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

The suggestion was made that the increase in jurisdiction limits should await the enactment of the Legal Services Regulation Bill. The latter is only one of the measures being taken to ensure the modernisation of the legal professions and a more transparent and competitive legals costs regime. There is no justification for linking implementation of the new regulatory and legal costs architecture under that Bill to the roll-out of other policy changes.

Concern was also expressed in regard to resources and the capacity of the courts to deal with the new business that will come before them. The reality, however, is that where a substantial number of cases which currently come before the Circuit Court migrate to the District Court, there will then be space within the former to deal with an increased workload. This will, in turn, result in fewer cases coming before the High Court and will facilitate speedier hearings before that court. We will keep a careful watch on the resources of the courts and their capacity to deal with matters. In a context where fewer cases came before the District Court in 2012, we are confident the latter has the capacity to exercise this additional important jurisdiction. If any difficulties arise, we will ensure they are addressed.

Deputies Richard Boyd Barrett and Shane Ross raised issues with regard to the appointment of members of the Judiciary. This was a point also raised by Deputy Pádraig Mac Lochlainn during the debate yesterday on the Thirty-third Amendment of the Constitution (Court of Appeal) Bill. Deputy Boyd Barrett made the specific suggestion that we move to popular voting to select Supreme Court judges. He did not, however, explain how that might work or what type of campaign individuals might run for appointment to the court. He did not indicate how such persons might explain to a public to whom they would not necessarily be generally known the reasons they should be appointed. I disagree fundamentally with the Deputy's proposal in this regard. We must be always careful not to politicise the Judiciary. The absolute independence of our Judiciary has been demonstrated time and again and we would be ill served by adopting a system of elections in which leading lawyers were forced into taking public positions on issues of controversy. We might have a situation, for example, in which people ran for the Supreme Court on a "hang 'em and flog 'em" ticket.

Would they make promises with regard to how they might interpret particular parts of the Constitution? Would they indicate what they might do if there was a challenge to some aspect of the Constitution? Would they publicly identify individuals who, if they were brought before the courts, would be "sent down"?

This is a completely nonsensical proposal. In some small areas of the United States, campaigns are run to have people appointed to the judiciary. I do not believe such a system would be of benefit to the Irish people and it is not one which our Constitution envisages. I certainly do not believe that we should hold a constitutional referendum to provide for such a system. It would, of course, be very interesting to see what sort of campaign People Before Profit candidates for appointment to the Supreme Court would run. What qualifications would be prescribed? Would it be necessary to ascribe a particular ideology to oneself or would one run on a party ticket or as an independent individual? This is a completely unworkable proposal and it is not one which I would remotely favour.

I am on record as saying that because the Judicial Appointments Advisory Board has been in place for a number of years, it would be a good idea to review how it works and also how the mechanisms for the appointment of members of the Judiciary operate. We must do this while ensuring that no issues arise with regard to judicial independence. I repeat what I said yesterday, as Deputy Ross was obviously too busy to join us yesterday for the interesting debate which took place in respect of the court of appeal. Because of the outrageous contribution he made in the House this morning, I reiterate that yes, there have been suggestions from time to time going back many years that particular individuals have been appointed to the courts for their political affiliations. As a lawyer who has practised law for 30 years and who has written academic papers in respect of the law, it is almost impossible to find, going back to the foundation of the State, a single member of the Judiciary, at any level, who has delivered judgments as a member of the Judiciary which anyone could say were based on political partisanship. We may disagree with certain decisions made by judges or we may puzzle over or applaud them. The important thing is, however, that the Judiciary is independent in its operation and that this should continue to be the case.

We operate under a system of separation of powers. If matters are dealt with in the courts in a way which is not appropriate or which gives rise to concern, then it is right that this House has a role in the context of introducing amending legislation. However, the House does not have a role in the context of delivering judgments. The latter must be delivered in the courts when cases come before them. The House should never do anything to undermine the credibility of the courts system, which enjoys an extraordinary and worldwide credibility. As stated yesterday, the global forum rated our courts, in the context of independence, efficiency and integrity, as fourth out of the 146 countries studied. It is absolutely appropriate that we should engage in a debate on whether there is a better system for the appointment of members of the Judiciary, whether the system operated by the Judicial Appointments Advisory Board is the best on offer or whether there is something different which we should do. I do not believe it is appropriate that any Member of the House should make global accusations against current or past members of the Judiciary and then attempt to traduce the name of a single individual member thereof. I deplore Deputy Ross's conduct in the House this morning.

It is very easy to come before the House and make global accusations. It is also very easy to target an individual with an accusation intended to damage his or her reputation and generate an easy headline, particularly in circumstances where said individual is not in a position to defend himself or herself. Deputy Ross is associated with a newspaper which relishes that sort of approach. On a weekly basis, those at the newspaper in question hold an editorial meeting at which they decide who will be their target for the coming Sunday. The newspaper in question has a formula which is used with great regularity and which includes well-practised techniques of targeting individuals with accusations. On occasions that newspaper does not get things right, while on others it does. However, there are times when it just develops a narrative. If possible, where the individual who is being targeted is not in a position to defend himself or herself, then those at the newspaper will be quite happy about that fact. If the person is in position to defend himself or herself, then what he or she says will be used to further target him or her.

This is not something which should happen in the House. Deputy Ross made the following accusation, "Political appointees have got through the process of JAAB...". What is a political appointee? I am not aware that when the names of a number of individuals are submitted the Judicial Appointments Advisory Board in order that it might consider them for appointment to the Judiciary, that it would seek to ascertain whether any of those individuals is or is potentially a political appointee. The legislation under which the board, on which the Chief Justice and the presidents of each of the courts sit, operates is designed to ascertain the eligibility of an individual for appointment to the Judiciary and, based on his or her record, whether he or she would be appropriate for appointment. The board then submits a number of names to the Government for its consideration. It is inevitable that, in a democracy, some individuals who are engaged in the practice of law will have an interest in politics while many others will not. On some occasions those with an interest in politics will engage with political parties. Some others may engage because they have a particular specialty interest in the area of law in which they are practising, are frustrated by a lack of reform and may use their expertise to try to influence politicians to enact reform in the public interest.

Is it being suggested that, in a democracy, because an individual at some stage engaged in politics, sought election or was associated with a political party, he or she should be excluded from judicial appointment in circumstances in which the Judicial Appointments Advisory Board recommends him or her for such appointment, not by virtue of any political criteria but rather as a result of his or her legal expertise? Is that what Deputy Ross is suggesting? If any individual who is engaged in politics is appointed to the Judiciary, is he or she to be smeared with the accusation that he or she is a mere political appointee in order to suggest that he or she is undeserving of his or her appointment? During his or her time as a serving judge, should he or she be the possible subject of a smear to the effect that he or she is not fit for the office to which he or she has been appointed?

What was the point of Deputy Ross's performance earlier this morning other than trying to generate a cheap headline and grab attention? The Deputy did not address a single issue relating to the Bill. I deplore his conduct in the House this morning in the context of the impact it could have on the reputation of members of the Judiciary. I repeat what I said yesterday in respect of every appointment to the Judiciary made by the current Government since I became Minister for Justice and Equality. Those who served in previous Administrations can speak for themselves but I am certainly not going to cast aspersions on any existing or retired judge. Every judicial appointment made since I became Minister has been the result either of individuals being promoted from one court to another - I do not believe a single individual has been promoted who would not be seen, from an objective point of view, to have deserved such promotion - or being recommended for appointment by the Judicial Appointments Advisory Board.

For the information of those Members of this House who do not know it, when that board makes recommendations, it furnishes two lists, namely, the full list of all the people who applied for appointments and a list of all the names it would recommend. I can tell Members there are always people it does not recommend and always some people it recommends. The legislation allows the Minister to make appointments from either list but not a single appointment has been made from any proposal other than the list of those recommended for legal expertise. It is unfortunate that if a lawyer was involved in democratic politics in this House at some stage, and if through merit and on the recommendation of the Judicial Appointments Advisory Board they are appointed to the Judiciary, they should be fair game for accusations that they are a political appointee. It is a game the media play because they love to look back and see if an individual engaged in politics somewhere, if they might have run for election and not succeeded or if they might have been a Member of this House and suggest their appointment lacks merit. It is a dangerous and an unfair game in which to engage.

Deputy Ross said he does not want political appointees and then he came up with the alternative to Deputy Boyd Barrett of how judicial appointments might be made. He said judges should be appointed in a transparent manner and that they should be brought before Oireachtas committees in order that they could be questioned in a demanding way. This is from a Member of this House who does not want to politicise the appointment of individuals as judges. Are we going to introduce the sort of system we have seen in the United States that has created great difficulties where potential appointees to the judiciary there come before a justice committee and are cross-examined on their views about the interpretation of the constitution and on what they personally believe? Under such a system, individuals could be examined, for example, on how they would personally interpret the issue that has given rise to so much debate in this House this week, how they would interpret Article 40.3.3°. Would they have to look at the committee and assess who is on which side of that debate because they would not get recommended unless they said the right thing? They might be asked their view if a particular individual were prosecuted and whether they would convict that individual.

Is that the sort of system we want where we turn the appointment of members of the Judiciary into a party political game in this House or into a game where Deputies have to determine whether the particular individual would adjudicate on speculative cases in a manner they would approve of? That would essentially constitute this Parliament interfering in judicial independence and in the appointments system. I do not believe we should travel that route. For someone to make accusations in this House about political appointees and then suggest we further politicise the making of judicial appointments is an indicator of the extent to which that issue is thought through prior to that Member making the contribution he made.

A number of Deputies raised concerns about family law matters and I thank them for the comments they made. I am sure my colleague, Deputy Mary Mitchell O'Connor, who referred to a particular case, and Deputy 'Ming' Flanagan, who referred to another case, will understand that I cannot address individual circumstances of cases that have arisen. I have made no secret for many years of my view that we should have a separate integrated family court system. There is a need to ensure those whom we appoint to such a court have the insight, expertise and common sense to make decisions in such a court. I regret that we do not currently have, and that due to limited resources I cannot instantly provide, the sort of welfare assessment service our courts should have in dealing with custody disputes and access issues to help judges decide how to best make decisions. I believe we should have an in-court mediation service throughout the country in each of the courts dealing with family matters to try to deflect people from litigation into resolving their issues by agreement, but we do not yet have the funds for all that. However, change is taking place. A number of improved facilities for family law have been introduced in some new and refurbished venues. The situation in some venues is unsatisfactory and in Dublin in particular it is less than satisfactory, but there has been change. Deputy Mitchell O'Connor mentioned Dolphin House which is the busiest family law office in the country, accounting for a very significant percentage of barring and safety orders in the area of domestic violence issues nationally. The building was completely refurbished in 2007 with additional consultation rooms, two additional court rooms and an additional child care court has also been provided, but the Courts Service acknowledges there is still a shortage of consultation rooms, for example, in Dolphin House. Family law Circuit Court facilities are provided in three dedicated family law courts in Phoenix House in Smithfield, which has eight consultation rooms and other necessary facilities for family law court users, judges and staff, but I do not believe there is sufficient consultation rooms in Smithfield for the number of people who attend there to have their family disputes resolved.

Deputy Stanton, among others, referred to the proposals for a separate family court. I hope that by this time next year we will be on the verge of a referendum being held to establish our new integrated unified system of family courts. I hope also next year to bring forward the finalised mediation Bill which has already been published in draft form.

With regard to what was said about some family cases, when Deputies hear of family cases that have been before the courts for many years, the story and the reasons for that are always complex. One of the great difficulties in the area of family dispute, in particular in relation to children, is to get estranged spouses or parents to implement arrangements in the interests of the welfare of their children rather than engage in an ongoing war and using the children as ammunition in that war.

Deputy Niall Collins requested clarification of what can be deemed a lengthy case for the purpose of allowing additional jurors to be selected for a criminal trial. That is dealt with in the proposals in the Bill where it provides that additional jurors may only be selected where the judge is satisfied that the duration of the trial is likely to exceed two months.

The Deputy also raised the need for confidentiality for persons accessing the new personal insolvency arrangements. The identities of persons who enter into new insolvency arrangements should be made available only to relevant creditors. Registration of the grant of a protective certificate or the fact that a person has been granted a debt relief notice, debt settlement arrangement or personal insolvency arrangement is a necessary feature of our new insolvency legislation. To protect the constitutional rights involved and to prevent potential actions for judicial review, the Act provides for enhanced oversight by the court of the new debt resolution procedures. This court involvement has the significant benefit to the debtor of providing protection from enforcement actions by creditors either during the negotiation period or during the lifetime of the arrangement. The granting of a protective certificate, to have its full effect, must be registered in the appropriate public register. Likewise, the successful conclusion of and arrangement must also be recorded. This is normal in other jurisdictions and I am not of the view that this imposes a significant burden nor does it expose a debtor to shame. Of course, the decision to seek to participate in a debt resolution process is theirs alone. However, it is important to emphasise that only the basic facts of the existence of a protective certificate granted with a debt relief notice, debt settlement arrangement or personal insolvency arrangement will be entered in the insolvency registers.

Detailed information concerning the debtor's financial affairs will not be made public. The provision for a public register of insolvency arrangements is common in many countries, including the UK. The new EU insolvency register has a requirement for the interconnectivity of public insolvency registers.

I should also mention that a register of bankruptcies has existed in this State for a very long time. I am conscious that I have a covered a large number of matters that have been raised by a number of Deputies. I am sure we will return to many of these issues in the context of the discussion that will take place on Committee Stage.

I wish to briefly reference certain matters. Deputy Luke ‘Ming’ Flanagan raised the issue of guardianship of children in circumstances where a child is born outside marriage. As I have informed the House, we are looking at the law relating to parentage and guardianship and I hope we will publish before the end of the year heads of a Bill in this area for discussion purposes and that we will have a final Bill in 2014 to address many of the issues and difficulties in this area in a careful and considered way.

Deputy Stanton raised a number of issues. He made reference to the family courts. One of the issues he mentioned was the concern expressed at the conference that was held last Saturday about the risk of specialisation in relation to members of the Judiciary. While specialist family courts where judges exclusively deal with family law matters work very well and very successfully in a number of countries, Europe is not as up to date in this area as are courts operating in some parts of the United States, Australia, New Zealand and in a number of other countries. That is an issue for further discussion as we consider in the coming months the structure of a new family court and the qualifications or eligibility factors for being appointed to it.

I am very interested in the concept of community courts that Deputy Stanton raised. We have a form of community court at the moment in the work our drugs court does. That is something we are examining within the Department and I look forward to furnishing a paper on the issue for the consideration to the Oireachtas Joint Committee on Justice, Defence and Equality that might form part of a dialogue as to whether some interesting developments could take place.

Deputy Frank Feighan raised issues around the Courts Service and the closing of courts. It is important that we ensure we use resources wisely. When I came to office there were courthouses which were not fit for purpose. We have a large number of courthouses, some of which only deal with limited business.

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