Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

The reform proposals were favoured by those who engaged in the consultation process on the issue. They will also ensure the Supreme Court will only hear cases that merit its attention and make certain that there is coherence to the courts architecture, which is not the case currently.

It is worth recalling that there has been continuing growth in High Court litigation, which has seen the number of High Court judges increase from seven in 1961 to 36 today. By contrast, in the same period the increase in the number of Supreme Court judges has been from five to ten, following the appointment of two additional Supreme Court judges in October 2013. This has enabled the Supreme Court to sit in two panels on a continuing basis which has certainly assisted in the rate of disposal of cases. However, the backlog that has accumulated in the Supreme Court in the past few years requires a more fundamental reform to bring about a more efficient appeals system.

There is no point in having a situation where gains in High Court efficiency are being lost at appeal stage because there is only one court to which an appeal may lie. The absence of a court of appeal has led to a huge volume of cases being referred to the Supreme Court, compared to the situation in other similar common law jurisdictions. In consequence, a considerable proportion of Supreme Court time is being spent in correcting errors of law, rather than in developing the law in a reasoned fashion. As the volume, duration and complexity of appeals continue to grow, the Supreme Court's case load is becoming increasingly unsustainable. Cases are taking longer to hear, with the average waiting time for cases to be heard currently at 48 months. That means that, in the absence of a court of appeal, somebody lodging an appeal with the Supreme Court today might not have his or her case decided before 2018. Even cases with a priority listing are taking up to 12 months to come to hearing.

Litigants have a right to a fair and speedy trial. As well as being a matter of natural justice, this right is recognised in Article 6 of the European Convention on Human Rights. It will be recalled that Ireland has already had to pay compensation to individuals who have successfully taken cases to the European Court of Human Rights in respect of delay. Apart from the impact on individual litigants, the delays being experienced have economic consequences which might influence external investment decisions and act as a barrier to growth. They also have implications for our ability to honour international obligations which may give rise to reputational damage and financial penalties. Today's international business world works best where the law is clear, where the judiciary is independent and where those who find themselves either asserting their rights or defending their actions before the courts can expect to have a final determination without undue delay. If all other things are equal, international investors will favour a country with an efficient and effective legal system which is capable of dealing with the administration of justice in a reasonable timescale over a country without such a system.

Before discussing the Bill before the House, I pay tribute to my predecessor as Minister for Justice and Equality, Deputy Alan Shatter, who did a great deal of valuable work in steering both the constitutional referendum and this Bill to the point we have reached.

The establishment of the court of appeal requires the enactment of an implementation Bill which will provide for the establishment of the court, the appointment of judges, their remuneration and a number of other issues. The Court of Appeal Bill is technical in nature and contains a large number of provisions aimed at amending existing legislation in order to accommodate the new court within the architecture of the existing courts structure. Given that policy in this area was essentially fixed by last year's referendum, the Bill does not give rise to significant policy issues. However, it addresses important legal considerations as to how best to reflect the constitutional provisions which relate to the new court and regulate the relationship between it and the Supreme Court.

In the normal course, it would be usual to go through the Bill on a section by section basis, explaining each section. In this instance, however, and given the nature of the Bill, I propose to focus, first, on a specific number of topics, after which I will deal with other stand-alone issues.

Section 6 provides for the establishment of a court of appeal in accordance with the terms of Article 34A of the Constitution and the appointment to that court of a president and nine ordinary judges. Section 13 sets out the remuneration of the president and ordinary judges of the court of appeal. In this regard, following consultation with my colleague, the Minister for Public Expenditure and Reform, it has been agreed that the president of the court of appeal shall be paid €200,000 per annum and that the salary of an ordinary judge of that court shall be €177,803 per annum. These figures have regard to the revised rates of judicial pay set by the Department of Public Expenditure and Reform in June 2013, following the enactment of the Financial Emergency Measures in the Public Interest Bill 2013 and the reductions applied by virtue of that Act to judges' pay on foot of the twenty-ninth amendment to the Constitution concerning judicial remuneration which was approved in 2011. The rates of remuneration envisaged also have regard to the rates paid to the Chief Justice and ordinary judges of the Supreme Court and the President of the High Court and ordinary judges of that court.

With regard to pensions, the legislation recognises the fact that for any serving judge who may be appointed to the court of appeal and was appointed to judicial office prior to I January 2013, it will be necessary to maintain the existing pension provisions which are complex and spread over a number of Acts. This is provided for in sections 14 to 16, inclusive. For serving judges appointed on or after 1 January 2013 or appointees who are not serving judges, the single public service pension scheme will apply and no special provision is required in the Bill in respect of such persons.

Section 17 provides that, in the main, the age of retirement of a judge of the Court of Appeal shall be 70 years. This section also specifies that, as an exception to the general rule, a judge of the Court of Appeal who is already a judge of another court and who is entitled to retire at the age of 72, shall continue to be entitled to retire at that age.

In relation to the appointment of judges to the Court of Appeal, Deputies will recall that the Government has announced Mr. Justice Seán Ryan as president-designate of that court. The tenure of a President of the Court of Appeal will be for a period of seven years, as is the case with other presiding judges.

Sections 10 and 11 make the necessary amendments to provide that the Judicial Appointments Advisory Board, JAAB, will have a role as regards the appointment of ordinary judges of the Court of Appeal, except of course in relation to serving judges who do not go through the JAAB process.

On a more general note, Deputies will be aware that a major review of the judicial appointments process is underway, to ensure that it reflects current best practice, that it is open, transparent and accountable, and that it promotes diversity while also protecting the independence of our Judiciary.

My Department is currently examining submissions which have been received and I am most anxious that if reforms are to be made they derive from a considered consultative process, including public debate.

To give Deputies a flavour of the submissions, the most significant theme emerging is the need to make the Judicial Appointments Advisory Board more central to the process and, by the same token, to make the process less political. I envisage that I will be in a position to bring proposals for reform to the Government later this year.

Following the current practice, provision is made in section 6 for the Chief Justice and President of the High Court to be ex officioadditional judges of the Court of Appeal. That section also provides that the President of the Court of Appeal shall be ex officioan additional judge of the other superior courts.

Furthermore, ordinary judges of the Supreme Court or the High Court may sit as additional judges of the Court of Appeal when, because of illness or for other reasons, there are insufficient judges available to transact the business of the Court of Appeal. In this regard, analogous provisions are to be found in section 31 with regard to the High Court, and section 42 which concerns the Supreme Court.

Section 8 of the Bill sets out the jurisdiction of the Court of Appeal which, of course, flows directly from the Constitution itself. The Courts (Supplemental Provisions) Act is amended by the insertion of a new section 7A which provides that the Court of Appeal shall be a superior court of record. In broad terms, the Court of Appeal will have the jurisdiction which, immediately before the establishment day, was vested in or capable of being exercised by, the Supreme Court, the Court of Criminal Appeal and the Courts-Martial Appeal Court.

The Court of Appeal may sit in divisions of three judges, which divisions may sit simultaneously. The section also provides that interlocutory applications may be heard either by the President of the Court of Appeal sitting alone, or by another judge sitting alone who has been nominated for that purpose.

There are certain provisions towards the end of the Bill which also have a jurisdictional import. Section 68 deals by way of general amendment with the numerous references which at present exist in a variety of enactments in relation to appeals to the Supreme Court, including proceedings by way of cases stated to that court. For ease of reference, Schedule 2 deals with those Acts where consequential textual amendments are required.

Section 69 contains a provision in respect of decisions of the High Court in respect of which further appeal is possible in certain circumstances. This provision, which is general in nature, is to the effect that where there is a limitation in legislation on an appeal from the High Court to the Supreme Court, the limitation shall be read as being without prejudice to the provisions of Article 34.5.4^oof the Constitution to the effect that the Supreme Court shall have appellate jurisdiction from decisions of the High Court in exceptional circumstances.

A similar provision in respect of decisions of the High Court which are final and not subject to further appeal is to be found in section 70. A further related provision is set out in section 9 of the Bill which amends the Courts (Supplemental Provisions) Act 1961 by inserting a new section 7B. That section 7B provides that the Court of Appeal may, in certain circumstances, stay proceedings before it in respect of an appeal from a decision of the High Court. The purpose of this would be to enable the applicant to apply to the Supreme Court for leave to appeal the decision of the High Court under Article 34.5.4^oof the Constitution.

An issue which obviously arises on the establishment of the Court of Appeal is how to deal with appeals to the Supreme Court which have not yet been heard at the time the new court is established. Essentially what is envisaged is that the Chief Justice may, if satisfied that it is in the interests of the administration of justice and the efficient determination of appeals to do so, and with the concurrence of the other judges of the Supreme Court, give a direction that appeals falling within a certain class of appeal, which are pending before the Supreme Court shall be heard and determined by the Court of Appeal.

On application by any of the parties to an appeal, the Supreme Court may, if it is satisfied that it is just to do so, cancel or vary the effect of that direction in so far as it relates to that appeal. Specific provision is not made in this Bill, given the detailed arrangements which are set out in the Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013.

As a consequence of the establishment of the Court of Appeal, both the Court of Criminal Appeal and the Courts-Martial Appeal Court will be abolished. Section 8 amends the Courts Supplemental (Provisions Act) 1961 to provide that, subject to the transitional provisions to which I shall return shortly, the jurisdiction of the Court of Criminal Appeal and the Courts-Martial Appeal Court shall be vested in the Court of Appeal.

Section 67 repeals a number of relevant provisions which touch upon those courts, while section 72 puts in place transitional arrangements for cases which are in being before those courts on the day of the establishment of the Court of Appeal. Essentially, what is envisaged here is that where an appeal to either the Court of Criminal Appeal or the Courts-Martial Appeal Court has been initiated and heard, either in full or in part by either of those courts, that those courts will retain their appellate jurisdiction in relation to the case in question.

The establishment of the Court of Appeal requires certain adaptations in both the civil and criminal legal aid regime and these are to be found in sections 44 and 51 respectively. Associated provisions which have a bearing on the courts-martial appeal legal aid regime are to be found in sections 47 and 48 of this Bill.

Deputies will be aware that the Court of Criminal Appeal currently sits on an ad hocbasis, relying on a combination of Supreme Court and High Court judges. Approximately 570 cases are currently lodged before that court. While section 18 provides that it shall be the function of the President of the Court of Appeal to arrange the distribution and allocation of the business of the court, and to arrange the divisions which are referred to in section 8, I anticipate that the Court of Appeal will have a dedicated criminal panel, at least in the initial stages, until such time as the current backlog of cases before the Court of Criminal Appeal has been addressed.

Section 8 provides for a single judgment rule in criminal appeal cases heard by the Court of Appeal, as is the practice in both the Court of Criminal Appeal and the Special Criminal Court at the moment.

It is not every day that we move to establish a new court and, in recognition of the fact that some issues in the future may require attention, section 3 gives a broad power to make regulations to deal with unanticipated difficulties which might arise in bringing provisions of the Act or of specified articles of the Constitution into operation. The provision applies for a two-year period and, if any regulations need to be made under the section, they will be subject to an approval resolution by each House of the Oireachtas. While a provision of this nature is not commonplace it is not without precedent and a similar provision can, for instance, be found in the Local Government Reform Act 2014.

Deputies may also be interested in matters concerning where the new Court of Appeal will sit. Appeals in civil matters will be heard by the court sitting in the Four Courts campus, while sittings relating to criminal matters will be heard in the Criminal Courts of Justice.

The Office of the Registrar of the Court of Appeal and its staff will be located in Áras Uí Dhálaigh, which is part of the Four Courts complex. The creation of the Court of Appeal provides an opportunity for the courts and the Courts Service to explore new ways of doing business. In particular, it presents an opportunity for reform of some of the practices and procedures which are currently in place in the Supreme Court and the putting in place of appropriate case management structures in both the Supreme Court and the Court of Appeal. I want to place on record my own and the Government's appreciation of the leadership provided by Chief Justice Denham both in respect of this project and in her management of the Supreme Court list.

While case management in the Supreme Court is currently conducted on a non-statutory basis, I consider it appropriate that statutory backing be provided to underpin the reforms which I know the Judiciary is keen to embark upon. Therefore, I will move an amendment on Committee Stage which will provide that the Chief Justice and the President of the Court of Appeal, as appropriate, may issue practice directions in respect of appeals or applications made to those courts. It is envisaged that such practice directions may relate to both civil and criminal proceedings.

Turning now to some of the other provisions of the Bill, the precedence of the judges of the new court vis-a-visthe judges of the existing courts is set out in section 27. Section 19 concerns the President or ordinary judge of the Court of Appeal travelling with, and sitting as part of, the High Court on circuit. Section 20 provides for the making of Rules of Court in respect of the Court of Appeal while sections 23 and 24 provide for the establishment of the Office of Registrar of the Court of Appeal, the appointment of the Registrar of that Court and the appointment of deputies for the Registrar of the Court of Appeal. The provisions relating to that office mirror those which apply to the Supreme Court.

Part 3 of the Bill contains amendments to a range of Acts to take account of the establishment of the Court of Appeal. For example, section 39 amends the Seanad Electoral (Panel Members) Act 1947 to allow a judge of the Court of Appeal to be chairman of the appeal board which hears appeals from decisions of the Seanad returning officer under that Act. A further example relates to section 49, which amends the Ethics in Public Office Act 1995 to allow a judge or former judge of the Court of Appeal to be appointed chairperson of the Standards in Public Office Commission. Provision is also made to put in place the arrangements necessary should a chairperson of the commission who is a judge of the Court of Appeal be temporarily unable to act and for the continuation in office as chairperson of a person who ceases to be a judge of the Court of Appeal and who is not appointed to another judicial office.

In conclusion, the Bill provides for the establishment of the Court of Appeal in accordance with the terms of Article 34A of the Constitution. Furthermore, important legal considerations as to how best to reflect the constitutional provisions which relate to the new court and which regulate the relationship between it and the Supreme Court are set out in the Bill. I am of the view that a modern and complex society such as our own which has undergone, and indeed continues to undergo, rapid change places many demands on our legal structures and it is right that those structures should be examined and, if necessary, reformed to reflect the changing face of society. In this instance the establishment of the Court of Appeal will address many of the challenges and demands which face our court system and should result in a more positive experience than heretofore for all those who interact with it. I look forward to hearing the views of Deputies on the proposals contained in this Bill and I commend this Bill to the House.

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