked the Government to approve additional resources. The actual provision is just a net change in numbers and amends section 9 of the Courts and Court Officers Act 1995, as amended by the Courts and Court Officers (Amendment) Act 2007, to increase the number of ordinary judges of the High Court from 35 to 37.

It is worth looking at some of the changes we are seeing in the courts in terms of their business that underline the business case for the assignment of two more judges. Pressure points in the High Court that the Bill will substantially alleviate include the number of cases in which reserved judgments are given. While there are good reasons for reserving judgments in many cases, giving judges time to reflect on evidence and the law, the amount is of particular concern to the Judiciary. Clearly, this can be most unsatisfactory from the point of view of all concerned, not least the parties to the action or matter in hand.

Reserved judgments are frequently handed down in judicial review matters, commercial court cases and chancery actions. The increase in the number of reserved judgments can perhaps be seen as an unintended consequence of the efforts being made by the Judiciary to stay on top of waiting lists across the various areas of court business. In the Central Criminal Court, a marked trend is the increasing duration of trials due to the greater complexity of evidence coming before the court. This is evident in a lot of areas, including in the work of Tusla in relation to child protection cases.

Waiting times are a matter of concern. I note that the President of the High Court recently found it necessary to appoint a fifth judge to the full-time hearing of cases in the Central Criminal Court. I regret to say that the waiting time for a trial is approximately 18 months. One can only imagine the difficulties and distress this causes for victims of crime and their families. In many instances, cases cannot proceed on the date listed for trial, which then has implications in terms of costs, practitioners and witnesses. I am concerned about this, but I anticipate that the allocation of an additional judge to that court will make a difference. Two additional judges in the High Court would be very supportive.

Medical negligence litigation now represents a sizeable portion of business before the High Court. Given the lengthy duration of most of these actions, which we read about frequently in the newspapers and on which issue we had a discussion during our debate on the Legal Services Regulation Bill 2011, the President of the High Court, as I am sure everybody here will agree, makes a convincing case for the deployment of judicial resources to manage these actions at the earliest possible opportunity. Early intervention by a judge offers the best prospect of limiting the duration of hearings through early identification of the issues, which can lead to earlier settlement. These are usually very upsetting cases for families and all concerned. Better and more proactive management of these cases would make a difference to everybody. For this reason, the pre-action protocols to which Senators agreed during our Committee Stage debate on the Legal Services Regulation Bill 2011 is an important initiative.

The new Companies Act is predicted to generate an increased level of company-law-related applications to the High Court. These applications, many of which relate to the restriction for directors of insolvent companies, can take a number of days of court time and it is estimated that at least one extra High Court judge will be required to manage this business. The more effective the operation of our courts system, the better it is for the economy. It is important in the context of our reputation, economically and internationally, that we have a court system that is effective and efficient. Judicial reviews of decisions of courts and other bodies where reliefs and remedies are sought arise frequently in such areas as planning matters, challenges to the constitutionality of legislation and debt and other cases. It is a critical area of activity for the court, and more judicial resources are needed because practically all judicial reviews require written judgments. The point regarding the importance of written judgments and the time required in that regard has been repeatedly made to me.

I hope Senators can support the Bill which I believe will have a positive impact on the work and output of the High Court. I believe it will help with the efficient conduct of business in our courts. It is important that access to justice is seen to be efficient and timely and that there are not lengthy waiting times in this regard. While the Bill is a response to the volume of cases coming before the High Court, including judicial reviews, medical negligence actions, asylum applications and company-law-related applications, its specific benefit will be to enhance the efficiency with which the business of the court is managed as a whole and how, in particular, judgments are handled.

It ties in with the establishment of the Court of Appeal last year which was probably the biggest single reform we have seen in the courts over a long period. It has dealt with hundreds of cases since its initiation and has brought in a system of case management as well which has led to greater efficiency all round. I commend the Bill to the House.

Senator Denis O'Donovan

I will dispense with welcoming the Minister because she is nearly a permanent guest in the House now. Perhaps she would like to return here again. By and large, Fianna Fáil supports the Bill, the purpose of which is to appoint two additional judges to the High Court following a significant increase in the caseload of the court. Fianna Fáil is also committed to the reform of the judicial appointments system and has published legislation to provide for such reform.

There is no doubt there is an increase in the workload and the increase in civil litigation has clogged up the High Court. The Minister rightly pointed out that there seems to be a considerable increase in the number of lay litigants. I am not sure whether that is the right road to go down. People are entitled to be heard in any court but in some instances frivolous and vexatious procedures by certain lay litigants can clog up the system. Perhaps there is a way to identify the important issues that require judicial attention rather than those that are not appropriate to any court.

My colleague in the other House, Deputy Niall Collins, published a Bill last year proposing to reform the law in respect of the appointment and promotion of persons to judicial office. At present, the law simply requires the Judicial Appointments Advisory Board to recommend to the Minister for Justice and Equality at least seven persons for appointment to the judicial office in question and the Minister may or may not accept the recommendation. Under the Judicial Appointments Bill 2014, a new judicial appointments board would be established and the existing board abolished. Instead of recommending seven persons for appointment to judicial office, the board would recommend for appointment by the Government one candidate whom it would certify as the best candidate for appointment to the judicial office in question. The name of the candidate would then be communicated to the Minister for Justice and Equality. In the event of the Government not accepting the recommendation, it would be required to publish in Iris Oifigiúil and on the Department’s website reasons the recommendation was not being accepted. At that stage it would also have to publish the written recommendation of the judicial appointment board promoting the appointment of the person in question. The new board, as suggested by Deputy Niall Collins under the Bill, would be made up of the Chief Justice, the President of the High Court, the President of the Circuit Court, the President of the District Court, the Attorney General, a nominee of the Bar Council of Ireland, a nominee of the Law Society of Ireland, a person appointed by the Minister and a person appointed by the National Consumer Agency.

Leaving that aside, as it is a boat floated by the Fianna Fáil Party and Deputy Niall Collins, it is very important to note that in January 2014 a committee of judges called for a radical overhaul of the judicial appointments process, saying a merit-based system that limits the Government’s scope to reward political allies is vital to retain public confidence in the judicial system. The judges were sharply critical of a “demonstrably deficient system” and said wide-ranging changes were needed to attract high-calibre applicants. They said political allegiance should have no bearing on appointments to judicial office. They also made the point that, “It is increasingly clear that the relative success of the administration of justice in Ireland has been achieved in spite of rather than because of the appointment system”. The judges also said the changes to public and private pension provisions for entrants to the Judiciary may have little fiscal benefit to the State, yet create a wholly disproportionate disincentive to applicants for judicial posts and deter high quality applicants from seeking appointment.

The views of the State’s 154 judges are contained in a joint submission to the Department of Justice and Equality which was carrying out a public consultation on ways to reform the appointments process. The judges are critical of the flawed and deficient consultation issued by the then Minister, Deputy Alan Shatter. It is very difficult not to take on board some of what the entire body of the judges of this country from the various courts – the Circuit Court, the District Court, the High Court and so forth - said, but leaving all that aside, as we might never get a utopian system, as someone who has practised law for upwards of 30 years, my view is that by and large most of the judges I encountered at various levels from the Supreme Court all the way down to the District Court were pretty decent, pretty efficient and pretty good; therefore, the system in some way works well.

One must not ignore, however, the criticism of the entire body of judges who are somewhat disappointed regarding how appointments are made. In this regard, I have no doubt that there is a deficit of judges in the High Court. The new Court of Appeal will be another layer of the Judiciary, which is needed. There is much intrinsic work in civil and appeal cases. The Minister referred to judicial reviews which take much time. Perhaps ours is beginning to become like the American system, where people want to litigate rather than mediate. The Bill's proposals are reasonable and I fully support them. I wish the Bill a speedy passage through the House. Fianna Fáil fully endorses it on its way to the Statute Book.

Senator Martin Conway

I welcome the Bill. I also welcome the Minister for Justice and Equality back to the House. The Minister quoted one statistic we need to bear in mind, namely, the fact that the number of judges in Ireland, per head of population, is well below the international average. It is appropriate that we increase the number of judges, given that the people voted for the creation of the Court of Appeal in a referendum last year. Furthermore, many more individuals are taking cases to court than would have done so previously. Again, this is to be welcomed. I noted last week a judge speaking about ensuring the courts are accessible to ordinary people and that legal fees structures and so forth are not a barrier to somebody who feels aggrieved in looking for a remedy in the courts. The Government is doing its part to deal with this by means of the Legal Services Regulation Bill, which is currently going through the Houses. We all have to strive to ensure that just because one does not have resources, does not mean the remedies available through the courts system are not available to the individual.

One must look at the accessibility issue in terms of time. It is ridiculous that many cases take years to get through the courts system. That is simply because we do not have enough judges and did not have a Court of Appeal. The Government has a long record in respect of tackling these issues, which includes the referendum on judges’ pay and the introduction of the Legal Services Regulation Bill. This is the first time there has been any meaningful effort made to deal with the entire issue of the cost of legal services.

As more people go to the courts to seek remedies, we may be back here again to increase the numbers of judges. I would not have an issue with this because accessibility is not just about cost but also about time. For example, if an old person feels he or she has not been justly treated when he or she goes to court, he or she could be deceased before his or her case is heard. As a result, such an individual might never obtain the remedy to which he or she may have been justifiably entitled.

We must be cognisant of facilitating judges to be professional about how they do their business. There is no point having judges working 60 to 80 hours per week. I know District Court judges who work late into the evening to clear backlogs. In this day and age, we would like to be moving away from this. I welcome the Bill and sincerely hope it passes quickly. It will be interesting to see what amendments are tabled on Committee Stage.

This legislation is necessary and important. It has been introduced because of the system that in place and the fact that the whole structure is choking to a large extent. I welcome legislation and wish it well.

Senator Jillian van Turnhout

The Minister is welcome to the Seanad. As she said, the Bill has the single purpose of increasing the maximum number of High Court judges from 35 to 37. The Minister outlined clearly the rationale behind this and I fully support the Bill.

The Minister raised the issue of timely and accessible justice. She has been a great supporter of this issue and in September 2015 she announced infrastructural support for a family law and children's courts building. Last week I attended the Child Care Law Reporting Project and from reading that report there is clearly an urgent need for this. I ask the Minister to give this her continued attention and support. From her professional experience and her experience as Minister, I know that she is very aware of the need for this and when I read the Bill, it highlighted for me the need for us to move on this issue.

Senator Ivana Bacik

I welcome the Minister and her officials back to the House. I thank her for introducing the Bill in the Seanad. It is good to see a justice Bill being introduced in this House. This is one of the shortest justice Bills with which we have had to deal. As the Minister said, it is simple and straightforward legislation to allow for an expansion in the number of judges to be appointed at High Court level from 35 to a maximum of 37. So far it has received cross-party and unanimous support and I imagine it will continue to receive such support. It is unarguable that the waiting times are too long, particularly in the Central Criminal Court, where, as the Minister said, people have to wait up to 18 months for trials to take place. There are difficulties where trials are ready to proceed and where at the last minute they have to be adjourned. That is most unfortunate and difficult to deal with, particularly for the victims of crime and their families. It is also very difficult for those accused of crimes, for those who are detained in custody and for anyone involved as witnesses and so on. Clearly, that needs to be tackled. We have seen, as the Minister said, a tackling of waiting times and delays at other levels and real progress has been made.

I want to mention the Court of Appeal. As the Minister said, real progress has been made in tackling the lengthy time spent waiting for appeals from the High Court. While the appointment of the new judges to the Court of Appeal has had a significant impact in terms of removing very experienced judges from the High Court, it has made real inroads in tackling the delays in waiting for appeals from the High Court. That is most welcome. From talking to practitioners, I know how much more efficient that process has become. People know now that they will not be waiting years for appeals from the High Court. It has had the impact that the Minister mentioned. Again, I know from speaking to colleagues in the legal profession that there is real concern about the loss of judicial experience from the High Court. Clearly, there is a very strong cohort of new judges on the High Court, which has been an inevitable consequence of the Court of Appeal. It has also been an issue in terms of judges for the Central Criminal Court. As the Minister pointed out, there has been a particular assignment of judges to the Central Criminal Court and the raising of the number by two more in this instance will enable that to be confirmed, and that is very welcome.

We have seen other examples of good practice in terms of increasing efficiency. The commercial court was mentioned and there have been great improvements in case management. That is a lesson for us in terms of how things can be improved. The Minister mentioned the amendment she put down to the Legal Services Regulation Bill, the welcome amendment on medical negligence pre-action protocols which should lead to more efficient and effective case management.

We, as Labour Party Senators, tabled a Private Members' motion on the issue of the State Claims Agency in this House dealing with how it operates and how, where the State is a defendant in negligent actions, there can be issues in terms of an overly adversarial and confrontational approach which can exacerbate distress for litigants or their families. We called for an examination of how the State Claims Agency runs these cases. In response to that we were told that a review of the work of the agency is under way. I very much welcome this and I hope the review will lead to greater efficiencies in the processing of claims and that we will not see unnecessary delays where claims are ultimately being settled. Clearly, there should be more of a focus on seeking to facilitate settlement.

The Minister also mentioned projected increases in litigation, for example, around the new companies legislation.

There has been a huge increase in the volume of judicial review legislation in recent years and the number of lay litigants, as the Minister said. This will lead to great pressure on the High Court. Therefore, there cannot be a difficulty with the appointment of two additional judges. There have been many reasons in all of these areas for the increase in the volume of cases before the courts, to which we need a speedy response, which the Bill represents.

I support Senator Jillian van Turnhout's comments about family courts. I very much welcome the developments the Minister mentioned in bringing forward changes to family court sittings. Clearly, that is an area in which there could be greater efficiencies and better case management.

I welcome this straightforward Bill, to which there cannot be any opposition.

Senator Trevor Ó Clochartaigh

Ba mhaith liom fáilte a chur roimh an mBille seo. Sinn Féin does not oppose the legislation, the purpose of which is to address the problems associated with the significant increase in the number of cases coming before the High Court, including judicial reviews, medical negligence cases, asylum applications and company law-related applications. However, it would prove more fruitful to tackle the causes of these problems before they reach court. Inaccurate measurement and mapping continue to cause more property disputes to come before the courts. Newly digitised property boundaries are not the same as paper maps. This means the efficiency savings associated with digitisation are absent. Landowners cannot trust newly digitised boundaries, instead having to physically check boundaries on the ground, which entails the cost of employing qualified and competent surveyors. As a result, digitisation receives unjust criticism, although not surprisingly, given this incompetent and rushed panacea at the behest of the Government. Time and democratic scrutiny are essential to ensure flawed procedures and regulations are not endorsed by the Houses.

With regard to medical negligence cases, the culture of defend and deny results in more cases going to court and, ultimately, more tax revenue being used by the State on legal fees. Sinn Féin encourages mediation in a calmer and less adversarial manner to address the lengthy traumatic, unwieldy and, ultimately, highly expensive medical negligence legal system. We have consistently advocated on the need for the mediation Bill to be brought forward, but it languishes somewhere in the Department of Justice and Equality, expeditiously abandoned for electoral purposes.

The Special Criminal Court is not a symbol of success but a concrete example of failure. The fact that accused citizens can be convicted of an offence not on specific evidence but on the word of individual gardaí and the secret submission of "evidence" that is not open for the defendant to examine and refute is offensive to all democratic sensibilities. The court is entirely unacceptable and should be closed.

Meaningful change can be achieved in the courts system by introducing a sentencing council in the State. Such a council operates in other jurisdictions and provides sentencing guidelines for the Judiciary. This has ensured sentences handed down for criminal offences in their courts are consistent and accountable across the board. Concern has arisen in recent years about the perceived inconsistency of sentencing in the courts here. Sentences handed down for sexual offences have been of particular concern and controversy. Sinn Féin has examined other sentencing council models and believes this model of consistency and accountability should be introduced in the State. A key strength is that the models involves a range of key stakeholders such as victim support groups, academics, senior police officers, senior parole officers and the public in the process of establishing sentencing guidelines for the Judiciary. As members of the Judiciary are the majority members of the sentencing council and a senior member of the Judiciary chairs the council, they are still central to the process. However, the guidelines issued ensure members of the Judiciary must stick to the range provided for the category of offence before them. They must also clearly indicate why they have sentenced an offender within that range taking into consideration the impact on the victim and the blameworthiness of the offender. This ensures consistency and accountability across the court system and the state.

Ba mhaith liom go dtógfadh an tAire sin ar bord agus go ndéanfadh sí macnamh faoi na moltaí breise atá déanta againn. Ní bheidh muid ag cur i gcoinne an Bhille um thráthnóna.

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I thank Senators for their response to this request. Clearly, there is a great deal of pressure on the courts system, with the increasing number of cases being taken in areas such as business and competition, medical negligence and planning, as well as the increasing number being taken by lay litigants. I thank Senators for supporting the Bill.

A number of issues have arisen, primarily regarding the need for a judicial council Bill and I accept there is a need for it. Work has been done and there has been consultation in that regard. I should say, in particular to the last speaker, Senator Trevor Ó Clochartaigh, that work on the Bill is very advanced.

I answered a parliamentary question on sentencing policy just last week. All the expert reports that examined the issue have gone against mandatory sentencing. I take the point on consistency of sentencing. The public very often raises issues around that but the only person who notes all the detail with a particular court case is the judge who hears all sides. We have an independent Judiciary, with a separation of powers, and that is critical. I thank Senators for supporting the Bill, which will help ease some of the pressures relating to waiting times for the courts.

Question put and agreed to.

Acting Chairman (Senator Diarmuid Wilson)

When is it proposed to take Committee Stage?

Senator Ivana Bacik

Next Friday.

Committee Stage ordered for Friday, 11 December 2015.