Time of Change
President of the Law Society, ladies and gentlemen, I am delighted to be here with you this morning in Killarney. My thanks to James McCourt and to Ken Murphy for their kind invitation - this event has been in my diary since last August. I appreciated the opportunity to address last year’s Annual Conference and to respond to questions raised at the conference and I am delighted to again be with you this morning. I hope I can take it as a positive sign that I have, once again, been invited to speak to you.
I am pleased to note the constructive theme of this year’s conference. I know it is sometimes difficult to maintain an optimistic outlook in these straitened times but it is appropriate that the Law Society should take a lead in advocating for the changes we all know are essential for the country to develop and thrive again.
Introduction
We are in a time of change that is of crucial importance for all who reside in this State. It has been a time of great difficulty, not only for the State, but for hundreds of thousands who reside in the State and it is the Government who are vested with the responsibility of restoring the State’s economic sovereignty, ensuring its fiscal stability and creating the conditions for the creation of tens of thousands of jobs to tackle our unemployment crisis and for bringing to an end the substantial numbers either forced to or choosing to emigrate to obtain employment. Amidst the difficulties it is also a time of great opportunity, an opportunity to effect reforms that benefit all of those who reside in the State and address issues for too long neglected. It is in this latter context that, as Minister for Justice, Equality and Defence, I am implementing a radical agenda for legal change and statutory reforms. In my address to you this morning I want to touch on a portion of the programme implemented so far and detail for you a part of the Justice and Law Reform agenda currently in the course of enactment and implementation.
I will also touch on some issues as food for thought.
Court of Appeal
Many of you may have been present in Blackhall Place in March last at the seminar I hosted on the Constitutional Reforms envisaged for the courts system and I was pleased to be able to announce last week that the Government have now decided to proceed in the autumn with the necessary Referendum to establish a Court of Appeal.
The new Court will deal with most cases that are currently dealt with by the Supreme Court, reducing its workload and allowing it to focus a discrete number of appeals. The model for the new Court of Appeal is largely drawn from the seminal Report published in 2009 of the Working Group on a Court of Appeal which was chaired by now Chief Justice Denham.
Since the seminar in March I have received a number of welcome submissions, including from a Working Group representing the senior Judiciary and the Law Society, and I hope this input will continue as the Attorney General’s Office now develops the draft of the proposed Amendment and, in due course, the Bill necessary to implement the changes should the Referendum be passed.
My intention is that, after the establishment of the Court of Appeal, most appeals will be concluded at that court and only in exceptional circumstances, or where the interests of justice require it, subject to the Supreme Court’s own “leave to appeal” requirements, will cases proceed to be heard by the Supreme Court. This should result in the number of cases heard by the Supreme Court falling substantially. Taking on board the Working Group’s recommendations and the detailed observations recently received from the judiciary, the main features of the Court of Appeal are likely to be:
There would be a single Court of Appeal established in the Constitution which would have civil and criminal jurisdiction and would replace the existing Court of Criminal Appeal;
there would be a right of appeal of all cases, including those involving constitutional issues, from the High Court to the Court of Appeal; cases could be appealed from the Court of Appeal to the Supreme Court according to the Court�€ ™s leave to appeal requirements, in relation to matters of exceptional public importance or where deemed necessary in the interests of justice;
there would also be provision for the Supreme Court to hear appeals directly from the High Court, in exceptional circumstances and where deemed necessary in the interests of justice, again subject to its own requirements.
In the meantime, however, as you are all very much aware, the waiting periods for appeals before the Supreme Court and the Court of Criminal Appeal are of such a length that immediate remedial action is warranted and I was very glad to secure the agreement of my Government colleagues this week for a provision I proposed be included in the Courts Bill 2013 to facilitate the appointment of two additional judges to the Supreme Court. I expect the Courts Bill to be enacted before the summer recess and the increase in judicial numbers will allow the Chief Justice to move ahead with plans for additional sittings of both Courts which, I am sure you will agree, are urgently needed.
Family Courts
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. I think those of you who practise family law regularly will wholeheartedly agree that this area is long overdue for reform. Building on the very successful structure of the consultative session in March, I have planned another event dedicated to this subject for 6 July. Among the speakers will be the President of the Family Court of Australia who will share her experiences with us. My intention is that the outcome of the Seminar will feed into the process of designing the most appropriate model of family law courts for Ireland so I hope that all of you and your colleagues will be active participants on the day.
Abolition of the Seanad
As you know, the Government will also put a proposal to the People in the autumn to abolish the Seanad and the necessary proposed Amendment is being drafted by the Department of An Taoiseach in consultation with the Attorney General. In the context of recently expressed concerns, I am happy to clarify that concerns regarding the impact of this proposal on the judicial impeachment procedure in Article 35.4 of the Constitution are misplaced. The Attorney has received a number of helpful and constructive observations from the judiciary which will be taken on board and both I and my Cabinet colleagues have agreed that there be a requirement incorporated into the Constitution for a two thirds majority vote in Dáil Éireann to effect a judicial impeachment so as to maintain a balanced approach to the impeachment process.
Personal Insolvency
I would like to take this opportunity this morning to review the reform of our law on personal insolvency which I know will be of interest to this audience.
In Ireland, since 1990, we have had an efficient corporate restructuring process, but nothing comparable existed in regard to personal insolvency. We had an antiquated, unforgiving bankruptcy process with little prospect of redemption. The current financial crisis has exposed not only a need for a more appropriate approach to judicial bankruptcy, but also the need to develop other alternative approaches. We must examine how debt – whether it was business, trade, investment or residential mortgage or a combination of all them – could be dealt with in a different way so as to minimise the economic disruption.
Mortgage arrears difficulties are currently impacting on a large number of our citizens. The Government�€ ™s objectives are twofold: to ensure that such mortgage holders should, where appropriate, be assisted in remaining in their own homes, and that our assistance in this regard must distinguish between those who cannot afford to pay their mortgage and those who choose not to pay.
We need to provide a fresh start for people facing genuine difficulty in dealing with their mortgage commitments. We cannot leave a significant number in limbo with no certainty about their future financial situation and a reduced participation in society and the economy. However, we must be prudent and not allow situations where people, who have the capacity to repay their debts, renege on their commitments or, refuse to meaningfully engage with their lender or creditors.
The Personal Insolvency Act 2012 will very shortly be in full operation. I expect to be in a position in the coming weeks to complete the necessary secondary legislation and to make the final commencement orders. The Insolvency Service of Ireland has been established and is working hard towards this imminent full operation by completing the necessary operational and IT requirements. Already, it has published the reasonable living expenses and expenditure guidelines. Its information helpline and website are up and running and receiving considerable requests from the public.
As you know, three new innovative debt resolution processes have been introduced:
the Debt Resolution Notice for the write-off of debts up to €20,000,
the Debt Settlement Arrangement or DSA to settle unsecured debt, and
the Personal
Insolvency Arrangement or PIA to deal with both unsecured debt and secured debt up to €3 million or beyond by agreement.
The PIA introduces a concept which, I understand to be unique in international insolvency law, in providing for the negotiated resolution of secured debt in a court sanctioned process. If it operates as expected, it can function, in regard to personal insolvency in a way that examinership does for corporate insolvency. We cannot allow the economic recovery to leave capable entrepreneurs behind and not contribute through their talents. The PIA will be of particular use for those persons experiencing difficulty with repayment of their mortgages. I expect that PIA solutions, in many cases, may have to provide for appropriate debt forgiveness.
Both the new DSA and PIA arrangements require the engagement of the services of a personal insolvency practitioner or PIP to negotiate. In consultation with the Insolvency Service and the AG’s Office, we are finalising the Regulations in regard to the authorisation and licensing of personal insolvency practitioners which I expect to be in a position to publish shortly. Solicitors and barristers will be among those eligible to apply to be a PIP and I have no doubt a number will do so.
To protect the constitutional rights involved and to prevent potential actions for judicial review, the Act makes provision for enhanced oversight by the court of the new debt resolution procedures. This court involvement has the significant benefit to the debtor of providing protection from enforcement actions by creditors, either during the negotiation period or during the lifetime of the arrangement. The granting of a Protective Certificate must, to have its full effect, be registered in the appropriate public Register. Likewise, the successful conclusion of an arrangement must also be recorded. This is normal in other jurisdictions and I am not of the view that this imposes a significant burden.
We have also significantly reformed judicial bankruptcy and provided for a three year automatic discharge period which is broadly in line with the European norm. We cannot, of course, alter the fact that we live next door to one of the world’s most liberal bankruptcy regimes. We must recognise that there is unlikely to be any change in regard to that regime.
Specialist Judges
In order to deal with the anticipated volume of new work for the Circuit Court and to facilitate the speedy consideration of insolvency applications, a new cadre of Specialist Judges of the Circuit Court was created. Again, the need for an innovative approach was largely dictated by cost and efficiency concerns. By restricting appointments to serving County Registrars, we have been able to create much needed additional judicial capacity at little or no additional cost.
As you will be aware, persons seeking to be appointed as County Registrars are required by statute to be solicitors or barristers with at least 8 years practice experience and in reality the majority of these independent office holders – who are not civil servants - have accumulated vastly more years’ experience prior to their appointment. The new provisions also require any County Registrar seeking appointment as a Specialist Judge to also have a minimum of two years service in their current role. Again, in practice, most have served for very much longer, I believe the average service is 15 years.
Any County Registrar who is appointed as a Specialist Judge will not be replaced and their duties will be distributed among their colleagues. In this way, greater use is being made of an existing highly experienced and qualified cohort of lawyers and additional start up costs are kept to a minimum.
However, the Act also provides that the standard eligibility criteria for practising solicitors and barristers who are qualified for appointment come into effect no later than next year, 1 January 2014, i.e., after the first round of appointments of specialist judges has finished, solicitors and barristers practicing for ten years or longer are eligible for such appointments.
The Act extends the existing provisions of section 10 of the Courts of Justice Act 1947 to provide that the allocation and organisation of business is the responsibility of the President of the Circuit Court, including the sittings, times during the year and hours between which the Specialist Judges may sit. These provisions also allow the President to consult where necessary with the relevant judges. Far from fettering or interfering in the business of the court, these provisions are intended to ensure that there will be sufficient availability of these judges to ensure that applications can be dealt with by the court without delay so, for example, it should be possible to ensure that these judges will be available from Monday to Friday each week and throughout the calendar year, rather than observing the current rigid legal terms. Under the 2012 Act, this remains a matter for the President’s discretion in respect of the new specialist judges. The only function reserved to the Minister of the day is to set the vacations of these judges and this mirrors a longstanding provision in section 5 of the Courts Act 1964 under which the Minister approved the vacations of District Court judges.
I should add that these new judges will also be given jurisdiction to deal with applications to the Circuit Court under the forthcoming Assisted Decision-Making (Capacity) Bill 2013 to be published shortly. This Bill will implement the commitment in the Programme for Government to introduce legislation in line with the UN Convention on the Rights of Persons with Disabilities. It will offer a statutory framework to support people with impaired capacity to make decisions, to retain autonomy over their decisions to the greatest extent possible and to exercise their basic rights. I hope this clarifies the position on these new judges and I look forward to the Government making the first appointments in the near future.
Jurisdiction Limits/The Courts Bill 2013
Among a number of reforms I am introducing by means of the Courts Bill 2013 is a long awaited increase to the monetary jurisdiction limits of the Circuit and District courts which have remained unchanged since the 1991 Courts Act set them at the Irish pound equivalents of €38,092 and €6,384 respectively. Although the Courts and Court Officers Act 2002 made statutory provision for increases in the limits to €100,000 and €20,000 respectively, these increased limits were never brought into operation because of concerns about possible inflation of awards and a consequential effect on insurance costs. Almost 11 years has passed since statutory provision was last made for an increase in the jurisdiction limits yet they remain as set in 1991 - which has had the effect of rendering our courts of local and limited jurisdiction redundant in respect of some classes of civil proceedings. The low level of jurisdiction in the Circuit Court means that very modest actions must, in the absence of agreement between the parties, be taken in the High Court. Such cases are potentially the subject of appeal to the Supreme Court; this makes no sense in terms of the workload of the Superior Court and is a huge burden on litigants in terms of costs. This change will update the limits along the lines of the increase in the Consumer Price Index in the 22 years which have elapsed since 1991.
The purpose of these new jurisdictional limits is to ensure that the level of court that hears a case is appropriate to the potential value of a case and that the costs are not disproportionately high. As you will be aware, it is estimated that, on average, the legal costs of taking a case in the Circuit Court, subject to the complexity of the case, are 30% less than in the High Court. In the current financial climate, I am taking all necessary steps to reduce the level of legal costs that can act as a barrier to the citizen in seeking redress before the courts. An appropriate increase in the jurisdiction levels is long overdue to ensure that courts are dealing with the cases at an appropriate level and that the costs being incurred by the parties are at a reasonable level.
The new general limit for the Circuit Court will be €75,000 and €15,000 in the District Court. The reason why no action has been taken to address this issue to date relates to a concern that increasing the limit of the Circuit Court to €100,000 as provided for in the Court and Court officers Act 2002 would have an inflationary increase on personal injury awards in the Circuit Court and a consequential inflationary effect on insurance claims. Taking account of this, I have decided to set a lower jurisdiction limit in the Circuit Court for personal injury proceedings. I am setting the level at €60,000 which is of course 40% less than the equivalent level set by the Court and Court Officers Act eleven years ago.
The increases will be brought into effect following enactment of the Courts Bill 2013. Subject to consultation with the Presidents of the Circuit and District Courts, it is my intention to commence this part during the summer vacation so that court offices have time to make the necessary adjustments.
I believe that the increased jurisdiction limits will prove to be a fairer and more cost-efficient approach to the processing of civil proceedings by the courts. The proposed changes to the jurisdiction limits of the Circuit and District Courts should ultimately lead to a reduction in the burden of legal costs for individuals
and companies involved in litigation. It is crucial that parties involved in legal conflict do not incur more legal costs than are necessary in circumstances in which they have to resort to litigation.
It is also important that our court jurisdictions keep substantially in line with inflation and that our higher courts are not unnecessarily overburdened with appeals that could and should be properly dealt with at a lower level. The extension in the jurisdiction of the District Court will result in a portion of litigation at present undertaken in the Circuit Court in the future being dealt with at District Court level. The changes will also result in a proportion of litigation currently being conducted in the High Court in the future being dealt with at Circuit Court level. Over time, this should effect a reduction in the number of appeals that have to be dealt with by our Supreme Court.
I am not indifferent to some concern about the capacity of the Circuit and District Courts to cope with the increased volume. However, the introduction of combined offices at District and Circuit Court level together with efficiency measures introduced by the Presidents of the District and Circuit courts and the forthcoming development by the Courts Service of an online case processing system to deal with debt claims, should assist in managing the change and I will keep the situation under review. I am also aware that practitioners are concerned about the level of District Court scale fees which are related to the jurisdiction limits and fixed by Rule of Court. As you will be aware, this is a matter which must be considered in the first instance by the District Court Rules Committee which will then recommend to me any changes they consider appropriate. It will be incumbent on the Law Society to approach this issue via the Rules Committee in a reasonable and constructive way. For my part, I will consider a proposal for reasonable increases which are submitted to me in this context, bearing in mind these new Court Rules will have to be settled and in place at the earliest opportunity following commencement.
Land and Conveyancing Law Reform Bill 2013
The issue of repossession is much in the news. Home repossessions must, of course be a last resort. Financial institutions must engage constructively with home owners in arrears and provide them with full information on the options available to them. The Land and Conveyancing Law Reform Bill 2013 commenced its Second stage debate in Dáil Éireann on 30 April. The key purpose of this Bill is to restore our law on aspects of repossession to where it was intended to be under the 2009 legislation. As you know, the High Court, in the case of “Start Mortgages v. Gunn…” in 2011, decided that the law is now not as it was intended to be in the 2009 Land and Conveyancing Law Reform Act. This interpretation has led to some doubt regarding the availability of the intended legal repossession remedies. This must be corrected so as to provide full legal certainty in relation to the repossession rights of lenders when there is a serious default by the borrower.
The Bill, however, requires that, in any future repossession proceedings concerning a borrower’s principal residence, the court may adjourn the proceedings so that a Personal Insolvency Arrangement may be explored as an alternative to repossession. This protective measure is of great importance to mortgage holders struggling under the burden of unsustainable debt. Lending institutions will not be allowed to proceed directly to the repossession stage without first engaging in good faith in the alternative measures provided for in the Personal Insolvency Act 2012.
I believe that it should be acknowledged that a radical reform of our insolvency laws has been accomplished in a very short time. That reform is legally complex and introduces new concepts on debt resolution with minimum court involvement to Irish law. Of course, we have had the usual complaints from those commentators – with little real knowledge or understanding in this area – who claim the reform could have been done quicker. It could not and indeed I expect that the new law and the procedures involved will take time to bed down in operation. It seeks to balance the legitimate interests and expectations and to promote negotiated resolutions between debtors and creditors. Such will, I expect, lead to acceptable and sustainable outcomes. We must recognise the reality that in a number of cases, the outcome will have to provide for a debt write down as part of the range of solutions. And this will be of substantial assistance in facilitating home owners with unsustainable debt retain their family home. Where any omissions or deficiencies become apparent in operation of the law, I will act quickly to remedy them.
The Government is not in a position, as some have demanded, to force outcomes on both debtors and creditors. Such an approach would invite Constitutional challenge. We can facilitate and encourage agreed and sustainable outcomes to the problems of indebtedness.
The Personal Insolvency Act 2012 is one of the key elements of the Government’s strategy to return this country to stability and economic growth. Its success will depend on the goodwill and determination of both debtors and creditors to agree workable arrangements that can be sustained over a number of years to a successful outcome. The connectivity between it and the Land and Conveyancing Bill should ensure that, where a Personal Insolvency Arrangement is a feasible and fair alternative to a family home being the subject of a possession order, that alternative is fully and properly explored.
EU Insolvency Regulation
As well as our domestic reform efforts, Ireland is also leading the drive for reform of EU law regulating cross-border insolvency proceedings. The current EU Insolvency Regulation of 2000 provides a framework for determining in which Member State insolvency proceedings should be commenced where a debtor has assets or creditors in more than one Member State. It also provides for EU-wide recognition of those proceedings.
The European Commission published the proposed EU Insolvency Measure in December last and I was pleased to facilitate the first discussion between EU Justice Ministers and the Commission on the revised Regulation at the informal Justice and Home Affairs Council meeting held in Dublin on 18 January last that I chaired. This new Regulation reflects a high political priority at European level to take measures aimed at creating sustainable growth and prosperity. It is designed to further streamline cross-border insolvency proceedings, whether they apply to a single company, several companies as a group, or a natural person whether they are engaged in trade or professional activity or as a consumer. A major new focus is that it seeks to facilitate a move away from a traditional liquidation approach to insolvency to a “second chance approachâ � for viable businesses and “honest” entrepreneurs in financial difficulties when cross-border insolvency proceedings are involved.
The revised Regulation will clarify the Centre of Main Interest (COMI) test, to reflect European Court of Justice judgments relating to the opening of insolvency proceedings where the COMI of the debtor may be in contention. The court requested to open the insolvency proceedings will be required to examine the COMI of the debtor and specify the ground on which its jurisdiction is decided. The court must satisfy itself that the provisions in its national law have been fully observed. Creditors from other Member States will have a right to challenge the court ’s decision.
Legal Services Regulation Bill
Detailed preparation of the Legal Services Regulation Bill is ongoing at my Department in conjunction with the Offices of the Attorney General and of Parliamentary Counsel - Committee Stage is now due to take place from 10-12 July and I would like to express my appreciation of the highly constructive engagement of the Law Society with the process of developing the Bill, including particularly in the development of its new complaints and disciplinary provisions.
The Society’s considered submissions on a broad range of issues of common interest have been extremely useful in developing a number of key amendments for Committee Stage. The text of these will be made available for consideration prior to the commencement of that Stage. I will, for example, be removing the need for ministerial approval for any Codes of Practice which the Legal Services Regulatory Authority proposes to apply to the legal profession and in other instances where, having reflected on the contents of the Bill, I see no benefit or public interest in maintaining a requirement for ministerial consent. I will also be bringing forward amendments to enhance and copper-fasten the independence of appointment of members of the Legal Services Regulatory Authority by means of nominating bodies. The Law Society and Bar Council are, of course, already named nominating bodies for the appointment of solicitors and barristers to the new Authority which will also include lay members. In a similar vein, I will be enhancing the modalities of appointment of members to the Complaints Committee and of the Legal Practitioners�€ ™ Disciplinary Tribunal. I also intend to bring forward an amendment to stagger the appointment of members of the Authority to ensure its continuity and minimise the scope for external interference by a wholesale reconfiguration. Taken together, these amendments will put to rest previously voiced concerns about the independence of
the new regulatory regime and its immunity to any meddling by Government.
Further enhancements will be made to the way in which complaints will be dealt with by the Authority, the Complaints Committee and the Disciplinary Tribunal, including a number which will give more balanced emphasis to the informal or alternative resolution of complaints and front-load that option. This is a direct response to the Law Society’s concern that these be iterated in the Bill to avoid uncertainty and to better reflect elements of current best practice. It is important that these informal and alternative dispute mechanisms be clearly available where appropriate alongside the more formal and costly procedures of the Complaints Committee and the Disciplinary Tribunal which might otherwise come into play. I am also giving active consideration to the Law Society’s varied proposals for the introduction of limited liability partnerships and it is my intention that provision for such partnerships will be made in the Bill upon enactment.
The Judicial Council Bill
Alongside the positive dynamic of reform in relation to the courts and the legal professions, there is a similar dynamic at play in relation to the Judicial Council Bill. As well as providing for the establishment of a permanent, independent, Judicial Council and Board 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 while also creating a modern, positive and transparent context within which the judiciary, in the independent discharge of their functions, and the public, can have a more positive engagement - including in relation to any matters of conduct that may, from time to time, arise.
I would prefer if progress had been speedier but reasonably steady progress has been made on this Bill since November 2011, when the Chief Justice announced the establishment of an Interim Judicial Council. A sub-committee of the Board of the Interim Judicial Council was tasked with considering the General Scheme for a Judicial Council Bill and the observations of the subcommittee were conveyed to me by the Chief Justice in May 2012. These observations were duly considered in my Department taking account of intervening developments and of current Government policy. Following this consideration, I conveyed the relevant drafting instructions to the Attorney General last November. Work on the drafting of the new Bill continues, therefore, in conjunction with the Offices of the Attorney General and of Parliamentary Counsel. I very much appreciate the ongoing support being given to this initiative by the Chief Justice and her judicial colleagues and that of the Attorney General. Publication of the Bill will take place later this year.
The absence of a statutory Judicial Council and the formal engagement that the Council will facilitate between the Government and the Judiciary and the Judiciary and the general public has, I think, been a factor in the tensions that recently emerged rather unexpectedly, given that ongoing informal relations have continued in a constructive fashion since my appointment two years ago. The new Supreme Court posts and the approval to hold a Referendum on a Court of Appeal are but two concrete results flowing from the very positive engagement between the Chief Justice and myself on behalf of the Government. But these are times of change and a lot remains to be done.
Judicial Independence
I was struck by a recent Irish Times article by Anthony Jordan in which he drew comparisons between current events and the opposition of the judiciary to the proposals in the earliest days of the State when the then President of the Executive Council, WT Cosgrave, had the somewhat familiar objective of achieving “provision for expeditious and economical disposal of legal business”. An original Courts of Justice Bill 1923 lapsed following protracted opposition in the Senate and, when reintroduced, took on board the recommendations of a Judiciary Committee. However, the Bill was still subject to extensive amendment in the Senate and finally enacted as the Courts of Justice Act 1924 with which we are all familiar today.
So it seems that there being some issues in dispute between the Executive and the Judiciary is nothing new and can be expected in times of change when now, just as in the 1920s, the country is struggling to regain its independence and develop our economy on a sound footing. I would hope, however, that any tensions that arise can always be resolved by constructive dialogue and engagement which should always be conducted with respect on all sides for the separation of powers and a full understanding of the crucial constitutional roles played by the Legislature, Executive and Judiciary. Care should be taken not to make exaggerated claims which could cause damage to the State’s reputation and undermine both domestic and international confidence in the independence of our courts and the integrity of our judiciary.
The Legislature, the Executive and the Judiciary must each recognise that the other has Constitutional responsibilities to uphold. For judges, this is the administration of justice which is uniquely concerned with the hearing and determination of all cases that come before the courts. This, crucially, is the exclusive constitutional responsibility of an independent judiciary. 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 in our constitutional democracy. Interestingly, the World Economic Forum in a recent report published surveying 140 states globally, rated the Irish judicial system as fourth in the world in the context of confidence in its independent decision making process.
For the Government’s part, our obligation is to put the economy back on track and ensure that all the institutions of the State are in a position to carry out their functions in the most economical, effective and efficient manner possible. Whilst Government must never interfere with the hearing of or determination of court cases, it is ultimately the Government that must respond on behalf of the State when complaints are made against the State to the European Court of Human Rights in Strasburg alleging that judicial delays in the determination of court cases have resulted in the State violating the European Convention of Human Rights and Fundamental Freedoms. It is the State, and ultimately taxpayers, who meet the expense of legal costs incurred and damages awarded in such litigation. The Government as the Executive, accordingly, has the responsibility to take whatever action is open to it to address such difficulties, to ensure citizens’ rights are protected and to ensure that reputational damage is not done to the State. Accordingly, the Executive has both an interest and a responsibility to ensure that administrative tasks and issues that relate to the functioning of the courts are addressed and is responsible to the Legislature for its action or inaction in this area.
In recent times some attempt has been made to apply the definition of judicial independence more widely to areas to which the judiciary themselves have not applied it in litigation before our courts and, certainly, more widely than it is applied in other jurisdictions in which the independent decision making responsibilities of the judiciary are sacrosanct. In the context of the role of the Executive and the Legislature, there are clear areas of responsibility relating to the functioning of our courts that have been exercised for many years without controversy. For example, legislative provision is made for the maximum number of judges who may be appointed to each of our courts and for the eligibility criteria for such appointments. The Judicial Appointments Advisory Board is established under legislation for the receipt of applications by those who seek judicial appointment and, under its statutory provisions, makes recommendation to Government as to individuals suitable for such appointment. Many Courts Acts have, over the years, prescribed the individual jurisdictional competences of our courts in dealing with criminal prosecutions and civil law disputes and, by doing so, have impacted on the number and type of cases that arise for determination within each of the levels of our court structure. It is important that the concept of judicial independence or “judicial power” is not interpreted or extended in a manner that seeks to prevent either the Executive or the Legislature exercising functions that fall within its constitutional responsibility and that a grey area is not created in which there is no accountability to Parliament for administrative matters unconnected with the independent hearing and determination of justiciable issues. It is, and has to be, a concern of Government and of Parliament that courts operate in a cost effective manner, that substantial delay does not occur in the hearing of court proceeding and that courts sit annually for a minimum number of days.
The definition of judicial independence has been interpreted more widely by some in this jurisdiction than it has been in our nearest neighbour with whom we share many of our legal traditions. The learned discussion on Judicial Function and Independence contained in the most recent edition of Kelly’s Irish Constitution, together with the discussion on Separation of Powers, provides no support for an absolutist
broadened definition for application of judicial independence or judicial power which excludes the Executive or Legislature from acting in the public interest to ensure that courts operate efficiently and cost effectively, for example, in the context of court sitting days or by perhaps prescribing or varying court vacation arrangements. While these are matters that the judiciary can and indeed have addressed themselves neither the Executive nor Legislature is precluded from doing so.
Unfortunately, some recent controversy arose with regard to vacation entitlements of the shortly to be appointed specialist judges of the Circuit Court to deal with insolvency matters. It was suggested that the Minister for Justice being in a position to prescribe, by statute, the length of vacations of specialist judges, was in some way interfering with judicial independence. Apparently it was not noticed that, with regard to District Judges, this power has vested without controversy in the Minister for Justice for decades and it surely can not be the case that members of the judiciary would be entitled to take any vacation periods they deem appropriate without any measure of accountability for doing so.
I think it is reasonable that we reflect on the nature and length of the vacation periods which largely reflect an approach taken in the courts for over two centuries. In this context, I want to welcome the recent announcement made by the President of the High Court that an additional five Judges of the High Court will sit during the September vacation period to deal with a wide range of areas. I am particularly conscious, as a former practicing lawyer, that throughout the various court vacation periods there are always on duty some members of the High Court to deal with emergency and urgent matters and that the Supreme Court has sat on several occasions during vacation in recent years, though this is not fully understood by the general public. Neither is the onerous, painstaking and generally “invisible” work of researching and preparing judgments in the High and Supreme Court fully appreciated.
I hope I will not be misunderstood and there will not be a suggestion of some new controversy if I merely raise the question of the appropriateness in this day and age of a court vacation period which at least formally incorporates the entirety of August and September and of the additional Whit vacation period that interrupts court sittings for 8 working days between the Easter and the Long vacation. As these vacation arrangements have existed since at least the 19th century, my reference to them should not be seen in any way as a criticism of our judiciary but I do believe it is legitimate to ask questions in today’s world. As Minister for Justice and as a Member of Government, both in the interests of citizens and all who reside in the State and in seeking to safeguard the State from further proceedings being taken in the European Court of Human Rights such as mentioned earlier, I have an obligation to do what is possible within my remit to ensure that we have an efficient and cost effective court system that facilitates the determination of cases of both a civil and criminal nature, without undue delay, in the interests of all of those who find themselves before our courts. This should not be misinterpreted to suggest that Government or Parliament is in any way entitled to interfere in the hearing and determination of cases before our courts.
Judicial Appointments
I noted with interest the recent considered comments of Judge Frank Clarke with regard to a new structure with responsibility for judicial pay, complaints and appointments. The development of a new system of judicial appointments is something I have been considering carefully. My own view, having had the experience over the past two years of observing the JAAB system in action, is that it is very much of its time and we could do better. I should be clear that this is not a criticism of the Judicial Appointments Board itself, they merely operate within the legislative framework they are given and the candidates for judicial office are without doubt of a very high calibre. But there is certainly scope for a much more transparent and accountable system which could promote more diversity in our judiciary and serve to uphold the very high opinion in which the Irish people hold the judiciary.
I would like to encourage public debate on statutory changes that should be considered in the public interest with regard to the appointment of members of the judiciary. I do believe that it is important that in any change that may be effected that there is ultimately retained an accountability to Parliament for appointments made and that the selection of judges cannot become the exclusive domain of an unaccountable body. It should also remain the constitutional position that members of the judiciary are appointed by Government. I do believe, however, 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 but also engages the broader public. In this discussion, I believe we should think outside the box. For example, 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. Both 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. It is worth asking the question is it acceptable in this day and age that no such courses exist and that essentially judicial studies are only available to members of the judiciary after their appointment? I want to emphasise I am expressing no personal view, I am merely raising these questions as food for thought.
Can I thank you all for your attention and hope you enjoy the remainder of your conference and the wonderful surroundings here in Kerry.
Thank you.