Brendan Howlin (Wexford, Labour) | Oireachtas source

I move amendment No. 13:

In page 7, line 24, to delete “subsections (2A) and (2B)” and substitute “subsections (2A) to (2D)”

It is a procedural part of our bundle of amendments to section 4, which sets out amendments to the Judicial Council Act 2019. Last April's Supreme Court decision in the Delaney case upheld, as discussed on Second Stage, 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. Had that endorsement had not come about, the guidelines would have been found invalid on the grounds that a body such as the Judicial Council is not authorised under the Constitution to make law, yet it purported to do so. The guidelines are now part of the law insofar as our courts are concerned. They are bound to have regard to them and can only depart from them for stated reasons.

The Bill will deal with amendments to the personal injuries guidelines, which I understand are pending. It provides any amended version of the guidelines adopted by the Judicial Council must be approved by the Houses of the Oireachtas. I do not know if this means future personal injuries guidelines can be safely made.

I have had the opportunity to reflect further on Part 4 and seek legal advice on it. I have serious concerns. In the Supreme Court decision in Delaney v. PIAB delivered on 9 April last, there were five judgments from a seven-member court and those judgments are both lengthy and complex. The case involved the constitutional validity of the personal injuries guidelines passed by the Judicial Council comprising all judges. That took place in March 2021. First, a majority of the court concluded the guidelines were legally binding and were law. Second, a differently composed majority, some of whom did not agree the guidelines were law, decided that if they were law, the power given to the Judicial Council to make them was unconstitutional. Third, a different majority concluded if the relevant provisions were unconstitutional, which some denied, then the guidelines had been confirmed and validated by virtue of the provisions of subsequent legislation.

On reading these judgments, we have two major concerns about the proposed approach, which I seek the Minister's view on. First, the Bill is posited on the assumption all that is needed for future amendments is that they be submitted to both Houses of the Oireachtas and approved by resolution. Then they would come into force. I do not see that there is much support for this approach in the judgments I have looked at. There was brief discussion in some of the judgments as to whether and to what extent the Oireachtas should be given a supervisory role in the making of secondary legislation outside of this body and as to what the constitutional impact would be. I am told there are cases in which the Supreme Court noted with approval that making delegated legislation subject to either prior approval or annulment of the Houses would mean the Houses had maintained a measure of control and that was seen as a safeguard. In this case, Mr. Justice Collins, in particular, was clear that the presence or absence of any such supervisory mechanism, while undoubtedly relevant, would not be a determinative factor, in his judgment. None of the cases suggest the otherwise permissible delegation of rule-making authority by the Oireachtas might be invalidated by the absence of such a mechanism. We are faced with the question of whether what has already been found to be an impermissible delegation of rule-making authority constitutionally provided to the Oireachtas will be validated in future simply by the addition of a supervisory mechanism that will require the prior approval of a resolution of these Houses. I ask this because most of the judges who referred to the issue remarked that, while the guidelines continue to have effect, as a result of the affirmation by the Oireachtas in later legislation, any future or further changes in the guidelines would require further legislative intervention by the Oireachtas. The notion of authorising future amendments by way of resolutions of the House does not seem to have been explicitly endorsed in any of the judgments I have looked at. That is an important point that I wonder if the Minister and her Department have considered.

The second point I make seems to me a more serious issue. The granting of a law-making power to the Judicial Council was struck down by the majority of the Supreme Court, not simply because it was an impermissible delegation of powers belonging exclusively to the Oireachtas but because it was constitutionally inappropriate ever to convey such law-making powers on the Judiciary. Those are two important points. First, we could not delegate powers to another body in any event to make law and, second, it would be particularly unconstitutional to delegate it to the Judiciary. A majority of the seven judges agreed that the relevant section was unconstitutional on the additional ground that it was contrary to the independence of the Judiciary, who stand alone in the Constitution. This seems to be a separate and distinct ground for objecting to the making of the guidelines by the judges. If amendments to the guidelines are proposed by the Judicial Council in future, but which must be approved by the Houses before they can have effect, then this control mechanism might be accepted as an adequate safeguard to prevent the amendment being challenged on the grounds of excessive delegation of law-making power vested in the Oireachtas.

On the other hand, if the objection is that the judges themselves, or the Judiciary itself, is an inappropriate body to ever have the power to make law and that judges should never have conferred on them the function of acting collectively to make law because that would be an unconstitutional breach of the guaranteed independence of the Judiciary, then I do not see how even subsequent endorsement by Dáil and Seanad resolutions would rescue those particular amendments from being unconstitutional. Even if resolutions of the Houses are accepted as control mechanisms that safeguard against excessive law-making by bodies to which powers are delegated, I do not see how such mechanisms could rescue law-making by a body to which that power should not and could not constitutionally been given in the first place, that is, to members of the Judiciary. I hope the Minister can say something about her thinking on these matters and whether they have been considered, as well as how Part 4 will operate on a satisfactory basis and be constitutionally robust in order to address the problems I have just raised.

One way or another, this Bill is concerned with the Judicial Council's personal injuries guidelines only. This is a matter that we discussed on Second Stage. It says nothing about the sentencing guidelines, the other major reform to be undertaken by the Judicial Council. A separate committee has been established. As the Minister and the House are aware, the Judicial Council has two committees, one to produce guidelines on personal injuries, which I have just talked about, and the other to produce guidelines on sentencing. The Judicial Council was given a statutory deadline to produce personal injuries guidelines. That deadline was met, the guidelines were published and then they were challenged on constitutional grounds. The work of the sentencing committee, as I said on Second Stage, is harder because of the dearth of information on sentencing policy. It needs to collate information on sentencing which, in and of itself, is a very complex undertaking. Those particular guidelines are still awaited and I suggested on Second Stage that assistance be given, either by way of additional staff or through the Courts Service, to the Judicial Council's committee to do that work.

If the criminal courts will be obliged to have regard to the sentencing guidelines in the future, as section 92 of the Act provides, then according to the Minister's own argument, those guidelines would have to be first approved by the two Houses of the Oireachtas, just as the personal injuries guidelines would have to be. Otherwise, the Judicial Council will stand accused again of making law without the approval of the Oireachtas.

Our amendment to this section would give the same underpinning to the sentencing guidelines as the Minister proposes to give to the personal injuries guidelines. I think the Minister is well disposed to that approach, although I obviously await her determination. In that regard, amendment No. 13 deletes a reference to subsections "(2A) and (2B)" to be inserted into section 7 of the Judicial Council Act and replaces it with a reference to subsections "(2A) to (2D)". We propose in amendment No. 20, which is being taken with amendment No. 13, to insert two new subsections (2C) and (2D), in addition to the Minister's inserts. Our two subsections would provide that sentencing guidelines may be adopted by the Judicial Council only where a draft of the guidelines has first been laid before each House of the Oireachtas and a resolution approving the draft has been passed by each House. For this purpose, the council must submit a draft of its guidelines to the Minister and the Minister must lay the draft before the Houses. This is exactly the same procedure as the Minister is proposing to be adopted in relation to the personal injuries guidelines.

In the same amendment we are also proposing an important change to section 91 of the Judicial Council Act. Under our proposed new section (2A), the first draft sentencing guidelines prepared for submission to the body by the sentencing guidelines and information committee shall include guidelines about the circumstances in which it may be appropriate for a court to impose a suspended or deferred custodial sentence on an offender in the proceedings before it and the circumstances in which the imposition of a suspended or deferred custodial sentence is not appropriate. Obviously that particular issue has gained more urgency in recent times, as the issue of suspended sentences has come to be debated in the public domain.

I am sorry to be raising a number of very fundamental issues. I hope the Minister will be able to deal with them.

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