Thursday, 4 July 2019
Judicial Council Bill 2017 [Seanad]: Committee and Remaining Stages
I move amendment No. 1:
In page 12, line 24, to delete "12 months" and substitute "6 months".
This is to reduce the period of 12 months to six months. It is just for the council to adopt and publish guidelines concerning judicial conduct and ethics or revisions of those guidelines once received by it.
Then I should also deal with section 17, in respect of which I have a similar amendment. It is to change the period of six months to three months. Section 17 deals specifically with the judicial studies committee. My third amendment relates to section 18, which points to the reason for my tabling these amendments. The amendment to section 18 is to deal with the personal injuries guidelines committee. At present, the council, under subsection (1), is required to specify the date upon which that committee shall stand established, which shall be a date not later than six months following the first meeting. We need to speed this process up and make the period three months.
My second amendment to section 18, my last, is to subsection (4). The legislation states the personal injuries guidelines committee shall submit the first draft of the personal injuries guidelines to the board not later than 12 months after the date upon which the committee stands established but I believe we need to reduce the period to six months. Let us get the process moving more quickly. There is much desire in the House to have the personal injuries guidelines implemented as soon as possible. My concern is that considering how the Bill is currently drafted, we will be looking at a period of three years. Therefore, we need to reduce it. The amendments I have tabled will reduce the period significantly. We need to be conscious of what the guidelines will be. I do not believe we should expect a 200-page document. There will be general guidelines. They are to give assistance to judges but they will not have to be stuck to rigidly. We need to have them produced as promptly as possible.
My comments are also on section 18. I thank the Minister and his officials for prioritising the Bill and facilitating the speedy development of the personal injuries guidelines and committee amendments. As everyone knows, there is considerable frustration over the lack of availability and the cost of business insurance. It is a difficult issue for us to address because of constitutional and legal reasons. The Government cannot intervene directly in regard to award levels and the pricing of insurance. This has led to considerable frustration.
The Personal Injuries Commission, chaired by the former president of the High Court, Mr. Justice Nicholas Kearns, highlighted the significant differential between award levels in this country and England and Wales, in particular. The level here is 4.4 times higher for soft-tissue injuries. The commission made a number of recommendations, including the establishment of the judicial council, to compile guidelines for appropriate general damages. We all feel the award gap needs to be closed significantly. It is hoped that the enactment of this Bill, with the establishment of the personal injuries guidelines committee, will enable awards for various types of personal injuries to be recalibrated. The extent of recalibration is a matter for the Judiciary to determine but I hope it will take into account the Personal Injuries Commission benchmarking exercise in its consideration. Assuming the Judiciary responds in a constructive fashion, particularly in regard to award levels for soft-tissue injuries, the reduced award levels and the greater consistency in their application should have a positive impact on both the cost and availability of insurance. There is no excuse for this not happen. As the House will recall, Mr. Justice Kearns, the chairman of the Personal Injuries Commission, noted in the foreword of its second report that insurance industry representatives on the commission repeatedly stated that, as award levels and associated costs account for the bulk of the cost of insurance, if claims costs come down and are maintained at a consistent and predictable level, then premiums should and will also reduce accordingly. On that basis, I will be keeping a close eye on this as a Member of this House and as chairman of the Fine Gael parliamentary party. I passionately believe that what I seek needs to happen. We do not want to go down the referendum route. We hope the Judiciary will respond accordingly.
I will be brief. As I said in my Second Stage contribution, I do not believe this is the be-all and end-all but it is of value. We need to get this process under way as quickly as possible to have the guidelines and general damages. The sooner we start the process, the better. Therefore, we will be supporting amendments Nos. 1 to 4.
I acknowledge the amendments. Reference was made to the importance of this Bill and its urgency. As I said at the outset, it is a comprehensive Bill dealing with the reform of law that has remained unreformed since the foundation of the State but, during the course of debate on the Bill, it was decided that the issue of personal injuries might be addressed. I very much appreciate the purpose of amendments Nos. 1 to 4, which is to ensure that some of the matters contained in the Bill can be addressed more expeditiously following the setting up of the council. The amendments introduced by the Government in the Seanad were intended to alleviate some of the pressures that might arise if all the committees under the new regime were required to be set up within the same short timeframe. I recognise that, in the case of committees where lay membership is an issue, there was the need to ensure there would be sufficient time to allow for the putting in place of the appropriate individuals.
Amendments Nos. 2 and 3, in the name of Deputy O’Callaghan, would mean both the studies committee and personal injuries guidelines committee would be required to meet not later than three months after the first meeting of the council.
The provision in the Bill is for the committee to meet not later than six months after the first meeting of the council. Having listened to Deputy O'Callaghan and given the matter some consideration, I accept that there is merit in what is proposed. Accordingly, I am in a position to accept amendments Nos. 2 and 3. However, I want to acknowledge some difficulties regarding amendments Nos. 1 and 4. I ask Deputy O'Callaghan not to press these amendments or divide the House.
Amendment No. 1 may give rise to practical difficulties depending on the timing of submission of the guidelines concerning additional conduct and ethics. This is because the adoption of the guidelines is a reserved function of the council and cannot be delegated to the board. The current provision gives some flexibility as to the timing of the council's meetings, which, having regard to the fact that involve all members of the Judiciary, will take place on a once-a-year basis only. The period of 12 months from the submission of the guidelines is the outermost time limit for adoption. There is nothing which precludes earlier adoption, if that is feasible.
Amendment No. 4 would impose a significant burden on the guidelines committee, which would have just six months within which to conclude its work. The matters to be taken into account by the committee are broader, in terms of criteria, than those which currently inform the book of quantum and they will require some research. It is important to take the opportunity to establish guidelines that are fit for purpose and that will inform the level of damages awarded by the courts into the future. I acknowledge what Deputy Heydon stated in respect of the importance of these issues.
I am prepared to accept amendment Nos. 2 and 3. There are some issues regarding amendment Nos. 1 and 4. However, the clear message from the debate is such that all those involved need to act with some haste.
I welcome the Minister's comments. A number of small businesses in my constituency of Sligo-Leitrim have approached me and are very concerned as to the issues that have been highlighted here. I ask that these concerns be taken into consideration.
I will not press amendment No. 1 in light of what the Minister said, particularly as it concerns the judicial conduct and ethics committee. The Minister is accepting amendments Nos. 2 and 3. I will press amendment No. 4, however, when we reach section 18.
Gerry Adams, Bobby Aylward, Mick Barry, Richard Boyd Barrett, John Brady, John Brassil, Declan Breathnach, Tommy Broughan, James Browne, Pat Buckley, Joan Burton, Mary Butler, Thomas Byrne, Jackie Cahill, Dara Calleary, Pat Casey, Jack Chambers, Joan Collins, Catherine Connolly, Ruth Coppinger, Barry Cowen, David Cullinane, John Curran, Pearse Doherty, Stephen Donnelly, Timmy Dooley, Dessie Ellis, Martin Ferris, Michael Fitzmaurice, Peter Fitzpatrick, Kathleen Funchion, Noel Grealish, Seán Haughey, Séamus Healy, Brendan Howlin, Alan Kelly, Gino Kenny, Martin Kenny, John Lahart, Marc MacSharry, Charlie McConalogue, Mary Lou McDonald, Mattie McGrath, Michael McGrath, John McGuinness, Denise Mitchell, Aindrias Moynihan, Michael Moynihan, Imelda Munster, Margaret Murphy O'Mahony, Eugene Murphy, Paul Murphy, Jonathan O'Brien, Jim O'Callaghan, Willie O'Dea, Kevin O'Keeffe, Fiona O'Loughlin, Louise O'Reilly, Frank O'Rourke, Jan O'Sullivan, Maureen O'Sullivan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Donnchadh Ó Laoghaire, Aengus Ó Snodaigh, Willie Penrose, Thomas Pringle, Brendan Ryan, Eamon Scanlon, Seán Sherlock, Róisín Shortall, Brendan Smith, Bríd Smith, Niamh Smyth, Brian Stanley, Peadar Tóibín, Robert Troy.
Maria Bailey, Seán Barrett, Colm Brophy, Peter Burke, Catherine Byrne, Seán Canney, Joe Carey, Marcella Corcoran Kennedy, Michael Creed, Regina Doherty, Bernard Durkan, Damien English, Charles Flanagan, Brendan Griffin, Martin Heydon, Heather Humphreys, Paul Kehoe, Seán Kyne, Michael Lowry, Josepha Madigan, Helen McEntee, Finian McGrath, Joe McHugh, Tony McLoughlin, Mary Mitchell O'Connor, Kevin Moran, Eoghan Murphy, Denis Naughten, Hildegarde Naughton, Tom Neville, Michael Noonan, Kate O'Connell, Patrick O'Donovan, Fergus O'Dowd, John Paul Phelan, Michael Ring, Noel Rock, Shane Ross, David Stanton, Katherine Zappone.
I move amendment No. 5:
In page 24, line 29, after “Council” to insert “and this may include public consultation processes”.
The amendment relates to the provision that the sentencing guidelines and information committee may consult such persons as it considers appropriate for the purpose of drawing up guidelines. I am proposing that this be made explicitly clear. I ask the Minister to clarify that such consultation may include public consultation such that if the committee or, formally speaking, the council is, for example, drawing up a set of guidelines relating to environmental offences, it may hold an information day, seek submissions from interested parties and so on in regard to the drawing up of the guidelines. It would be appropriate for it to have that power. It may already be provided for in the sense that the Bill states that the committee may consult such persons as it considers appropriate in this regard and if that is the case, I will withdraw the amendment. I am seeking certainty that such processes are provided for.
Amendment No. 6 is contingent on amendment No. 7 which seeks to amend section 25 of the Bill. Section 25(3) provides:
For the purposes of making a recommendation under this section, the Public Appointments Service shall have regard to the desirability that the lay members of the Sentencing Guidelines and Information Committee will, among them, possess knowledge of, and experience in, as many as possible of the following matters: (a) the prosecution of criminal proceedings; (b) the defence of criminal proceedings; (c) policing; (d) the administration of justice; (e) sentencing policy; (f) the promotion of the welfare of the victims of crime; (g) academic study or research relating to criminal law or criminology; (h) the use of statistics; (i) the rehabilitation of offenders.
In the context of the importance of the victims of crime and their families having confidence in the judicial and sentencing process, amendment No. 7 proposes an the insertion of a new subsection (4) to provide: "The Public Appointments Service shall have regard to the objective that the Sentencing Guidelines and Information Committee will at all times have knowledge of, and experience in, the promotion of the welfare of the victims of crime."The amendment would give additional weight to the consideration of the welfare victims of crime. It adds an emphasis to the importance of that matter by ensuring that people with experience and knowledge of the welfare of the victims of crime and who have been involved in the representation of such victims will be represented on the committee.
I have no principled objection to the idea that the committee would have the power to conduct public consultations on the guidelines. I addressed this matter in reply to Deputy Sherlock in particular on section 18 and that reply holds in respect of amendment No. 5. What is proposed in the amendment is already contemplated in section 18. The provision which the Deputy seeks to amend clearly states that the committee is empowered to consult such persons as it considers appropriate. This would allow for a targeted consultation and a public consultation which is more general in nature. In addition, the committee may organise conferences, seminars and meetings relevant to its functions. There is no disagreement as to the thrust of the amendment, but it is not necessary for its objective to be attained. I heard what the Deputy had to say. The amendment would not add significantly to the Bill. I assure the Deputy that section 18 will apply and will meet the objective behind the amendment.
On amendments Nos. 6 and 7, as the text currently stands, the promotion of the welfare of the victims of crime is one of the desired criteria to which the Public Appointments Service must have regard in making a recommendation as to lay membership. This provision mirrors identical provisions in the Sentencing Council Bill 2017 and the Judicial Sentencing Commission Bill 2013 brought forward by Sinn Féin and Fianna Fáil, respectively. The Public Appointments Service is not responsible for the appointment of lay members to the committee. Rather, it is only responsible for making recommendations to the Government, which will have ultimate responsibility for such appointments. I assure the Deputy that the Government will have regard to the need to ensure that the promotion of the welfare of the victims of crime is a key element in the selection of lay members to sit on the committee. I am not inclined to agree with the amendment, but I acknowledge the points raised and contend that these issues are adequately catered for elsewhere in the Bill.
Amendment No. 7 places additional emphasis on the welfare of the victims of crime and puts such consideration in a category of its own, which is important. If the amendment were to be defeated, as I expect it will, I would ask the Minister to ensure insofar as possible that the voices of the victims of crime are heard through this process.
In addition, I ask that he ensure that the importance of the phrase "may consult with such persons as the committee sees appropriate" be recognised and that, as the Minister stated, it would, where appropriate, involve full public consultation of the kind that involves submissions, hearings and so on in addition to a targeted form of consultation.
I agree that the sentiment expressed by Deputy Ó Laoghaire should be provided for in the Bill. I think such provision is already within the Bill and that he can rest assured that the process will take into account the concerns of the victims of crime.
I move amendment No. 7:
In page 26, after line 39, to insert the following:“(4) The Public Appointments Service shall have regard to the objective that the Sentencing Guidelines and Information Committee will at all times have knowledge of, and experience in, the promotion of the welfare of the victims of crime.”.
I move amendment No. 8:
In page 29, to delete lines 13 to 18 and substitute the following:“(a) not later than 2 years after the coming into operation of this section, commence a review of enactments which provide for the imposition of minimum sentences for offences and without prejudice to the generality of the foregoing the Minister may, as part of the review, consider—(i) whether the continued imposition of such minimum sentences through the operation of such provisions is appropriate in respect of all offences to which such provisions apply, andand
(ii) the extent to which in practice such minimum sentences are imposed in accordance with such provisions,
(b) not later than 12 months after the commencement of that review, make a report to each House of the Oireachtas on any findings of that review.”.
This amendment does not in any way impact upon the substance of the provision now contained in section 29. The Minister for Justice and Equality of the day will still be required to undertake a review of legislative provisions that impose minimum sentences, whether those sentences be presumptive or mandatory. The Minister will also still be required, within 12 months after the commencement of that review, to make a report to each House of the Oireachtas. The primary purpose of the amendment is to provide a context for the review so that it is clear that its purpose relates to the appropriateness of minimum sentences in general and to the extent to which the provisions in this area are applied in practice.
The amendment derives from an amendment proposed by Senator Lynn Ruane and others in the Seanad. It deals with a review of current statutory mandatory, minimum and presumptive sentencing provisions. There is no difficulty with that. This amendment is simply a redrafting, as I understand it, and those in Senator Ruane's office are happy enough with it. I will support it as I think it is right and appropriate.
Since we are dealing with the area of sentencing, I will take the opportunity to seek clarification from the Minister on one point. We spoke previously about sentencing guidelines and whether circumstances in which a judge persistently departed from the guidelines might constitute misconduct within the meaning of this legislation. Will the Minister clarify the position in that regard?
I understand that debate was in the Seanad yesterday on a Bill relating to mandatory minimum sentences. I am not a fan of such sentences. I believe that each case should be judged on its merits. In that regard, the element of judicial discretion is important. I understand the amendment was not pressed.
There is potential for an investigation under section 59, which deals with the matter of investigations of judicial misconduct in the absence, or after the withdrawal, of a complaint and there is a role for the conduct committee in such circumstances.
That does not answer the question, which was specific enough. The matter will not affect my support for the Bill as I am reasonably happy with the legislation in any event. Would it constitute misconduct if a judge persistently departed from the sentencing guidelines? It is a technical question but it can be answered.
I move amendment No. 9:
In page 73, to delete lines 36 to 38.
The amendment is important and relates to the annual report of the judicial conduct committee. The purpose of the amendment is to confirm that, in all cases, the name of the judge against whom a complaint has been substantiated and the reprimand issued will be published in the annual report of the judicial conduct committee.
Amendment No. 12, which amends section 87(7), is the key amendment. The other amendments involve the deletion of text which is no longer appropriate. They are consequential upon amendment No. 12. Section 87(7) refers to the name of the judge against whom the complaint has been substantiated.
I wish to clarify this point. My understanding of section 87(7) is that it provides that the name of the judge concerned and the reprimand would be included in a report under the section unless the committee "considers that in order to safeguard the administration of justice that information should not be included in the report". We are removing that provision. Will the Minister clarify this point? If a judge is reprimanded, where will the detail of the reprimand and his or her identify be disclosed, if not in the annual report?
That is a concern of mine as well. My concern relates to amendments Nos. 9, 10 and 13. The three sections that are proposed to be deleted will result in the removal of the provision for naming a judge against whom an allegation or complaint has been substantiated. I do not believe that is right. The matter was discussed in the Seanad and the majority of Senators voted in favour of the publication of the name in such cases. That is right and fair. It is salient information for the public and legal teams. It is an appropriate discouragement to judges in the context of a form of misconduct. The Minister may be able to clarify the matter but, as matters stand, I will be voting against amendments Nos. 9, 10 and 13. Amendments Nos. 11 and 12, which appear to be technical, are fine. In addition, I am still waiting on clarification from the Minister on the point I raised earlier.
What we are doing is flipping the position regarding publication to some degree. I refer the Deputies to section 87(6), wherein specific information is referenced as to what shall be included in the report.
That will include the fact that a reprimand was issued, and the name of the judge to whom the reprimand applies. That will be included in the conduct committee report unless there is good reason for it not to be included in the report.
I see the purpose of the amendments now. Subsection (7) is to be deleted as it is unnecessary, because it is provided for in subsection (6). We are going to amend subsection (6) by including a reference to section 79(2)(b), so I see the logic of it in light of what the Minister has said. I will support the amendments.
The person's name and a record of the reprimand will be published unless there is good reason to do otherwise. We can expect that the guidelines will be applied, though there may be departures from them from time to time, where following the guidelines would clearly be contrary to the interests of justice. Having regard to the definition we have agreed as to what constitutes judicial misconduct, if there is a departure from acknowledged standards of conduct, or if the administration of justice is brought into disrepute, it would be possible for the conduct committee to initiate an investigation of that matter under this Bill. The important thing about this amendment is that publication of a name and the existence of a reprimand will be included in the annual report unless good reason is established for non-publication.
I acknowledge the importance of this legislation and the setting up of the judicial council. We have already heard from Deputy O'Callaghan and others that this important reforming legislation has been 20 years in the making. The judicial council will have an important role to play in the administration of justice.
I acknowledge the co-operation of Deputies. There was some urgency to certain aspects of the Bill, and I am pleased that Deputies have co-operated in order to ensure its passage. I acknowledge the contributions and co-operation of Deputies O'Callaghan, Ó Laoghaire, and Sherlock in particular. I express my appreciation to officials in my Department on the manner in which new sections of the Bill, especially those dealing with personal injury matters, have been included. I look forward to going back to the Seanad with these amendments to the Bill. I hope that can be done next week and that we will see its early implementation.
I welcome the passing of this Bill through the Dáil today. As the Minister said, this has been 20 years in gestation. It is a sign of the efficiency of this Chamber that we managed to pass it in only one hour and 55 minutes. This legislation will benefit both the public and the Judiciary, and it is a sign that we, as an Oireachtas, are prepared to recognise the need to invest more State resources in the third arm of government, the Judiciary, which has been neglected for too long.
It is valuable legislation in several respects, and it is good that it has finally been brought through this House. As I said before, it is vitally important for the accountability of judges, but also in supporting them and providing structures for education and training. The provisions on insurance are of value, though they are not the entire solution in and of themselves.
A key priority for me has been the issue of sentencing guidelines. I believe they will make a significant difference and will have a broad range of application over the years. It is a landmark moment for sentencing policy in Ireland and I thank the Minister, Senators and other Deputies, particularly Deputy O'Callaghan, for working with me on it. I also thank the officials who were very helpful throughout this process.