Patrick Costello (Dublin South Central, Green Party) | Oireachtas source

This legislation has received a broad welcome from Deputies and the farming organisations. However, there is a broader issue here in the context of how we approach rights and obligations and the enforcement of same. To be blunt, we have created a Byzantine mess of quasi-judicial bodies. There is ultimately a risk of constitutional weakness, vulnerability and challenge to many of these and we need to respond to that. We need efficiency of decisions, but we also need to ensure fair procedures, which are often about the right decision being made in a fair way as quickly as possible. An appeal, and a functioning appeal, is of course part of that, but the words of the previous Chief Justice come to mind when we are debating things like this. He said:

Every time there is a new form of right or obligation created, we create a new body. Sometimes there is a regulatory body, and a regulatory appeal body, and sometimes the legislation says you can appeal from that body to the courts on a point of law, sometimes to the Circuit Court and sometimes to the High Court. Sometimes you may even appeal on the merits to the Circuit Court. Of course, behind that there is always the right to seek judicial review and there is a great deal of case law about whether or not the internal ... systems in the regulatory bodies ... [were] exhausted before seeking judicial review. However, often a party argues that if they had done that, it would have been too late ... [as then that is a] collateral attack on the original decision. I think we have gotten ourselves into significant difficulties in this area.

When reviewing these appeals processes and bodies and as we set up yet another organ of the administrative State in a relentless march, those words need to be in our mind. I am concerned there is not a whole-of-government approach to how we deal with these, because each Department creates these bodies and does so in a different way and with different procedures to the next, as the previous Chief Justice alluded to.

Often it is the fair procedures piece that is completely missing. We know from the recent Zalewski case in the Supreme Court that this is a constitutional weakness that risks these structures being struck down. In that case, the previous Chief Justice said, "The standard of justice administered under Article 37 cannot be lower or less demanding than the justice administered in courts under Article 34". Article 34 states, "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution ...", whereas Article 37 allows for "the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters ... [where it is] duly authorised by law" . It is under Article 37 that we get this panoply of quasi-judicial bodies, but as I said, the constitutional interpretation requires that they operate to the same standard as a court with respect to fair procedures, ability to compel evidence, ability to cross-examine, ability to demand documents, ability to discover documents and evidence given under oath. These are the sorts of things that are fair procedures and protect people and their rights. We do not seem to be putting these into our various administrative bodies or administrative appeal bodies, or we do so in very different ways.

The State really needs to get a grip on how it handles the administration of justice under Article 37. While there are Deputies in here who complain about the outsourcing of executive power to various State agencies that are opaque and unaccountable to us in this House and, in many cases opaque, to the Minister whose power they are taking or they have been given, the same is happening in terms of the courts and rights and obligations of citizens to these quasi-judicial bodies.

I am gravely concerned that it is a fundamental undermining of our civil rights. We need to be very careful to ensure that we are administering justice in these bodies to the same standard as we would under Article 34. The Law Reform Commission is currently engaged in a broad project with regard to quasi-judicial bodies. The Government needs to engage with and support them to finish that work as soon as possible in order that we can have some clear standardisation across Departments and across these bodies so we can ensure fair rights and procedures are experienced by everybody who engages with the administrative State, whether it is farmers seeking to engage with the agricultural appeals review panel or in any other situation.

As I said, we seem to be mushrooming these quasi-judicial bodies. Then, if we look at many of these bodies, and there has been a call for resources here, what often happens is that they do not get the staff they need. They do not get the time to make decisions. People seek their rights, and all they get are delays and things get dragged out.

Deputies in this Chamber regularly talk about the frustration of their constituents with the Residential Tenancies Board, RTB. The Residential Tenancies Board was set up to provide quicker, more efficient access to our rights, the assumption being that courts are expensive and slow. The courts are expensive and slow because we do not properly resource the administration of justice and legal aid and civil legal aid in this country. That is why courts are slow. If we look at the RTB, however, it is incredibly slow. It is almost impossible to get enforcement through as well.

We are setting up these bodies to protect our rights and offer quick and cheap administration of justice when they do not deliver that. We need to ensure that where we set up these bodies, we are properly resourcing them because otherwise we do not actually receive the promised efficiencies we get by avoiding the courts. What we get is a standard of justice that is lower than that administered in the courts. Really, the citizens seeking to protect their rights are not actually getting what they are being promised. As I said, this creates a vulnerability to constitutional challenge, bearing in mind the words of the Chief Justice in the Zalewski case.

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