James Browne (Wexford, Fianna Fail) | Oireachtas source

I am pleased to introduce the Court Proceedings (Delays) Bill 2023. Article 6.1 of the European Convention on Human Rights provides for the right to a fair trial in a reasonable time period. This right already has constitutional and common law standing in Ireland. This Bill will place it on a statutory footing and ensure that an effective and accessible remedy exists, if it is breached, as required by Article 13 of the aforementioned convention. Senators will be aware of the judgment of the European Court of Human Rights in McFarlane v. Ireland in 2010, which found that Ireland did not have an adequate remedy in place. There has been continuous dialogue with the Council of Europe since that judgment. Senators will be aware that a number of proposals have been considered to address it.

The Bill before the House is based on the general scheme published in 2018 but has been subject to significant changes on foot of legal advice and ongoing stakeholder input. The key considerations during the development process were to provide an effective and accessible remedy which is also cost effective and does not add an additional layer of formal litigation which is both costly and lengthy. The Bill creates a statutory right to the conclusion of proceedings within a reasonable time which will give a statutory basis to an individual's constitutional right and his or her right under Article 6.1 of the European convention. The Bill provides for the establishment of an independent assessment process under the aegis of the Department of Justice to assess claims of a breach of the right to the conclusion of proceedings within a reasonable time.Where an assessment is rejected by an applicant, he or she will be issued with an authorisation to initiate proceedings in the Circuit Court.

The model provided for in the Bill facilitates the fair and objective assessment of whether an individual's right to the conclusion of proceedings within a reasonable timeframe has been breached, and where it has, whether compensation is appropriate. The model provides for a declaration and, where appropriate, compensation more quickly and less expensively than court litigation. Recourse to the courts remains available under that model. However, both the considerations in respect of the claim and the awarding of compensation have been standardised, which, along with the potential of being penalised for costs where the court determines the level of compensation and where this is the same as or less than the award determined by the assessor, will promote acceptance of assessments. This will streamline the way in which delay cases are currently dealt with and will reduce the administrative costs and legal fees associated with the current system.

Before turning to the main provisions of the Bill, I will highlight some of the ongoing work to improve court procedures and reduce court delays. The report of the judicial planning working group, published in February of last year, made 54 recommendations relating to five key areas, including enhanced data collection and management and additional judicial resources. In line with these recommendations, the Government at the same time approved an increase in the number of judges to facilitate greater access to justice.

Approval was secured to appoint an initial tranche of 24 new judges in 2023, with the appointment of a further 20 to follow the implementation of reforms and efficiencies. The appointment of the initial tranche of 24 judges was completed in 2023 and officials have since established an implementation programme to oversee the delivery of all the recommendations. Central to this is the development of a suite of indicators collected quarterly by civil, family and criminal courts that will demonstrate the impact of additional judicial appointments, a significant increase in Judiciary numbers and the implementation of the other recommendations of the judicial planning working group is complemented by the ongoing implementation of the review of the administration of civil justice, which includes 90 recommendations with a view to improving access to civil justice, promoting the earlier resolution of disputes, reducing the costs of litigation, creating a more responsive and proportionate system and ensuring better outcomes for court users. All these actions are underpinned by the Courts Service modernisation for 2020 to 2030, which aims to fundamentally transform the Courts Service delivers services through greater and more effective use of IT. While this work is ongoing, we are already seeing improvements. Ultimately, our goal is that delays that might give rise to a remedy will arise only in the most exceptional circumstances.

I will now turn to the main provisions of the Bill. Part 1 contains standard provisions and sets out the key definitions relating to the provisions of the Bill, including a definition of a "party" in respect of both civil and criminal proceedings who may make an assessment application and a definition of the "relevant proceedings" under which an assessment application can be made.

Part 2 provides for the appointment of a chief court delays assessor, who will be a retired judge or a practising barrister or solicitor of not less than ten years' standing, and the appointment of as many court delays assessors as the Minister considers appropriate.

Part 3 establishes the statutory right to the conclusion of proceedings within a reasonable timeframe. This right encompasses an individual’s rights under Article 6.1 of the European Convention of Human Rights, Article 38.1 of the Constitution and any common law right. Any party to proceedings, where those proceedings have not been concluded, or within six months of their conclusion, or the coming into operation of this legislation, can make an application for a declaration that their right, established under section 11, been breached and, where appropriate, for the payment of compensation. Part 3 sets out the matters to which an assessor or the Circuit Court must have regard when determining whether the section 11 right of a person has been breached. These include the complexity and duration of the proceedings concerned, the duration of the delay and the conduct of all parties related to the proceedings and the principles and criteria set out by the jurisprudence of the European Court in respect of the delay.

Part 4 provides that the assessments will be carried out by court delays assessors, who will have the authority to request from an applicant or a third party clarification or further information or documentation required to make an assessment of an applicant of a third party. Part 4 provides that an assessor can award reasonable costs to a third party other than a public body regarding costs incurred in complying with a request from an assessor for information. It also provides that claims will be assessed within six months of receipt and that, where an assessor determines there has been a breach of an applicant’s right under section 11, he or she must then determine whether compensation is appropriate and the sum, if any, payable.

Compensation will be determined by reference to the jurisprudence of the European Court and will be in line with the concept of just satisfaction under Article 41 of the European Convention on Human Rights. This is an important feature of the Bill and will serve to safeguard against excessive awards. It is also in line with the 2021 Supreme Court judgment in the O’Callaghan case whereby damages were awarded for delay in line with the principles and practices of the European Court. An assessor will also have regard to any injury, loss or damage suffered by an applicant as a direct result of the breach of his or her section 11 right.Provision is being made for an assessor to award reasonable legal costs to an applicant with regard to the costs incurred by them in the making of an assessment application. This can occur only following a declaration by an assessor that the applicant's right has been breached, to deter the making of unmeritorious claims. No legal costs will be payable to unsuccessful applicants.

Where an assessment is rejected by a claimant or by the Minister, Part 4 provides the applicant will be issued with an authorisation to initiate proceedings in the Circuit Court. Part 5 provides for the process of applying to the Circuit Court should the applicant or the Minister not accept the outcome of an assessment made by an assessor. The Circuit Court, after hearing the application, will make a determination and issue a declaration as to whether there has been a breach. In making its determination and subsequent declaration, the Circuit Court will take account of the same criteria which were examined by the court delays assessor. Any compensation will, similar to the assessment process, be calculated by reference to the jurisprudence of the European Court of Human Rights and have regard to any injury, loss or damage suffered by the applicant as a direct result of the breach of an applicant's right.

Part 6 provides for a number of miscellaneous matters relevant to the operation of the Act. It also provides that once an assessment becomes binding or the Circuit Court has made a decision with regard to an application, an applicant will be barred from any further proceedings against the State or a relevant authority concerning the delay. This prevents the potential abuse of the remedy which would only compound court delays.

I conclude by reminding Senators that the approach set out in the Bill providing vindication of an individual's constitutional and ECHR rights ensures Ireland is in line with its international obligations. I look forward to hearing the views of Senators on this Bill and am pleased to commend it to the House.