Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

Amendments Nos. 166 to 178, inclusive, are grouped together. They propose to insert a Part 6 with new sections 148 to 160 into the Bill. These amendments together create a new cadre of judges of the Circuit Court and are necessary to facilitate the speedy consideration of insolvency applications by that court. As I have mentioned previously, the tentative estimate of applications is roughly 15,000 applications for the two main non-judicial debt resolution processes, the debt settlement arrangement and the personal insolvency arrangement, and 3,000 to 4,000 applications for debt relief notices.

The Bill sets out two applications which will be made to the Circuit Court by the insolvency service in respect of debtors. The Bill allows that a creditor may seek to object on specified grounds. Every effort is being made to design these court applications in a straightforward and streamlined manner. However, this work was to be added to the existing volume of work of the Circuit Court without increasing its capacity and there is little doubt the applications would suffer some delay. The Government therefore agreed to my proposal to create a small new cadre of specialty or specialist judges of the Circuit Court who will be dedicated to applications under this Bill and other similar work. They will, for example, be assigned the functions to be created also by the forthcoming mental capacity assisted decision-making Bill which I hope will shortly be published, and other suitable functions may be assigned by statute to them in due course. I expect that approximately six such judges will be required. Rather than seeking to appoint additional judges with associated extra salary and pension costs to the Exchequer, the Government has decided that eligibility for these new judgeships will be initially confined to serving county registrars with the necessary legal qualifications and practice experience.

The posts will be advertised via the Judicial Appointments Advisory Board, JAAB, which will forward a list of suitable applications to Government in the same manner that applies to other judicial appointments. The appointments of a country registrar as a specialist judge will be largely cost neutral as he or she will not be replaced. This will have the effect of creating the necessary additional judicial resources and maximising the contribution of existing officeholders at little additional cost.

The detailed technical amendments to the Courts Act to provide for these new judgeships are set out in amendments Nos. 166 to 179, inclusive, as follows. Amendment No. 166 proposes the insertion of a new section 148 amending the main Courts (Establishment and Constitution) Act 1961. Subsection (a) amends section 4(2) which provides that circuit judges be styled in their Irish language titles with English titles a second option. The appropriate term in designated in the amendment. Subsection (b) adds specialist judges to the list of judges that make up the Circuit Court. These judges will also be regarded as full judges of the Circuit Court. The effect of the amendment is that the term ?judges of the Circuit Court? will mean the President, "ordinary" judges and specialist judges of that court. Subsection (c) amends section 6A(1)(b) of the 1961 Act - inserted by section 12 of the Courts and Court Officers Act 2002 - to allow completion of partly heard cases by a judge, including a specialist judge, who is elevated to another judicial office.

Amendment No. 167 inserts a new section 149 to amend section 17 of the Courts (Supplemental Provisions) Act 1961 providing for eligibility for appointment as a Circuit Court judge. A specialist judge is a judge of the Circuit Court, but not what the legislation terms an ?ordinary judge of the Circuit Court?. This gave rise to the need to amend subsections (2), (2A) and (2B), all inserted by section 5 of the Court and Court Officers Act 2002, to make clear that these provisions apply to the appointment of ordinary judges only, and not to the appointment of specialty judges who are dealt with in the new subsection (4).

Subsection (1)(d) allows a specialist judge to apply to appointment as an ordinary judge of the Circuit Court. Subsection (1)(e) deals with the qualification for appointment as a specialist judge, by inserting new subsections (4) and (5) in section 17 of the 1961 Act. This is to provide that the first applicants are confined to serving, qualified county registrars. Subsection 4(b) also gives effect to this by providing that the standard eligibility criteria for practising solicitors and barristers who are qualified for appointment may not come into effect until 1 January 2014, that is, after the first round of appointments of specialist judges has finished. A key aim of this measure is to achieve the essential additional capacity in a largely cost neutral manner. If, however, insufficient numbers of county registrars apply or are deemed suitable by the JAAB, the wider eligibility provision may be triggered at an earlier date by ministerial order. Given that the provision deals with the appointment of a category of judge, it also specifies a safeguard that the ministerial power to commence the wider eligibility is "grandfathered" out and the eligibility automatically broadens out to the standard no later than 1 January 2014.

Amendment No. 168 inserts a new section 150 into the Bill amending the Courts (Supplemental Provisions) Act 1961 to insert a new section 26A setting out the extent of the functions, powers and jurisdiction of a specialist judge. Subsection 1 provides that a specialist judge may only perform the functions and exercise the powers and jurisdiction conferred by this statute. The other subsections then go on to detail those functions, powers and jurisdiction as follows. Subsection 2 relates to the functions of the Circuit Court which is the court granted jurisdiction in section 5 of this Bill for all applications other than those specified in section 5(1)(a) of this Bill. Subsection 3 also gives a parallel power to specialist judges to make any order that may be made by a County Registrar under section 34(1) of the Courts and Court Officers Act 1995. Subsection 3(b) means that such orders, if made by a specialist judge, will be appealable to the High Court rather than the Circuit Court. Subsections (4) to (9), inclusive, are provisions to ensure that a specialist judge may have powers to deal appropriately with any case before him or her, including, for example, a standard power to adjourn a case under subsection (7).

Amendment No. 169 inserts a new section 155, amending section 46 of the Courts (Supplemental Provisions) Act 1961 to provide for the salary of the specialist judge. This is set at the same rate as that applicable from 1 January last to ordinary judges of the Circuit Court, that is, ¤140,623. County registrars are paid between ¤123,000 and ¤145,000 thus where a serving county registrar is appointed, this will give rise to little or no additional cost to the Exchequer.

With regard to amendment No. 170, the new section 152 amends the Courts and Court Officers Act 1995 to set a maximum of eight specialist judges. As specialist judges may be appointed to more than one circuit, I anticipate that six may be appointed in the first instance. An increase to the maximum of eight will depend on the volume of work involved, which will only become apparent some months after the Bill has been in force.

Amendment No. 171 proposes to add the category of "specialist judges" to the existing provisions for the appointment of judges. It is intended that all the current requirements of the JAAB will be applied to the new cadre of judges. Applications will be invited by the board which will then forward a list of those deemed suitable to the Minister for the consideration of the Government. The Government will nominate persons for appointment by the President under the Constitution.

Amendment No.172 inserts a new section 154 dealing with assignment of specialist judges. This is achieved by inserting a new provision into the Courts Act 1977. A key provision here is section 154(2) which provides that a specialist judge may be assigned to more than one circuit. The volume of insolvency applications has been estimated at 15,000 for the two main non-judicial debt resolution processes ? DSA and PIA - and between 3,000 and 4,000 applications for debt relief notices. These provisions have been drafted with care to allow for sufficient flexibility to ensure that the judges can be diverted from circuits where fewer applications are lodged to circuits where the volume is greater. More than one judge can be assigned to a single circuit. The other provisions are standard to uphold the principles of judicial independence by ensuring that permanently assigned judges can only be reassigned with their consent.

Amendment No. 173 proposes a new section 155 to amend section 10 of the Courts of Justice Act 1947 to provide that the allocation and organisation of business, sittings and times of sittings of specialist judges is the responsibility of the President of the Circuit Court. Sections 155(9) to 155(12), inclusive, provide the powers for the President to organise the business of the court including the sittings, times during the year and hours between which the court might sit. These powers also allow him or her to consult, where necessary, with the relevant judges. The provisions are intended to ensure there will be sufficient availability of these judges to make sure applications can be dealt with by the court without delay and, therefore, for example, I envisage these judges will be available between Monday and Friday each week throughout the calendar year, rather than being restricted to the current legal terms. On a small technicality, as the original section 10(7) had been repealed, one might think the numbering of the new subsections being inserted should start at seven. However, I am advised by the Office of Parliamentary Counsel that the practice is not to replace repealed provisions in this way, as it would create confusion if there were any old cross-references to the repealed provision on the Statute Book and, therefore, the numbering starts at eight. I wish anyone luck who wants to debate that issue.

Amendment No. 174 proposes a new section 156 amending section 38 of the Courts of Justice Act 1924 to provide in subsection (1)(a) that the manner of address shall be fixed by rules of court and subsection (2) that no order of precedence shall apply to specialist judges.

Amendment No. 175 proposes that vacations may be set by the Minister of the day. This mirrors a long-standing provision applying to District Court judges. The District Court sits throughout the year, including regularly providing a service on Christmas Day, Sundays, etc., to deal with charges as they arise. The accessibility provided by the District Court will, I hope, not be required to quite the same extent in specialist judges but the general model of flexibility and accessibility is important and that is why we are copying it.

Amendment Nos. 176 and 177 propose sections 158 and 159, which update the relevant sections of the 1973 Court Act and the Law Reform Commission Act 1975 allowing that certain service as a judge or member of the Law Reform Commission is reckonable in calculating service as a barrister or solicitor for the purposes of section 17 of the 1961 Act, which sets out the service requirements for eligibility for appointment as a judge and will now include "specialist judge".

Finally, amendment 178 extends the new cadre of specialist judges. There are a number of standard provisions in the Courts Acts to ensure that no cases are affected by the introduction of the new provisions.