Dáil Éireann díospóireacht -
Friday, 11 Jul 2014

Vol. 848 No. 2

Court of Appeal Bill 2014: Second Stage

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I move: "That the Bill be now read a Second Time."

Deputies will recall that the programme for Government indicated that the necessary steps to create a permanent court of appeal would be taken during the lifetime of the Government. On foot of that commitment, a referendum was held on 4 October 2013 and the proposal to establish a court of appeal was agreed to by the people. During the course of the referendum campaign, it was made clear that, if the proposal were agreed, the Government would move very quickly to enact the implementation legislation for the new court.

Section 5 of the Bill provides that the Government shall appoint a day to be the establishment day for the purposes of the Act, and I envisage that the court will be operational by autumn 2014, which is the start of the new legal term.

Given the technical nature of the general scheme of the Bill, it was not considered suitable for pre-legislative scrutiny. However, the scheme was made available to the Joint Committee on Justice, Defence and Equality so as to facilitate that committee in providing any views it deemed appropriate.

Under our Constitution, the judicial power is one of the three fundamental pillars upon which the institutions of our State rest. Our courts have a pivotal role in this society. This derives from the fact that the establishment and maintenance of an independent courts system is a critical element in upholding the regime of checks and balances, which is a fundamental attribute of the doctrine of the separation of powers. That separation of powers protects citizens against the potential abuse of public power, and also promotes the smooth and efficient functioning of the State. In this context, the courts have a particularly significant responsibility in terms of interpreting and applying the law to disputes between individuals and the State in addition to disputes that are wholly private in nature. They provide the ultimate forum in which such disputes can be resolved.

A properly functioning courts system provides certainty for the parties in individual cases and, where appropriate, offers a public explanation of the law to those who are not involved in the case in question. It helps to provide a legal framework within which individuals and businesses can arrange their affairs with a degree of confidence and security.

In the commercial sphere, in particular, legal certainty is essential and helps to underpin the confidence commercial entities must have that they are acting in a lawful manner and that their actions will not attract unwarranted legal criticism or challenge. Legal certainty simplifies the commercial decision-making process and allows for the clear and considered assessment of the advantages or disadvantages of a proposed course of action. The relative relevance of security against abuse of power, speedy and efficient dispute resolution and legal certainty varies from case to case, but it cannot be denied that in all scenarios a properly resourced and efficiently running courts system is essential.

The case for the establishment of a court of appeal has been well documented. The previous Government established a working group on a court of appeal in 2006. The group which published its report in August 2009 was chaired by the current Chief Justice, Ms Susan Denham, and comprised members of the Judiciary, representatives of the Bar Council of Ireland and the Law Society of Ireland and senior officials from the Attorney General's office, the Department of the Taoiseach and my Department. The report included a comprehensive analysis of the situation then prevailing in the Supreme Court, both in terms of the cases coming before that court and the length of time it took for such cases to be brought to a conclusion. It also reviewed the position in other common law countries where the existence of an intermediate court of appeal was the norm and set out a path towards possible reform.

An Ceann Comhairle

Will Members, please, leave the Chamber if they are not prepared to engage in the debate? I do not know what all of the anticipation is about, but we are getting on with the business that was ordered yesterday. I ask Members to stop talking and give the Minister their attention.

Deputy Frances Fitzgerald

The reform proposals were favoured by those who engaged in the consultation process on the issue. They will also ensure the Supreme Court will only hear cases that merit its attention and make certain that there is coherence to the courts architecture, which is not the case currently.

It is worth recalling that there has been continuing growth in High Court litigation, which has seen the number of High Court judges increase from seven in 1961 to 36 today. By contrast, in the same period the increase in the number of Supreme Court judges has been from five to ten, following the appointment of two additional Supreme Court judges in October 2013. This has enabled the Supreme Court to sit in two panels on a continuing basis which has certainly assisted in the rate of disposal of cases. However, the backlog that has accumulated in the Supreme Court in the past few years requires a more fundamental reform to bring about a more efficient appeals system.

There is no point in having a situation where gains in High Court efficiency are being lost at appeal stage because there is only one court to which an appeal may lie. The absence of a court of appeal has led to a huge volume of cases being referred to the Supreme Court, compared to the situation in other similar common law jurisdictions. In consequence, a considerable proportion of Supreme Court time is being spent in correcting errors of law, rather than in developing the law in a reasoned fashion. As the volume, duration and complexity of appeals continue to grow, the Supreme Court's case load is becoming increasingly unsustainable. Cases are taking longer to hear, with the average waiting time for cases to be heard currently at 48 months. That means that, in the absence of a court of appeal, somebody lodging an appeal with the Supreme Court today might not have his or her case decided before 2018. Even cases with a priority listing are taking up to 12 months to come to hearing.

Litigants have a right to a fair and speedy trial. As well as being a matter of natural justice, this right is recognised in Article 6 of the European Convention on Human Rights. It will be recalled that Ireland has already had to pay compensation to individuals who have successfully taken cases to the European Court of Human Rights in respect of delay. Apart from the impact on individual litigants, the delays being experienced have economic consequences which might influence external investment decisions and act as a barrier to growth. They also have implications for our ability to honour international obligations which may give rise to reputational damage and financial penalties. Today's international business world works best where the law is clear, where the judiciary is independent and where those who find themselves either asserting their rights or defending their actions before the courts can expect to have a final determination without undue delay. If all other things are equal, international investors will favour a country with an efficient and effective legal system which is capable of dealing with the administration of justice in a reasonable timescale over a country without such a system.

Before discussing the Bill before the House, I pay tribute to my predecessor as Minister for Justice and Equality, Deputy Alan Shatter, who did a great deal of valuable work in steering both the constitutional referendum and this Bill to the point we have reached.

The establishment of the court of appeal requires the enactment of an implementation Bill which will provide for the establishment of the court, the appointment of judges, their remuneration and a number of other issues. The Court of Appeal Bill is technical in nature and contains a large number of provisions aimed at amending existing legislation in order to accommodate the new court within the architecture of the existing courts structure. Given that policy in this area was essentially fixed by last year's referendum, the Bill does not give rise to significant policy issues. However, it addresses important legal considerations as to how best to reflect the constitutional provisions which relate to the new court and regulate the relationship between it and the Supreme Court.

In the normal course, it would be usual to go through the Bill on a section by section basis, explaining each section. In this instance, however, and given the nature of the Bill, I propose to focus, first, on a specific number of topics, after which I will deal with other stand-alone issues.

Section 6 provides for the establishment of a court of appeal in accordance with the terms of Article 34A of the Constitution and the appointment to that court of a president and nine ordinary judges. Section 13 sets out the remuneration of the president and ordinary judges of the court of appeal. In this regard, following consultation with my colleague, the Minister for Public Expenditure and Reform, it has been agreed that the president of the court of appeal shall be paid €200,000 per annum and that the salary of an ordinary judge of that court shall be €177,803 per annum. These figures have regard to the revised rates of judicial pay set by the Department of Public Expenditure and Reform in June 2013, following the enactment of the Financial Emergency Measures in the Public Interest Bill 2013 and the reductions applied by virtue of that Act to judges' pay on foot of the twenty-ninth amendment to the Constitution concerning judicial remuneration which was approved in 2011. The rates of remuneration envisaged also have regard to the rates paid to the Chief Justice and ordinary judges of the Supreme Court and the President of the High Court and ordinary judges of that court.

With regard to pensions, the legislation recognises the fact that for any serving judge who may be appointed to the court of appeal and was appointed to judicial office prior to 1 January 2013, it will be necessary to maintain the existing pension provisions which are complex and spread over a number of Acts. This is provided for in sections 14 to 16, inclusive. For serving judges appointed on or after 1 January 2013 or appointees who are not serving judges, the single public service pension scheme will apply and no special provision is required in the Bill in respect of such persons.

Section 17 provides that, in the main, the age of retirement of a judge of the Court of Appeal shall be 70 years. This section also specifies that, as an exception to the general rule, a judge of the Court of Appeal who is already a judge of another court and who is entitled to retire at the age of 72, shall continue to be entitled to retire at that age.

In relation to the appointment of judges to the Court of Appeal, Deputies will recall that the Government has announced Mr. Justice Seán Ryan as president-designate of that court. The tenure of a President of the Court of Appeal will be for a period of seven years, as is the case with other presiding judges.

Sections 10 and 11 make the necessary amendments to provide that the Judicial Appointments Advisory Board, JAAB, will have a role as regards the appointment of ordinary judges of the Court of Appeal, except of course in relation to serving judges who do not go through the JAAB process.

On a more general note, Deputies will be aware that a major review of the judicial appointments process is under way to ensure that it reflects current best practice, is open, transparent and accountable and promotes diversity while also protecting the independence of the Judiciary.

My Department is currently examining submissions which have been received and I am most anxious that if reforms are to be made they derive from a considered consultative process, including public debate.

To give Deputies a flavour of the submissions, the most significant theme emerging is the need to make the Judicial Appointments Advisory Board more central to the process and, by the same token, to make the process less political. I envisage that I will be in a position to bring proposals for reform to the Government later this year.

Following the current practice, provision is made in section 6 for the Chief Justice and President of the High Court to be ex officio additional judges of the Court of Appeal. That section also provides that the President of the Court of Appeal shall be ex officio an additional judge of the other superior courts.

Furthermore, ordinary judges of the Supreme Court or the High Court may sit as additional judges of the Court of Appeal when, because of illness or for other reasons, there are insufficient judges available to transact the business of the Court of Appeal. In this regard, analogous provisions are to be found in section 31 with regard to the High Court, and section 42 which concerns the Supreme Court.

Section 8 of the Bill sets out the jurisdiction of the Court of Appeal which, of course, flows directly from the Constitution itself. The Courts (Supplemental Provisions) Act is amended by the insertion of a new section 7A which provides that the Court of Appeal shall be a superior court of record. In broad terms, the Court of Appeal will have the jurisdiction which, immediately before the establishment day, was vested in or capable of being exercised by, the Supreme Court, the Court of Criminal Appeal and the Courts-Martial Appeal Court.

The Court of Appeal may sit in divisions of three judges, which divisions may sit simultaneously. The section also provides that interlocutory applications may be heard either by the President of the Court of Appeal sitting alone, or by another judge sitting alone who has been nominated for that purpose.

There are certain provisions towards the end of the Bill which also have a jurisdictional import. Section 68 deals by way of general amendment with the numerous references which at present exist in a variety of enactments in relation to appeals to the Supreme Court, including proceedings by way of cases stated to that court. For ease of reference, Schedule 2 deals with those Acts where consequential textual amendments are required.

Section 69 contains a provision in respect of decisions of the High Court in respect of which further appeal is possible in certain circumstances. This provision, which is general in nature, is to the effect that where there is a limitation in legislation on an appeal from the High Court to the Supreme Court, the limitation shall be read as being without prejudice to the provisions of Article 34.5.4o of the Constitution to the effect that the Supreme Court shall have appellate jurisdiction from decisions of the High Court in exceptional circumstances.

A similar provision in respect of decisions of the High Court which are final and not subject to further appeal is to be found in section 70. A further related provision is set out in section 9 of the Bill which amends the Courts (Supplemental Provisions) Act 1961 by inserting a new section 7B. That section 7B provides that the Court of Appeal may, in certain circumstances, stay proceedings before it in respect of an appeal from a decision of the High Court. The purpose of this would be to enable the applicant to apply to the Supreme Court for leave to appeal the decision of the High Court under Article 34.5.4o of the Constitution.

An issue which obviously arises on the establishment of the Court of Appeal is how to deal with appeals to the Supreme Court which have not yet been heard at the time the new court is established. Essentially what is envisaged is that the Chief Justice may, if satisfied that it is in the interests of the administration of justice and the efficient determination of appeals to do so, and with the concurrence of the other judges of the Supreme Court, give a direction that appeals falling within a certain class of appeal, which are pending before the Supreme Court shall be heard and determined by the Court of Appeal.

On application by any of the parties to an appeal, the Supreme Court may, if it is satisfied that it is just to do so, cancel or vary the effect of that direction in so far as it relates to that appeal. Specific provision is not made in this Bill, given the detailed arrangements which are set out in the Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013.

As a consequence of the establishment of the Court of Appeal, both the Court of Criminal Appeal and the Courts-Martial Appeal Court will be abolished. Section 8 amends the Courts Supplemental (Provisions Act) 1961 to provide that, subject to the transitional provisions to which I shall return shortly, the jurisdiction of the Court of Criminal Appeal and the Courts-Martial Appeal Court shall be vested in the Court of Appeal.

Section 67 repeals a number of relevant provisions which touch upon those courts, while section 72 puts in place transitional arrangements for cases which are in being before those courts on the day of the establishment of the Court of Appeal. Essentially, what is envisaged here is that where an appeal to either the Court of Criminal Appeal or the Courts-Martial Appeal Court has been initiated and heard, either in full or in part by either of those courts, that those courts will retain their appellate jurisdiction in relation to the case in question.

The establishment of the Court of Appeal requires certain adaptations in both the civil and criminal legal aid regime and these are to be found in sections 44 and 51, respectively. Associated provisions which have a bearing on the courts-martial appeal legal aid regime are to be found in sections 47 and 48 of this Bill.

Deputies will be aware that the Court of Criminal Appeal currently sits on an ad hoc basis, relying on a combination of Supreme Court and High Court judges. Approximately 570 cases are currently lodged before that court. While section 18 provides that it shall be the function of the President of the Court of Appeal to arrange the distribution and allocation of the business of the court, and to arrange the divisions which are referred to in section 8, I anticipate that the Court of Appeal will have a dedicated criminal panel, at least in the initial stages, until such time as the current backlog of cases before the Court of Criminal Appeal has been addressed.

Section 8 provides for a single judgment rule in criminal appeal cases heard by the Court of Appeal, as is the practice in both the Court of Criminal Appeal and the Special Criminal Court at the moment.

It is not every day that we move to establish a new court and, in recognition of the fact that some issues in the future may require attention, section 3 gives a broad power to make regulations to deal with unanticipated difficulties which might arise in bringing provisions of the Act or of specified articles of the Constitution into operation. The provision applies for a two-year period and, if any regulations need to be made under the section, they will be subject to an approval resolution by each House of the Oireachtas. While a provision of this nature is not commonplace it is not without precedent and a similar provision can, for instance, be found in the Local Government Reform Act 2014.

Deputies may also be interested in matters concerning where the new Court of Appeal will sit. Appeals in civil matters will be heard by the court sitting in the Four Courts campus, while sittings relating to criminal matters will be heard in the Criminal Courts of Justice.

The Office of the Registrar of the Court of Appeal and its staff will be located in Áras Uí Dhálaigh, which is part of the Four Courts complex. The creation of the Court of Appeal provides an opportunity for the courts and the Courts Service to explore new ways of doing business. In particular, it presents an opportunity for reform of some of the practices and procedures which are currently in place in the Supreme Court and the putting in place of appropriate case management structures in both the Supreme Court and the Court of Appeal. I want to place on record my own and the Government's appreciation of the leadership provided by Chief Justice Denham both in respect of this project and in her management of the Supreme Court list.

While case management in the Supreme Court is currently conducted on a non-statutory basis, I consider it appropriate that statutory backing be provided to underpin the reforms which I know the Judiciary is keen to embark upon. Therefore, I will move an amendment on Committee Stage which will provide that the Chief Justice and the President of the Court of Appeal, as appropriate, may issue practice directions in respect of appeals or applications made to those courts. It is envisaged that such practice directions may relate to both civil and criminal proceedings.

Turning now to some of the other provisions of the Bill, the precedence of the judges of the new court vis-a-vis the judges of the existing courts is set out in section 27. Section 19 concerns the President or ordinary judge of the Court of Appeal travelling with, and sitting as part of, the High Court on circuit. Section 20 provides for the making of rules of court in respect of the Court of Appeal while sections 23 and 24 provide for the establishment of the Office of Registrar of the Court of Appeal, the appointment of the Registrar of that Court and the appointment of deputies for the Registrar of the Court of Appeal. The provisions relating to that office mirror those which apply to the Supreme Court.

Part 3 of the Bill contains amendments to a range of Acts to take account of the establishment of the Court of Appeal. For example, section 39 amends the Seanad Electoral (Panel Members) Act 1947 to allow a judge of the Court of Appeal to be chairman of the appeal board which hears appeals from decisions of the Seanad returning officer under that Act. A further example relates to section 49, which amends the Ethics in Public Office Act 1995 to allow a judge or former judge of the Court of Appeal to be appointed chairperson of the Standards in Public Office Commission. Provision is also made to put in place the arrangements necessary should a chairperson of the commission who is a judge of the Court of Appeal be temporarily unable to act and for the continuation in office as chairperson of a person who ceases to be a judge of the Court of Appeal and who is not appointed to another judicial office.

In conclusion, the Bill provides for the establishment of the Court of Appeal in accordance with the terms of Article 34A of the Constitution. Furthermore, important legal considerations as to how best to reflect the constitutional provisions which relate to the new court and which regulate the relationship between it and the Supreme Court are set out in the Bill. I am of the view that a modern and complex society such as our own which has undergone, and indeed continues to undergo, rapid change places many demands on our legal structures and it is right that those structures should be examined and, if necessary, reformed to reflect the changing face of society. In this instance the establishment of the Court of Appeal will address many of the challenges and demands which face our court system and should result in a more positive experience than heretofore for all those who interact with it. I look forward to hearing the views of Deputies on the proposals contained in this Bill and I commend this Bill to the House.

Deputy Niall Collins

I reaffirm the support of Fianna Fáil for this Bill. We welcome the Bill as the implementation Bill facilitating the establishment of a new court of appeal for Ireland. The people of Ireland endorsed the creation of a court of appeal in the referendum in October 2013. It is our wish and that of Members in this House and the people of Ireland that the creation of a new court of appeal will alleviate the extremely heavy workload placed on the Supreme Court and the significant delays encountered there. The current estimated time of reaching the Supreme Court on appeal is approximately four and a half years. This waiting time is simply unacceptable and certainly undermines the ability of citizens to access justice in a manner we would see as fitting in a 21st-century republic.

The creation of a court of appeal was advocated by Fianna Fáil in its 2011 election manifesto and the original report on this matter was commissioned when my party was previously in government. That report sought to establish a new court that would eliminate undue delays in processing appeals, create an appeals structure that would be cost-effective and enhance the administration of justice in the superior courts. I believe the structures of the Court of Appeal as outlined in this legislation will address these issues in a comprehensive manner. We have previously discussed Chief Justice Denham's warning with regard to the delays currently being experienced in our legal system. We all agree that the failure to address the problem of delays in Ireland's appeal court system could damage our society and the economy. The serious delays of up to four and half years in the Supreme Court are having a negative impact on our economy and Ireland's international reputation as a place to do business.

Our original legal infrastructure was established in the 1937 Constitution and confirmed in the Courts Act 1961. Much has changed in that time. The massive increase in litigation and population since then has generated significant challenges for our legal system's structure. Our population saw an increase of almost 2 million people between 1961 and 2011. The nature of modern litigation has resulted in an increased number of cases being brought before the courts which are often more complex as a result of increased legislative provisions. Our courts have had to adjust to the massive increase in legislative regulations and directives from the EU which have had a major impact on every aspect of our lives and our countries. Yet the constitutional constraints placed upon the Supreme Court led to it remaining stationary in the face of the pressing need to adapt to new demands.

The number of High Court judges has expanded from seven to 36 while the number in the Supreme Court has expanded from five to only 11 in the same period, creating a major gulf in capacity. While progress had been made in the establishment of a commercial court to fast track disputes, appeals from this court were still subject to the same delays before the Supreme Court. It is important to say, however, that the Judiciary and the Courts Service must be commended in many ways on how they have handled the increasing number and complexity of cases which have come before them with the limited resources they have. This Bill should assist the Courts Service and Judiciary in delivering a better service to all our citizens.

Unlike the Supreme Courts in the US or the UK, which hear fewer than 100 cases a year, the Irish Supreme Court cannot filter out all but cases of exceptional constitutional and public importance, resulting in a waiting list of up to four and a half years. The onerous delays in Supreme Court judgments jeopardises Ireland's international obligations. As previously referenced in this House, under the European Convention on Human Rights, member states are obliged to ensure that excessive delay does not occur in domestic proceedings within their courts. Ireland is also a signatory to a Council of Europe protocol which states that everyone convicted of a criminal offence has the right to have his or her conviction or sentence reviewed.

The Chief Justice, Mrs. Justice Denham, has said that the situation in the Supreme Court was "unsustainable, untenable and it cannot be defended". Appeals lodged today may not be heard until 2018. A speedy resolution of disputes is important in any successful economy where the rule of law applies fairly, ensuring swift access to justice for all. Hopefully, this legislation will go some way in rectifying that. I hope the Minister has remained in regular contact with the Chief Justice to ensure that once the court of appeal is established there will be a smooth transition from the previous legal architecture to the new structures. The resources, staff and judges must be in place to ensure a smooth transition happens.

It has been stated that initial capital costs to establish the court of appeal are estimated to be €2 million, with ongoing annual costs of between €2.5 million and €3 million. The Minister might outline to the House when she believes the first cases will begin to be heard by the court.

It is important in a 21st century republic that the justice system not only deals with cases effectively, but, above all, is accessible to all citizens who seek to utilise it, regardless of means. The high cost of legal services continues to pose problems for the country. Legal costs are still prohibiting people from accessing justice through our courts. The European Commission has raised concerns about these costs restricting economic growth, especially for SMEs. The cost of legal services remains 12.1% above 2006 levels, according to the Commission. This contrasts markedly with the post-crisis development of other services.

I remain unconvinced that the Legal Services Regulation Bill 2011 in its current form will result in dramatically reduced costs in the legal sector. The Minister might consider carrying out an impact assessment on the legislation on costs in that sector 12 months after its passage to see how effective the legislation has been.

Fianna Fáil will vote in favour of this necessary reform of the court structure in Ireland and hopes to offer constructive amendments as the Bill passes through the Oireachtas.

Deputy Pádraig Mac Lochlainn

A referendum was required to make the necessary constitutional provision for the establishment of the Court of Appeal. The referendum took place on 4 October 2013 and it was carried by 65% of the people. The new court will hear appeals from the High Court and the Supreme Court, cases on appeal from the Court of Appeal and, in exceptional circumstances, from the High Court. This reform will bring about a major change in the courts system and ease the four year backlog of cases at the Supreme Court, which will in future take only appeals on constitutional issues or cases of major importance. Currently, important cases of a constitutional nature must wait for three and four years to be heard. This should not be the case; it is simply not acceptable. I welcome that this legislation seeks to resolve this important challenge.

I refer to the issue of judicial appointments, which is linked to these changes. I launched the Reform of Judicial Appointments Procedures Bill 2013 early this year and it was debated in this Chamber. I launched it in the hope that it would put an end to the system of political appointees being made judges. Our Bill would amend the way in which the JAAB operates to increase transparency and accountability in judicial appointments, which is badly needed. Confidence in the justice system is contingent on a Judiciary that is free from political appointment or bias. It is essential that there be an independent and impartial Judiciary, which is representative of the community it serves. Future judicial appointments should be drawn from a wider pool of qualified candidates, which, in turn, would enhance confidence in the justice system.

For too long we have all been aware of stories the length and breadth of the State of judges being appointed with a wink and nod after demonstrating their loyalty to whichever major party was in government at the time. The days of the old boys and girls club that dominates the legal and political spheres in Ireland must come to an end. Such an approach has failed our people. The sheer number of politically affiliated judges adds to an embedded public perception of the Judiciary, which is that it is an elite to whom the law of the land does not apply equally. I appreciate the Minister has put in place the review process. The reform group is led by one of the most respected members of the Judiciary, the Chief Justice, Ms Susan Denham. She said shortlists lead to the perception of politically influenced appointments and such a perception undermines the Judiciary. That is important coming from somebody of her standing and character. Even if our Bill, which is almost identical to the proposition put forward by the Chief Justice, is not taken, her proposition must be.

We are calling for the establishment of a fair and accountable appointment and removal process for the Judiciary, which involves meaningful lay participation representative of the public interest. Sinn Féin believes that judicial independence is undermined by the current appointment process. The JAAB was established in the wake of the controversial appointment of Harry Whelehan as President of the High Court in 1994 and was meant to have removed sole discretion for judicial appointments from Government. However, there is still political involvement in the appointment of the Judiciary, as the JAAB merely provides a list of seven qualified candidates to the Government, which then makes the appointments of judicial office holders. The appointment procedures should be transparent to enhance public confidence in the process. The shortlist should be reduced to three and the reason for appointment should be outlined.

Fine Gael and the Labour Party promised a reforming government and an end to the "jobs for the boys and girls" culture but it is clear from their judicial appointments so far, many of their political friends, unfortunately, have been elevated. A report by Dearbhail McDonald in the Irish Independent a while back highlighted that one third of judicial appointees had a background in political parties in government at the time of their appointment.

I refer to the cost to the people taking such cases. Access to the courts and to justice is a constitutional right, yet the expense of cases can run into high figures, thereby acting as a barrier to people seeking to exercise this right. If cases move faster, the chance of reducing costs is better. The plan envisages that the new court of appeal will deal with most cases that are currently dealt with by the Supreme Court, which would, therefore, reduce the higher court’s workload and allow it to focus on the development of the law. Cost is the issue that drove the Legal Services Regulation Bill 2011 from the perspective of the troika and our international partners. However, we have discussed the heads of the mediation Bill and if that proceeds through the Oireachtas, that will have a greater impact on costs. We want people in family law and civil law cases to go down the road of mediation. The first instinct in a dispute is to go to a solicitor and cases drag on whereas trained mediators can prevent significant, unnecessary costs. I will work with the Minister to advance that legislation.

There will be two tests to decide what type of appeals the Supreme Court will hear: that they are of "public importance" or where that it is "in the interests of justice" that the appeal by heard by the highest court in the State. In "exceptional circumstances", where these tests of public interest and "the interests of justice" are met, the Supreme Court will hear appeals directly from the High Court. The Supreme Court, unlike equivalent institutions in other common law jurisdictions, is the court of final appeal, not only for constitutional matters but for all appeals from the lower courts.

Figures published last year by the Courts Service show that the court had received 605 appeals in the previous year, a 21% increase on the figure for 2011, and that it had given judgments in 121 cases, compared to 64 in the United States Supreme Court and 85 in the Supreme Court in London. I welcome the creation of a new court which will allow proceedings to take place within a reasonable time. An inefficient court system is costly because runaway legal costs hamper even small businesses and I welcome the initiative to end them. I offer my support and that of my party for the Bill and ask the Minister to take on board some of the concerns I have highlighted.

Deputy Finian McGrath

I propose to share time with Deputy Mattie McGrath.

An Ceann Comhairle

Is that agreed? Agreed.

Deputy Finian McGrath

I welcome the opportunity to speak about the Court of Appeal Bill 2014. I welcome the Bill and the broader debate on the courts and the smooth operation of the justice system based on democratic principles of equality, justice and human rights. It is important to make this point, given the decision of the people in the referendum. In recent months the crisis in the justice system has demonstrated the urgent need for reform and accountability. We must maintain the trust and respect of the people in and for the system of justice. Above all, the courts have to be fair, open and accountable in serving justice. I support the Bill because it is part of a reform agenda.

The purpose of the Bill is to put the legislative arrangements in place to facilitate the establishment of a court of appeal at a level between the High Court and the Supreme Court, as agreed to in the referendum on 4 October 2013. The financial implications of the Bill are significant and must be examined. It is envisaged that the initial capital costs involved in establishing the court of appeal will be of the order of €2 million, with ongoing annual costs of €2.5 million to €3 million. Establishment of the court will have positive implications for our ability to honour international obligations which would otherwise give rise to reputational damage and financial penalties and may have a positive influence on external investment decisions. From a value for money perspective, every cent we spend should be examined carefully. However, compared to the hundreds of million of euro that have been wasted during the years, a light goes on in my head when I see a figure of €2.5 to €3 million. The Bill offers value for money.

On the subject of small sums of money, an excellent preschool creche in Darndale could do with €100,000 in the coming week. I urge the Minister, Deputy Frances Fitzgerald, to support the Minister for Children and Youth Affairs in funding that creche.

An Ceann Comhairle

I urge the Deputy to speak to the Bill.

Deputy Finian McGrath

It is important that we mention these matters when we are discussing money.

An Ceann Comhairle

It is important to stick to the subject matter. This is not Ballymagash.

Deputy Timmy Dooley

One less Topical Issue matter.

Deputy Finian McGrath

It is important that we raise these issues in the broader context of justice and equality.

An Ceann Comhairle

The Deputy may think so, but the rules do not allow it.

Deputy Finian McGrath

I support the legislation. The Oireachtas Joint Committee on Justice, Defence and Equality also does excellent work in this regard. Yesterday it launched three excellent reports on community courts, the heads of the Children and Family Relationships Bill and the heads of the Criminal Justice (Community Sanctions) Bill, respectively. These reports were prepared by a cross-party group of Deputies and Senators. That is the kind of valuable work we need to do in other areas.

The Bill is essentially technical in nature and involves amendments to a number of Courts Acts and related legislation in order to ensure the court of appeal will slot appropriately into the existing courts system. The court of appeal will be an intermediate court between the High Court and the Supreme Court and will deal with civil and criminal matters. It is anticipated that the new court will bring about real efficiencies in the administration of justice. However, efficiency should never be confused with short cuts. We must ensure a high quality and professional justice system which is fair and accountable. The court of appeal will allow the Supreme Court to concentrate on work that is relevant to that body such as developing the law in a principled and rational way. It is intended that the court of appeal will be operational by October. For this objective to be realised, it is necessary that the Bill be enacted during the current session.

I will address the specific sections of the Bill. Section 49 allows a judge or a former judge of the court of appeal to be appointed as chairperson of the Standards in Public Office Commission. Provision is also made to put in place the arrangements necessary should a chairperson of the commission who is a judge of the court of appeal be temporarily unable to act and for the continuation in office as chairperson of a person who ceases to be a judge of the court of appeal and is not appointed to another judicial office. It is important to recognise the valuable work done by the Standards in Public Office Commission because it is part of the new politics of the country and the reform agenda.

Section 52 relates to the membership of the Constituency Commission which is provided for in the Electoral Act 1997 and the arrangements which apply when the chairperson of the commission becomes unable to act or ceases to hold office as a judge.

Section 53 includes a judge of the court of appeal and a specialist judge of the Circuit Court within the definition of member of the Judiciary for the purposes of exempting certain allowances from income tax.

Section 56 makes provision to address the consequences of the president or an ordinary judge of the court of appeal being appointed as chairperson of the Human Rights Commission and for related and consequential matters. That is very important because when we consider the broader issues, we must not forget justice, trust and human rights. In this regard, section 59 allows the court of appeal, in addition to the High Court and the Supreme Court, to make a declaration that a statutory provision or rule of law is incompatible with the State’s obligations under convention provisions.

Section 61 allows for the appointment of a judge of the court of appeal to inquire into the conduct of designated officers of the Garda Síochána Ombudsman Commission. This is an important section because anyone who works as a public servant must be accountable. I will be supporting the Bill because it forms part of a reform agenda and will create accountability and efficiency in the justice system.

Deputy Mattie McGrath

I am delighted to have an opportunity to speak about this important legislation and thank Deputy Finian McGrath for sharing time with me. I note that the Bill will give effect to the referendum decision on the court of appeal. While I do not want to question the outcome of the referendum, I have criticised the manner in which it was simply added on to the children's rights referendum with little debate. The media found it difficult to find anyone who was prepared to speak in support or against the proposal. We did not have sufficient notice or engagement on the proposal, which is not good for our democracy.

The legislation will place a new layer of judges between the High Court and the Supreme Court, which is important in itself. At the time of the referendum, there was no indication from the Government or the independent commission what duties would be involved. That is what we are now talking about in the enabling legislation. I acknowledge that it is difficult, but the broad parameters should have been discussed in the debate and available to people to facilitate their understanding and participation in the vote. As we have heard from the Minister herself and other speakers, the delays in the courts are enormous and have been for years. Justice delayed is justice denied. It is unacceptable to have to wait four and a half years for a case to be heard. A great deal of change can occur in that time. Litigants and counter-litigants may die or their circumstances may change. Chief Justice Susan Denham has rightly voiced her opinion about this issue on a number of occasions and it is important that she be listened to. It is vital that justice be done and seen to be done in a timely fashion.

There was no explanation of the costs involved. I now see that the estimated establishment costs are €2 million annually, perhaps moving to €3 million. We cannot have an open chequebook. There must be accountability and proper control of the costs that will be incurred. I am delighted the Minister is here, as she was previously the Minister for Children and Youth Affairs. I have referred countless times to the importance of the House and everyone else listening to the courts when they decide cases, especially when it is a unanimous decision of the Supreme Court. I note the Supreme Court decision on the way in which moneys voted by the House were expended by the independent commission and Government on the other referendum that was held on the same day. I have asked countless times for the Ceann Comhairle's indulgence in respect of a debate on that and an indication of when we are going to act.

An Ceann Comhairle

I cannot give the Deputy my indulgence on that.

Deputy Frances Fitzgerald

The matter is before the courts.

Deputy Mattie McGrath

I do not mean today. I make the point that the referendum was held on the same day. It is pointless to set up new courts of appeal and other court structures if Government is going to ignore their decisions. I have raised the matter so many times here that my next course of action is to make a complaint to An Garda Síochána. It is a matter for another day and one with which the new Minister will have to deal.

It is important that we put the enabling legislation under discussion in place. We are told it will be implemented by the autumn of this year. I look forward to that. We must see a programme of work set out regarding cases and the rate of productivity we will see. I understand that it is not a conveyor belt, but we cannot just set up a new court of appeal while continuing to allow cases to be held up and to fail to deliver justice in a timely fashion. My criticism continues to be that we do not see any aspiration with regard to the length of time cases will take and the speed with which people can gain access to the courts. It is very unfair and imprudent in these times of financial hardship and cutbacks that we should just set up our new system, appoint our layer of judicial appointments and have them sitting without a specific workload and timeframe for cases. That is not a personal criticism of the judges. We have no confirmation of what may take place. Others have compared our system with the US and other supreme court systems and said ours is pretty quick by comparison. It is not a good enough answer. We cannot wait three and a half or four years for a case to be determined. We must ensure that the new court of appeal has a proper legislative framework and timelines. There will have to be speedy outcomes.

Section 37 of the Bill states that a judge of the court of appeal may be appointed as a chairperson or deputy chairperson of the Irish Financial Services Appeals Tribunal. It is very important that there is clarity in this regard. We hope there will be independent, fair and proper chairing and oversight of what goes on in those areas.

I also note something that is close to my own heart in section 41, which provides for the amendment of section 50 of the Greyhound Industry Act 1958. Section 41 permits a judge of the court of appeal to be chairman of the appeals committee hearing appeals in relation to the refusal of licences, permits, etc., under the 1958 Act. It is perhaps a pity we could not have had somebody appointed to deal with the musical events dominating the headlines today to sort them out to the satisfaction of society in general.

I look forward to the debate. I hope the legislation makes for speedier and more timely resolutions for parties who go to court. Hopefully they can go to the court of appeal rather than be left wondering what their destiny will be.

Debate adjourned.

Sitting suspended at 1 p.m. and resumed at 1.05 p.m.