Ladies and Gentlemen, I would like to thank Dr. Adam McAuley for his kind invitation to open this conference. On behalf of myself and my Government colleagues, I am delighted to welcome you all to Dublin. We have recently been enjoying some unusual July weather which I hope will continue throughout your stay and, for rather more selfish reasons, for some time afterwards.
Your conference theme and the various papers to be delivered and discussed are of particular interest to me personally as a member of Government, as a legislator and as a former practising lawyer. The range and depth of the subjects under discussion classically illustrate the value of an international conference such as this. They touch on a range of issues of great importance including the protection of human rights, the differing roles of the executive, legislature and the judiciary and the tensions that can arise, issues of judicial independence and judicial power, the role of the European courts of justice and human rights, the importance and relevance of judicial review and the position of national courts in a European and internationalised legal environment.
As many of you will be aware, our constitutional democracy is based on a separation-of-powers architecture that recognises within a framework of checks and balances distinctive legislative, executive and judicial spheres. Each has constitutional responsibilities to uphold, and an independent judiciary plays a crucial role within our framework of checks and balances to ensure constitutional obligations are complied with and individual citizen’s constitutional rights are protected. It is, of course, important that each organ respects the role of the other and from time to time understandably tensions can arise between them.
For our judiciary, the administration of justice is uniquely its responsibility and this is primarily concerned with the hearing and determination of all cases that come before our courts. Neither the executive nor the legislature can or should interfere in this process as an independent judiciary is one of the essential cornerstones of our constitutional system and is crucial to the rule of law. Both internationally and domestically there is an interesting and important discussion as to the reach of judicial independence and of what has been termed “judicial power”. I know this is an issue that will give rise to interesting discussion during the course of your conference. For my part, I believe it is important that “judicial power” is not interpreted or extended in a manner which seeks to prevent either the executive or legislature exercising functions that fall within their constitutional responsibility and competence. It is also, of course, crucial however that the courts ensure that both government and legislature comply with constitutional propriety. In this context, the courts in this State, like the courts in other states which have a written constitution, have engaged in significant constitutional oversight of both legislation enacted and executive action taken for many decades. This can cause discomfort from time to time to government or government ministers. However, it is part and parcel of our constitutional democracy that the judiciary ensure legislation enacted and executive action taken does not violate fundamental principles contained in our Constitution that the people have adopted as the State’s fundamental law and which also constitutionally enshrines the protection of personal and fundamental rights.
As many of you know it is not only fundamental rights explicitly detailed in the Irish Constitution but also those implicitly derived from it by the judiciary which are engaged by our courts when exercising their role of constitutional oversight. No doubt, during the course of your conference the interesting issue as to when judicial identification of implicit rights may be seen by some as judicial development of the law or judicial legislation will come into focus. Another issue of possible controversy is the approach of the courts to the role played by the other constitutional organs and the extent to which the courts may be perceived on occasion as reaching into areas reserved for the Government or legislature or imposing unrealistic constraints on their properly performing their functions.
For example, the decision of the Supreme Court in the Abbeylara case from the Courts perspective sought to reserve to the courts or a constitutionally appropriate judicial body, findings of fact on issues of controversy that could impact on the good name or reputation of individuals. From the parliamentary perspective the judgment has neutered the powers of parliamentary committees to reach conclusions on issues of public importance in respect of matters into which such conclusions are frequently reached by Parliamentary Committees in other parliaments in a variety of other states.
From the courts perspective the constraints on government expenditure to advocate a specific outcome in a referendum is perceived as ensuring that the Government of the day does not have an unfair advantage in promoting its policy choice for constitutional change. From a government perspective, it imposes a restraint on government from promoting constitutional reform it perceives to be in the public interest and forces it to enter a referendum debate with one hand tied behind its back.
Following on from our just concluding Ireland’s six month Presidency of the European Union, in the context of your Conference, it is worth noting that we prioritised a number of measures relating to rule of law and fundamental rights. In the course of the Presidency, we successfully concluded negotiations on EU accession to the European Convention on Human Rights. This accession was a commitment under the Lisbon Treaty and will further strengthen the protection of human rights and fundamental freedoms in Europe by ensuring that the EU is itself subject to the scrutiny of the Strasbourg Court in the same way that all individual national governments are.
The Irish Presidency was also able to agree a proposal at the final Justice Council to guarantee all citizens the right to speak to a lawyer upon arrest – anywhere in the European Union. In addition, under the Irish Presidency, the Council adopted the Commission's new regulation for an EU wide protection order – which will mean that people who have suffered violence can rely on a restraining order obtained in their home country wherever they are in the EU.
In the area of fundamental rights, my colleagues and I in the Justice and Home Affairs Council discussed in detail the Commission’s report on the application of the Charter of Fundamental Rights and requested the Commission to begin the process of public debate and dialogue on how to strengthen the protection of fundamental rights and the rule of law.
Here in Ireland, we are in a time of considerable change and reform in the legal system. Some reforms being progressed are long overdue measures; others are, I think, fairly innovative reforms. All are intended to improve access to our justice system and help it to function in a speedier, more effective way. For example, in October next, the Irish people will have an opportunity to vote in a Referendum on one of the most far reaching reforms of our courts system since independence. The Government is proposing a Constitutional Amendment to allow for the establishment of a Court of Appeal.
Back when our courts were established in primary legislation in 1961, provision was made for 4 ordinary members of the Supreme Court and 5 ordinary members of the High Court, a nearly equal allocation of resources. There are now 36 High Court judges, a 6 fold increase, whereas the number of Supreme Court judges has only doubled from 4 to 8 ordinary judges. Over the years the volume of litigation has increased dramatically meaning that there are more cases to hear. But as important to the growth in the backlog of cases, if not more important, is the fact that litigation has become infinitely more complex. In the commercial field, to take one example, the scope and complexity of transactions and the speed with which they can be effected is something that could not have been imagined until recently. Last year 605 appeals were lodged with the Supreme Court and 120 judgments issued. This compares to 64 in the United States Supreme Court and 85 in the United Kingdom Supreme Court.
If the Referendum is accepted, this will allow the new Court of Appeal to deal with most cases that are currently dealt with by the Supreme Court, reducing its workload and allowing it to focus on a discrete number of appeals. My intention is that, after the establishment of the Court of Appeal, most appeals will be concluded at that court and only if the Supreme Court is satisfied that (a) the decision involves a matter of general public importance, or (b) in the interests of justice it is necessary that there be an appeal to the Supreme Court, will cases determined by the Court of Appeal proceed to be heard by the Supreme Court. This should result in the number of cases heard by the Supreme Court falling substantially and ensure that justice can be administered within a reasonable timescale.
The Programme for Government also contains a commitment to create a new Family Courts structure and I am determined to progress this in the lifetime of this Government. Earlier this month I hosted a consultative seminar to discuss the manner in which this structure might be established in the Constitution, and how this would operate in practice. We were honoured to be joined by an Appeal Judge of the Family Court of Australia who shared her experiences with us and I will now take forward what has been learned from that process. My intention is that a Referendum to establish a new Family Court will be held in the course of 2014.
The new Legal Services Regulation Bill made important progress when it commenced Committee Stage on 17th July. On that occasion I had the opportunity to introduce a series of key amendments in relation to Part 2 of the Bill. These amendments have underpinned, to the utmost degree, the independence of the new Legal Services Regulatory Authority, in terms of both its appointment and the discharge of its functions. The eleven members of the Authority, which will have a lay majority and a lay chair, will now be put forward by nominating bodies and not nominated by the Government. These will include the relevant professional bodies along with the Higher Education Authority, the Competition Authority, the Irish Human Rights Commission, The Institute of Legal Costs Accountants and the Consumers Association of Ireland. Their nominees will be required to have relevant expertise from a range of relevant areas which are set out in the bill. It will be necessary that an Oireachtas resolution be passed prior to the formal appointment of the members of the Authority taking place. I also introduced new provisions to ensure gender balance in the nomination process and to more clearly address the terms of appointment, disqualification and removal of a member of the Authority. The appointment of the new Regulatory Authority will also be staggered to ensure its graduated renewal of membership and its protection from wholesale removal by any external actors. The Authority will appoint its own staff and Chief Executive, establish its own committees and conduct its own day to day business.
I am satisfied that the amendments being made to Part 2 of the Bill put to rest the initial concerns expressed at the time of publication of the Bill, regarding the actual and perceived independence of the Regulatory Authority from the Government. The Legal Services Regulatory Authority has, therefore, been placed on a solid legislative footing in terms of its independence for the future and with the resumption of Committee Stage of the Bill after the Summer Recess I will be tabling further amendments to bolster this further.
Alongside the positive dynamic of reform in relation to the courts and the legal professions, the Government has a similar objective in relation to the Judicial Council Bill. As well as providing for the establishment of a permanent, independent, Judicial Council that will promote excellence and high standards of conduct by judges, the proposed Bill is aimed at providing a means of investigating allegations of judicial misconduct supported by the establishment of a Judicial Conduct Committee that will have lay representation.
I should add that this measure has the active support of the Irish judiciary and, indeed, the Chief Justice has already established an Interim Judicial Council ahead of the statutory provision. Work on the drafting of the new Bill continues in conjunction with the Offices of the Attorney General and of Parliamentary Counsel with a view to publication of the necessary legislation later this year.
Finally, the development of a new system of judicial appointments is something I have been considering carefully. The current Judicial Appointments Board operates within the existing legislative framework and we are fortunate that the candidates for judicial office are without doubt of a very high calibre. But there is scope for a more transparent and accountable system which could promote more diversity in our judiciary and serve to further enhance the very high opinion in which the Irish people hold their judiciary. A change of this nature would be very much in the public interest.
I do believe that a better architecture can be put in place than exists at present and I hope the discussion I am suggesting involves not only the legal profession and contributions from members of the judiciary such as the recent thoughtful observations from a member of the Supreme Court, Judge Clarke, but also engages the broader public who benefit daily in innumerable ways from the protection of the independent judiciary. Among the questions I would like to pose are - should legal academics be rendered eligible for judicial appointments or should they not? Some of the most influential members of the U.S. Supreme Court have come from academia. Perhaps professional bodies, the Law Society and Kings Inns, and also our third level law schools, should give consideration as to the desirability of providing judicial studies courses for those members of the legal community who may consider seeking judicial appointment at a later stage. These are some of the issues which I hope will be considered as part of this debate.
Can I thank you all for your attention and I hope that you enjoy a stimulating conference here in Dublin over the coming days.
ENDS