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

I thank the Senators for their contributions, some of which were very wide-ranging. The benefit of this sort of engagement is that it allows us to reflect on the provisions of a Bill and look at the issues that may need to be addressed or teased out further. It also gives an opportunity to Senators to raise other issues of relevance to the courts system.

Senator Walsh raised the issue of the judicial council Bill, which has had a somewhat long history. That Bill was to have been published by the previous Government and is part of the current programme for Government. Substantial work has been done on it and we are now dependent on the Attorney General's office to complete the work on the Bill. It is on a list of Bills that are awaiting publication. I regard it as an important measure and while I hope that we will see it later this year, that will depend on the capacity of the Attorney General's office, in the context of the Government's very large legislative programme.

Senator Walsh also made reference to the importance of information on how the courts hear and determine cases and similar references were made by other Senators. I agree that it is important that more information be made available as to how the courts hear and determine cases. Reference was also made to judicial accountability. Members of the Judiciary are independent and are accountable to no-one other than the higher courts, to which their decisions may be appealed. Transparency is important because it ensures that there is public knowledge of how issues are being addressed within our courts system. Access to information ensures that, should it appear that any issues of concern are arising out of the manner in which family or child care law, for example, is being administered within the courts system, the general public, the Government and Members of this House are informed. This means that any necessary legislative corrective action can be taken. Unfortunately, for far too long, this area has been shrouded in mystique and secrecy, other than for members of the legal profession, particularly those who work in this area. It is healthy that we would bring a greater degree of openness and transparency to how our law is being administered.

Of course, as Senators have said, this is a balancing act. My initial view, as a lawyer working in the family law area, was that a full in camera rule was necessary to protect peoples' privacy and to ensure that the fear of a violation of privacy did not act as a barrier to those who might seek help in the courts obtaining that help.

Over the years having observed family cases and participated in them, I concluded that there is a substantial lack of public information as well as a lack of information on the part of the Government and Members of both Houses as to how the law is administered. Unfortunately if the law is being administered in a way that exacerbates rather than ameliorates people's financial of family difficulties and if it is being administered in an erratic or inconsistent way, there is no mechanism of oversight of that. A degree of transparency provides some assistance in that regard.

Senator Walsh and others made reference to family courts. The programme for Government calls for the provision of a separated integrated unified system of family courts. It is the Government's objective to hold a referendum in the autumn to establish on a constitutional basis a court of appeal which will include both divisions of civil appeal and criminal appeal, and also to establish a separate system of family courts. The objective of holding referendums on both these matters is a very adventurous objective to achieve by the autumn, but we are working to that timetable and I hope we will be able to produce the necessary legislation to do so. It is in the public interest that we have constitutional provisions to establish a court of civil appeal. The huge burden of cases awaiting hearing in the Supreme Court is unacceptable and it is unfair to those who rely on our courts that when they have been through litigation in the High Court they may have to wait two, three or four years to have an appeal determined in the Supreme Court. I do not believe that is right or appropriate and clearly a court of civil appeal would result in many cases that would otherwise have to go to the Supreme Court being dealt with, determined and finalised at the court of appeal level. I look forward to bringing proposals before both Houses on that aspect.

Senator van Turnhout raised a number of issues. I agree with her that it would be very helpful if judgments, as they can be under the current legal system, delivered by District Court and Circuit Court judges in the family and child-care area were written judgments. Unfortunately written judgments from both of those courts have been few and far between. There is no reason for not giving written judgments. I understand and accept that the volume of cases determined, particularly at District Court level, may raise difficulties for judges producing written judgments in every case and I am not suggesting that. However, there are appropriate cases where written judgments should be made available. Certainly there have been some in the District Court in the child-care area, but there have not been enough of them having regard to the complexity and volume of cases dealt with in the District Court. In the Circuit Court there have been a small number of instances of written judgments delivered. I believe it would be helpful if there were more.

By providing for greater transparency through media reportage at least ex-temporejudgments will be published. This will give people an insight into the decision-making processes and the reasoning applied. It will allow legislators and others to assess whether there is a consistency of approach in determining such cases and the insight necessary in dealing with issues relating to the welfare of children. Ultimately, in the context of family matters, this is an interim reform dealing with transparency issues and the new structure of family courts the Government envisages will usher in a very new and different era. It will apply to family and child-care cases.

Senator van Turnhout asked about training for lawyers dealing with children's cases. There is a broad range of other issues relating to that, including training of judges to deal with child-care and family cases, and the role of the existing guardian ad litemand its importance. We are giving consideration to all these issues in deciding the structure of the new family-court system to deal with this area. We are considering providing for a more inquisitorial rather than adversarial approach to be incorporated in legislation to accompany any new children's courts established, should there be support for their establishment in a referendum.

The Senator asked who would make applications as to whether cases should be heard in public or private, or who would be admitted. The essential approach of the legislation is that cases will be heard in private but that the media will be admitted - the general public will not be admitted. Who represents the media? Bona fide representatives of the press is a phrase that has been used without creating any difficulty or mystery in other legislation. As mentioned the legislation relating to sexual offences, including rape provides for the media to be admitted, but the reportage requires certain anonymity. The concept of bona fide representatives of the press has been used in other legislation. It means people who are genuinely journalists working in the broadcast or print media, or the online media as we now have it. That has not given rise to any difficulty of interpretation of knowledge. I do not believe we need to spell out in any greater detail who they are.

It is clear in the legislation in circumstances where it is sought, for example, to have the media excluded from a hearing - from the totality of it or simply for a portion of evidence or some aspect of it - that can be done either by a judge on his or her own initiative or an application can be made by a party to the proceedings which in a family law case would be the husband or wife or in a child-care case the application could be made, for example, by a health board or the guardian ad litemrepresenting a child or by the parents of a child who are defending such proceedings. Where an application is made to the court it would then be open to the court to determine whether to exclude or otherwise restrict the attendance of representatives of the press or whether to simply prohibit or restrict the publication or broadcasting of some particular evidence or any part of such evidence. In deciding whether to do any of those things, the court would be bound by the criteria that are detailed in the legislation that I set out in my speech. They would start off from a perspective of seeking to promote public confidence in the administration of justice.

An element of public confidence is that it is transparent, but another element of public confidence is that those who require access to the courts in these areas are not - for fear of publicity otherwise - prevented or see it as a barrier. Particularly in family cases as opposed to child-care cases often very detailed information about an individual's personal finances or business, or the commercial dealings in such business, might be a subject of debate or disagreement between estranged spouses or indeed in the future estranged civil partners. If there is a disagreement between people who were formally intimate with each other and living together either married or in a civil partnership, it is important that the revelation of that information in the course of any row that might take place does not effectively destroy the business of an individual because business information that should remain confidential finds its way into the media.

There is a range of issues here. To take another area of concern, it may well be that where family cases being taken in the District Court outside a large urban area, publication of any nature of any information about that family case would in fact destroy people's anonymity because it may be well known in the locality that they have a family difficulty and a publication of itself could do further damage to them or their children. It is intended that the Judiciary would have a broad discretion in applying the specific factors in the legislation in determining the controls to apply in these circumstances. We will have to see how the legislation works in practice.

It is clear from the legislation that no court can automatically decide in every case that the media will be excluded. Each case will have to be determined on the facts. In circumstances where there is an application for the media to be excluded and another party thinks they should be allowed to remain, there will be a facility to appeal that as a preliminary issue. The courts will have to put in place appropriate rules of court to ensure that if that is an issue, it can be dealt with swiftly so the substantive family or child care case hearing is not unduly delayed. These are issues that can be addressed properly in rules of court by the courts rules committee and there is no particular reason that they should not be so addressed.

Senator van Turnhout raised a number of issues about circumstances in which there are breaches of the Children Acts and what she described as malpractice, for example, people's and children's names being revealed. First, if these issues are occurring, they should not occur. There are very strict rules relating to privacy matters. I recall a number of years ago when the Circuit Court initially got family law jurisdiction it was a practice that, although everything was supposed to be heardin camera, the court registrars would emerge into the hallway and shout out the names of the husband and wife whose case was about to be heard. That was easily remedied by the court list listing people by their initials. Indeed, the court lists also have numbers beside the initials. It is a number of years since I have been in the Children Court but if there is a problem with names not being kept anonymous and there is no system in place to ensure this issue is properly dealt with in accordance with existing legislation, it should be addressed. I will ask my officials to write to the Courts Service to raise that issue. It can be readily remedied.

Other issues were raised by Senators. Senator Bacik made reference to the Court of Criminal Appeal, which I have dealt with. With regard to the District Court jurisdiction on the criminal side, I believe more can be done to provide for alternatives to prison sentencing. Prison sentences are very important. Prison has a very specific role in circumstances where people commit serious crime and where there is a necessity to protect the community, but I believe we can use alternatives. I thank the Senator for her comments about the community return programme. This was an innovation I initiated following my appointment as Minister. It is working well and is facilitating the release of some prisoners from our prisons who have not yet reached the period when they should be released pursuant to the remission rules but where they have been assessed as posing no risk to the community. They are individuals who have behaved well in prison and are agreeable to an earlier release in return for doing community service. This both saves the State money in the context of the individual no longer being within the prison system and is a benefit to local communities. That system is working well. I look forward to receiving and reading the report of the Oireachtas joint committee that was published today in respect of prisons and sentencing.

However, I do not agree with Senator Bacik's view that we should further curtail the powers of the District Court with regard to the imposition of possible sentences of imprisonment. The District Court is a court of limited jurisdiction and it has important sentencing powers. If we were to limit those powers further, the effect would be that more of the serious offences would have to be dealt with at Circuit Court level. It would create difficulty for the Circuit Criminal Court and would further and unnecessarily delay hearings. Indeed, it might render those hearings unnecessarily more expensive to the State in the context of the criminal legal aid scheme. I would require a great deal of convincing about changing the law in that regard.

To return to something Senator Colm Burke said, people are hugely stressed when going into our family court system. Usually, where there are major family difficulties there are many other issues giving rise to stress. The actual attendance in court is not the primary stressful event. It is very sad to learn that two individuals who were in family difficulties, and whose issues were being dealt with within the court system, have committed suicide. I do not know why that happened. We do not always know what happens in people's heads to result in such a tragedy. This is why we must have the right balance. We must ensure that what we do here achieves the right balance for people who are under pressure, who are distressed because their marriage is in difficulties, who are possibly stressed because they are in financial difficulty and where there might be a range of different stresses, for example, they might be suffering from a psychiatric illness or a personal breakdown. If this new legislation is enacted in its current form or Senators come forward with constructive amendments and they are incorporated into it, I intend to monitor how it is working. If it turns out that it is not being applied in the manner intended or if it gives rise to unintended consequences or difficulties, it is important that this is addressed as early as possible. I agree with Senator O'Donovan and others that we must get the balance right. That is crucial.

Senator Burke also raised the issue of the Taxing Master and legal costs. It is important that matters coming before the Taxing Master are heard within a reasonable period of time and that the adjudication or decision on the taxation of legal costs is delivered within a reasonable period after the hearing has taken place. I also believe the State should take steps to resolve legal costs issues where appropriate, so unnecessary expense is not incurred by a hearing that might be unnecessary or an unnecessary burden is not imposed on the Taxing Master's office by matters being listed for hearing, perhaps being partially heard and only resolved thereafter. I accept Senator Burke's concern that when orders for costs are made against the State, the State does not attempt to resolve those issues until the very last minute and that this issue is putting an unnecessary additional burden on the Taxing Master. I will ask my officials to write to both the Chief State Solicitor's office and to the Attorney General to bring the Senator's remarks to their attention, with a view to asking that where orders for costs are made against the State, the State will constructively engage with a view to resolving those matters without unnecessary hearings in the Taxing Master's court or, indeed, matters being unnecessarily listed for hearing, so there is not an undue burden in that court and no obstruction for other matters that must be heard being dealt with.

As the Senator knows, it has been my view for a long time and it is also part of the programme for Government that we should enact legislation to put in place a better system for those who suffer catastrophic injuries when there is medical negligence. There is a need to move away from the lump sum procedure to periodical payments, so that if somebody has suffered a catastrophic injury we are no longer in a position where the financial assistance available to them is based on the capacity of professionals to predict how long they might live or a prediction as to the extent to which their condition might deteriorate. Regardless of how professional individuals are, we all know these predictions are not always accurate. The provision of periodical support payments that can be amended to take account of further unexpected developments arising from medical negligence or serious road traffic accidents is a far preferable system. The Government has approved the preparation of legislation in this area. It is being worked upon by both my Department and the Attorney General's office. I look forward to bringing that legislation to this House in the future.

I apologise to those Senators who contributed to the debate and to whom I have not referred. I hope I have addressed all of the issues that were raised. I thank Senators for being supportive of the legislation. As I have stated in the past, no one has a monopoly of wisdom in this or in any other area. The day on which we all believe we possess such a monopoly is the day we all get into trouble. In that regard, I will be very interested in any amendments Senators may wish to table for Committee Stage.

One question I did not answer is that which relates to why we have moved away from the position which was set out in the Courts and Court Officers Act 2002 and which was never brought into force. In other words, why are we providing for monetary jurisdiction limits of ¤75,000 rather than ¤100,000 in the Circuit Court and ¤15,000 rather than ¤20,000 in the District Court? The reason for this is that the relevant sections of 2002 Act were never brought into force as a result of, in the first instance, major concerns to the effect that the courts would not be able to cope with that huge leap in jurisdiction. The second reason, to which I referred earlier, related to concerns with regard to civil damages proceedings, the impact on claims and the levels of compensation which might be ordered. A huge issue arose in 2002 in respect of the sizeable additional resources the District Court and the Circuit Court would require if the leap in jurisdiction to which I refer had occurred. Unfortunately, the Government which introduced the 2002 legislation did not address that issue and it, therefore, remained in cold storage.

We carried out a very simple assessment in respect of this matter. We examined the 1991 legislation and considered how, having regard to inflation, monetary values had changed since then. Based on inflation, the current maximum monetary value in the Circuit Court is approximately ¤38,000. If we had just increased it on the basis of the level of inflation that obtained in the period from 1991 to the beginning of 2013, my recollection is that it would have worked out at somewhere in the region of ¤66,000 for the Circuit Court and that it in the context of the District Court it would have risen from ¤6,300 to approximately ¤10,560. Those were the inflationary provisions. We then considered a modest increase beyond these which would bring the courts back essentially to the levels at which they could determine cases in 1991, with a degree of leeway to take account of the fact that there is unlikely to be further courts legislation for at least two to three years. We concluded that ¤75,000 would be an appropriate monetary jurisdiction level for the Circuit Court. This almost doubles its jurisdiction in practical terms and the jurisdiction of the District Court will be almost trebled. As has been noted, we have a large number of very good, competent District Court judges who are well able to deal with litigation up to the ¤15,000 mark. I have no doubt about that fact. In addition, there are many good and competent Circuit Court judges who can rule in this area.

We obtained some information in respect of this matter and I was advised that between 30% and 40% of cases currently being litigated before the Circuit Court relate to claims of ¤15,000 or less. Those cases will now be switched to the District Court. The District Court is, in a sense, the only court which will be obliged to shoulder a large additional burden. It will be taking responsibility for the cases to which I refer and which are currently before the Circuit Court. We will be obliged to ensure that it will have adequate resources available to it. On foot of the fact that a huge chunk will be coming out of the Circuit Court, there is new work coming to it which would otherwise have been dealt with in the High Court. Ultimately, I do not believe there will be a major additional burden in the context of the number of litigants coming before the Circuit Court. There will just be litigants dealing at higher levels. The advantage of this is that we will be relieving the High Court of a particular burden. This will not, however, resolve the problems relating to the huge backlog of appeals in the Supreme Court. That matter will have to be addressed by other means. When the backlog to which I refer is addressed, the level of appeals from the High Court to the Supreme Court will be reduced. Of course, there will still be appeals flowing from the Circuit Court into the High Court.

We considered this matter in a holistic fashion. The hiccup relating to resources may take effect at, for example, District Court level. When the legislation is brought into force, we will monitor the position in that regard. If the experience of the President of the District Court and the President of the Circuit Court in respect of the legislation indicates that there is a resource issue, I have absolutely no doubt that they will communicate that fact to the Government, either directly or through the Courts Service. We will take appropriate steps to address the matter at that point.

I thank Senators for their contributions and I look forward to dealing with any amendments they may wish to table when Committee Stage is taken after the Easter recess.