Tuesday, 9 July 2019
Courts (Establishment and Constitution) (Amendment) Bill 2019: Second Stage
I am pleased to have the opportunity to commend the Courts (Establishment and Constitution) (Amendment) Bill 2019 to the Seanad on Second Stage. I acknowledge the co-operation and support being given to this Bill by colleagues and party spokespersons across both Houses. It is my hope that, subject to today's proceedings and the conduct of the relevant Stages as now scheduled, the Bill can be completed for enactment before Senators go on their summer vacation, which I understand will be at the earliest possible date to facilitate the Seanad.
The purpose of today's Bill is to provide for an increase in the maximum number of ordinary judges of the Court of Appeal from nine to 15. The Bill, therefore, provides for an amendment of the Courts (Establishment and Constitution) Act 1961 to increase the statutory number of ordinary judges of the Court of Appeal from nine to 15. At present, the court comprises a president and not more than nine ordinary judges as set down in statute. There has been no change in the configuration since the court's establishment in 2014. The Court of Appeal plays a pivotal role in dealing with a range of appeals arising from both civil and criminal proceedings across a number of other court jurisdictions. However, we are now at a point where it is clear from the current trend in waiting times that, without additional judges, the Court of Appeal, before too long, will face similar levels of undesirable delay to those which gave rise to its establishment five years ago. Successive presidents of the Court of Appeal have also highlighted the need for today's Bill with the strong support of the Chief Justice. Information received from the Courts Service confirms that, as things stand, hearing dates for civil cases before the Court of Appeal have already been fixed up to, and including, May 2021. While some allocation has also been made within that schedule so that any urgent appeals can also be dealt with, the time available for civil appeals is essentially fully allocated up to and including that time.
Having brought this Bill to Government and before the House, I am satisfied that the additional judicial positions are warranted to address the current demands being faced by the Court of Appeal and to improve efficiency in the appeals process. The exercise of the option of appeal is, as Members will appreciate, a mainstay of our judicial system and in ensuring access to justice. I also wish to signal my intention to bring forward a small number of discrete technical amendments to this Bill which have been submitted to the Bills Office in the required manner for Seanad Committee Stage. These deal with a number of technical but nonetheless pressing court-related matters that need to be addressed before the summer recess and for which no timely and alternative legislative vehicle is available. They principally support the establishment of the office of the legal costs adjudicators that will replace that of the Taxing Master over the summer period under the reforming measures contained in the Legal Services Regulation Act 2015. Extensive preparations in terms of IT supports, new procedures, staff training and rules of court have been made by the Courts Service in conjunction with my Department. The new system is scheduled to go live in mid-September on that basis with the preliminary registration of legal costs adjudicators from July.
The proposed amendments will harmonise the current lodgement and tender provisions for legal costs in their application across the various courts. They will also streamline the way the new public register of legal costs determinations will be applied to county registrars. A cross-reference in the 2015 Act is also being corrected. The enhancement of the lodgement and tender process incentivises the parties in cases to make and consider reasonable offers to settle. That reduces the burdens of legal costs and time on both the courts and on the litigating parties. The new office of the legal costs adjudicators will be a linchpin of the wider and more consumer-friendly legal costs transparency regime when it comes into operation this autumn with the commencement of Part 10 of the Legal Services Regulation Act 2015.
That is all part of the programme of structural reforms to legal costs and legal services that will come into operation this autumn under the Legal Services Regulation Act 2015. Early October will see the coming on stream of the new public complaints and professional conduct regime under which complaints about solicitors and barristers will no longer be made through their legal professional bodies but through the Legal Services Regulatory Authority. That will be bolstered by the coming on stream of the independent legal practitioners' disciplinary tribunal.
I have also proposed an amendment to add the President of the Court of Appeal - that being the court whose membership is being extended under today's Bill - to the membership of the Advisory Committee on Patents of Precedence. The committee will modernise the process of conferral of senior counsel status under the terms of section 172 of the Legal Services Regulation Act 2015 when commenced. A further amendment for inclusion in this Bill proposes to change the retirement age of judges of the District Court from 65 to 70 years as an immediate administrative priority. This will enhance the smooth running and continuity of court business in regard to the relevant District Court judges, who would otherwise have to technically renew their status in each of the five intervening years concerned.
As the House will recall, the Court of Appeal was established in October 2014 under the Act, following a referendum of the people in 2013 which was passed by over 65% of voters. On the establishment date, a total of 1,360 civil appeals then pending before the Supreme Court, and referred to as "Article 64 appeals", were transferred across to the Court of Appeal. A further 599 criminal appeals were inherited from the Court of Criminal Appeal. In terms of the existing caseload of the Court of Appeal, as of 31 March 2019, it had 909 civil appeals pending, of which 195 were transferred Article 64 appeals. It also had 516 criminal appeals pending, just five of which were inherited. Information received from the Courts Service confirms that, as things stand, hearing dates for civil cases before the Court of Appeal have already been fixed up to and including May 2021, with some allowance made to accommodate those more urgent appeals that will inevitably intervene.
While the current waiting time for criminal appeals is five months, which is generally viewed as an acceptable period, the waiting time for civil appeals is 22 months. This is considered a significant problem in terms of access to justice. The purpose of today’s Bill is, therefore, to provide the necessary additional judicial resources for the Court of Appeal to deal with its current caseload and to address waiting times. Increasing the number of ordinary judges in the Court of Appeal by six, as proposed in the Bill, will have the beneficial effect of increasing efficiency and access in terms of processing appeals in the superior courts. For example, the President of the Court of Appeal has indicated that having six extra judges would allow for three divisions of the Court of Appeal, one dealing with criminal cases, the second dealing with the inherited Article 64 cases and the third dealing with incoming mainstream civil cases. In the view of the Judiciary, this would allow for the most efficient disposal of cases, allowing sufficient time for hearing cases in court, reading papers in preparation for court and, of course, the very important engagement which is the drafting and preparation of judgments.
The appointment of six additional judges to the Court of Appeal is estimated to cost in the region of €1.22 million by way of salaries and allowances, with the provision of some additional supports by the Courts Service. Funding for such non-pay or capital costs, including any required additional chambers, will be managed within the existing resources of the Courts Service. As part of this approach, I will review the situation in two years regarding judicial numbers in the Court of Appeal in consultation with the President of that court and as the court clears down its inherited caseload.
In commending the Bill to the House on its recognised merits, I look forward to the contribution of Members. In that regard, I also look forward to our discussion of the small number of key technical amendments that I have outlined.
I welcome this Bill and Fianna Fáil will be supporting it. It is good that we are appointing six extra judges to the Court of Appeal. While the Court of Appeal was established in 2014 to deal with the very serious backlog in the Supreme Court, and it has made inroads in that regard, there are still serious delays. Justice delayed is justice denied, so I very much welcome the addition of these six judges. I look forward to the Bill being passed.
This Bill is opportune. The Court of Appeal created a very valuable additional structure within our courts to try to deal with the volume of cases where people were not happy with the outcome, given the issues with the Supreme Court. It is only appropriate that we would resource it properly to ensure there are no unnecessary delays, and we know there have been delays, from what the Minister has told us and from our own information. I agree with the sentiments of Senator Clifford-Lee in the sense that justice delayed is justice denied, which is true. This Bill is welcome and I hope it will pass quickly.
I thank Senators Clifford-Lee and Conway for their interventions. While this is a small, two-section Bill, I am sure everybody will agree it will have a highly positive effect in terms of access to justice. If enacted, it will bolster the working capacity of the Court of Appeal so it can keep up with its demanding caseload while also working down any existing delays. Moreover, if the courts-related technical amendments that I have proposed can be agreed, the Bill will also provide a timely legislative vehicle to accommodate those discrete changes that will help to ensure the successful transition of the Office of the Taxing Master to that of the Legal Costs Adjudicator this autumn. This, in turn, will augment the broader historical package of structural reforms that are set to become operational under the Legal Services Regulation Act 2015 over the summer period.
As Members will appreciate, the amendments propose to harmonise the lodgment and tender process across the courts and have been the subject of detailed consultation with the Office of the Taxing Master, the Office of the Attorney General and the Office of the Parliamentary Counsel, given their highly technical nature. They are also being supported by the new rules of court which have been prepared, subject to the agreement of the amendments concerned. The other amendments proposed will include the President of the Court of Appeal in the membership of the new advisory committee on grant of patents of precedence and fast-track the changes in the retirement age of District Court judges from 65 to 70 years for administrative purposes.
At the same time, it is important that we do not lose sight of the cross-cutting role being played by the Court of Appeal since it was set up five years ago. The new court inherited the civil jurisdiction previously exercisable by the Supreme Court in appeals from orders of the High Court, and the criminal appeal jurisdiction of the Court of Criminal Appeal. The Court of Appeal also hears court martial appeals previously dealt with by the Courts-Martial Appeal Court.
For its part, the High Court deals with a broad range of cases, including personal injuries, repossession, debt recovery, contract, extradition, defamation, planning, deportation, asylum and family law cases. It also deals with categories of criminal cases, including bail applications, habeas corpus, cases under Article 40 of the Constitution and matters of judicial review. Therefore, the range of civil appeals coming from that source for the attention of the Court of Appeal is extensive.
The criminal jurisdiction of the Court of Appeal extends to appeal against conviction after a trial by jury in the Central Criminal Court and the Circuit Criminal Court, and following trial in the non-jury Special Criminal Court. Appeals can be taken against the severity of sentence and the Director of Public Prosecutions may appeal a sentence on the grounds of undue leniency. The Court of Appeal also hears applications to quash a conviction on the grounds of new evidence following a previously unsuccessful appeal. I want to also mention that relatively new categories of appeals include appeals by the DPP against an acquittal and appeals under the Criminal Law (Insanity) Act 2006, as amended, arising from the findings as to fitness or otherwise of an accused person to stand trial.
According to the annual report of the Courts Service for 2018, the launch of which I attended yesterday and the details of which are now publicly available onwww.courts.ie, the Court of Appeal had 499 incoming cases on civil law matters in that year, while it resolved 475 such cases in that period. Also last year, the Court of Appeal had 1,266 incoming criminal matters to deal with, while it resolved 1,400 such matters over that period. As we have discussed, the criminal appeals list is running well, with what would be regarded as a broadly acceptable waiting time of five months or less. It also has procedures in place for the allocation of priority hearing dates for appeals where the President of the Court of the Appeal is satisfied there is a sufficient degree of urgency. However, the average waiting time of over 22 months for new civil appeals is unacceptable. It has, as I mentioned earlier, been a source of ongoing concern to the President of the Court of the Appeal, his predecessor and the Chief Justice. The judges are acutely aware of the State's obligation under Article 6 of the European Convention on Human Rights to provide a fair and public hearing within a reasonable time. Despite the maximum use of the available judicial resources and court time, therefore, it has become increasingly evident that the civil caseload of the Court of Appeal is not manageable without the appointment of extra judges.While hearing dates continue to be allocated weekly, taking the optimal approach in case management terms, today's Bill will allow the current list be reviewed by the President of the Court of Appeal. The appointment of six new judges will enable the president to manage the civil list by convening additional courts to prioritise hearing of the remaining Article 64 appeals, transferred from the Supreme Court, while at the same time bringing forward appeals which are on the priority list, bringing forward to earlier dates the appeals that are currently listed for hearing as far ahead as April 2021.
I thank Senators for their consideration of the Bill. I commend the Bill to the House and look forward to its further discussion on Committee Stage in light of the amendments I have outlined. Should the Seanad decide in its wisdom, following careful consideration, to enact its contents by passing Committee and Report Stages tomorrow, it is my intention that the Bill, as enacted, will proceed to be signed by the President and go to Government in early September with the nominations and my recommendations for consideration for appointment by the President at an early date.