Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

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

I am pleased to present the Courts and Civil Law (Miscellaneous Provisions) Bill 2013 to the House. It contains a number of diverse reforming provisions, most of which amount to important reforms of the courts system. They include provisions that will serve to shed light on family law and child care proceedings by providing for the attendance of members of the press in certain circumstances. Included also are long overdue provisions to bring the monetary jurisdiction limits for the Circuit Court and the District Court in civil proceedings into line with current monetary values. The Bill contains provision to permit the appointment of two additional Supreme Court judges to tackle the delay in cases before that court and the Court of Criminal Appeal. Provision is also made for the appointment of extra jurors in lengthy complex criminal trials. The Bill makes provision, too, for legal aid and advice for coroners' inquests into the death of persons in involuntary custody of the State.

In addition, following a post-enactment review of the Personal Insolvency Act 2012 by my Department and the Insolvency Service of Ireland, I am providing for a number of amendments to that Act and the Bankruptcy Act 1988.

These amendments have been identified as necessary to enhance the operational efficiency and effectiveness of the provisions of the Personal Insolvency Act. The provisions will facilitate the Insolvency Service and the courts in dealing with insolvency cases as efficiently as possible. For the benefit of the House, I will explain the purpose and detail of each of these provisions, beginning with changes to the in camerarule.

Part 2 of the Bill provides for changes to the long-standing in camerarule in family law and child care proceedings. The rule provides that family law and child care proceedings should be held otherwise than in public. The in camerarule is an exception to the fundamental principle of our law, guaranteed by the Constitution, that court proceedings should be held in public. The exception is made for a very important reason that I accept and support. In family law and child care proceedings often painful and sensitive family and personal matters are at issue and it has long been accepted that there cannot be a public interest in the private affairs of the parties such as would justify full public access to such proceedings. However, the absolute nature of the in camerarule has led to a situation where such proceedings are perceived to be shrouded in secrecy. There is no press reporting of these proceedings because the press access to them is prohibited. There is, accordingly, an absence of reliable information on the operation of the law in this area which is not conducive to confidence in our system of family law and child protection.

Recent policy in the law on the hearing in the courts of family law proceedings in private is reflected in section 40 of the Civil Liability and Courts Act 2004. Regulations made under this section allow certain classes of persons to attend family court sittings, subject to ministerial approval, in order to draw up and publish reports. Ministerial approval is subject to certain safeguards, including a requirement that the parties to a case or any relevant child not be identifiable. Under this scheme, several persons engaged in family law research who were nominated by bodies specified in the schedule to the regulations have been approved. In addition, the Courts Service introduced the family law reporting service on a pilot basis in 2006. The purpose of the pilot project was to provide information on the operation of family law in the courts. While these initiatives have provided a useful insight into family law and its operation, they cannot alone bring the greater transparency required on the operation of the law in this area. Accordingly, what I am providing for in the Bill is a careful balancing of the need for privacy with the need for public access to important information on the operation of family and child care proceedings in the courts. My proposal is to retain protections for the privacy of the parties in such court proceedings, while providing that bona fide members of the press can be admitted to the proceedings. In the Bill the right of press access to the proceedings is balanced with a strict prohibition on the publication of any information likely to identify the parties to the proceedings or any child to whom the proceedings relate. It will be a criminal offence to publish information in breach of this prohibition.

I am also providing that the courts will retain the right to exclude or restrict the presence of members of the press from all or part of the proceedings in certain circumstances - where it is necessary to do so to preserve the anonymity of the parties or any child to whom the proceedings relate because of the circumstances of the case or in the interests of justice. The court, in making its decision in this respect, will have to take into account a range of factors, including the best interests of a child to whom the proceedings relate. The courts will, for the same reasons, be able to direct that certain evidence should not be published. The type of situation envisaged could be, for example, where a child or a vulnerable adult is giving evidence. This residual power is being included in the Bill to give the courts the power to deal with the myriad sensitivities and situations that can arise in proceedings of this nature.

A number of parties interested in promoting the rights of children made comments to me on this Bill. Many of the concerns are catered for in it. In particular, I have added to the Bill a requirement that the court must consider the views of any party to the proceedings and the views of any child to whom the proceedings relate before making an order on press attendance or publication of information. This requirement was suggested by the Children's Rights Alliance and the Ombudsman for Children. I thank them for it because it is an important addition to the Bill.

I will now address monetary jurisdiction limits. Part 3 of the Bill provides for the increase in the monetary jurisdiction limits for the District Court and the Circuit Court in civil matters. The purpose of the jurisdiction limits is to ensure the level of court that hears a case is appropriate to the potential value of a case. The legal costs incurred by the parties to a case are related to the court in which the proceedings take place. It is estimated that, on average, the legal costs of taking a case in the Circuit Court, subject to the complexity of the case, are 30% lower than in the High Court. An appropriate increase in the jurisdiction levels is long overdue to ensure courts are dealing with the cases at an appropriate level and that the costs being incurred by the parties are at a reasonable level.

The monetary jurisdiction limits for the Circuit Court and the District Court have remained unchanged since 1991, some 22 years ago. The Courts Act 1991 set the current monetary jurisdiction limits for civil matters at €38,092 for the Circuit Court and €6,384 for the District Court. Although the Courts and Court Officers Act 2002 made statutory provision for increases in the limits to €100,000 and €20,000, respectively, the increased limits were never brought into operation, with the unfortunate result that the limits remain as they were 22 years ago. The retention of the lower monetary limits has rendered the District Court and the Circuit Court redundant in some classes of civil proceedings. The low level of jurisdiction in the Circuit Court means that very modest actions must, in the absence of agreement between the parties, be taken in the High Court. Such cases are potentially the subject of appeal to the Supreme Court, which makes no sense at a time when the workload of the Supreme Court and the High Court has increased significantly in volume and complexity, with Supreme Court appeals currently waiting over 48 months for a hearing date. Following consultation with the Attorney General and the Presidents of the Circuit Court and the District Court, I am therefore proposing to increase the jurisdiction of the Circuit Court to €75,000 and the District Court to €15,000.

The failure to bring the revised limits provided for in the Court and Court Officers Act 2002 into operation relates to a concern that increasing the limit for the Circuit Court to €100,000, as provided for in the Court and Court Officers Act 2002, would have an inflationary effect on personal injury awards in the Circuit Court and a consequential inflationary effect on insurance claims. I have decided to address this issue in the Bill by setting a lower jurisdiction limit in the Circuit Court for personal injury proceedings. I am setting the level at €60,000, that is, 40% lower than the equivalent level set by the 2002 Act 11 years ago. The increased jurisdiction limits will prove to be a fairer and more cost-efficient approach to the processing of civil proceedings by the courts. The proposed changes to the jurisdiction limits for the Circuit Court and the District Court should ultimately lead to a reduction in the burden of legal costs for individuals and companies engaged in litigation. It is crucial that parties involved in legal conflict do not incur more legal costs than are necessary in circumstances in which they have to resort to litigation.

It is also important that our court jurisdictions keep substantially in line with inflation and that the higher courts are not unnecessarily overburdened with appeals that could and should be properly dealt with at a lower level. The changes to jurisdiction limits proposed in the Bill should effect a reduction in the number of appeals that, ultimately, have to be dealt with by the Supreme Court. A further amelioration of the burden imposed on the Supreme Court will result from the creation of a court of appeal should the proposed referendum which it is hoped to hold in the autumn to provide for such a court receive public support. The Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013 was published today. The Bill provides for the establishment of a court of appeal which will hear most appeals from the High Court and from which cases may only be appealed to the Supreme Court if they are of general public importance or if the Supreme Court is satisfied that it is in the interests of justice that it hear and determine the case. I expect this major reform of the courts architecture will result in a significant reduction in the caseload of the Supreme Court and will allow it to concentrate on cases that merit the consideration of the highest court in the land.

I refer to the appointment of additional judges of the Supreme Court. Part 4 of the Bill amends section 1(2) of the Courts (Establishment and Constitution) Act 1961 to provide for the appointment of two additional judges to the Supreme Court. The Chief Justice has drawn attention to the current critical situation regarding delays in the Supreme Court and the Court of Criminal Appeal. Despite the introduction in the past two years of new case management methods and new listing systems, there is a delay in excess of four years in having an ordinary case heard in the Supreme Court. A priority case gets on the list for hearing in approximately nine to 12 months. The Chief Justice has pointed out that a case logged today will not get on the list until mid-2017. The Court of Criminal Appeal has a backlog that amounts to two years. This provision will allow for the appointment of two additional judges of the Supreme Court as an interim measure to deal with the current critical situation regarding delays in the Supreme Court and the Court of Criminal Appeal. This will bring the total number of Supreme Court judges, including the Chief Justice, to ten.

These appointments would allow for urgent remedial measures to be put in place prior to the introduction of the reforms envisaged following a referendum on a court of appeal. The appointments would allow for the scheduling of several sittings each week of the Court of Criminal Appeal and permit two divisions of the Supreme Court to sit routinely. The Chief Justice believes that the appointments, together with efficiency measures already introduced, could radically reduce delays and the financial, economic and reputational risks associated with delay.

Part 5 of the Bill amends the Juries Act 1976 to provide for the appointment of up to three additional jurors to deal with lengthy trials. The provision follows a recommendation to this effect in the Law Reform Commission's recently published report on jury service. The issue is of significance in relation to lengthy trials involving fraud or other complex financial matters. Under current law, a jury consists of 12 members, but a decision in a trial by ten members of a jury can be accepted. Accordingly, where up to two members of a jury become incapacitated or otherwise unavailable, there is no risk to the sustainability of a trial. However, during the period of a protracted trial there is a risk that more than two jurors may become unavailable. Where that happens, the trial collapses. I have accepted the Law Reform Commission's argument that legislative provision is required to guard against such a possibility.

The provisions of Part 5 amend the Juries Act 1976 to insert a new section 15A to provide that on application by the prosecution or the defence or on its own motion, the Circuit or Central Criminal Court can order that up to 15 people be selected to serve as jurors. In such cases, a judge must be satisfied that a trial is likely to last more than two months. If it transpires before the jury retires to consider its verdict that more than 12 jurors remain, a jury of 12 jurors will be selected by ballot. Ballots will be conducted in open court by the court registrar under the supervision of the presiding judge. In effect, what would happen in a case of this nature is that the registrar would draw from a drum containing the names of the 15 jurors or such number of jurors as remain the names of the 12 jurors who are to constitute the verdict jury. I am also providing by way of an amendment to section 20 of the Juries Act that where a jury has additional jurors, challenges without cause shown can be made by the prosecution or the accused person to up to eight jurors, as opposed to seven, as is the case with a typical jury.

Part 6 of the Bill provides for the amendment of the Coroners Act 1962 and the Civil Legal Aid Act 1995 to provide for legal advice and legal aid in relation to certain inquests. The Coroners Bill 2007, which is currently before the Seanad, provides for comprehensive reform of the existing legislation and structures relating to coroners and for the establishment of a new coroner service. The Bill is in the course of being reviewed in my Department. The review is focused on the development of optimum administrative and jurisdictional structures that can deliver in the most cost-effective way the planned reform of coronial law. The Coroners Bill, as published, addressed a matter that has been commented on in recent times by the European Court of Human Rights. The court emphasised the importance of ensuring that the next of kin of deceased persons can effectively participate and engage in a coroner's inquest into certain categories of death, including the limited number of cases in which a person has died while being involuntarily detained by the State. The right to effective engagement in these circumstances includes the provision of information prior to the inquest. In certain cases, this may require families to obtain legal assistance to participate effectively in the inquest process.

Sections 86 and 92 of the Coroners Bill 2007 provide for the introduction of a legal aid scheme for proceedings before a coroner. Section 92 provides for the required technical amendments to the Civil Legal Aid Act 1995. These changes will permit the Legal Aid Board to arrange for the granting of legal advice or legal aid to the family of a deceased person for legal representation at an inquest where the person has died in, or immediately after being in, involuntary State custody. Section 86 also provides that a coroner may consider an application to request the Legal Aid Board to provide legal aid where the circumstances of a death involve matters of significant public interest and where the possible recurrence or continuation of those circumstances may be harmful to public health and safety. The provision was included to ensure the fullest possible compliance with the approach of the European Court of Human Rights.

Given the importance of these matters, in view of the fact that making progress on the Coroners Bill 2007 may take some time, and in light of the State's obligations under the European Convention on Human Rights, it is important to take the opportunity represented by the Courts and Civil Law (Miscellaneous Provisions) Bill to address the issue of legal aid at inquests. Accordingly, Part 6 includes the broad provisions contained in sections 86 and 92 of the Coroners Bill 2007, with some refinements to the text to take into account developments since the Coroners Bill was published. An important consideration is that the amendments will be made to the Coroners Act 1962 as opposed to being contained in a new piece of legislation. The normal eligibility criteria in regard to financial means operated by the Legal Aid Board will apply in these situations. I am not providing for free legal aid to pursue civil actions by next of kin. The legal assistance provided is in relation to coroners' inquests only.

Part 7 of the Bill provides for the transfer of the existing Office of the Official Assignee in Bankruptcy to the Insolvency Service. Unfortunately, due to a lack of time while the Personal Insolvency Bill was being finalised for enactment last year, it was not possible to provide in that legislation for the transfer of the Office of the Official Assignee in Bankruptcy to the Insolvency Service as originally intended. I am anxious that the matter should be dealt with as soon as possible. To facilitate this, the appropriate additions to the Act are being made by way of amendments to the Bill in the Seanad.

Part 8 of the Bill contains a number of amendments to the Personal Insolvency Act 2012. Deputies will recall that during the debates in the House on the Personal Insolvency Bill, I indicated that if it was necessary to make any further changes to the legislation to facilitate the operations of the Insolvency Service, I would make them. A post-enactment review by my Department and the Insolvency Service has identified a number of such changes. The amendments contained in Part 8 of the Bill are technical drafting amendments required to improve the presentation of the Personal Insolvency Act 2012 or to correct errors in the text. The purpose of a number of the amendments made by the Seanad is to make clearer the documentation to be presented to the appropriate court for its consideration of the debt resolution processes. The effect of these changes is to facilitate the Insolvency Service and the courts in dealing with the various insolvency cases as efficiently as possible. It is my intention to introduce some further minor amendments to the Personal Insolvency Act on Committee Stage. The amendments are also required to facilitate the Insolvency Service and the courts in dealing with insolvency cases.

The Bill contains important steps in the process of modernisation of our courts to ensure that the essential service they deliver to the community is efficient, effective, fair and accessible to all of our citizens. I commend the Bill to the House and I look forward to a stimulating and interesting debate on its contents.

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