James Browne (Wexford, Fianna Fail) | Oireachtas source

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

I am pleased to introduce the Court Proceedings (Delays) Bill 2023. Article 6.1 of the European Convention on Human Rights provides for the right to a fair trial in a reasonable time period. This right already has constitutional and common law standing in Ireland, and this Bill will place it on a statutory footing and ensure an effective and accessible remedy exists if it is breached, as required by Article 13 of the convention. Deputies will be aware of the judgment of the European Court of Human Rights in McFarlane v. Ireland in 2010 which found that Ireland did not have an adequate remedy in place. There has been continuous dialogue with the Council of Europe since that judgment, and Deputies will also be aware that there have been a number of proposals considered to address it.

The Bill before the House is based on a general scheme published in 2018 but which has been subject to significant changes on foot of legal advice and ongoing stakeholder input. The key considerations during the development process were to provide an effective and accessible remedy that is also cost effective without adding an additional layer of formal litigation that is both costly and lengthy. The Bill creates a statutory right to the conclusion of proceedings within a reasonable time, which will give a statutory basis to both an individual’s constitutional right and his or her right contained in Article 6.1 of the European Convention. The Bill provides for the establishment of an independent assessment process and under the aegis of the Department of Justice to assess claims for breaches of the right to the conclusion of proceedings within a reasonable time. Where an assessment is rejected by an applicant, he or she will be issued with an authorisation to initiate proceedings in the Circuit Court.

The model provided for in the Bill is accessible and robust. It facilitates the fair and objective assessment of whether an individual’s right to the conclusion of proceedings within reasonable time has been breached and, where it has, whether compensation is appropriate. The model provides for a declaration and, where appropriate, compensation more quickly and less expensively than court litigation.

Recourse to the courts remains available under the model. However, both the considerations in regard to the claim and the awarding of compensation have been standardised, which, along with the potential of being penalised for costs where the court determines an amount of compensation and this is the same or less than the award determined by the assessor, will promote acceptance of assessments. This will streamline the way in which delay cases are currently dealt with and will reduce the administrative costs and legal fees associated with the current system.

Before turning to the main provisions of the Bill, I will highlight some of the ongoing work to improve court procedures and reduce court delays. The report of the judicial planning working group, published in February this year, made 54 recommendations relating to five key areas, including enhanced data collection and management and additional judicial resources. In line with these recommendations, the Minister, Deputy Harris, secured Government approval in February to increase the number of judges. This increase will facilitate greater access to justice, clear Covid-19 backlogs and support the Government’s priorities to establish a planning and environmental court and dedicated family courts.

Approval was secured to appoint an initial tranche of 24 new judges in 2023, with the appointment of a further 20 judges to follow the implementation of reforms and efficiencies. Legislation is required to facilitate these increases. Three additional judicial positions in the Circuit Court were provided for in the Assisted Decision-Making (Capacity) (Amendment) Act 2022. On foot of that, the Government made three nominations to the Circuit Court to fill these additional posts. Two of these judges were appointed on 11 April 2023 with the final appointment made by the President last week. The remaining positions will be provided for by way of the Courts Act 2023. This concluded its passage through the Houses last Wednesday and was signed into law by the President on Friday. Officials are in the process of establishing an implementation programme to oversee the delivery of all recommendations set out in the report of the judicial planning working group. Central to this process will be the development of a suite of indicators that will demonstrate the impact of the additional judicial appointments.

The significant increase in Judiciary numbers and other recommendations of the judicial planning working group will be complemented by the implementation of the review of the administration of civil justice, which includes 90 recommendations with a view to improving access to civil justice in the State, promoting early resolution of disputes, reducing the cost of litigation, creating a more responsive and proportionate system, and ensuring better outcomes for court users. This represents the most significant reform of civil law in the history of the State. I understand the first annual progress report will be provided to the Government later this year.

We are also seeing the positive impact of the introduction of preliminary trial hearings. Preliminary trial hearings streamline the processes in our courts, allowing certain issues to be addressed together at the start of the trial and making the entire process faster and more efficient. This reduces the impact on victims in sexual offences trials as they are less likely to be subjected to stressful delays. It also improves trials for white-collar crimes, organised crime and other complex offences, making it less likely that juries will be sent away during a trial. All of these actions are underpinned by the Courts Service modernisation programme for 2020 to 2030, which aims to transform fundamentally how the Courts Service delivers services through greater and more effective use of information technology. While this work is ongoing, we are already seeing improvements. Ultimately, our goal is that delays that might give rise to a remedy arise only in the most exceptional circumstances.

I now turn to the main provisions of the Bill itself. Part 1 contains standard provisions and sets out the key definitions relating to the provisions of the Bill, including a definition of a "party" in relation to both civil and criminal proceedings who may make an assessment application and a definition of the "relevant proceedings" under which an assessment application can be made.

Part 2 provides for the appointment of a chief court delays assessor, who will be a retired judge or a practising barrister or solicitor of not less than ten years' standing, and the appointment of as many court delays assessors as the Minister considers appropriate. Each court delays assessor will be a retired judge or a practising barrister or solicitor of not less than five years' standing. Part 2 also provides for the assignment of civil servants from the Department of Justice as designated officers to assist court delays assessors in the performance of their functions.

Part 3 establishes the statutory right to the conclusion of proceedings within a reasonable time. This right encompasses an individual’s rights under Article 6.1 of the European Convention of Human Rights, Article 38.1 of the Constitution and any common law right. Any party to proceedings, where those proceedings have not been concluded, or within six months of their conclusion, or the coming into operation of this Act, can make an application for a declaration that their right, established under section 11 of the Bill, to the conclusion of those proceedings within a reasonable time has been breached and, where appropriate, for the payment of compensation. Part 3 sets out the matters to which an assessor or the Circuit Court must have regard when determining whether the section 11 right of a person has been breached. These include the complexity and duration of the proceedings concerned, the duration of the delay and the conduct of all parties related to the proceedings and the principles and criteria set out by the jurisprudence of the European Court in relation to the delay.

Part 4 provides that the Minister can determine the form an assessment application will take. It provides that assessments will be carried out by court delays assessors appointed by the Minister for Justice who will have the authority to request from an applicant or a third party clarification or further information or documentation required to make an assessment.

It is envisaged that the majority of third-party information requests will issue to the Courts Service, which will have the required information on the proceedings that are the subject of the alleged delay.

Part 4 also provides that claims will be assessed within six months of receipt and, where an assessor determines there has been a breach of an applicant’s right under section 11, he or she must then determine whether compensation is appropriate and the amount, if any, payable. Compensation will be determined by reference to the jurisprudence of the European Court and will be in line with the concept of just satisfaction under Article 41 of the European Convention on Human Rights, ECHR. This is an important feature of the Bill and will serve to safeguard against excessive awards. It is also in line with the 2021 Supreme Court judgment in O’Callaghan, where damages were awarded for delay, in line with the principles and practices of the European Court. An assessor will also have regard to any injury, loss or damage suffered by an applicant as a direct result of the breach of his or her section 11 right.

The model is designed to be both accessible and informal. However, provision has been made in Part 4 for an assessor to award reasonable legal costs to an applicant with regard to costs incurred in the making of an assessment application. This can occur only following a declaration by an assessor that the applicant’s right has been breached. To deter the making of unmeritorious claims, no legal costs will be payable to unsuccessful applicants. Under the Bill, the Minister can prepare and issue guidelines regarding the levels of legal costs that may be awarded by an assessor. Where an assessment is rejected by a claimant or the Minister, Part 4 provides that the applicant will be issued with an authorisation to initiate proceedings in the Circuit Court.

Part 5 provides for the process of applying to the Circuit Court should the applicant or the Minister not accept the outcome of the assessment made by the assessor. The application to the Circuit Court must be made within three months of the date of the authorisation. After hearing the application, the Circuit Court will make a determination and issue a declaration as to whether there has been a breach. In making a determination and subsequent declaration, the Circuit Court will take account of the same criteria that were examined by the court delays assessor and, similar to the assessment process, any compensation will be calculated by reference to the jurisprudence of the European Court of Human Rights and have regard to any injury, loss or damage suffered by the applicant as a direct result of the breach of the applicant’s right.

Part 5 also provides for the awarding of costs by the Circuit Court to the applicant or respondents, which can include an applicant’s costs in respect of the assessment application where they were not awarded by the assessor. As I stated, it also provides the potential for an applicant to be penalised for costs or the awarding of no costs in circumstances where the court determines an amount of compensation and this is the same as or less than the award determined by the assessor. Part 5 also provides for an appeal to the High Court on a point of law only and that such an appeal shall be final.

Part 6 provides for a number of miscellaneous matters relevant to the operation of the Bill. These include that an assessment application may be made on behalf of a party to proceedings where such a party is under the age of 18 or is over the age of 18 but, due to illness or disability, lacks capacity to make an application. Part 6 also provides that once an assessment becomes binding or the Circuit Court has made a decision on an application, an applicant will be barred from any further proceedings concerning the delay. This prevents a potential abuse of the remedy, which would only compound court delays.

I note that as part of the implementation process, officials are examining whether a Committee Stage amendment is necessary to provide for a nominal application fee, which would further guard against unmeritorious claims. Further procedural enhancements may also be considered on Committee Stage.

I remind Deputies that the approach set out in the Bill, providing vindication of an individual’s constitutional and ECHR rights, ensures Ireland is in line with its international obligations. I look forward to hearing the views of Deputies on the Bill and am pleased to commend it to the House.

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