I move: "That the Bill be now read a Second Time".
The Bill contains a number of wideranging and significant reforms of the legal system, which is a central part of our democratic society. The operation of the entire legal system impacts, often profoundly, on the lives of our citizens. Key elements of that system — the courts and judicial structures — have served this country very well. However, modern demands and pressures on the system have pointed up the need to reshape the courts structure and to change our approach to some aspects of the judicial system.
The reforms that I am introducing in this Bill cover three broad areas of the legal system: the courts, the Judiciary and legal costs. In the courts area the first of two major provisions represents something of an innovation in the development of our courts structure. A new Court of Appeal with both criminal and civil jurisdiction is to be established. This meets the commitment in the Programme for Government to ease the workload of the Supreme Court and improve access to it.
The background to this is the substantial increase in appeals to the Supreme Court in recent years and the inevitable delay in hearing those appeals which has resulted. Appeals against High Court decisions in personal injuries actions account for much of this increase and are often subject to most delay because of the urgent nature of other types of appeals, for example, in constitutional cases. Delays of this nature may result in a considerable injustice on litigants and I am anxious to avoid unnecessary delays in hearing cases.
I am satisfied that the new court, staffed by three full-time judges with jurisdiction to hear appeals against High Court decisions in personal injuries actions and in certain other matters is the right response to the appeals backlog. It will allow the Supreme Court to concentrate to a greater extent on constitutional matters and appeals on other important questions of law, which is more in keeping with its status as a court of final appeal as provided in the Constitution. The new court will also incorporate the existing jurisdiction of the Court of Criminal Appeal. I will come back to the structure and functions of the new court later in my speech.
The second major development in the courts area relates to the Judicial Commission. In the Programme for a Partnership Government we included an undertaking to establish a Judicial Commission. The Courts and Court Officers Bill has given me the opportunity to make provision for setting up a Judicial Commission. Section 29 will empower the Minister for Justice to set up such a commission to be known as the Courts Commission. The commission, in accordance with this section, will be established, on a statutory basis. It will become a permanent feature on the landscape in so far as the administration of justice through the courts system is concerned.
The purpose of the commission will be to advise the Minister and the Government on the organisation and management of the courts and courts service and on such other matters which, in the opinion of the Minister or the Commission, have a bearing on the capacity of the courts to discharge their functions.
The administration of our justice system has undergone rapid change in the last 30 or so years. As a result more people are now using the courts. We have more judges, courts staff, solicitors and barristers than at any other time.
Regrettably, many aspects of our courts system have not kept pace with these changes and, consequently, many of those people who have had to use or work in our courts have not, for one reason or another, been able to do so in ideal conditions. Some court users may have had difficulty in gaining access to the courts; others may have experienced unfriendliness in the courts; others may have found the condition of the courthouse accommodation totally unacceptable, while others may have found recourse to the courts grossly expensive.
Major reform of the law governing the organisation and structure of the courts is long overdue. While the proposed Bill is a big step in the direction of major reform, there is also a need for an overall review of the existing system. I consider that the establishment of the proposed Courts Commission is the best way to achieve this.
To be effective, the commission must have an input not only from judges at senior level and from lawyers but also from non-lawyers who have expertise in other relevant fields. I am thinking of people with experience and expertise in the world of business, management, administration, finance, people with knowledge of consumer requirements and so on. While it would not be possible to create, at one stroke, a commission which would represent all the interests that we might consider desirable — if the commission is too large it will not function effectively — I will be looking to the kind of interests and expertise I have just mentioned when it comes to the initial appointments. I say "initial appointments" because, in general, it would be desirable to allow up for change in commission membership from time to time so that different kinds of expertise can be brought in as and when required. I will make an announcement in the near future concerning terms of reference and membership of the commission.
There is, as I said before, a need for an overall review of the existing system which would examine current practices and procedures, find ways to maximise the use of our resources and devise an overall strategy and approach to achieve a modern and efficient system for the administration of justice. I consider that the proposed Courts Commission should be given the task of advising me and the Government as to how these objectives might be met and that the commission should reflect the views of the various people who work in the courts or who have recourse to the courts on a regular basis.
In this regard, the question of establishing a permanent independent courts service operating outside the aegis of the Department of Justice is one issue which the commission will be asked to address. I and my Department would welcome consideration of this issue by the commission.
In addressing the question of establishing a permanent independent courts service, the commission will have to have regard to whether such an institutional change in the arrangements of our courts system would best serve all users of the courts effectively, efficiently and inexpensively. The Government and I look forward to its views on this and other important areas of the courts administration.
I now come to the second broad area of reform. This relates to the Judiciary. Part III provides for setting up a Judicial Appointments Advisory Board. Firstly let me say that certain basic principles underlying the procedure for the appointment of judges cannot be affected, for constitutional reasons, by the new arrangements to be put in place. The Government will continue to decide the names of persons to be forwarded to the President for judicial appointment in accordance with Article 35.1 of Bunreacht na hÉireann. As a Parliament, however, we can move towards introducing new and more transparent procedures leading up to the appointment of a person to fill a judicial office.
We should acknowledge that the present system for selecting persons for appointment to judicial office has served us well. As a people we have been fortunate to have a Judiciary which is respected for its integrity, fairness and independence. These facts, however, do not mean that the system for appointing judges is immune from criticism of the manner in which it operates. It may be inevitable that the system is open to criticism as it is a procedure reserved thus far exclusively to the Government, without any clear accompanying statutory or other guidelines as to how the system should operate.
It will be the task of the Judicial Appointments Advisory Board, which will consist of senior members of the Judiciary, the Chairman of the Bar Council and the President of the Law Society, to advise me and the Government, through its committees, of the names of persons suitable for appointment as judges. I might add that I have no fixed view about the precise makeup of the board, and I would be interested to hear the views of Deputies in this regard.
While the advice of the Advisory Board will not and cannot be binding on the Government, because of the provisions of the Constitution, nevertheless it is expressly provided in the Bill that the Government shall first have regard to the names submitted in advising the President on the appointment of a judge. That is a significant direction to Government and highlights the pivotal role that I expect the new board and its committees to play. No Government could lightly ignore a recommendation made to it by a committee of the board.
The board's remit will not extend to appointments to the offices of the Chief Justice or Presidents of the other courts. This exception is desirable because the Government, in considering appointments to these top judicial offices will want, among other things, to ensure continuity and consistency in the running and operation of various courts. That is why I have provided in the Bill that the Government would have to first have regard to the suitability of serving judges when appointing persons to fill these offices.
The next major change that I want to refer to affecting the Judiciary is the lowering of the retirement age of judges. This will only affect judges newly appointed after the enactment of the Bill. Therefore, the retirement age for serving judges remains at 72 years in the High and Supreme Court, 70 years in the Circuit Court and 65 in the District Court with provision for annual extensions up to age 70 for District Court judges. It would, of course, be completely unacceptable, and not just for legal reasons, to interfere with the terms of service of existing judges.
However, for some time, I have been considering why the retirement ages of the Judiciary should be any different from the position that applies generally across the public and private sectors. One effect of the higher retirement ages for the Judiciary is that the age profile of the Judiciary as a whole tends to be high. Obviously the appointment of younger judges would result in a younger age profile among our judges in the short term but ultimately could be guaranteed only by aligning the retirement age of judges more closely with the "norm" of 65 years.
However, it has been represented to me that senior judges in all courts would have valuable experience and insights that should not be lost through too restrictive an approach to this issue. Therefore, I am considering whether the proposed retirement age should be set at a higher level than 65 years as provided at present in the Bill. I look forward to hearing the views of Deputies on this matter.
Another key provision of this Bill in regard to the Judiciary is contained in section 39. The effect of this provision is to make solicitors of ten years standing eligible for appointment as Circuit Court judges. At present solicitors are eligible only for appointment as judges of the District Court. I see no good reason a practising solicitor of ten years standing should not be eligible for appointment at least as a Circuit Court judge. It has been suggested that solicitors lack experience of advocacy and experience in the conduct of cases in that court but many solicitors possess highly relevant and desirable qualifications based on their experience as practitioners.
The Fair Trade Commission in its report on the legal profession published in 1990 said: "It is arguable that the adversarial system of justice requires that judges should preferably be recruited from the ranks of experienced advocates". It found that experience of court practice and procedure as well as of the law is probably more important than advocacy skills. We should take a wider view of what makes a lawyer eligible, in terms of qualifications, for judicial appointment. Experience of advocacy may be an important factor in determining whether a person is suitable for appointment as a judge, but I question whether it should be the primary factor taken into account.
The legal system itself will be the clear winner as a result of this provision because it will increase the pool of potential candidates for appointments to the Circuit Court. There is the prospect of a spin-off benefit too. The appearance of solicitor-judges on the Circuit Court bench is likely to encourage the solicitors' profession to exercise its rights of audience in the Circuit Court. Apparently it has been reluctant to do this up to now although there are a few notable exceptions.
The Fair Trade Commission believed that the presence of former solicitors as judges would encourage more solicitors to engage in advocacy, since they may well be inhibited from exercising their rights of audience at present because judges in the Circuit Court and higher courts are former barristers. The Fair Trade Commission also stated that more use by solicitors of their rights of audience would give the public more choice and could reduce legal costs.
On a separate issue in relation to judicial appointments, I formed the view some time ago that it was anomalous that service by judges on European Courts counted for nothing in terms of eligibility for appointment to our superior courts. Therefore, I have included in section 20 of the Bill a provision whereby service as a judge of the European Court of Justice or the European Court of First Instance shall be reckonable for the purpose of qualifying for appointment as a judge of the superior courts. The basic eligibility requirement for appointment to the High and Supreme Courts under the Courts (Supplemental Provisions) Act, 1961, is 12 years practice at the Bar. The device used in the Bill to take account of service in these European Courts is that such service will be deemed to be practice at the Bar.
I now come to the issue of court dress. I expect that many Deputies will give a wholehearted welcome to my initiative on banning the wearing of wigs by barristers in court.