Dáil debates

Monday, 14 December 2015

Courts Bill 2015 [Seanad]: Second Stage


12:00 pm

Photo of Ann PhelanAnn Phelan (Carlow-Kilkenny, Labour)
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I move: "That the Bill be now read a Second Time."

I am delighted, on behalf of the Minister for Justice and Equality, to have the opportunity to introduce the Courts Bill 2015 to the House and look forward to engaging with Members as we progress the Bill through the various Stages.

The Bill is a single provision measure, having just one purpose, an increase in the maximum number of High Court judges from 35 to 37. Section 1 provides for a net change in numbers and in doing so amends section 9 of the Courts and Court Officers Act 1995, as amended by the Courts and Court Officers (Amendment) Act 2007, to provide that the number of ordinary judges of the High Court shall not be more than 37. The number of judges of the different courts is fixed from time to time by legislation under Article 36 of the Constitution. The existing maximum limit on the number of ordinary judges of the High Court was set in 2007 by the Courts and Court Officers (Amendment) Act. That Act, as in the case of the Bill before the House, amended the Courts and Court Officers Act 1995, by providing that there would be no more than 35 ordinary judges of the High Court. The best part of a decade, therefore, has passed since the last increase in the statutory number of High Court judges.

Deputies will accept that there has been considerable growth over that period in the volume and complexity of proceedings and litigation coming before the courts system as a whole. While the pressure on the courts has been managed very effectively and professionally by the Judiciary, with the very able support of the Courts Service, in some important areas of High Court business waiting times are longer than any of us would want them to be. The allocation of a further two judges to the High Court is not just a question of addressing waiting times, although this measure will address, in particular, the waiting times being experienced in the Central Criminal Court, it is more to do with enabling the court to work more efficiently, for example, by reducing the number of reserved judgments handed down.

A separate problem but one about which the Minister has concerns and which should not be ignored is the recent loss of a significant number of judges from the ranks of the High Court, with a considerable consequential loss of experience. Some of this loss is, of course, accounted for by retirements, but only one year ago nine High Court judges were appointed to the new Court of Appeal. It has been widely acknowledge that the new court has had a marked positive impact on the problem of delays in hearing appeals. I acknowledge the tremendous contribution of the new court and the great progress it has made in the past year. Perhaps inevitably, however, there have been certain repercussions in the depth of judicial experience drawn from the High Court. Those judges have, of course, been replaced by a strong cohort of new judges, but nevertheless the Minister understands the effect of and is anxious to respond to the loss of judicial experience from the High Court.

Another factor which has had a real effect on the progress of proceedings in the High Court is the increase in the number of lay litigants. Cases involving lay litigants can take longer because of such litigants' relative inexperience of court procedures. More and more, lay litigants are coming before the court, as is, of course, their right, but because they tend not to have experience of court proceedings, there is a marked trend in these instances towards increased times for proceedings.

Various factors are leading to increased waiting times for cases to be heard in some areas of the courts and an increase in the number of cases not proceeding on days listed for hearing, as well as a significant number of reserved judgments. It was to address these issues and more generally to provide for greater efficiency in the conduct of its affairs that, having consulted the senior Judiciary, the Minister requested the Government to approve additional resources in the form of two additional judges of the High Court.

Pressure points in the High Court which the Bill will substantially alleviate include the number of cases in which reserved judgments are given. While there are good reasons for reserving judgments in many cases, giving judges time to reflect on evidence and the law, the amount is of particular concern to the Judiciary.

It is easy to see why this can be most unsatisfactory from the point of view of all concerned, not least the parties to the action or matter at hand.

Reserved judgments are frequently handed down in judicial review matters, commercial court cases and chancery actions. The increase in the number of reserved judgments can perhaps be seen as an unintended consequence of the efforts being made by the Judiciary to stay on top of waiting lists across the various areas of court business.

Deputies will need no convincing about the importance of avoiding unnecessary delays in criminal trials. In the Central Criminal Court, a marked trend is the increasing duration of trials due to the greater complexity of evidence coming before the court. Waiting times here are a matter of concern. The Minister is aware that recently the court president has found it necessary to appoint a fifth judge to the full time hearing of cases in the Central Criminal Court. Currently waiting times for trials of 18 months approximately can be very difficult for all concerned and, of course, particularly distressing for victims of crime and their families. In many instances cases cannot proceed on the date listed for trial and this has implications for costs for practitioners and witnesses. I know that the Minister is particularly concerned about this and she anticipates that the allocation of an extra judge to that court will help to alleviate this.

Medical negligence litigation represents a sizeable portion of business before the High Court. Due to the lengthy duration of most of these actions, the President of the High Court makes a very convincing case for the deployment of judicial resources to manage these actions at the earliest opportunity. I agree fully that early intervention by a judge offers the best prospects of limiting the duration of hearings by early identification of issues which can lead to earlier settlement. I think this would be helpful to families who are so often involved in these difficult and upsetting cases. Better and proactive management of these actions is likely to lead to savings in the amount of costs of litigation for actions where frequently the taxpayer must foot the bill.

This is one of the reasons the Minister has introduced new legislative measures for pre-action protocols for medical negligence cases as an amendment in the Seanad when it was considering Committee and Report Stages of the Legal Services Regulation Bill over the past two weeks.

The new Companies Act is predicted to generate an increased level of company law-related applications to the High Court. These applications, many of which relate to the restriction of directors of insolvent companies can take a number of days of court time and it is estimated that at least one extra High Court judge will be required to manage this business.

Judicial reviews of decisions of courts and other bodies where reliefs and remedies are sought, arise frequently in such areas as planning matters, challenges to the constitutionality of legislation,habeas corpus matters and debt cases. It is a critical area of activity for the court and more judicial resources are needed here; practically all judicial reviews require written judgments.

In concluding my introduction of this legislation before the House, I should emphasise that while the effect of the Bill, as I have already said, is merely to alter a number in the relevant statute, its importance must not be underestimated. Once appointments are made, I consider that this Bill will have a far-reaching and positive impact on the work and output of the High Court. I believe it is a worthwhile measure to underpin the efficient conduct of business right at the centre of the administration of justice in the State.

In summary, while the Bill is a response to the number of cases coming before the High Court, including judicial reviews, medical negligence actions, asylum applications and company law-related applications, its specific benefits will be to enhance the efficiency with which the business of the court is managed as a whole and how judgments are handled in particular.

This Bill further represents the determined approach of the Minister and this Government to enhance the efficiency of the administration of justice, as evidenced by bringing into existence recently a second Special Criminal Court and, last year, the establishment of the Court of Appeal. In addition, further reforms are under way to bring about greater efficiencies and streamline matters in the courts, including proposals for a new system of family courts.

I thank Deputies for their support for, and engagement with, this important measure. It represents an important step for the High Court and I look forward to our debate on the matter. I commend the Bill to the House.

12:20 pm

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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Fianna Fáil will be supporting the Bill to appoint two additional judges to the High Court following a significant increase in the court's caseload. Fianna Fáil is also committed to reform of the judicial appointments system and has published legislation to provide for such reforms.

The purpose of the Courts Bill is to address the problems associated with the significant increase in the number of cases coming before the High Court, including judicial review, medical negligence, asylum and company law-related applications. Problems have also arisen from the increased duration of trials in the Central Criminal Court owing to the increased complexity of evidence coming before it. These factors are leading to longer waiting times for cases to be heard and an increase in the number of cases not proceeding on days listed for hearing, as well as a significant number of reserved judgments. In order to address these problems, the Minister for Justice and Equality believes additional judicial resources are required in the High Court and the Bill provides for this. The Courts and Court Officers Act 1995, as amended by the Courts and Court Officers (Amendment) Act 2007, provides, in section 9, that the number of ordinary judges of the High Court shall be not more than 35. The Bill will increase the maximum number of judges to 37.

In October last year the President of the High Court said he was struggling to find judges for new cases because the Government had not yet moved to fill seven vacancies in the court. Seven senior High Court judges were due to be promoted to the new Court of Appeal at the end of October 2014, but although they remained judges of the High Court, they were not assigned to cases that could run from November 2014. The Judicial Appointments Advisory Board sent a list of names to the Department of Justice and Equality in mid-September 2014, but the Cabinet did not sign off on the nominations. This means, in effect, that the High Court has been short seven judges since. Twice in the High Court last year Mr. Justice Nicholas Kearns said he was hard-pressed in trying to manage his list and have cases heard because he was still awaiting the appointment of seven new judges.

There is also an issue with the shortage of court registrars. Last April the President of the High Court said serious delays in dealing with court cases would result from a continuing shortage of registrars. The duties of registrars include assisting the judge, calling cases, swearing in witnesses, drafting orders and generally ensuring the smooth running of the court.

Mr Justice Kearns warned that unless the matter was resolved and additional staff were provided, the problem would result in serious delays and logjams in disposing of court lists. He said this was not a problem of the courts' or the Courts Service's making but that approval for extra staff must come from the Department of Public Expenditure and Reform. The Courts Service had applied for approval to appoint three registrars as the bare minimum to meet its immediate obligations. Two of these would be replacements for registrars who retired years ago. It is our understanding a shortage of registrars continues.

Last year I published the Judicial Appointments Bill 2014, which proposes to reform the law in the appointment and promotion of persons to judicial office. The law simply requires the Judicial Appointments Advisory Board to recommend to the Minister for Justice and Equality at least seven persons for appointment to judicial office. The Minister may or may not accept the recommendations made. Under the Judicial Appointments Bill 2014, a new board, the judicial appointments board, would be established and the old Judicial Appointments Advisory Board abolished. Instead of recommending seven persons for appointment to judicial office, the judicial appointments board would recommend for appointment by the Government one candidate whom it would certify as the best candidate for appointment to judicial office. The name of this candidate would then be communicated to the Minister for Justice and Equality. If the Government did not accept this recommendation, it would be required to publish in Iris Oifigiúil and on the Department's website the reasons the recommendation was not being accepted. At that stage, it would also have to publish the written recommendation of the judicial appointments board promoting the appointment of the person concerned.

Under the Bill the judicial appointments board would be made up of the Chief Justice, the President of the High Court, the President of the Circuit Court, the President of the District Court, the Attorney General, a nominee of the Bar Council of Ireland, a nominee of the Law Society of Ireland, a person appointed by the Minister and a person appointed by the National Consumer Agency.

Early last year a judges' committee called for a radical overhaul of the appointments process, stating a merit-based system that would limit the Government's scope to reward political allies was vital to retain public confidence in the justice system.

The judges were sharply critical of what they described as a "demonstrably deficient" system and say wide-ranging changes are needed to attract high calibre applicants. They say political allegiance should have no bearing on appointments to judicial office. They said: "It is increasingly clear that the relative success of the administration of justice in Ireland has been achieved in spite of, rather than because of the appointment system". The judges also said that changes to public and private pension provisions for entrants to the Judiciary "may have little fiscal benefit to the State, yet create a wholly disproportionate disincentive to applicants for judicial posts and deter high quality applicants from seeking appointment."

The views of the State's 154 judges are contained in a joint submission to the Department of Justice and Equality, which was carrying out a public consultation on ways to reform the appointments process. The judges are critical of that "flawed and deficient" consultation, initiated by the then Minister for Justice and Equality, Deputy Shatter. The judges said it was regrettable there was no prior consultation with the Judiciary on the methodology and structure of the process and pointed out that no proposals had been put forward by Government for discussion purposes. They also said:

Most fundamentally of all, however, the process itself is being initiated by a member of the Executive, and will apparently be decided upon by the Executive without further discussion. This is not consistent with the principles of the European Network of Councils for the Judiciary, Council of Europe, or international best practice.

The judges said a high level body should be appointed to carry out research, receive submissions and develop detailed proposals in a "structured, principled and transparent way to make a radical improvement in the judicial appointments process in Ireland."

Making preliminary recommendations for reform, the submission states that as a matter of principle, political allegiance should have no bearing on appointment to judicial office. The judges said: "The merit principle should be established in legislation." The judges said a properly resourced judicial education system should be established without delay with a mandate to provide education to members of the Judiciary on all matters bearing on the administration of justice.

A judicial council was described as a "much-needed reform" and the judges said it should be created with responsibility for representation of the Judiciary, an independent disciplinary process, judicial education and judicial involvement in the appointment process. The submission calls for far-reaching changes to the Judicial Appointments Advisory Board, which receives applications and sends to the Government a list of all candidates who meet minimum criteria. Under the current system, the board cannot rank applicants and the Government is not required to select from its list.

I introduced a Bill on behalf of the Fianna Fáil Party, the Judicial Sentencing Commission Bill 2013. The legislation looked to establish a judicial sentencing commission, similar to the model currently in operation in England and Wales. It would reform the area of criminal sentencing, improve consistency and work to enhance public confidence. Under the proposal, the commission would be made up of eight judicial members appointed by the Chief Justice, six non-judicial members appointed by the Minister with the agreement of the Chief Justice and two judicial members would serve as chair and deputy chair. This new commission would be tasked with preparing sentencing guidelines for criminal offences, taking into account the following: the sentences imposed by courts for offences, the need to promote consistency in sentencing, the impact of sentencing decisions on victims of criminal offences, the need to promote public confidence in the criminal justice system and the cost of different sentences and their relevant effectiveness in preventing re-offending. We introduced the Bill a number of years ago and it has an impact on how the Judiciary works. We support the Bill before the House for the creation of two extra judicial posts to the High Court.

12:35 pm

Photo of Jonathan O'BrienJonathan O'Brien (Cork North Central, Sinn Fein)
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I give notice to the Technical Group that I will only use ten minutes of the allotted time in case its members think I intend to use the full time allocation of 30 minutes. I pass on Deputy Pádraig Mac Lochlainn's apologies to the Minister of State. He is running late and has asked me to fill in for him.

We will not oppose the legislation, the purpose of which, as outlined, is to create two additional posts in the High Court to address the problems associated with the significant increase in the number of cases coming before it, including judicial reviews, medical negligence cases, asylum and company law related applications. While we support the legislation, we believe some work needs to be done to address the reasons so many cases are coming before the court and to tackle the causes of these problems before the cases reach court. For example, inaccurate measurement and mapping continues to cause more property disputes to come before the courts. The newly digitised property boundaries are not the same as those on paper maps. This means that the predicted efficiency savings associated with digitisation are absent. Landowners cannot trust the newly digitised boundaries and instead have to physically check boundaries on the ground, which entails the additional cost of employing qualified and competent surveyors. As a result, digitisation receives unjust criticism, whereas the blame should lie with those behind the rushed procedures.

With regard to medical negligence cases, the culture of defend and deny results in more and more cases going before the court and, ultimately, more tax revenue being used by the State on legal fees. This is something that needs to be addressed. We are not suggesting people should not defend fraudulent cases, but in some cases where, as we have seen in media reports, there is an obvious outcome when the case goes to court, a mediation process would be a calmer and less adversarial way in which to address the lengthy, traumatic and, mostly, unwieldy and, ultimately, highly expensive medical negligence legal system. We have consistently advocated the need for the mediation Bill to be brought forward, but, unfortunately, I do not believe that will happen before this Dáil term ends.

The Special Criminal Court is not a symbol of success but a concrete example of failure. The fact that accused citizens can be convicted of an offence not on specific evidence but on the word of individual gardaí and the secret submission of evidence that is not open for the defendant to examine and refute is offensive to all democratic sensibilities. The court is entirely unacceptable and should be closed.

Meaningful change can, however, be achieved in the court system by introducing a sentencing council in the State. Such a council operates in other jurisdictions and provides sentencing guidelines for the judiciary. This has ensured sentences handed down for criminal offences in the courts are consistent and accountable across the board. There has been concern in recent years about the perceived inconsistency of sentencing in the courts here. We have examined other sentencing council models and believe this model of consistency and accountability should be introduced in the State. A key strength is that these models involve a range a key stakeholders such as victim support groups, academics, senior police officers, senior parole officers and the public in the process of establishing sentencing guidelines for the courts system. As members of the courts are in the majority on the sentencing council which is chaired by a senior member of the judiciary, they are still central to the process. However, the guidelines issued ensure members of the judiciary must stick to the range provided for the category of offence before them. They must also clearly indicate why they have sentenced an offender within that range, taking into consideration the impact on the victim and the blameworthiness of the offender. This ensures consistency and accountability across the courts system and the state. It is a pity such a council has not been prioritised in this Dáil term, but we hope it will be prioritised in the next Dáil term.

Photo of Shane RossShane Ross (Dublin South, Independent)
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I am always a little suspicious when a Bill of this sort is produced on a Monday morning at the end of a session.

I wonder if it is intended that it will go through without the maximum scrutiny and discussion and that, of course, is exactly what will happen to the Bill. The briefing document states the Bill has a single purpose: to increase the maximum number of High Court judges from 35 to 37 which will lead to an increase in the efficiency of the courts and reduce the backlog . That is correct, but I oppose the Bill, not because there is anything wrong with increasing the number of High Court judges - God knows they are needed - but because of the method that will be used to appoint them, which the Government has signally failed to tackle. It is easy to be reformist when one is in opposition. It is easy to promise reform of the courts and the Judiciary, but nothing has happened since the Government came to the power to reform the system used for the appointment of High Court judges, which will be done rapidly, presumably during the Christmas period. I may be wrong, but I would not be a bit surprised if the two new judges were identifiable with the political parties that have been in power for the past five years. It may be that this will not happen, but the reason I oppose this measure is it is being brought forward in isolation when the Government has totally and utterly failed to reform the Judiciary. The Judiciary is a scandal in the way it is appointed. It is wrong, it is political, it is flawed; it is unreformed and, despite protestations by political parties when in opposition, they continue to hold the power of patronage and abuse it badly when in government.

I would like to hear from the Government that the two appointees who will probably be able lawyers will not be chosen on the basis of their political colour. That pledge, of course, will come quite easily, but I will not believe the Government parties because the evidence is absolutely compelling. I would probably be picked up by the Chair if I was to start naming people-----

12:40 pm

Photo of Seán BarrettSeán Barrett (Dún Laoghaire, Ceann Comhairle)
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The Deputy would be.

Photo of Shane RossShane Ross (Dublin South, Independent)
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I have not done so.

Photo of Seán BarrettSeán Barrett (Dún Laoghaire, Ceann Comhairle)
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I am just giving the Deputy advance notice.

Photo of Shane RossShane Ross (Dublin South, Independent)
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I do not intend to do so.

Photo of Seán BarrettSeán Barrett (Dún Laoghaire, Ceann Comhairle)
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Photo of Shane RossShane Ross (Dublin South, Independent)
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However, the evidence is utterly compelling and has appeared in print and elsewhere without being corrected or contradicted that when in power, Fianna Fáil nominated people to the Judiciary who were so identifiably Fianna Fáil that they brought the judicial system into disrepute. It had been hoped when Fine Gael and the Labour Party took power that they would reform the system and make it impossible to do this, but far from it. The Government has indulged in an orgy of appointments of its own people to the top of the Judiciary which would make Fianna Fáil blush. It is quite extraordinary how, when it comes to reform of this sort, no Government has been able to do it. Governments cannot resist the temptation to put people in the High Court, the Supreme Court and the District Court, the worst of the lot, who are identifiably followers of the political parties in power or who have done service for them in the past. That is no longer acceptable. To ask us to pass such a Bill to appoint two more possible cronies of the Government in power is not acceptable either.

Of course, if the courts are short staffed and there is a backlog, they must have judges, but the way they are appointed is the most important aspect of the legislation which the Government has refused to tackle.

The Minister and Government are aware that the people most embarrassed by this abuse of the Judiciary are the members of the Judiciary. The Chief Justice has repeatedly demanded that the method of appointing judges is reformed because judges are embarrassed that their reputations could be sullied by this. Her words have fallen on deaf ears; promises have been made but nothing has been done. It is perfectly obvious from the attitude of the Government to this Bill, from the appointments that have been made and from the Fianna Fáil alternative that was produced, that this particular power of patronage will continue by agreement. Even if there is a change of Government next spring, if it is formed by one of the old traditional parties, there is very little hope that this abuse will end. There are no indications that anyone wants to do it.

The system was set up as a compromise in the late 1990s as a result of a row between Fine Gael, Labour and Fianna Fáil. Albert Reynolds, his Labour partners in Government and the President of the High Court came up with this extraordinary compromise on how to appoint judges. They set up the Judicial Appointments Advisory Board, which acts as a fig leaf for the legitimacy of appointed judges. The Minister of State, Deputy Ann Phelan, and the Minister for Justice and Equality, who is not present, will know that the result of the JAAB, which is known as "JAABs for the boys" in the Law Library, is that the Government always gets its judge. As Deputy Niall Collins said earlier, a list of seven is produced by the JAAB and given to the Government. The Government looks at the list and it if does not like it, bypasses it and takes somebody else. The system is simply a cover, veneer and fig leaf to pretend that somehow the new body has the freedom to make appointments. It does not make appointments, it makes proposals. To make sure there is not too much embarrassment, the Judicial Appointments Advisory Board is stuffed with Government appointees, three of whom are appointed by the Minister. Others are ex officioGovernment appointees, come from the Law Library or courts, or are judges who are political appointees. I think it was somebody in Fianna Fáil, when asked why on earth they had appointed a Fine Gael judge to the Supreme Court, said they had run out of their own people. They had appointed every single one they could possibly think of. Unfortunately, that system continues.

One of its great flaws, apart from the fact that it serves as a political channel or free pass to the Judiciary, is that since its establishment 20 years ago, it has not held a single interview. The Judicial Appointments Advisory Board has the power to hold interviews for judicial appointments to the District Court, Circuit Court, High Court and Supreme Court. However, it does not hold interviews, it only makes appointments. Prospective appointees are not asked any questions about their talents - they just get appointed. The JAAB sits, makes the appointments, sends a list of seven to the Government, the Government looks at it and says, "God, there is nobody in my party on this one - we are not taking any of these." Although, as it happens, there is always someone from the Government party on the list. However, in such a case, the Government bypasses the system, so we now have a system that is open to political abuse and a dumping ground for political patronage.

People will say the Judiciary has served us well, which may be a fair point, but that is not due to the method of appointment. The Judiciary is a protected political species. The fact that judges do not have to make a declaration of interests remains unreformed. The two High Court judges to be appointed by way of this utterly flawed system will not be required, unlike, rightly so, Members of this House and county councillors, to make a declaration of interest. For some reason, members of the Judiciary do not have to make such declarations. If a judge forgets or omits to declare an interest that might affect his or her judgment in a case, nothing will happen because nobody will know about it. A judge is supposed to so declare behind closed doors to the President of his or her particular court, but nothing will happen to him or her if he or she fails to do so. There is no transparency in the Judiciary in that regard. There is no guarantee that judges are acting in a transparent manner. They are protected in a way that no other group is. There is no justice behind this. The Law Library has been and remains a closed club in terms of self-regulation. Politicians are wary of mentioning or talking about the Judiciary, as evidenced by the fact that members of it are not supposed to be mentioned by name in this House. While they can be mentioned and criticised in the media and books for their judgments, under the rules of this House, for reasons I fail to understand, they are protected from criticism here.

My concern about the Bill is that these will be political appointments and I ask the Minister of State, Deputy Ann Phelan, to respond to that charge. The selection and appointment of good people to a rotten system lead to a discrediting of the system of appointment. The reality is that people who are not appointed on merit often move through the system quicker than those appointed on merit. That is happening. I know of several particularly able senior counsel who have ambitions to be appointed to the Bench, but they have been passed over time and again. It sticks out a mile - everybody in this House understands what I am talking about - that the only explanation for the appointment of particular people to these positions is their political affiliation.

It is imperative that the District Court be reformed. I accept that this is not directly relevant to the Bill, but appointments to that court are even more dubious. The Minister of State will be aware of the one or two high profile cases in the District Court in respect of which people got into hot water and had to resign. However, what we have never seen in the history of the state is the removal of a judge because it is impossible to do so. Judges rarely resign and are never removed. The two judges to be appointed under this legislation will hold their positions for life. The Minister of State will be aware that, in theory, there are ways of removing a judge. She will also know that there have been attempts to remove judges by tortuous processes in this House and through various committees. One such attempt, whether genuine, was cursed by delays and it never happened.

We are talking about appointing two people to jobs for life from which they cannot be removed because it needs two thirds approval of both Houses of the Oireachtas and that cannot be achieved. They will be politically appointed, get extraordinarily well paid and be accountable to no one.

I am against the extension of this political patronage from 35 judges to 37 judges. This Government has patently failed to stop patronage in the Judiciary and has abused its powers.

12:55 pm

Photo of Fergus O'DowdFergus O'Dowd (Louth, Fine Gael)
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I welcome the Bill and its intention which is to address the problems associated with the significant increase in the number and duration of cases coming before the High Court and the Central Criminal Court. Without the addition of extra judges, the increases will mean justice is delayed. Therefore, having more judges makes a lot of sense to me.

I listened to the comments of Deputy Ross. The Minister of State might correct me if I am wrong but judges are currently appointed by the President on the advice of the Government, which is given an unranked list of seven candidates. While the Government is not bound to appoint anyone from the list, nevertheless these names must come to the Government through the Judicial Appointments Advisory Board. If we were to reduce the number of candidates from seven to five or three, that would clarify the issues and address some of the points Deputy Ross raised. It would also lead to greater transparency in the decision making if the Government were to appoint solely from that reduced short-list.

The memorandum provided to us by the Oireachtas Library refers to the international status and standard of our courts. We are the second highest ranking country in the world, second only to Finland. I refute the underlying allegations made by Deputy Ross notwithstanding the issues he raised and the veracity behind them. The fact is that our courts are perceived internationally to be the second best in the world. Why should we not be the best? I have no problem with us addressing the issues surrounding the Judicial Appointments Advisory Board, reducing the number of named candidates, allowing for interviews and having the Government appoint from the list.

Deputy Ross referred to the removal of judges. It is a very serious matter for any Government or Parliament to wish or need to remove a judge. It is right and proper that the current system requires a two thirds majority of both Houses of the Oireachtas to remove a member of the Judiciary. Judges must be free and unfettered in their capacity to make whatever decision they believe in justice ought to be made. They must never be removed at the whim of a simple majority in Parliament of a ruthless and determined Administration that feared the outcome of decisions a particular judge might make. Such cannot ever be allowed. The process in this House some years ago concerning a Circuit Court judge involved a committee of the House. It was a long process but eventually the judge concerned retired or resigned before the process was finished. However, it should not be an easy process. It should require the consent of the vast majority of Members of the House. Then one could argue that the judge must have been in serious error and what the Oireachtas - it is not just the Government - was doing made sense.

I also wish to note the months and times the High Court sits. Everyone is entitled to a summer recess and I acknowledge the fact the High Court has held vacation hearings and, on occasion, hearings at weekends.

Perhaps it is time to look again at that calendar. Is justice denied if a case cannot be heard, unless it is exceptional, between the end of July and mid to late October? While increasing the number of judges will increase the overall number of cases that can be tried, we should also consider shortening the holiday calendar. That said, I acknowledge that judges have a very difficult job to do. The decisions they have to make require a unique commitment of time, knowledge, research and reflection.

It should be noted that a justice of one of our courts, Ms Justice Miriam Walsh, was assaulted last week while hearing a family law case, which was both appalling and disgraceful. I hope the Houses of the Oireachtas and the Minister for Justice and Equality will send on good wishes to the judge. The Government must also ensure that steps are taken to protect the Judiciary so such an incident never happens again.

The Sinn Féin representative commented on the Special Criminal Court earlier. That court is special for a particular reason, namely to protect juries. Non-jury trials require an extra burden of proof and extra judges. There is an increasing number of judges available to preside over exceptional cases which may involve firearms, explosives as well as significant and very serious criminal activity. I would prefer if we never had to use the Special Criminal Court and agree that it should only be used in cases where there is a significant possibility that either witnesses or jury members will be intimidated. It must be said, however, that the IRA, with its campaign North and South of the Border, would not have been defeated without the Special Criminal Court because convictions would probably never have been attained in the normal courts because juries and witnesses would have been interfered with and intimidated.

This is a good Bill. As Deputy Ross pointed out, it is very simple, with only two parts to it but it represents a start. I hope that further legislation which will bring about significant reforms of our courts system will be enacted in the period ahead.

1:00 pm

Photo of Ann PhelanAnn Phelan (Carlow-Kilkenny, Labour)
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I thank the Deputies for their contributions. It is clear that the House recognises the importance of ensuring that the High Court and all other courts have the resources necessary to ensure the efficient processing of proceedings and actions. This is vital to the proper functioning of our justice system.

Deputies Niall Collins and Ross raised the issue of the reform of the judicial appointments process. The Government is currently conducting a wide ranging review of all matters concerned with judicial appointments. This full assessment of these matters is essential. Careful and comprehensive research and consultation is required to develop and reform this very important area of the administration of justice. This is particularly so given the complexity and extent of existing legislative provisions and the very wide range of issues for consideration across many aspects of the appointments process, including appropriate qualifications, eligibility criteria and diversity. A consultation process relating to the system of judicial appointments was conducted in early 2014 with the intention of instituting reforms to enhance the current system. The need to ensure and protect the principle of judicial independence was a significant factor in initiating the consultation process. Furthermore, while the Judicial Appointments Advisory Board process was a model of best practice in its day, almost 20 years from its establishment it was considered worthwhile to review the operation of the entire judicial appointments system to ensure it reflects current best practice.

Therefore, the proposal reflects openness, transparency and accountability and promotes diversity.

There was a significant response to the call for submissions, with substantive and wide-ranging views received on the legislative framework that provides for eligibility for judicial appointment and the process of appointment, including a comprehensive submission from the Judiciary. Arising from the consultation process, draft legislative provisions to reform and update judicial appointment procedures are being prepared by the Department. Such legislation is part of the agreed programme for Government. Review and reform of this area is critical to the functioning of the system of justice and provides an opportunity to determine how the system can best respond to the expectations and needs of a modern state. I anticipate that legislation in this area will be published in 2016.

Deputies Shane Ross and Fergus O'Dowd referred to judicial ethics and conduct and the removal of judges. The programme for Government contains a commitment to legislate to establish a judicial council, with lay representation, to provide an effective mechanism for dealing with complaints against judges. The judicial council Bill will give effect to this commitment. In its current form, the Bill provides for the establishment of a judicial council and board which will promote excellence and high standards of conduct by judges. It will also provide a means of investigating allegations of judicial misconduct. In this context, a judicial conduct committee, with lay representation, will be established. The Bill will facilitate the ongoing support and education of judges through a judicial studies committee and the establishment of judicial support committees.

I support Deputy Fergus O'Dowd's remarks about the recent assault of a judge in the family court. We were all appalled by the attack and condemn it outright.

Question put and agreed to.