Catherine Connolly (Galway West, Independent) | Oireachtas source

Fáiltím roimh an deis píosa cainte a dhéanamh maidir leis an mBille seo. Tá cuspóir aige córas cúitimh a chur ar bhonn reachtúil, maidir leis na cásanna coiriúla agus sibhialta, nuair atá moill míréasúnta i gceist. Tá sé tábhachtach a rá nach bhfuil an dara rogha ag an Rialtas ach an Bille seo a chur chun cinn go práinneach de bharr sraith cásanna, ag dul siar níos mó ná 20 bliain, ón Chúirt Eorpach um Cheart an Duine. Tá sé ráite go soiléir aici go bhfuil teip ar an Rialtas seo agus ar na Rialtais a tháinig roimhe seo. Bhí teip iomlán orthu córas a thabhairt isteach ó thaobh moilleadóireachta maidir le cásanna éagsúla.

I welcome the opportunity to speak on this Bill, which has six Parts and 37 sections. The Bill provides for a new framework for statutory compensation for breach of the right to a hearing within a reasonable time in both civil and criminal matters. I thank the Joint Committee on Justice for its work on the pre-legislative scrutiny of the general scheme of the Bill and for highlighting the issues. Its report, which was published in May, contains 13 recommendations. I might come back to those because it seems a substantial number of them were adopted completely by the Government, and just one was given a black mark, which is unusual. I welcome the committee's work and I will come back to the recommendations. The committee did say it was sceptical of the proposed non-courts model and it remains to be persuaded that the non-courts model set out in the general scheme is the most efficient way of providing a remedy.

A regulatory impact assessment was also carried out and, thankfully, made public. I have often said here that the regulatory impact statement has not been made public. In this case it has; however, all of the costs have been redacted. One of the issues that was raised by the committee was whether the non-courts model was the better one, but I cannot make any decision on that because all of the comparable costs have been redacted. I am not sure why that is. I went through the detailed regulatory impact analysis, which I welcome, but given that the costs have been redacted how can I or any reasonable person on the ground judge which model is the best? We are back to the patriarchal model whereby: "You don't need to worry about that because we know best. We have checked it and we have blocked out all the costs. Take our word on it." I have a little difficulty with that.

It is important to point out the background of this Bill. It was primarily drafted in response to a long line of cases decided by the European Court on Human Rights, which held that Ireland was in breach of Articles 6 and 13 of the European Convention on Human Rights. Article 6 guarantees that hearings must be provided within a reasonable time. Article 13 provides for the right to an effective remedy. Successive Governments have failed utterly to ensure that the cases were held within a reasonable time, and also to give a remedy when they were not.

As always, I thank the Library and Research Service for the very good Bill digest, which has highlighted points for Deputies. We have protection under the Constitution, which is very similar to the convention. Article 38.1 of the Constitution provides that "No person shall be tried on any criminal charge save in due course of law". It does not expressly protect the right to a speedy trial in criminal matters. However, the interpretation by the Supreme Court has repeatedly held that the right to a speedy trial is protected by the guarantee of the right to trial in due course of law.

While Article 38.1 is concerned exclusively with criminal trials, it is clear that the constitutional right to fair procedures contained in Article 40.3 includes the right to have civil litigation heard within a reasonable time. The entitlement to a prompt decision is an aspect of constitutional justice. The Supreme Court has characterised the right to an expeditious trial, as distinct from, though overlapping with, the right to a fair trial.

The focus of the Bill is the rights guaranteed by the Constitution and the European Convention on Human Rights. However, it must also be noted the right of a suspect or an accused in criminal proceedings to be tried with a "reasonable time" is also guaranteed by a number of international human rights conventions, including the EU Charter on Fundamental Rights.

In addition, the Bill also reflects the recommendations made by two recently published reports. I refer to the report of the judicial working group and the OECD report. I acknowledge all of that, but what is difficult for me is the amount of time it has taken to stand up, as has been mentioned by other speakers. McFarlane v. Ireland is the most significant of the long line of judgments. I will come to the judgment, which is dated 10 September, 2010. It has been more than 20 years since the ECHR first established that Ireland was in violation of the convention due to the lack of an effective remedy for unreasonable delay. We are not talking about ordinary or reasonable delay, we are talking about unreasonable delay.

The implementation of the McFarlane judgment from 2010 is currently under the supervision of the Committee of Ministers of the Council of Europe. It noted in September 2022 that "it remains a matter of profound concern that the remedy has not yet been established." The McFarlane case has been pending before the committee for 12 years and at that point 19 years had passed since the problem was first identified by the ECHR. It was stated that previous legislative initiatives had failed and that the authorities must act diligently and continue to give the necessary priority to the matter. In the 2022 annual report of the committee of Ministers, as Deputy Jim O'Callaghan has done, while acknowledging certain positive development, nevertheless, it indicated "profound dismay" that an effective remedy for excessive length of proceedings had not been established. In March this year, the Government submitted a revised action plan with particular emphasis on this Bill.

It is also important to note that since the McFarlane judgment in September 2010, there have been 27 cases against Ireland in the European Court of Human Rights, of which 14 resulted in a settlement or finding of a breach of rights. Notably, in April 2017, six years ago, the ECHR struck out the case of Blehein v. Ireland, following a unilateral declaration by the Government that there was no effective remedy under Irish law to deal with court delays and that this was incompatible with Article 13 of the convention. That was in 2017. It has been argued by this and previous Governments that there were remedies in Ireland, but the court stated that current remedies for undue delay were either prohibitively difficult to obtain for a variety of reasons or were very unclear in their scope and operation and, therefore, a new framework must be implemented if Ireland is to comply with its obligations under the European Convention on Human Rights.

In Keaney v. Ireland in 2020, the ECHR noted that the scope of a damages action, the circumstances in which a complainant is likely to recover damages following delay and questions of quantum all remain unclear and in need of development through practice and case law. In O'Callaghan v. Ireland in 2021 the Supreme Court held that there were systemic deficiencies that were known to the State, which had the effect of delaying the appeal in that case. It went on to make a declaration and damages. It noted that: "Delay can deny even a just judgment of its value." This is of particular interest. It went on to state: "There is a societal interest involved. If people believe that courts cannot vindicate their rights, then they will come to distrust the law itself, and the system within which the rule of law operates...What is in issue is not simply an aspirational precept: it is a fundamental principle necessary for the upholding of the letter and the spirit of the Constitution."

The Bill sets out the criteria and primary objectives, including what the chief assessor and the other assessors need in terms of qualification. The chief assessor must be a retired judge with a certain experience. The ordinary assessors do not need to be a retired judge but they need to have practised for a certain time. All of that is set out clearly and I have no problem with any of it. My difficulty is with the length of time is has taken to get this far, with the Government arguing nearly every step of the way, notwithstanding that in 2017 it fully accepted that there was no remedy in Irish law, and here we are in 2023.

I have a concern that a parallel system of justice is now being set up with what appears to be a quango. I keep an open mind on that. I would like to have seen the costing of it. The application is supposed to be dealt with within six months, which I welcome; it would not make sense to have a further delay. It needs to be reviewed every year to determine if it is achieving its purpose and what the costs are.

To broaden the issue, we let our systems become absolutely dysfunctional. Education was already mentioned in respect of assessments of need, and there is also the health system in providing a public health system, as well as the law. We are then forced by international bodies, in this case, the ECHR, or other bodies, to make changes. If we look at the health system, it is not a legal issue, but we let it become completely dysfunctional and then set up the National Treatment Purchase Fund, NTPF, to deal with the dysfunctional system, which itself has become embedded in the system even though it was supposed to be a temporary measure. Regarding direct provision, we have an obligation to carry out vulnerability assessments. I have no idea where we are on that. From my reading, we are failing miserably. In education, there is an obligation to carry out needs assessments. We heard the Deputy from the Rural Independent Group outlining the delays in that area.

I recently heard an interview with representatives of the Irish Penal Reform Trust, whose figures are truly staggering for the number of prisoners on remand without their cases being dealt with. On 26 May, the trust's report highlighted worrying trends and the rising numbers of people in prison, stating, "33% of prisoners are on waiting lists" followed by a reference of the situation in prisons. The actual number of people on remand has risen exponentially. In 2017, there were 584 and, in 2022, it was 875. The average number of people being held on remand in prison is growing. There was a 23% increase in the average number of people held on remand between 2021 and 2022 and a 50% increase since 2017, when this project by the Irish Penal Reform Trust was started. The data indicates that people held on remand are spending longer and longer periods waiting. Of the data published for 2019, there was an average of 31 people on remand for more than a year. This increase to 79 - an increase of 154% - in 2022. The increase in seriousness of charges has previously been cited by the Prison Service as a reason for this increase. However, the Irish Penal Reform Trust says that further information is needed to interrogate this interpretation. It points out that remand detention can have severe psychological effects, with suicide rates higher internationally among remand detainees than sentenced prisoners, according to the Council of Europe. Research in Ireland showed that recorded self-harm rates are consistently higher for remand prisoners than for those charged.

On every level, there is a need to put an end to the delays in processing cases, whether criminal or civil. That we now have to bring in a parallel system to put compensation on a statutory basis is an indictment of how the courts system has been underfunded. This system should not be necessary. There should not be a series of court cases from the ECHR and monitoring in place by the Committee of Ministers to ensure we do the right thing. Going back to the previous Dáil, much time was wasted by a certain Minister in relation to the courts system, who was not even in that brief, instead of analysing the problems of access to justice. Access to justice has been repeatedly highlighted by the current and former Chief Justices in relation to how unequal it is. Access to justice and the need to improve it have been the theme of their statements over and over. Legal aid, while under review, needs transformative change to ensure people have access to justice with legal assistance.

I welcome the Bill most reluctantly. I wish there was no need for the Bill. I wish that, at a certain point in the not-too-distant future, we will be able to take it off the Statute Book because we have sufficiently resourced our courts system to make it what it should be.

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