Mr. Micheál P. O'Higgins:

It is very much appreciated by the Bar Council of Ireland that we have been invited to address the Joint Oireachtas Committee on Justice and Equality on this Bill. We have put together a submission that the committee may have seen and it conveys the points we wish to make; I will speak to that rather than read it for the committee in order to highlight a few points. Mr. Dignam will deal with any queries on what we suggest might be imperfections in the Bill as it currently stands but I will speak more to the main point in the submission, which is the suggestion that perhaps the model selected in the draft Bill is not the best way to go about addressing what is an important matter.

I should start by saying that it is to be welcomed that there is a legislative response to the important issue of Ireland being in default with respect to its international obligations under the European Convention on Human Rights. It has been made clear in court and Ireland has accepted it in a number of cases. Perhaps it is boring to say it but it must be said that the root cause of court delays is the fact that our courts are not properly resourced. There are not enough appointed judges, registrars or support for the judges. If this persists, it is likely the problems associated with court delays will also persist. Nonetheless, it is proper to address the concerns raised in the Bill.

The Bill chooses a non courts-based model of providing compensation to those affected by court delays. The Bill envisages there would be an administrative tribunal or body set up that would be staffed by a retired judge or judges, who would then adjudicate on the question of whether compensation should be awarded, and if so, in what amount.

The point we have offered is that while it might appear superficially attractive to take the function out of the courts, take it away from lawyers and, as it were, make it simplified and cheaper, and while those are legitimate and proper concerns, we believe that it may not be in the public interest, as we have laid out in our submission. It may not be the best way of approaching this issue and delivering on the objectives the Bill is directed to meet.

One of the reasons is expense. It is difficult to identify a good, valid reason as to why the Exchequer should be hit with the undoubted significant cost associated with setting up a whole new administrative structure, staffing it, paying salaries, paying for clerical staff, paying for an office through rent or purchase, and resourcing it. For this reason we suggest that this is perhaps not the ideal way to proceed.

There is a pre-built, existing structure that is very efficient when it is working well, which is the courts. We make the point in our paper that the Oireachtas, in earlier legislative provisions, decided that the best way to deal with meeting our objectives under the European Convention on Human Rights and providing justice for our citizens across a range of legal areas is to do it on the courts-based model. For instance, section 3 of the existing European Convention on Human Rights Act allows a citizen who has been wrongly deprived of his or her liberty to go to the Circuit Court to make a case to be awarded compensation if he or she has been locked up unlawfully and suffered the indignity of being put into prison without just cause. That was a legislative decision made by the Oireachtas, and the Bar Council of Ireland feels that it is difficult to identify a good reason the same model should not be followed here. It is not known quite how many cases there might be of plaintiffs seeking relief for court delays. There are likely to be more than those who would seek damages for being unlawfully imprisoned, but there may not be too many.

This is the other point. Whatever about the issue of principle, it is difficult to see why it would be justified economically. The pure, raw numbers make it difficult to see how it could be justified to set up an entirely new administrative structure for what may not be ultimately a large number of cases. That issue, however, is a little bit unknown.

At the level of principle and given the potential legal complexity that is associated with claims for compensation for breaches of Article 13 and the right to speedy access to justice, and given that the European Convention on Human Rights has identified that these claims can be really quite complex, although not always, this is an issue that is best left to the courts that are well used to receiving submissions, weighing up competing interests and judging how best to give justice when there has been a breach of rights. These are routine matters for a Circuit Court, High Court or District Court judge or whoever it might be to add to his or her bundle of cases. There would not have to be the extra amount of training and costs associated with setting up an entirely new separate structure. The Bar Council of Ireland believes that this can be properly dealt with under the existing courts structure. That would be most fair to the citizen and best suited to the public interest with regard to these various headings.

There is also a risk, if one proceeds down the road of setting up a separate administrative body, that the body itself could be at risk of being judicially reviewed or having complaints made against it on grounds of delay. It also could be challenged for making what might be thought of as unreasonable decisions if it decides to refuse an application for compensation or if it awards what the citizen feels is too little. We believe that this is a further stand-alone ground for leaving these cases to the parties that are best equipped to deal with the issues, namely, trained judges who are independent and well used to dealing with legal cases and the complexity of legal issues.

We have made a number of recommendations in our paper, which members may have seen. We suggest that these matters be left to the courts and perhaps a similar model chosen along the lines of section 3 of the European Convention on Human Rights Act.

The idea is simply to create the statutory remedy of going to court and allowing that to be done. As to which court, it would be a matter entirely for the Legislature of course. We do not believe there is any particular reason to depart from the pre-existing model of doing it in the Circuit Court or perhaps doing it in the High Court. That is entirely a matter for the Legislature. We acknowledge there may be different reasons for choosing whichever comment committee members might make.

It is undoubtedly an issue that has a degree of urgency in that Ireland is in default. That is not inconsequential and needs to be immediately addressed. We believe that delayed claims need to be considered and dealt with properly under the existing and well-provided established structure. The ideal environment for the fair and just determination of these Article 6 breach claims is the court's model. By taking that approach we believe there would be consistency in the law. It is already being done in that way and we do not find the case persuasive – although it is a matter entirely for the Houses – for lifting it and creating an entirely new structure. We do not find that would really be the way to proceed from a practical point of view, from a justice point of view or from a principle point of view. I would be happy to take any questions on the issues arising.