When we adjourned last evening we had finished discussing amendment No. 37 in the name of Deputy O'Donoghue.
SECTION 27.
Debate resumed on amendment No. 37:
In page 14, lines 25 to 40, to delete subsections (6) and (7).
—(Deputy O'Donoghue).
Amendment, by leave, withdrawn.
I move amendment No. a37a:
In page 14, subsection (6), line 26, after "1986" to insert "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.".
This is a technical amendment which arises from our discussions yesterday with Deputies O'Donoghue and Shatter. It makes it clear that the section is not intended to affect the existing law in relation to taking up a certificate of taxation. The person who takes up the certificate is liable for the stamp duty and subsequently will be allowed to claim back for it. Deputy Shatter was worried about the use of that word "charges" and was concerned lest the existing practice where stamp duty could be reclaimed might be affected. Some doubt was left there and this amendment will ensure that there is none. I strongly recommend it to the committee.
I thank the Minister for tabling that amendment. It removes an area of doubt and is a very worthwhile amendment to the Bill.
Amendment put and agreed to.
I move amendment No. 37a:
In page 14, lines 41 to 47, to delete subsection (8).
This amendment seeks to deal with the introduction of the one sixth rule in taxations between parties. The view is there is a danger that the imposition of this rule on party and party costs taxation might be unfair. The application of this rule may well affect the client's right to indemnity. It has no bearing on the amount of costs which solicitors, counsel or others may charge. This rule has been applicable, quite properly, to solicitor-client taxations and the new provision would not impact adversely on solicitors or counsel but rather on the party, in other words the individual litigant, to whom the award of costs has been made.
There is also a danger it would be likely to very substantially increase the number of taxations in the High Court and the Circuit Court and it should be remembered that it is merely necessary to achieve a one sixth decrease in the bill of costs to trigger the rule. A much fairer method of dealing with the issue might be to introduce a tender system which would oblige the paying party to make a fair offer of settlement and a refusal to accept by the successful party would put the costs of taxation in jeopardy.
In summary, my amendment, seeks to exclude the application of the one sixth rule between party and party. Whereas it is fair and has worked in relation to solicitor-client taxations, it could well have a detrimental effect on individual litigants in the context of party costs.
I agree with Deputy O'Donnell's description of the problem. The one sixth rule is right for solicitor and client costs. The way it works in the context of party and party costs could cause great injustice. Perhaps the full implications of the subsection have not been understood. It could result in successful litigants having to meet more costs than they need to meet for fear of the impact on taxation. I am concerned about this and it is fair to say that everyone who works in this area, all of the professional cost accountants to whom I talked, have genuine concerns that this would be unfair, not, I emphasise, to solicitors or counsel, but to successful litigants.
This is a very complex area and you would need to be a day to day practitioner to be fully conversant with all its intricacies. As Deputy O'Donnell said, the position is that in the taxation of party and party costs at present, the party requesting taxation, the person liable to pay the cost, is always responsible for the payment of the costs of taxation. As she rightly says, there is no one sixth rule as in the case of solicitor and client costs. Therefore, unless the paying party was reasonably certain that the bill would be deducted by at least 5 per cent which is the State duty on costs, there is no point in going to taxation.
The purpose of subsection (8) is to try to keep the costs which an unsuccessful party to an action is required to pay the successful party at a fair and reasonable level. The one sixth rule is aimed at keeping legal costs at a reasonable level and to discourage a successful party to an action from making demands for unwarranted costs. Therefore, it should act as a deterrent against excessive demands in the first place. However, I should point out that the section as a whole gives discretion to the taxing master and he or she may decide to allow the costs even if one sixth has been taxed off the bill. I am not sure that this is fully taking on board the concerns that have been expressed here.
The Minister said that at the moment the one sixth rule does not apply in solicitor-client costs.
It does not apply in party and party costs.
Yes, but it does apply in solicitor-client costs. Perhaps the Minister misread her notes. I was under the impression——
It is in the party and party costs.
It might be detrimental to apply that rule to the party and party costs. Is the Minister saying that her advice is that it will not?
This subsection will act as a deterrent against excessive demands. The whole section gives a discretion to the taxing master so that even if the one sixth has been taxed off the bill, he or she may still decide to allow the costs.
The danger expressed to me was that the imposition of the rule might affect the way solicitors deal with their clients before litigation in that they might ask in advance to be indemnified against this rule applying. The imposition of the rule might affect the way in which solicitors deal with their clients before litigation and they might ask in advance to be indemnified against this rule.
To ensure the client will cover all the costs?
It might increase the individual litigant's costs. It is a technical area and I am not an expert on it but that was the view put to me.
A solicitor can ask for an indemnity at the moment.
Yes, but we should not encourage it.
This is the obverse of a problem I raised briefly yesterday evening. I fully understand there is a need to ensure that unnecessary taxations do not take place. However, as it currently stands, there is an incentive for a defendant who has lost a case to allow a taxation to take place to postpone the evil day before he has to pay the costs. While the defendant may have to pick up the ultimate bill for stamp duty, if he is deemed to be wrong in pushing a matter to taxation he does not have to pay the other expenses incurred by a successful litigant in going to taxation.
If a successful litigant goes to taxation because the unsuccessful litigant would not agree costs and if the bill is reduced by one sixth — for example, the Taxing Master of the High Court may decide that some legal work done on the case was not essential. The lawyer's judgment for the client might have been that it was necessary work but it did not fall into the taxation net. The danger is that the unsuccessful litigant may not only make the successful litigant foot the bill for his cost accountants processing the case before the Taxing Master but also make him pay the stamp duty. There is no similar penalty for the unsuccessful litigant who caused the process in the first place. For example, if the costs of a law case are assessed at £10,000 and the unsuccessful litigant made an offer to pay £5,000 before the taxation — he was clearly wrong because the tax was at £10,000 — he will not be penalised. However, by virtue of this rule, the successful litigant is penalised.
Unless we deal with the other complex problems I raised yesterday evening, it may be better to remove subsection (8) and leave matters as they stand. The alternative would be to address the matter from both sides and look at devising a way of penalising the unsuccessful litigant who forces unnecessary taxation and additional expense on the successful litigant while at the same time penalising someone who is looking for outrageous and unacceptable costs.
The system is working as well as it can at the moment. This amendment will tilt the balance in favour of the person against whom an order for costs has been made.
Since I am not a practitioner I have not had to deal with these issues. Having listened to the debate yesterday, I am satisfied I can accept this amendment. I do not want to create any further anomalies. I am not yet in a position to make any other changes. Therefore, from what the Deputies have said, it will be safer to accept the amendment.
Amendment agreed to.
Section 27, as amended, agreed to.
NEW SECTION.
We have already discussed the principle behind amendment No. 37b. yesterday. Amendments Nos. 39a., 40 and 41 are related to amendment No. 37b. and all may be discussed together.
I move amendment No. 37b.:
In page 15, before section 28, but in Part VIII, to insert the following new section:
"Qualification of Judges
28.—Subsection (2) of section 5 of the Act of 1961 is hereby amended by the insertion of the following paragraph:
'(e) Notwithstanding paragraphs (a) and (b) of this subsection, a judge of the Circuit Court of four years standing shall be qualified for appointment as an ordinary judge of the Supreme Court or High Court.'".
We already had an extremely lengthy debate on this matter. I will keep my remarks as brief as possible.
As I indicated on the first day of this debate, I will consider what has been said at this committee. We have had an eloquent and compelling debate and strong points of view were put forward. Hence this new section, which relates to the qualification of judges. It goes part of the way towards meeting the problems about which Deputies spoke so trenchently. Because of the time constraints in having a full investigation of the implications of the proposals by Deputies Shatter, O'Donoghue and O'Donnell, I am going as far as I feel is necessary to give some consideration to what they said.
The Fair Trades Commission report on the legal professions in 1990 said there should be no problem in appointing solicitors as judges and it recommended, as a start, doing this in the Circuit Court. That is included in this legislation. It went on to say that judicial experience in the Circuit Court would be an appropriate qualification for appointment as a judge of the High Court.
I strongly recommend that the committee accept this amendment as a step forward. Since there has been such a wide interest in this issue, I intend to set up a working group to examine the matter in the coming year outside the time and temperature constraints of this debate. The committee will recognise this as a tribute to the work of Dáil committees. If Members have a strong view on a certain matter, I for one am not willing to let it die away. I want to examine all the implications. I hope the Members will have an input into that working group. I intend to make the decisions as to who will be on that group as quickly as possible in view of time constraints, but the Law Society of Ireland, the Bar Council of Ireland and other relevant groups I consider appropriate will be involved.
Having listened to this debate, I will be interested to hear comments from Members on the matter, not today but at a future time; I will not set up this group before Christmas. I intend to ensure this issue is more constructively debated and given more time than we could allocate for it here. However, this does not take from the strong points put forward by the Members.
I hope the committee finds it possible to accept this new section, that it will progress the debate and I recommend it to the House.
I thank the Minister for tabling this amendment. I raised the issue of widening the pool of lawyers from whom judges can be chosen last Tuesday and strongly made the case that practising solicitors would have a similar level of experience, legal insight and acumen which would enable them to become judges in the higher courts as practising barristers.
It is also worth repeating that there are 4,400 practising solicitors and fewer than 900 practising barristers. It is illogical that we effectively pick our Judiciary from 15 per cent to 16 per cent of the practicising lawyers.
This proposal will, for the first time, allow solicitors to be appointed to either the Supreme Court or the High Court. On the basis of what the Minister is now proposing, a solicitor will be eligible for appointment, upon the legislation becoming law, as a judge of the Circuit Court, and any solicitor who has been a judge of the Circuit Court for four years or more will become eligible for appointment to the High Court and to the Supreme Court.
This is a welcome reform. It does not go the full way, but it is a revolutionary change from the position since the foundation of the State. It opens a door wide that up to now has been closed. It is something that should be looked at, and not in the context of any vested interest of either profession. I did not come to this issue on the basis of playing a bat for solicitors or to do down barristers. It is in the public interest that we have a far wider pool of lawyers from whom we can select judges. Ultimately, whatever judges we select must be people who have the necessary legal expertise, acumen, insight and compassion to adjudicate properly on all types of law cases that come before them.
I reject, in the most trenchant terms, a statement issued on behalf of the Bar Council last night, which suggested that barristers have some superior insight or suitability for judicial appointment. Whenever there is a court case litigated in our courts, if there is a barrister in court for the case, there is a solicitor in court. Solicitors have as great an experience of litigation in courts as do members of the Bar Library. There are some very good advocate solicitors and very good advocate barristers.
However, being an advocate does not, of necessity, mean that one is a good adjudicator or judge. There have been some very good barristers who have not been recognised as being very strong advocates and who have subsequently become excellent judges. I anticipate the same will happen with regard to solicitors. It has been an extraordinary anomaly that, since 1971, solicitors have had the right of audience in the courts at Circuit Court, High Court and Supreme Court level, but have been denied the possibility of being eligible for judicial appointments to those courts.
I welcome the fact that we are taking this step today and that we can do it without being in unnecessary conflict with the Government. I also welcome the fact that the Minister has listened to what was said in the committee and that, as a result of this reform, there will now be a large segment of the legal community, the 84 to 85 per cent of practising lawyers who happen to be solicitors, whose members will ultimately become eligible not only for appointment as judges of the Circuit Court but also, if they are so appointed, to be elevated or promoted to the High Court and Supreme Court.
I also welcome the working party which the Minister is setting up. It is very important that a number of other areas regarding the Judiciary be looked at. For example, when we started to deal with this issue last Tuesday, I addressed the position of the High Court and the Supreme Court. There are other areas within our legal system in which there are barriers as between the different professions and people's entitlement to participate. This may have been of some relevance in the 19th century but it has long ceased to be relevant. In so far as I understand it, the Master of the High Court has to be a barrister and the Taxing Master has to be a solicitor.
There are various other areas that the Minister's working party could look at. We could deal with this whole area in a comprehensive way that allows people to be promoted to judicial offices based on legal excellence and expertise, not on the basis of their simple status as barrister or solicitor. I hope that, as a committee, we can unanimously adopt this measure of reform. It opens a door wide and will effect, in the not too distant future, an important and radical change without our judicial system.
I have expressed the view, both on Second Stage and now on Committee Stage, that I do not believe an individual should be debarred from being a judge of the higher courts by virtue of the fact that he is a solicitor and not a barrister. Such a rule ignores the intellectual ability of the solicitor concerned, his experience, his knowledge, his character, his academic qualifications and his general suitability as a lawyer. I have held the view that we should move in line with international thinking and open up the higher courts to solicitors.
It is true that barristers are the people who for the most part, with very few exceptions, have experience of advocacy in the higher courts. However, I have also expressed the view, and still hold it, that while experience as an advocate is desirable, it should not be regarded as a sine qua non for eligibility. This is not to say I do not believe that experience as an advocate is not of considerable importance. In this respect, the committee held a similar view yesterday, and the day before. We had general agreement, not just from my party but from every party represented here and indeed from everybody who spoke, other than the Minister, who kept her counsel on the matter until now, that the solicitor’s profession should be eligible for appointment to the higher courts.
There was considerable talk here of the democracy of the committee system, that this represented a litmus test of the committee system and that if the committee system was shown to be democratic, effective and representative, the Minister would then take the considered views of committee on board, especially when its views were unanimous. I accept the Minister has come some way down the road in the provision which she is now presenting to the committee. It is only right that a judge of the Circuit Court of four years standing should be qualified for appointment as an ordinary judge of the Supreme Court or the Hight Court, even if the individual concerned is not a barrister.
However, this is only a very small step in the right direction. It does not go the whole way and it will, unquestionably, exclude some very eminent members of the solicitors' profession who will never be Circuit Court judges and who will not, under the terms of the legislation, be appointed to the higher courts.
I recognise the fact that, in general terms, the Judiciary of the higher courts have been most eminent people who can take their place with any judicial system in the world and have proven repeatedly that they are capable of this. It is also true that all of them were eminent members of the Bar and in this context the quality of the Bar itself has to be admired.
I am not a member of the majority on this committee. The Minister has come some way down the road and I welcome her decision that solicitors who have a certain amount of experience as Circuit Court judges can now be appointed to the higher courts. The Minister is taking a minimal step in the right direction.
However, it should be accepted and recognised that if a solicitor who has three or four years experience as a Circuit Court judge can qualify for appointment as a High or Supreme Court judge it cannot then be argued that a solicitor who has ten years experience of advocacy in the High or Supreme Court should not qualify. That would be illogical and the amendment should properly be extended to include those solicitors who have considerable experience of advocacy — albeit a minimal number — in the higher courts. That is a reasonable suggestion. I look forward to the report of the Fair Trade Commission on the matter. It has already expressed the view that solicitors should be appointed to the higher courts and that there is a need for a facility whereby barristers and solicitors can cross over from one profession to the other .
The Fair Trade Commission report dates from 1990. I did not say there was a new one.
I thought the Minister said she was referring it to the Fair Trade Commission.
I am setting up a working group. Perhaps the two quotes ran into each other.
The Minister's move announced today goes a long way towards recognising a parity of esteem between the two legal professions. As has been cogently argued unanimously by the committee and outside the House, it is logically defective to continue to exclude solicitors for consideration no matter how qualified, talented, suitable, able and willing they might be.
Many people talk about the status and the elevation attached to being appointed a judge. It is a huge privilege and it is wrong in justice to deny that privilege to people who are willing to undertake this public service when they are appropriately qualified and have talent that is badly needed. In due course this decision will enrich the pool from which potential judges can be drawn. The Minister has stepped back from radically altering the status quo. The principle of excluding solicitors from being considered for judicial appointments to the higher courts, apart from perhaps on the grounds of advocacy, is still indefensible. This Bill is being debated and scrutinised with indecent haste by a handful of Deputies. This is a radical reform so perhaps it is prudent to accept the Minister’s half acceptance of our proposal. Looking at the slow progress of solicitors up the judicial ladder is a bit like watching the tedious, hesitant and slow progress of women in all walks of life. That is just a measure of how difficult it is to change the status quo.
On balance I accept the Minister's half acceptance of the principle that was unanimously endorsed by this committee. This was a test of the committee system. It challenged the Executive to accept that where a select committee unanimously supports a proposal, that in itself should be compelling grounds for giving way on the principle, if not for taking the matter totally through to fruition, which we would have wished. I welcome the Minister's proposal. It is part of the slow evolution of the committee system but one in which I was glad to participate.
This amendment represents an historic breakthrough. It is a reasonable first step on the road to opening up all judicial appointments to all practising lawyers. Monopolies of their nature are contrary to the common good and the public interest. The judicial appointments system was largely a monopoly. No practising lawyer unless he or she happened to be a barrister could be appointed to the Circuit Court, the High Court or the Supreme Court. As a result of the Bill, all practising lawyers can be appointed to the Circuit Court and with this amendment such appointees can thereafter be promoted to the High Court and the Supreme Court. I have no doubt that within a few years solicitors will have equal status with barristers from the point of view of judicial appointments.
As one would expect, barristers in the Law Library mounted a rather belated campaign in defence of their exclusive privileges. That is understandable; every group tries to defend its own corner as much as possible. However, the next time they do so they might think of engaging a solicitor because in this instance the case was dismissed as having no merits. The principle has been established that solicitors can be appointed to all courts.
The amendment provides for a requirement of four years experience as a judge in the Circuit Court before a solicitor can be appointed to the higher courts. Perhaps that is an indication for the future as to the route that should be followed in all judicial appointments. I put that forward for general consideration. The promotion route should be considered. On the Continent there is a different approach to judicial appointments. In a number of jurisdictions a person opts for the judicial route after law school and they graduate from one court to another on a promotional basis. Perhaps there is something to be said for that system; it is worth examining. The working group to be set up by the Minister might examine the possibility of having a more widely based promotion system in the Judiciary.
I wish to refer to the important principle that has now been established for the committee system. I am of the view that because the Legislature has lost many of its powers while the Executive has gathered more, an appropriate counter balance is the development of the committee system. I was delighted to see the committee system being established and extended in recent years under different Governments. It has now acquired depth, but in order to have a future the system must be effective. This committee has shown that a reasoned debate can have an impact on legislation. The committee is not merely the rubber-stamp of the Executive whereby legislation is forced through, by vote if necessary. The debate in this committee has had an impact and has caused the Minister, as she promised, to rethink the situation, to confront her colleagues in the Cabinet and to come back with an amendment to take on board the views expressed here. In future I would like committees to adopt this approach to a greater degree. This is good for parliamentary democracy and we have created a precedent. This is a good day's work. It is a small step for solicitors but a good step for the country.
As things now stand any Circuit Court judge is eligible for promotion to the High Court or the Supreme Court. When a solicitor becomes a judge of the Circuit Court, he or she would be eligible for promotion anyway.
They must have 12 years' service.
A solicitor with 12 years service may be appointed to the Circuit Court. Any Circuit Court judge may be promoted to the High Court or the Supreme Court. What is the difference between a solicitor who is appointed as a judge and a barrister who is also appointed as one?
Service at the Circuit Court is deemed as practice at the Bar. Barristers with ten years' experience may be appointed to the Circuit Court. If they acquire two years' service in that court, they are deemed to have the 12 years service needed for appointment to the other courts. If I did not table this amendment, a solicitor appointed to the Circuit Court would, after 12 years, be considered to have the necessary 12 years' practice at the Bar for appointment to the High Court or the Supreme Court. The amendment proposes that this period should be four years.
That would never happen in reality.
It would be a long possession.
The net effect of the amendment is that solicitors who are now eligible to be appointed judges of the Circuit Court will have to wait four years rather than 12 to be appointed to the High Court or the Supreme Court.
Yes.
This is the net totality of the step we have taken, which Deputy O'Keeffe described as a historic breakthrough. It is all right to welcome one step if that is all we can take but if we are in a position to travel the whole road, as we were and agreed that we should, it seems illogical on the Deputy's part to settle for so much less. Deputy Shatter spoke eloquently and passionately and the kernel of his case was that the pool should be widened. There are only 900 eligible barristers and 4,500 eligible solicitors. To what extent will the pool be widened? If we included solicitors, as proposed in amendments, including one tabled by Deputy Shatter, we would have widened the pool five-fold. We are now widening it by the totality of solicitors who will be appointed Circuit Court judges and who will serve for four years.
We need more women judges.
That is small consolation. The pool is not being widened much. Nobody could stand over this amendment on the basis that the pool is being widened. The amendments tabled by Deputies O'Donoghue, O'Donnell and Shatter did not propose any quotas but that solicitors should be able to apply for and be appointed to the superior courts. In effect, we are still saying to every practising solicitor, except those who have been a Circuit Court judge for four years, that no matter how able, talented and well educated they are and regardless of the amount and type of experience they have, they are not suitable and eligible to apply and are not fit to be a member of the High Court or the Supreme Court.
We were not looking for quotas. If the Minister had accepted Deputy Shatter's amendment, there would be a filtering system of sorts, the Judicial Appointments Advisory Board would be in place and the Government would have the final say. It is not in the interests of any Government to appoint patently unsuitable people to the Bench. All those who have been appointed as judges of the superior courts since the foundation of the State have served the nation well. No one who was obviously incapable was appointed.
This is a infinitesimal step but one in the right direction. The committee, which represents all but the smallest party in the Dáil, favoured taking the full road. The Minister thought the arguments in favour of this were compelling but we have decided to move only an inch along the road because of the lobbying power of the Bar Council. This is regrettable. While I accept that the Minister's amendment is a step in the right direction. I have not heard any convincing argument against the case put forward by Deputy Shatter and others in favour of allowing practising solicitors to apply and to be eligible for membership of the superior courts on the same basis as barristers.
I have to declare an interest. I may be the only member of the committee who is neither a barrister nor a solicitor.
I am neither.
The non-lawyer lobby.
I do not think anyone disagrees with the general proposition that solicitors should gain entry. The issue is regarding the best way of providing for this. One of our problems is that we are dealing with the matter in haste. The Bill was introduced by the Minister on 15 November and we are told we must complete Committee Stage by 4.45 p.m. The Government wants this Bill passed in a hurry for a reason. As I am not an all-knowing solicitor or barrister, I may not be able to guess the reason but I probably have a fair idea. The two professional societies were at one another's throats because they felt that changes affecting them were being made in a hurry, but this was not the committee's intention.
The Minister is prudent but also progressive. Deputy O'Donoghue signalled that he is prepared to accept that she must be prudent in this situation. However, the problem is that we should not be in this position. The step being taken now is an advance on the Bill and will go some of the way to meet the requirements of solicitors. However, it is a strange way of dealing with the matter. During the discussion the phrase, "the person has suitable experience of practice", was mentioned. The argument about advocacy is too narrow. Some solicitors have considerable experience of practice in the higher courts, therefore it is wrong to exclude such people. They are suitable for consideration. The people mentioned for appointment to the judicial appointments advisory board are mainly barristers and solicitors.
Please do not go back over that ground.
That is the other side of the equation because these people must make decisions on the board. The Constitution ensures that the Government makes the final decision.
I welcome the prudent and progressive step taken by the Minister as regards the working group. Perhaps she could tell us when it will make its report. It should concentrate on the experience of and the practice in the superior courts. That would address the problem raised by Deputy O'Donoghue that the present arrangement, while it is an important advance, will exclude some eminent people who will not have the opportunity to practise in the Circuit Court. That is unfortunate. I regret that the Minister did not have time to table a better amendment in this regard. People in both professions will support an appropriate amendment based on good practice and experience and on appointing good people to these crucial posts. I join with Deputy O'Donoghue in supporting the Minister in this regard.
I appreciate that we have been discussing this for some time and I do not want to delay the meeting. It is regrettable that this matter has been portrayed as a tug-of-war between the solicitors' and the barristers' professions. We want the widest possible pool of experience which will allow us to appoint judges who are level-headed, attuned to reality and who know the law. The pool from which we are currently drawing is too small. The Minister has been more prudent and less progressive than she might have been, but I compliment her for the step she has taken. The fact that she was prepared to consider this matter vindicates the committee system. I hope this will not be the last opportunity to discuss this issue.
The Bill allows solicitors who have ten years' experience to be appointed as Circuit Court judges. The same is true for barristers. The amendment I tabled would have allowed solicitors with 12 years' practising experience to be appointed to the High Court or the Supreme Court. The consequence of the Minister's proposal is that a solicitor with ten years' practising experience can become a Circuit Court judge and once they have had 14 years' experience they can be promoted to the High Court or the Supreme Court. This is a radical change. The only difference between what I and the Minister proposed is that they must have two extra years' practising experience. It is wrong to suggest that is minimalist in the context of that perspective.
This is trying to liken a hurdle at Cheltenham to Beecher's Brook at Aintree. Not only must he jump the hurdle, but he must jump Beecher's Brook after that in order to be appointed to the higher courts.
I ask the Minister——
Not a racing question.
No.
Is this the tote or the bookies?
This question was always a racing certainty. Could the Minister advise the committee of the composition of the proposed working group and if, for example, the chairman of the Competition Authority will be a member of it?
I thank the Members for their contributions. I know how a judge of the superior court must feel when trying to make a judgment on a case. I thank the Members for acknowledging my move on this issue. Sometimes prudence is a good virtue. As a child I remember I did not understand what prudence was, but I was told it was a good thing to have.
When the Minister is in Government.
The Minister learnt that lesson well.
There are strongly held views in this regard. While the views of Members of the committee, who are members of a profession, have been strong, I must act in a prudent way to ensure that I can live with the steps I take — they may not be taken as quickly as Members would wish — and that they are appropriate at the time.
I welcome Deputy Wood's intervention. He was correct when he said that we are pushing this Bill through quickly, but I am anxious to proceed with parts of this legislation, such as tackling the arrears in the courts, as quickly as possible. It is appropriate that we are prudent in this regard.
I have not had time to work out the different elements I would like on the working group which will consider this area. I do not want Uncle Tom Cobley and all on it. We have a working group on courts practices and what is happening in the courts.
I want to focus on a debate which has been going on for 25 years, sometimes with the force of a hurricane and sometimes with the force of a lump of cotton wool. It flows and ebbs; it dies and then it rises again. The people involved have not discussed why one side feels they are excluded or have a monopoly. My steps are radical in order to move the debate forward. I reject any suggestions that I have been led by one side or the other. The debate here has disclosed all-party consensus, but it has also been dominated by people from one profession. It would be the same if, for example, only publicans discussed licensing laws. I want to take a wider view of the issue. I thank the Members for recognising that and I hope I continue to be as constructive as I can at any committee meeting I address.
The acceptance of the amendment is a giant step for mankind. Anyone who is a solicitor should be happy today.
Amendment agreed to.
Sections 28 to 30, inclusive, agreed to.
NEW SECTION.
I move amendment No. 38;
In page 15, before section 31, but in Part VIII, to insert the following new section;
"31.—(1) Where a person (in this section referred to as the accused) has been sent forward for trial to the Circuit Court, the prosecutor or the accused may cause an application grounded on affidavit to be made on his or her behalf to the High Court for the transfer of the trial of the accused to the Central Criminal Court and if the High Court is satisfied that it would be manifestly unjust not to do so, the High Court shall grant the application and the decision to grant the application shall be final and unappealable.
(2) Provision shall be made by rules of court for the giving of notice of intention to make an application under subsection (1) of this section and of the grounds on which such an application should be based.
(3) Where—
(a) two or more accused are sent forward for trial to the Circuit Court and it is proposed to try them together, and
(b) an application by one or more but not all of the accused under subsection (1) of this section be granted.
An application without notice to the accused by the prosecutor to the Judge who granted the application to have the trial of one or more of the remaining accused transferred to the Central Criminal Court shall be granted."
In the current Bill there is what has to be described as a most desirable provision which will attempt to prevent the transfer of trials from regional Circuit Courts to the Dublin Circuit. The Bill provides that the judge of the Circuit Court will, if satisfied that it would be manifestly unjust not to do so, transfer the trial to the Circuit Court sitting within the Dublin Circuit.
Nothing has given rise to greater cause for concern among many people than the slow pace of criminal trials. One of the principal reasons — though certainly not the only reason — is the question of the transfer of trials to the Dublin Circuit Criminal Court in particular.
I was speaking recently to a very senior legal person in Cork area who told me it is several years since there was a criminal trial in the city of Cork. The reasons for that, apparently, is that, first, the accused knows very well that it will take longer if the trial has to go to Dublin and, second, for some reason best known to themselves, they feel they might get a better result there.
The Dublin Circuit Criminal Court then becomes log-jammed and there are considerable delays in hearing trials in Dublin. It is and has been an undesirable practice that criminal trials should be delayed, not just throughout the country, but consequentially also delayed in Dublin.
While this provision is desirable, I am not fully convinced that the intention of the Legislature and the Minister will be met by the provisions of this section. A hard-pressed Circuit Court judge faced with lengthy waiting lists will have a natural tendency, like it or not, to transfer any difficult case out of his or her Circuit to the Dublin Circuit. I realise that the judge must be satisfied under the provisions of this Bill that it would be manifestly unjust not to transfer the case in question, but when is it manifestly unjust?
For example, if the judge feels that he is hard-pressed because of a considerable amount of work there will be a natural human tendency — I am not saying it would be done maliciously or anything like that, far from it — to transfer the case to Dublin. In those circumstances I propose that where a person has been sent for trial to the Circuit Court, the prosecutor or the accused might cause an application grounded on an affidavit to be made on his or her behalf to the High Court for the transfer of the trial of the accused to the Central Criminal Court. If the High Court was satisfied that it would be manifestly unjust not to do that, the High Court would then grant the application. The decision to grant the application would be final and unappealable. This provision would, without doubt, improve the present lengthy delays in criminal trials in the circuit courts.
Perhaps I could speed things up a little. I also received a submission about this particular element. It seems to have merit but in the time available I am concerned to make sure we are not creating another system with another tier of delay. The section will prevent people transferring willy-nilly from Cork. I am in the process of preparing a Criminal Law Bill and I have given a commitment to the people who sent me this submission that I will look at this section because there may well be merit in it. I do not think it is appropriate to delay this passing.
I have taken steps to prevent the kind of transfers the Deputy is talking about because they have gummed up the works in Munster. I think that will work, but I am not saying that the other suggestion might not be taken on board in the next legislation early in the New Year.
It will not be taken on board on Report Stage?
No, because it has been put to me there are dangers. It might mean that it can also be used in the same way as they use transfers to the Circuit. A case might be transferred to the High Court where one has to make an application and there is another delay. Then if the High Court says no, it goes back to take its place on the Circuit Court list and we are back to square one. We have actually delayed it even longer. So I would like to leave it.
Amendment, by leave, withdrawn.
Question proposed: "That section 31 stand part of the Bill."
I am delighted with this section. The transfer of trials from Cork to Dublin over the last number of years has been a standing joke among criminals in the Cork area and this section plugs the gap. I have one minor reservation, as a lawyer rather than as a politician, that the question of the application being decided and the decision to grant or refuse the application shall be final and unappealable. Is it constitutionally proper to provide in statute that the decision of any court is unappealable?
It is the same provision in the 1981 Act which we are transferring into this.
Maybe someday somebody will bring a case before the High Court about its constitionality. I raise the question though I am not blaming the Minister if she is following precedent. Providing in statute that any decision of a court is unappealable strikes me as contrary to the spirit, if not the letter, of the Constitution. I merely make the point in passing.
I take it that Members realise that Presidents of the District Court were not allowed to be ex officiojudges of the Circuit Court because they were solicitors. Now, however, with the qualification, nearly always, of solicitors into the Circuit Court it is appropriate that we tidy that up and make them ex officio.
Question put and agreed to.
Section 32 agreed to.