Brendan Howlin (Wexford, Labour) | Oireachtas source

I will share my time with Deputy Nash. This miscellaneous provisions Bill touches briefly on a broad range of unrelated issues that have only one thing in common, namely, they are all under the purview of the Department of Justice. The Bill does not deal in any detailed or systematic way with any of these important issues. There is nothing wrong, in principle, with that approach where the resources of the Department and the Oireachtas demand it, but it is a piecemeal approach. I know from experience that things are thrown in when there is a vehicle to do so because people ask what is on the table that can be added. Some things get through without proper and detailed scrutiny.

I will address two of the issues in the Bill, while my colleague, Deputy Nash, will speak on the pensions issue. First, the Court of Appeal is currently composed of a president and 17 ordinary judges. This Bill will increase the maximum number of ordinary judges to 18. The increase follows the establishment of the tribunal of inquiry relating to the Defence Forces to which Ms Justice Ann Power of the Court of Appeal has been appointed. This tribunal will do vitally important work but will inevitably take a number of years to complete it. I wish Ms Justice Power and her tribunal well in that important task.

A judicial planning working group was established by the Department of Justice in 2021. The current Taoiseach and then Minister for Justice brought its report to the Government in January of last year. This was on foot of a programme for Government commitment to establish a working group to consider the number and type of judges required to ensure the efficient administration of justice over the next five years. That really important report contained more than 50 recommendations. Chiefly, it recommended the appointment of a significant number of additional judges before the end of this year, 2024. Most significantly, the working group recognised that while the Court of Appeal and High Court had secured additional judges in recent years, there had been no increase in the number of judges in the District and Circuit Courts for almost ten years, the decade which mirrored the highest growth in population in the history of the State.

According to a recent Council of Europe report, Ireland has the lowest number of judges in Europe, at 3.27 per 100,000 of population. The European average is 17.6 judges per 100,000 of population. That report showed Ireland's spending per inhabitant on courts was €31.10. The European median was €45.53. There can be no doubt that Ireland's Judiciary is undersized in relation to international standards and the demographics of modern Ireland. It is worth quoting the working group's chief recommendation in full:

A significant number of additional judges will be needed over the next five years if access to justice is to be provided in a timely manner and existing backlogs and excessive waiting times addressed. The Working Group recommends that a phased approach be taken to addressing judicial resourcing. It recommends that 44 additional judges be appointed between now and end-2024 in two phases, Phase 1 as soon as practicable and Phase 2, subject to satisfactory review, before the end of 2024. Additional numbers in further phases should be determined by a review in 2025 of judicial needs ...

We were to start last year with 44 additional judges, to be appointed in two phases before the end of this year. In fairness, phase 1 seems to have been achieved but there was an increase to the number of judges appointed last year, amounting to the first 24 of the 44 judges promised. We legislated in May but only for the phase 1 increases in numbers. The Minister for Justice will have to return to the Oireachtas for a second act if she is to implement phase 2 and to remain on course she will have to do that this year.

The working group had recommended that before additional judges in phase 2 were appointed, there should be some form of impact assessment with appropriate metrics. In April, the Minister for Justice informed the Dáil that at that stage work was under way to conduct the assessment. Is the Minister confident she can complete her impact assessment and bring it to the Government, together with bringing draft legislation for the phase two appointments, in time and before the end of this year?

I hope the increase in numbers at the Court of Appeal does not turn out to be a once-off measure and that there will be time to implement the recommendations of the judicial planning report in its entirety. It is important to note the Court of Appeal should be getting, in total, four additional members and the High Court should get 12. The District and Circuit Courts should be getting 14 additional judges. So far, I understand they have received something like half that number.

It has been stated many times that litigation in Ireland nowadays can only be resorted to by paupers or millionaires. I think a retired High Court judge said it was actually billionaires at this stage.

That is true of litigation in our superior courts, which must deal with the complexities of constitutional and administrative law, judicial reviews, planning, immigration and so on. Meanwhile, the lower courts do the normal, everyday work that touches on the lives of most citizens. They are still overworked and understaffed. If judicial numbers are to be increased again before the year's end, then the District and Circuit Courts cannot be left out. They should be prioritised.

As regards the amendment to the Judicial Council Act, the Minister referred to last April's Supreme Court decision in the Delaney case. The judgment in that case upheld the validity of personal injuries guidelines issued by the Judicial Council but only because the guidelines had been endorsed by subsequent legislation passed by the Oireachtas. It seems that had that endorsement by us not come about, those guideline would have been found invalid on the grounds that a body such as the Judicial Council is not authorised to make law, and it purported to do so. The guidelines are part of the law insofar as our courts are concerned. They are bound to have regard for them and can only depart from them for stated reasons. This Bill will deal with amendments to the guidelines which I understand are pending. It provides that any amended version of the personal injuries guidelines adopted by the Judicial Council must be approved by the Houses of the Oireachtas.

While future personal injuries guidelines can now be safely made, or will be when this legislation is enacted, the Bill says nothing about sentencing guidelines, the other major reform that has been undertaken by the Judicial Council. As the Minister knows, the Judicial Council has two committees, one to produce guidelines on personal injuries, the other on sentencing. It may say something about our priorities, or maybe even the effectiveness of the insurance lobby, that the Judicial Council was given a statutory deadline to produce the personal injuries guidelines. The deadline was met, the guidelines were published and have been challenged on constitutional grounds. The work of the sentencing committee is harder because of the dearth of information. We need to collate information on sentencing, a complex undertaking that must be supported. I ask that the Department of Justice or the Courts Service undertake that work in conjunction with the sentencing committee of the Judicial Council. If the criminal courts are obliged to have regard to the sentencing guidelines, as section 92 of the Act provides, then the guidelines need to be approved by this Legislature. Otherwise the Judicial Council will stand accused of making law without the approval of the Oireachtas. Really important changes are going to be made to ensure uniformity as far as is practicable. Of course, every case is stand-alone and judges have freedom to act. However, there must be a commonality in terms of sentencing and people must understand that they cannot go fishing for different court decisions. That is one of the ideas behind the Judicial Council. I ask the Minister when she intends to bring legislation to us to give the same underpinning to the sentencing guidelines that will be adopted as she has done with the personal injuries guidelines that have been adopted. These things need more teasing out than simply to be put into a miscellaneous provisions Bill with a broad range of issues, each of which deserves individual scrutiny.

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