Catherine Connolly (Galway West, Independent) | Oireachtas source

I welcome this short Bill. Depending on how you count it, there are four pages and seven sections. The purpose of the Bill - to provide for an increase in the maximum number of judges - has been outlined frequently. I welcome that and it is positive. However, this is being introduced following ongoing and serious concerns being expressed by the Chief Justice of the Supreme Court, the President of the High Court, other courts and organisations on the ground about the serious lack of judges, which is leading to backlogs and ever-lengthening waiting lists.

The Bill is based on a comprehensive report, which I have read and looked at. I come back to the theme that keeps recurring in that report; the lack of judges and the consequent failure to provide an efficient court system. The report also mentions the interlinked changes that are necessary and access to justice, which will not be served completely by the increase in judges but which needs other fundamental changes as well. I thank the Oireachtas Library and Research Service for producing the Bill digest once again for us under pressure, as it does repeatedly. We should look at how it constantly has to produce papers for us under pressure and at the last minute.

The lack of judges has been the subject of significant criticism. It has been stated that "the single biggest thing that the Oireachtas could do to improve the quality of justice in Ireland is to legislate to provide for additional judicial posts", which we are finally doing. The current President of the High Court, as already mentioned, Mr. Justice David Barniville, has called for an increase in the number of High Court judges to address the volume of cases coming before the court and the complexity of cases, which has been pointed out in the report on more than one occasion. The report cites the Assisted Decision-Making (Capacity) Act 2015, which took seven years to implement, as an example, due to the complexity thereof and the consequences for the number of staff and judges needed to deal with that if we are serious about doing so. It took seven years to get that far.

The former President of the High Court, Ms Justice Mary Irvine, has called for the appointment of additional judges on a number of occasions. The number of judges increased in 2021 by five, but Ms Justice Irvine state that this was insufficient. She did not spare us. She told us bluntly what was necessary. She indicated that the additional five judges were already accounted for at that time and described the current situation as desperate.

We have also been subjected to criticism from the European courts and various other bodies. Here we are again. I welcome the Minister of State's work and that of the Department. We are finally making provision for additional judges. The report that is before me works along with the report from the OECD, which showed the huge gaps that exist here in comparison with other countries. The authors point out that it is difficult to make comparisons with other systems. I refer to the English system, for example, with its use of magistrates and so on. Notwithstanding those differences, we are way behind. All the statistics have been set out.

The increase in the number of judges is certainly very welcome and will help in improving access to justice, but it is only one aspect of access to justice that we are finally addressing. We are going to do it on a phased basis. I understand that because, a bit like housing, we have created a mess and left so many gaps that we can only now do it on a phased basis because when an extra judge is appointed, there must also be a team in place. I must declare a conflict of interest here because somebody very close to me works in that area. There is a whole team of judicial assistants, registrars and lots of other ancillary help that is required. We will do it on a phased basis.

This has been a theme of repeated public contributions by the Chief Justices over the years. They have spoken about the consequences of the lack of judges and the imbalance in power between people who have money and wealth, who can access law through the courts, and those who do not. They have repeatedly highlighted that. That is significant. It is something I might come back to if I have the time in the context of the role judges have performed for us. On occasions I can be quite critical of judgments that come down but by and large, given the restricted background and schooling from which judges come, they have nevertheless served us well. They have come out with judgments that have been extremely critical of the Government, particularly in the area of the environment, which I will come back to. Without them, I do not know where we would be, notwithstanding all the problems surrounding access to justice.

The current Chief Justice has welcomed this Bill and said it is "the first evidence-based attempt to assess the demand for judges on an objective and measurable basis". That is obviously very important. He said, "It is a real and tangible recognition of the fact that a functioning justice system is not a luxury, but is a critical component of a modern liberal democratic society, which is founded on the rule of law". He went on to point out that this is not enough either because people must know their rights around access to justice. He said high-quality decision-making in courtrooms is not the sole objective. He notes that if people do not know their rights to begin with, they cannot get a hearing. Maybe they cannot get a hearing because of the delays in the system or cannot afford to go to court if it is too expensive, as it is in many cases, despite the pro bonowork done by various solicitors and barristers. The risk of an adverse order is always there and therefore the quality of justice is not the quality we should have.

The Chief Justice also spoke about the legal aid system, which I will come back to. I welcome the fact that there will finally be a review of it. It has taken quite a long time to have a review of the legal aid system. All the restrictions under which that operated and the areas of law completely excluded from it are well known. I hope the review is an open and accountable review that looks to deal with access to justice on every level, particularly in respect of the environment and climate change, not to mention the Labour Relations Commission and all the other areas that are excluded if we are seriously interested in access to justice.

The previous Chief Justice, Mr. Justice Frank Clarke, is also worth mentioning. He repeatedly returned to the barriers to access to justice over and over in a conference in October 2021 and again just last year. I do not have the time to go into that but I want to pay tribute to the fact that he has repeatedly highlighted the barriers to justice, one of which is the lack of judges, and all the other barriers as well. He stated: "... there are undoubtedly areas where the problems of access to justice can be particularly acute. Minorities, marginalised groups or the vulnerable obviously run a real risk of having less effective access to justice than others." He elaborated on that. What is interesting is that he spoke about the moral requirement or argument justifying access to justice but also the practical argument that it is actually good for society and our economy. He goes into that and there was a special speaker on that matter at that conference. The real consequence of not taking action, of course, is that we are going to be subject to repeated condemnation. We have been there with the European Court of Human Rights and the Court of Justice. There are all these practical and serious consequences to not taking action. Today is a start in that regard.

There is a narrative that has emerged repeatedly with this Government and the previous Government that objectors are causing the housing problem or stopping development. It is a very dangerous and disingenuous argument that is not justified at all. With the new planning legislation that is going to come before us, we are going to restrict people's access to justice and to taking a judicial review. That is extremely dangerous and not based on any evidence. It is simply a narrative that seeks to divert attention from whatever government is in power and its failure to deal with housing or proper sustainable development. It is extremely dangerous and has to stop. The Government and various backbenchers are creating this narrative about non-stop objections, which is not based on reality. I spent 17 years working at local authority level. I saw people struggle to make reasoned submissions on planning applications against all the odds without being rewarded in any way. Rather, they were demonised. There was a very good article by a solicitor back in November which highlighted a lot of this. She wrote, "In a recent study by Community Law & Mediation and Dublin City University, representatives of vulnerable and marginalised groups – for example Travellers, migrants, older people – reported feeling largely excluded from environmental and planning decision making." She also made the important point that:

In the midst of a climate [and biodiversity] crisis, members of the public and NGOs should be empowered to fight for clean, healthy and liveable communities. Access to justice should be strengthened and promoted.

She further pointed out that "the entire process has been overshadowed by a troubling narrative driven by members of Government and the construction lobby". Of course, she also highlighted the Aarhus Convention, which has been brought up repeatedly in our courts.

The Minister is more aware of this than I am. The trinity of people involved in any planning application was highlighted repeatedly, namely, the developer, the local authority, and the members of the public who have a vital role to play in making sustainable submissions in relation to any given planning application. I will look quickly at what we owe various groups that have taken it upon themselves to go to court with all the problems and all the risks they have taken on. The Galway city ring road went to An Bord Pleanála, which granted permission for it. This was then challenged and that decision was quashed because An Bord Pleanála, the highest planning body in this country, failed to take on board the relevant climate action plan. It was not aware that an action plan had been passed by the Government four days before An Bord Pleanála made its decision. Seemingly it was not aware of all the other climate legislation or obligations either. Again, we are thankful to a group on the ground who took that case.

I go back to the climate mitigation plan quashed on 31 July 2020. This seems to be a significant date every year because it is the same date connected to the sprat case which I will come to in a minute. The Friends of the Irish Environment challenged the Government's mitigation plan. This was in 2020 after we had declared a climate and a biodiversity emergency. The High Court determined that the Government's national mitigation plan did not comply with the requirements of the underlying legislation. The reasons quoted were vagueness, lack of specificity and that the citizen was entitled to know what the law was saying, which did not happen in that case. There have been many other cases. I mentioned the sprat case, which is particularly important. The Government did everything right on this occasion and brought in a policy to stop large vessels of more than 18 m from going into inland waters to fish unsustainably. They gave a lead-in period in relation to the sprat. Two people, as was their right, challenged that and took the case. Three or four years passed. As they were found successful on one specific area, given that consultation with Europe and England had not taken place, that policy was set at naught. The point I am making is the fact that it took so long in the courts. There also seemed to be no urgency on the part of the Government to make a case that this was extremely important for the sustainability of our fishing stock and for fishermen. No case was made at all, it would seem. Again, ordinary people are bringing cases to our attention on a constant basis.

If this is the start of seriously looking at making justice accessible to all regardless of means, then it is a good start and I welcome it. However, this is only one tiny piece of the jigsaw and the other pieces are there. We know people do not have equal access to the courts. We know there are many barriers, cost being one of them, and no provision in Irish law to allow for people to come together and take an action jointly. I will repeat it again. This is really relevant when we look at a climate and biodiversity emergency and a housing crisis. A narrative that is repeated non-stop is that the objectors are to blame, as opposed to listening to what people are telling us at great trouble and at great cost. They use the courts as best they can in the most limited way and we should be learning.

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