I thank the Members who contributed to this debate in such a constructive and supportive manner and those who attended the debate but did not contribute. I assume they support this Bill in a more practical way, by not delaying its passage.
I reflected on my time as Attorney General as I listened to the debate. One is not supposed to have an input into the formation of policy on many issues when one is Attorney General. It occurred to me at one time that there is a particular exponent among the political class of an art which is remarkably absent. The art to which I refer is the capacity to make three stories out of one action. It amazes me that if one is astute in one's PR management, one can announce the same measure three or four times and the media will pick up on it each time as if it were new. I am beginning to think that I have the opposite ability, as I do not receive enough bang for my buck.
It is almost forgotten that in the dying days of the last legislative term, the Government printed and published the Commissions of Investigation Bill 2003 and an explanatory memorandum. The publication of this Bill made such a small impression on the body politic and the media, for some reason, that people continue to ask when the Government will publish its proposals in respect of this area and what it will do about alternatives to tribunals. I should apologise for this ignorance, as I suppose the fault must be mine. I have not ensured the maximum value for this legislative initiative. Perhaps one of the problems is that the Bill has not yet reached Second Stage in the other House. This leads me to believe that in the present circumstances I should be more keen to introduce primary legislation in this House where I will get some more bang for my buck.
The Commissions of Investigation Bill is the Government's proposal to have an alternative system of inquiry to that of tribunals. It is interesting because it does not stipulate that judges must do this kind of work at all. In fact, it does not even stipulate that lawyers should necessarily do it. The interesting point about the new proposal is that adversarial advocacy, etc., would not be required in proceedings. Proceedings could be conducted in private, such as the Scott inquiry into the arms-for-Iraq affair or perhaps more like the more recent inquiry concerning the Iraq war. Iraq seems to be the constant fertile source of inquiries.
The interesting thing about both the Scott and Hutton inquiries is that there was no need in either case for the compulsory powers of the tribunal because all the main actors could effectively be compelled by moral pressure to produce all their private records, diaries, mobile phone bills, etc., to establish who talked to whom or whatever else needed to be determined. This is the case if one is dealing with a matter of public importance. However, if one were to attempt the same thing in this jurisdiction, one might encounter legal objections almost immediately. It was with this in view that the Commissions of Investigation Bill was drafted, thus providing a statutory basis for Scott or Hutton-type inquiries in Ireland. One of the proposals of the legislation is that when any such inquiries, as opposed to tribunals, are to be established, the Houses of the Oireachtas would have to be given an accompanying statement containing an estimate of the costs, including legal costs, to be incurred by the commission in conducting the investigation and preparing its report, and a timeframe for the submission of its final report. This is one of the measures in contemplation and it is important.
A danger exists in making it easier to have inquiries because there is a limit to how many inquiries a state can conduct at any given time. Although it is better to have cheaper and quicker inquiries, thus saving the Exchequer money and arriving at conclusions faster, there is an equivalent danger that there will be daily proposals for inquiries into various matters, especially if they are easy to establish.
It strikes me – I say this with some circumspection – that the spirit of the day is one in which Ireland holds the shovel not to get on with constructing our future but to exhume the past. At some stage we will have to become much more prospective in our collective political focus. It is fashionable to talk about the need for full transparency, inquiring into events and bringing closure to them, but there is a limit to the extent to which the truth can be established in retrospect. There is also a limit to the extent to which any society should expend all its political and emotional resources looking backwards and trying to find out what happened when there are so many serious problems facing us in the mirror in terms of what we need to do in the future. While it is sometimes necessary to look back to prevent wrongs from being repeated, it seems that a successful, dynamic society has to have a focus on the future. This legislation, if passed by the two Houses of the Oireachtas, will make it easier to inquire into matters. I hope this does not mean the focus of political attention will be increasingly on the past because the fundamental purpose of elections and representative democracy is to plan our future and make sure it is successful.
Senator Terry stated that one appointment was presaged in the debate on this legislation and asked if I could identify the second appointee. No decision has been made on this yet. The Senator also asked about the necessity for gardaí to appear in court and how much Garda time is spent in courts. It is very difficult for me to state a figure but a huge amount of Garda time is spent in courts. When I was starting out as a barrister, it was more or less expected by a trial judge of a jury trial that all the Garda witnesses would remain in court for the duration of the whole case. If, on the eighth or twelfth day of a such a case an issue arose regarding whether a garda had made a particular statement, there was a shocked silence if that garda was not available to come up from the bowels of the court immediately to be re-examined on the issue, as if there were nothing better for the garda to do.
I know the Judiciary has become much more reasonable and is asking if there is a need for certain garda witnesses to remain in court. If not, it is prepared to allow them to go about their duties. We have to get to the point, especially in the criminal justice process, where the demands on Garda time are minimised and where a garda whose evidence is solely that he or she preserved the scene of a crime should at least be able to testify by a video recording, for example, if a written statement procedure, which exists under the 1984 Act, is not sufficiently vivid. We have to think in terms of getting people away from the court system when they are not really needed, subject to the right to cross-examine witnesses where their evidence is in issue. As I have stated before, I hope that in the context of the Criminal Justice Act we will have a system whereby minor public violence offences will be dealt with by cautions accompanied by fixed penalties so gardaí do not spend all their time dealing with them.
I have had quite a considerable and fruitful discussion with the Minister for Transport, Deputy Brennan, on road traffic offences. There are many cases in this respect that need not involve the presence of gardaí in court. Gardaí could testify by written declaration. Why should a statutory declaration in respect of speeding offences not be acceptable unless somebody really wanted to challenge his or her case? Senator Tuffy questioned the point of requiring the presence of gardaí in procedures of this nature. Most of this kind of adjudication could be reduced to a fairly automatic process if we had the will to do so.
We could change things for the better in respect of blood alcohol cases. The Minister for Transport and I are discussing whether it is possible to introduce a system whereby, if one were over the legal alcohol limit, one would surrender one's licence for administrative disqualification, after which one's conviction would be published in a public list somewhere, one would pay one's fine and stop driving on the road, subject to very major penalties if one were to breach the administrative disqualification. This would make it unnecessary to produce witnesses and certificates and there would be no need to book a court effectively for an afternoon, against the hazard that a clever barrister would defend a case. Such a system could lead to a huge improvement.
Senators have asked if senior counsel could not discharge the functions now being carried out by tribunal judges. There is no requirement of any legal qualification although many senior counsel would be very suitable for conducting commissions of inquiry. The successful inquiry into allegations of child sex abuse in the diocese of Ferns carried out by George Birmingham, SC, the successful inquiry into the sexual abuse of swimmers carried out by Robert Murphy, SC, and the Kilkenny incest inquiry carried out by the then senior counsel, Catherine McGuinness, who is now a Supreme Court judge, show that a judge should not carry out every inquiry provided for or established by law.
It is true this legislation has come before the House in the context of the decision of Ms Justice Laffoy to resign as chairman of the Commission to Inquire into Child Abuse. Ms Justice Laffoy is now returning to the courts where she is a valued, highly respected judge. In other words, she is not being lost to jurisprudence. On the contrary, she is returning to a place in which she was sorely missed and is held in great respect. I say this in case by saying nothing on the subject, I would have been taken in some sense to be deficient.
The role of solicitor advocates and the appointment of solicitors to the superior court judiciary were raised. Legislation enabling these developments to take place was enacted while I was Attorney General and I strongly supported the change. When the first such appointment was made I was Minister for Justice, Equality and Law Reform and I am pleased to have had a proposing role with regard to this development. Many members of the solicitors' profession would make excellent superior court judges. It is worth recalling, however, that one of the problems we face nowadays is persuading senior people of quality in either branch of the legal profession to put their names forward for positions of this nature. There is no overwhelming stampede to take on the job of High Court judge, the reason being that many leading lawyers, solicitors and barristers, are much more handsomely remunerated in private practice than on the Bench. In case anybody thinks a vast number of people are found to be suitable and later disappointed, I assure the House this is not the case.
It has been suggested that some solicitors are reticent about acting as advocates because the fact that the great majority of judges are barristers would lead to a knee-jerk, adverse reaction to this new role on the basis that it is regarded as barristers' work. If, in the past, some members of the Bench may have preferred to see barristers rather than solicitors before them, this attitude has largely evaporated. In the Circuit Court, where many solicitors now function on the Bench, nobody has ever been able to detect any change in attitude between solicitors or barristers appearing before such former solicitor judges.
One must seek the true explanation in a slightly different direction. In the main – there are many exceptions – solicitors prefer to have barristers do their cases for them. The reason for this preference is that it is difficult for a solicitor, for example, one running a small practice, to commit to be present for the full period of a lengthy case, which may eventually double in duration, and stick with it from beginning to end. While some may argue that these are the words of a barrister, the reticence of solicitors to act as advocates is due to the fact that many sole practitioners and solicitors working in small firms do not find it practical, in terms of conducting a practice, to commit to do a case in court even in the event that is adjourned for a week as it would require them to put aside all their plans for closing sales, dealing with new clients and so forth for the week in question.
The split profession, as Senator Kett described it, is not peculiar to our system but is also found in other countries. In France, for example, there is a similar difference between notaires and advocats. Even the unified legal profession in America divides into specialties of trial and non-trial or corporate attorneys. Most American attorneys, who do what we regard as solicitors work, would not dream of undertaking a criminal defence on behalf of a client because specialists effectively emerge as trial attorneys in the various areas. I accept, therefore, the comment by Senator Walsh that the public regards the distinction between barristers and solicitors as expensive and difficult to justify. There is also considerable merit in the Senator's comments concerning a perceived absence of competition. A substantial agenda needs to be addressed in respect of the transparency of the fees charged by the legal profession, particularly barristers.
It is the function of a solicitor to act in the interests of his or her client. Obviously, he or she must engage a good barrister but it is also the solicitor's function to strike the best possible bargain on behalf of his or her client when doing so. Most people, including Senator Tuffy, will agree that while this is the theory, it is not translated in practice. In the eyes of the client, there sometimes appears to be a common interest between the solicitor and barrister in respect of fees, as opposed to a sense that the solicitor is performing the function of negotiating the barrister's fee to obtain the best value for the client. In my experience as a barrister, I never encountered in practice the theoretical notion that a solicitor would genuinely consider selecting one of three or four barristers to do a case and ask them in advance to name their price and effectively tender for the work in question.
I accept Senator Walsh's point on the need for price competition and mechanisms to get legal services provided at the lowest price to the consumer. This is an important issue which I intend to raise with the legal professions once my workload, which is considerable, allows. It is on my agenda to approach the Bar Council and Law Society and request that these organisations address the specific issue of whether they are organising their affairs and performing their functions in a cost competitive manner or, on the contrary, operating on a basis that the legal profession's financial interest is given undue weight in dealings with clients.
The retirement age of judges was raised. Judges now retire at the age of 70 years and while a number of them were appointed with a retirement age of 72 years – I will not describe this group as a dying breed – the retirement age has now been fixed at 70 years. We have an anomalous and undesirable position that District Court judges are required to retire at 65 years, unless their contracts are extended on an annual basis until the age of 70 years. It should be unequivocal and clear to judges that they will hold their jobs until the day they retire. There should not be two categories of judges, in one of which judges are the subject of an annual review as to whether they are still compos mentis or functioning in a proper way.
Our system of judicial appointment is dramatically different from the continental system. On the Continent, when one finishes university or completes a law degree, one makes a choice on graduating as to whether one wishes to go into the judicial arm of the state. Then one works one's way up through the judicial mechanism, sometimes to dizzy heights. That is not to say that all continental judges are appointed from that system because people from academia and practice are also appointed. In our system, which is different from the continental system, the judge is an independent arbiter on an adversarial basis. It is an important difference and it has dramatically different consequences for the way in which legal business is done.
One of the great strengths of our system is we choose people of experience who have not worked their way up through the system, have not had all the corners knocked off them or have not become part of the grand State apparatus. They are chosen from outside the State apparatus and put on the Bench on the basis of their experience and qualities and are expected to act as independent arbiters between the State and the individual. That system, which operates throughout the common law world with different methods of vetting and so forth, is far superior, and I admit to being prejudiced on this, to a career judge system. I believe litigants in the common law system have absolute conviction that when they go before a judge appointed on that basis and who holds the scales between them and the State apparatus, they are not being confronted by a part of the State adjudicating their case in the interests of the State.
It underlines and symbolises the independence of the Judiciary that its members are usually in their fifties when they are selected to serve as judges. In that context, having a retirement age of 70 rather than the usual retirement age of 65 is sensible. If one is selecting people at that stage of their career, one must give them a reasonable run. In any event, the age of 65 was selected as the retirement age in Bismark's Germany because most people did not live much longer. We now live in a world where many people, with a huge amount to contribute, live into their seventies. I am not in favour of mandatory early retirement.
Reference was made to the suspicion that some people engage in forum shopping, seeking particular judges for particular results. That suspicion is entertained not just in this House. It is obviously desirable that one judge should be the same as another. However, judges are flesh and blood and we expect them to be so. We also expect them to be consistent with each other. It is inevitable, nevertheless, that just as politicians, Ministers and Senators differ in their characteristics, there will always be judges who are softer or more inclined to see the small man's case, the State's interest or whatever. Judges will always have different characteristics and there is no way of avoiding that except to ask them to attempt to be objective and consistent with other judges, in so far as they can, in the standard of justice they administer.
Senator Tuffy raised the issue of family law. I agree the need for mediation in this area is paramount. Adversarial family law should be the last outcome in a family dispute. It is so destructive and consuming of assets that the case Senator Tuffy makes is undeniable. I was called to the Bar in 1974. There was no free legal aid until after the Josey Airey case. The free legal advice centres were voluntary bodies which were manned by young men and women who were either students or recently qualified solicitors and barristers. They effectively provided the only system of legal aid in family law and they did it for nothing. That was a cornerstone of the FLAC philosophy. I did a great deal of work for the centres when I was a fledgling barrister. One could not take any benefit for oneself because it was done on a FLAC basis.
Things have changed dramatically since then. Family law, which was an economic desert as far as practitioners were concerned, has now transformed into something dramatically different. Undoubtedly, the quality of family law has improved greatly since the time a young Master McDowell was attempting to improve his skills as a junior barrister in that area. Equally, however, the costs have grown phenomenally, to the point where fortunes are expended by people sorting out family differences. Any protracted litigation is an economic and familial disaster for the people who get caught up in the system.
I endorse Senator Tuffy's comments that, however we do it, the emphasis must not be on adversarial family law but on people sitting around a table, facing up to the fact that they will not live together and somehow arriving at a mediated solution as to how they deal with custody, property and access issues. It could be done in an afternoon, compared with the lengthy discovery process to discover people's earnings, bank accounts, property transactions and so forth which goes on for weeks and months and achieves relatively little.
Senator Tuffy mentioned that men feel the family law system discriminates against them. That perception is true. There is an almost instinctive reaction that where the custody of children is an issue, there is a presumption in favour of the mother. That is rebuttable but is infrequently rebutted. Men in those circumstances feel that they, rather than women, are at the receiving end of justice. What can I say about that? Women have suffered huge discrimination in many areas for a long time. Law, however, is one area where women litigants, in whatever capacity, have always been treated better than men, particularly in the area of criminal law. My experience, throughout my career prosecuting and defending in criminal cases, was that women were always given the benefit of the doubt in circumstances where a tougher approach was taken to men.
When it comes to sentencing, the outcomes for men and women are dramatically different. If there is an inconsistency in how the genders are dealt with in the courts, that is one area in which, even in less so-called enlightened times than the one we now live in, women have been treated better. It is curious to examine the Victorian period and look at the returns for Mountjoy Prison and other such places. The number of women offenders was enormously higher then than now. The Victorians were much tougher on women, sending them to jail for theft, prostitution and other crimes. Now, the Judiciary has a different attitude when it comes to gender discrimination.
The excursus on the irrelevancies that have been raised in the course of this debate is now complete.
I welcome the positive support of and interest in this subject by the Members of this House. Most of the things said about tribunals will come up for minute discussion when the legislation comes before the House. I hope the remarks I have made are not seen as stereotypical. We must be truthful with each other when we think about what has happened in the past and how things have changed.
While our legal system is frequently criticised and deserves to be under constant sceptical scrutiny to see what is wrong with it and while I, as a lawyer and Minister for Justice, Equality and Law Reform, should be especially careful not to bring my previous baggage to a job in which the people expect me to be objective and sceptical about our system, the quality of our Judiciary and the fairness of our legal system are enormously high. One has only to look at cases in the European Union in terms of delay and effectiveness to see less desirable examples than the ones we have.
I have not dealt with wigs and gowns, but that is for another day. While we can make all types of criticisms of our judicial system and our system of criminal justice, most of which have a grain of truth in them, we should bear in mind that they command the confidence of the majority of people who regard judges as impartial and honourable people who are trying to do their best. Most sentences, although there are some exceptions, are regarded by most people as being reasonable in the circumstances.
We must resist another feature of the present age, namely, a desire to always see things in terms of anger and disappointment. When we deal with victims, our system should be more supportive. I accept Senator Tuffy's point in that regard. There is a sense in which victims are merely seen as witnesses in an adversarial system. We must be careful about that. However, we must remember the other side of that coin, namely, that justice is public justice. It is not the right of a victim to select the punishment for the offender. Whereas the victim is entitled under our law to be heard on the issue, people want someone who listens to both sides and then selects a punishment. The dissatisfaction of any victim with a sentence is not the issue. If we had a system where every victim had to be satisfied with every sentence, we would surrender the sentencing process to the relatives of the victim in every crime. That is not what is needed in a fair system. We need an impartial arbiter to decide the sentence, having listened to the victim.
I am always accused of being politically unwise in challenging anything the media does, but sometimes there is an over concentration on the victim's reaction to every offence and the way it is dealt with by the courts. We must also consider the family members of the accused. There are those who are dependent on and who love the accused. Their views are valid, not irrelevant. We must sometimes rise above the tendency of being able to report that the victim in a particular crime is outraged by the leniency of a sentence. If they are outraged and that is justified, it should be reported and commented on. However, it should not be commented on on the basis that the victim has an implicit right to be the arbiter of what is just or fair in relation to him or her.
