SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Friday, 22 Mar 2002

Vol. 3 No. 9

Courts and Court Officers Bill, 2001: Committee Stage (Resumed).

Acting Chairman (Ms M. McGennis)

I welcome the Minister for Justice, Equality and Law Reform and his officials to the meeting to resume consideration of Committee Stage of the Courts and Court Officers Bill, 2001. If proceedings have not previously concluded, they should be brought to a conclusion by 7 p.m. by one question, which shall be put from the Chair and which shall, in relation to amendments, include only those set down by the Minister for Justice, Equality and Law Reform or a Minister of State nominated as a substitute on his behalf, whereupon the select committee shall, in accordance with Standing Order 79(B), send a message to the Dáil in relation to the completion of its consideration of the Bill, and Standing Order 79(A)(2) shall apply.

NEW SECTION.

Acting Chairman

On the last occasion, the committee agreed that section 6 stand part of the Bill. We will resume on amendment No. 15a, in the name of Deputy Howlin. We are referring to the second list of additional amendments dated 21 March 2002.

Mr. Howlin

Are the resubmitted ones included?

Acting Chairman

Yes. Amendments Nos. 15a to 15c, inclusive, are consequential and may be discussed together by agreement.

Mr. Howlin

I move amendment No. 15a:

In page 7, before section 7, to insert the following new section:

"PART 3

Judicial Conduct

7.-(1) Every judge shall uphold at all times the standards set out in this Act and in any code of conduct which may be adopted in accordance with law applying to judicial conduct, the dignity and high standing of the office of judge and his or her own standing as a holder of that office.

(2) It is the duty of every judge-

(a) to comply with the provisions of this Act and of any code of conduct which may be adopted in accordance with law applying to judicial conduct;

(b) not to engage in conduct (whether in the exercise of the office of judge or otherwise) which is dishonest or which may otherwise bring the office of judge into disrepute or which is prejudicial to the administration of justice; and

(c) to observe the ethics and etiquette of his or her office.

(3) Without prejudice to the generality of subsection (2), a judge shall-

(a) act with total impartiality in relation to all persons and matters and shall refrain from treating, or from taking any step or making any comment which could give rise to him or her being seen to treat, any party, witness or lawyer with affection or ill-will;

(b) ensure that all persons appearing before him or her are given a full opportunity to be heard consistent with rules of court;

(c) refrain from any unnecessary criticisms of persons (whether parties, witnesses or lawyers) appearing before him or her, or from any comment, opinion or innuendo extraneous to his or her judicial functions;

(d) act with the utmost courtesy and respect to all persons appearing before him or her, whether parties, witnesses and lawyers; and

(e) be and be seen to be conscious of his or her role as a public servant.

(4) A judge who holds office on the 31st day of December in any year shall, not later than the 1st day of February in the following year, prepare and furnish to both Houses of the Oireachtas a statement in writing (which shall be made available to the public) in such form as may be determined by resolution approved by both Houses of the Oireachtas or in a form to the like effect of his or her interests (within the meaning of the Ethics in Public Office Act, 1995) and additional interests (within the meaning of section 13 of the said Act) during that year.

(5) A judge shall not perform a function of his or her office where he or she or a connected person (within the meaning of the Ethics in Public Office Act, 1995) has a material interest in a matter to which the function relates.

(6) A judge may not accept or retain a gift in circumstances corresponding to circumstances in which an office holder would be precluded from accepting or retaining a gift pursuant to section 15 of the Ethics in Public Office Act, 1995.".

The Minister will recall that I could not move the amendment on judicial conduct and standards as originally drafted because it involved charges on the State. I envisaged the establishment of a judicial standards tribunal. I have resubmitted the amendments but dropped the tribunal proposals. I set out in the amendments codes of conduct which everybody in the committee will agree should apply to judges. Amendment No. 15a proposes a new section 7. Section 7(1) states that every judge shall uphold at all times the standards set out in this Act and in any code of conduct which may be adopted in accordance with law applying to judicial conduct, the dignity and high standing of the office of judge and his or her own standing as a holder of that office.

This reflects the code of conduct that the Committee on Members' Interests drew up for Members of the House, acknowledging the position of trust that members of the Judiciary hold and which allows there to be a code of conduct so the acceptable practices for judicial conduct will be laid down and known. Obviously once the code is laid down, it is expected that judges will comply with it.

Amendment No. 15a is self-evident and refers to matters that we would expect in any case - total impartiality in respect of all matters and a guarantee that all persons before judges are given full opportunities to be heard. One important aspect, which I included in subsection (c), is a requirement that judges “refrain from any unnecessary criticisms of persons (whether parties, witnesses or lawyers) appearing before him or her, or from any comment, opinion or innuendo extraneous to his or her judicial functions”. The reference to “parties, witnesses, or lawyers” pertains particularly to Deputy Shatter. I included subsection (c) because we read from time to time about comments made by judges in respect of individuals who appear before the courts which are not appropriate and take from the conduct of the judge and the administration of justice.

There is not much in the amendment to which people would take exception. There is a requirement for a declaration of interest. A judge "shall not perform a function of his or her office where he or she or a connected person (within the meaning of the Ethics in Public Office Act, 1995) has a material interest in a matter to which the function relates." In addition, a judge "may not accept or retain a gift in circumstances corresponding to circumstances in which an office holder would be precluded from accepting or retaining a gift pursuant to section 15 of the Ethics in Public Office Act, 1995".

In these amendments, which form a composite proposal, I have tried to provide that the standards we now expect for office holders in public office, senior civil servants and senior administrators in semi-State bodies are reflected in the conduct of judges. The amendments involve no charge on the State so I hope the Minister accepts them.

Minister for Justice, Equality and Law Reform (Mr. O’Donoghue)

Amendments Nos. 15a to 15c, inclusive, are interlinked and I will discuss them together. The issue of judicial conduct and ethics has been considered in the recent past by the constitutional review group and by an all party Oireachtas committee on the Constitution which, inter alia, recognised the need for improved oversight of judicial conduct and in the case of the all party committee recommended the establishment of a judicial council to review judicial conduct. More recently, a report from a judicial committee established by the Chief Justice also recommended the establishment of a judicial ethics and oversight body.

Deputy Howlin knows that I had proposals to act immediately in this area in terms of proposing a constitutional amendment to be followed by legislation to establish a judicial council and ethics committee, but the Government felt compelled to withdraw the proposals because of the failure of the main Opposition parties to support them.

Mr. Howlin

That did not stop the Government in the last referendum.

Mr. O’Donoghue

I greatly regret that the attitude of the Opposition led to the withdrawal of these proposals, thereby depriving the judicial system and the public of a new open and accountable system for investigating complaints and a clear and fair procedure for removing a judge from office, should that become necessary at any time in the future. I remain convinced, however, of the need for action in this area and particularly of the need for a judicial ethics and oversight body. In that respect preliminary work on legislative proposals has continued in my Department.

Having regard to Article 35 of the Constitution, there must be considerable concern about proceeding by way of legislation without a sound constitutional basis. In the absence of such a constitutional amendment, legislative provision will have to receive the most detailed and careful scrutiny and will have to study the major reports in the area. That is not something which can be undertaken at the last minute and such a major legislative intervention in the judicial area would require considerably more time than is available prior to the completion of Committee Stage of this Bill.

Deputy Howlin will accept that the amendments before us represent only part of the judicial oversight system he has in mind because some of the provisions which he earlier sought to have included in the Bill were ruled out of order. These sought the establishment of a judicial ethics tribunal to inquire into complaints about alleged misconduct by judges. Leaving aside any other misgivings I might have about the Deputy's proposals, it would be ineffective to prescribe the ethical standards he now proposes without an enforcement system. A judicial council or a judicial ethics body of some kind is needed for this purpose.

It is simply not possible to tackle an issue of this importance and complexity in this manner. I agree with Deputy Howlin that judicial oversight and accountability need to be addressed, but it must be done in a measured and considered fashion. That work is continuing in my Department. However, I propose to move an amendment on Report Stage in relation to a register in respect of reserved judgments. It is a limited accountability measure which I believe would be useful and with which we could feasibly proceed at this time. I oppose Deputy Howlin's amendments.

Mr. Shatter

I will not get into a row with the Minister as to why he made a mess of the constitutional referendum and how he found it impossible to take on board constructive proposals from the Opposition that might have facilitated the success of that referendum. I am also loath to remind the Minister that he wanted to conduct that referendum in conjunction with the Nice referendum, which was defeated. Thanks to the Minister's obstinacy in not taking on board what we had proposed, his insight in recognising that, having failed to take it on board, he was better off not running with the issue and by withdrawing from the field at an appropriate moment, he avoided scoring two own goals last June as opposed to scoring one with the Nice treaty.

Mr. O’Donoghue

Deputy Shatter was not on the same side on the field and that is why we did not score.

Mr. Shatter

I wish to refer to the Minister's comment about reserved judgments. I can make an additional suggestion with regard to the difficulty of reserved judgments and ensuring that reserved judgments are delivered within a reasonable time. Despite the establishment of the Courts Service Board, and I am not sure whether this is the fault of the board or the Judiciary, there seems to be a view that when written judgments are delivered by the courts in important cases the obligation is to ensure that members of the media get copies. It is not regarded as part of that obligation to ensure that copies of important judgments are made available to the public, Members of this House or to the Oireachtas Library.

Frequently judgments are delivered in the courts that are relevant to the work we do. The Oireachtas Library can experience huge difficulty getting copies of judgments. A Member of the House might make contact with the courts and discover there is great difficulty getting copies of judgments. In the context of a judgment delivered this morning, for example, when somebody attempted to get a copy of it to me they ultimately succeeded but they were initially told they would be lucky to get it within three weeks, which is the normal time frame. Eventually we got a copy of the judgment.

It is time members of the Courts Service Board or members of the Judiciary realised that an open court system means that when judgments are delivered in open court, people are entitled to have access to them. I do not understand why our courts do not have the capacity to do what is done by the United States Supreme Court, which makes judgments available on the court website on the morning they are being delivered. This should not be a problem in this country and if it is, the Courts Service Board is not operating correctly or efficiently.

The problem is occasionally exacerbated when members of the Judiciary deliver judgments and, having done so, feel the need to retain them for signing and, perhaps, correction. There is a need to deal with this differently. I ask the Minister to consider, in providing for a judgment register, imposing a statutory obligation on the Courts Service Board to ensure that on the day written judgments are delivered in the courts they are furnished to the Oireachtas Library. That should be a minimum requirement. Members of the House frequently must rely on the media to inform them of what is contained in important judgments that relate to the work they do in the House.

Mr. O’Donoghue

Before doing that, I would like to see information technology in the courts further developed.

Mr. Howlin

The issue of judicial conduct is extremely urgent. In fairness, the Minister tried to cobble together inadequate proposals in the immediate aftermath of the Sheedy affair. He felt some degree of responsibility to try to bring judicial conduct under public scrutiny like other agencies of the State. It was an extraordinarily hamfisted proposal, so bad that he could not persevere with it. In fact it was an extraordinary response to the Sheedy affair that the main plank of the proposal was to make the sacking or impeachment of judges more difficult.

There were other elements in the response. I read the file again in recent days, in preparation for other things, and the article I wrote at the time for The Irish Times, was a devastating analysis of the Minister’s proposals. It must have been reasonably devastating since the proposals did not survive longer than a week afterwards. The fig leaf the Minister has used since then, saying that he had to withdraw the proposal because it lacked support from the Opposition benches, is laughable. We went through a torturous process with the last constitutional amendment proposal which was trenchantly opposed by the Opposition. It was guillotined and forced through the Dáil despite the opposition of Fine Gael, the Labour Party and others. Consensus, therefore, is obviously not required by the Government in relation to constitutional matters.

It was clearly no such thing that stopped the Bill; it was the patent inadequacy of the proposals. Some of the proposals were untenable. For example, on the proposal that a two thirds majority would be required for impeachment, it was pointed out that it would be untenable following a vote to impeach a judge in which there were 100 Deputies in favour and 50 Deputies against that the judge could return to the court as if nothing had happened because he or she did not get the magic majority of two thirds of the Dáil. This proposal from the Constitutional Review Group was so patently untenable that the Minister did not persevere with it.

Notwithstanding that, the Minister had a responsibility to come back with better proposals or at least engage the Opposition and make Parliament real. These are the dying days of this Administration and it is too late in the day to be setting up a new dialogue with them, but I hope that in the new Parliament, irrespective of the side of the House the Members here present sit on when we reconvene after the election, we will try to make Parliament operate more like it was intended to, namely that legislative proposals will be debated in a real sense and that the Opposition will put forward suggestions. Today is a very bad example of that. The tribunal of inquiry Bill was published on Wednesday and guillotined through the House in three hours this morning. There was really no time for external scrutiny or proper amendment, and it is not a good way to deal with business.

I am not going to persevere with this set of proposals now because the Minister is correct in saying that they are not the totality of what I would like to do. I hope after the election to be in a better position to do what is proper and comprehensive.

Amendment, by leave, withdrawn.

Amendments Nos. 15b and 15c not moved.

SECTION 7.

Mr. Shatter

I move amendment No. 16:

In page 8, to delete lines 48 to 51 and substitute the following:

"(7A) (a) The Minister shall submit to the Joint Oireachtas Committee on Justice, Equality, Defence and Womens’ Rights the name of any person the Government intends to appoint to a judicial office for consideration by such committee and the said committee shall hold such hearing, if any, as it deems appropriate and thereafter report on the proposed making of such appointment to the Government and each House of the Oireachtas.

(b) Before appointing any person to a judicial office the Government shall take account of the opinion of the Joint Oireachtas Committee as referred to in paragraph (a) herein.

(c) The reference in this subsection to the Joint Oireachtas Committee on Justice, Equality, Defence and Womens’ Rights shall include and be substituted by any Oireachtas Committee appointed as the successor to the aforesaid committee in so far as the said committee is concerned with justice issues which fall within the remit of the Department of Justice, Equality and Law Reform.’.”.

Amendment No. 16 relates to section 7 of the Bill and to the new subsection (7)(A) to be inserted in section 16 of the 1995 Act. That provision was rather extraordinary and I took that view on Second Stage. It provided that after the Minister had received from the Judicial Appointments Advisory Board the list of seven possible appointees as members of the Judiciary to a particular judicial vacancy, before he could dare even to make a recommendation to Government he had yet again to consult with the Attorney General, who, as a member of the Judicial Appointments Board, would originally have been part of the consultative process.

I made the case that the Attorney General appeared not only to want to have two bites at the cherry but to have finally lost his marbles and taken the view that he was a more eminent person to have a view on this than the Chief Justice or the President of the High Court. I also expressed a concern, in the context of the judicial appointments that were now being allowed for under the legislation which permitted the appointment to the High and Supreme Courts of members of the solicitors' profession, that it was inappropriate that the Attorney General, as leader of the Bar, be in a position where he could in effect veto a possible recommendation that the Minister for Justice, Equality and Law Reform might make.

I am proposing that we delete this subsection (7)(A). I am delighted to see that the Minister, having defended this proposal, is now joining with me in agreeing that it should be deleted. The Bill would be improved by its deletion. I hope that we can do that and move on to the next provision which must be addressed.

Acting Chairman

I note that amendments Nos. 16, 16a and 16b were to be taken together by agreement, but the Minister has a preference that amendment No. 16 would be taken separately.

Mr. Shatter

It was always my wish that it be dealt with separately because the amendments are not mutually dependent. When originally published, to my surprise one of them was made dependent on another and I had that redressed. They are not dependent on each other.

Mr. O’Donoghue

I have considered this carefully. I have given thought to what occurred on Second Stage about the wisdom of making statutory provision for consultation with the Attorney General prior to the bringing before the Government of any proposals in relation to the appointment of any person, other than the Attorney General, to a judicial office. While it is not intended, on reflection I am satisfied that such a provision could be open to a misconstruction. In those circumstances, I have tabled the amendment which provides for the deletion of the new subsection (7)(A), which was proposed to be added to section 16 of the Courts and Court Officers Act, 1995.

Amendment agreed to.

Section 7, as amended, agreed to.

NEW SECTIONS.

Acting Chairman

Amendment No. 16a in the name of Deputy Shatter. Amendments Nos. 16a and 16b may to be discussed together by agreement. Is that agreed? Agreed.

Mr. Shatter

I move amendment No. 16a:

In page 9, before section 8, to insert the following new section:

"8.-Section 16 of the Act of 1995 is amended by the insertion of the following subsection after subsection (8):

'(9) Prior to advising the President in relation to the appointment of a person to a judicial office, the Government shall submit the name of that person to a Committee of the Houses of the Oireachtas, to be constituted under the rules and procedures of the Houses of the Oireachtas, and shall take into consideration the views of that Committee.'.".

The first of these amendments proposes a new section 8 of the Bill. The second amendment which we are simply discussing with this amendment is amendment No. 16b, which states:

9.-No person who has occupied a judicial office and has ceased to occupy that office due to retirement or impeachment may be appointed by the Government or any Minister of State to any office or employment unless the Government shall have first submitted the name of that person to the Committee mentioned in section 8 [the new section I mentioned] of this Act and the Government, or the Minister in question, shall not make any such appointment without the prior approval of that Committee.".

There are two matters in issue in relation to these two proposed amendments. Under the Constitution it is the President who on the advice of the Government makes an appointment of a person to judicial office. Under the legislation, before the Government makes an appointment the Minister for Justice, Equality and Law Reform receives from the Judicial Appointments Advisory Board recommended names from which he may choose the judicial appointee he will recommend to the Cabinet or he may choose to ignore all seven and propose someone else.

Once the Government makes the decision, at present the position is that the President then makes the appointment. There is no real element of transparency with regard to whether persons proposed by the Minister and the Government be made members of the Judiciary are appropriate persons to be members of the Judiciary or to fill the particular vacant judicial post at the particular level for which they are being nominated.

We should modernise our laws in these areas. We should take account of the type of transparency which is provided for in other countries. Constitutionally a committee of this House cannot order a Government to appoint or not to appoint any particular individual as a judge and I am not suggesting that. What I am suggesting is that after the Government has considered the names of the nominees and decided in principle who it may appoint, before it makes such appointment and advises the President in relation to it the Government shall submit the name of the person to be appointed to a committee of the House. That would be the justice committee of this House but, as this committee seems to be renamed after every election and sometimes in between elections, I thought it unwise to refer to the committee by name.

The point is that the name of the person would be submitted to the justice committee which would be able to express an opinion on the appointment, which would be lodged in both Houses of the Oireachtas and furnished to the Government. Based on this opinion, the Government would decide whether to proceed with the appointment. It would be at the discretion of the committee of the House to determine whether the person nominated should be asked to come before it and answer questions relevant to the making of the appointment. This would provide for a degree of transparency in the making of judicial appointments which we do not have. It could be to the benefit of the Judiciary because all too frequently appropriate persons are appointed to the Bench at different levels of the courts.

Occasionally, persons who have participated in some way in public life during the years have, because of the manner of their participation or their membership of political parties, had snide comments made about their qualifications in the press. Ninety-nine times out of 100, the persons so appointed prove to be absolutely excellent members of the Judiciary and serve the State extraordinarily well. Frequently, they are of very high calibre. If we could introduce the element of transparency I propose, it would give added stature and credibility to the appointments made.

It would provide an opportunity in one other area. There have been occasions with regard to judicial appointments where persons have been appointed inappropriately and difficulties have arisen in respect of the manner in which they have conducted themselves on the Bench. Fortuitously, this has happened in only a very small minority of circumstances in the history of the State. There is not a lawyer practising in the courts who could say, hand on heart, that every single person appointed to the Judiciary has proved himself or herself appropriate to fulfil his or her tasks. A very small minority, for reasons of personality or otherwise, do not make good judges. Putting in place a procedure of the nature I have suggested would provide a degree of additional protection.

I want to relate amendment No. 16b to amendment No. 16a. Amendment No. 16b is designed to deal with another issue - to ensure that, where a judge has retired, been impeached or threatened with impeachment, no Government appointment would be made without the proposed appointment also being considered by the justice committee. This proposal differs from the previous one which states the committee would merely express an opinion, which the Government of the day may decide to accept or reject. In the context of this proposal, such an appointment would not be allowed without the approval of the committee.

I do not want to go back over old issues, but if this provision had been in place, the difficulties the Government got into over the proposal to appoint former judge, Mr. Justice O'Flaherty, to a particular body would not have arisen. The embarrassment he suffered would have been avoided because the proposed appointment would have had to be referred to a committee - the suggestion in the circumstances and context of the background and proximity to the unhappy and difficult events relating to the Sheedy case would have indicated wiser political counsel and the proposal would not have been made in the first place.

This proposal is designed to ensure Parliament has a meaningful role in these areas and that, where members of the Judiciary are close to retirement and the Government has in mind that they be appointed to undertake a particular task, the appointment would be given consideration by Parliament and not simply happen automatically at the behest of the Government.

Mr. O’Donoghue

I am not prepared to accept these amendments. The Deputy's proposal, as contained in amendment No. 16a, would enshrine in statute a role for an Oireachtas committee in the appointment of judges. This would be fraught with peril in so far as trespassing on the independence of the Judiciary is concerned. Such a role would not be appropriate.

The amendment is silent as to the publicity, or otherwise, which would attach both to the deliberations of the relevant committee and their outcome. It is also silent on the question of how the committee would arrive at its views. However, the original amendment, for which this amendment substitutes, was quite clear in terms of the hearing and report envisaged. This would suggest that the amendment presupposes that a candidate for judicial office could be questioned by a committee, and that, in the light of answers given and impressions made, views would emerge. The difficulty is that, unless those views were overwhelmingly positive, there would be a risk of prejudice to any individual the subject of the committee's attention. The amendment would also allow for other individuals to come before the committee to give their views on the prospective candidate for judicial office. This may not be the intention, but, as I read the amendment, it would seem to be permitted by it.

Under the Constitution, judges are appointed by the President on the advice of the Government. This amendment would have the ability to undermine the constitutional role which the Government clearly has in respect of these matters. For example, if for whatever reason the views on the person the Government proposed to nominate for appointment to the judicial office were anything other than overwhelmingly positive, it would be very difficult for the Government of the day to proceed with the nomination. Even if the nomination was proceeded with, any judicial appointee who took office in the teeth of an unfavourable review from the proposed committee would be fatally compromised. The Deputy may argue this is a form of democratic accountability, but it is an unwarranted check on the role the Government clearly has under the Constitution and an unwarranted encroachment upon judicial independence.

I wonder about the constitutionality of the proposal in amendment No. 16b. What is suggested is that an ex-judge would be treated differently from any other person who might be considered for appointment by the Government or a Minister to any employment or office. This would imply, even where a judge has had an impeccable record, that his or her appointment would be discriminatory and unfair. It is not something I could possibly support.

I do not believe that Deputy Shatter, if he was Minister for Justice, Equality and Law Reform, would make either proposal. As regards earlier comments on constitutional change, I do not know if Deputies Howlin and Shatter have been taking lessons in the Abbey, the Gate or Gaiety theatres. However, every effort was made to reach some form of compromise in respect of constitutional amendment.

Mr. Shatter

The Minister's response did not surprise me greatly. The only thing I should do is congratulate him in terms of his reference to the Abbey. The fact that he has delivered that script and maintained a straight face is a tribute to his acting capacities. He well knows that this has nothing to do with interfering with judicial independence and, because of the careful way this particular proposal is drafted, does not in any way transgress on the constitutional provision concerning the making of appointments by Government. Nevertheless, I can only spend so many hours beating my head against a brick wall and, for the sake of my mental stability, I will say no more on the issue.

Amendment put and declared lost.

Amendment No. 16b not moved.

Mr. Shatter

I move amendment No. 16c.

In page 9, before section 8, to insert the following new section:

10.-Notwithstanding any rule of law or practice to the contrary, a solicitor shall be qualified for appointment as Attorney General.".

This is a very simple amendment which may have been originally inspired by the section we have now deleted from the Bill. It proposes that a new section 10 be inserted, to read as follows: "Notwithstanding any rule of law or practice to the contrary, a solicitor shall be qualified for appointment as Attorney General." I await the Minister's response with interest and the advice he has received from the current incumbent.

Acting Chairman

Yesterday, there were references to a barrister and a judge, today they are to the Attorney General.

Mr. Shatter

I am a person of many purposes.

Mr. O’Donoghue

Aside from the fact that it is clear that the Deputy was anxious to keep his options open——

Mr. Shatter

In politics, it is wise to keep all one's options open.

Mr. O’Donoghue

Of course, and admirable also. It might even be a welcome sign that Deputy Shatter was thinking of other fields.

Mr. Shatter

I know how much the Minister would miss me and I would not like to distress him.

Mr. O’Donoghue

Under the Constitution, provision is made for an Attorney General who shall be the adviser of the Government in matters of law and legal opinion and shall exercise and perform all such powers, functions and duties as are conferred or imposed on him or her by the Constitution or by law.

Mr. Howlin

Is there not a short version of the reply?

Mr. O’Donoghue

There is no law prohibiting the solicitor.

Mr. Shatter

Will the Minister complete that sentence? It might be useful.

Mr. O’Donoghue

I am not aware of any enactment which would preclude a solicitor from being appointed to that office.

Mr. Shatter

I am pleased to hear that. I am interested to know whether the Minister might seek that position after the election. Second——

Mr. O’Donoghue

Jackie could hardly get two quotas, one for the son.

Mr. Shatter

I hear, with regard to pictures on the ballot paper, that if he and his son are running together, they just want the picture of two caps.

Mr. O’Donoghue

A councillor in Kerry once famously remarked about my two friends that the only thing independent about them was their caps. I do not know how true that is.

Mr. Shatter

In Holland, caps mean something entirely different.

Acting Chairman

Is the amendment being pressed?

Mr. Shatter

In the circumstances of the Minister confirming that the legal position was as I anticipated and in the context of having deleted the previous proposed section 7(a), I withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Howlin

I move amendment No. 17:

In page 9, before section 8, to insert the following new section:

8.-Section 17 of the Act of 1995 is amended by the substitution therefor of the following section:

17.-(1) Where the Government proposes to advise the President to appoint to judicial office a person who is for the time being a judge of the High Court or who is eligible for appointment to the Supreme or the High Court under subsection (2)(b) of section 5 (as amended by section 4 of the Courts and Court Officers Act, 2002) of the Act of 1961, the provisions of section 16 of this Act shall not apply.

(2) Where the Government proposes to advise the President to appoint as a judge of the Supreme Court or the High Court a judge of the Circuit Court pursuant to subsection (2)(c) of section 5 (as amended by section 4 of the Courts and Court Officers Act, 2002) of the Act of 1961, the Minister shall first consult the Board.

(3) Where the Board is consulted by the Minister in accordance with subsection (2), it shall make a recommendation as to whether the person is suitable for the proposed appointment.

(4) The Board shall recommend a person to the Minister pursuant to subsection (3) only if the Board is of the opinion that the person has an appropriate knowledge of the decisions, and an appropriate knowledge and appropriate experience of the practice and procedure, of the Supreme Court and the High Court.".

It is important to note, where a judge is appointed from the Circuit Court to the High Court, that there is a discernible difference in the requirements of the two judicial appointments. It would be appropriate that the Judicial Appointments Advisory Board should be required to ensure the applicant has appropriate knowledge and experience of the practice and procedure of the higher courts. I made my case previously and I do not intend to argue it again. There is a strong case for the amendment. It will simply require the Judicial Appointments Advisory Board to look afresh at an application for what is, essentially, a different job.

Mr. O’Donoghue

I dealt with this amendment earlier.

Mr. Shatter

We do not remember it all.

Mr. O’Donoghue

The Deputy does.

Mr. Howlin

I do not want the Minister to rehash the argument but has he reflected further on it and is he now convinced?

Mr. O’Donoghue

No.

Amendment put and declared lost.

Section 8 agreed to.

SECTION 9.

Amendment No. 18 not moved.

Mr. Howlin

I move amendment No. 19:

In page 9, lines 14 and 15, to delete all words from and including "shall" in line 14 down to and including "office" in line 15 and substitute "shall be deemed to have vacated the office concerned upon being appointed by the President to a judicial office".

I am advised that this tidies up the drafting of the clause. As worded at present, the section is defective because the person would first have to resign from the first office and then would no longer be eligible for appointment to the second office.

Mr. O’Donoghue

I do not intend to accept the amendment.

Mr. Howlin

The Minister will be sorry.

Mr. O’Donoghue

The proposal that a person being appointed by the President to judicial office should be deemed to have vacated his or her European Court appointment does not meet with the requirements of the European Court of Justice in particular. In the case of the ECJ it is necessary that an appointment holder give notice in order to set in train arrangements for that person to be replaced in the ECJ. For that reason, I do not propose to accept the amendment.

Mr. Howlin

Is the Minister content that the wording does not have the meaning I said it might have?

Mr. O’Donoghue

Yes.

Mr. Howlin

That is a confident reply.

Amendment, by leave, withdrawn.

Acting Chairman

Amendments Nos. 21 and 22 are cognate to amendment No. 20. Amendments Nos. 20, 21 and 22 may be discussed together. Is that agreed? Agreed.

Mr. Howlin

I move amendment No. 20:

In page 9, line 42, after "qualifications" to insert ", ability in the Irish language".

The amendment seeks to insert a new criterion, ability in the Irish language. This was suggested by Comhdháil Náisiúnta na Gaeilge. It is an admirable suggestion and should be among the criteria. A Deputy representing south Kerry will be anxious to support the advice of an august body such as Comhdháil Náisiúnta na Gaeilge, particularly when the promotion of the Irish language is a core value of the Minister's party. I am sure the Minister will have no difficulty accepting the amendment.

Mr. O’Donoghue

Níl mé in ann an leasú seo a ghlacadh. Bilingualism is not required for judicial appointment.

Mr. Howlin

It is not to be an absolute qualification. An ability in the Irish language does not necessarily mean bilingualism.

Mr. O’Donoghue

Under the Courts of Justice Act, 1924, the far seeing drafters provided that people appointed as Circuit and District Court judges to areas where Irish was in general use would have to possess sufficient knowledge of Irish to dispense with an interpreter, with one used only where it was practicable.

Mr. Howlin

I do not wish to labour the point but this goes to the core of whether we are serious about the Irish language. This Government promised to enact Bille na Gaeilge, a comprehensive proposal which would give every citizen the right to conduct all his or her affairs in the Irish language. It is an onerous proposal. The former Minister of State at the Department of Arts, Heritage, Gaeltacht and the Islands, Deputy Ó Cuív, who is now a Minister of State at another Department and claims he has neither job nor budget, promised a Bille na Gaeilge to ensure that all citizens dealing with any organ or agency of the State would be able to do so 'as Gaeilge'. Access to the courts is important in that context.

A number of judges are proficient in the Irish language but should an ability or proficiency in the Irish language not be considered a requirement? We could then move toward the concept of bilingualism. If we are not to pay lip service to the language and if the language is to be more readily used, which it will be given the number of gaelscoileanna being established throughout the country, I urge the Minister to give a more considered response than the dismissive one he has given to date.

Mr. O’Donoghue

Bíonn Ghaelainn á húsaid ag na breithimh sa Ghaeltacht. Dá bhrí sin, níl aon gá an rún seo a glacadh.

Mr. Howlin

Tá a lán daoine nach bhfuil ina gcónaí sa Ghaeltacht a bhfuil fonn orthu Gaeilge a úsáid os comhair na cúirte. Ba cheart gur féidir le gach duine an Ghaeilge a úsáid más mian. Is cuma má tá siad sa Ghaeltacht, nó i Loch Garman nó i mBaile Átha Cliath. Sin an rún atá ar intinn agam anseo.

Mr. O’Donoghue

Tá Gaeilge ag an Stát sa Ghaeltacht, an áit ina úsáidtear an teanga ag formhór na ndaoine. Níl Gaeilge in úsáid an t-am go léir sna háiteanna eile agus níl aon gá leis an leasú.

Mr. Howlin

Is aisteach an freagra sin. Tá sé ar intinn ag an Rialtas Bille na Gaeilge a chur faoi bhráid na Dála. Tá sé ar chumas saoránaigh ar bith, sa Ghaeltacht nó sa Ghalltacht, an Ghaeilge a úsáid. Sin cúis Bhille na Gaeilge. Anois, tá an tAire a rá go bhfuil sé sásta go mbainfeadh duine sa Ghaeltacht feidhm as a chuid Ghaeilge ach níl suim aige i bhformhór na ndaoine atá ina gcónaí lasmuigh den Ghaeltacht a bhfuil fonn orthu an teanga a úsáid.

Mr. O’Donoghue

Ní Bille na Gaeilge é seo agus níl mé anseo mar Aire na Gaeltactha. Tá a fhios ag an Teachta sin. B'fhéidir go bhfuil pointe aige, ach ba chóir go mbeadh rún mar sin i mBille na Gaeilge. Bheadh sé níos fearr ag Páirtí an Lucht Oibre an rún a chur chuig an Roinn Ealaíon, Oidhreachta, Gaeltachta agus Oileán leis an Bhille sin.

Mr. Howlin

Beidh mé sásta filleadh chuig an phointe seo arís.

Amendment, by leave, withdrawn.

Amendments. Nos. 21 and 22 not moved.

Section 9 agreed to.

Section 10 agreed to.

SECTION 11.

Acting Chairman

Amendment No. 23 in the name of Deputy Shatter. Amendment No. 24 is related. Amendments Nos. 23 and 24 may be discussed together by agreement. Is that agreed? Agreed.

Mr. Shatter

I move amendment No. 23:

In page 10, between lines 26 and 27, to insert the following:

"(2) Where a judicial office is vacated by a person in accordance with subsection (2) of section 6, the person shall complete the hearing of any case or cases that have been partly heard by the person in the Court in which the judicial office is vacated if the President of that Court requests the person to do so.

(3) When a person retires from judicial office, the person shall complete the hearing of any case or cases that have been partly heard by the person in the Court from which the person has retired or where the completion of the hearing is dependent on the determination of a case stated.".

Section 11 deals with the completion of partly heard cases by judges appointed to higher courts. It has been drawn to my attention by some members of the Judiciary who have retired that other problems arise and have arisen in practice to the detriment of litigants before the courts. In that context, I am proposing that in section 11 there be inserted two additional new subsections. The provision in subsection (2) deals with the situation where someone simply vacates a judicial office, not where the person is being appointed to a higher court. On occasion there have been one or two people who, having been appointed as members of the Judiciary, have retired at an early stage, not for health reasons but for other reasons, with cases that have been partially heard and not completed. That proposal would allow that a partly heard case would be completed if the president of the particular court requested that person to hear it.

The second situation is where members of the Judiciary retire, particularly on age grounds, and there have been difficulties with partly heard cases where the cases, which may have been heard and adjourned for a number of weeks or months, end up not being finalised and must be heard all over again from the start. That is to the detriment of the people involved on those proceedings. It has happened particularly in civil proceedings and in family law proceedings. The people involved incur all of the legal costs in having to go back over evidence previously given in a case already partly heard, as well as the additional upset and trauma of having matters heard again which were previously dealt with.

The other situation that arises, and has particularly arisen in the context of some members of the Circuit Court Judiciary, is where in the final weeks of their sitting as members of the Judiciary a major legal issue has arisen in the course of a case in which evidence has been heard but where there is legal argument at the end of the case, and there is a realisation that in order to deliver judgment there is a need for a case stated to the Supreme Court. It arises where Circuit Court judges have seen fit to state cases to the Supreme Court in circumstances in which to deliver judgment in a case they have heard, legal direction is sought from the Supreme Court as to how to deal with a particularly difficult or technical area of law and between the time when the case has been stated to the Supreme Court and the judge retires, the matter is either not heard by the Supreme Court or is heard and no judgment is delivered. When that happens, even in a case which has been fully heard and in which the judge is merely awaiting a decision on a case stated, the case must be heard again. That too is to the detriment of everyone involved. The proposed subsection (3) is to deal with this, and deals with the situation in retirement and covering partly heard cases and cases stated. For this to happen, if someone retires on age grounds there would have to be provision to extend their sitting as members of the Judiciary beyond the age limit presently prescribed to facilitate the completion of cases in such circumstances.

It cannot be argued that because a member of the Judiciary has reached a particular age, he or she is unfit to complete cases that are partly heard by him or her, or that they are unfit to deliver judgments in cases where a case stated outcome is awaited before the judgment could be delivered. It cannot be said because a number of tribunals, which have either been put in place in the past or which are currently in place, have had as the judge in charge of the tribunal or as the member of the tribunal, as it is technically called, retired members of the Judiciary who have gone past the age date for retirement within the Judiciary.

I appreciate that for technical reasons the Minister may not be able to adopt this amendment in the framework within which it is now proposed and there may be a need to look at the currently prescribed statutory age limits. I am raising this because it is a serious issue. It affects litigation and it results in people incurring costs unnecessarily. It also means that judges, particularly District Court and Circuit Court judges who feel the need to state cases to determine the outcome of proceedings in the final months of their sitting as members of the Judiciary, are constrained from doing so if a case is to be resolved because they are in a difficult position knowing that should the case stated - which they had stated in the public interest - not be heard and determined and judgment delivered before the date of their retirement, the litigants, who require the case stated, may find they must start all over again with the cost implications involved.

Mr. Howlin

My amendment, amendment No. 24, raises a different, but related, issue. I have no difficulty with section 11 of the Bill. The only matter I wanted to ensure for the avoidance of doubt - that much hackneyed phrased in recent days here - is that we would be clear what we mean by a case partly heard. I want to define a case for the purposes of the section as a case partly heard only if the judge concerned has embarked upon the actual hearing of the case for a significant period of time and in particular a case shall not be deemed to be partly heard only by virtue of the fact that the judge has dealt with any interim or interlocutory aspect thereof or with the listing of the case for the purpose of fixing a date, the giving of directions, or any other purpose. In other words, if there is only a very preliminary dealing with the case, the idea of the judge having control of the case should not prevent the age limit applying. That is the import of what I want to achieve.

Mr. O’Donoghue

I have broad sympathy with the basic premise underlying the amendments, including amendment No. 23, which states that litigants are entitled to expect that the hearing of their cases is not frustrated by matters outside their control. As drafted, section 11 of the Bill provides that a judge appointed to a higher court may complete cases which have been partially heard by him in the lower courts. The procedure specified in this section is that the president of the lower court would request the Chief Justice, the president of the High Court or the president of the Circuit Court, as may be appropriate, to make the relevant person available to complete the hearing of the case. If the person appointed is the Chief Justice etc. it is for him or her to consider whether completing the hearing is appropriate. I am satisfied that this is a progressive step which is sufficient to deal with the vast majority of cases that may arise in future and I am not prepared to accept the amendment.

The amendment essentially overrides the existing statutory provision regarding retirement age. I am not sure if the implications of this have been thought through fully. Deputy Shatter says they have not and require further attention - Deputy Howlin says the same. As the matter stands, it is not possible under existing law for judges to serve as judges beyond the mandatory retirement age and we all know that. All existing statutory provisions would need to be examined with a view to possible amendment. There may also be possible pension implications.

Mr. Shatter

In the context of the two particular amendments I tabled, I urge the Minister to give further consideration to what is proposed and the difficulties I described with a view to bringing forward an appropriate amendment or amendments on Report Stage. There are real issues that need to be addressed. The Minister is dealing with part of the problem in respect of section 11. There is a need to address the additional matters I raised. Perhaps the Minister will give further consideration to that. I appreciate there may be time constraints in dealing with the issue. However, it may be possible to deal with this in a comprehensive way on Report Stage.

Acting Chairman

Is the amendment being withdrawn?

Mr. Shatter

Yes, on the basis that the Minister will give some further consideration to it. I appreciate it may not be possible in the short time we have to address this matter at this point. If not, perhaps we can address it at a future date. Nevertheless, I would like the Minister to consider the issue further.

Mr. O’Donoghue

I have sympathy with what Deputy Shatter said, but I cannot see any realistic way around it at the moment. There is list management in the courts. There is a recognition that a person will——

Mr. Howlin

A long case to a short-term judge.

Mr. O’Donoghue

——if somebody is going to retire or not going to retire, although one can certainly give long-term or short-term cases to the judge, whatever his status.

Mr. Howlin

We all hope that we will not appear before a short-term judge. The Minister did not respond to my amendment at all, or at least I did not hear any response.

Mr. O’Donoghue

I think it was taken with amendment No. 23, so——

Mr. Howlin

The Minister addressed Deputy Shatter's issue. My point is almost the reverse of Deputy Shatter's point. It refers to somebody prolonging his career by taking on a case of which he had no seisin. Is that the correct phrase?

Mr. Shatter

Seisin.

Mr. O’Donoghue

Seisin, yes.

Mr. Shatter

There are four different "seisins" in the year.

Mr. O’Donoghue

We need rosins for violins. I do not feel there is a need for a statutory definition. The provision in the Bill is very flexible and gives a broad level of discretion to the various presidents of the courts as far as these matters are concerned.

Amendment, by leave, withdrawn.

Amendment No. 24 not moved.

Section 11 agreed to.

SECTION 12.

Acting Chairman

Amendments Nos. 26 to 29, inclusive, and amendment No. 46 are related to amendment No. 25 and they may be discussed together, by agreement.

Mr. Shatter

I move amendment No. 25:

In page 10, line 35, to delete "€20,000" and substitute "€70,000".

The amendments relate to the jurisdiction exercised by the different courts in respect of financial jurisdictions in civil matters. The Minister is proposing to increase, in terms of Circuit Court jurisdiction in section 12, the limitation to €100,000. In doing so, he is replacing the £30,000 limitation that exists at present.

On Second Stage, I expressed a concern that the courts, particularly the Circuit Court, would lack the resources to cope with the huge increase in business that would derive from this substantial increase in jurisdiction. Also, I expressed concern that the number of additional judges the Minister was proposing to appoint to the Circuit Court would be inadequate to meet the need. I note that, because the Opposition side cannot impose a charge on the Exchequer, my proposal that the Minister be enabled to increase to a greater number the members of the Circuit Court has been ruled out of order. Therefore, it makes this particular amendment imperative because there is huge concern that this very substantial increase in jurisdiction, which goes way beyond the inflationary increase in the years since the 1991 Act, will give rise to very substantial difficulties within the Circuit Court and create huge backlogs. I say this in the context of the courts already having substantial delays and backlogs across the country. An example of this is in the processing of family cases. If the civil jurisdiction is extended to the degree that the Minister is proposing in the Circuit Court, there will be a greater backlog in that court and also gridlock in the processing of civil litigation.

The amendment I have tabled is to reduce the upper limit jurisdiction in the Circuit Court from €100,000 to €70,000. The reason given originally by the Government and the Minister for the substantial increase to €100,000 was on the grounds that it might reduce the cost of litigation and that, secondly, it might reduce the level of claims ordered in terms of compensation awards made in civil litigation by virtue of cases currently dealt with in the High Court being dealt with in the Circuit Court.

On the legal costs issue, if the upper limit remains €100,000, as the Minister is proposing, it will not have any great impact on reducing legal costs because that level will result in many cases being run in the Circuit Court by senior counsel as opposed to just junior counsel. In practice, it would result in the same legal costs being incurred as would be incurred if the case was taken in the High Court.

More interestingly, since last week the insurance industry has opposed this proposal and has a very substantial concern that, by increasing the Circuit Court limit to €100,000, it will result in higher compensation awards that may be warranted in cases that are more properly brought in the Circuit Court. The insurance industry is arguing for an upper limit in the region of €50,000. I propose €70,000, which I think is a reasonable upper limit in the context of my anticipating that we are unlikely to have another courts Bill amending jurisdictional matters for another four or five years at least, although the precedent in this House is every ten years. That would allow for the high levels of inflation - with which we are now inflicted and which is likely to continue if the Government continues with its current economic policies - should the accident that I mentioned earlier today happen and the Government is re-elected.

Without inciting an overly political response from the Minister, the €70,000 proposal is a practical way of addressing the genuine concerns of the insurance industry and the real concerns about the capacity of the courts, as currently resourced, to cope with the huge additional jurisdiction that would result should the current section remain unamended.

I am conscious that the other amendments will be discussed in conjunction with this one, but I will say something about them after the Minister has had an opportunity to respond.

Mr. Howlin

When I spoke on Second Stage I did not express any great concern about the significant increase in the jurisdiction of the Circuit Court envisaged in the Minister's proposals. I did not have a strong opinion one way or the other. However, since then I have been lobbied not only by people who are familiar with the courts, but by people whom the Minister would respect. My colleague, Deputy Penrose, for example, holds the trenchant view that this is a mistake. I am impressed by the strong lobbying from the insurance industry which is of the opinion that it will significantly increase insurance costs because the awards given in Circuit Court applications will be increased. The legal fees may also increase for the reasons outlined by Deputy Shatter.

I would be extremely careful about anything which increases insurance costs. Insurance issues are becoming regular features of the correspondence and calls I receive as a public representative. I do not want to go off on a tangent, but insurance costs are now the second most significant cost of any business after wages. A huge variety of small, medium and large companies are under pressure to survive because of insurance costs. If the insurance industry clearly states that this proposal will have a significant negative effect in terms of insurance costs, I counsel the Minister to think again. Deputy Shatter's proposal will mean a significant increase without going as far as the Minister proposes. It might be a useful compromise for the Minister to reflect on that.

Mr. O’Donoghue

I have listened carefully to the Deputies on this issue. The consumer price index has increased by 30% since 1991 when these figures were last altered. There has also been a resurgence or a major evolution in the country's economic success during that period. Nobody can convince me that a Circuit Court judge, who is a high ranking person, should not be allowed to sit in judgment on a case involving the crash of a new Mercedes car. That is what the Opposition Deputies are saying. I cannot see the logic in that. In addition, I do not accept the argument that it will increase insurance premiums because courts will now be more convenient for people and travelling expenses for litigants will be lower.

People who make the argument that there will be an insufficiency of resources in the Circuit Court must follow through that logic and say that resources in the High Court will be freed up. That is the logical consequence. If there is a backlog in the Circuit Court arising from cases coming down from the High Court, resources in the High Court will be freed up.

People have a right of access to the courts. The courts are not there to serve the judges, the legal profession or either branch thereof, but to serve the public. The public is entitled to the cheapest possible access to justice. I am delighted the Courts Service Board is also committed to ensuring that the public has the cheapest possible access to justice. The powers of county registrars will be extended which will lessen the pressure on Circuit Court judges. In addition, it is a good idea to spread the work geographically.

It is also the Government's intention to set up a personal injuries compensation board. That will mean a severe reduction in the number of contested cases in the courts. This proposal, therefore, which will reduce legal costs, make for ease of access to the courts, see resources freed up in the High Court and herald the introduction of the personal injuries assessment board seems to make good sense.

Mr. Flanagan

I was interested to hear the Minister speak about an automatic reduction in costs. I would like to hear him explain to the committee how the Circuit Court will deal with such a huge increase in jurisdiction. It will change fundamentally the manner in which the Circuit Court operates. What provision has he made to increase the resources of county registrars and their offices to deal with the increase? What commitments is he prepared to give to increase the number of Circuit Court judges, almost all of whom are under pressure in the current regime? Such an increase in jurisdiction constitutes an enormous and fundamental change. The Minister said the increased jurisdiction of the Circuit Court will herald the introduction of the personal injuries assessment board. However, there is no connection between the two. I inquired of the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Treacy, who appears to have been given exclusive responsibility for this matter as he has been speaking about it for the past four years——

Acting Chairman

I do not mean to interrupt, but the arguments the Deputy is making were already made by Deputy Shatter before he left. We are stuck for time.

Mr. Flanagan

I accept that and I apologise. If the Minister has satisfied the committee with his reply to the queries raised by Deputy Shatter, I accept that. It is unfair for the Minister to link the increased jurisdiction of the Circuit Court with the introduction of the personal injuries assessment board because it is putting the cart before the horse.

Amendment put and declared lost.

Section 12 agreed to.

SECTION 13.

Mr. Flanagan

I move amendment No. 26:

In page 10, line 41, to delete "€20,000" and substitute "€15,000".

Amendment put and declared lost.

Section 13 agreed to.

Section 14 agreed to.

SECTION 15.

Mr. Flanagan

I move amendment No. 27:

In page 11, line 2, to delete "€100,000" and substitute "€70,000".

Amendment put and declared lost.

Section 15 agreed to.

SECTION 16.

Mr. Flanagan

I move amendment No. 28:

In page 11, paragraph (a), line 5, to delete “€85,000” and substitute “€70,000”.

Amendment put and declared lost.

Mr. Flanagan

I move amendment No. 29:

In page 11, paragraph (a), line 6, to delete “€100,000” and substitute “€70,000”.

Amendment put and declared lost.

Section 16 agreed to.

Sections 17 to 20, inclusive, agreed to.

NEW SECTION.

Mr. O’Donoghue

I move amendment No. 29a:

In page 11, between lines 26 and 27, to insert the following new section:

21.The Second Schedule to the Act of 1995 is amended-

(a) in paragraph 1-

(i) by the substitution of the following subparagraphs for subparagraph (v):

'(v) A conditional order for the appointment of a receiver by way of equitable execution and, if that appointment is consented to or is uncontested, an order for the appointment of the receiver, and an order for the discharge of a receiver.

(va) A conditional order of garnishee and, if the order is consented to or is uncontested, an order of garnishee.',

(ii) by the substitution of the following subparagraph for subparagraph (ix):

'(ix) An order on an application for directions as to-

(I) service of a civil bill or other originating document not inter partes, or

(II) any other procedure in an action or matter.',

(iii) by the substitution of the following subparagraph for subparagraph (xxiv):

'(xxiv) An order to vacate a lis pendens on the application of-

(I) the person on whose application it was registered, or

(II) any person affected by it, on notice to the person on whose application it was registered, where the action to which it relates has been discontinued or determined or a document or pleading has not, for a period of not less than a year before the application to vacate it, been filed in that action by or on behalf of the person on whose application it was registered.',

(iv) by the substitution of the following subparagraphs for subparagraphs (xxvii), (xxviii) and (xxix):

'(xxvii) An order giving liberty to issue an execution order to replace an execution order that is lost or mislaid.

(xxviia) An order giving liberty to issue an execution order at any time during the period of 12 years from the date of the judgment or order of the Court whose execution is directed or authorized by the execution order.

(xxviib) An order giving liberty to amend the identity of the parties to an execution order in accordance with any amendment made by the Court to the identity of the parties to the judgment or order of the Court whose execution is directed or authorised by the execution order following the death of any party entitled or liable to execution under that order or the assignment of the debt due under that order.

(xxviii) An order for the transfer of proceedings to the High Court or the District Court, including all ancillary orders for the transfer of moneys lodged in the Circuit Court.

(xxix) An order giving liberty to-

(I) serve a third party notice to proceedings on notice to the plaintiff in the proceedings,

(II) join a party as a co-defendant to proceedings on notice to the plaintiff in the proceedings, or

(III) join a party as a co-plaintiff to proceedings on notice to the defendant in the proceedings.',

and

(v) by the addition of the following subparagraphs:

'(xxx) An order for the recovery of-

(I) a liquidated amount, or

(II) a specific chattel or chattels, or both in any proceedings in which an appearance has not been entered or a defence has not been delivered.

(xxxi) An order entering judgment in an action for unliquidated damages, together with interest thereon and the costs, charges and expenses of the action, in which an appearance has not been entered or a defence has not been delivered.

(xxxii) An order for the recovery of possession of any land in ejectment proceedings in which an appearance has not been entered or a defence has not been delivered.

(xxxiii) An order for possession of any land within the meaning of section 3 of the Registration of Title Act, 1964, in proceedings for an application under section 62(7) of that Act in which an appearance has not been entered or a defence has not been delivered.

(xxxiv) An order for the recovery of possession of any land on foot of a legal mortgage or charge in proceedings in which no other relief is claimed and an appearance has not been entered or a defence has not been delivered.

(xxxv) An order that-

(I) a debtor liable under a judgment or order of the Court to pay an amount of money or, where the debtor is a body corporate, an officer, employee or member of the body corporate, and

(II) any other person who a County Registrar considers appropriate, may be examined orally by the County Registrar to ascertain what (if any) debts are owing to the debtor and what (if any) property or other means the debtor has to satisfy the judgment ororder.',

(b) by the insertion of the following paragraph after paragraph 1:

'1A. In paragraph 1 of this Schedule "execution order" has the meaning it would have if the words issued by a court" were deleted from the meaning assigned to it by section 2 of the Enforcement of Court Orders Act, 1926.',

(c) by the substitution of the following paragraph for paragraph 4:

'4. In any case in which a County Registrar may make an order, he or she may-

(a) make any supplementary or ancillary order,

(b) place a stay, subject to such conditions as he or she thinks just, on any order made, or

(c) give any necessary directions.’,

and

(d) by the insertion of the following paragraph after paragraph 9:

'9A. A County Registrar may, at the request of a party to proceedings, enter judgment in the proceedings for the amount that is agreed by the parties thereto and remains unpaid in respect of the costs, charges and expenses of the proceedings.'.".

In the Courts and Court Officers Act, 1995, a range of new powers was conferred upon county egistrars. The basic purpose of that provision was to improve the efficiency of the Circuit Court y giving powers to county registrars enabling them to make certain orders which, at that time, could nly be made by a judge of a Circuit Court. It was envisaged that, as a result of the provision, Circuit ourt judges would be free to devote more time to hearing cases. Building on the success of the 1995 provision, this amendment proposes to confer additional and extended powers upon county registrars. This will further relieve Circuit Court judges of the duty of carrying out many routine functions which take up a considerable amount of their time. On Report Stage, I will introduce a commencement provision in respect of these powers in order to ensure that practitioners are familiar with the new arrangements before they take effect.

Amendment agreed to.

Sections 21 and 22 agreed to.

SECTION 23.

Question proposed: "That section 23 be deleted."

Mr. O’Donoghue

This provision was intended to simplify the way in which the District Court operates. It does not, on further examination, appear to satisfy that objective. Accordingly, it is to be deleted.

Question put and agreed to.

Section 24 agreed to.

NEW SECTIONS.

Acting Chairman

Amendments Nos. 30, 31 and 33 are related and may be discussed together, by agreement.

Mr. O’Donoghue

I move amendment No. 30:

In page 13, before section 25, but in Part 4, to insert the following new section:

25.-The Act of 1995 is amended by the substitution of the following section for section 10 (inserted by section 1 of the Courts Act, 1996):

'10.-The number of ordinary judges of the Circuit Court shall not be more than 30.'.".

This amendment provides for the increased freedom of a Circuit Court judge in the concerned authority. Amendment No. 31 increases the number of ordinary judges of the District Court from 50 to 52. It also provides that there may be up to 14 judges who are not permanently assigned to any particular district. Amendment No. 33 provides that the number of ordinary judges of the High Court shall not exceed 26.

Mr. Howlin

Yesterday, this committee met the Bar Council, which made a strong case that justice is being delayed due to the lack of High Court judges. I asked the Chairman of the Bar Council what he thought was an appropriate number of High Court judges and he thought that an additional five judges were required. The Minister has gradually increased the proposed numbers from one extra High Court judge to three. He should change the number from three to five in order to facilitate the appointment of more High Court judges should they be required in the future. Otherwise, the legislation will have to be changed at a future date just to appoint a further two judges.

Mr. O’Donoghue

The difficulty with Deputy Howlin's proposal is that it would necessitate further consultation——

Mr. Howlin

Why?

Mr. O’Donoghue

For one thing, there is the small matter of a Department known as the Department of Finance.

Mr. Howlin

What I propose is only an enabling provision.

Mr. O’Donoghue

I know that, but I would have to go back and consult and I am not in a position to do that.

The change in jurisdiction for the Circuit Court should certainly facilitate the easing of any backlog in the High Court. I have also written to the Chief Justice, asking him to re-examine the jurisdictional relationship between the Circuit and Central Criminal Courts in terms of dealing with criminal cases. He has referred my letter to Mr. Justice Fennelly of the Supreme Court, who will produce a report on these matters. Ultimately, there will be considerable improvements in the Courts Service.

Judge Quirke will, incidentally, return from the benchmarking body later this year. That will constitute an additional easing of the burden on the courts.

Mr. Howlin

Very well.

Mr. Flanagan

Has the Minister consulted with the President of the Circuit Court regarding the requirements for the increased number of Circuit Court judges who are to be appointed to deal with the new legislation? I am particularly interested in the division of responsibility and how that will work. There must be a strong argument in favour of increasing the division of responsibility among Circuit Court judges, for example circuit, civil, criminal and family law judges. In recent years, there has been a substantial increase in family law activity within the Circuit Court. In order to ensure that justice is seen to be done, there should be a dedicated family division within the Circuit Court.

Mr. O’Donoghue

There is a commencement order provision and there will be an interim period where the need for any extra judges can be assessed. I had some discussions with the President of the Circuit Court regarding the increase in jurisdiction.

In general terms, the Judiciary is satisfied with these proposals. I have no doubt it can handle them. The members of the Judiciary are very experienced people.

There may well be a need for additional judges in the future. However, the logic behind freeing up the High Court is that this will make additional resources available to the other courts. I am not saying that High Court judges will be demoted.

I accept there are aspects of the running of the Circuit Courts which have to be looked at and that this legislation will not work unless the necessary infrastructure is in place.

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 31:

In page 13, before section 25, but in Part 4, to insert the following new section:

26.-(1) The Act of 1995 is amended by the substitution of the following subsection for subsection (1) of section 11:

'(1) The number of judges of the District Court in addition to the President of the District Court shall not be more than 52.'.

(2) The Sixth Schedule to the Act of 1961 is amended in paragraph 2(1) by the substitution of the following clause for clause (b) (inserted by section 20 of the Act of 1991 and amended by section 11(2) of the Act of 1995):

'(b) Where, at the time of the appointment of a person to be a judge of the District Court, there are 14 judges of the District Court not permanently assigned to particular districts, the Government shall assign that person permanently to a particular district.’.”.

Amendment agreed to.

SECTION 25.

Amendment No. 32 not moved.

Mr. O’Donoghue

I move amendment No. 33:

In page 13, line 23, to delete "25" and substitute "26".

Amendment agreed to.

Section 25, as amended, agreed to.

NEW SECTION.

Mr. O’Donoghue

I move amendment No. 34:

In page 13, before section 26, to insert the following new section:

26.-Where a judge of the High Court who was appointed on 20 December 1990 vacated his office on 30 November 2001, he shall be deemed for the purposes of Part I of the Second Schedule to the Act of 1961 to have vacated his office after 15 years of service.".

This amendment provides for the payment of an enhanced pension to Mr. Justice Frederick Morris, who has agreed to chair the Tribunal of Inquiry into Allegations of Misconduct on the Part of Certain Members of the Garda Síochána in County Donegal.

Amendment agreed to.

Amendment No. 35 not moved.

SECTION 26.

Mr. Shatter

I move amendment No. 36:

In page 13, subsection (1)(a), line 29, to delete “2 per cent.” and substitute “5 per cent.”

This amendment relates to the provisions in section 26, which deal with the issue of legal costs. It proposes to delete the reference to 2% and substitute 5%. Members of this committee may not be familiar with the way in which these matters work but at present, if someone is successful in court proceedings and they get an order for costs, they must have a prepared detailed bill of costs. The sum to be paid by the person against whom the order is made is assessed in the Circuit Court by the County Registrar and in the High Court, it is assessed by the Taxing Master. It can take up to six months to have these costs adjudicated upon. On some occasions, it can take significantly longer for costs to be decided. Such delays are usually due to the backlog of work which must be completed by the County Registrars and Taxing Masters. On other occasions, long delays result because the person who is liable for the costs deliberately delays the processing of the costs application before a county registrar or Taxing Master by persistently looking for adjournments, dragging out the length of the hearing, raising serious objections and creating very real difficulties. If one has been a successful plaintiff or applicant in the courts, one may well have already paid substantial sums in solicitor's and counsel's fees in advance of the case being heard, or shortly after it has been completed. There are defendants who deliberately delay the costs adjudication process in order to put off the evil day when they need to make payment.

My concern with the Minister's amendment is that during the delay interest can only accrue on the costs ultimately adjudicated at 2%. This provides a direct incentive for those who engage in vexatious or unnecessary litigation and lose, or who defend cases and lose and have orders for costs made against them, to string out the costs adjudication process on the basis that the costs interest penalty they may have to pay will be much less than the interest they may earn on deposit, even at the low deposit rates currently offered by financial institutions.

There is a problem with this which is to the disadvantage of successful litigants. That is the reason I am tabling the amendment.

Mr. O’Donoghue

Strange as it may sound, this provision was greatly welcomed by many, including insurance companies. The rate of interest applying to smaller sums of money on deposit on demand varies between institutions, but currently stands between 0.1% and 0.25%. For sums of the order of €25,000, it stands at about 0.3%. A larger sum of €100,000 earns interest at a rate of about 3%. Therefore, a rate of 2% is perfectly fair.

Amendment, by leave, withdrawn.

Mr. O’Donoghue

I move amendment No. 37:

In page 13, subsection (1)(a), to delete lines 33 to 39 and substitute the following:

"(ii) in default of agreement-

(I) the date on which a certificate of taxation (which expression includes an interim certificate of taxation) in respect of the amount aforesaid is issued by a taxing master of the High Court or by a county registrar exercising the powers of such a taxing master, as may be appropriate, or

(II) if appropriate, in the case of proceedings in the Circuit Court, the date on which a county registrar measures the amount aforesaid in accordance with rules of court,".

This is a technical amendment.

Amendment agreed to.

Section 26, as amended, agreed to.

NEW SECTIONS.

Mr. O’Donoghue

I move amendment No. 38:

In page 14, before section 27, to insert the following new section:

27.-Section 7(8)(c) of the Courts of Justice and Court Officers (Superannuation) Act, 1961, is amended by the substitution of ’an exact number of euro’ for ’an exact number of pounds’.”.

Amendment agreed to.

Mr. Shatter

I move amendment No. 39:

In page 14, before section 27, to insert the following new section:

"27.-Section 27 of the Act of 1995 is amended by the substitution of the following subsection for subsection (6):

'(6) Without prejudice to the provisions of Order 99, rules 12(1), 38(2), 29(12) and (14) of the Rules of the Superior Courts, 1986, or without prejudice to any enactment regulating the charging of fees payable in the Taxing Master's Office on the taking up of a certificate of taxation, on the taxation of a bill of costs (whether on a solicitor and client or party and party basis) no solicitor or legal cost accountant or other cost drawer shall be entitled to any fees, disbursements, charges or expenses in relation to the taxation of costs as against the opposing party, but save as against the party who incurred such fees, disbursements, charges or expenses.'.".

This is a technical provision and quite complex to explain. As I am sure the Minister understands the issue, perhaps we can have his response.

Mr. O’Donoghue

I know what the Deputy means. The area of taxation is, to say the least, an arcane branch of the law which was the subject of a detailed review in the context of a number of provisions advanced in the Court and Court Officers Act, 1995. The provision of that Act, the subject of the amendment, has been considered both by the High Court and the Supreme Court in the context of a case where final judgment was delivered in the relatively recent past. It was found that the discretion given to the Taxing Master by Order 99, rule 38(2) of the Rules of the Superior Courts, 1986 was abolished by the terms of section 27(6) of the 1995 Act.

I have listened closely to the Deputy, but remain to be convinced that the arguments in favour of the proposed change are valid. Therefore, I am not accepting the amendment.

Mr. Shatter

I congratulate the Minister on having listened to what I said, on the basis that I have not yet said anything. Given that he is Minister for Justice, Equality and Law Reform, I am concerned at the possibility that he is now able to read my thoughts——

Mr. O’Donoghue

I have read the amendment which surely must reflect what the Deputy is thinking.

Mr. Shatter

The Minister has confused what I was thinking with what I was saying, which means we are engaging in non-verbal communication. I want to make an important point related to the issue I raised previously. In the taxation of costs, after the Taxing Master or county registrar makes an initial adjudication, there is a facility for the person against whom costs have been ordered to raise objections. This produces an extra leg of expense for the successful litigant, an extra delay in the payment of costs which is to the detriment of those of whom the courts make decisions in favour.

It is my understanding that the court case to which the Minister is referring was an appeal brought by the State as far as the Supreme Court because it did not expect the particular provision in the legislation the Minister mentioned to be interpreted in the manner it was interpreted at High Court level. In practice, in the context of Taxing Masters in the High Court, the position has been that, since the 1905 court rules, they have always had discretion to measure costs, and that where objections are made to an initial adjudication against an unsuccessful litigant, the costs incurred by the successful litigant in dealing with the objections are discharged by the objector, whether unsuccessful.

I know this is very complex, but it is a serious issue. It means that if one is a successful litigant, who could, for example, be an abandoned battered wife who takes her husband to court and successfully gets an order in her favour that she retains the family home and has custody of her children, the court may make an order for costs against her husband who may then resist making payment on foot of the order for costs. The Taxing Master of the High Court may then specify how much has to be paid. The husband who wants to resist making the payment then files objections, which may not be dealt with for another two or three months by the Taxing Master with the result that the wife incurs additional expense because she has to pay her lawyer or cost accountant for another hearing about the objections.

To ensure spurious objections were not lodged in the taxing process, there was previously a provision allowing that where the objections were ruled out of order and not accepted, the costs incurred could be awarded against the person who brought the objections. It is a very simple issue. This applies also in ordinary civil litigation. If one is run over by a car and the driver is required to pay one's legal costs after being sued, the same problem arises.

This court case has had the effect that in every situation where a litigant is successful and the Taxing Master makes an adjudication there is an incentive to lodge spurious objections because it may extend the time within which one has to make payment. One knows that by lodging objections one is forcing the successful litigant in court, be it in a family law case, adoption case, running down case or whatever, to incur more expense than is necessary, first, on solicitors and, second, on legal cost accountants. This is quite outrageous. For 100 years the law prescribed that this issue could be dealt with in this way. There was no public demand from any quarter to deprive the taxing master of the right he or she had from 1905 to October 2001 to make an order in relation to costs and objections in such circumstances. A judgment was delivered by the Supreme Court in October 2001 to the effect that because of the introduction of a technical amendment, which was never intended to have this effect, one could no longer get this order.

On another occasion, Deputy Howlin stated that if something is not broken, we should not fix it. Something that has worked well has been changed in circumstances that neither the Minister nor his predecessors would have expected. It is now having a detrimental effect on innocent people who have had to resort to the courts to get justice. Such people have been vindicated. Those who have lost cases are seeking to escape payment of costs by using the objection procedure to prolong the agony and force successful litigants to incur further expenses. My amendment is a technical one which addresses this issue. It does no more than restore the status quo that pertained from 1905 until October 2001. I urge the Minister to accept this amendment. If he will not take it on board on Committee Stage, I urge him to accept it on Report Stage. This is a hugely technical area, there is no politics involved. It is a practical problem for people who use our court services and incur more expense than necessary.

Mr. O’Donoghue

Obviously, it is necessary to draw up the bill of costs. Normally, this is done by a solicitor, a legal costs accountant or a costs lawyer. The fees charged by the person who draws up such costs must be paid by the person who enlisted such services. They are not paid by the opposing party in a legal case. That is my understanding.

Mr. Shatter

The Minister is correct, up to the point where the Taxing Master makes an initial adjudication. However, once that adjudication is made, what is known as an objections process can be instigated. For a hundred years, where such objections were spurious an order for costs could be made which only related to the objections and their determination. This is a genuine problem.

Mr. O’Donoghue

It is a genuine problem, but it is also a very complicated one.

Mr. Howlin

Will the Minister examine it?

Mr. O’Donoghue

I will, but I cannot give any guarantees. It is part of a broader matter. The implications of what Deputy Shatter proposes would have to be looked at in a very careful way. I am not unsympathetic to what he is saying, but I cannot guarantee that before Tuesday I will be able to facilitate him with an amendment of the kind that he is seeking.

Mr. Shatter

My amendment has been examined by expert cost accountants and I do not expect such expertise to lie in the Department. I urge the Minister to seek the advice of experts and examine this amendment before Report Stage. I know that such experts will rapidly recognise that this amendment genuinely addresses the issue and does not create a problem.

Mr. O’Donoghue

The officials in my Department fully understand what this is about. We will look at the amendment but I have concerns about its implications.

Amendment, by leave, withdrawn.

Section 27 agreed to.

NEW SECTIONS.

Acting Chairman

Amendment No. 51 is consequential on amendment No. 40 and the two may be discussed together, by agreement.

Mr. O’Donoghue

I move amendment No. 40:

In page 14, before section 28, to insert the following new section:

"28.-The Bail Act, 1997, is amended-

(a) in section 5-

(i) in subsection (1), by the insertion of ', the court may, having regard to the circumstances of the case, including the means of the person and the nature of the offence in relation to which the person is in custody, order that' after 'admits a person who is in custody to bail', and

(ii) in subsection (3), by the substitution of 'the amount (if any) of any recognisance paid into court' for 'the amount of any recognisance paid into court',

(b) in section 8(2), by the insertion of ’, if the court, having regard to the circumstances of the case, including the means of the person and the nature of the offence to which the warrant relates, so orders’ after ’approved by the member and’, and

(c) in section 9-

(i) in subsection (1), by the substitution of 'any amount paid into court' for 'the amount paid into court', and

(ii) in subsection (7), by the substitution of 'any moneys paid into court' for 'the moneys paid into court'.".

Sections 5 and 8 of the Bail Act, 1997, came into force on 15 May 2000. They introduced a requirement that before being released on bail, a person must pay into the court one third of the bail amount set. The primary purpose of this amendment is to amend sections 5 and 8 to provide that the courts will have discretion in applying this requirement. From the outset, difficulties arose with this provision because it cannot be set at a level which would be unaffordable for the person concerned. The courts are obliged to set bail at a level that will allow for the immediate payment of one third of the amount set. For that reason, small amounts of money are often lodged at courts. This provision has not worked satisfactorily.

Amendment agreed to.

Acting Chairman

Amendments Nos. 41 and 50 are related and may be taken together, by agreement.

Mr. O’Donoghue

I move amendment No. 41:

In page 14, before section 28, to insert the following new section:

"29.-Section 61(3)(h) of the Bankruptcy Act, 1988, is amended by the substitution of ’€7,000’ for ’€1,300’.”.

The intention of this amendment is to increase the 1988 threshold to €7,000.

Amendment agreed to.

SECTION 28.

Mr. Howlin

I move amendment No. 42:

In page 14, line 25, after "Act" to insert "and of the Special Criminal Court Rules Committee".

This amendment is aimed at giving another job to the under-worked Attorney General by making him a member of the Special Criminal Court rules committee, in addition to the other rules committees.

Mr. O’Donoghue

I do not propose to accept this amendment. The section which Deputy Howlin seeks to amend concerns the Attorney General being a member of the court rules committee. All of these committees are provided for in statute. I do not think there is any such body as the Special Criminal Court rules committee; it has never been formally constituted. I do not believe Deputy Howlin is of the opinion that the Attorney General has the time to attend such a committee.

Mr. Howlin

That is exactly what I am proposing. This amendment was drafted by someone who is very familiar with the Special Criminal Court. Is the Minister certain that the committee does not exist?

Mr. Shatter

The Attorney General is frequently under all sorts of illusions, so there is no particular reason why he should not be a member of an illusory body.

Mr. O’Donoghue

I suggest that Deputy Shatter take that issue up with the Attorney General himself preferably in the Dáil, after the next election.

Mr. Howlin

The Attorney General will not be in the Dáil after the next election. Is the Minister telling us that no such committee exists?

Mr. O’Donoghue

What I am saying is that it has never been formally constituted.

Mr. Shatter

Does it meet?

Mr. O’Donoghue

The judges of the Special Criminal Court do meet from time to time to discuss procedural issues. However, a Special Criminal Court rules committee has never been formally constituted. Deputy Howlin is suggesting that the Attorney General sit on a committee which is not there.

Mr. Shatter

Could he attend it informally?

Amendment, by leave, withdrawn.

Section 28 agreed to.

Sections 29 and 30 agreed to.

SECTION 31.

Mr. O’Donoghue

I move amendment No. 43:

In page 15, to delete lines 14 to 27 and substitute the following:

"of the following subsection for subsection (1):

'(1) The Service shall, as soon as practicable, but not later than 6 months, after the end of each year make a report in writing to the Minister of its activities during that year, and the Minister shall cause copies of that report to be laid before each House of the Oireachtas.'.".

Amendment agreed to.

Section 31, as amended, agreed to.

Section 32 agreed to.

SECTION 33.

Mr. Shatter

I move amendment No. 44:

In page 16, before section 33, to insert the following new section:

"33.-For the removal of doubt a solicitor or solicitors may together with a barrister or barristers appear and act together as advocates in any proceedings.".

This amendment is designed to ensure that there is no doubt that both solicitors and barristers can act jointly as advocates in appropriate cases where it is in the interests of their clients to do so. The proposal is intended to address concerns that I have that many junior counsel believe that such action was contrary to the practices of the Bar. Many junior counsel were concerned that they would encounter difficulties with their senior peers if they acted in this way. Yesterday, we had a very productive meeting with members of the Bar Council and the Law Society, during which the chairman of the Bar Council put it on record that not only are there no rules or regulations applied by the Bar to prevent solicitors and barristers acting jointly as advocates in appropriate proceedings, but that there was no practice at the Bar to create any difficulty in this regard, nor would any disapproval be registered should a junior counsel or senior counsel act jointly with a solicitor as an advocate in proceedings. That was a very helpful statement. Various issues were raised in that context which I do not intend to go into because we have teased them out in great detail. The amendment incorporates the suggested terminological changes which may avoid any confusion or doubt.

Mr. O’Donoghue

The substance of this amendment has been the subject of extensive debate in the context of another Bill which was before the committee recently. The arguments against its acceptance have been very well rehearsed——

Mr. Shatter

And were completely undermined yesterday.

Acting Chairman

No, they were not.

Mr. O’Donoghue

In particular, it has been pointed out that the need for a provision of this type is not apparent, there is no legal doubt in relation to barristers and solicitors practising together. There is no prohibition on duets at the Bar.

Mr. Shatter

I do not intend to go over the issues again, I am simply formally proposing the amendment.

Amendment put and declared lost.

Section 33 agreed to.

Sections 34 to 36, inclusive, agreed to.

SECTION 37.

Question proposed: "That section 37 stand part of the Bill."

Mr. Howlin

This is a peculiar section to insert in a Bill. One of the most debated measures of recent times was the Planning and Development Act, 2000, and inserted into this section is a neat little side-stepping of that Act for the Courts Service. Even the phrasing is odd. The section reads:

The Act of 1998 is amended by the substitution of the following section for section 33:

"33.-(1) The Service shall be deemed to be a State authority for the purposes of section 181(1) of the Act of 2000".

The other Acts we are talking about in all of this are courts Acts, but the Act of 2000 is a planning Act. Subsection (3) states:

Where development is proposed to be carried out by or on behalf of the Service, the Minister may, if he or she is satisfied that the carrying out of the development is required by reason of an accident or emergency, by order provide that the Act of 2000 or, as may be appropriate, any requirement or requirements of regulations under section 181(1)(b) of the Act of 2000 specified in the order, shall not apply for the development, and for so long as such an order is in force the Act of 2000 or the said requirement or requirements, as the case may be, shall not apply to the development.

The Oireachtas spent a year and a half debating a planning Act, but now it seems that every State agency will, by stealth, put in a little section in its legislation to make sure the planning laws do not apply to it. That is not good enough. We had a situation in the past where this matter was tested in relation to an interpretative centre. It was found that the State and its agencies should comply with normal planning procedures as far as practicable.

I do not know whether there will be an emergency that requires us to run roughshod over the Planning and Development Act, 2000, a situation perhaps where an emergency court or tribunal has to be held where there are not sufficient court buildings.

Mr. O’Donoghue

Section 33 of the Courts Service Act, 1998, provided that the Courts Service would be a State authority for the purposes of the Local Government (Planning and Development) Act, 1993. The effect of that section was that the service was exempt from planning permission requirements. It was, however, subject to the public notification procedures which apply in relation to exempted developments, including courthouses. Provision was also made in that section to ensure that in relation to temporary courthouses, it would be necessary to comply with the notice procedures on one occasion only. This was a practical change designed to ensure that there was no need to make public notice about the use of a venue on each and every occasion the temporary courthouse was used.

Section 37 essentially re-enacts that provision to take account of the fact that the 1993 legislation has been superseded by the Planning and Development Act, 2000. The opportunity is also being taken to ensure that the service can benefit from a particular privileged provision in the 2000 Act, one which was also contained in the 1993 Act, so that in the event of development required by reason of an accident or emergency, the Minister for Justice, Equality and Law Reform will be able to provide by order that any of the requirements and regulations made under 181(1) of the Act of 2000 shall not apply to that development.

Mr. Howlin

If I had more time I would argue the point more strenuously, but I really do think we should not be seeking exemptions for the State and its agencies in relation to planning matters. They are too contentious, too difficult, and people have a right to democratic due process in all circumstances.

Question put and agreed to.

Section 38 agreed to.

SCHEDULE 1.

Acting Chairman

Amendments Nos. 45 and 49 are related and may be discussed together by agreement.

Mr. O’Donoghue

I move amendment No. 45:

In page 19, to delete lines 5 to 8.

Amendment agreed to.

Schedule 1, as amended, agreed to.

SCHEDULE 2.

Mr. O’Donoghue

I move amendment No. 46:

In page 20, between lines 12 and 13, to insert the following:

"

No. 7 of 2001	Finance Act, 2001	Section 128(1)

".

Amendment agreed to.

Schedule 2, as amended, agreed to.

Acting Chairman

Amendment No. 47 has been ruled out of order.

Amendment No. 47 not moved.

TITLE.

Mr. O’Donoghue

I move amendment No. 48:

In page 5, line 8, after "1945," to insert "THE COURTS OF JUSTICE AND COURT OFFICERS (SUPERANNUATION) ACT, 1961,".

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 49:

In page 5, lines 12 and 13, to delete "THE COURTS ACT, 1971,".

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 50:

In page 5, line 15, after "1976," to insert "THE BANKRUPTCY ACT, 1988,".

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 51:

In page 5, line 16, after "1995," to insert "THE BAIL ACT, 1997,".

Mr. Howlin

Why is the Planning and Development Act, 2000, not included in the Title?

Mr. O’Donoghue

It is an amendment of the 1998 Act, not the 2000 Act.

Amendment agreed to.

Title, as amended, agreed to.

Bill reported with amendment.