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

I thank the Acting Chairman. I am pleased to present the Courts Bill 2013 to the House. This is a relatively short Bill which contains two important and long overdue court reforms. The first of these is a proposal to change the long-standing in camera rule in family law and child care proceedings. The in camera rule provides that family law and child care proceedings should be held otherwise than in public. The rule is an exception to the fundamental principle of our law, guaranteed by the Constitution, that court proceedings should be held in public. The rationale behind this principle is that where justice is being administered, it must be open and transparent. However, like most important principles of law, exceptions must be carved out in certain circumstances if injustice is to be avoided. It has been a long-standing principle of law that family law and child care proceedings is one such exception. The purpose of the in camera rule is to protect the identity of the parties and other persons, including children, to whom proceedings relate.

The exception exists for a very important reason that I accept and support. In family law and child care proceedings, often painful and very sensitive family and personal matters are at issue and it has long been accepted that there cannot exist a public interest in the very private affairs of the parties such as would justify full public access to such proceedings. It is also essential that individuals can have their disputed family and child care matters addressed in our courts without fear of public embarrassment or the welfare and best interests of children being placed unnecessarily at risk. However, the absolute nature of the in camera rule has led to a situation that such proceedings are perceived to be shrouded in mystery and secrecy. There is no press reporting of these proceedings because press access to them is prohibited. There is accordingly an absence of reliable information on the administration and operation of the law in this area which is not conducive to confidence in our system of family law and child protection.

Members of the public need to know what they could reasonably expect from the courts if they were to find themselves in the unfortunate position of having to seek access to the courts in such cases. Lawyers must be clear on how they might advise their clients and law-makers need to know how the law is being applied by the courts to assess whether the law is adequate to give protection to the individuals, the families and the children who seek or require its intervention. This important principle was recognised recently in a high-profile High Court case on the issue of whether the genetic parents of children born to a surrogate mother may be listed as the children's parents on their birth certificates. Three newspapers applied to be permitted to report on the case without identifying the parties. Mr. Justice Abbott, who described the case as one of serious public importance, permitted designated reporters from the three newspapers in question and a High Court reporter to report the case on a restricted basis.

Recent policy in the law on the hearing in the courts of family law proceedings in private is reflected in section 40 of the Civil Liability and Courts Act 2004 and in regulations made under that section. Regulations made under section 40 allow certain classes of persons to attend family court sittings, subject to ministerial approval, in order to draw up and publish reports. Ministerial approval is subject to certain safeguards, including a requirement that the parties to a case or any relevant child would not be identifiable. Under this scheme, several persons engaged in family law research who were nominated by bodies specified in the Schedule to the regulations have been approved. In addition, the Courts Service introduced the family law reporting service on a pilot basis in 2006. The purpose of the pilot project was to provide information on the operation of family law in the courts.

While these initiatives have provided a useful insight into family law and its operation, they cannot alone bring the greater transparency that I believe is required on the operation of the law in this area. Accordingly, what I am providing for in this Bill is a careful balancing of the need for privacy with that of public access to important information on the operation of family and child care proceedings in our courts. My proposal is to retain protections on the privacy of the parties in respect of such court proceedings while providing that bona fide members of the press can be admitted to the proceedings. In this Bill the right of press access to proceedings is balanced with a strict prohibition on the publication of any information that is likely to identify the parties to the proceedings or any child to whom the proceedings relate. It will be a criminal offence to publish information in breach of this prohibition.

I am also providing that the courts will retain the right to exclude or restrict the presence of members of the press from all or part of the proceedings in certain circumstances. The circumstances are where it is necessary to do so to preserve the anonymity of the parties or any child to whom the proceedings relate because of the circumstances of the case or in the interests of justice. The courts will, for the same reasons, be able to direct that certain evidence should not be published. The type of situation envisaged could, for example, be where a child or a vulnerable adult is giving evidence. This residual power is being included in the Bill to give the courts the capacity to deal with the myriad of sensitivities and situations that can arise in proceedings of this nature.

The Bill is designed to achieve an appropriate balance between greater transparency in family court proceedings and protecting the anonymity and privacy of families and individuals, with a particular focus on the best interests of the child. The measure is also intended to ensure that sensitive information relevant to a family's or individual's commercial interests will not be disclosed in the reporting of family proceedings. The Bill, as published, does not include provisions to amend the privacy-in camera provisions applicable to adoption court proceedings contained in the Adoption Act 2010.

I intend, with the agreement of my colleague, the Minister for Children and Youth Affairs, Deputy Fitzgerald, to introduce an appropriate amendment on Committee Stage to amend the 2010 Act to deal with privacy and media access issues in line with the provisions contained in this Bill.

As the Bill embodies a fundamental change in our approach to family proceedings, I regard detailed consideration of these provisions as a crucial part of the legislative process to ensure that we achieve the right balance between the public interest and the right to privacy. Accordingly, I look forward to hearing the opinions of this House on the provisions and I will have no hesitation in amending my proposals to reset that balance if it is necessary to do so.

I wish to turn to the monetary jurisdiction limits in the courts. The second important reform that I am providing for is an increase in the monetary jurisdiction limits for the District and Circuit Courts in civil matters. The purpose of these jurisdictional limits is to ensure that the level of court that hears a case is appropriate to the potential value of the case. I am sure that the House is aware that the legal costs incurred by parties to a case are related to the court in which the proceedings take place. It is estimated that, on average, the legal costs of taking a case in the Circuit Court, subject to the complexity of the case, are 30% less than in the High Court. In the current financial situation, I believe that it is essential that all necessary steps be taken to reduce the high level of legal costs that can act as a barrier to the citizen and to businesses in seeking redress before the courts. An appropriate increase in the jurisdiction levels is long overdue to ensure that courts are dealing with cases at an appropriate level and that the costs being incurred by the parties are at a reasonable level.

The monetary jurisdiction limits of the Circuit Court and District Court have remained unchanged since 1991. The Courts Act 1991 set the current monetary jurisdiction limits for civil matters at ¤38,092 for the Circuit Court and ¤6,384 for the District Court. Although the Courts and Court Officers Act 2002 made statutory provision for increases in the limits to ¤100,000 and ¤20,000, respectively, these increased limits were never brought into operation because of concerns about possible inflation of awards and a consequential effect on insurance costs. Accordingly, almost 11 years have passed since statutory provision was last made for an increase in the jurisdiction limits, yet they remain as they were almost 22 years ago.

The retention of the lower monetary limits has rendered the District and Circuit Courts redundant in respect of some classes of civil proceedings. The low level of jurisdiction in the Circuit Court means that very modest actions must, in the absence of agreement between the parties, be taken in the High Court. Such cases are potentially the subject of appeal to the Supreme Court. This makes no sense at a time when the workload of the Supreme and High Courts has increased significantly in volume and complexity, with Supreme Court appeals currently waiting over 48 months for a hearing date.

Following consultation with the Attorney General and the Presidents of the Circuit and District Courts, I am therefore proposing to increase the jurisdiction of the Circuit Court to ¤75,000 and of the District Court to ¤15,000.

The reason no action has been taken to address this issue to date relates to a concern that increasing the limit of the Circuit Court to ¤100,000 as provided for in the 2002 Act would have an inflationary increase impact on personal injury awards in the Circuit Court and a consequential inflationary effect on insurance claims. Accordingly, I have decided to address this issue in the Bill by setting a lower jurisdiction limit in the Circuit Court for personal injury proceedings. I am setting the level at ¤60,000, which is of course 40% less than the equivalent level set by the Court and Court Officers Act 11 years ago, which was not brought into force in this context.

I believe that the increased jurisdiction limits will prove to be a fairer and more cost efficient approach to the processing of civil proceedings by the courts. The proposed changes to the jurisdiction limits of the Circuit and District Courts should ultimately lead to a reduction in the burden of legal costs for individuals, companies and businesses involved in litigation. It is crucial that parties involved in legal conflicts do not incur more legal costs than are necessary in circumstances in which they have to resort to litigation.

It is also important that our court jurisdictions keep substantially in line with inflation and that our higher courts are not unnecessarily overburdened with appeals that could and should be properly dealt with at a lower level. The extension in the jurisdiction of the District Court will result in a portion of litigation, at present undertaken in the Circuit Court, in the future being dealt with at District Court level. The changes will also result in a proportion of litigation currently being conducted in the High Court in the future being dealt with at Circuit Court level. Over time, this should effect a reduction in the number of appeals that have to be dealt with by our Supreme Court. A further amelioration of the burden at present imposed on the Supreme Court will result from the creation of a court of appeal should the proposed referendum it is hoped to hold next autumn to provide for such a court receive public support.

I believe it is in the public interest that jurisdictional issues be revisited more frequently and I am considering what steps might be taken in the context of this Bill to ensure this occurs in the future. If I think it is appropriate to do so, I may bring forward an amendment to this Bill to provide for an appropriate review mechanism.

There are a number of important matters that need to be legislated for and I am proposing to deal with these matters by way of Committee Stage amendments to the Bill, either in this House or in the Dáil. They are as follows: first, the amendment of the Coroners Act 1962 and the Civil Legal Aid Act 1995 to provide for legal advice and legal aid in respect of certain inquests. The Coroners Bill 2007, which is currently before this House, is in the course of being reviewed in the Department of Justice and Equality with a view, among other matters, to making it as cost effective as possible. The Bill, as published, provides for the comprehensive reform of the existing legislation and structures relating to coroners and provides for the establishment of a new coroner service. The European Court of Human Rights has, in recent times, emphasised the importance of involving next of kin of the deceased in the coroner's inquest into a death involving the State and in providing them with information prior to the inquest. This means that, in certain cases, families may require legal assistance to participate effectively in the inquest process.

The Coroners Bill 2007 proposes some important changes to the legal aid scheme by providing in section 86, legal aid and advice in proceedings before a coroner, and in section 92, amendments to the Civil Legal Aid Act 1995, that the Legal Aid Board may arrange for the granting of legal advice or legal aid to the family of a deceased person for legal representation at an inquest where the person has died in, or immediately after being in, State custody or certain institutional care situations. I am of the view that swift attention is now required to address the issue of legal aid at inquest. Accordingly, I am proposing to introduce Committee Stage amendments to include the provisions contained in sections 86 and 92 of the Coroners Bill 2007 in this Courts Bill.

Second, is the transfer of the existing Office of the Official Assignee in Bankruptcy to the Insolvency Service. Unfortunately, due to lack of time in regard to finalising the Personal Insolvency Bill for enactment last year, it was not possible to provide in that Act for the transfer of the Office of the Official Assignee in Bankruptcy to the Insolvency Service as originally intended. I am anxious that this matter should be dealt with as soon as possible to ensure that the Insolvency Service and the services of the Office of the Official Assignee in Bankruptcy are aligned and provided for in the Personal Insolvency Act 2012. To facilitate, this I am proposing to provide for the appropriate additions to that Act by way of appropriate Committee Stage amendments to this Bill.

I wish to turn to the main provisions of the Bill. First, is the amendment of rules relating to certain proceedings heard otherwise than in public contained in Part 2. The main provisions of the Bill relating to modification of the in camerarule are contained in sections 5, 6 and 8 of Part 2. Section 5 will amend section 40, proceedings heard otherwise than in public, of the Civil Liability and Courts Act 2004. It provides for the amendment of the in camerarule, as contained in certain enactments relating to family law, so as to allow bona fide representatives of the press to be present in court during proceedings under those enactments. However, where a court is satisfied that it is necessary to do so to preserve the anonymity of the parties or any child to whom the proceedings relate because of the nature or circumstances of the case or because it is otherwise necessary in the interests of justice, it may exclude or restrict the presence of representatives of the press from the court during all or part of a hearing. For the same reasons, the court can restrict or prohibit the publication or broadcasting of evidence given or referred to during the proceedings. In determining whether or not to make such an order, the court will have regard to the desirability of promoting public confidence in the administration of justice and to any other matter it considers appropriate, including a number of other factors, for example, the best interests of any child to whom the proceedings relate, whether information given in evidence is sensitive personal information, and whether information given in evidence is commercially sensitive.

Section 6 inserts a new section 40A, prohibition on publication or broadcast of certain matters, into the Civil Liability and Courts Act 2004. Subsection (1) of the new section 40A prohibits the publication or broadcasting of any information about a matter that would be likely to lead members of the public to identify the parties to family law proceedings or children to whom the proceedings relate.

Subsection (2) provides that contravention of subsection (1) will be an offence. Subsection (3) is a standard provision regarding offences by bodies corporate and subsection (4) provides that the law as to contempt of court will not be affected by the new section 40A. Section 8 amends section 29, hearing of proceedings, of the Child Care Act 1991 so as to allow bona fide representatives of the press to be present in court during child care proceedings under that Act. The provisions of this section mirror those of section 5 regarding the attendance of representatives of the press at family law proceedings.

Part 2 provides for the increase in the monetary jurisdiction limits of the Circuit Court and District Court, as previously mentioned. Section 11 amends the enactments specified in Part 1 of the Schedule to extend the monetary limit of the jurisdiction of the Circuit Court in civil matters under those enactments to ¤75,000. Section 12 amends the enactments specified in Part 2 of the Schedule to extend the monetary limit of the jurisdiction of the District Court in civil matters under those enactments to ¤15,000. Sections 13 to 18 amend certain enactments to provide for the revised monetary jurisdiction limits of the Circuit Court and District Court, including the lower limit of ¤60,000 for Circuit Court personal injuries actions.

The Bill contains important steps in the process of modernisation of our courts to ensure that the essential service they deliver to the community is efficient, effective, fair and accessible to all our citizens. It will ensure that access to the courts is not unnecessarily expensive for those who require such access. Accordingly, I commend the Bill to this House.