Seanad debates

Wednesday, 12 November 2003

Courts and Court Officers (Amendment) Bill 2003: Second and Subsequent Stages.


Question proposed: "That the Bill be now read a Second Time."

10:30 am

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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The maximum number of ordinary judges in the High Court is prescribed by law. Currently, the Courts and Court Officers Act 2002 provides that the number should not exceed 26. I should add, for reasons of clarity, that when I refer to ordinary judges of the High Court I refer to judges of the High Court other than the President of the High Court. Hence, the use of the word "ordinary" in this context. Furthermore, the number of ordinary judges of the High Court can be increased by one when, as is currently the case, the President of the Law Reform Commission is a judge of the High Court. The Bill before the House provides that the maximum number of ordinary judges can be increased by two to 28.

The legislative cap in relation to the maximum number of judges provides for little if any flexibility in relation to judicial assignments and resources generally. If the Government wishes to appoint an additional judge to any court, primary legislation must be enacted. That is a rather cumbersome way of proceeding and there may be some merit in examining whether there is a more expeditious way of making provision for additional judges while ensuring the Executive is fully accountable to the Oireachtas in relation to such matters. I am having this matter examined in my Department at present.

I appreciate that any reference to judicial resources raises in some minds the issue of delays in the courts. Perhaps I might briefly comment on that matter. The establishment of the Courts Service as an independent agency in 1999 represented the most radical reorganisation of court services since the foundation of the State. The mission statement of the agency is "to manage the courts, support the Judiciary and provide a high quality and professional service to all the courts".

While some element of delay is inevitable in the court system the situation differs from court to court. For instance, I am told there are little or no delays in the hearing of cases in the Supreme Court. In the case of the High Court the waiting time for the hearing of personal injuries actions is quite small, sometimes ten days between setting down and hearing. In respect of other cases, outside Dublin they are generally included in the next sitting of the High Court. The average waiting time for the hearing of a judicial review, however, is between six and nine months. Major efforts have been made by the Courts Service in conjunction with the Judiciary to reduce waiting times in criminal law and family law matters. Extra criminal courts have been held and waiting times have been reduced. Nonetheless, the waiting time in the Central Criminal Court is still a subject of great worry to me and to the Judiciary. I must address that delay because justice delayed is justice denied. Justice delayed sometimes is justice diluted in terms of the capacity of the State to bring forward prosecutions in a timely fashion.

As I am not in charge of prosecutions, although from time to time some people seem to think I am, I have to bear in mind the negative effects of a substantial time intervening between the commission, detection and arrest of an offender and that offender's criminal trial. This is not a matter confined to the Central Criminal Court but since the Central Criminal Court deals, at the moment, with serious cases involving murder and rape, any substantial delay between the apprehension and charging of an offender and their trial has obvious social and political implications.

As the Courts Service would see it, delay is the time period that elapses between a matter being brought to the court and its disposal by the court. On crime generally, there is a wider issue with which I must be concerned although it is not a matter in which I have either sole or major responsibility. It is the delay that exists after the detection and charging of an offender. I must be careful in what I say, but it seems to me, based on anecdotal evidence and on what one observes in the media, that Ireland's performance in that area is not as good as other states, particularly United Kingdom jurisdictions. The time within which an offence is committed and someone faces trial frequently seems to be much longer in this jurisdiction than in a neighbouring jurisdiction with a similar legal system.

I am minded to have an inquiry held into that delay, which precedes court delay, with a view to establishing what it is about the Irish system that enables such a delay to take place. We have a much more liberal regime of bail. The Scots, I understand, have fixed times between people being arrested and charged and their trial, which can only be extended in certain circumstances. We have to ask ourselves whether, as a community, all the interested parties in the criminal justice process have put in place the best system for ensuring that trials are brought forward at the earliest possible time, bearing in mind the consequences of delay. I have been contemplating the possibility of having the National Crime Council carry out a study of this area because it is one that requires an objective, independent, high-grade study which would have the willing co-operation of all the interested parties, including the Garda Síochána and the Director of Public Prosecutions. Such a proposal may be required.

Major efforts have been made by the Courts Service, in conjunction with the Judiciary, to reduce waiting times in criminal and family law matters. Extra criminal courts have been held and waiting times reduced. For its part, the Government has provided significant additional resources for the Judiciary and the number of judges attached to all courts has been increased in recent years. The waiting time had been 18 months in the Central Criminal Court. However, with four courts sitting throughout September, during what is normally the long vacation, this has been reduced to 12 months. Senators will also be aware that in July of this year the Central Criminal Court sat outside Dublin for the first time. People have criticised this as a number of those sittings were held in Limerick. It has been suggested that this was a misjudgment on my part as Minister for Justice, Equality and Law Reform. I emphasise that, although I was supportive of it, the decision was made primarily by the Judiciary and Courts Service. Anyone who understands the system would understand that it does not lie in the hands of the Minister to direct that such a policy should be implemented. The decision was made by others; I supported it and continue to support it. Whatever difficulties have emerged had to be experienced and now have to be addressed.

It would be wrong to say the Judiciary and Courts Service were in some sense unwise to bring the administration of criminal justice out of Dublin and to the places where crimes were alleged to have been committed. The purpose of this was not simply to bring justice back to the community. One of the motives behind this decision was to alleviate pressure on local Garda resources and ensure that gardaí were not camped in Dublin for long periods. We learned from the experience and in these matters, it is a case of nothing ventured, nothing gained. Mr. Justice Carney, who primarily presides over trials in the Central Criminal Court, the President of the High Court and the Courts Service are to be commended for their willingness to introduce this initiative and progress it. Any setbacks that may have occurred do not establish that it was foolish to attempt this in the first place. However, it underlines other problems and it is for everybody involved, including the Oireachtas, to address these.

Circumstances in the Circuit Court differ from venue to venue. In many venues, cases will be heard at the next available session. As regards the District Court, there is no delay in most districts in cases being brought to hearing. In the Dublin District Court, contested criminal cases take, on average, five months for a hearing. Those figures conceal a delay about which we must be frank. The first available return date for a summons is frequently months away. In this context, I reiterate what I told the House on a previous occasion. For public order offences and offences of minor violence, especially in the case of young offenders, to allow a long period to elapse between the detection and apprehension and prosecution is to devalue the immediacy and sense of proportionately and responsiveness of the criminal legal justice system. This is a matter that worries me.

As regards family law, the Courts Service has advised me that the waiting time for the hearing of applications for divorce and judicial separation is on average four months in most parts of the country. In Dublin – where up to 40% of all divorces cases and approximately 25% of judicial separation applications are heard – there is a four week waiting time if the divorce is by consent and 12 weeks if the divorce is contested. However, there are some venues outside Dublin where waiting times are longer.

I take this opportunity to refer to the work of the working group on the jurisdiction of the courts. As Senators may be aware, a working group on the jurisdiction of the courts was established last year. This is an exciting development which I fully endorse. It is only right that a courts system in place since the 1920s should be reviewed. Mr. Justice Fennelly chaired the working party whose report is now on my desk. Given the massive changes in Irish society since the foundation of the State, the case for such a root-and-branch reform and review is self-evident. Earlier this year I received the group's report on criminal jurisdiction and it contains many recommendations aimed at streamlining and improving the processing of criminal business before the courts. I am examining these with a view to their early implementation where feasible.

There is nothing contentious in this Bill. As I have indicated, the current legislative method of increasing the number of judges is somewhat cumbersome. There may be a more expeditious way of doing so without losing any accountability and I will examine the matter further. It might be asked why the Government could not increase the number of judges by order and this might be the way forward. If such orders were to be made, both Houses of the Oireachtas would want to be notified and perhaps approve them in advance. Rather than having substantive legislation, there would be a system of an order being put in place, subject to prior approval of the Oireachtas.

The alternative, where the Government could decide on a given morning to put ten people on the Bench in a given court, might be regarded as insufficiently transparent or accountable for most people's taste. If we move from direct legislation stipulating the exact amount of judges to a more flexible one where this can be done by a regulation or order made by the Government, most Oireachtas Members would expect that they would be consulted before such a decision was made. There must be some relationship between democratic accountability to both Houses of the Oireachtas and the number of people that serve as judges.

I thank Senators for their attention and commend the Bill to the House.

Sheila Terry (Fine Gael)
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I welcome the Minister. There is nothing contentious in this Bill and I support it as we are being asked to do a simple job. The Minister posed the question of whether we should be providing for more than two judges. While I accept there would be a lack of transparency if the Government were to appoint ten judges without reference to the Oireachtas, the figure of only two judges seems small. The Minister had to go to the trouble of providing legislation specifically for the provision of two further judges. I wonder whether he will have to come back to the House in 12 months seeking the provision of another one or two judges. As the Minister has said, this seems to lack flexibility. He has indicated that his Department is examining this and I hope it will be able to come up with a more flexible way of dealing with the matter in the future.

We are all aware that the appointment of one of the judges, Mr. Ryan, arises because of the resignation of Ms Justice Laffoy. Perhaps the Minister will be able to tell us who the other judge will be or maybe he is simply giving himself the room to have the option of appointing a judge if the need arises in the future.

Many judges are currently taken up with work in the tribunals. Will the Minister tell us his thinking on this matter? I seem to recall the Minister saying in the past that he would prefer if this system worked differently and wondering if it was necessary to have a judge to head these tribunals. Perhaps a senior counsel would be qualified to do the job, thereby freeing up many judges. I would like to hear the Minister's comments on that.

I welcome the Minister's intention to ask the National Crime Council to carry out a review of delays in bringing people to court. That is an area in which we would all like to see improvement. Once a crime is committed and an individual is apprehended, the sooner he or she is brought to court the better. I would welcome anything the Minister could do to speed up that process.

I wish to put a question to the Minister about trials and the attendance of gardaí in courts although I am not sure if it is relevant now. Many gardaí have to attend the courts on a daily basis. Has the Minister looked at the possibility of gardaí making their statements in a way other than having to attend court? This practice is tying up Garda time, which could be better spent in the community. We continually speak of putting more gardaí on the street. Does the Minister know how much time is spent by gardaí in court attendances? Is there a way around this that would allow Garda time to be better spent?

I welcome and support the Bill.

Photo of Jim WalshJim Walsh (Fianna Fail)
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Cuirim fáilte roimh an Aire go dtí an Teach chun an Bhille seo a phlé. I welcome the Minister to the House. I also welcome the Bill the purpose of which is to increase by two the number of High Court judges. Currently, the maximum prescribed by law is 26 and that figure is to be increased to 28. It is obvious this amendment is being made to allow for the appointment to High Court judge of the new chairman of the Commission to Inquire into Child Abuse.

Senator Terry made an interesting point, to which I subscribe to an extent, that senior counsel and people other than High Court judges could undertake chairmanship of the many tribunals currently being held. In this instance, however, the Government is correctly dealing with the matter because the tribunal in question is particularly important. Given its nature, it is vital a High Court judge is involved to provide the expertise required to process the system and to ensure the matter is perceived to have been dealt with properly and efficiently.

There was a great deal of debate in both Houses and in the media on the replacement of Ms Justice Laffoy. That this inquiry might last for ten, 12 or 13 years – various lengths of time were mentioned – places a serious question mark over the effectiveness of the process. It is essential that the Minister does all he can to have this matter dealt with expeditiously while ensuring the manner in which people are dealt with is fair and reasonable.

The appointment of a High Court judge also demonstrates Government commitment in this area. Many of the tribunals are investigating important issues such as the ethical operation of State apparatus. Such matters are highly sensitive from a political point of view. As somebody who supported the establishment of the tribunals five or six years ago, I would have been slow to endorse them had I been aware of the length of time they would take and their cost to and imposition on the taxpayer. There must be a better way of approaching these matters. I am aware the Minister recently commented on the duration and cost of tribunals in the past. At one stage he indicated he was examining alternative mechanisms for dealing with important issues of public concern. We need to deal with these matters in ways that are not a drain on State resources and on the taxpayer while at the same time ensuring we achieve our objective more expeditiously than is currently the case.

Decisions were made by the courts on the inquiry by an Oireachtas committee into the Abbeylara incident. Such parliamentary inquiries appear to operate well in other jurisdictions. I may not be as knowledgeable as is necessary to make a decision on them but they appear to operate with a degree of effectiveness and at a lesser cost. Perhaps that is something we could consider. We could also take a more inquisitorial approach to the performance of tribunals rather than introducing the advocacy system which operates in the courts. That might also contribute to speedier processing of inquiries. There is very fertile ground there to which the Minister could apply his intellect to avoid, as we witnessed in recent tribunals, a situation where many lawyers turn up to represent particular areas under investigation at enormous cost to the State.

I agree with the Minister that delays in the system should be examined with a view to ensuring that efficiencies are injected without interfering with the proper conduct of the judicial process, which must be fair to both sides. Some years ago, when making representations to a Minister on a constituency issue, I was told the matter was being dealt with urgently. However, the Minister then added the caveat that his and my understanding of the word "urgency" differed greatly from that understood within the Civil Service. There may well be an element of this in the current situation.

It is a little peculiar that the Bill offers no flexibility in that every time the Minister wishes to increase the number of High Court judges, he must introduce primary legislation to do so. The Minister's alternative is quite logical. Senator Terry has already offered her support in that regard. This is a short Bill which opens up many avenues for introducing extraneous, if not totally irrelevant, matters into the debate. I have a number of points I would like to raise in terms of the courts which might be looked at by way of any examination of the system.

I have always felt that the wearing of wigs and gowns in the Four Courts is a little peculiar for a Republic. It is, perhaps, something we inherited from the British. There may be a reason to maintain some distinction in regard to judges but I am not sure the same argument can be made for barristers. A colleague in the shipping business involved in a civil court case in Holland a number of years ago following a shipping accident here told me he met with the judge in a canteen before the trial. The case was heard by the judge in very modern surroundings. He found it a much better way of dealing with the judicial system and was impressed by it. Perhaps we should examine how we do things here in that regard and see what we can learn from it.

The fact that solicitors who have the power of advocacy can appear in the High Court without wearing barristers' garb is also interesting. It is a pity solicitors do not avail of that facility to any great extent. I am told there are several reasons for this, one being an apprehension that, somehow, they are treading on another part of the legal profession strongly represented on the bench. There is a fear that, in some way, perhaps even unwittingly, it might prejudice their client. We should examine such matters, since they are not appropriate to the proper operation of a republic. The Minister might consider that at some stage.

In the same vein, the appointment of solicitors to the High Court is extremely rare. I believe there are a very small number in the High Court. In both avenues of the profession, there are excellent people who would be well qualified to fill those positions. I would like to see a balance within which we might ensure some element of competition. It has always struck me as anomalous that the body empowered to administer the competition laws to ensure that all businesses operate in an open and competitive way is in some way outside that remit. There is no evidence of much competition among barristers, though there is an element of it among solicitors. If one seeks to engage a barrister at a very reasonable figure for a day's work, which may be a fraction of what is being sought, one has no hope of getting one. Yet we are told there are those in the Law Library who are unable to make a living from the profession, while a number are leaving it. There is something wrong internally in the system that gives rise to that. If people are leaving because of insufficient remuneration to support them, then obviously—

Rory Kiely (Fianna Fail)
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The Senator has one minute remaining.

Photo of Jim WalshJim Walsh (Fianna Fail)
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I was only starting, a Chathaoirligh. This area must be examined.

The retirement age is another issue. A judge can continue in office to the age of 70. What is international practice in this regard? While I have no difficulty with the retirement age, court opening hours should be examined. I am aware that a great deal of work is done outside court hours by barristers and judges, but the limited hours during which the High Court operates is a cause of concern, particularly when people travel long distances. They would benefit from longer sittings as it would shorten the necessity for their stay in Dublin.

The judicial council, to which the Minister referred in the Dáil, should be examined. Instances of people leaving the profession arose during the life of the last Seanad. Had proper procedures been in place, these could have been dealt with in a satisfactory manner without necessitating that. Minor offences can lead to people resigning or being impeached. There should be a halfway house, and a judicial council, incorporating a judicial conduct committee, could be important in that regard.

I believe the Minister excluded the possibility of reviewing judicial decisions, which I fully understand. The president of the relevant court probably deals with that. However, from my involvement in business, I know solicitors will seek to place public injury claim cases with judges who they consider to be more sympathetic than others. Consistency in judgments is required to avoid such things.

I look forward to the Commission to Inquire into Child Abuse continuing its valuable work. This legislation will assist in that objective.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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When the Bill was going through the Dáil last week, the Labour Party proposed a couple of technical amendments which the Minister argued were not required. My colleague in the Dáil, Deputy Costello, accepted his argument and the amendments were withdrawn. We are not tabling any today. As others have said, the legislation is non-contentious, and it is appropriate that it be addressed without delay.

Others have mentioned that the legislation is needed because there are so many demands placed on judges. Tribunals and commissions mean there is a need for more judges. I agree with the suggestion by the Minister and other Senators that we must consider alternative legislation to allow a more flexible procedure for regulating the number of judges. The need to examine alternatives to having judges head tribunals and commissions of inquiry was also raised in this and the Lower House. Will the Minister indicate if he has given the matter any further consideration and if he has considered the proposals by the Labour Party in this regard?

The Minister outlined how the problem with delays in the different courts has been improved over the past year or two. He mentioned family law, in which I have some small experience as a solicitor, although it did not constitute a large part of my work. I found I did not want to practise in it. While much has been done in this area in an attempt to make court procedures more informal, such as judges and barristers not wearing wigs, it is still a very intimidating process based on conflict. We must find some way of adjudicating on family law matters that takes a less adversarial approach and which is less intimidating to the different parties. Such an approach would facilitate the speedy resolution of cases with as little conflict as possible. I make no criticism of the judges, the family law solicitors or any of the clients involved, but since the Minister has raised it, the matter should be examined in any reform of the court system.

There is a perception among men that they are discriminated against in family law cases. This has been more publicised in recent years and many politicians will have been contacted on the matter. I find the argument difficult to refute although I do not have enough factual evidence on which to base my argument. However, when the point is made that the Government, through its policies, addresses discrimination against women, this matter should be considered in the in the context of a review of the court system.

Senator Walsh mentioned the need to consider reform of court procedures, including wearing wigs and so on. The Minister should look at many aspects, and I am sure he is doing so. I have read that in France many issues are dealt with, in effect, by judges who are basically civil servants. They deal with matters such as parking fines. Breaches of the law in respect of television licences are dealt with in the District Court in this country. I feel that such matters could be dealt with in a different forum. It is something that the Minister should examine in the working group he has mentioned.

I would like to discuss the rules in respect of wearing wigs. A judge was recently reported to have criticised a barrister for not wearing a wig in the District Court, but my understanding is that it is not required. It is true that one does not have to wear a wig. Many barristers or senior counsel do not wear wigs. It is a matter of choice. The Senator who raised this matter was right to do so. A policy of recognising that people can be intimidated in court should be promoted to a greater extent. As part of the process of reform, we should recognise that it is desirable that ordinary people feel that the legal system is fair – they should have confidence in it.

Some people whose relatives have been the victims of crime were interviewed in a recent RTE documentary. They felt they did not have anyone to turn to for advice. They said that the entire experience was very intimidating. As part of the court reforms, we should do more to accommodate those who are part of the process, although not officially so. We need to ensure that relatives of the victims of crime, for example, feel comfortable in the courts system.

Photo of Tony KettTony Kett (Fianna Fail)
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I welcome the Minister, Deputy McDowell, to the House. That he is one of the most frequent ministerial visitors to this House is an indication of the amount of legislative work he is doing. The legal system is central to the notion of what it is to work in a civilised society because it impacts on all our lives in one way or another. The Bill before the House will amend the operation of the system we have in this country, which has served us very well. The demands and pressures of society bring about a need for change in any legal system. It is only right that this legislation is being brought forward. We are fortunate to have a Judiciary which is held in great respect for its integrity, fair-mindedness and independence. It would be wrong of the Government to sit on its laurels and refuse to examine the needs and requirements of society. Certain measures should be put in place in the legal system to reflect these needs and requirements.

Senator Jim Walsh said that the purpose of the Bill is to increase the statutory maximum number of High Court judges from 26 to 28. I believe that a previous Bill raised the number from 24 to 26 in 2000. We are here to change the provisions once more. The Minister has stated that the system needs to be examined in order to see what can be done about it. This need has arisen from the recent absence of Ms Justice Laffoy from the scene. It is right that a judge of the High Court should take on the mantle of chairman of the inquiry into child abuse. A person of some standing should be in charge of such an important inquiry. Senator Walsh said that this Bill demonstrates the commitment of the Minister and the Government to the outcome of the inquiry.

We all need to examine the entire subject of tribunals of inquiry. When tribunals were established some years ago, I do not think it was envisaged they would still be conducting their business this far down the road. I do not think anyone who knows the current terms of reference of the tribunals would recognise the terms of reference given to them at that time. I recognise and acknowledge the fine work that has been done by the tribunals. They have exposed individuals and unravelled situations that have embarrassed all of us in this House and outside it. It is vital that we see some clearing or some opening at some stage, so that we can say the tribunals are nearing an end. I wonder if there is anything we can do at this stage. A single day's argument at a tribunal seems to lead to another branch of inquiry. A never-ending list of branches seems to be developing as a consequence. This area needs our attention.

The practice of not allowing solicitors to be called to the High Court was amended in 2001. I think it was a very good move as it gave far greater scope to people who wish to apply for positions. It meant that much more of the expertise and experience that exists can be used. I imagine that some fine solicitors could do a very fine job at that level. The artificial divide between the two branches of the legal profession amuses those of us who are not lawyers, although perhaps "amuses" might not be the right word. The barriers need to be broken down because they do not serve the public well. Some of the barriers were removed from the system by means of legislation, but it seems they found their way back in by virtue of custom, practice and prejudice. I agree with the speaker who said that there is little, if any, flexibility, in respect of judicial assignments or resources. The sad fact that we are here, having to pass primary legislation in order to appoint two people to the High Court, is evidence of this. I am delighted that the Minister is examining this area and is prepared to do something about it.

I am glad that all Members of the House are giving this legislation the green light. I look forward to the completion of the work of the commission of inquiry and I wish it well in that regard. I am delighted that this Bill will assist that process.

Photo of Michael McDowellMichael McDowell (Dublin South East, Progressive Democrats)
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I thank the Members who contributed to this debate in such a constructive and supportive manner and those who attended the debate but did not contribute. I assume they support this Bill in a more practical way, by not delaying its passage.

I reflected on my time as Attorney General as I listened to the debate. One is not supposed to have an input into the formation of policy on many issues when one is Attorney General. It occurred to me at one time that there is a particular exponent among the political class of an art which is remarkably absent. The art to which I refer is the capacity to make three stories out of one action. It amazes me that if one is astute in one's PR management, one can announce the same measure three or four times and the media will pick up on it each time as if it were new. I am beginning to think that I have the opposite ability, as I do not receive enough bang for my buck.

It is almost forgotten that in the dying days of the last legislative term, the Government printed and published the Commissions of Investigation Bill 2003 and an explanatory memorandum. The publication of this Bill made such a small impression on the body politic and the media, for some reason, that people continue to ask when the Government will publish its proposals in respect of this area and what it will do about alternatives to tribunals. I should apologise for this ignorance, as I suppose the fault must be mine. I have not ensured the maximum value for this legislative initiative. Perhaps one of the problems is that the Bill has not yet reached Second Stage in the other House. This leads me to believe that in the present circumstances I should be more keen to introduce primary legislation in this House where I will get some more bang for my buck.

The Commissions of Investigation Bill is the Government's proposal to have an alternative system of inquiry to that of tribunals. It is interesting because it does not stipulate that judges must do this kind of work at all. In fact, it does not even stipulate that lawyers should necessarily do it. The interesting point about the new proposal is that adversarial advocacy, etc., would not be required in proceedings. Proceedings could be conducted in private, such as the Scott inquiry into the arms-for-Iraq affair or perhaps more like the more recent inquiry concerning the Iraq war. Iraq seems to be the constant fertile source of inquiries.

The interesting thing about both the Scott and Hutton inquiries is that there was no need in either case for the compulsory powers of the tribunal because all the main actors could effectively be compelled by moral pressure to produce all their private records, diaries, mobile phone bills, etc., to establish who talked to whom or whatever else needed to be determined. This is the case if one is dealing with a matter of public importance. However, if one were to attempt the same thing in this jurisdiction, one might encounter legal objections almost immediately. It was with this in view that the Commissions of Investigation Bill was drafted, thus providing a statutory basis for Scott or Hutton-type inquiries in Ireland. One of the proposals of the legislation is that when any such inquiries, as opposed to tribunals, are to be established, the Houses of the Oireachtas would have to be given an accompanying statement containing an estimate of the costs, including legal costs, to be incurred by the commission in conducting the investigation and preparing its report, and a timeframe for the submission of its final report. This is one of the measures in contemplation and it is important.

A danger exists in making it easier to have inquiries because there is a limit to how many inquiries a state can conduct at any given time. Although it is better to have cheaper and quicker inquiries, thus saving the Exchequer money and arriving at conclusions faster, there is an equivalent danger that there will be daily proposals for inquiries into various matters, especially if they are easy to establish.

It strikes me – I say this with some circumspection – that the spirit of the day is one in which Ireland holds the shovel not to get on with constructing our future but to exhume the past. At some stage we will have to become much more prospective in our collective political focus. It is fashionable to talk about the need for full transparency, inquiring into events and bringing closure to them, but there is a limit to the extent to which the truth can be established in retrospect. There is also a limit to the extent to which any society should expend all its political and emotional resources looking backwards and trying to find out what happened when there are so many serious problems facing us in the mirror in terms of what we need to do in the future. While it is sometimes necessary to look back to prevent wrongs from being repeated, it seems that a successful, dynamic society has to have a focus on the future. This legislation, if passed by the two Houses of the Oireachtas, will make it easier to inquire into matters. I hope this does not mean the focus of political attention will be increasingly on the past because the fundamental purpose of elections and representative democracy is to plan our future and make sure it is successful.

Senator Terry stated that one appointment was presaged in the debate on this legislation and asked if I could identify the second appointee. No decision has been made on this yet. The Senator also asked about the necessity for gardaí to appear in court and how much Garda time is spent in courts. It is very difficult for me to state a figure but a huge amount of Garda time is spent in courts. When I was starting out as a barrister, it was more or less expected by a trial judge of a jury trial that all the Garda witnesses would remain in court for the duration of the whole case. If, on the eighth or twelfth day of a such a case an issue arose regarding whether a garda had made a particular statement, there was a shocked silence if that garda was not available to come up from the bowels of the court immediately to be re-examined on the issue, as if there were nothing better for the garda to do.

I know the Judiciary has become much more reasonable and is asking if there is a need for certain garda witnesses to remain in court. If not, it is prepared to allow them to go about their duties. We have to get to the point, especially in the criminal justice process, where the demands on Garda time are minimised and where a garda whose evidence is solely that he or she preserved the scene of a crime should at least be able to testify by a video recording, for example, if a written statement procedure, which exists under the 1984 Act, is not sufficiently vivid. We have to think in terms of getting people away from the court system when they are not really needed, subject to the right to cross-examine witnesses where their evidence is in issue. As I have stated before, I hope that in the context of the Criminal Justice Act we will have a system whereby minor public violence offences will be dealt with by cautions accompanied by fixed penalties so gardaí do not spend all their time dealing with them.

I have had quite a considerable and fruitful discussion with the Minister for Transport, Deputy Brennan, on road traffic offences. There are many cases in this respect that need not involve the presence of gardaí in court. Gardaí could testify by written declaration. Why should a statutory declaration in respect of speeding offences not be acceptable unless somebody really wanted to challenge his or her case? Senator Tuffy questioned the point of requiring the presence of gardaí in procedures of this nature. Most of this kind of adjudication could be reduced to a fairly automatic process if we had the will to do so.

We could change things for the better in respect of blood alcohol cases. The Minister for Transport and I are discussing whether it is possible to introduce a system whereby, if one were over the legal alcohol limit, one would surrender one's licence for administrative disqualification, after which one's conviction would be published in a public list somewhere, one would pay one's fine and stop driving on the road, subject to very major penalties if one were to breach the administrative disqualification. This would make it unnecessary to produce witnesses and certificates and there would be no need to book a court effectively for an afternoon, against the hazard that a clever barrister would defend a case. Such a system could lead to a huge improvement.

Senators have asked if senior counsel could not discharge the functions now being carried out by tribunal judges. There is no requirement of any legal qualification although many senior counsel would be very suitable for conducting commissions of inquiry. The successful inquiry into allegations of child sex abuse in the diocese of Ferns carried out by George Birmingham, SC, the successful inquiry into the sexual abuse of swimmers carried out by Robert Murphy, SC, and the Kilkenny incest inquiry carried out by the then senior counsel, Catherine McGuinness, who is now a Supreme Court judge, show that a judge should not carry out every inquiry provided for or established by law.

It is true this legislation has come before the House in the context of the decision of Ms Justice Laffoy to resign as chairman of the Commission to Inquire into Child Abuse. Ms Justice Laffoy is now returning to the courts where she is a valued, highly respected judge. In other words, she is not being lost to jurisprudence. On the contrary, she is returning to a place in which she was sorely missed and is held in great respect. I say this in case by saying nothing on the subject, I would have been taken in some sense to be deficient.

The role of solicitor advocates and the appointment of solicitors to the superior court judiciary were raised. Legislation enabling these developments to take place was enacted while I was Attorney General and I strongly supported the change. When the first such appointment was made I was Minister for Justice, Equality and Law Reform and I am pleased to have had a proposing role with regard to this development. Many members of the solicitors' profession would make excellent superior court judges. It is worth recalling, however, that one of the problems we face nowadays is persuading senior people of quality in either branch of the legal profession to put their names forward for positions of this nature. There is no overwhelming stampede to take on the job of High Court judge, the reason being that many leading lawyers, solicitors and barristers, are much more handsomely remunerated in private practice than on the Bench. In case anybody thinks a vast number of people are found to be suitable and later disappointed, I assure the House this is not the case.

It has been suggested that some solicitors are reticent about acting as advocates because the fact that the great majority of judges are barristers would lead to a knee-jerk, adverse reaction to this new role on the basis that it is regarded as barristers' work. If, in the past, some members of the Bench may have preferred to see barristers rather than solicitors before them, this attitude has largely evaporated. In the Circuit Court, where many solicitors now function on the Bench, nobody has ever been able to detect any change in attitude between solicitors or barristers appearing before such former solicitor judges.

One must seek the true explanation in a slightly different direction. In the main – there are many exceptions – solicitors prefer to have barristers do their cases for them. The reason for this preference is that it is difficult for a solicitor, for example, one running a small practice, to commit to be present for the full period of a lengthy case, which may eventually double in duration, and stick with it from beginning to end. While some may argue that these are the words of a barrister, the reticence of solicitors to act as advocates is due to the fact that many sole practitioners and solicitors working in small firms do not find it practical, in terms of conducting a practice, to commit to do a case in court even in the event that is adjourned for a week as it would require them to put aside all their plans for closing sales, dealing with new clients and so forth for the week in question.

The split profession, as Senator Kett described it, is not peculiar to our system but is also found in other countries. In France, for example, there is a similar difference between notaires and advocats. Even the unified legal profession in America divides into specialties of trial and non-trial or corporate attorneys. Most American attorneys, who do what we regard as solicitors work, would not dream of undertaking a criminal defence on behalf of a client because specialists effectively emerge as trial attorneys in the various areas. I accept, therefore, the comment by Senator Walsh that the public regards the distinction between barristers and solicitors as expensive and difficult to justify. There is also considerable merit in the Senator's comments concerning a perceived absence of competition. A substantial agenda needs to be addressed in respect of the transparency of the fees charged by the legal profession, particularly barristers.

It is the function of a solicitor to act in the interests of his or her client. Obviously, he or she must engage a good barrister but it is also the solicitor's function to strike the best possible bargain on behalf of his or her client when doing so. Most people, including Senator Tuffy, will agree that while this is the theory, it is not translated in practice. In the eyes of the client, there sometimes appears to be a common interest between the solicitor and barrister in respect of fees, as opposed to a sense that the solicitor is performing the function of negotiating the barrister's fee to obtain the best value for the client. In my experience as a barrister, I never encountered in practice the theoretical notion that a solicitor would genuinely consider selecting one of three or four barristers to do a case and ask them in advance to name their price and effectively tender for the work in question.

I accept Senator Walsh's point on the need for price competition and mechanisms to get legal services provided at the lowest price to the consumer. This is an important issue which I intend to raise with the legal professions once my workload, which is considerable, allows. It is on my agenda to approach the Bar Council and Law Society and request that these organisations address the specific issue of whether they are organising their affairs and performing their functions in a cost competitive manner or, on the contrary, operating on a basis that the legal profession's financial interest is given undue weight in dealings with clients.

The retirement age of judges was raised. Judges now retire at the age of 70 years and while a number of them were appointed with a retirement age of 72 years – I will not describe this group as a dying breed – the retirement age has now been fixed at 70 years. We have an anomalous and undesirable position that District Court judges are required to retire at 65 years, unless their contracts are extended on an annual basis until the age of 70 years. It should be unequivocal and clear to judges that they will hold their jobs until the day they retire. There should not be two categories of judges, in one of which judges are the subject of an annual review as to whether they are still compos mentis or functioning in a proper way.

Our system of judicial appointment is dramatically different from the continental system. On the Continent, when one finishes university or completes a law degree, one makes a choice on graduating as to whether one wishes to go into the judicial arm of the state. Then one works one's way up through the judicial mechanism, sometimes to dizzy heights. That is not to say that all continental judges are appointed from that system because people from academia and practice are also appointed. In our system, which is different from the continental system, the judge is an independent arbiter on an adversarial basis. It is an important difference and it has dramatically different consequences for the way in which legal business is done.

One of the great strengths of our system is we choose people of experience who have not worked their way up through the system, have not had all the corners knocked off them or have not become part of the grand State apparatus. They are chosen from outside the State apparatus and put on the Bench on the basis of their experience and qualities and are expected to act as independent arbiters between the State and the individual. That system, which operates throughout the common law world with different methods of vetting and so forth, is far superior, and I admit to being prejudiced on this, to a career judge system. I believe litigants in the common law system have absolute conviction that when they go before a judge appointed on that basis and who holds the scales between them and the State apparatus, they are not being confronted by a part of the State adjudicating their case in the interests of the State.

It underlines and symbolises the independence of the Judiciary that its members are usually in their fifties when they are selected to serve as judges. In that context, having a retirement age of 70 rather than the usual retirement age of 65 is sensible. If one is selecting people at that stage of their career, one must give them a reasonable run. In any event, the age of 65 was selected as the retirement age in Bismark's Germany because most people did not live much longer. We now live in a world where many people, with a huge amount to contribute, live into their seventies. I am not in favour of mandatory early retirement.

Reference was made to the suspicion that some people engage in forum shopping, seeking particular judges for particular results. That suspicion is entertained not just in this House. It is obviously desirable that one judge should be the same as another. However, judges are flesh and blood and we expect them to be so. We also expect them to be consistent with each other. It is inevitable, nevertheless, that just as politicians, Ministers and Senators differ in their characteristics, there will always be judges who are softer or more inclined to see the small man's case, the State's interest or whatever. Judges will always have different characteristics and there is no way of avoiding that except to ask them to attempt to be objective and consistent with other judges, in so far as they can, in the standard of justice they administer.

Senator Tuffy raised the issue of family law. I agree the need for mediation in this area is paramount. Adversarial family law should be the last outcome in a family dispute. It is so destructive and consuming of assets that the case Senator Tuffy makes is undeniable. I was called to the Bar in 1974. There was no free legal aid until after the Josey Airey case. The free legal advice centres were voluntary bodies which were manned by young men and women who were either students or recently qualified solicitors and barristers. They effectively provided the only system of legal aid in family law and they did it for nothing. That was a cornerstone of the FLAC philosophy. I did a great deal of work for the centres when I was a fledgling barrister. One could not take any benefit for oneself because it was done on a FLAC basis.

Things have changed dramatically since then. Family law, which was an economic desert as far as practitioners were concerned, has now transformed into something dramatically different. Undoubtedly, the quality of family law has improved greatly since the time a young Master McDowell was attempting to improve his skills as a junior barrister in that area. Equally, however, the costs have grown phenomenally, to the point where fortunes are expended by people sorting out family differences. Any protracted litigation is an economic and familial disaster for the people who get caught up in the system.

I endorse Senator Tuffy's comments that, however we do it, the emphasis must not be on adversarial family law but on people sitting around a table, facing up to the fact that they will not live together and somehow arriving at a mediated solution as to how they deal with custody, property and access issues. It could be done in an afternoon, compared with the lengthy discovery process to discover people's earnings, bank accounts, property transactions and so forth which goes on for weeks and months and achieves relatively little.

Senator Tuffy mentioned that men feel the family law system discriminates against them. That perception is true. There is an almost instinctive reaction that where the custody of children is an issue, there is a presumption in favour of the mother. That is rebuttable but is infrequently rebutted. Men in those circumstances feel that they, rather than women, are at the receiving end of justice. What can I say about that? Women have suffered huge discrimination in many areas for a long time. Law, however, is one area where women litigants, in whatever capacity, have always been treated better than men, particularly in the area of criminal law. My experience, throughout my career prosecuting and defending in criminal cases, was that women were always given the benefit of the doubt in circumstances where a tougher approach was taken to men.

When it comes to sentencing, the outcomes for men and women are dramatically different. If there is an inconsistency in how the genders are dealt with in the courts, that is one area in which, even in less so-called enlightened times than the one we now live in, women have been treated better. It is curious to examine the Victorian period and look at the returns for Mountjoy Prison and other such places. The number of women offenders was enormously higher then than now. The Victorians were much tougher on women, sending them to jail for theft, prostitution and other crimes. Now, the Judiciary has a different attitude when it comes to gender discrimination.

The excursus on the irrelevancies that have been raised in the course of this debate is now complete.

I welcome the positive support of and interest in this subject by the Members of this House. Most of the things said about tribunals will come up for minute discussion when the legislation comes before the House. I hope the remarks I have made are not seen as stereotypical. We must be truthful with each other when we think about what has happened in the past and how things have changed.

While our legal system is frequently criticised and deserves to be under constant sceptical scrutiny to see what is wrong with it and while I, as a lawyer and Minister for Justice, Equality and Law Reform, should be especially careful not to bring my previous baggage to a job in which the people expect me to be objective and sceptical about our system, the quality of our Judiciary and the fairness of our legal system are enormously high. One has only to look at cases in the European Union in terms of delay and effectiveness to see less desirable examples than the ones we have.

I have not dealt with wigs and gowns, but that is for another day. While we can make all types of criticisms of our judicial system and our system of criminal justice, most of which have a grain of truth in them, we should bear in mind that they command the confidence of the majority of people who regard judges as impartial and honourable people who are trying to do their best. Most sentences, although there are some exceptions, are regarded by most people as being reasonable in the circumstances.

We must resist another feature of the present age, namely, a desire to always see things in terms of anger and disappointment. When we deal with victims, our system should be more supportive. I accept Senator Tuffy's point in that regard. There is a sense in which victims are merely seen as witnesses in an adversarial system. We must be careful about that. However, we must remember the other side of that coin, namely, that justice is public justice. It is not the right of a victim to select the punishment for the offender. Whereas the victim is entitled under our law to be heard on the issue, people want someone who listens to both sides and then selects a punishment. The dissatisfaction of any victim with a sentence is not the issue. If we had a system where every victim had to be satisfied with every sentence, we would surrender the sentencing process to the relatives of the victim in every crime. That is not what is needed in a fair system. We need an impartial arbiter to decide the sentence, having listened to the victim.

I am always accused of being politically unwise in challenging anything the media does, but sometimes there is an over concentration on the victim's reaction to every offence and the way it is dealt with by the courts. We must also consider the family members of the accused. There are those who are dependent on and who love the accused. Their views are valid, not irrelevant. We must sometimes rise above the tendency of being able to report that the victim in a particular crime is outraged by the leniency of a sentence. If they are outraged and that is justified, it should be reported and commented on. However, it should not be commented on on the basis that the victim has an implicit right to be the arbiter of what is just or fair in relation to him or her.

Question put and agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Photo of Jim WalshJim Walsh (Fianna Fail)
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I thank the Minister for coming to the House and dealing with many extraneous matters. I am sure all Senators who were here found it informative. We look forward to the Bill dealing with the public inquiries. Like other Members, I had forgotten about it. Perhaps it might have been wiser to have brought it to the Seanad first because we would probably have disposed of it by now.

I congratulate the Minister on this Bill, which is indicative of his interest in the legal process and in this inquiry, which everyone would like to see brought to a satisfactory conclusion. It will bring to a close a sad chapter in Irish society, although perhaps not to the satisfaction of everyone involved. We want to be able to deal fairly with the difficulties and problems faced by the victims so they know the State recognises them.

Sheila Terry (Fine Gael)
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I thank the Minister for dealing with this Bill. I also thank him for the length of time he spoke to us. It is always interesting to hear his views. He replied to the debate for at least 35 minutes. That is appreciated by this side of the House. We are here to learn and the Minister has more knowledge than I have. I thank the Minister for giving us his time.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I thank the Minister for his detailed reply to the points made. I also thank the Senators for their contributions. We learned a lot from the Minister. However, I hope he will take on board some of the issues we raised about future legislation.

Question put and agreed to.

Sitting suspended at 5.30 p.m. and resumed at 6 p.m.