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

I thank all Members who spoke on the Bill for their supportive comments. For many years it has been my view that we should have a court of appeal and that we need constitutional change. The work of the working group chaired by Chief Justice Denham substantially laid the foundations for the implementation of this change. It was a commitment in the programme for Government that we would hold a referendum. It is a referendum of crucial importance and part of the radical reforming agenda of the Government to provide the best possible justice system, modernise our structures to bring them fully into the 21st century in the interests of citizens and those engaged in business and commerce and ensure Ireland will remain an attractive destination for multinational companies wishing to locate here or those already located here which may wish to expand. There is an assurance that if legal difficulties arise which require an individual, a citizen, an individual business and a corporation or multinational company to resort to the courts, they will be assured justice will be administered within a reasonable time and that, if there is a need to go through an appellate system, the appellate system will operate within a reasonable timeframe. I thank Deputies Niall Collins and Pádraig Mac Lochlainn for the support their parties have given to the legislation and thank Deputy Catherine Murphy for her contribution.

This is an important issue and it is important that the referendum be successful. Deputy Catherine Murphy has made the point that the reason for bringing the legislation before the House this month and our objective of completing its passage during the course of this month is to ensure there will be a proper lead-in period to the holding of the referendum in order that those who will vote on the proposal will fully understand its nature, why it is of advantage to the State and every individual that we have a court of appeal and that it is worthy of an overwhelming "Yes" vote. We cannot establish the new court without the support of the citizens of the State by way of a majority voting in favour of the proposal. I hope there will be an overwhelming vote in favour of it. I do so as Minister for Justice and Equality and a lawyer for many years. It is a matter of fundamental rights that people can litigate in the courts in a manner that ensures justice is done within a reasonable time. A court of appeal will be an extra legal structure within the court architecture to ensure we fully meet our legal obligations under the European Convention on Human Rights and that court proceedings are heard and determined within a reasonable timeframe.

Deputy Niall Collins made reference to spats with the Judiciary. I can assure him that there is no spat of any description with members of the Judiciary. As Minister for Justice and Equality, I have an excellent and appropriate relationship with the Chief Justice and the presidents of the various courts. Through the Office of the Attorney General and, where appropriate, directly through the Department, we consult and engage with the Judiciary on matters of relevance to the courts and the Courts Service. There was extensive consultation with the Judiciary in the development of the Bill. There were issues to be addressed and teased out, particularly relating to the current backlog of cases awaiting a hearing in the Supreme Court and the appropriate mechanism to ensure that, within an independent court structure, arrangements would be made to address the issue in an appropriate way, should the referendum prove successful.

Deputy Catherine Murphy asked whether, when the court of appeal was established, all cases before the Supreme Court would be transferred to the court of appeal and that what was a four year backlog in the Supreme Court would become a four year backlog in the court of appeal. That must not happen. It is a matter for the Supreme Court, by the application of an appropriate legal principle, to determine the cases it is appropriate to retain and the ones that should be transferred for hearing in the court of appeal. It is important there be mechanisms to address that issue, a matter to which further attention should be given in the preparation of the establishment Bill. It will be the subject of appropriate consultation with the Judiciary.

This is a very important proposal, not just for citizens of the State but also for the economy. It is important that this country be an attractive destination for business to locate here. One of the rule of law issues examined in this context is the independence and efficiency of court systems. In the most recent survey by a global forum Ireland was rated No. 4 in the world in the context of independence and efficiency. I want us to be rated No. 1 and the enactment of this provision and the establishment of the court of appeal can bring about that result. We need the support of the general public in that regard.

Deputy Pádraig Mac Lochlainn raised the issue of judicial appointments, on which he has published a Private Members' Bill. I have said the Department is conducting a review of the legislation applying to the judicial appointments advisory board. In 2014 I hope the review will be complete and any appropriate amendment to be made to legislation will be for consideration. The Deputy has said the engagement of individuals in politics, whether as solicitors or barristers, should not exclude them from appropriate appointments to the Judiciary. However, he then went on to criticise the fact that some of the appointments made by the Government had been of individuals identified with either the Fine Gael Party or the Labour Party. A survey was carried out and 70% of the appointments made during the lifetime of the Government were of individuals with no known association, not known to me certainly, with the Fine Gael Party or the Labour Party. Two thirds of the members appointed to the Judiciary had no such association; 30% had some association, but many of them were tangential and none of the associations had anything to do with the judicial appointments made.

All of the judicial appointments which have been made by the Government of new individuals - that is, persons who were not sitting judges who were promoted - have been of individuals included in the recommended list for appointment of the Judicial Appointments Advisory Board. We have not gone outside that list of names. I emphasise that they have all been appointed on merit. It is often only when I open the paper on the morning after an appointment that I discover an appointee has a tangential relationship with someone in politics. I tend personally to be unaware of people's engagements, bar those of a very small number who I know in the legal world who engaged in politics. One cannot say, on the one hand, that we should encourage people to engage in politics and that such engagement should be no barrier to appointment to the Judiciary and, on the other, criticise the appointment of any person who has previously engaged in politics. The one thing that can be said about the Judiciary is that since the foundation of the State in 1922, it has acted independently and made decisions independent of politics. While there were concerns in this area prior to the establishment of the Judicial Appointments Advisory Board, it is very difficult to find any judgment delivered by a member of the Judiciary since 1922 which was influenced by a political allegiance. I say that as a lawyer, not as a politician. We may all disagree with the conclusions reached in some cases or the reasoning adopted. As an academic lawyer, I have written articles about judgments with which I agreed or sometimes disagreed. None of this disagreement or agreement has been about politics, any person's background in politics or any suggestion that a member of the Judiciary has made a decision based on political bias. While looking at how we can provide an even better appointments system than the one we have, we should be careful not to raise public concern about the correct, independent, decision-making processes of members of the Judiciary.

A reform that was mentioned briefly is one I consider to be of great importance. It involves improving the transparency of the Supreme Court and applying the same principles to the new court of appeal where there is a constitutional challenge to existing legislation. The reform involves providing that all judges who sit to hear constitutional challenges to existing legislation may deliver, if they so wish, individual judgments. That would provide full transparency regarding the thinking and decision-making of the individual members of the court rather than there being a composite judgment which does not set out the views of individual judges on an issue of public importance. One of the great strengths of the Supreme Court of the United States of America has been the freedom of each judge to deliver in every case his or her own judgment. Dissenting judgments that might be delivered in one era may become the majority view in a different era in which there is greater insight and understanding of an issue. Thus, fundamental and important change may be effected. It is important to have that level of transparency and that members of the Supreme Court are not shackled in any way in their independent capacity to deliver judgments on issues of very substantial importance to the State. Whenever there is a constitutional challenge to legislation enacted by the Houses of the Oireachtas, it is important that there is full visibility of the decision-making processes, the reasoning applied and the manner in which the Judiciary responded to the arguments they heard from contesting parties on issues of public importance. This is a welcome reform. It provides greater visibility on important issues of constitutional and human rights. I hope it is widely welcomed.

I thank Deputy Catherine Murphy for raising certain other issues. She will know that I am an enthusiastic supporter of mediation. As someone who worked as a practising lawyer in the courts for many years, I am firmly of the view that far too many contested cases which are only settled outside the door of the court would more rapidly have been resolved if there had been an earlier intervention and parties agreed to resolve issues of conflict by way of mediation. There would have been a great deal less stress and substantial financial savings would have been made. We are addressing court architecture in this legislation. I published heads of a mediation Bill a few months ago, but it will not come to the House in final form until the end of the year or early next year. It is a Bill designed to encourage those who seek to head down the litigation route to engage in mediation before they go too far. We must do everything we can to encourage alternative dispute resolution mechanisms.

In particular, I thank Deputies Peter Fitzpatrick and John Paul Phelan for their contributions to the debate and supportive comments. While this appears to be a simple and worthwhile reform, it is important that Deputies engage with it and understand the benefits to the State, their constituents and every citizen of bringing about this change. It will be important for them to encourage a "Yes" vote and to ensure those voting understand the benefits of the proposal when a referendum is held on the issue. It will require an engagement by all Members within their constituencies. I hope the fact that the proposal is universally supported across the political divide will convince people that it is worth voting "Yes" to.

Deputy Catherine Murphy mentioned litigation in which the State is engaged and what can be done to resolve it earlier and at less expense. Of course, mechanisms are now put in place to encourage this. We have the State Claims Agency, for example. Where litigation to which the State is party can be resolved without full court hearings or where the State has been in error, such matters should be dealt with at the earliest opportunity and not left to be resolved outside the door of a court five minutes before a case is heard when all of the relevant costs have been already incurred and taxpayers may have to carry the bill. Deputy Murphy also asked if the Court of Criminal Appeal would be abolished. The court performs a very important role. It is not a court that sits every day, but one which sits from time to time. Not only is there a backlog of cases awaiting hearing in the Supreme Court, there is a backlog of cases awaiting hearing in the Court of Criminal Appeal. The architecture being proposed in the Bill seeks to create an overall court of appeal which sits in two divisions as a court of criminal and, for want of a better description, civil appeal, respectively. It is not a question of simply abolishing the Court of Criminal Appeal, but rather one of creating a constitutional architecture and foundation for a permanent version of the court with permanent judges whose remit will be to hear appeals. This is a genuinely important reform. It is, I think I am correct to say, the first reform of our courts structure resulting in the creation of a new court since the Constitution was adopted by the people in the referendum of 1937. It is the first step along the road to structural court reform.

Deputy Mac Lochlainn mentioned the Courts and Civil Law (Miscellaneous Provisions) Bill which is currently going through the Houses. That Bill seeks to modernise the jurisdictions of the courts to bring them up to speed after 22 years, and addresses a number of other issues which were referred to in the House already and which I will not revisit.

The next step along the route in this reforming agenda is that we will be addressing the issue of providing an independent integrated family court structure. This was the subject of an important seminar held on Saturday last. I look forward to further discussion on the creation of that court and the changes that will be needed to bring it into being, but we will come to that on another day.

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