Seanad Éireann díospóireacht -
Wednesday, 16 Jul 2014

Vol. 233 No. 5

Court of Appeal Bill 2014: Committee and Remaining Stages

Sections 1 to 14, inclusive, agreed to.

SECTION 15

Question proposed: "That section 15 stand part of the Bill."

Senator Jim Walsh

This concerns the pensions of the Judiciary. Can the Minister clarify the amendment to provisions in section 6(1) set out in section 15? Are we talking about a change? A judge receives a pension after 15 years and I am not clear in my mind whether judges receive one-thirtieth or one-fortieth per year of service and whether this has been changed for some judges to three eightieths, which gives an enhanced pension. Can we clarify this point?

Section 15(2) provides that a judge of the Supreme Court or Court of Appeal can be removed from office on account of incapacity. He or she shall be deemed for pension purposes to have vacated his or her office owing to permanent infirmity. What pension entitlements arise from this in terms of the ongoing pension and the gratuity? Is there a provision for judges to add service? In the case of someone who is 65 and who becomes incapacitated, when the retirement age is 70, is there a provision for the person to buy, or be given, additional service, which happens at the higher echelons of the public service? How is incapacity defined? Does drug addiction qualify as incapacity for the purpose of these benefits?

What is the position on alcoholism, which I accept is a disease and should be treated as such? Sometimes one believes people's reasons for retiring from various professions are spurious. They may not be because we may not have all the medical facts. What safeguards are in place to protect the taxpayer, which is ultimately what we are charged with doing?

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I do not have the full details of the new pension scheme to hand but can give the Senator some information that I hope will deal with some of his concerns. I assure the House that the provisions in respect of judges appointed from 1 January 2013 are not more advantageous than those applying to judges who were appointed at an earlier date. For instance, the full pension benefit now accrues after 20 years on the bench rather than 15, which was the case heretofore. That is the position on eligibility.

Some of the other points the Senator made on incapacity illustrate again the need for the judicial council legislation. One could imagine the council being able to deal with some of the issues that arise or the complaints. In this regard, I am not referring to assessment for incapacity. I appreciate the point the Senator is making on this. His point highlights the importance of having a judicial council in place that would serve as a formal forum for dealing with a range of issues and complaints that arise in regard to judges. We will have to determine the precise sections of the legislation. It is important that we move towards it. It touches on some of the areas the Senator raised.

Pension arrangements for judges are very complex and they vary according to the date of appointment. Pensions policy is primarily a matter for the Department of Public Expenditure and Reform, and we rely on its expertise. The term "incapacity" is drawn from existing legislation and it is not defined. I cannot speculate on its application in these circumstances but if the Senator wants further information on this, I will make sure he gets it.

Senator Jim Walsh

I thank the Minister for her reply. I appreciate that I am chucking my point at her coldly. It is not always easy to have the answer at one's fingertips. I accept that some of the thinking is driven by what happens generally in the Department of Public Expenditure and Reform. I do not necessarily share the Minister's view on expertise in that Department. There is still considerable waste across the public service that has not been tackled at all, but sin scéal eile.

Consider the implications if what I have read is true. I will be happy to accept a note on it rather than putting the Minister on the spot. I understand that prior to the date of the change, somebody with 15 years of service would get 15 fortieths by way of pension. I understand that from last year on, one would get three eightieths. If from now on one must serve 20 years — this can be clarified in the note and I am not looking for a response now — will it mean that, since three eightieths multiplied by 20 is 60 eightieths, one could actually get a pension worth 75% of one's salary? That would be a huge increase on the 50% that applies at present. It would be extraordinary if it were the case. I doubt that it is. Could I have clarification on it? If the Minister does not have the details to hand, I will have no difficulty in waiting for them.

Deputy Frances Fitzgerald

I will ask the courts policy section to furnish a note to the Senator on the way in which the pension regime applies in regard to various judges. I understand that what the Senator is saying is not the case and that the pension is index-linked and capped. I will get a detailed note on it.

Question put and agreed to.

Section 16 agreed to.

SECTION 17

Question proposed: "That section 17 stand part of the Bill."

Senator Jim Walsh

This section concerns the retirement of judges. I see the Minister stitched into the legislation a retirement age of 70 years. It used to be 72 years and may still be for existing judges. Given the improvements in health and life expectancy, is the age a little too low? Should this be re-examined? I may contradict myself on this in a moment with another suggestion. We saw recently that one of our national broadcasters continued broadcasting until the age of 75. Admittedly, his position was not as taxing towards the end of his career in that I am sure he was not working every day. However, my point should be considered because there is a reservoir of wisdom and experience that could be put to good use. With the changing demographics in society generally and the expected increase in the number who will avail themselves of the State and public service pensions, there will be an increasing trend towards people working for longer. Will the Minister comment on this?

There are senior counsel who are experts in their field. Senator Ó Clochartaigh said they are very well connected politically. I do not agree with the Senator on decision-making in that I believe Governments are elected to make decisions. I have no difficulty with the Government making political decisions as long as they are transparent and as long as it is accountable for them. I have advocated this in respect of local government also. I argued long and hard that the planning processes should involve decisions of councillors, not the manager. Let them stitch in the reasons for granting planning permission, which reasons should be open to appeal. Let the councillors be accountable. If accountable and they breach planning laws, they will held seriously to account. Politicians should be given power. Let them exercise it and let them be accountable for their decisions.

Consider the cost system and our advocacy system. The law was changed to allow solicitors to go to the higher courts, for example, to advocate on behalf of their clients. I know many solicitors who would be very capable of doing so. Sometimes they could be more capable than the barristers they engage, but they do not do so because they are concerned about a perception of bias involving judges, who have been senior counsel, taking a dim view of advocates other than barristers. I know many eminent solicitors who told me they would not act as an advocate in the higher courts because they are concerned about prejudicing the cases of their clients.

I put it to the Minister's predecessor, Deputy Alan Shatter, in the House that there are other jurisdictions where being a judge or magistrate involves a lifetime career. I did not really get any great answer. The individuals are educated and trained to play their part. They take up their positions at a much younger age and are independent of the camaraderie and peer relationships that develop within the law library. I am not saying such an arrangement would be a panacea but that it should certainly be considered. It appears that the arrangement has some merit, and the Minister should consider it.

This would be a significant move, even if only in regard to certain courts. It need not be done for all courts. I think we had a case some time ago where somebody from the broadcasting industry was appointed a judge. He may well have had legal training, but he was practising as a broadcaster, not as a lawyer. That happened in the 1980s. We need to open our minds on this.

The system we have is open to complaints and criticism and the criticism made by Senator Ó Clochartaigh is one that is often heard. On the other hand, we have been particularly well served since Independence by our Judiciary. However, this would not stop me criticising some of them. In general, we have been well served, but that does not mean we should not open our minds to other approaches and avenues.

Senator Sean D. Barrett

I agree with Senator Walsh in regard to the retirement age. I do not know whether there is truth in what used to be said, namely, that mathematicians peak early and lawyers much later. Perhaps some of these 70 year olds are just coming to their peak. Life expectancy here is heading towards 100 years for females. The explanatory memorandum in referring to section 17 refers to the "usual retirement age", so there may be some scope and flexibility on that. The Bill refers to the "appropriate age" and the last line of section 18 mentions 72 years. Therefore, there seems to be some flexibility on retirement age. People in charge of human resources say having a compulsory retirement age gets rid of both the awkward characters and the good ones. I believe Senator Walsh has a point in regard to flexibility and perhaps the Minister will consider that.

Deputy Frances Fitzgerald

I agree we have been well served by our Judiciary. During our debate on this Bill in the Dáil, a number of Deputies pointed out that many people are calling for change in regard to the appointment of judges, but at the same time they say we have been well served by the judges we have had. People give out about the appointment process, but in the same breath say we have been well served by our Judiciary. There is general agreement on that. We have been extremely fortunate to have a judiciary of the calibre we have and it is important to recognise this, notwithstanding the need to look at the appointment promise and the need for a judicial council. These are part of ongoing development in regard to how we view the Judiciary and how we believe it should be managed, notwithstanding the critical importance of the separation of powers.

Senator Walsh made a number of points regarding solicitors. He is probably aware that since enactment of the Court and Court Officers Act 2002, solicitors with relevant experience are eligible to be considered for appointment as judges to the High Court and the Supreme Court. Four judges of the High Court are former solicitors and no doubt we will have more. I have discussed this with members of the Law Society of Ireland. The Senator pointed out that sometimes solicitors themselves are hesitant about applying for these positions, but that is changing and I would expect to see further change in the years ahead.

The point made regarding age is interesting and would apply to many areas given changing life expectancy. We do not intend to be ageist in how we approach the issues, but by public sector standards a retirement age of 70 is higher than in many other jobs in the sector. For judges, the age has been set at 70 since 1995. It may be time to revisit that, but I suggest that should be for another day. The point made is worth considering.

Senator Jim Walsh

I thank the Minister for her reply, but suggest she might also look at the issue of advocacy. Solicitors are reluctant to advocate before a judge who has been a barrister because they fear a bias and that they might prejudice their clients by doing that.

Question put and agreed to.

Sections 18 to 26, inclusive, agreed to.

SECTION 27

Question proposed: "That section 27 stand part of the Bill."

Senator Jim Walsh

Section 27 provides for precedence between judges and gives a long list. Why are we being so detailed in regard to precedence? There may be good reason for this, but it escapes me. Are they on different salaries or do they have a different status? I believe we should only have distinctions between judges on the basis of need. The President of the Supreme Court, the Chief Justice, obviously has precedence, but I am not sure there is a need for a long list after that. For example, we could have a judge with significant experience sitting beside a judge who has just been appointed, but this does not mean the newly-appointed judge is not as proficient or more proficient than the person who has been in place for a significant period. It comes down to the quality and calibre of the individual, as well as experience. The Bill has a long list of ranking and I wonder about its purpose and whether any benefits accrue, salary wise or otherwise, with regard to it.

I worked in business and it was well known there that if a person went before certain judges of the Circuit Court to defend against liability claims, he or she would be hammered for compensation. Legal representatives would try to steer the case to a judge who was less sympathetic to the injured party and who took a more pragmatic business view of the situation. I did not think justice should be administered in that way, but that was what happened at the time. I do not know whether this would still apply today.

I have a question in regard to the register of interests of judges. This is a serious issue and I agree fully with Senator Conway. I should have said earlier that it would not be my intention to suggest the register should be public, but it should be available to a judicial council, if we have one. It should also, probably, be available to the Minister. This would ensure that potential conflicts of interest were signalled and could be detected and raised. For example, I have looked at some of the cases regarding the banks and have wondered why some of the decisions are made. In general, one would wonder how judges come to particular conclusions when a different decision seems more plausible and logical. I refer here to foreclosures and similar cases, where good cases seem to have been made. I admit I would not be in possession of all the facts, but judges should be. In this scenario, it is important the whole system is beyond reproach.

There is also an issue in regard to judges indulging certain barristers who are paid on a per diem basis. Some of these go on at length and their cases go on for weeks, although they could be completed in far less time and at a lower cost. Sitting judges must be on the ball regarding the essentials of the case and must be analytical enough to identify them rather than let barristers go on - perhaps as I am doing here - and eating up time. I am doing it at my own expense here, but their case is carried forward, with the clock ticking all the time. Any system that operates that way must be examined.

The Minister did not mention whether she would implement the Competition Authority report. I would really love to get a commitment from her that she will include the recommendations to curtail costs.

I welcome what the Minister said about tackling legal costs and I hope that will happen. I have heard the same from her predecessors, including some from my own party, but they did not follow through with action. She will be faced by a lot of vested interests but I hope she has the courage to follow through. Earlier I referred to the European Commission. The IMF's parting shots highlighted and shone a light on the failure of our programme to deal with the cost.

Finally, I welcome what the Minister said about judicial conduct. One area that a judicial council should look at, and it could be done by the peers, is consistent decisions. One of the things that rankles with people is how often there is a very significant disparity in judgments for similar cases. I agree fully with the separation of powers but if a judicial council is comprised exclusively of judges, who have experience in the area, it would be no harm for them to have as part of their remit to take on board some form of consistent sentencing.

Deputy Frances Fitzgerald

With regards to section 28, I wish to make the point that precedence and the order does not have anything to do with salaries. It is a well established hierarchical structure. It is interesting to note, for example, that in some legislation one will have inbuilt in the legislation a particular order in which a particular issue is dealt with. Therefore, the listing and, if one likes, hierarchical structure can address the issue. In certain contexts provision is made for the next most senior judge to hear a case or organise the business of the court so there is an order of precedence imported in that context. It is to deal with those issues that we have set out the order in section 28 and that is the only reason.

The Senator again made a point about legal costs. I believe having the legal services regulatory authority and the Legal Services Regulation Bill is part of that and the Competition Authority report will be partly dealt with through the provisions of that Bill.

The Senator also asked about consistency. Obviously we must respect the independence of the Judiciary. I did mention one of the points of the judicial council Bill is to have a judicial studies institute. I imagine through the kind of work it will do that the issue of consistent sentencing, in the broadest sense, will arise. One must keep repeating that the independence of the Judiciary is sacrosanct. I am probably sure, from the institute's point of view, that consistent sentencing will be one of the range of topics it will study and examine once it is formally established under statute.

Question put and agreed to.

Sections 28 to 79, inclusive, agreed to.

Schedules 1 and 2 agreed to.

TITLE

Question proposed: "That the Title be the Title to the Bill."

Deputy Frances Fitzgerald

I wish to make the point again that the legislation is a very important milestone in modernising our courts system. I would like to take this opportunity to thank Senators from all sides of the House for ensuring the passage of this very historic Bill.

Senator Jim Walsh

I thank the Minister for her engagement on the Bill. I trust that this important legislation will add considerably to the courts infrastructure and will enhance the administration of justice. She kindly acknowledged that it had been spread over a couple of Administrations.

On a personal note, I wish her well in her new position which is a very important brief. I have no doubt that she has the capability, energy and determination to do an excellent job and l am sure she will do so.

Senator Jillian van Turnhout

I welcome the passage of the Bill. It is an historic occasion, as outlined in earlier debates. I hope that the legislation will speed up the process for people, individuals and businesses, and that it makes a huge different to how the courts system works and how it is perceived to work externally by other states.

I also thank the Minister for her engagement. She endeavoured to answer the different queries raised by my colleagues which is always excellent when we are here in the House. I thank her for her ongoing engagement.

Senator Martin Conway

On behalf of the Fine Gael group I thank all Members for their co-operation. This morning we agreed to take all Stages today because this legislation is extremely important. The people voted on it which does not happen with every piece of legislation that comes before us. I agree with the Minister that it is a milestone. Justice delayed is justice denied and it is totally unacceptable for a case to take four years to reach the Supreme Court.

The engagement across the House has been very useful. On a recent trip to Stormont with the Oireachtas justice committee it was interesting to learn that the Chief Justice goes once a year to the justice committee in the North to discuss consistency in sentencing.

Perhaps that could be reconsidered as part of the evolution and bringing of our Courts Service into the modern era of accountability.

I also thank the Minister's officials. This is detailed legislation and we appreciate their input. It is for the good of Ireland and its citizens. I thank the Minister again.

Senator Feargal Quinn

I congratulate the Minister on the manner in which she managed to get this legislation through. It is very worthy legislation. This is a legislative measure that we require and it will speed up matters.

I had the pleasure back in 1971 of winning a case in the Supreme Court when the State appealed a case I had won in the High Court. It took three years for the case to move from the High Court to the Supreme Court and matters have disimproved since then. Congratulations and well done to the Minister and her officials.

Senator Lorraine Higgins

I join in the chorus of support for this legislation. There is no doubt it is a momentous day and this measure will make a big difference in terms of trying to attract foreign direct investment into this country. This measure is essential because companies take into account factors such as our court structure when deciding to locate here and we have had a very good record in recent years of attracting such investment. This will go no small way towards attracting even more foreign investment. It will change the way business is done in courts.

I thank the Minister for shepherding the Bill through and ensuring that very quickly after the result of the referendum it was brought to this stage. I also thank all the staff in her Department, particularly those people who drafted the legislation, and I acknowledge the great job they have done.

Question put and agreed to.

Bill reported without amendment, received for final considertion and passed.