Dáil debates

Wednesday, 10 April 2019

Courts (Establishment and Constitution) (Amendment) Bill 2019: Second Stage

 

6:00 pm

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I move: "That be Bill be now read a Second Time."

I am pleased to have this opportunity to introduce the Courts (Establishment and Constitution) (Amendment) Bill 2019 to the House for Second Stage on behalf of the Minister for Justice and Equality, Deputy Flanagan. We look forward to engaging in a constructive debate as the Bill proceeds through the various Stages. It is the intention of the Government, for the reasons that I will set out and subject to the conduct of business as agreed by the Houses, that the Bill be completed for enactment by the end of June this year.

Following the Government approval of the general scheme of the Bill in December 2018, the Minister for Justice and Equality referred the general scheme for pre-legislative scrutiny. In February 2019, the Joint Committee on Justice and Equality decided that it was not necessary to conduct such scrutiny and this pragmatic approach has helped to progress this compact but nonetheless important Bill.

The purpose of the Bill is to provide for an increase in the maximum number of ordinary judges of the Court of Appeal from nine to 15 and it provides for the amendment of the relevant primary legislation to achieve that objective. As such, it is a short but highly purposeful Bill consisting of just two sections. Section 1 is the substantive provision of the Bill. It provides for the amendment of the Courts (Establishment and Constitution) Act 1961 to increase the statutory number of ordinary judges of the Court of Appeal from nine to 15. Section 2 provides for the Short Title of the Bill and allows for the commencement of the Act by order of the Minister for Justice and Equality. These are standard provisions.

As the House will recall, the Court of Appeal was established on 28 October 2014 under the Court of Appeal Act of that year. That followed a referendum of the people in 2013, which was passed by more than 65% of voters. A key policy objective of the establishment of the Court of Appeal on foot of the referendum was to improve the higher appellate capacity of the Irish courts and to alleviate the relevant backlog in cases which had accumulated at that time. Appeal cases from the Supreme Court and the Court of Criminal Appeal were transferred to the new Court of Appeal and it commenced hearing cases in November 2014. The court comprises a President and not more than nine ordinary judges as set down in statute. There has been no change in this configuration since the court's establishment. A vacancy is in anticipation on foot of the Government's decision of 2 April 2019 to nominate Ms Justice Mary Irvine, whose working contribution as a judge of the Court of Appeal is held in the highest regard, to the Supreme Court.

The Court of Appeal hears an array of appeals in civil proceedings as well as in criminal proceedings and covers a vast array of litigation where parties choose to exercise the right to appeal, such a right being a fundamental safeguard under our legal system. Prior to the establishment of the Court of Appeal, average waiting times for cases to be heard by the Supreme Court had increased to more than four years. For cases on the priority list, the average waiting time was more than nine months. It was anticipated that the introduction of the new Court of Appeal would streamline the administration of justice by having a significant impact on waiting lists while also making a significant improvement to the overall efficiency of the courts system. However, we are now at a point where it is clear from the current waiting times that without additional judges, the Court of Appeal, before too long, will face similar levels of undesirable delay to those which prevailed in the past. At the same time, I emphasise that the Court of Appeal and the Courts Service have been taking the necessary steps to maximise existing capacities in responding to the ongoing challenges. Case hearing lists in the Court of Appeal are actively managed to ensure appeals are dealt with as efficiently as possible and that waiting times are kept to a minimum within the resources available to the court.

Hearing dates are now allocated at the first listing of a new appeal, which reduces the administrative work and time for the court and is, by the same token, more cost efficient for the parties.

The need for the Bill is not to be underestimated. Information received from the Courts Service confirms that, as things stand, hearing dates for civil cases before the Court of Appeal have already been fixed up to, and including, May 2021. While some allocation has also been made within that schedule to ensure any urgent appeal can also be dealt with, the time available for civil appeals is essentially fully allocated up to May of 2021. The current waiting time for criminal appeals is six months. This compares with the 15-month waiting time which previously arose at the Court of Criminal Appeal and is now generally considered to be at an acceptable level. However, with the exception of certain fast-tracked or very urgent cases, the general waiting time for civil appeals is 20 months. This is considered a significant problem in terms of access to justice.

In terms of existing caseloads at the Court of Appeal, civil cases in hand have risen from 677 at the start of quarter 1 of 2018 to 685 at the start of quarter 1 of this year. In addition, there are what are described as article 64 appeals, that is to say, the legacy cases inherited by the Court of Appeal from the Supreme Court. At the start of quarter 1 of 2018 there were 706 such cases which had reduced to 242 at the start of quarter 1 of this year. In terms of criminal offences and appeals, there were 531 cases in hand at the start of quarter 1 of 2018 with 480 in play at the start of quarter 1 of this year. Of course, these are not static figures and will fluctuate as cases are referred in the course of normal courts business to the Court of Appeal on an ongoing basis.

Both the current and previous President of the Court of Appeal, the Honorable Mr. Justice George Birmingham and the Honorable Mr. Justice Sean Ryan, respectively, have highlighted the problems being faced by the Court of Appeal as being most acute and in terms of the court being overwhelmed by its caseload of both inherited and new cases. The Chief Justice also fully supports the specific and reasoned case for an increase in the number of judges of the Court of Appeal and has sought the early introduction of the necessary legislation to deal with this as a most pressing problem.

Against this background, increasing the number of ordinary judges in the Court of Appeal by six, as proposed under today's Bill, will have a beneficial effect of increasing efficiency in processing appeals in the superior courts and providing a more accessible appellate system with more timely and efficient resolution of disputes for citizens and enterprise. The President of the Court of Appeal has indicated that having six extra judges would allow for three divisions of the Court of Appeal - one dealing with criminal, the second with the inherited article 64 cases and the third dealing with incoming mainstream civil cases. In the view of the Judiciary this would allow for the most efficient disposal of cases, allowing sufficient time for hearing cases in court, reading papers in preparation for court and drafting judgments. The mainstream civil division would frequently sit in two courts simultaneously.

This would also mean that the President of the Court of Appeal could, as may be considered appropriate, assign a division of judges to deal exclusively with the remaining inherited article 64 legacy cases. Under such an approach it may well be possible to clear the remaining backlog of those cases within 12 to 16 months. Clearly, there would be a positive benefit to litigants as a substantial decrease would be anticipated in the average waiting time for relevant cases to be heard.

The appointment of six additional judges to the Court of Appeal is estimated to cost in the region of €1.22 million by way of salaries and allowances. Their appointment will also require the provision of some additional supports by the Courts Service. Funding for such non-pay or capital costs, including any required additional chambers, will be managed within the existing resources of the Courts Service.

As part of the approach being taken under the Bill, it is also intended that the Minister will review the situation regarding judicial numbers in the Court of Appeal in consultation with the President of that court in two years as, in due course, the court clears down its inherited caseload of Supreme Court appeals. Similarly, the long-term requirement for maintaining the existing statutory ceiling of judges in the Supreme Court will also be kept under review.

As recognised by the Minister, Deputy Flanagan, when he secured Government approval for the publication of the Bill in March, there is a strong and compelling case for the provision under the Bill of additional judicial resources to the Court of Appeal. The Government is satisfied that the additional judicial positions are warranted to address the current demands being faced by the Court of Appeal and to improve efficiency in the appeals process, which is a bulwark of the judicial system and access to justice.

In the light of its obvious merits as I have set out and the fundamental importance of the Court of Appeal to the effective administration of justice, I commend the Bill to the House.

6:10 pm

Photo of Jim O'CallaghanJim O'Callaghan (Dublin Bay South, Fianna Fail)
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I welcome the opportunity to speak to this important legislation. I can assure the Minister of State and the Government that Fianna Fáil will be supporting it.

It is important to point out that prior to the Court of Appeal being established in October 2014, litigants had to wait approximately four years for their appeals to be heard in the Supreme Court. That was an unconscionable delay for people who were entitled to have an appeal heard promptly and yet they had to wait four years. The purpose of establishing a court of appeal was to ensure the process of appeals could be determined much more quickly.

The Court of Appeal has been effective in seeking to achieve that object. In fact, on the criminal side of the Court of Appeal, an appeal will be heard within this year if the appeal is put in now. However, where there is a significant backlog is in respect of civil appeals before the Court of Appeal. At present, the earliest date for hearing an appeal of a civil action to the Court of Appeal is May 2021, which is in effect a wait of just over two years.

It makes sense that we try to add more resources to the Court of Appeal. At present, there are ten judges on the court. Under the legislation we will have six more, which will bring up the number to 16 judges. As has been stated by the Minister of State, the effect of that is that we will be able to have two divisions of the Civil Court of Appeal hearing cases and we will be able to have three judges in the Criminal Court of Appeal hearing criminal appeals.

The legislation also underlines another very important point that we and the Government will have to deal with in due course, that is, the resourcing of the Judiciary. We have 40 High Court judges at present. It is not enough. We need more High Court judges involved. If one talks to any litigant waiting to get their case on in the High Court, it is the case in civil actions, unfortunately, that many of them will not get on the first time their case is listed for hearing. They will not get on the second time their case is listed for hearing and, if they are lucky, they may get on on the third occasion. The reason there is such a delay is because of the lack of judges being available.

I sometimes compare the resources Members of this House have with Members of the Judiciary. Deputies have the entitlement, appropriately, to hire two people, and they need that. A Minister can hire up to seven people. A person will probably need that as a Minister although Ministers have the Department behind them with all the hundreds of people who work within it. A High Court judge is lucky if they can get one judicial researcher, and he or she has to do everything for the judge.

When we think about the responsibilities that fall on High Court judges, they have to listen to all the evidence in the cases and then go off after the case is ended and produce a considered and correct High Court judgment, and they have to get it right. The reason they have to get it right is because Ireland is a common law system and the system of law in this country depends to a large extent on judge-made law. Huge amounts of law go through this House but every item of legislation we put through this House inevitably ends up before the courts where a judge is required to interpret it and give written decisions in respect of it.

We need to look at the level of resources we will allocate to the Judiciary. It is an important limb of Government. There are three limbs of government in this country, the Executive, the Legislature and the Judiciary, and it is very much the case that the one that is resourced the least is the Judiciary. That is something the Minister needs to examine.

In looking at the very good work the Court of Appeal has done, we have to go to the Courts Service annual report. The report for 2017 was published last year. The Minister has referred to some of the statistics within it, but reading the report shows that a considerable amount of work and appeals have been completed by the Court of Appeal. It may be the case that because of the Court of Appeal and its efficiency, more appeals are being taken than would have been the case had there been only the Supreme Court. It is certainly the case that in respect of interlocutory matters, appeals are being taken more frequently than would have been the case prior to the establishment of the Court of Appeal.

I have said repeatedly that we need to recognise that the resourcing of the Court of Appeal is not about the convenience of judges or the convenience of lawyers. It is to enable citizens who come before our courts to get justice before the courts. If there is not a facility or a capacity within the court system to deal with actions which people bring before the courts, justice is not being properly served.

This legislation is only about the Court of Appeal. We are increasing the number of judges from ten to 16. As I have said previously, we need to look at other courts, particularly the High Court. At present, we have 40 High Court judges, but when we look at the number of judges per capitain Ireland, we can see that we are in a very low position. I am aware that research was done in respect of 2015 and it showed that Ireland was 77th out of 94 countries in terms of the number of judges we had per capita.

At that stage the average in Council of Europe countries was 21 judges per 100,000 people, but in Ireland there were only three per 100,000 people. In Norway the number was 11 per 100,000 people, while in Portugal it was 19 per 100,000 people.

The Government must consider the further resourcing of not just the High Court but also the Circuit Court and the District Court. As I said, this is not about the convenience of lawyers but about individuals being able to access the courts. If more judges and resources are put into the system, going to court will not be so stressful. People could go to court, have their case heard and disposed of quickly and then have an appeal dealt with. It should not be the case that it takes years for a person to gain access to justice.

I also believe the inevitable delay and the prolonging of a court case have the effect of increasing the cost. If a person can have a case dealt with quickly, there will be more competition and the cost will decline.

I welcome the legislation which Fianna Fáil will support, but greater resources are needed in the Court of Appeal. However, the Government must also consider providing more resources for other aspects of the Judiciary. Today the justice committee discussed the Estimate for the justice Vote with the Minister, Deputy Flanagan. It was outlined that the Estimate for the judicial council was €250,000 next year. That will not be sufficient for a statutory body that is proposing to deal with the training of judges and disciplinary matters. In addition, judges will be asked to produce guidelines not only in respect of personal injuries but also criminal matters. The Judiciary must no longer be treated as the Cinderella in the three limbs of government. It requires further resources. For the sake of citizens, we should all seek further resources for it.

6:20 pm

Photo of Martin KennyMartin Kenny (Sligo-Leitrim, Sinn Fein)
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I am speaking on behalf of Deputy Ó Laoghaire who, unfortunately, cannot be present.

I thank the Minister of State for bringing the Bill before the House. As it is quite straightforward, I will keep my comments brief.

The Bill has the support of Sinn Féin. We wish to see it proceed as quickly as possible to address the volume of cases before the Court of Appeal. The purpose of the Bill is to provide for an increase in the maximum number of ordinary judges of the Court of Appeal from nine to 15. The Court of Appeal has a very significant volume of work because of the caseload it inherited from the Supreme Court and the volume of new cases it is taking on. While there is a six-month average waiting time for criminal cases to be heard, it takes, on average, almost two years for civil cases to be heard. There are some examples where it takes up to four years. This has been a problem for some time.

In 2017 the President of the Court of Appeal warned that the court was close to being overwhelmed by its caseload. Mr. Justice Sean Ryan said delays of over one year in hearing most appeals would get worse unless action was taken as the court was "coming to the point of being overwhelmed." The Court of Appeal was established in October 2014 and inherited approximately 1,650 appeals from the Supreme Court. However, with 600 new appeals from the High Court each year, the delay before an appeal can be heard has grown. Mr. Justice Ryan believes the Court of Appeal can deal with approximately 320 appeals each year. The Chief Justice has supported the need for this measure. The Bar Council and the Law Society of Ireland have also been anxious to see this issue resolved.

Criminal matters were, rightly, prioritised, but the uncertainty involved for all concerned is unjustifiable and deeply worrying. An access to justice issue arises. As the adage goes, justice delayed is justice denied. When somebody must put his or her life on hold for two years or more, perhaps after a year, two years or more in the system, it becomes intolerable. According to the 2017 annual report of the Courts Service, when the Court of Appeal was established in 2014, a backlog of 1,355 civil cases were transferred to it. At the end of 2017, only 649 of the 1,355 cases had been resolved.

We must ensure the process of making judicial appointments is dealt with. Some are seeking to delay it and maintain a system based on patronage and connections. That might suit some people, rather than making it more transparent and independent, with a lay majority. The Seanad has been prevented from dealing with that important issue owing to filibustering, which is a shame. We also must have the Judicial Council Bill 2017 enacted, including the sentencing guidelines Sinn Féin negotiated to have included in the legislation. It is key to judicial reform and respects the independence of the Judiciary.

In any state the provision of justice and access to the courts are fundamental to the functioning of a democracy. Any delay in accessing justice is unacceptable. I am happy that the Minister of State has been proactive in bringing forward this legislation before the backlog becomes unmanageable to the point of paralysis. Will he clarify how the number of 15 was arrived at and whether it will be enough to address the backlog of current cases in a reasonable timeframe? Does he believe the issue has been addressed by the prospective appointments should current case trends continue?

Again, Sinn Féin supports the Bill and wishes to see it enacted as a matter of urgency.

Photo of Michael CollinsMichael Collins (Cork South West, Independent)
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The purpose of the Bill is to provide for an increase in the maximum number of ordinary judges of the Court of Appeal from nine to 15. I welcome this as the Court of Appeal has a large volume of work. It inherited some of its cases from the Supreme Court and also deals with a large volume of new cases. Before the Court of Appeal was established, the average waiting time for cases to be heard by the Supreme Court had increased to over four years. While it was anticipated that the new Court of Appeal would have a significant impact on waiting times, unfortunately, this did not turn out to be the case. Without additional judges, the Court of Appeal is under severe pressure in dealing with its workload. The current waiting time is 20 months for civil appeals, which is problematic in seeking access to justice.

A man in my constituency in west Cork has been waiting 14 years for justice. In 2005 he attended the Circuit Court after he had been evicted from his family business by the State body Coillte. There was no registrar present in the court. That might appear to be a small matter to the untrained eye, but for the man in question, it cost him justice. He was not allowed to appeal the case to the High Court as it was alleged that he was out of time to lodge an appeal. There was great confusion between solicitors and the Circuit Court office in Cork as to when the Circuit Court orders had been made, but the Circuit Court office agreed with the man's solicitor on when the orders had been made and ordered the State body's solicitors to hand them back for amendment. Lo and behold, they would not hand them back for amendment as ordered by the Circuit Court office. As a result, my constituent lost his right of appeal and his family business because of the wrong dates on the orders. Why did they not consult the alleged registrar who they say was present in the court to inquire about the dates? The Courts Service states there was a registrar present at all hearings, but it cannot prove it. My constituent has written proof that there was no registrar present at any of his hearings, but he will not be given the opportunity to demonstrate this, as no solicitor will take his case for fear of repercussions from the Courts Service. He has proof of this and suffered greatly. There are judgments on all of his property for legal costs as a result of the wrongful administrative duties of the Circuit Court office in Cork, despite the attempts to get at the truth. How can the Minister of State stand by and let a man suffer like this for 14 years? The man in question is simply requesting that the Courts Service produce its proof and the name of the registrar whom it states attended his hearings. He also wants to have the opportunity to produce his evidence. There has been a major miscarriage of justice by the Courts Service. Will the Minister of State give the man in question this right? The Bill seeks to enhance the Courts Service, but how can we enhance it, on the one hand, and, on the other, leave a man on his knees suffering for 14 years with no justice?

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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We cannot become involved in discussing an individual case that is either before or has been before the courts. It is not appropriate to do so.

Photo of Michael CollinsMichael Collins (Cork South West, Independent)
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It has been continuing for 14 years and destroyed his life.

Photo of Michael Healy-RaeMichael Healy-Rae (Kerry, Independent)
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I appreciate the opportunity to discuss this important amendment. The Ceann Comhairle will be glad to hear that I will not mention any specific case, but I wish to discuss how family law cases are mixed up with other cases. Given their constituency work, Members will appreciate from where I am coming. A family law case that comes before a court to be heard can sometimes be postponed. It might be the first case due to be heard the next day the court is due to sit.

It might be perceived that the case might take two or three hours for half a day. The people involved will be there with their legal representatives, their accountants possibly and others they have to have with them. Such individuals do not come cheap and they have to be paid for their time. Instead of being first on the list, which it should be, those involved will be informed that the case is going to take too long and that it is being postponed to a later date. That can happen on a number of occasions. The poor people to whom I refer have to be there. I do not know anybody who looks forward to going to court, except somebody who is working in the service. Whatever one's involvement, one would rather be anywhere else than inside in court.

People have the worry, anxiety and upset of getting ready to go to court. They must meet the expense of having their representatives - accountants, solicitors and maybe barristers - with them. Then, having brought everything they need with them on the day, they are informed that the case must be delayed. I am not blaming the judges but somebody is to blame. Surely a system can be put in place whereby a person can be told that his or her case will be taken first on a particular day and that will happen.

In the case of family separations, there should be some special way of these cases being heard on the day on which they are supposed to be heard. The District Court or Circuit Court could be specifically designated in this regard. I am not referring to the High Court yet. A particular time could be set aside and those involved would know when their cases would be heard. When people go to the expense of having their representatives with them, they should not have to pay them for doing nothing. There is nothing worst than being geared up, ready and inside in court and then the case not being called. That is probably the worst thing that could happen to anybody. People are so disappointed when it happens. Their stomachs are in knots days beforehand as they prepare and then the rug is suddenly pulled out from under them.

We move on then to the High Court, God protect us. The issue relating to the High Court is different and extremely serious. The delays that can occur in the High Court. Cases can be delayed and be very slow in terms of being worked through the process. I even have an issue with the times at which the High Court begins and finishes its work each day. A particular court may only sit for a couple of hours. I appreciate that there is much hidden work involved in cases but the poor people attending have to get ready and be there on a particular day and are then left standing around waiting, looking out the window, at their shoes or up at the sky and praying to God. They are an absolute pity as they wait and wait. Eventually, the case may or may not be called.

We, as politicians, should do anything we can do in order to try to alleviate the situation in this regard. Again, I am not blaming the judges. However, we should assist them by ensuring that there is a better system in place and giving them the wherewithal they need to prepare for cases by, as Deputy O'Callaghan stated, providing the resources they require and the staff they need. I appreciate that a court case is not all about hearing the evidence. There is much other work that judges must do to prepare, including being aware of the evidence that is going to be presented and reading the different letters and the doctors', legal and accountants' reports which may have been supplied in advance. There is an awful lot involved. If they need more assistance, we should give it to them.

If anything can be done by us, as legislators, to improve the lot of the various people who are obliged to go to court, namely, the users of the court system, I will stand with the Minister of State, shoulder to shoulder, any day of the week in order to ensure that it is done. We must do all we can to ensure that we take a more kindly approach to people who, for whatever reason, have to go to court. I refer, in particular, to those involved in family law cases who have to go through judicial reviews, separations and all that is involved in a marital breakup, including the division of assets, children's issues etc. Judges shoulder a great deal of responsibility and the Legislature should do anything it can to assist them. We should not just be seen to be doing this, we must actually do it.

I would appreciate it if what I have said could be taken on board and if mechanisms could be put in place to improve the system. I do not want to say that it is broken but it certainly could be improved. Any person who has had the misfortune of going through it will know what I am talking about.

6:30 pm

Photo of Mattie McGrathMattie McGrath (Tipperary, Independent)
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I too am delighted to speak on this important legislation. I have to declare that when the matter to which it relates was put to referendum, I opposed it for very genuine reasons. It is like getting a flat tyre when driving one's car and one takes off the other three wheels as well. At the time of the referendum, we were informed by the Government that it was introducing this great and wonderful model that would solve all the problems. In fact, it was not going to solve anything. That was because the Government did not propose to address the reason the tyres were punctured in the first place. No one was looking at the engine or anything else and the car was not fit for purpose. That was the problem. I was going to say that this was a typical Irish solution to an Irish problem but it was more a Fine Gael solution to a particular problem. The taxpayer had to foot the cost of a referendum campaign and everything else but what was proposed was useless in the absence of the real changes necessary to remedy the situation relating to the courts.

I take this opportunity to mention Mr. Johnny Walsh, a barrister in Tipperary who is a good friend to myself and Deputy O'Callaghan. He was due to visit the House today but he is in hospital. I wish him well. I also wish the former Attorney General, who is member of the Court of Appeal - the court to which the Bill relates - well in her new role.

I am not anti-judge. The purpose of the Bill is to provide for an increase in the maximum number of ordinary judges of the Court of Appeal from nine to 15. That is another waste of time. We are scratching at the surface. In a moment, I will use figures to explain why that is the case and why we are going backwards. The explanatory memorandum states to the Bill states:

It is clear that the Court of Appeal has a very significant volume of work ... without additional judges, the Court of Appeal could, before too long, be facing a similar level of delay to that which prevailed previously. As it is, the current waiting time of 20 months for civil appeals would be considered problematic in terms of access to justice.

One of the old sayings in the legal sphere, "Justice delayed is justice denied", is very true. Deputy Michael Healy-Rae referred to unacceptable delays and the confusion of people attending on particular dates only for their cases to be postponed. I attended the High Court in Waterford ten years ago in the context of a claim someone brought against me and my business. It was like a Munster final. Walsh Park, which can accommodate 12,000 people, could not have held the crowd that showed up on the day. Everybody was obliged to attend but only handful of cases were heard on the day. I am not sure whether the courts sat for four or five days that week. Surely to God those involved would know that they would be lucky if 20 cases were heard, although it could be as few as three or four. This looks like a racket and that is what it is.

I hope the Acting Chairman is not getting cross with me. I know she is a barrister and I wish her well in the context of the duties she performed before she became a Member of this House. I am not blaming anybody but it is the system that is broken. All of the people to whom I refer should not be brought to court on a particular day if a case is not going to be heard, particularly in view of the cost involved.

Photo of Catherine ConnollyCatherine Connolly (Galway West, Independent)
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I gently remind the Deputy to keep to the topic.

Photo of Mattie McGrathMattie McGrath (Tipperary, Independent)
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I am doing so. I am talking about what we should be reforming rather than just appointing more judges. If Galway were doing badly in an All Ireland final, the management could not just add four extra players to bring the team on the field up to 19 in order to beat Kilkenny or Tipperary.

Photo of Bobby AylwardBobby Aylward (Carlow-Kilkenny, Fianna Fail)
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The Deputy should go easy on the poor Chairperson.

Photo of Mattie McGrathMattie McGrath (Tipperary, Independent)
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Not at all, I have great respect for her. Adding five people here is like buying extra hens if those that one already has are not laying eggs.

This is exactly what I said would happen and what legal commentators such as Seth Barrett Tillman of Maynooth University have made clear. Anyone who wanted to do so or who cared enough could see what was about to happen at the time of the referendum. In 2017 and 2018, I asked the Minister for Justice and Equality, on the floor of the House and by means of parliamentary questions, to address ongoing concerns regarding the inability of the Court of Appeal to address its persistently large backlog of civil and criminal cases.

At the time, an analysis of the Courts Service was undertaken by the same Seth Barrett Tillman, a lecturer in law at Maynooth University. He found that without significant reform the Court of Appeal would be incapable of reducing its judicial backlog. He put that out during the referendum. He argued the point on radio, television and anywhere he was asked to argue the point. He argued cogently and coherently and the Government was unable to give him answers. Yet, the Government fooled the people into voting for it. As Deputy Michael Healy-Rae and others said, many people were so tormented waiting that they thought this would be a panacea to everything, but it was a panacea to nothing. This analysis was a forensic deconstruction of the spin that was being peddled regarding the impact that the Court of Appeal would have on addressing the backlog of cases. Spin is all it was. The Government did not have a spin machine worth €5 million at that time worth, but it was going to spend money at the same time. It was spin and nothing short of it. At the time, the idea of a new court was being sold to the people. It was touted as a kind of perfect remedy for the extraordinary delays affecting our judicial system. It had no hope of ever achieving that. Some of us tried to highlight the fact that all this would do, in the absence of more fundamental reform, was create the illusion of progress. Anyone who took a cursory look at what was going on could have predicted it. That position has now been vindicated.

Seth Barrett Tillman has shown that in the course of the Court of Appeal's second complete calendar year, with millions of euro spent, the number of pending cases started at 1,814 but by the end of the year the number had increased to 1,821. That is an increase of seven after all the money, spin and talk. I am not blaming the judges but I am saying there is something serious wrong with the system. I had students here today from the Central Technical Institute in Clonmel. If I had brought up first year students, they would have known there was something radically wrong. The backlog is going up in spite of it. The Government is going to add six new judges without addressing the fundamental problems of the backlog. They are basic enough to deal with, but the Government does not appear to want to deal with them. The number of pending cases went up from 1,814 at the start of the year to 1,821. Some people are laughing all the way to the bank, but people are not getting the justice they deserve and are entitled to as citizens in a modern democracy. There was no net reduction in the number of cases in the backlog in that year. Tillman carried out his research in a full calendar year. It has got worse. In point of fact, Seth Barrett Tillman highlighted that there was a 98% decrease in the number of case disposed of between 2015 and 2016 in the two-year calendar period. This was predicted by him, by me and by a small number of others during the referendum but the Government would not listen.

All these issues raise profound challenges for the operation of the court and for public value for money. The question of value for money never seems to come up. We have become reckless and we do not care. We could get another firm of accountants to examine it and give it another €500,000, and off we go. We all carry on. This question must be addressed and scrutinised without the kind of delays that may arise from an undue sense of deference towards judges. I am not saying it is a question of deference towards judges. I am simply saying they cannot do it all. The system is archaic, choked and not fit for purpose. Now we can see what is going on. If they are not getting through the backlog, then questions need to be asked about why that is happening year after year even with additional court facilities at their disposal. We saw the bill for them as well. It was enormous but the efficiency is not there. The reasonable conclusion is that more fundamental reform is needed instead of creating another court with the same procedures. Even children can see that more judges will not solve the backlog. It is the procedures that are at fault and they need to be changed. That is why I am opposing this Bill but the Government is throwing money at it.

The Minister for Transport, Tourism and Sport, Deputy Ross, has a Bill stuck in the Seanad. The Rural Independent Deputies debated another Bill from the Minister, Deputy Ross, last year. We were described as everything, including filibusterers. Yet, there is no word of filibustering now even though that Bill has been held up in the Seanad for months. What is wrong with the media and commentators? They demonised us for representing our people on legislation that was wrecking rural Ireland. Now a Bill that is so badly needed - it is being championed by the Minister, Deputy Ross - is held up in the Seanad for days, weeks and months but there is not a word of filibustering. It is fine if a person comes from Dublin, has a posh accent and is a barrister, a Senator or whatever. I am not criticising anyone. There may be good reason for the delay. It is bad legislation. However, I am criticising the media and the commentators who ridiculed us as backward. They were fanned by the Minister for Justice and Equality at the time. I know they are not here but I hope they are listening - tá siad ag éisteacht sa seomra. I hope it is not the seomra codlata and that they are still there. Fair play, it is fine playing with me. The people of Tipperary, Kerry and west Cork are entitled to representation. They are entitled to send us here for the time being to scrutinise legislation and fight off dastardly legislation. This is where the energy should be focused. We will not apologise for what we did because the benefits are being seen now. Pubs, institutions and everything else are closing down. There is rural isolation and God knows what but there is no impact analysis of the effect. Yet, when a Bill is delayed for weeks and months there is no criticism. What kind of critics have we? Can we not have others? The people know what is going on. They are not that stupid in the country. They can see what is going on. This legislation is useless, toothless and fruitless. If we do not reform the system, we can appoint all the judges we like but it is no good.

6:40 pm

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I thank the Deputies for their Second Stage interventions in response to the Bill. In the main, Deputies have been supportive of it. As I set out during my opening statement on behalf of the Minister for Justice and Equality, Deputy Flanagan, my view is that while this is a small two-section Bill it will have a disproportionately positive effect in terms of the access to justice. If enacted, it will bolster the working capacity of the Court of Appeal so that it can keep up with the caseload demand while also working down any existing delays.

Hearing dates continue to be allocated weekly. Taking the optimal approach in case management terms, the appointment of six additional ordinary judges, as proposed under the Bill, would allow the current list to be reviewed by the President of the Court of Appeal. This could be done with a view to bringing appeals forward for earlier hearing dates than those that have been allocated under limited existing resources. The appointment of additional judges is not an indulgence but a necessity. Right now, as things stand, hearing dates for civil cases before the Court of Appeal have already been filled up to and including May 2021, with some space allowed for cases of urgency that can also be expected to arise during that period.

The Bill represents a further development of the appellate capacity of the courts following the creation of the Court of Appeal in 2014 in that we are now making provision to increase the maximum number of ordinary judges of that court from nine to 15.

Since 1995 there has been an incremental increase in the number of judges across the various court jurisdictions to meet working needs. The number of judges in the Supreme Court has increased by 29% with the appointment of two judges. It currently comprises the Chief Justice and nine ordinary judges. The number of judges of the High Court has increased by 95% with the appointment of 18 judges. The court now comprises the President of the court and 39 ordinary judges, two of whom are specially assigned. The Circuit Court has seen an increase of 54% with the addition of 13 judges. It now comprises the President of the court, 37 ordinary judges and six specialist judges. Similarly, at District Court level, there has been an increase of 26% in this period with the appointment of 13 judges. The District Court now comprises the President of the and 63 ordinary judges.

Deputy Kenny asked how the number of judges was arrived at. It was reached in consultation with the President of the Court of Appeal, the Chief Justice and the Courts Service. The process included analysis of current and projected caseload.

As set out, it is proposed to utilise the additional judges in dealing with civil, criminal and inherited appeals from the Supreme Court with these additional resources. The growth in figures since 1995 clearly illustrates the ever increasing workload that has been part of the Judiciary across the courts system with the support of the Courts Service and in the context of a growing national population. This, in turn, places consequent demands at the level of the Court of Appeal. Indeed, discussions are under way in support of the assessment of the ongoing needs of the respective court jurisdictions in terms of the number of judges.

This Bill, in enhancing the Court of Appeal to meet current demands, can also contribute to Ireland's competitive advantage as an English-speaking common law jurisdiction of international repute in the provision of international legal services as an EU member state in a post-Brexit setting. Indeed, the Government is supporting the joint initiative of the Bar Council of Ireland and the Law Library in this regard.

An ongoing review of the administration of civil justice at all court levels, approved by the Government in 2017, is being chaired by the Honourable Mr. Justice Peter Kelly, President of the High Court, and a report is expected at the end of this year.

Deputy Michael Healy-Rae would have been interested in this point but he has left the Chamber. It is intended to publish proposals in 2019 for a new approach to handling family law cases at District, Circuit and High Court levels, supported by legislation, to create a dedicated family court within the existing court structures, and the building of a new family law centre and children's court in Dublin 7. In recent years, we have seen the new Criminal Courts of Justice on Parkgate Street come on stream, and the wider public private partnership project, which has seen the development of new courthouse buildings in Drogheda, Letterkenny, Limerick and Wexford, along with the refurbishment and extension works to existing courthouses in Cork, Mullingar and Waterford.

We have two key Bills relating to judicial reform before the Houses. The Judicial Appointments Commission Bill 2017 is before the Seanad, where it continues on Committee Stage. We must not lose sight of the fact that, notwithstanding that differing views have emerged in the debate in that House, the objective of this Bill is to reform and develop the statutory framework for the appointment of judges to ensure that it is transparent and fair. To that end, the Bill sets out to replace the existing Judicial Appointments Advisory Board with a new judicial appointments commission. As such, it is a Bill to which some further reflection can be given following Committee Stage in the Seanad, including possible amendments on Report Stage. The Judicial Council Bill 2019 is also before the Seanad, where it completed Committee Stage on 2 April 2019. It is now awaiting Report Stage, with a number of amendments under consideration. As Members will recall, this Bill provides for the establishment of a judicial council, a judicial conduct committee, a judicial studies committee and other judicial supports.

Against the background of these and other ongoing measures being taken by the Government to enhance and modernise our courts and judicial system, there is a strong case for the provision under today's Bill of additional judicial resources for the Court of Appeal. As I said earlier, the Government is satisfied that the additional judicial positions are warranted to address the current demands being faced by the Court of Appeal and to improve efficiency in the appeals process, which both permeates and underpins the administration of justice under our Constitution. I note that Deputy O'Callaghan made the point that perhaps the creation of the Court of Appeal led to more appeals and more opportunities for people to avail of justice. By increasing the number of judges there, we are addressing the backlog, which is a major problem.

I thank Deputies for the engagement and, in the main, for their support in today's consideration of Second Stage of the Courts (Establishment and Constitution) (Amendment) Bill 2019. I commend the Bill to the House.

Question put.

6:50 pm

Photo of Catherine ConnollyCatherine Connolly (Galway West, Independent)
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In accordance with Standing Order 70(2), the division is postponed until the weekly division time on Thursday, 11 April 2019.