Courts Bill 2023: Second Stage

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

Minister of State at the Department of Justice (Deputy James Browne)

This Bill, which I am pleased to present to the House, has the sole purpose of increasing the statutory maximum prescribed in respect of the number of judges of the District Court, the Circuit Court, the High Court and the Court of Appeal.

Senators will be aware that the Report of the Judicial Planning Working Group was recently received and considered by the Government. The Judicial Planning Working Group was established in April 2021 by the then Minister, Deputy McEntee, in line with the commitment in the programme for Government to consider the number and type of judges required to ensure the efficient administration of justice over the next five years in the first instance but also with a view to the longer term. The working group was independently chaired by a former Secretary General of what was then the Department of Education and Skills, Ms Brigid McManus. Departments, the Office of the Attorney General and the Courts Service were represented on the group and two judicial observers were nominated by the Chief Justice to assist it.

The working group concluded that judges were key persons at the heart of the courts system; an effective courts system that provided timely access to justice was of central importance to society and the economy, given the courts' role in the prosecution of crime, helping families, individuals and businesses to resolve their disputes, and the protection of the vulnerable; and a stable, well-functioning courts system that could give decisions within a reliable timeframe was an important part of Ireland's attractiveness to foreign businesses and fed directly into Ireland's prosperity. However, the working group also concluded that the current judicial numbers could not meet these objectives fully, given population growth, new and growing areas of law, and the increasing complexity of the issues raised before the courts.

The working group was conscious of the position in the courts as regards delays and backlogs, exacerbated by the Covid-19 pandemic, and the adverse impact these had on individuals and on society more generally.

Accordingly, the working group recognised the need for a sizable increase in judge numbers and sustained investment to improve this state of affairs.

A study was commissioned by the Department of Justice from the OECD to inform the working group’s work. This was published in parallel with the working group's report. Overall, the OECD study found that the Irish justice system has a shortfall of judges. The OECD proposes that, depending on a number of circumstances, the likely number of additional judges needed is between 36 and 108. It also states that improving procedures and operations and enhancing case management systems and IT infrastructure may deliver greater efficiencies and potentially reduce the number of judicial positions required.

The Minister is committed to improving access to justice for all of our citizens. An efficient courts system is a critical component of a modern democratic society founded on the rule of law. It is vital that our courts are properly resourced to deliver on policy initiatives under the programme for Government, including the full commencement of the Assisted Decision-Making (Capacity) Act providing a new legal framework for supported decision-making in Ireland; a dedicated planning and environment division of the High Court to enable more efficient management of cases, dealing with planning and environmental matters and judicial review in particular; and a family law Bill to create a new dedicated family court within the existing court structure and to provide for court procedures that support a less adversarial resolution of disputes.

A significant number of additional judges will be needed over the next five years. The working group recommended that a phased approach be taken to addressing judicial resourcing. The Government agreed with this phased approach, and it is the Government's intention to appoint an initial tranche of 24 new judges in 2023, with a further 20 new judges following the implementation of reforms and efficiencies, as has been recommended. The working group also recommended that, before the additional judges in phase 2 are proceeded with, there should be an assessment of the extra judges appointed in phase 1 and of progress in the change programme. The Government will want to see evidence that the appointments made under phase 1, that is those appointments made on foot of this Courts Bill, are having an impact on waiting times and improving access to justice for the citizen. Accordingly, a second phase of additional judges is dependent on the measurable progress achieved as a result of the additional resources for which we are now providing.

Both the working group and the OECD have highlighted the need for a substantial programme of change initiatives without which the demand for additional judges would be even higher. Key proposals to be considered include District and Circuit Courts sitting five days a week, assessment of the impact on courts of policy or legislative proposals, strategic HR for the Judiciary, restructuring the District Court, reviewing the Circuit Court geographical areas, additional powers for court presidents to manage their court jurisdictions, and recommendations relating to data collection and management. Justice Plan 2023 commits to bringing forward this work forward. We will finalise and agree key performance indicators with the Courts Service to measure the impact of the modernisation programme and the implementation of the judicial planning working group report. The Government will also agree and publish a judicial working group implementation plan in the second quarter of the year.

Having an efficient courts system that provides timely access to justice is of central importance to society. The courts exist to protect our rights and to uphold the rule of law. At some point we are all likely to have reason to interact with the courts system. When we do, it is important that we experience an efficient, fair and timely service that is equally accessible to all. It is a priority for the Minister to ensure that the courts are resourced to administer justice efficiently and effectively and this is central to providing access to justice.

This is a short Bill consisting of seven sections, which I will briefly outline. Section 1 provides for a definition for the purpose of the Bill. Section 2 provides for an amendment of the Courts (Establishment and Constitution) Act 1961 to increase the statutory limit on the number of ordinary judges of the Court of Appeal from 15 to 17.

Section 3 provides for the amendment of the Courts (Supplemental Provisions) Act 1961 for the purpose of increasing the number of moveable judges of the District Court by eight to 28. A moveable judge of the District Court is a person not permanently assigned by the Government to a particular district at the time of his or her appointment. Such an increase could enable the President of the District Court to allocate judges to where the need is greatest at any particular time.

Section 4 provides for an amendment of the Courts and Court Officers Act 1995 to increase the statutory limit on the number of ordinary judges of the High Court from 42 to 48.

Section 5 also provides for an amendment of the 1995 Act to increase the statutory limit on the number of ordinary judges of the Circuit Court from 40 to 45. To this number should be added the recent increase of three under the provisions of the Assisted Decision-Making (Capacity) (Amendment) Act 2022. Overall, the actual increase in phase 1 is eight ordinary judges of the Circuit Court.

Section 6 provides for a further amendment of the Courts and Court Officers Act 1995 to increase the statutory limit on the number of judges of the District Court from 63 to 71.

Section 7 provides for the short title of the Bill and a collective citation. These are standard provisions.

An independent, impartial and efficient Judiciary and courts is critical to our democracy. This substantial increase in judicial resources will be complemented by the implementation of the far-reaching Courts Service modernisation programme, for which additional funding has been provided in 2023. The Minister is confident this injection of new judges and the important reforms recommended will help to improve the operation of one of the State’s most important institutions.

I commend the Bill to the House.

An Cathaoirleach Gníomhach (Senator Erin McGreehan)

Before we move onto the next speaker I want to give a big welcome to the boys of St. Canice's national school in Finglas. They are very welcome to Leinster house and I hope they have a great time.

Senator Barry Ward

Cuirim fáilte roimh an Aire Stáit agus roimh an mBille atá an-tábhachtach ar fad. Gabhaim mo chuid buíochais agus buíochas ghrúpa Fhine Gael le Bridget McManus as an tuairisc a rinne sí ar an ábhar seo agus leis an ngrúpa as an obair atá déanta aige. This is a very important Bill. It may be a niche area but it will have much wider repercussions than much of the legislation of this technical element and size that goes through the House. In his speech the Minister of State mentioned a number of issues that are very important with regard to the functioning of our criminal justice system and access to justice for people. Something I have said in the Chamber on a number of occasions is that we have a very functional, fair and reasonable criminal justice system that works for the victims and defendants before the courts and for the people who need the system to function.

One of the areas where we are definitely falling down is in terms of the time it takes to deliver decisions on all kinds of legal matters, be they disputes between individuals, disputes between individuals and the State or companies or, of course, criminal prosecutions. For example, those asking in the Circuit Court today for a trial date will be looking at a date in the second half of 2025. The same is true of the Central Criminal Court. This is grossly unfair on the people involved in the cases, be they victims, defendants or witnesses. This is something we must address as a matter of urgency. I believe the Bill will go a very long way towards doing so.

I welcome the fact the Minister has previously indicated that this is not only about appointing judges but also about providing the resources those judges need to function. This means court rooms, spaces where cases can be heard and the Civil Service and Courts Service staff who are there to make sure the courts can run properly. One without the other does not work and will not improve the situation.

I very much welcome the fact we are addressing this problem. The number of judges the Minister of State has mentioned for the Court of Appeal, the High Court, the Circuit Court and the District Court will go a very long way towards helping us to address the very unfair and problematic delays there are in terms of getting cases dealt with in the courts. The report from Bridget McManus and her group has been tremendously important in establishing the need for these changes. It is something we all see. Anybody dealing with any individual throughout the country will have heard complaints about the delays there have been in bringing cases to trial and bringing cases through.

In his speech the Minister of State mentioned the importance of the functionality of the courts and, therefore, access to justice. This is a fundamental right constitutionally and in terms of the European Convention on Human Rights. Access to justice comes in a number of different ways, not least of which is representation before the courts. I foresee a repercussion from this Bill of which the Department must be aware. This is that many of these positions will be filled from the Bar and the roll of solicitors. These are people who are practising in our courts and providing legal services. As they leave they will have to be replaced. At present, as the Minister of State knows, there is a real problem, particularly in the sphere of criminal legal aid, with the number of people entering the criminal Bar and criminal practice as solicitors. Of all of the groups to have their fees cut at the time of the financial emergency in this country, legal aid solicitors and barristers have not had the cuts unwound. They are the only group. For some reason, the Department of Justice or the Government has decided it is somehow acceptable to single out this one group and decide their fees should not be restored. The cuts they endured of between 30% and 35%, depending on how it is measured, have never been unwound.

There may not be evidence of it, because it is very difficult to enumerate whether somebody has decided to leave the practice of criminal law in favour of another area of law or in favour of another industry altogether because of those fees. That is difficult to establish. Anecdotally, however, we know that there are far fewer people going into the practice of law at the beginning of the qualification stage. There are more and more senior people, particularly in criminal law who are choosing to go into a different industry, to leave the Bar, or to leave practice as a solicitor to go in-house or into a different area of law. That is real. As more and more practitioners are taken out of the criminal sphere, that will exacerbate that problem. One of the key ways the Government can address that is to have a responsible approach to the levels of payment available to those practising in criminal legal aid. What people do not understand when we talk about this, is that we are not just talking about defence practitioners. In this House we talk all of the time about the importance of dealing with serious offences against individuals. However, the pay for prosecution counsel or solicitors, and defence counsel or solicitors, is the same. There is a statutory instrument that ties the two together and they cannot be different. When defence fees are cut, the prosecution fees are cut as well. People are discouraged from being available to prosecute important matters and make sure perpetrators of criminal activity are brought to justice.

The time has come, particularly in light of the reforms in this Bill, to change the Government's attitude to the paltry payment of important professionals who, by the way, save the State a small fortune in terms of what they provide it. The State does not have to pay employer's PRSI, holiday pay, sick pay, parental, maternity or paternity leave. None of that has to be covered by the State. It has a coterie of independent practitioners who pay all of their own bills. They are all self-employed. They look after themselves. The State pays less per capita for legal aid in this jurisdiction than in any other common law jurisdiction in the world that I am aware of. The State gets excellent value for money for legal aid, notwithstanding the efforts of some in the media to paint huge figures, which of course include VAT as well. The reality is that we know the importance of paying people properly for the job they do. When we stop paying them properly, then that job is not done or is not done properly. One of the features of the Bar, in my opinion, is that lots of people come to it as more mature people from a second career, and they may be older. If you are coming to the Bar in your 30s with children and a mortgage you cannot practice criminal law because you cannot afford to. The reality is that the only people going into criminal law are those who are straight out of college. That is a real shame, and it is a real missed opportunity. I hope the Minister of State will bring the message back to his Department and to the other Ministers in the Department that this has to end. We need to take serious concrete steps towards restoring legal aid fees. It is something I have said before, on a number of occasions, and I know he is aware of the arguments.

Finally, I note we have missed another opportunity because about 25 or 30 years ago, we changed the retirement age of judges, particularly in the superior courts. It was reduced from 72 to 70, which means that as soon as judges hit 70, they have to retire. I think that is totally unnecessary. I would like to see that undone. I know there are concerns but the reality is that most people are functioning later in life. They are able to work later and want to work later. If there is an experienced judge who is willing to work later than 70, then he or she should be able to do that. I am not saying we should not put controls or safeguards in place to ensure that person is still able to do the job. Maybe there could be an annual approval by the president of that court or by an outside body. We have in our Judiciary a coterie of people who are really effective. They are really fair. They follow the rule of law and they do an excellent job for this country. Cutting them down at 65 or 70, depending on the court, is an unnecessary waste of that human capital. It also addresses the issue we have with the availability of judges to deliver the accessibility to justice referred to in the Minister of State's speech. I welcome the Bill on behalf of the Fine Gael group. It is a forward step and I look forward to the appointment of those judges to smooth through those cases being delayed in our system as it stands.

Senator Michael McDowell

I welcome the Minister of State to the House, and I echo the sentiments expressed by Senator Ward. I have a number of things to say to the Minister of State. There is a scandal going on now in the central office of the High Court. One cannot go in there and get a summons issued unless one makes an appointment in advance. The system used to be that one went to a counter, and presented the summons one wanted to be issued. It was issued and that was it. Now, one has to go through an elaborate thing to make an appointment with a particular official to issue a summons. That came in during Covid and has not been stripped back. It is a matter for the Department of Justice, the Courts Service and the President of the High Court, to end this immediately and bring back basic efficiencies. The idea that one has to make an appointment for an over-the-counter service is grotesque. When we do a study on how the court system works, I would like to see how many of those staff have taken to working from home, or working a number of days in the office and a number of days from home. It is a scandal. It is really contributing to costs, delays and so on.

My second point relates to the whole question of legal aid fees. The attitude of the Department of Public Expenditure, National Development Plan Delivery and Reform is scandalous and cowardly. I do not mind; I am a senior counsel and the whole question of legal aid fees obviously does not affect me. I saw some figures in The Irish Times recently. The Irish Times took the trouble to trail a criminal practitioner and see what she or he got done in a day, what proportion of the counsel's work was done for nothing, and what the counsel actually got by way of earnings for a day's work. It was scandalous, and none of the cowards in the Department of Public Expenditure, National Development Plan Delivery and Reform would work under those conditions. As Senator Ward has said, none of them would work on the basis of no pension, no guarantee of anything and less money than one would pay to have somebody come to one's house to take a look at one's fridge if it was malfunctioning. That is for a day's work, for somebody who has to pay insurance, fees to the Bar Council, their own overheads and contribute to their own pension at no expense to the State. In addition, they have to be tax compliant to get a cent from this Government. It is a scandal and it is a cowardly scandal being orchestrated by the Department of Public Expenditure, National Development Plan Delivery and Reform because it has some notion that barristers as a group get too much money. It picks on the weakest, most vulnerable, and comparatively the poorest barristers. It will not restore the 8%, which was taken off them for some reason. Everybody else, and all of us here, have had our pay restored. It is a nasty little gesture that it refuses point blank to give these people back what they were originally paid a long time ago, and forget about inflation in the meantime. It is an absolute scandal. I am saying that those people who are making those decisions in that Department should look at themselves in a mirror and read that article in The Irish Times. They should ask themselves if they stand over-----

Acting Chairperson (Senator Erin McGreehan)

The Senator is straying from the topic of the Bill.

Senator Michael McDowell

I am talking about the legal aid system and I am very much sticking to this Bill. Senator Ward has told the House this. Have his words been ignored? Does this House realise that our legal aid system is creaking so much that somebody sent forward for jury trial today is given a date in 2025? That is a scandal. It is a complete scandal. Think of a rape victim, or a little old lady whose house was burgled and she was badly beaten up. Think of people in those circumstances, not to mention a person accused of a case who is eventually acquitted. It is taking two and a half years to get a trial. What kind of planet are we living on? Look at the system in England as well, for people who commit murders. A prison officer who scandalously kidnapped and killed a woman is long since in jail now. In Ireland, he would probably be in the first two or three years of his bail period. That is a scandal. Something has to be done about it, and it is the responsibility of the Minister for Justice. When I held that office, I was worried enough about delays as they were then. They were bad then. Everything in Ireland seemed to take twice what it took in any other jurisdiction to get somebody tried. Now it is three or four times longer what is happening in other places. This is a scandal.

I will mention one other thing.

Senator Ward said that if we want the system to work better, and if we are appointing all these extra judges, we should take a look at their conditions of retirement. I agree with him. There is no reason a judge should not now sit until he or she is 72 years of age. There is a lot of experience there. When we tell that person that he or she is gone at 70, we are wiping out a lot of experience and wisdom. Again, I come back to the Department of Public Expenditure, National Development Plan Delivery and Reform. In the period from 2011 to 2013, a Bill was put before this House to say that in order to get a full pension, a judge had to serve 20 years rather than 15 years. I reiterate, for the record of this House, that there was a gross deception of the Houses of the Oireachtas. That provision could only be discovered by somebody who went minutely through a Schedule to the Bill and found that a requirement of 20 years' service had been substituted for one of 15 years' service. There was no reference to it in the explanatory memorandum, nor was either House ever told that this was being done. The result was that people effectively had to be a judge at the age of 50 if they were to get a pension, and people who were 55 could never get a full pension. That was done by agreement of the then Department of Public Expenditure and Reform. I say again, these Houses were not respected in respect of this matter. The change was snuck through in the most disreputable way, and the result is that we are not getting full value from the appointments of judges that we make. The introduction of a retirement age of 72 would be a great help with that.

I welcome the presence of more judges and the plans to increase productivity in the whole courts system. It may require a different approach to vacations and sitting hours. I am long enough in the tooth to be able to say that there is room for improvement in all of those areas. However, because the Courts Service is an independent body, direct responsibility for the malfunctioning of the administration of justice has effectively disappeared from the Department of Justice to the Courts Service, the Judiciary or whatever. Nobody is accountable for the massive delays. Although the appointment of more judges may be part of the remedy, there is much more that needs to be done to bring our system of justice up to scratch and, in particular, to end the scandal that it can take two or three years to get a trial before a jury in a rape case or a child sexual abuse case. How scandalous and wretched is that? That is all I will say.

Senator Robbie Gallagher

The Minister of State is welcome back to the House today to discuss this important Bill. From a Fianna Fáil perspective, we very much welcome this legislation. It is a short Bill, but that does not take away from the importance of it. We can be very proud of our judicial service and how it has served this country for many years, notwithstanding the fact that legislation is currently going through both Houses to reform it. I bow to the knowledge of my two colleagues to my left in relation to that. Notwithstanding what is going on there, I think we should be very proud of our Judiciary. It is something that we certainly should not take for granted. However, like any public service, it is important that we shine a light on how it is actually functioning. I very much welcome that, and I commend those who were part of the Judicial Planning Working Group and, indeed, the OECD, which compiled the report back in 2021. It makes for very interesting reading. There is no doubt, as some would say, that justice delayed is justice denied. Senator McDowell has outlined in great detail his frustrations in relation to that, and rightly so. He is very angry about the fact that a rape victim may have to wait three to four years before proceedings even commence, and such victims have to live through that trauma, pain and hurt for that period of time. To have to revisit all of that again three years or so down the line, when the proceedings actually start, is grossly unfair and should not be happening. It is actually cruel. I agree with the Senator and I can understand his frustration and anger in that regard.

I welcome the approval of the additional 21 judges to both the District Court and High Court. I also welcome the fact that the Bill provides for a review of how all this is working down the road. Some would say that it is ample time that a root-and-branch review took place of all that goes on here. I am hoping that flowing from the work that was done by the working group, we will see much-needed changes in that regard, in how it functions and how people interact with the judicial system. It is not just about the provision of additional judges and improving the service, but indeed how often the sittings take place and where those sittings take place. They are all very important issues. Some would ask why we have been waiting for so long for someone to tackle it. I welcome the fact that the Minister of State is taking this on board and that he is very much hands on in relation to it.

Another interesting issue, which both my colleagues mentioned, is the retirement age of judges. Retirement age is something that we, as a country, need to have a conversation about not just in relation to this particular sector, but across the board. The 70-year-old of today, as opposed to the 70-year-old of 30 or 40 years ago, is totally unrecognisable. People are running marathons in their mid-80s and early 90s now. At a time when this country is at a critical juncture in relation to filling posts across a wide range of different professions and areas, the retirement age is something that needs to be looked at. The reality is that we are struggling to fill vacancies across a whole cohort of different sectors. Asking a person of 70 years of age, who is of sound mind and body, to basically roll up the tent, go home and put the feet up is out of kilter with where 70-year-olds are today. That is probably an argument for another day but it is an issue that I feel we need to have a conversation about sooner rather than later.

On the issue of legal aid, I think it is vitally important that people have access to legal aid, and that when they do have access to it, there are professionals that are able to provide a service to the individuals who seek that service. Based on the comments of my colleagues today on the issue, it is clear that we have a problem there. How can we expect professionals to provide a service when they are not adequately remunerated for that service? They are effectively sole traders and self-employed people who are depending on the pittance that my colleague said they are being paid. The reality is that many of these young people coming out will not be able to get a loan to buy a car, never mind a mortgage. The insecurity of the work that they do will lead people to divert elsewhere. That is what is happening across the board, and it needs to be tackled. Legal aid is vitally important to those who seek it. It is also vitally important that legal aid is not abused by those who seek it, but the first step in the process is that when people require legal aid to which they are legally entitled, there are professionals of the highest calibre available to provide that service. If there are not, then we are falling down as a State. It is something that we certainly need to look at.

Broadly, I welcome this legislation. It is long overdue. I compliment the Minister of State on taking it on board and appointing the additional judges. However, it is not just as simple as that. A spotlight needs to be shone on the whole Judiciary to see how we can improve the legal system for those who interact with it.

Senator Vincent P. Martin

Cuirim fáilte roimh an Aire Stáit.

The Green Party grouping welcomes this short Bill put before the House as a step in the right direction as part of the overall jigsaw. It comes from the Government. To give some credit to the Government, it appears to be in listening mode. More judges have been called for, for as long as I remembering practising in the Law Library. To see a Bill come before the House is a positive step in the right direction.

I also commend the Department on listening and on accepting my Bill last month. It has given an undertaking that it will adopt it. When it is enacted or becomes part of a larger Bill, it will quite properly, I maintain, restrict and curtail the entitlement of an accused to cross-examine in person the victim in respect of coercive control cases. The Government was listening and this is an important step. However, I am concerned about its implementation. While I wish it well, I note we threw much money and investment at the health system. Did it automatically improve? No. Will the provision of additional judges on its own suddenly alleviate and rectify a long-standing problem of delay? I would like to see it accompanied with some sort of performance metrics to know exactly how it is. Has it been worked out? My preference, which is not in the cards for this Bill, is for a judge not to hear the next case until he writes up the judgment in the superior courts in the case he heard. There has been a big delay, and this is not a criticism of judges; it is their workload. The parties, who have long since litigated, have to wait for months on end before they get the written judgment.

We talk in this Chamber about the principles of due process and fair procedures. Central to that is to ensure justice is administered properly and efficiently. Justice delayed is justice denied. Equally so, as Senator McDowell said, the creation of unnecessary administrative blocks in the central office creates an issue where justice is denied. It is part of the process.

We are coming out of Covid and it has taught us some things. I would like to shake off the shackles of aspects of it that there is no need to hide behind any more. For instance, in Naas, we had an excellent antenatal maternity service for years. Quite correctly, it was removed at the time of Covid. We did not think it was a permanent decision. It has never come back, yet we have secured accommodation rooms for it to come back. Therefore, they cannot hide behind “not enough space” or “not enough appropriate accommodation”.

Law is always in a state of change. When I started at the Bar, the big area was Army deafness cases. A specific response from a judicial wing to look after all those cases, with specialised training and knowledge, is needed. For instance, there might have then been bankruptcy and insolvency, which hit a high at one stage after the Celtic tiger bust. There was then data protection. One that is here to stay is planning and environmental law. I welcome the fact that we are streamlining this as a separate division of the High Court. However, equally, with all these judges who have served our country well, we need ongoing top state-of-the-art training in the latest law but also the highest possible level of interpersonal skills. While my experience has been very positive, we cannot rest on our laurels because it has been okay in the past. We have to train our judges to the very latest skillset.

Other speakers spoke about the fees, especially for younger practitioners. I would like to closely associate myself with those remarks. If we do not address that issue, it will slowly but surely dismantle the renowned, as we call it, appreciated and independent Irish referral Bar, which for centuries has served us so well. If we do not look after the youngest practitioners, they will be pushed out of the Law Library. We have a wonderful independent referral Bar where any solicitor can pick up a phone and if that barrister is free, that solicitor has a chance of getting that barrister to represent them. That will be gone if we do not look after the most vulnerable barristers. I would hate to think there is an optical politically correct purported reason for this, that it looks like barristers from the tribunals and to not touch them, as politically, that is a hot potato. That would be unfair on the young practitioners who deserve - we should insist they get - the best remuneration on a par, nothing more or less, with other aspects of the State that have rectified pay inequities.

I agree with the retirement age being increased. That was a retrograde step and it was not fully thought out. People on the bench have wisdom. We should not suddenly cut down their careers after all those years of experience of not just dealing with the law but dealing with the practitioners, plaintiffs and witnesses that come before the court. The late Mr. Justice Paul Carney was on record as very much - to put it mildly - a reluctant retiree. He was willing and it would have suited his life to stay on. He was the senior criminal judge in Ireland. However, that was not possible. I urge the Minister of State to look at the retirement age again.

I will conclude by returning to my opening remark. More judges sounds great and will hopefully tackle what at times is, unfortunately, a dreadful delay in the process. However, I want to see performance metrics on how this is done. A big decision has been taken. Perhaps there will be some commentators who say that more judges is only good for the Law Library or the legal system. Not at all; it is good for everyone, including the most vulnerable in society, to have a functioning, proper and fair legal system. In doing so with performance metrics, the current system can help itself a bit more. As a practitioner, the Minister of State would be aware that the retired President of the High Court, Mr. Justice Peter Kelly, did great work in streamlining the commercial division of the High Court. It was a no-nonsense style but he increased and improved the system of access to law and reduced delays. This must go in tandem with a bigger and broader approach. We will now get these extra judges, but the Minister of State should make sure that they impact as effectively as is feasibly possible.

Acting Chairperson (Senator Erin McGreehan)

Before I move to the next speaker, I welcome the students from St. Louise de Marillac Primary School in Ballyfermot. They are guests of Senator Ardagh. They are very welcome to Seanad Éireann. I hope they are enjoying their day at Leinster House.

Senator Paul Gavan

The Minister of State is welcome to the House. Sinn Féin fully supports this Bill. We think it is important to see it pass quickly. I commend the Minister of State on his work.

The Government established the Judicial Planning Working Group to report on the number of judges required and their skillsets. This Bill, as we know, arises out of recommendations of that working group. The group reported in February 2023 with the recommendation that the number of judges be increased, along with other reforms. The Bill amends several references to the maximum number of judges certain courts, namely, the Court of Appeals, the Circuit Court and the District Court, can have, which are outlined in the legislation.

I have to ask the question: how did we get here? How did we get to this state of play in terms of our judicial system? A damning report by the European Commission published last year ranks Ireland as the worst country in Europe with regard to judicial resourcing. This State had 3.27 judges per 100,000 people in 2020. The European average was 17.6 judges. That is worth repeating. Our State has 3.27 judges per 100,000 people, while the European average is 17.6 judges.

I have to make a political point. Fine Gael likes to term itself as the party of the law and order. It has been in power for 12 years and has let this state of play occur. It is an absolute disaster and one that has real consequences for people who all of us know in respect of waiting for court dates and justice.

I have someone very close to me waiting for a court date. She waited two years. She has a date but we know it will probably be postponed again at the end of the year. When you have issues that cause tremendous upset and trauma and you then find the judicial system leaves you to twist in the wind for years, it is an appalling failure of the State. That is the only way I can put it. I have to put the charge, very clearly, that it is an appalling failure of successive Fine Gael Governments to address this issue. The commission and other stakeholders such as the Bar Council have warned that this under-resourcing is also a danger to the State's economic competitiveness, especially as Ireland is reliant on tech and financial service sectors where there is a large demand for legal services. There are widespread delays throughout the judicial system and the State has been reprimanded by the Council of Europe over the wait times for criminal proceedings to begin. I understand a separate Bill is due to come before the House to give compensation where delays to criminal proceedings have violated the human rights of defendants. That is how bad the State has got.

Sinn Féin accepts the establishment of the working group was an important recognition by the Government that the situation in courts throughout the country was untenable. As others have said, justice delayed is justice denied and the delays in many areas of law, especially in family cases, were and are intolerable. Steps to address this are important and I note the Minister of State has promised 24 new judges in the coming weeks, with a further 20 to follow. That is very welcome. However, this increase, while in line with the recommendations of the working group will still leave our country well below the European average with regard to judges per capita. Other proposals such as a judicial resources planning model and more flexible working arrangements are positive. Judges also need to have a clear career path and the right level of specialisation, especially in areas such as commercial and family law. The forthcoming review of Circuit Court and District Court areas must also bear in mind access to justice for those in isolated rural areas, rather than just seek efficiencies.

I will deal the issue of the retirement age. Of course, we should be having a conversation about the retirement age but, for God's sake, let us not have it exclusive to judges. We need to have that conversation across broader society, to give people the flexibility to choose when they retire. That is a conversation we have had in a number of committees, including the enterprise committee of which I am a member. What we have not seen so far is Government action to allow that flexibility to be built in. Of course, let us have flexibility for judges, but let us have it for everyone.

I ask the Minister of State to forgive me as I will go out to join my colleagues in solidarity with our Palestinian brothers and sisters but I will check back to see his response to my speech. Sinn Féin supports this Bill.

Senator Mark Wall

I welcome the Minister of State into the House for this important Bill, which the Labour Party very much welcomes. We are told the sole purpose of the Courts Bill 2023 is to provide for the necessary legislative amendments to increase by 24 the number of judges in the District Court, Circuit Court, High Court and the Court of Appeal. That is very much welcome. We are told the Government proposal for this increase in judicial numbers arises from recommendations of the report of the Judicial Planning Working Group. I will take the opportunity to thank its chair, Brigid McManus, for her considerable work in preparing this report which was received by the Government in January 2023.

In its report, the Judicial Planning Working Group recognised that current judicial numbers cannot provide timely access to justice given population growth, new and growing areas of law, and increasing complexity of issues raised by the courts. The group noticed the unsatisfactory waiting times in most of our courts which have been exacerbated by the Covid-19 pandemic. The group also recognised that an effective court system that provides timely access to justice is of central importance to society, the economy, individuals and families. In line with the recommendations of the report, the Government is proposing that the allocation of additional resources should be phased. The first phase, which is the subject of the Courts Bill 2023, is for a total of 24 additional judges with the District Court and Circuit Court to have eight judges; the High Court to have six judges and the Court of Appeal to have two judges. The statutory limit on the number of ordinary judges of the Circuit Court has only recently been increased by three. Accordingly, a further increase of five ordinary judges of the Circuit Court is now proposed under the Courts Bill 2023.

The Minister of State will be aware I have previously raised delays with access to family courts in particular. I raised it with the Minister of State when he was last in this Chamber. Increasing the number of available judges can only have a very positive effect on the worries that many families raised with me around such delays. The issue is constantly raised with me through clinics and in correspondence and needs to be addressed. I welcome the fact that the Minister of State is increasing the number of judges and I hope it will appease many of the people I deal with and the concerns they raise with me.

I support, as almost every Member has, the comments on the retirement age of 70 for judges. I agree with Senator Gavan that this must be looked at throughout the whole spectrum of employment. The Labour Party has made proposals on this and is in active discussions on the subject, as are other political parties. I will raise the issue of free legal aid centres. I have raised it previously with the Minister of State and ask for his continued support. It is a worry for me when I hear colleagues raise issues with regard to the number of people available to take on these cases. We need to address this issue and I am sure the Minister of State will take that out of this conversation with us today. He has informed us this is a short Bill, which has been initiated in the Oireachtas with a view to prioritising legislative consideration in order for the process leading to the appointment of new judges to be done in a timely manner.

We welcome this Bill. The Government in this instance is reacting positively to an urgent need that exists in the courts system and is providing us with more judges, who are badly needed. We look forward to progressing this Bill through the Houses and supporting its passage.

Minister of State at the Department of Justice (Deputy James Browne)

I thank all the Senators who have contributed to this debate. It has been pointed out this is a short and technical Bill. However, its objective is to provide a continuing basis for an effective courts system, which is of central importance to our society and the economy. Both the Judicial Planning Working Group and the OECD have concluded that significant numbers of additional judges will be needed over the coming years. The Minister is committed to improving access to justice for all of our citizens. It is important our courts are properly resourced to deliver on this objective and the Government's policy initiatives for the courts, which are already in train and planned. For these reasons, the Government has approved the proposal for 24 additional judges in phase 1, as recommended by the judicial planning working group.

Before proceeding to the additional judges in phase 2, the Government will want to see evidence that the appointments under phase 1 are having an impact on waiting times and improving access to justice. This substantial increase in judicial resources will be complemented by the ongoing implementation of the courts' modernisation programme, as well as strategic reforms of courts' operations. Together, these represent a demanding multi-annual change programme for the Judiciary and the Courts Service. It will be very important to see that that productivity is increased.

These judges are very much needed. As Senator Ward pointed out, we have a functional, fair and reasonable courts system but one of the major failings is the length of time it takes to get a case heard. As the Senator pointed out and I certainly remember from my time practising, one will be waiting up to two years for a hearing date, but it could often take up to two years just to get to the point where one is saying the case is ready to go to hearing and looking for the hearing date. If anything happens on the hearing date, you could be looking for an adjournment and that could mean waiting even more time.

Those waiting times have a real impact. Witnesses' memories can dim or pass away. There is also the importance of the human rights of the person who is facing prosecution and the victims, who face significant stress waiting for these delays. It is intended that these additional judges will address those waiting times. Of course, additional judges will mean additional court hearings, which will put even more pressure on to the criminal Bar, which is facing a situation where it is one of the few sectors that has not seen its pay restored since the cuts during the economic crisis. The criminal Bar, along with section 29s and similar groups have not seen an increase. This has an impact. As someone who practised both criminal law and civil law, I could see colleagues who were having to make a difficult decision of not practising criminal law, even though that was an area in which he or she was an expert, because of the difficulty in getting sufficient pay to be able to keep practising.

We talk about competition at the Bar. One way to improve competition is having more people being able to start but you also need more people in the middle of the race and at the finishing line, to ensure there is competition and that means young barristers being able to survive at the Bar. Pay is a matter for the Department of Public Expenditure, National Development Plan Delivery and Reform, but the Department of Justice is engaging with the Department on the situation with regard to pay. There are relatively small payments for barristers in the District Court as well.

There is often a challenge with some solicitors, who seem to think that paying young barristers is an optional extra. This is something the Department of Justice can look at. We can examine the possibility of barristers being directly paid.

Regarding the issue raised by Senator McDowell about the workings of the central office, I will raise that with the Courts Service. When I was practising it was a matter of simply going in.

Regarding the age of retirement, 70 is the standard age across the public service but I understand that people are living longer, healthier lives and it is something for a wider discussion by Government. If people at the very top are not retiring it can create a barrier to the next generation moving up the promotion ladder. We need to have a broader discussion on the matter. I will take into account the comments of the Senators and I will bring them back to the Minister for further discussion with the Department of Justice.

Overall though, I think this is a very positive day. Getting the number of judges increased will allow for a speeding up of the cases being heard in the courts and is to be welcomed.

Question put and agreed to.

Cuireadh an Seanad ar fionraí ar 1.42 p.m. agus cuireadh tús leis arís ar 2.46 p.m.

Sitting suspended at 1.42 p.m. and resumed at 2.46 p.m.

Seanad Éireann debate -
Wednesday, 10 May 2023