James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank Deputies for their contributions on this Bill. Several important points have been raised and while I will touch on some of them now, I look forward to engaging with Deputies further on them. At its heart, this legislation does two things: it places on a formal statutory footing the right to trial within a reasonable time and it establishes a simple and accessible means of vindicating that right. The statutory right created reflects the constitutional position already in place in Ireland and ensures that full expression is given to Article 6(1) of the European Convention on Human Rights. These rights apply to both criminal and civil proceedings - to the defendant in criminal proceedings and to all parties in civil proceedings.

I referred in my opening speech, as Deputies have throughout the debate, to the European Court of Human Rights decision in McFarlane v. Ireland. It is true to say that this Bill addresses that judgment, as we are obliged to do. However, it is also a clear commitment to ensure that our justice system operates as it should, in an accessible way without unreasonable delays. The accountability that comes for the State on foot of this statutory right will help in improving the performance of the system, which is vitally important not only for the parties to a case, but also for those affected by it. Ultimately, our goal is that delays which might give rise to the remedy arise only in the most exceptional circumstances.

The uptake of assessment applications year on year is something which officials will examine closely as they continuously monitor the functioning of the legislation.Deputy Catherine Murphy correctly pointed out that this should and ultimately will be a measure "of last resort". Of course, we cannot just legislate away court delays. This Bill will be complemented by the work that is already under way to improve court procedures and reduce court delays. I have already highlighted the 54 recommendations in the report of the judicial planning working group and the Government approval in February to appoint 24 new judges in 2023. Officials are in the process of establishing an implementation programme to oversee the delivery of the recommendations. As part of this process, a suite of indicators is being developed to demonstrate the impact of appointing additional judges. These indicators must show that the additional judges are making a difference. Evidence of progress will be required before further appointments are made. Work is also well under way in implementing 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. We have also seen the successful introduction of preliminary trial hearings.

The actions I have mentioned highlight the holistic approach being taken by the Government to improve court procedures and reduce court delays. They are underpinned by the Courts Service modernisation programme 2020 to 2030, which will fundamentally transform how the Courts Service delivers services through greater and more effective use of IT. Deputies have asked why an assessor-based system was chosen rather than a court-based one. First, the system encompasses both possibilities, that is, the process starts through the assessor model, but this is no bar to then progressing to a Circuit Court action if either party is unsatisfied with the outcome. Second, the benefits of this are first and foremost for the applicant. The costs of litigation in the courts are much higher and may clearly present a significant obstacle, especially in cases where a relatively low award might be made that would likely be dwarfed by the legal fees involved.

I do not accept the contention that as a matter of principle the courts are the best place to deal with all cases. If a case can be resolved to all parties’ satisfaction without resort to the courts, it benefits everyone. This is of course a broader point, in that part of improving the efficiency of the courts is to not have them hearing cases they do not need to and it would be deeply illogical to worsen the situation in terms of delays by forcing all such cases to the courts. Deputy Daly raised the issue of the three-month period provided for in the Bill to make an application to the Circuit Court. I take the Deputy’s point that there may be challenges for some litigants in progressing within this timeframe. This is something we can consider further and perhaps return to on Committee Stage.

Similarly, with regard to legal aid, it is not the intention to "carry over" the legal aid that might have been granted with regard to a criminal case into the delays process. The scheme provided for in the Bill instead provides for the awarding of reasonable legal costs to successful applicants, which ensures an applicant with a bona fide claim is able to vindicate his or her right to seek an assessment. It is clear that the proposal will involve additional costs to the State. We would expect the administrative costs to be relatively modest and every effort has been made to control these, including by appointing assessors to be paid on a case-by-case basis and by providing that civil servants in the Department of Justice will provide administrative support.

In terms of compensation, assessors and the courts are required to have regard to the levels of damages awarded by the European Court of Human Rights. While there is significant variation in awards and cases which reach the European court may not necessarily be representative, Department research indicates an average award of approximately €8,000 in successful cases of this nature.

The question is then how many cases will arise. Some 27 delay cases have been taken against Ireland to the European Court of Human Rights since the McFarlane judgment in 2010. That is 27 cases over a 12-year period.

Of those cases, 14 resulted in a settlement or a finding of a violation by Ireland. The simplified scheme will make it easier and cheaper to pursue a claim, so these numbers may be expected to increase.

The specific right to the conclusion of proceedings in a reasonable period of time is for the parties to the case, that is, the defendant in criminal proceedings and to all parties in civil proceedings, and compensation is only available to these parties. However, the introduction of this right, and all of the measures we have discussed, are intended to reduce court delays.

More broadly, the Government is acutely aware of the impact of delays on victims of crime and their families. In that regard, work is continuing to give effect to the recommendations of the O'Malley review of protections for vulnerable witnesses in the investigation and prosecution of sexual offences. In addition to the introduction of preliminary trial hearings, other key actions delivered include: the nationwide roll-out of divisional protective services units; the first cohort of staff at a new sexual offences unit in the Office of the Director of Public Prosecutions formally took up their roles; work to advance the training for all personnel who come into contact with vulnerable victims is under way; and the University of Limerick has started a course to train and accredit intermediaries.

Regarding the judges per capitabeing low in Ireland, while clearly there is a need for more judges and we have legislated for this, it is important to note the different roles of judges in the common law and civil law systems. The judiciaries of other states, in particular civil law states, often have broader investigative and prosecutorial roles and therefore a requirement for a greater number. It is acknowledged that barristers are not paid in the District Court unless certified for a counsel by the District Court judge. In practice, solicitors agree to submit their fees with a barrister and are then responsible for paying that barrister based on that agreement.

Deputy Lawless raised the issue of barristers now increasingly and quite frequently appearing in the District Court, which may not have happened so much in the past. There is merit in his suggestion of reviewing the situation in order that barristers who perhaps share work with solicitors be paid directly for that work.

Deputy Connolly raised the issue of redactions. She will appreciate that the estimates of the legal fees that might arise at different levels, the levels of claims and so on are somewhat sensitive while the scheme is being designed and may also tend towards setting minimum standards and guidelines.

I commend the Bill to the House.

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