Dáil Éireann - Volume 446 - 02 November, 1994

Courts and Court Officers Bill, 1994: Second Stage.

Minister for Justice (Mrs. Geoghegan-Quinn): I move: “That the Bill be now read a Second Time”.

The Bill contains a number of wideranging and significant reforms of the legal system, which is a central part of our democratic society. The operation of the entire legal system impacts, often profoundly, on the lives of our citizens. Key elements of that system — the courts and judicial structures — have served this country very well. However, modern demands and pressures on the system have pointed up the need to reshape the courts structure and to change our approach to some aspects of the judicial system.

The reforms that I am introducing in this Bill cover three broad areas of the [1382] legal system: the courts, the Judiciary and legal costs. In the courts area the first of two major provisions represents something of an innovation in the development of our courts structure. A new Court of Appeal with both criminal and civil jurisdiction is to be established. This meets the commitment in the Programme for Government to ease the workload of the Supreme Court and improve access to it.

The background to this is the substantial increase in appeals to the Supreme Court in recent years and the inevitable delay in hearing those appeals which has resulted. Appeals against High Court decisions in personal injuries actions account for much of this increase and are often subject to most delay because of the urgent nature of other types of appeals, for example, in constitutional cases. Delays of this nature may result in a considerable injustice on litigants and I am anxious to avoid unnecessary delays in hearing cases.

I am satisfied that the new court, staffed by three full-time judges with jurisdiction to hear appeals against High Court decisions in personal injuries actions and in certain other matters is the right response to the appeals backlog. It will allow the Supreme Court to concentrate to a greater extent on constitutional matters and appeals on other important questions of law, which is more in keeping with its status as a court of final appeal as provided in the Constitution. The new court will also incorporate the existing jurisdiction of the Court of Criminal Appeal. I will come back to the structure and functions of the new court later in my speech.

The second major development in the courts area relates to the Judicial Commission. In the Programme for a Partnership Government we included an undertaking to establish a Judicial Commission. The Courts and Court Officers Bill has given me the opportunity to make provision for setting up a Judicial Commission. Section 29 will empower [1383] the Minister for Justice to set up such a commission to be known as the Courts Commission. The commission, in accordance with this section, will be established, on a statutory basis. It will become a permanent feature on the landscape in so far as the administration of justice through the courts system is concerned.

The purpose of the commission will be to advise the Minister and the Government on the organisation and management of the courts and courts service and on such other matters which, in the opinion of the Minister or the Commission, have a bearing on the capacity of the courts to discharge their functions.

The administration of our justice system has undergone rapid change in the last 30 or so years. As a result more people are now using the courts. We have more judges, courts staff, solicitors and barristers than at any other time.

Regrettably, many aspects of our courts system have not kept pace with these changes and, consequently, many of those people who have had to use or work in our courts have not, for one reason or another, been able to do so in ideal conditions. Some court users may have had difficulty in gaining access to the courts; others may have experienced unfriendliness in the courts; others may have found the condition of the courthouse accommodation totally unacceptable, while others may have found recourse to the courts grossly expensive.

Major reform of the law governing the organisation and structure of the courts is long overdue. While the proposed Bill is a big step in the direction of major reform, there is also a need for an overall review of the existing system. I consider that the establishment of the proposed Courts Commission is the best way to achieve this.

To be effective, the commission must have an input not only from judges at senior level and from lawyers but also from non-lawyers who have expertise in other relevant fields. I am thinking of [1384] people with experience and expertise in the world of business, management, administration, finance, people with knowledge of consumer requirements and so on. While it would not be possible to create, at one stroke, a commission which would represent all the interests that we might consider desirable — if the commission is too large it will not function effectively — I will be looking to the kind of interests and expertise I have just mentioned when it comes to the initial appointments. I say “initial appointments” because, in general, it would be desirable to allow up for change in commission membership from time to time so that different kinds of expertise can be brought in as and when required. I will make an announcement in the near future concerning terms of reference and membership of the commission.

There is, as I said before, a need for an overall review of the existing system which would examine current practices and procedures, find ways to maximise the use of our resources and devise an overall strategy and approach to achieve a modern and efficient system for the administration of justice. I consider that the proposed Courts Commission should be given the task of advising me and the Government as to how these objectives might be met and that the commission should reflect the views of the various people who work in the courts or who have recourse to the courts on a regular basis.

In this regard, the question of establishing a permanent independent courts service operating outside the aegis of the Department of Justice is one issue which the commission will be asked to address. I and my Department would welcome consideration of this issue by the commission.

In addressing the question of establishing a permanent independent courts service, the commission will have to have regard to whether such an institutional change in the arrangements of our courts system would best serve all users of the courts effectively, efficiently and inexpensively. The Government [1385] and I look forward to its views on this and other important areas of the courts administration.

I now come to the second broad area of reform. This relates to the Judiciary. Part III provides for setting up a Judicial Appointments Advisory Board. Firstly let me say that certain basic principles underlying the procedure for the appointment of judges cannot be affected, for constitutional reasons, by the new arrangements to be put in place. The Government will continue to decide the names of persons to be forwarded to the President for judicial appointment in accordance with Article 35.1 of Bunreacht na hÉireann. As a Parliament, however, we can move towards introducing new and more transparent procedures leading up to the appointment of a person to fill a judicial office.

We should acknowledge that the present system for selecting persons for appointment to judicial office has served us well. As a people we have been fortunate to have a Judiciary which is respected for its integrity, fairness and independence. These facts, however, do not mean that the system for appointing judges is immune from criticism of the manner in which it operates. It may be inevitable that the system is open to criticism as it is a procedure reserved thus far exclusively to the Government, without any clear accompanying statutory or other guidelines as to how the system should operate.

It will be the task of the Judicial Appointments Advisory Board, which will consist of senior members of the Judiciary, the Chairman of the Bar Council and the President of the Law Society, to advise me and the Government, through its committees, of the names of persons suitable for appointment as judges. I might add that I have no fixed view about the precise makeup of the board, and I would be interested to hear the views of Deputies in this regard.

While the advice of the Advisory Board will not and cannot be binding on [1386] the Government, because of the provisions of the Constitution, nevertheless it is expressly provided in the Bill that the Government shall first have regard to the names submitted in advising the President on the appointment of a judge. That is a significant direction to Government and highlights the pivotal role that I expect the new board and its committees to play. No Government could lightly ignore a recommendation made to it by a committee of the board.

The board's remit will not extend to appointments to the offices of the Chief Justice or Presidents of the other courts. This exception is desirable because the Government, in considering appointments to these top judicial offices will want, among other things, to ensure continuity and consistency in the running and operation of various courts. That is why I have provided in the Bill that the Government would have to first have regard to the suitability of serving judges when appointing persons to fill these offices.

The next major change that I want to refer to affecting the Judiciary is the lowering of the retirement age of judges. This will only affect judges newly appointed after the enactment of the Bill. Therefore, the retirement age for serving judges remains at 72 years in the High and Supreme Court, 70 years in the Circuit Court and 65 in the District Court with provision for annual extensions up to age 70 for District Court judges. It would, of course, be completely unacceptable, and not just for legal reasons, to interfere with the terms of service of existing judges.

However, for some time, I have been considering why the retirement ages of the Judiciary should be any different from the position that applies generally across the public and private sectors. One effect of the higher retirement ages for the Judiciary is that the age profile of the Judiciary as a whole tends to be high. Obviously the appointment of younger judges would result in a younger age profile among our judges in the short term but ultimately could be guaranteed only by aligning the [1387] retirement age of judges more closely with the “norm” of 65 years.

However, it has been represented to me that senior judges in all courts would have valuable experience and insights that should not be lost through too restrictive an approach to this issue. Therefore, I am considering whether the proposed retirement age should be set at a higher level than 65 years as provided at present in the Bill. I look forward to hearing the views of Deputies on this matter.

Another key provision of this Bill in regard to the Judiciary is contained in section 39. The effect of this provision is to make solicitors of ten years standing eligible for appointment as Circuit Court judges. At present solicitors are eligible only for appointment as judges of the District Court. I see no good reason a practising solicitor of ten years standing should not be eligible for appointment at least as a Circuit Court judge. It has been suggested that solicitors lack experience of advocacy and experience in the conduct of cases in that court but many solicitors possess highly relevant and desirable qualifications based on their experience as practitioners.

The Fair Trade Commission in its report on the legal profession published in 1990 said: “It is arguable that the adversarial system of justice requires that judges should preferably be recruited from the ranks of experienced advocates”. It found that experience of court practice and procedure as well as of the law is probably more important than advocacy skills. We should take a wider view of what makes a lawyer eligible, in terms of qualifications, for judicial appointment. Experience of advocacy may be an important factor in determining whether a person is suitable for appointment as a judge, but I question whether it should be the primary factor taken into account.

The legal system itself will be the clear winner as a result of this provision because it will increase the pool of potential candidates for appointments [1388] to the Circuit Court. There is the prospect of a spin-off benefit too. The appearance of solicitor-judges on the Circuit Court bench is likely to encourage the solicitors' profession to exercise its rights of audience in the Circuit Court. Apparently it has been reluctant to do this up to now although there are a few notable exceptions.

The Fair Trade Commission believed that the presence of former solicitors as judges would encourage more solicitors to engage in advocacy, since they may well be inhibited from exercising their rights of audience at present because judges in the Circuit Court and higher courts are former barristers. The Fair Trade Commission also stated that more use by solicitors of their rights of audience would give the public more choice and could reduce legal costs.

On a separate issue in relation to judicial appointments, I formed the view some time ago that it was anomalous that service by judges on European Courts counted for nothing in terms of eligibility for appointment to our superior courts. Therefore, I have included in section 20 of the Bill a provision whereby service as a judge of the European Court of Justice or the European Court of First Instance shall be reckonable for the purpose of qualifying for appointment as a judge of the superior courts. The basic eligibility requirement for appointment to the High and Supreme Courts under the Courts (Supplemental Provisions) Act, 1961, is 12 years practice at the Bar. The device used in the Bill to take account of service in these European Courts is that such service will be deemed to be practice at the Bar.

I now come to the issue of court dress. I expect that many Deputies will give a wholehearted welcome to my initiative on banning the wearing of wigs by barristers in court.

Mr. G. Mitchell: The wigs will not only be on the green, they will be on the bonfire.

[1389] Mrs. Geoghegan-Quinn: Many barristers favour the retention of the wig on the grounds that it makes them gender and age neutral in presenting cases in court. However, I do not believe that this argument stands up to much scrutiny. I question whether it is necessary that barristers should have to disguise their age and sex to this extent when appearing in court. Legislation has already been introduced in the area of court dress. The wearing of wigs and gowns by judges, barristers and solicitors in all family law proceedings in the District, Circuit and High Courts was prohibited under the Judicial Separation and Family Law Reform Act, 1989.

Section 13 of the Criminal Evidence Act, 1992 provides that neither the judge, barrister or solicitor concern in the examination of a witness by way of television link in certain proceedings, including a sexual offence, shall wear a wig or gown. The purpose of these provisions was to ensure that these proceedings were more informal and I am satisfied with the effect of those changes.

I might again refer to the report of the Fair Trade Commission. They did not believe that the wearing of wigs in particular added to the formality and the solemnity of the court, rather the reverse, they considered them to be anachronistic, unnecessary and possibly intimidatory. The commission went on to say that it would be a sensible move towards a more modern profession if barristers no longer wore wigs. It is my view that the practice of the wearing of wigs by barristers in court would be incongruous in the modern courts and judicial system that I have in mind in the context of this Bill.

I would like to move on now to those provisions of the Bill concerning certain court officers. Many of the changes that I am proposing in this area are aimed at reducing legal costs as provided for in the Programme for Government. The two Taxing Masters of the High Court have the task of determining the costs which a successful party in an action [1390] may recover from another party—— “party and party” costs, the costs payable by a client to a solicitor, solicitor and client costs — where these have not been agreed. They have a vital role in adjudicating on fees and costs claimed by counsel and solicitors. A decision by a Taxing Master is reviewable by the High Court, on the application of any party who is dissatisfied with the costs allowed. The powers of the Taxing Masters have been the subject of review and consideration by the courts over a number of years. The decisions of the courts in several cases indicate that the current powers of the Taxing Masters to disallow fees of counsel and solicitors in respect of High and Supreme Court actions are more limited than I consider desirable in current circumstances.

I am seriously concerned that the public interest is not being served by the current limits on the powers of the Taxing Masters to disallow fees charged by counsel, solicitors or expert and professional witnesses which the Taxing Masters considered to be excessive. The costs of litigation impact on the ordinary citizen. The Taxing Masters do not have sufficient powers to measure and determine legal costs in the High and Supreme Courts and this has implications for the cost of litigation. It is essential that sufficient powers are vested in the Taxing Masters to enable them to disallow excessive fees charged by counsel, solicitors or expert professional witnesses.

Under the provisions of section 36 of the Bill, the Taxing Masters will be empowered to measure and value the work done by solicitors or counsel and to allow any charge or expense which they consider in their discretion to be fair and reasonable. There is a number of other important provisions in this section such as requiring a party who claims costs to pay the costs of taxation where the Taxing Master taxes off more than one-sixth of a “party and party” bill of costs. At present the “one-sixth rule”, as it is known, only applies to solicitor and client taxations. This provision was among the recommendations [1391] made by the working party established by the Attorney General on increased efficiency and reduction in costs in High Court personal injury actions. I will be speaking in a moment about other recommendations made by that working party.

I should add that the new powers being given to the Taxing Masters will also extend to “party and party” taxations in the Circuit Court, which are carried out by county registrars, who are vested with all the powers of Taxing Masters of the High Court for that purpose.

Turning to the Master of the High Court, I am proposing to increase the Master's jurisdiction to enable him or her to deal with a range of applications that at present must be dealt with by High Court judges. Section 32 of the Bill confers on the Master of the High Court the powers of a judge of the High Court in relation to High Court applications allocated for hearing by him or her by the President of the High Court. I am convinced that this will help streamline High Court proceedings by freeing up the time spent by High Court judges in dealing with these applications.

Under section 22 of the Courts Acts, 1981, a judge may order the payment of interest on damages awarded to a litigant. The Master of the High Court and other court officers have the competence in specified cases to order payment of moneys. However, the High Court has ruled that the discretion to order the payment of interest is not vested in court officers at present. This means that a plaintiff who seeks an award of interest on foot of an order by a court for the principal sum must apply separately to a judge at additional cost. To my mind this is not acceptable and certainly was not what was intended in framing the Courts Act, 1981. The purpose of section 35, therefore, is to provide that the Master of the High Court and other court officers can order payment of interest where an order for the payment of the principal sum comes [1392] within their competence. The Bill also makes provision for appeals in relation to these new powers.

Section 35 also provides that interest on legal costs will become payable from the time the costs are taxed, or are agreed between the parties, whichever is the earlier. This is a move away from the existing position, decided by the Supreme Court in 1988, whereby interest on costs awarded by a court are payable from the date of the court judgment. Where costs are not agreed or are not agreed for some time, it seems to me that calculation of interest with reference to the date of judgment is inappropriate. I am satisfied that a fairer reference is from the time of taxation or agreement of costs.

I am proposing in section 37 to confer on the Superior Courts Rules Committee the power to make rules requiring the disclosure of experts' reports in High Court personal injuries actions without having to apply to court. The idea is to speed up these actions and to reduce costs. The background to this provision is that in 1991 the then Attorney General established a working party on increased efficiency and reduction in costs in High Court personal injury actions. The working party was comprised of representatives of the Bar Council, the Law Society and the Irish Insurance Federation. The working party made a number of recommendations and it has been possible to incorporate some of these in the Bill.

One of the principal recommendations of the working party was that provision should be made obliging litigants to make disclosure to other parties to a personal injury action of information, sources of evidence and expert opinion in relation to their case. Section 37 of the Bill empowers the Superior Courts Rules Committee to make rules of court requiring disclosure in personal injuries actions of a report or statement from any expert intended to be called to give evidence of medical or paramedical opinion such as registered medical practitioners; a statement or report from any other expert of the evidence intended to [1393] be given by that expert; the names and addresses of any witnesses intended to be called to give evidence as to facts in a case; a full statement of all items of special damage claimed and a written statement from the Department of Social Welfare detailing all social welfare payments made to the plaintiff subsequent to an accident. These proposals, when implemented, should help to reduce the length of personal injuries actions in the High Court and thereby reduce costs.

Finally, and again in the area of costs, I will have a new residual power under section 43 of the Bill to make “party and party” costs rules. These are the costs paid by an unsuccessful litigant to a successful litigant. This enabling power could be used where a court rules-making body fails to make costs rules or where costs rules are submitted to me which I consider to be excessive. The powers of the Minister for Justice at present are limited to concurring or deciding not to concur, with rules made by a rules committee. Again the provisions of section 43 are aimed at reducing the level of legal costs. Deputies will agree that the provisions I have just outlined will establish a very firm basis for keeping legal costs to reasonable levels in the public interest.

I want to return to deal in some more detail with the provisions of the Bill relating to the establishment of the Court of Appeal. In section 2 I am providing that the new court will be established on a day to be fixed by a Government order. I can assure Deputies that there will be no avoidable delay in the establishment of the new court but time will be necessary to get the new structure up and running.

Section 3 provides for the designation by the Government of an ordinary judge of the High Court to be President of the Court of Appeal and the designation by the Chief Justice of two ordinary judges of the High Court to be ordinary judges of the Court of Appeal. Therefore, the provision ensures that the judges of the new court will have a constitutional status. One effect of this [1394] arrangement is that existing statutory provisions relating to High Court judges will automatically apply to the judges of the Court of Appeal.

Section 4 provides for the jurisdiction of the Court of Appeal. Appeals against High Court decisions in personal injuries actions will take up much of the time of the new court, but its jurisdiction will also include appeals against decisions of the High Court in relation to ex parte motions and other applications, except in judicial review proceedings, as well as decisions on actions under specific enactments such as the Consumer Information Act, 1978. The jurisdiction of the Supreme Court to hear appeals in these matters is being transferred to the new court. However, the Court of Appeal will have no role in appeals where they involve a question of validity of any law having regard to the provisions of the Constitution. Such appeals shall continue to lie to the Supreme Court.

Earlier proposals to establish a new court envisaged a Court of Appeal with a purely civil jurisdiction. It has since been decided, I think wisely, to amalgamate the existing Court of Criminal Appeal with the new court to form a single, full-time court of appeal. There are a number of advantages in amalgamating the two appeal jurisdictions into one court. One clear advantage is that it gives us a simpler courts structure. Section 4, therefore, transfers the powers, jurisdiction and functions of the Court of Criminal Appeal to the new court.

The effect of section 15 is that the Superior Courts Rules Committee, with my concurrence, may make Rules of Court for carrying into effect the provisions of the Bill relating to the Court of Appeal. Such rules would relate to matters such as pleading, practice and procedure before the Court of Appeal.

Section 16 changes from three to four the number of ex-officio members of the Superior Courts Rules Committee and makes provision for the ex-officio membership of the Committee of the President of the Court of Appeal. The full [1395] complement of ex-officio members will be the Chief Justice who is chairman of the committee, the President of the High Court who is vice-chairman, the President of the Court of Appeal and the Master of the High Court.

Section 18 provides for the organisation of the Court of Appeal. It provides that the full court of three judges shall hear and determine matters before the court. Subsection (3) is similar to section 7 of the Courts of Justice Act, 1928. It provides for the hearing and determination of interlocutory applications by the President or by a judge of the court and is an exception to the requirement that the court shall sit as a court of three judges.

Section 19 increases the number of ordinary judges of the High Court from 16 to 19, three of whom will be designated to be judges of the Court of Appeal. This is not the only increase in numbers of judges that I will provide for in this legislation. I will move an amendment on Committee Stage to increase the maximum number of High Court judges, including the President of the High Court, from 20 to 22. I will also propose an increase in the maximum number of judges of the Circuit Court, including the President of that court, from 18 to 25. In addition, the maximum number of judges of the District Court, including the President of the District Court, will be increased from 46 to 51.

The appointment of additional judges will help to eliminate the delays being experienced in the hearing of criminal trials and family law cases and other civil actions in these courts.

Part III of the Bill deals with new procedures relating to the appointment of judges. Section 23 provides that the Judicial Appointments Advisory Board will consist of the Chief Justice, the President of the High Court, the President of the Court of Appeal, the President of the Circuit Court, the President of the District Court, the President of the Law Reform Commission, the Chairman of the Council of the Bar of [1396] Ireland and the President of the Incorporated Law Society of Ireland. I have an open mind as to the appropriateness of the proposed composition of the board.

Section 24 provides that the board will perform its functions through committees. For considering persons suitable for appointment to the Supreme, Appeal and High Courts, there will be a committee consisting of all the members of the board, except the Presidents of the Circuit and District Courts. For considering persons suitable for appointment to the circuit Court, there will be a committee consisting of the President of the High Court, the President of the Circuit Court, the Chairman of the Bar Council and the President of the Law Society. In the case of appointments to the District Court the will be a committee consisting of the President of the High Court, the President of the Circuit Court, the Chairman of the Bar Council and the President of the Law Society. In the case of appointments to the District Court the committee will consist of the President of the District Court, the Chairman of the Bar Council and the President of the Law Society. This committee system is a very practical approach, one which, I feel sure will facilitate the work of the board.

Section 25 provides that where a judicial office is vacant the Minister shall request the relevant committee to submit to her-him the names of at least three and not more than five persons whom the committee believes are suitable for appointment and the reasons for that belief. The Government will be obliged first to have regard to the names of those persons in advising the President on the appointment of a judge. A committee may consult the Attorney General on the suitability of a person for judicial office.

Section 25 also prohibits a committee from submitting the name of a person to the Minister unless that person has completed such courses of education or training as the Minister may provide for in regulations, following consultation with the board.

There should be provision for the further education and training of persons who wish to be appointed as judges. Many lawyers specialise in particular areas of the law and may not [1397] have the opportunity to keep up to date with developments in other branches of the law in which they have not specialised.

Section 25 will enable me to ensure that prospective appointees are sufficiently up to date with developments in the law before they are appointed. The training and education of lawyers understandably concentrates on a study of the law. However, in practice we require our judges to have more than an excellent understanding of the law. We expect them to be compassionate, understanding and to appreciate the practical problems people face daily in a complex society. We are fortunate that our Judiciary consists of persons with these qualities. However, there is a case for ensuring that prospective appointees to judicial office have a wider training and education than study of the law. This provision will give me statutory powers to require prospective appointees to undertake that wider training.

The Bill also provides that a person who wishes to be considered for appointment to judicial office or who wishes another person to be considered for appointment may inform the board in writing. A committee may not submit the name of a person to the Minister unless it is satisfied that the person satisfies the relevant statutory requirements and has displayed in his or her practice a degree of competence and probity consistent with the proposed appointment, is suitable on grounds of character and temperament and is suitable in all other respects.

The Courts and Court Officers Bill contains a wide range of reforming measures affecting many parts of the courts and judicial system. Society today, which these legal structures support, is undergoing rapid change. Ours is a modern and complex society which places many demands on those legal structures. It is right that these structures should be updated and reformed to reflect society's needs. If our legal structures, in particular our courts and judicial systems, stagnate we risk [1398] impeding the development of our society as a whole.

Therefore, we must look closely and critically at the structure and form of these systems. The Courts and Court Officers Bill is the result of such a review and introduces a number of vital structural and other changes which I am satisfied will greatly improve our courts and judicial systems.

I look forward to hearing the views of Deputies on the many and novel proposals in the Bill. I will be open to ideas from all sides of the House that would improve it. I commend the Bill to the House.

Mr. G. Mitchell: I hope the Minister will incorporate a number of my suggestions in the Bill. One of its greatest weaknesses is that it lacks provision for accountability.

Dáil Éireann has slavishly allowed successive Governments to strike at the very heart of democracy by using the Whips system to ensure that the views of the Government, more particularly of a Minister or the Civil Service, prevail and that Parliament is no more than a rubber stamp. Accountability has become a thing of the past, with whole sections of Government having enormous power without accountability. Even Ministers who, under the Constitution, are accountable to Dáil Éireann have developed the habit of giving minimal, often misleading, information to the House by the clever use of words or the omission of detail. The House itself must put an end to this practice. We have the power to do so. I referred to this in my brief contribution to the debate on the formation of this Government.

The Office of the Ceann Comhairle must evolve, with or without the consent of the Government, into one which protects the basic rights of Members and the public. The Ceann Comhairle himself should lay down rules which, if broken, would amount to contempt of Parliament and which would be punished severely. The House should give legislative support to such rules. We [1399] have rules of court: why not rules of Parliament?

The provisions of this Bill add further to the total lack of accountability which attaches to the office of the Attorney General, the Director of Public Prosecutions and to the efficient, effective and economic administration of the courts as distinct from the judicial process itself within the courts. There are too many unaccountable, independent republics within this Republic. Being independent does not and must not mean being unaccountable.

The Fine Gael Judicial Appointments and Miscellaneous Provisions Bil, 1994 published by me on 6 October last contains many sections which have been incorporated in one shape or another in the Bill before us. However, three important sections of my Bill have been totally ignored, they are sections 14, 15 and 16. Section 14 of my Bill would require the Courts Commission to have an Accounting Officer who would be answerable to the Committee of Public Accounts for the value-for-money aspects of the work of the commission and for the efficient administration of the courts. He would also have to report to the Select Committee on Legislation and Security on the workings of the commission, that is to ensure that the laws laid down by the Legislature are being applied and that the appointment of judges and their training is being conducted in a proper manner.

There had been some suggestion that parliamentary committees might vet judicial appointments. On balance, this may have been too difficult a procedure to introduce but a requirement whereby a commission would report to the Select Committee on Legislation and Security on the way it goes about its work, and to the Committee of Public Accounts for the financial probity, has not been included in the provisions of this Bill. Furthermore, the Fine Gael proposal that each of the presidents of the courts should be given their budgets for which they would account to the commission has not been proceeded with.

[1400] Here again we see that any attempt to introduce accountability and transparency to Parliament is dealt another blow. What we are getting is a dictatorship of the courts administration system and the Department of Justice without any accountability whatsoever. We have no Attorney General to answer questions in this House. We have a courts administration system which will be supervised by the commission but no accounting officer to report to the Dáil. The Dáil should not allow this happen. We are the people who decide whether this goes through. It is time we dealt a blow to this whole approach to Government by ensuring that there are adequate and proper systems of parliamentary accountability.

A further illustration of this lack of accountability is to be found in the roles of the Attorney General and of the Director of Public Prosecutions. In Britain the Attorney General is a Member of Parliament and answers questions in the House of Commons, as we discovered yesterday, in relation to his own brief and, where applicable, to that of the Director of Public Prosecutions. No such facility exists here where the Director of Public Prosecutions can be responsible for a case being thrown out by the courts because a book of evidence repeatedly is not available to the court in a serious case involving manslaughter, and there is nobody to give an explanation. A newspaper reported recently that a judge had written to the Director of Public Prosecutions about a case, before its hearing, which the judge himself subsequently heard. Again, there is nobody to account to Parliament as to the propriety of these actions.

The Attorney General has had additional powers vested in him by the courts in the exercise of which he has been inconsistent and patchy. He has been zealous in his approach to the X case and that of Cabinet confidentiality but, in the case of an accused paedophile, subsequently found guilty, we find that an extradition request to Northern Ireland lay in his office for almost seven [1401] months without any action being taken on it. We are asked to believe that the Attorney General did not see or hear of this extradition request and that nobody in his office advised him of its existence. After all, there are officers in the office of the Attorney General, a small office. Whether the Attorney General was told about the request, or got to hear about it, in the words of one lawyer, it should have taken between three minutes and three days only to decide on the processing of these warrants.

There is something very unusual about a request to extradite a man on serious charges from the Attorney General in an adjoining jurisdiction, which was communicated to the office of the Attorney General here — this was confirmed by way of parliamentary question in the House of Commons yesterday — which was not acted on and, we are led to believe, not even brought to the attention of the Attorney General here who, under the 1987 Extradition Act, is personally responsible for ensuring that the legislation passed by this House is enacted.

Under the provisions of the 1987 Extradition Act all extradition warrants, political or not, should be seen and dealt with personally by the Attorney General. That is what the law requires. It is puzzling to have the House informed that this had been the first request since 1987. A particular form of words was used to give that impression, later used to justify the suggestion that this was a reference to a particular part of the Act. The British Attorney General told the House of Commons yesterday that his office had been in touch with the Attorney General's Office directly in the Northern Ireland paedophile extradition case. I believe strongly, and am confident the evidence I have shows that the Dáil was misled last week in reply to questions put by me. The Minister for Justice led the House to believe that the extradition request was somehow complicated, unique and therefore required time to consider.

[1402] An Ceann Comhairle: I hesitate to interrupt the Deputy but, as he and the House will be aware, I have sought consistently to protect individuals who are not Members of this House from serious allegations made against them under privilege of the House. I would ask the Deputy to remember my words on various occasions, that if serious charges are to be made against persons outside this House, or indeed in this House, it should not be done by way of innuendo across the floor of the House but rather by substantive motion. Therefore, I would ask the Deputy to refrain from any reflection on Ministers, or especially persons outside the House, because those people I seek to protect outside the House, have no redress against accusations made in this privileged Assembly.

Mr. G. Mitchell: I thank you, a Cheann Comhairle, for that most helpful intervention but I stand over every word I have said. My reference was to a reply to a parliamentary question in this House. If you mean, Sir, by substantive motion a motion which would be carried by the Opposition in this House against a Government with a huge majority, then nothing could be carried in this House. That is undemocratic and unacceptable. I have to say this, Sir, that you may seek to protect those people but I seek to protect children outside this House who were left exposed for seven months while a law officer of this State, and agents of Government, whose duty it is to protect them, took no action. I would put those concerns before anybody's ruling.

An Ceann Comhairle: The Chair is seeking merely to uphold long standing precedents and rules of this House, nothing more.

Mr. G. Mitchell: The Minister said also that the Attorney General was not personally aware, as he was required to be under the provisions of the 1987 Extradition Act, of the request. Given [1403] the reply to a parliamentary question in the House of Commons yesterday this information now also appears to be disingenuous since the British Attorney General stated that his office made a direct request to the Attorney General's office in the Republic of Ireland as early as 29 April last year. Therefore, it is insulting to Members of this House that we must depend on information given in a foreign Parliament and that Ministers here are pompously protected no matter how economic they are with the truth.

The following quotation is from an article by Liam Collins in the Sunday Independent of 30 October 1994:

“Under the 1987 Extradition Act, all warrants must be seen personally by the Attorney General unless he is sick or out of the country”, said one senior legal figure. “It is of the essence that, political or not, all warrants are personally vetted by him. In that context, what happened is absolutely astonishing.”

The article continues:

Another senior lawyer believes that the 1987 Extradition Act goes further than making the Attorney General personally responsible for dealing with extradition warrants.

“The Attorney General has to give a specific direction that the warrant is not to go ahead, and in the absence of a specific direction from the Attorney General's office, the warrant would then be processed by the gardaí”, the lawyer said. What this means is that he would actively have had to stop it. “The whole thing looks extraordinary to me”.

The Attorney General must make a statement on these matters and should be available to be questioned by Members of the House. Perhaps the best way to do this would be to require him to appear before the Select Committee on Legislation and Security. Last week a senior civil servant was wheeled [1404] out to be questioned by journalists. Why should the Attorney General not be questioned on grave matters of this kind?

We have missed a golden opportunity to introduce accountability for the Attorney General and the Director of Public Prosecutions in given circumstances where the public interest requires it. This Bill is the product of the most closed Department of State led by a Minister who has many skills but who puts no value on accountability and transparency. Why do we allow ourselves to be bullied? Surely it is time the Dáil had the courage to assert itself. What happened to the great Labour tradition under Brendan Corish and Frank Cluskey? This latest legislative chicanery will add fuel to the fire. There is a burning desire in the hearts of the people for greater accountability. It is time that became a fire in the hearts of Members of this House.

Judges themselves cannot escape criticism. There is no Lord Mackay in the Four Courts. The opposite appears to be the case. It has been suggested that the Government's efficiency unit has been denied access to the courts. It should be sent in at once. I understood we were to have 19 High Court judges and a new court of appeal. However, the Minister informed the House this morning that we are to have 22 High Court judges, an increase of six, 25 Circuit Court judges, an increase of seven, and 51 District Court judges, an increase of five, the total increase being 18. People criticise the number of legislators we have. Now, however, we have 103 judges, including the five Supreme Court judges. It is fine if there is justification for appointing 103 judges, but how are we to know there is justification when the Government efficiency unit is blocked by judges from going into the courts to find out if this burden on the taxpayer is necessary?

We have more High Court judges than Cabinet Ministers, and they have a difficult job to do. However, do they, and their colleagues in the lower courts, sit sufficient hours daily and [1405] sufficient days per year to justify an endless creation of more judges? I will put it in blunt terms that both the judges and the public will understand. Some judges and administrators have the system over a barrel; there will continue to be a backlog of cases until we appoint four judges. That is the way they operate and this is the main reason for the creation of more judges.

There has been no independent examination of the efficiency of court procedures. In the North there is an agency with its own chief executive responsible for the administration of the courts. The Bar Council and the Law Society have jointly recommended a similar agency for the Republic, again, resisted publicly by a leading judge. The administration of the courts has more to do with the Executive than with the judicial wing of Government, yet the Judiciary seems to believe they should have authority with no responsibility. The Bill makes no effort to tackle this matter although we in this House are charged with taking on vested interest wherever we find it. Without doubt the Judiciary have served this country well, but where we find the need for critical examination, democracy demands that we should have the courage to carry out that examination. Nowhere is this matter addressed in this Bill. I will seek to amend it accordingly on Committee Stage. Nowhere is there provision for accountability by the Judicial Appointments Advisory Board, nor is there representation on this board for anybody but judges and lawyers, although the Minister referred this morning to the possibility of involving people with financial expertise, which I welcome.

The proposed courts commission which would have the function of advising the Government on the organisation and management of the courts and court service is mentioned but, again, its make-up is not clear. It was in connection with the courts commission that the Minister mentioned finance and management people. Why should the consumer not have strong representation on this board? Under section 43 (1) [1406] dealing with the scales of costs, a rulesmaking authority will be requested to submit to the Minister rules concerning questions of costs, including scales of solicitors' costs and counsels' fees. Surely the Director of Consumer Affairs should have strong representation on this authority. The Minister made no reference to that authority.

The President appoints the Chief Justice and President of the High Court. Who will appoint the President of the Appeals Court? Under section 4 (2) (b) it is provided that there shall be vested in the Court of Appeal all powers, jurisdictions or functions which, immediately before the date of its establishment, were vested in or capable of being exercised by the Court of Criminal Appeal, and all cases pending before the Court of Criminal Appeal on that date shall be cognisable by the Court of Appeal. This is not what was promised in the Programme for Government. Section 4 (3) may well be unconstitutional. Furthermore, I ask the Minister to spell out what is meant by section 6 (2) regarding remuneration. Who will be the President of this Court of Appeal? Is it to be a Labour nominee to compensate for its loss of face in regard to the Presidency of the High Court? What has happened to respect for the judicial process when positions of this kind are traded off for political advantage?

I have been campaigning for reform of the courts since I published the Reform of the Courts (Administration) Bill, 1986 and whereas I welcome many of the changes being introduced, I repeat that the proposals so far announced do not provide for proper accountability to Parliament for the efficient administration of the courts. This is a serious defect. The Bill must not be allowed to pass without this defect being remedied.

The Minister referred to the membership of the commission. She might consider the appointment of a suitable former politician to this board, somebody who would be acceptable to all sides of [1407] the House. It is often thought that politicians are somehow tainted but most politicians have tremendous experience in dealing with the needs of the community. I do not want to see some party hack of Fianna Fáil, Fine Gael or any other party being appointed, but it should be possible to find somebody whom everybody would agree would be a good appointee to serve and bring to bear his or her experience as a former Member of this House or of the Seanad.

The Minister referred to the retirement age of judges. I do not fancy the idea of the Minister or anybody else having the power to extend judicial appointments from year to year. I note, if press reports are correct, that some of the Minister's colleagues raised this point with her at a Fianna Fáil Party meeting. In general a retirement age of 72 years in the High Court and 70 years in the Supreme Court is too high. Most people have to retire at 65. Perhaps in the judicial process where people have gained much experience we could allow a year or two more. However, whatever age is allowed — and I certainly would not support going beyond 67 years — there should not be an extension unless for exceptional reasons, and such extensions should not be on a year to year basis with the sanction of the Minister, as that would be tantamount to saying that a judge will get a year's extension if he behaves to the Minister's liking and that would be unconstitutional. We need to trash this out and, if there is a reason somebody over 67 should be appointed a judge, I would be happy to listen to the arguments for that also. However, I feel that in general 72 is too old.

In regard to the appointment of solicitors to the Circuit Court, the Minister has relied heavily on the report of the Restrictive Practices Commission on the reform of legal procedures. Following the publication of the Bill I introduced on reform of the courts administration in 1986 I gave almost three hours of evidence to that commission during the course of which I pressed for some of [1408] the proposals recommended by the Minister in this legislation. On the wearing of wigs I sought to introduce an amendment to provide for the removal of that regulation in a recent Bill, but was told if I withdrew it a similar amendment would be included in a future Bill. I welcome that provision in this Bill. I referred earlier to wigs on the green or on the bonfire. I am sure Deputy McDowell will burn his wig on Sandymout Green to mark the passing of this legislation. If the regulation governing the wearing of wigs by lawyers and judges is abolished, one of the great distinctions which intimidated solicitors would no longer exist. It would not be possible to determine if a person sitting on the bench in the court was a barrister or a solicitor unless judges continue to wear gowns to maintain the distinction. Solicitors could overcome that by wearing gowns also. One of the difficulties heretofore was that a solicitor who appeared in court stood out because he was dressed in civilian clothes while his barrister and the judge wore wigs and gowns. The solicitor was intimidated, felt out of place and was often made to feel so by lawyers sitting on the bench.

I welcome the appointment of solicitors to the Circuit Court, but why not go the whole hog and appoint them to the High Court? I know of many competent solicitors on whose opinion I would more quickly rely than that of some barristers and vice versa. Many solicitors are competent enough to sit as judges in the High Court and the Supreme Court. If they are allowed argue a case before those courts consideration should be given to allowing them sit as judges in those courts.

The Minister said in her speech that: “Under the provisions of section 36 of the Bill the Taxing Masters will be empowered to measure and value the work done by solicitors or counsel and to allow any charge or expense which they consider in their discretion to be fair and reasonable”. I hope that is not the Minister's way of telling us she will give them discretion to increase fees or to allow costs to be increased and that [1409] this is somehow a sop to people who might otherwise have concerns about the Bill. I want to ensure that consumers who go to court to have their rights vindicated are considered first and foremost in terms of the proposed changes.

The publication of the Bill is marred by the fact that it is the most extensive smoke screen ever to billow from Government Buildings. It attempts to cover a wide gulf between the Government parties. The manner of its announcement clearly illustrated the underlying instability of the Government as it was meant to be a cover for Labour's retreat, but the Minister for Justice did not even leave it this veil to cover its embarrassment. I invite Labour Deputies, particularly those who are Members of the Select Committee on Legislation and Security to consider the defects I highlighted and to join with other Members to ensure this Bill does not pass without fundamental amendment, particularly in terms of accountability to Parliament for the administration of the courts.

Ms O'Donnell: I welcome the opportunity to debate this legislation certain aspects of which are pertinent to recent political events particularly relating to the suitability of the current Attorney General for the position of President of the High Court. I welcome the attempt to depoliticise judicial appointments. Article 35.2 of the Constitution requires judges to be independent in the exercise of their functions. That principle of judicial independence is one of the most important bulwarks of our democracy. It is generally agreed that our judges have served us well, in the main, but there is something wrong with a system of appointment to a judicial vacancy when the first point of inquiry by people speculating on the successor whether here, in the Law Library or in legal circles, is the political affiliations of potential candidates. The linking of judicial appointments with political services rendered or even political allegiance in former years or in student [1410] years debases the nature of judicial office. Furthermore, it is no longer acceptable to the majority of citizens — we live in a more questioning and sceptical world. It has become essential that the independence of our judges be clearly demonstrated. While the Progressive Democrats welcome the shift to depoliticise judicial appointments, it is ironic and singularly unprincipled of the Government to change the law as a trade-off in the rather inelegant squabble between the Government parties to secure the appointment of the current Attorney General to the Presidency of the High Court. The longer the Government leaves the filling of that appointment on the long finger the more stark will be his appointment as an exception to the rule which will be put into law when this Bill is enacted. Under this Bill, sitting High Court judges will have to be considered first for appointment to the Presidency of the High Court and the tradition of giving the Attorney General the first offer of a judicial appointment during his term of office will no longer continue. If the principle of depoliticising judicial appointments and introducing fair procedures in respect of them is worth promoting in legislation, surely it is sound enough to apply to this appointment. We are seeing a trade-off in that Fianna Fáil will have its way on this appointment in return for future changes.

It is worth remarking that under this Bill all ordinary judicial appointments will have to go before the appointments board but not appointments for President of the various courts, although the Bill provides that in future the Government must give first consideration to sitting members of the High Court.

The Bill does not deal with the specific problem we have faced over the last few months, namely, the appointment, because of tradition, of the current Attorney General to the post of President of the High Court. When I asked the Taoiseach about the origins and sustainability of that precedent, the matter was ruled out of order as it would anticipate the debate on this legislation I [1411] would like the Minister now to outline how that precedent was set, its workability and to accept that it is a missed opportunity not to address it in this Bill with immediate effect in terms of the forthcoming appointment to the High Court. It is a missed opportunity for the Bill to ignore the salient problem we face which has brought about a political crisis and had the capacity at one stage to bring down the Government. As legal adviser to the Government and an exofficio Member of the Cabinet the Attorney General is already a highly political animal. He is the personal political appointee of the Taoiseach of the day. As has been shown, the appointment of a serving Attorney General to the bench can become the subject of intense political scrutiny and that is highly undesirable and brings the Judiciary into disrepute. In recent weeks, particularly when the crisis arose, we saw an unprecedented display of the names of judges being used as weapons by the political parties in Government. Given that all Attorneys Generals are closely linked with the Government of the day, the supposed tradition that Attorneys General are given first refusal on judicial appointments ought to be re-examined in the light of the central importance of the principle of judicial independence. We could go so far as to say that it is time to consider whether Attorneys General ought to be debarred from holding judicial office until the period of office of the Government they advised has expired.

This House has been greatly insulted by the fact that in the House of Commons questions were answered on the contacts made between the Attorney General's office and the Northern prosecution authorities in the Fr. Brendan Smyth extradition case while those questions, which were legitimately put by me on the Adjournment last week, were not replied to either by the Taoiseach or the Minister for Justice. I asked for information to demonstrate that real [1412] efforts were made to facilitate the RUC in the execution of these warrants, but no answers were forthcoming. We heard today that the British House of Commons was told in written replies to a Member of Parliament, that contact had been made between the British Attorney General and the Attorney General here. I was refused answers to those questions last week. This is the final insult to this House in terms of accountability.

Deputy Gay Mitchell spoke cogently about lack of accountability to this House by the Attorney General and the DPP. Serious issues arise on an ongoing basis which should be replied to in this House. I refer particularly to questions I tabled on activities or non-activities of the DPP. Even on general issues of policy there is no method by which I can put a question to the Taoiseach or the Minister for Justice on prosecuting cases, how victim impact evidence is compiled or, for example, how serious charges were withdrawn and lesser charges preferred against the parents of Kelly Fitzgerald. There is no vehicle in this House to address such issues. We must consider the procedures for accountability to this House by the Attorney General and the DPP. It is frustrating, particularly for spokespersons on Justice, to be unable to get answers to such questions.

We have been told that the Attorney General did not see the extradition warrants in the Fr. Brendan Smyth case. As a sop to the Opposition howls of protest at this neglect of duty in the Attorney General's office, a direction has been given to that office that in future all extradition warrants must be brought to the attention of the Attorney General. This is an admission that the provisions in the Extradition Act, 1987, were not complied with. Under that Act the Attorney General has direct responsibility for dealing with such warrants and is relieved from that responsibility and allowed delegate those functions only in times of absence or illness.

The admission by the Minister of State, Deputy Dempsey, on the [1413] Adjournment that things went wrong in the Attorney General's office and that new procedures were being put in place misses the point. We are talking about accountability, whether the matter was brought to the attention of the Attorney General or whether his officials acted incorrectly and without due haste is beside the point. The Attorney General, as the chief law officer of the State, is responsible for the processing of warrants under the Act and he failed in that duty. This lack of responsibility, which also applies to ministerial functions, and the attempt to blame officials and avoid accountability is very worrying.

There are many proposals in this Bill which are not new. The principal change outlined by the Minister, the introduction of a Court of Appeal, was mooted many years ago and was included in the Programme for Government when the Progressive Democrats Party was in Government. It is typical that the introduction of a reasonably good proposal is delayed for years and then rushed through with indecent haste in response to a political squabble between the Government parties and to give a job to a nominee of the Taoiseach.

The Bill has been trumpeted by the Government as a measure designed to overcome court overcrowding and to bring the court system into the 20th century, are very worthy aims, but the Bill fails to satisfy those needs. The measures in the Bill have, in large part, been dictated by the mandarins in the insurance industry, particularly in regard to the Court of Appeal. While nobody would deny that courts are overburdened with personal injury cases, this Bill will alleviate the stress suffered by insurance claims managers and defence solicitors rather than that of plaintiffs, defendants, witnesses and jurors. The Bill merely addresses overcrowding in the High Court and Supreme Court, courts that deal with a tiny part only of the business of the court service, the insides of which most ordinary people will never see.

[1414] I welcome the Minister's confirmation — I had intended to remind her of the promises made by the Taoiseach — of an increase in the number of judges in the High Court, Circuit Court and District Court. Delays and backlogs in cases throughout the country have resulted in a lowering of morale among the staff who work in the courts system, the general public and solicitors and barristers in making settlements which may not be in the best interests of their clients but in order to avoid further adjournments that would result in interminable delays in the processing of litigation cases.

The Bill is designed to create a modern court system but again the Government has failed to address the vital need for a family court system as recommended by the Law Reform Commission. In its report the Law Reform Commission pointed to the huge increase in family law matters which contribute in large part to the delays in Circuit Court and High Court cases. Regional family courts must be established on a national basis. The need for reform is colourfully outlined in chapter 7 of the Law Reform Commission report which states:

...serious problems and defects in the manner in which family cases are handled within our existing courts system. This concern is shared by many professionals working within the system. Many of the problems derive from under-resourcing, both physical and human. The picture which emerges is one of a system struggling and barely managing to cope with the very great increase in family litigation in recent years. The result is a sad parody of that which might be expected in a state whose Constitution rightly places such emphasis on the protection of family life.

The report refers to the acute problems in the Circuit Court outside Dublin where, in some venues, a judge may have as many as 70 cases on the list for one day. It states that applications for [1415] judicial separation raise complex issues of family finance and property and sensitive problems concerning child custody and access. It goes on to say: “We have heard of judges sitting late into the night in attempts to complete their lists, but for many cases adjournments for several weeks are inevitable.” The commission said this is intolerable for judges and litigants alike. There is an urgent need for the establishment of family courts and the opportunity has been missed in the Bill to deal with this matter. This need is becoming greater every day given the increasing number of family law cases coming before the courts. The Circuit Court has increased jurisdiction since 1991.

The Minister did not mention the urgent need to address the question of court accommodation which is in a disastrous state throughout the country. I am advised that some of our courts sit in buildings which have been condemned as dangerous while others sit in dance halls and other unsuitable premises because proper accommodation is not available. In most courthouses there are no consultation facilities with the result that people are forced to discuss confidential and often painful matters with their lawyers in the full gaze of the public and within earshot of their opponents.

In their submission to the Department of Justice the Bar Council and the Law Society outlined their considered views and suggestions for reform of the court service. One of the matters they highlighted was the question of delays — to which I referred — and another that delay undermines justice. They also indicated that the experience of many litigants of their day in court is a nightmare given that people are crowded into small ante-rooms and there are no proper consultation facilities; they will remember it as a traumatic experience rather than as an opportunity to obtain justice. Most of those who have had the painful and stressful experience of attending court in this jurisdiction will tell the Minister that they are the [1416] Dickensian court buildings, the lack of privacy and dignity afforded to litigants, the delays in hearings in the District and Circuit Courts and the Government's repeated failure to alleviate the pressure on the family law list which are the real scandal and anachronism. The Bill fails to deal with these matters.

Part II of the Bill establishes a new court to be called the Court of Appeal, heralded as the solution to the problem of overcrowding in the system. There is no doubt that this will relieve pressure on the Supreme Court, which is necessary, although it will not have an impact on the District and Circuit Courts where most of the business of the courts for ordinary citizens is transacted.

It is interesting to note that section 3 (2) (a) provides that the President, who shall be an ordinary judge of the High Court, shall be designated by the Government. Perhaps it is a mistake to use the word “designated” but this is a revealing provision. The Government has not been given the power to designate a judge under any other statute with the exception of the Offences Against the State Act, 1939, which established the Special Criminal Court. This exception is provided for under Article 38.3.1º of the Constitution. As the Minister outlined, under the Constitution judges are appointed by the President on the advice of the Government. The question of which duties are to be performed by a judge when appointed has always been a matter for the President of the court of which the judge is a member. This provision may be vulnerable to a constitutional challenge as a result. Be that as it may it is clear that section 3 (2) (a) has been drafted for the purpose of ensuring that the Government can give this job to its preferred candidate. I can see no other reason for exempting the appointment of the President of the new Court of Appeal from the appointment provisions laid down elsewhere in the Bill.

Section 4 (2) (a) provides that all cases pending before the Supreme Court on the date of establishment of [1417] the new Court of Appeal shall be cognisable by that court. All appeals now before the Supreme Court were brought in exercise of a constitutional right of appeal to that court. While that right may be validly regulated by statute no statute regulating that right existed at the time those appeals were brought. Accordingly, section 4 (2) (a) retrospectively interferes with a constitutional right and may be vulnerable to a constitutional challenge.

The Judicial Appointments Advisory Board is empowered to identify and inform the Government of the names of persons suitable for appointment to judicial office. It will operate in committees and the relevant committee will be required to submit the names of between three and five persons to the Minister with reasons for each person being considered appropriate. I have not had an opportunity to consider other options in great detail. On Committee Stage we might discuss the question of whether this provision should be altered; the Minister said she will consider the possibility of including other candidates on the list.

The Government is to retain its power to advise the President on the appointment of the Chief Justice and the Presidents of the other courts. I see no reason this should be the case. As recent events have shown, appointments to these positions can be as politically charged and controversial as any other; perhaps more so.

Section 25 deals with the submission of names to the Government. This procedure is flawed and unworkable in a number of ways. Subsection (4) provides that a committee shall not submit the names of persons who have not attended a course of education or training prescribed by the Minister. This provision will have a number of undesirable consequences given that the primary purpose of the legislation is ensure that the most suitable candidates are appointed. If this provision goes through the board will be lucky if it can submit the names of any candidates to the Government.

[1418] It is unlikely in the extreme that senior members of the legal profession will be willing to put their names forward for consideration if this means they will have to make a public declaration of their application by taking time out from their practices to attend training courses even though they may not ultimately be successful in their application. To put it bluntly it is unlikely that busy practitioners will set themselves up for public exposure by trotting off to attend these training courses in advance as, if their application is rejected, everyone would know they had attended them. This requirement will generate damaging gossip and speculation which would undermine the authority and standing of members of the Judiciary.

I am concerned that the progress in appointing women to senior judicial positions may not be maintained under the new system. In general, politicians know what is politically correct and this Minister's remarks and recent appointments have shown there is a widespread understanding of the need and sympathy for the appointment of women to the Bench when the opportunity arises. The public welcome such appointments. The advisory committees of the board, however, which unlike politicians, will not be answerable to the public and which will for the moment consist exclusively of men who are well past middle age may not care whether women are appointed to the Bench. It would be worth including a clause in the terms of reference of the Judicial Appointments Advisory Board to ensure that it reflects on and considers the desirability of appointing women to judicial positions. It is clear from the progress of women in public life that nothing happens by chance. If the board is not required to be mindful of the need for gender balance in the Judiciary in keeping with the Government's policy on State boards, members of the board may well forget about the need to appoint women to the Bench.

Section 37 which deals with the further powers of the Superior Courts [1419] Rules Committee introduces various changes to pre-trial procedures, curiously in personal injury cases only. If these changes are necessary in the interests of justice surely they are necessary in all cases. Again, they read like an insurance company's wish list.

I tabled a question to the Minister for Justice asking how we dealt with allegations of bias against judges. Recently such an allegation was made against a High Court judge and I was seeking to find out how many such allegations of bias were made. Of the two recent cases, one referred to the abortion information case, Dublin Well Woman Centre Ltd and others v. Ireland, the Attorney General and SPUC. An allegation of bias was made as to the competence and independence of the judge who was scheduled to hear the case and the matter is now on appeal to the Supreme Court.

We need criteria to adjudicate on allegations of bias. In a previous case, an application was made because the barrister was a daughter of the judge and it was held that he should have withdrawn because he would have been biased in the matter. If this practice proliferates we will be on the slippery slope. I could imagine that barristers who are aware that a judge has a pro-pensity to being a liberal or conservative on social matters would allege that he was either liberal or conservative and therefore did not want his case heard by him.

In many cases judges withdraw from cases because they have personal knowledge of the circumstances or know one of the parties to the case but where the case is a matter of public concern and a constitutional issue we would be going down the slippery slope if barristers and solicitors cherry-picked the judges on the basis of his or her personal views. My question on this matter was disallowed and I was told it was a matter for the courts. As we are discussing the Courts and Court Officers Bill, will the Minister reply to this issue? The Judicial Appointments Advisory Board, or some independent body, would be the body to [1420] consider allegations of bias against the Judiciary.

A judge can be disciplined or dismissed for whatever reason only by a motion of both Houses of the Oireachtas. I am not sure that a judge has ever been removed from office but if we are seeking to depoliticise the appointment of judges perhaps we could depoliticise their removal from office. Perhaps the Judicial Appointments Advisory Board could be charged with hearing complaints against judges. I do not see any reason that judges. should be above a complaints procedure. If the need arose to dismiss a judge the matter could be discussed by the board before going to Government. These matters could be addressed in the context of this Bill.

The debate on the Courts and Court Officers Bill is pertinent. The depoliticisation of judicial appointments is welcome but it is sad that this very laudable principle will not take effect in the current controversial appointment of the incumbent Attorney General to the Presidency of the High Court.

Mr. Gilmore: The Courts and Court Officers Bill is the text of the Labour Party's surrender to Fianna Fáil. This is the treaty of Tinakilly.

This Bill is what Labour gets in return for Fianna Fáil making Harry Whelehan President of the High Court. It is a Bill born prematurely in a political crisis. New courts legislation was on the way, but as the half considered poorly prepared content of this Bill betrays, it was not due to be introduced for quite some time. On the Government's own admission, this Bill was brought forward as part of the solution to a political problem — the long-distance clash between the Taoiseach in Australia and the Tánaiste in America which almost landed Ireland in a general election.

This is shotgun legislation — the progeny of the one-night-stand at Baldonnel. Its early appearance on the Dáil Order Paper owes more to politics than to legislative consideration. So any consideration of this Bill, has to examine [1421] not just its legislative, but its political content as well.

This Bill has to be read in the context of the political controversy over the proposed appointment of the Attorney General as President of the High Court. And since that was the issue on which the Labour Party chose to test its mettle against Fianna Fáil, it is the most recent and reliable measurement of Labour's influence in this so-called partnership Government. There is very little in this Bill to comfort the Labour Party, not even the rank and file who sold out their Leader on the RTE “This Week” programme. As a surrender document this is virtually unconditional. This Bill is all white feather and no red rose.

The Bill does not resolve the controversy over the appointment of a new High Court President. It does not take politics out of judicial appointments and does very little to reform the courts. This proposed appointment of the Attorney General, Mr. Harry Whelehan SC, as President of the High Court, is the proximate reason this Bill is before us today. I appreciate that this House does not normally discuss individual appointments but it would be meaningless to debate this Bill without reference to the issues already in the public domain which relate to Mr. Whelehan's performance as Attorney General and his prospective appointment as president of the High Court.

The most remarkable feature of the Bill before us is that although it emerges from the row over the Presidency of the High Court, and ostensibly it is to provide for new procedures for judicial appointments. It expressly excludes from its terms of reference the High Court Presidency. Section 22 defines judicial offices which will be subject to the proposed judical Appointments Advisory Board but omits among others the Presidency of the High Court, the very office which caused the publication of the Bill in the first place. That is an omission which this House might hope to correct and certainly I will be tabling an amendment on Committee Stage to include the High Court Presidency and [1422] the other missing judicial offices in the terms of this Bill.

The issue of whether the new procedures for judicial appointments are to apply to the office of President of the High Court is now a matter for decision by the Oireachtas, as is the date from which the new procedures will apply. This Bill is now before the Dáil. The issue of judicial appointments is now under consideration by the Oireachtas, and, therefore, it is now no longer open to the Government to make an individual appointment, until the Oireachtas has decided how such appointments are to be made.

The Government should not now proceed to appoint a new President of the High Court until this Bill has been enacted in whatever amended form is eventually decided by the Oireachtas. To do otherwise — that is, to proceed to appoint a new President of the High Court without awaiting the outcome of the Dáil and Seanad's consideration of this Bill — is to presume what the Oireachtas may eventually decide. Even with a diminishing 30 seat majority, such a presumption on the part of the Government is possibly unconstitutional.

It would certainly undermine the role of Parliament if the Government were now to proceed with an appointment, but according to press reports the deal has already been done. Mr. Whelehan is apparently to be appointed President of the High Court, and the Tánaiste apparently has some say as to when he can commence his duties. Some press reports state that the formal decision is to be made today at a Cabinet meeting while we are debating a Bill which is designed to give the public the impression that something is changing.

So far in this House there has been no clarity as to the appointment of the President of the High Court. This morning the Taoiseach was most reluctant to indicate when an appointment would be made or if he would do the House the [1423] courtesy of awaiting the Dáil's consideration of the Bill before us before proceeding with an appointment. We cannot proceed to debate the Bill until this matter is cleared up. Surely it is a mockery that, while the Dáil is debating a Bill to change the method of judicial appointments, the Government is meeting in private to formally make the most controversial judicial appointment in the history of the State.

I am calling on the Minister to assure the House that no decision will be made on the appointment to the presidency of the High Court until the Oireachtas has disposed of this Bill. Unless the Minister can give that assurance before the completion of Second Stage, my party will oppose the Second Reading of this Bill. I will propose that the House declines to give a Second Reading to this Bill because of the failure of the Government to assure the House that no further judicial appointments will be made pending consideration by the Oireachtas of this Bill. We cannot be party to a pretence that something is changing when all that is happening is that the Taoiseach is getting his way and the Tánaiste is getting this face-saver.

This Bill is a legislative device to stitch the Government back together. All the king's horses and the four wise men have put Humpty Dumpty together again, or at least have managed to reassemble the shell. It is not so easy, however, to pour back in the core issue once it has been released into the public domain.

The people know there was serious disagreement between the parties in Government over who should occupy one of the most senior judicial posts in the country — a position of enormous power, possibly more powerful than a Government Ministry. The President of the High Court, for example, decides which High Court hears individual cases and, as anybody who is reasonably familiar with the courts knows, marginal cases often turn on the choice of a judge.

We know the broad outline of the [1424] nature of the Government's disagreement. Its essence has not been denied or disputed by either Government party. Fianna Fáil takes the view that the Attorney General has an automatic right to first refusal on judical appointments, even though there is no constitutional or legislative basis for such an assumption, and the precedent on which it is claimed is wobbly, to say the least. If appears the Taoiseach promised him the job and, unlike promises made to the electorate or job security promised to TEAM workers, a promise made to the “exclusive jobs club” is of a much stronger currency.

On the other land, the Tánaiste has clearly questioned the Attorney General's suitability for this important appointment. The collective relief in political circles at the avoidance of a general election has helped to defuse the very important issues which caused such fundamental disagreement between the Government parties. It is too simplistic and somewhat unfair to the Labour Party to assume that its concerns over this appointment were motivated by purely party political considerations.

If Mr. Whelehan's appointment to the presidency of the High Court was so unacceptable to the Labour Party that it boycotted a Cabinet meeting, that the row was leaked to the press and that the Tánaiste was apparently prepared to countenance a general election on the issue, then we need to know why he was so unacceptable. The Labour Party owes the House and the public an explanation for its unease about this promised appointment. It owes us an explanation also as to why, if it was so unacceptable in September, the appointment is acceptable in November.

This House has a difficulty in discussing matters relating to the Attorney General. The Attorney General does not report to the House and we have no satisfactory means of questioning his decisions and actions. Until Mr. Whelehan's appointment, there did not seem to be a great demand for Oireachtas [1425] scrutiny of the Attorney General's work and role. Previous Attorneys General managed to keep a relatively low profile and little was publicly heard or understood about their work. Mr. Whelehan has certainly managed to bring the Office of the Attorney General to the centre of the political stage. His decision to deny the parents of a 14 year old girl the right to take their child out of the country in the famous “X” case caused a constitutional crisis which resulted in three constitutional referenda, the need for new legislation and calls for further constitutional change. In his handling of the beef tribunal, he behaved more like the private lawyer of Fianna Fáil Ministers than the protector of the public interest. His recent refusal to defend the integrity of High Court Judge Mella Carroll raised eyebrows. No doubt these were among the matters which caused the Tánaiste to question his suitabily for the post of President of the High Court. Certainly they are concerns which I would share.

The only previous occasion when the Office of the Attorney General was at the centre of public attention was in 1987 when the then Government introduced the Extradition (Amendment) Bill which gave the Attorney General additional and somewhat quasi-judicial powers. It is somewhat ironic that the most recent controversy involving the Attorney General has centred on his tardiness in exercising those powers. This, his previous record and the Tánaiste's concerns about him have combined to raise a wider public concern about his imminent elevation to the High Court presidency.

I fail to understand how the same Attorney General, who could act within hours in the “X” case and who was razor sharp during the beef tribunal on issues such as Cabinet confidentiality, could have failed to act for seven months on the extradition of a paedophile priest at a time when further extradition legislation was before the Oireachtas and when many sex abuse cases were under public consideration.

The Minister for Justice has asked [1426] this House to accept that for seven months the extradition warrant for the convicted paedophile priest, Fr. Smyth, lay in the Attorney General's office, that the Attorney General himself was never informed of it and did not know about it and that somewhere down the line attempts of some undefined kind were being made to persuade Fr. Smyth to return voluntarily to the North. Meanwhile children in this jurisdiction were exposed to continuing risk from this repeated sex offender. It is an explanation which I find neither credible nor acceptable.

The Attorney General's functions in relation to extradition cases are unusual and were the subject of special extradition legislation in 1987. So unusual were the new functions of the Attorney General that the then Taoiseach, Charles Haughey, took the unusual step of himself introducting the legislation in the House on 27 November 1987. I quote from column 2126, volume 375 of the Official Report of Mr. Haughey's Second Stage speech where he refers to the functions being given to the Attorney General:

This important new procedural step will mean that the Attorney General will have to form an opinion himself as to these matters. The Attorney General will be required to exercise his function and form his opinion about the existence of, and the foundation for, the intention to prosecute in each and every case.

That leaves no doubt about the intention of the 1987 legislation. Warrants for extradition are to be examined not by some functionary in the Attorney General's office but by the Attorney General himself and that the system of safeguards inherent in the 1987 legislation depended on the personal scrutiny of each and every case by the Attorney General. Surely the present Attorney General was aware of the public debate which surrounded the 1987 Act and which concerned the role the Attorney General was expected to perform?

[1427] In attempting to justify the seven months delay the Minister suggested that this was one of the first requests made under the 1987 procedures and that extra care was being taken. If that is so, is it not all the more remarkable that the Attorney General was not informed of the case? Are we seriously being asked to believe that six or seven years after the controversial 1987 Act, the operation of extradition procedures in the Attorney General's office had become so loose that the Attorney General himself was no longer being informed of extradition requests, especially in a case which the Minister claims was the first of its kind and was, therefore, possibly precedential?

If we accept that the Attorney General was not told of the Fr. Smyth extradition request are we also to believe that for seven months the Attorney General did not ask his officials the kind of questions that might have prompted them to tell him? Even in normal circumstances, it is hard to imagine that an Attorney General would not, over a period of seven months, ask his officials about what extradition requests were coming in, what they were about and what was being done about them. However, it is simply incredible that over this particular seven months, from late April 1993 onwards, the Attorney General would not have asked his officials about extradition cases which should have caused the Fr. Smyth case to have been brought to his attention.

During that period the Attorney General was examining new amending extradition legislation for the Government. The House will recall that the Government had undertaken to amend the extradition Acts to address the socalled political offence loophole. The introduction of the legislation was delayed because of legal and constitutional worries and these were examined by the Attorney General. The legislation was subsequently introduced and passed by the Oireachtas over the seven months period while the Fr. [1428] Smyth case was with the Office of the Attorney General.

There are three possible explanations — first, the Attorney General knew of the Fr. Smyth case and was a participant in its delay; second, he did not know, had no system to monitor extradition requests and did not ask the kind of questions that would have brought it to his attention; third, it was concealed from him in which case he did not have control over his own office. No matter which option one selects the Attorney General is responsible. He did not exercise his statutory functions satisfactorily and this, taken with his record on other issues, does not recommend him for a senior judicial post.

It is invidious that we should be here in a public forum discussing the suitability of an individual candidate for an important judicial post but the matter was brought into the public domain by the Government who failed to explain or resolve the issue and it is now a matter of unprecedented public discussion.

The post itself is extremely important. Mr. Whelehan is a young man and, if appointed, will hold this and possibly even more senior judicial posts for most of the next quarter century. Even the younger Members will be drawing the old age pension by the time Mr. Whelehan will be finished on the Irish Bench, interpreting our laws and Constitution and making critical legal decisions that will help shape the future of society into the early part of the next century.

The issues raised by the controversy are more important than one man's career and whether the Government lasts for two or five years. Never before has a judicial appointment attracted so much public attention. The public has an interest in and opinion on the outcome of this issue. Public confidence in the courts and the Judiciary is at stake. The issue cannot be wished away by a political compromise and will not be resolved by the Bill before us. The substantive issue now is: does the Attorney General become President of the High Court? At a minimum, the Government must pull back from making a decision, [1429] allow the Oireachtas consider what procedures are appropriate and apply them to the appointment of President of the High Court.

Even before the row over the appointment of the Attorney General as President of the High Court there was considerable concern and a demand for reform of the manner in which judges are appointed. The present system of appointment is essentially a form of political patronage. Governments appoint to the Bench lawyers who are either members or supporters of their political party. Apart from the issue of patronage, that method of appointment means the people appointed to the Bench are not necessarily the best available. I agree that by and large the State has been well served by those appointed to the Bench and it is a testament to their integrity that they have performed their functions with great independence. However, the system of appointment needs to be radically altered. Apart from the suitability of those appointed there is the question that many lawyers who might make very fine judges are not considered because they do not kick with the right political foot.

I suggested earlier this summer that the Council of State be given a role in this area and make a recommendation on the appointment of judges. I also suggested it was a role which could be considered if the Government was extending the role of the Presidency of the State. I appreciate those ideas might require constitutional change but because of the urgency of the issue I am keen that some legislative way be found to address it.

The concept of a judicial appointments advisory board contained in the Bill is acceptable in principle provided three criteria are met — first, that it covers all judicial appointments without exception; second, that the Government is prepared to abide by it and, third, that it is structured in a democratic way and is empowered to make specific recommendations to the Government, not a panel of three or five prospective judges given to the Minister who, in the time [1430] honoured tradition, may pick from it the person who is closest to the political party in power at the time.

The Bill does not fulfil those criteria. It omits from the terms of the judicial appointments board the most senior, and arguably the most powerful, appointments, the Chief Justice and Presidencies of the High Court, District Court and Circuit Court. The second question is whether the Government is committed to accept the recommendations made. That area was commented on by practitioners in the legal field. The gazette of the Incorporated Law Society in its current edition makes the point:

We would suggest that inherent in any new arrangement would be the principle that the Government and all successive Governments would undertake to abide by the recommendations of the Commission and appoint judges on that basis.

The third criterion relates to the composition of the Judicial Appointments Board. The Minister said she was open to suggestions on this issue, that she had no fixed views on its composition. I am very glad to hear this as the Bill proposes the establishment of a Judicial Appointments Board composed of members of an elite club, senior people in the legal profession. This would give rise to a very elitist board and needs to be changed. We need to widen its scope to include people other than lawyers. For example, there should be some way of involving members of the Garda Síochána, the Probation and Welfare Service and bodies representing consumer interests. Consideration must be given to the inclusion of these people on the Judicial Appointments Board, and I will put down amendments in this regard.

I wish to refer to the proposed retirement age of judges. This has given rise to a concern that at the end of the day judges will be appointed by the Government from a panel, that their continuation in office, at least in some of the courts, on a year to year basis will also [1431] be determined by the Government and that factors such as political allegiance and the handling by a judge of a case in which the State or individual Ministers may be involved will influence appointments. I have a difficulty with the concept of a retirement age. The concept of telling people that their working life is finished when they reach 60 or 65 years is fundamentally wrong and discriminates against elderly people in our society. As a general rule, and not merely in relation to the appointment of judges, this issue will have to be looked at again in the context of employment legislation. Some people may be past it, so to speak, at 65 years or younger but many people of that age are very capable and have a major contribution to make——

Mr. R. Burke: Some people in their mid-20s——

Mr. Gilmore: I was not referring to Deputy Burke, who has a great career ahead of him.

Mr. R. Burke: I was referring to those people in their mid-20s who are brain dead.

Mrs. Geoghegan-Quinn: How does one draw a distinction?

Mr. Gilmore: The way to draw a distinction is to appoint judges for a fixed term. The problem with judicial appointments is not the age at which judges retire, but rather the length of time they sit on the Bench. The principle of seven year terms which is now acceptable for senior appointments in the public service needs to be looked at as it would have the additional advantage of providing for a turnover of judges, allow younger people to sit on the Bench and given that the question of gender balance has been introduced into the debate, might also allow a greater proportion of women to sit on the Bench. There is nothing necessarily wrong with a person being a judge for seven years and then returning to legal [1432] practice. On Committee Stage I will propose that instead of dealing with the question of retirement we should deal with the introduction of fixed term contracts for judicial appointments.

Reform of the courts is long overdue but, unfortunately, the Bill will not introduce the necessary reforms. I welcome the proposed establishment of a Court of Appeal and the announcement by the Minister of an increase in the number of judges. I disagree fundamentally with the points made by Deputy Gay Mitchell on this issue, although I agree that the productivity of judges might well bear a certain amount of examination. Given the volume of litigation and the expanding role of the courts, there is a case for increasing the number of judges. However, given the amount of work with which courts have to deal and the inordinate delays at every level of the courts system, a total of 100 judges is not excessive. I welcome the appointment of additional judges.

The proposed Courts Commission — promised in the Programme for Government — is inadequate to deal with the urgent reform of the courts. We do not need a commission to establish what is wrong in the courts system as this is obvious already and should have been dealt with in the Bill. The proposed formula for the appointment of a Courts Commission betrays the speed with which, for political reasons, this Bill was put together and brought before the House. If the legislation had been allowed to develop to full term it might well have contained specific proposals in regard to court reform. Given that the Minister referred to a type of rolling over commission to which new members will be appointed etc., the establishment of a commission is a recipe for delay.

This delay was anticipated in the submission by the Incorporated Law Society and Bar Council last September. In dealing with the appointment of a Judical Commission, they said:

We would have serious reservations that the establishment of such [1433] a commission — if it is to be confined solely to members of the judiciary — is the proper way to proceed.

They also stated:

We must, therefore, question at this stage the need for a Judicial Commission or, indeed, any Commission to outline what needs to be done. It is difficult not to have doubts that this proposal amounts to yet another stalling tactic and an “escape hatch” for inactivity.

They were in no doubt that there was no need for a commission to establish what needed to be done in the courts. The joint submission by the Incorporated Law Society and the Bar Council contains a very good agenda which she might address and highlights the problems in our courts system. For example, it highlights the delays of up to two years in the High Court and up to three years in the Circuit Court, the extent to which those delays are prolonged by the addition of family law cases and the need to deal with such cases quickly.

They also quote from the report of the Review Body of Civil Jurisdiction in England published in 1988. I will not read the full report but basically it states that delay undermines justice and outlines how it results in a reduction in the availability of evidence, erodes the reliability of evidence, tends to legitimise inefficiency in the office of lawyers and the courts, undermines public confidence in the capacity of the courts to dispense justice and causes continuing personal stress and anxiety. I recently came across a criminal case involving a murder charge where the family of the victim was extremely distressed that a full two years after the crime those charged were still on bail and had not been brought to trial because of delays in the courts. This is not acceptable and needs to be addressed as a matter of urgency.

There was a reference to courthouse accommodation. The condition of many courthouses is a scandal. It is extremely [1434] difficult for judges and officers to work in them, while legal practitioners have to consult their clients in the most unsuitable conditions. Clearly, it is a scandal from the point of view of people who appear in the courts on a charge, as witnesses or simply to deal with a civil matter and should be addressed as a matter of urgency. It does require capital expenditure but the need for people to obtain justice, to feel they are getting justice and to have an opportunity to discuss matters with their lawyers is so important that the condition of our courthouses needs to be addressed as a matter of urgency.

The submission from the Law Society and the Bar Council also dealt at some length with the need to rationalise court venues, to provide special venues for family cases and to apply the new information technology is now widely available. They go on to describe the very primitive conditions in some courts, where even word processing is not in operation. They point out that senior judges have to operate without secretarial assistance. All these areas need to be addressed to make the courts more efficient.

Efficiency is only one aspect of the problem. There is also the question of access to the courts. I am pleased that the Minister made provision in the Bill for the abolition of barristers' wigs although I suspect that what puts most people off going to court is not the sight of the barrister's wig but the size of the bill. I realise some provisions in the Bill attempt to address the whole area of the prohibitive cost of court cases. The people who do not have to worry about the cost of court cases are those who are so well off that it will not bother them or people who are so poor that they qualify for free legal aid. Very often those who qualify for free legal aid are charged with offences. For the ordinary taxpayer in difficulty who wants to prosecute a particular case the cost of going to court is prohibitive. For many civil actions it literally means that somebody has to put their house at risk to go to court. Even for simple matters, such as [1435] judicial separations, costs range between £3,000 and £5,000, a prohibitive cost for many people. The law is for those who can afford it, or who get it for nothing and that will have to be changed.

Access to our courts, the right to legal aid, the way in which charges are made and the cost of the legal process will have to be brought within the means of the average citizen. Until that is done, the operation of the law will be based on wealth, class, discrimination and inequality. That is fundamentally wrong and undermines fairness and public confidence in our legal system. I had hoped this Bill would have gone further in the area of addressing legal costs but on Committee and remaining Stages we may have an opportunity to deal with that issue in greater detail.

Mr. R. Burke: With the large increase in litigation in recent years the courts have come under increasing pressure. Long delays have built up with parties having to wait a number of years before their case can be dealt with. In the High Court the delay can be over three years while in the Dublin Circuit Court a case set down for trial today will not get a hearing until 1996. The appeal system is similarly afflicted with long delays. The Supreme Court must give priority to urgent constitutional matters while a longer and longer list of new and strightforward appeals builds up.

In its attempt to grapple with the increase in litigation and to relieve the congestion of court waiting lists I strongly support parts of this Bill. The additional judges are badly needed and the Court of Appeal will relieve the Supreme Court of much of its more routine appellate work. It has long been recognised that the absence of a Court of Appeal to deal with appeals in civil cases from the High Court has been a major contributory factor to the long delays which attach to hearings in the Supreme Court. It must also be said that the Bill seeks to remove a number of anomalies in previous legislation. For [1436] example, if a plaintiff, seeking judgment in default of a defence for a debt, wished to claim interest he had to bring his application in the High Court itself rather than before the Master of the High Court — an unintended and ludicrous effect of section 22 of the Courts Act, 1981.

A number of more contentious issues will be dealt with in this Bill, the proposals in respect of which, unfortunately, appear to reflect the haste with which it was published. One would also be forgiven for suspecting that many of the specific proposals reflect the political necessity of producing any proposals and promote any change rather than reflecting the type of wide-ranging and informed debate which should precede fundamental changes of the type proposed. I am not referring to the Minister in this matter as she has shown herself to be in favour of reform. I know she has been working for many months on a courts Bill and it is unfortunate that the circumstances meant that it had to be introduced in a hurry. I congratulate the Minister on the parts of the Bill I imagine are her own.

The separation of powers is fundamental to the Constitution under which there is a Legislature, an Executive and a Judiciary. The Legislature is elected by the people and is answerable to them. The Executive is elected by the Legislature and can be turned out of office by Dáil Éireann. The ultimate vindication of the rights acknowledged or created by the Constitution falls to a Judiciary whose independence is fundamental to the whole operation of our rule or constitutional law as provided in Article 35.2 of the Constitution which states that all judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.

Judges, under the Constitution, are appointed by the President but as observed by the then President of the High Court, Mr. Justice Finlay subsequently Chief Justice, in the State v. Murphy, the appointment of a judge is [1437] an act “requiring the President's intervention for its effectiveness and law” but, in fact, it is the decision and act of the Executive. At first glance it might appear unsatisfactory that the appointment of the independent guardians of our rights under the Constitution should be left to an Executive, given that on many occasions it is the Executive itself which has to be restrained by those very same judges from breaching the provisions of the Constitution. In reality, the appointment of judges has to be left either to the Executive or to the Legislature. The Executive is ultimately answerable to the Legislature. When one considers the spectacle which attends the appointment of judges in the US where the Executive nominations have to be ratified by the Legislature, one can readily appreciate why the framers of our Constitution, in their wisdom, left the matter solely to the Executive. Furthermore, this system has worked well, there has never been a judicial scandal or an allegation of one, let alone an example of judicial corruption. This is a remarkable achievement in the light of experience in other countries and the best justification of the system provided for under the Constitution. Party political affiliations have not played the role, which they so frequently are alleged to have played, in the appointment of judges. The people are very politically aware and politically active.

As is common in most jurisdictions, the practice of law has traditionally resulted in both barristers and solicitors having political views and not being shy about expressing them. It is inevitable that many of those appointed to the Bench will have had open political affiliations and there is nothing wrong with this. It is also inevitable that the lawyers with an interest in politics will be more likely to be known to members of the Executive than their colleagues without such an interest. However, down through the years, lawyers without political affiliations have been appointed to the Bench. There are also numerous [1438] examples of lawyers of one political persuasion being appointed to judicial office by an Executive of the opposite political persuasion.

There has been a protracted campaign in recent years to denigrate the present system, the suitability of the Executive appointing judges and the calibre and personalities of those appointed. Many of those — the politically correct in our society — engaged in this campaign do not confine their cynicism or begrudgery to this issue alone. Can it not be argued that proposals for such radical change to a system which has operated successfully since the foundation of the State should be the subject of wide-ranging debate and the most detailed and democratic consultation? Changes of this type should not be open to the suggestion that they result from backroom negotiations necessitated by a political squabble between political parties.

No Member of this House wanted a general election and neither did the people. The Constitution and the Judiciary who uphold it are far too fundamental to the well-being of all our lives to be left open to use as political pawns. Our Constitution belongs to the people. When were the people told that in voting for one party or another they were voting for changes of the type now proposed? At the very least many of the proposed changes should not be implemented without there having been a sufficient period for the views of interested members of the public and interested groups to be developed and heard.

It is proposed that a judical appointments advisory board be established, the members of which would vary depending on the judicial appointments being considered. The board would be charged with identifying and informing the Government of the names of persons the board considers suitable for appointment to ordinary judgeships in the Supreme Court, the Court of Appeal, the High Court, the Circuit Court and the District Court. While in theory the Government or the Minister [1439] might not accept any of the names submitted by the judicial appointments advisory board, in practice it is difficult to see how or why the Government could reject the advice of the board. During the beef tribunal Ministers and former Ministers spent months defending themselves against no less a charge than that they did not accept the advice of the most junior of civil servants. Some of those who made the charges are now in Government.

The reality of the proposals is that the Government will be unable to reject the advice of the board and will be confined to the names submitted by the board. As there is not even a requirement that submissions by the board to the Minister are to be confidential, it does not require great imagination to envisage the political fall-out if a Government decided to appoint a person to a judicial office other than one of those nominated by the board. Even if such a confidentiality requirement existed, would it be observed?

The proposal raises a fundamental constitutional issue, the resolution of which ironically would ultimately fall on the courts themselves. It is not self-contradictory that the constitutionality of a proposal conferring de facto Executive powers on members of the Judiciary should fall to be decided by members of the Judiciary? Apart from the legal issues involved, the question of political abdication of responsibility by the Executive is also inherent in the proposal.

If the Government submits to the Oireachtas a proposal, the effective implication of which is that the Government cannot be trusted with the appointment of members of the Judiciary, on what basis can it be argued that the Government should retain the right to appoint, for example, members of the Revenue Commissioners, chairpersons of State boards and so on? At least those appointed to the Judiciary must be legally qualified and have practised for the length of time specified in law. The Government is not at large [1440] when dealing with such appointments. If it cannot be trusted with the power to make judicial appointments in such circumstances, on what basis is it fit to appoint, for example, the chairperson of Aer Lingus, an operation with large diverse commercial and technical aspects?

If the proposal in section 27 (4) is passed into law, who is likely to seek judicial appointments in the future? To be eligible for consideration it is provided that a person must have completed a course in education or training. Who will decide on admission to such a course? How many will be admitted? Will participation be confidential or how will it be kept confidential? One can readily imagine the type of media interest that would immediately focus on a person participating in such a course. One can also readily imagine the difficulties for people participating in such a course without a guarantee of appointment. I fail to understand why a person must attend the course before nomination to a judicial appointment as opposed to afterwards. Will the Minister consider that matter before Committee Stage?

For many years one constant complaint about the management of legal education and admission to the practice of law was that the profession of barristers was governed by a self-perpetuating body, the benchers of the King's Inns, vacancies in whose august body were filled by the surviving members of the club. It is now proposed to insert an element of self-perpetuation into the entire Judiciary and, moreover, it is specifically provided that those on the board shall have regard to the probity, character and temperament of would-be nominees to judicial office. Are barristers and solicitors who tend to stand up to the Judiciary when in practice to be excluded from judicial office? It would not be surprising if such a temperament did not win favour with the existing Bench and future advisers in regard to who should be appointed. When one considers that a member of the Bench has from time to time expressed such [1441] esoteric views on character and temperament by saying that a young woman who would drink Guinness in a public bar is defamatory, one wonders what precise character and temperament criteria will be applied by the proposed body.

There are numerous other anomalies and oddities in the proposed measure with which I do not have time to deal. At a time when the number of quangos is a matter of concern, this board is being established and will have such staff as it may reasonably require. Do the taxpayers need another board and another new wages bill to implement a change in a system which has served this country honourably and well since the foundation of this State?

On the appointment of solicitors as Circuit Court judges, it has long been a matter of contention as to whether appointments to judicial posts in the Circuit Court, the High Court and the Supreme Court should be confined, as heretofore, to members of the Bar or whether such appointments should be open to solicitors. The proposal that solicitors will be eligible for appointment to the Circuit Court but not to the High or Supreme Courts, is obviously intended as a compromise. In its present form it is an unsatisfactory proposal for a number of reasons. For more than 20 years solicitors have had a right of audience in all courts established under the Constitution and have had a right of access to our Superior Courts long before their colleagues in England acquired such a right. With few exceptions solicitors have not exercised that right in the High or Supreme Courts. In Dublin the right of audience of solicitors in the Circuit Court is rarely used except in non-contentious matters. Outside Dublin solicitors have traditionally played a much greater role in the Circuit Court although mostly in the context of appeals from the District Court.

There is no reason solicitors should not be eligible for appointment to judicial office in every court provided they have practised as advocates in the court to which they seek appointment [1442] for the same length of time barristers are required to practise before they become eligible. If, for example, the President of the High Court is willing to certify that a solicitor has practised in the High Court for whatever period is required by law, that solicitor should be eligible for appointment to the High Court Bench. A similar rule should apply to barristers. As matters stand, a barrister in practice for whatever length of time is required is eligible for judicial appointments to courts in which he may never have appeared.

Not all barristers practise as advocates or earn their living in the courts. It would appear entirely sensible and appropriate that, before one could become eligible for appointment to the bench of any particular court, one should have had to practise before that court and gained practical, everyday experience of how that court operates and is conducted. Once they have practised in the courts as advocates, one can see no reason solicitors should not be eligible for appointment as judges to any court in this land and the same should apply to barristers. I would ask the Minister to examine that point before Committee Stage.

The establishment of a Courts Commission is proposed under section 29 in addition to the Judicial Appointments Advisory Board. Is this Courts Commission to be another quango? Section 29 (2) reads:

The Courts Commission shall have the function of advising the Government and the Minister for Justice on the organisation and management of the courts and court service and on such matters as in the opinion of the Minister or the Commission have a bearing on the capacity of the courts to discharge their functions.

Why on earth do we need another quango when we have already very effective, efficient sections within the Department of Justice dealing with courts administration and the separate [1443] offices of various courts? If the Government wants advice it can obtain it from civil servants, court officers or judges.

There is no shortage of advice on the running of the courts but I know from painful experience, having been Minister for Justice, that we are short of resources. Who is to serve on this Courts Commission? In her introductory remarks the Minister mentioned a wide range of people. Whomsoever the Minister is advised to appoint, presumably by her civil servants, what type of commission will emerge? Who is to staff that commission? Unlike the Judicial Appointments Advisory Board, no staff is expressly provided for although the expenses of this commission are to be paid out of moneys provided by the Oireachtas. Presumably any such staff will be drawn either from the Department of Justice or the various court offices. I do not foresee this Courts Commission presenting any advice on the running of the courts that is not already available. The imposition of another layer of bureaucracy is much more likely to interfere with the running of the courts than to improve them. The likely outcome is a further waste of public moneys.

The main thrust of the Bill is to tackle the problem of delays. I congratulate the Minister on these provisions which represent very much her own input. The new Court of Appeal is to be warmly welcomed. Nonetheless this Judicial Appointments Advisory Board whose function it will be to decide who will serve on the Bench in the future needs radical re-examination. I hope we can engage in such re-examination on Committee Stage.

Mr. Durkan: I welcome in principle the general thrust of this Bill on the basis that some changes are undoubtedly necessary. I am not saying that changes should be effected merely for the sake of change. The Bill contains some constructive changes very similar to the proposals put forward by my colleague, Deputy Gay Mitchell, a couple [1444] of weeks ago when he introduced his Bill. The Minister is to be complimented on having incorporated many of the provisions of Deputy Mitchell's Bill in this one, illustrating the manner in which Government takes account of what the Opposition is doing despite the fact that, on most occasions, they would reject such proposals.

Anything I have to say should not be taken as directed personally at any Member on the opposite side of the House, but there is a certain doubt in people's minds as to the timing of this Bill's introduction. It is introduced at a time when it is convenient for the Government to talk seriously about the proposed Court of Appeal, which is progressive and useful, and its timing is absolutely perfect. When did it arise? It arose at a time when the two Government parties were in serious difficulty in relation to a particular appointment. The four wise men who met in committee to advise the Taoiseach and Tánaiste obviously thought this proposal was a good idea. Let us examine the proposal for what it is. The introduction of this Bill, notwithstanding its inherent merit, happens to coincide with an urgent, immediate need within the Government parties to ensure that they do not fall out of the political bed in open hostility because of failure to reach agreement on the particular judicial appointment.

While I do not believe one should change everything merely for the sake of change, I do believe in accountability, in the first instance, to this House. I welcome the appointment of the Judicial Appointments Advisory Board and note the points made by several other speakers. On the one hand I agree with its establishment but on the other I would have to question how accountable it will be and to whom.

I presume it will be accountable to Government. Will it operate in the same manner as many other advisory boards? For example, will a list of suitable candidates for appointment to the Bench be submitted to Government? How will the Government decide to [1445] appoint persons from that list? How large will that list be? Will it contain the names of say, ten, 15 or 20 candidates as in the case of many other appointments by the Civil Service Commission and the Local Appointments Commission, and will they remain until that list has been exhausted? Will the names of two or three possible candidates be submitted to Government and discretion remain with the Minister or Government of the day to appoint one? That is the oldest trick in the book. The Department of Health engages in that practice all the time. While not reflecting on a particular Minister, it is a tradition that, in the appointment of boards, be they hospital boards or anything else, the Minister requests the names of two, three or four suitable candidates for appointment, when he or she will appoint one or perhaps two. It amounts to tossing the penny — heads, I win; tails, you lose. Because the Government always has the upper hand, it always wins.

Let us examine what will happen in the case of this Judicial Appointments Advisory Board. How accountable will that board be? Will it be like a number of other boards in that, whenever we ask a question about it, we will be told that the Minister is not responsible to the House in relation to it? That is a reply frequently trotted out. It is a worrying feature. While the old system may not have been great, at least we could ask questions in this House of the people responsible. While we might not receive answers certainly we could pursue the relevant issues. I have fundamental worries about the manner in which this Judicial Appointments Advisory Board will operate.

Perhaps the Minister would take note of the points I have made already. The most fundamental issue is whether we, as Opposition Members, can ask a member of the Government a question in relation to an appointment suggested or recommended by the board. The Government will make appointments on the basis of a submission received [1446] from this new board. Can we ask questions about the activities of the board? Can we ask about the recommendations of the board? I doubt that we will be allowed ask such questions. I have serious worries about that. In the absence of the facility to raise those issues and receive answers I would have to contend that change for the sake of change will be of no benefit whatsoever to this House.

The other matter to which I refer is the row that has erupted in Government which has necessitated the introduction of this Bill at this time. We are always anxious to resolve whatever difficulties Government parties might encounter. One should always try to assist in whatever way one can and should never endeavour to bring about circumstances in which a general election would take place or anything like that.

Mr. O'Dea: Especially when the Deputy does not want one himself.

Mr. Durkan: A strange and worrying phenomenon is beginning to emerge. Notwithstanding the political affiliation of appointees to the Bench they have always discharged their duties in an exemplary fashion without reference to political or social ideologies, good, bad or indifferent, which is to their eternal credit.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.