Dáil Éireann - Volume 446 - 02 November, 1994
Courts and Court Officers Bill, 1994: Second Stage (Resumed).
Question again proposed: “That the Bill be now read a Second Time”.
Mr. Durkan Mr. Durkan
Mr. Durkan: It has been clearly established that notwithstanding their political pedigree, the various appointments to the Bench over the years dispensed justice with absolute impartiality. It could never be said that they had in any way acted in a political fashion.
I am sorry that due to the undignified brawl between the two Government  parties the Judiciary has been drawn into politics in a way that was never done before. Irreparable damage has been done to the position of the Judiciary and those who will be appointed to the Bench. The basis for this argument derives from the recent controversy. For example, the two Government parties obviously could not agree on who should be appointed President of the High Court. A most unusual situation developed and a discussion took place on whether the people available for such an appointment were of one political persuasion or another. That raises a very serious question. It is not a reflection on the Judiciary, it is simply a sad reflection on the Government.
For the first time before an appointment is made it is suggested that, perhaps, one of several of the people who may be available for appointment may be of one political persuasion or another. That is a serious and sad moment in our society and it has brought the Bench into disrepute. The Judiciary was used by the two parties in Government to justify their positions and their existence. That is a sad day for this country.
I worry about what will happen in the future. Will people be nominated on the basis of whether they are of the political left, right or centre? If so it will lend itself to endless complications in the future. No matter what happens in the future there will always be the possibility of somebody pointing the finger, in the aftermath of a particular appointment, and suggesting that those who sat on the Bench at a particular time were on one or other side of the political divide. I do not recall that happening before. The Government has set the scene and the agenda for this and it will have to live with it. The Government should apologise to the Judiciary for the damage it has done.
I wish to refer to an issue that has been the subject of animated discussion in the past week or so, the suitability or otherwise of the Attorney General for  appointment to be President of the High Court. I have no knowledge of him being anything other than a decent man. In the few dealings I had with him he seemed to be an honourable and upright person. However, it has been suggested that he might have acted more speedily in a case involving a paedophile. The only information the Opposition can obtain is through the graciousness of Government Ministers when answering questions. That is not the hallmark of the Government, although there are one or two notable exceptions.
If the information available is correct then we have a serious problem. I strongly support the call by my party leader this morning not to proceed with the appointment until such time as this matter has been cleared up, both from the point of view of the individual concerned and the fact that it will affect all other such appointments in the future.
The Attorney General is the legal adviser to the Government. There appears to be confusion in certain quarters, as the Committee of Public Accounts learned recently, as to his position. He is not legal adviser to the State but rather the legal adviser to the Government and that is his official responsibility. Legal advice proffered on various issues is fine but it is not within his statutory function.
There is an obligation on the Government to illustrate clearly what happened to the request for a warrant for the extradition of a paedophile in recent times. Was there an unnecessary delay? Who was contacted? Did the British authorities contact anybody other than the Attorney General's office? Were any Ministers involved? Were any Ministers alerted? When there was no response was any other Department involved or alerted and, if so, what was the response? These questions must be answered in the near future or otherwise the office will fall into disrepute.
The Government has already fallen into disrepute. A political scrum takes place between the two parties every  time a political appointment has to be made and if a heel against the head can be achieved, so be it. Those appointments were normally made without any reference to politics. The scrum will take place, one way or another somebody will win and everybody will know about it. That has not been the tradition and there is no evidence to suggest the system did not work well in the past. The Minister should reply to some of the questions raised in the debate. Failure to do so would cast a shadow over the method and manner of proposed appointments and the office of various officeholders which would not be in anybody's interest.
Having regard to requests for the processing of an extradition warrant, we cannot afford to deal with the Office of the Attorney General in anything other than an exemplary fashion, particularly as two jurisdictions are involved. There must be trust between the jurisdictions. I hope the matter will be resolved before the debate concludes.
Deputy Burke referred to the suitability of lawyers for appointment to the Bench. What type of assessment will take place? I hope the Government does not propose introducing a FÁS scheme to train people before they are deemed suitable for appointment. The standards applied are very high. In endeavouring to achieve the highest possible qualifications for such appointments the Government has decided to introduce a system for assessing people's suitability. On what basis will suitability be assessed? Will people affiliated to Fine Gael, the Progressive Democrats and the Democratic Left be excluded and those affiliated to the Labour Party and Fianna Fáil be included? This is a dangerous and peculiar development and one wonders what will be its effects. To be fair, perhaps the system will include those affiliated to Opposition parties and exclude Government-supporting members of the legal profession. That would not be fair either. I would like to know more about the proposed screening process. I am sure the legal profession will not be  impressed by it, but no doubt the Government has its reasons for going down that road.
We support certain aspects of the legislation. Obviously, inspiration for it was drawn from a Private Member's Bill introduced by my colleague. Deputy Gay Mitchell, and we compliment the Government in that regard. I hope the questions which I and other Members on this side raised will be answered. Failure to answer them will only exacerbate further the cloud that hangs over the Government's power to appoint, the Office of the Attorney General and other offices filled by the Government. Unless and until those points are cleared up many questions will remain unanswered.
Mr. O'Donoghue Mr. O'Donoghue
Mr. O'Donoghue: The Bill contains many worthwhile provisions, reflecting considerable credit on the Minister and Minister of State. There are, however, certain provisions which I perceive to be a Labour Party input with which I have some difficulty because their constitutionality may be called into question. In our Constitution the doctrine of the separation of powers underpins the Government of the State and there are good reasons for that. The Judiciary may not interfere with the Executive and the Executive may not interfere with the Judiciary. The late Deputy and former Minister, John Kelly, was blessed with one of the finest minds elected to this House. When contemplating the role of the Judiciary in modern society he said it had been beneficial, rational, progressive and fair. That sums up the role of the Judiciary since the foundation of the State.
Deputy Burke referred to a quotation from Mr. Finlay, the former President of the High Court, in the case of the State and Walsh v. Murphy reported on page 275 of Irish Reports. On that occasion Mr. Finlay stated that the appointment of a judge is an act requiring the President's intervention for its effectiveness in law but, in fact, it is the decision and act of the Executive. The Bill proposes the appointment of a  Judicial Appointments Advisory Board comprising mainly judges. It has been stated in the print media and on television and radio that the Government, having received at least three but not more than five names from the advisory board, will appoint a judge from that list and that it would be unusual for the Government to do otherwise. That represents a sea change in the appointment of the Judiciary. Are we coming perilously close to the Government's role in the appointment of the Judiciary becoming interventionist in its scope? That raises the question of the extent to which the sovereign duty of the Government or the Executive is circumscribed. The Supreme Court may hold that, as the Judicial Appointments Advisory Board will exercise only an advisory function and as the Government can make appointments of people other than those whose names are submitted by the board, the constitutional prerogative of the Government would be upheld. When does a convention become a custom and a custom become a law?
If it should become the convention or custom that the Executive appoints the Judiciary from the names supplied by the advisory board, one could then argue that the process of selection is in direct contravention with Article 13 of the Constitution which provides that the powers and functions conferred on the President by the Constitution shall be exercisable and performable by him only on the advice of the Government, unless otherwise stated.
Clearly this includes Article 35 which provides that judges will be appointed by the President. There is a difficulty here which needs to be cleared up, something that must be given weighty and serious consideration. I foresee a further difficulty with this provision. It is anticipated judges will be appointed by Government from the list for the most part submitted by judges. This means the Judiciary will have the majority vote on whom their next colleague should be.
 My argument on the blurring of the distinction between the Judiciary and the executive is reinforced by the Judiciary now being given an opportunity to interfere in the executive process by deciding who should be their next colleague or next judge. That is not desirable, for many reasons other than the blurring of the distinction. One such reason could relate to a barrister who would like to become a High Court judge but would have to appear before the judge to fight a hard case and advance a strong argument, disagreeing fundamentally with the judge in court while looking forward to his interview the following week for a place on the High Court? That type of procedure is undeniably undesirable in theory.
There is also the question of the Judiciary becoming a self-perpetuating elite. The Judiciary is not a members' club and must never become one. Its absolute independence from the Executive is of paramount importance under the Constitution. The independence of the Judiciary must be seen to be transparent and, of necessity, must be seen to be independent of the Executive.
It was pointed out in a recent newspaper article that in 1782 the Irish Parliament passed an Act to secure the independence of judges and the impartial administration of justice. From that year onwards judges could no longer be swept from office at the whim of Government, as apparently the whole bench had been in 1714 when Queen Anne died. Since the enactment of the Irish Constitution of 1937 judges can be removed from office only for stated misbehaviour or incapacity, then only upon resolutions by both Houses of the Oireachtas. The independence of the Judiciary is fundamental to the proper operation of the provisions of the Constitution.
The question of what forces might be anticipated as likely to threaten judicial independence was considered by the Supreme Court in O'Byrne v. the Minister for Finance, when the answer given was that obviously the danger of interference with independence arises from  the executive and legislative organs of State. Everybody would agree that, as much as it is crucial for judicial independence that such appointments be independent and be seen to be independent it is essential also that, once appointed, a judge should know that he or she is secure in office until he or she dies or reaches a specific age. However, the question of what that age should be is a matter of concern.
The Bill proposes that judges retire at the age of 65, although, happily, the Minister has seen fit to extend that to 68 years. It must be remembered that a judge is like a very fine craftsman; it takes years of experience, learning and wisdom to become a wise judge. Some of the finest judgments delivered in this State have been delivered by judges who were well over the age of 65. Indeed some of the most enduring judgments internationally have been delivered by judges who were well over the age of 65. One thing that would not be acceptable would be a year to year renewal of the appointment of a judge because that would clearly interfere with the independence of the Judiciary. Any act, even in good faith, which can be seen by the public as an interference with the independence, must be avoided. That is of crucial importance because the doctrine of separation of powers underpins the Constitution and the Constitution decides the governance of the State.
On the training of judges, it is proposed that judges be trained by some body, some group or educational establishment. Of fundamental importance here is who is to train judges, who is to shape and mould their minds in such a way that they will be able to deliver coherent, clear-thinking judgments? Such a programme of training would interfer with the independence of the Judiciary. Men and women appointed as judges, the judicial arm of this State, are people of considerable, practical experience and must have practised before the courts over a period of several years. They are in daily contact with the plight of ordinary human beings and learn  from this experience, which gives them an insight into people and into the law, which no amount of training by any educational establishment or group of people can give. Judges cannot be trained, they evolve over a period. Their training is not in the interests of the integrity of independence of the Judiciary.
I have difficulty also — and it is well that such difficulties be pointed out at this stage — with section 4 (2) (a). This Bill purports to transfer the powers of the Supreme Court in appeals, not being constitutional appeals and not being matters of public importance, to the Court of Civil Appeal. While the Court of Civil Appeal is welcome, where does that leave a litigant whose case has been heard in the High Court, who this very day has the right of appeal to the allembracing Supreme Court? That litigant is not to be told that his case must be heard in the Court of Civil Appeal. The problem is that the rule of stare decisis as it operates in our Supreme Court binds all courts below it and only the Supreme Court can reverse a decision of the Supreme Court. It is clear that the Court of Civil Appeal will be bound by stare decisis laid down previously by the Supreme Court. To this extent the law is being circumscribed. The ability to move to change and to evolve with changing patterns is certainly inhibited. I accept that the Supreme Court will still have power to decide issues of public importance and constitutional matters but the fundamental rule of stare decisis remains.
There has been considerable public debate in recent years on the question of disgracefully high insurance premia. It has been suggested that the problem would be resolved by capping compensation payments. Not too many insurance companies go out of business, and insurance companies which claim they are running motor insurance at a loss are more than compensated by their other ventures. It would not be right of this House to interfere with the concept of bodily integrity any more than a person should be penalised for  being in the wrong place at the wrong time. Capping would interfere with the judicial process.
On the well worn question of wearing wigs, this practice was inherited from the British empire and should have been dispensed with years ago. I congratulate the Minister and the Minister of State on doing so. There is no penalty clause in relation to wearing a wig. I must assume, therefore, that the court would hold a barrister in contempt under the provisions of this Bill if he or she were to arrive in court wearing a wig. However, the person holding the barrister in contempt would, in all probability, be wearing a wig. There is a need to reconsider that provision with a view to ensuring that it can be enforced.
In general terms I welcome the vast majority of the Bill's provisions and congratulate the Minister for Justice and the Minister of State. I have outlined matters which are of concern to me. To put the issue beyond doubt I urge the President to refer this Bill to the Supreme Court.
Mr. Browne (Carlow-Kilkenny) Mr. Browne (Carlow-Kilkenny)
Mr. Browne (Carlow-Kilkenny): Táim cinnte go bhfuil an Bille seo os ár gcomhair toisc go raibh troid fhíochmhar idir Páirtí an Lucht Oibre agus Fianna Fáil. An té nach bhfuil láidir, caithfidh sébheith glic. Is dócha go raibh an Tánaiste glic agus gur ghlac sé leis an mBille seo. B'fhéidir go ndéanfaidh sé maitheas éigin. B'fhéidir go mbeidh troid fhíochmhar eile sula mbeidh na toghchán i gCorcaigh thart, nuair nach mbeidh an dara rogha ag dul mar ba mhaith leis an Rialtas.
Unlike the last speaker who spoke about the status of judges and felt they should go on, like Moses, striking rocks into old age, I think 65 is well past the time for many of these judges to retire. They should be treated as human beings. If civil servants, advisers to Government Ministers, Government Ministers and teachers are supposed to be old at 65, it is time judges were treated in the same way and 65, as far as I am concerned, is a grand time for  them to go out to grass and think of all the mistakes they made when they set up with arrogance profound.
I had to listen to a High Court judge one day looking for a yes or no answer to the question “did you brake when you met oncoming cars?” That is something a driver does automatically — if one is chauffeur-driven one does not know the experience. The event in question had taken place three years before that and I think the judge was prepared to have the fellow up for contempt of court because he hesitated in answering. That attitude of being out-of-touch with reality has shattered my confidence in judges, apart from what a solicitor told me once about an occasion when a child came flying out of a side road on a bicycle into the side of a car. When I asked the solicitor if he would appeal the case he said that every judge in Ireland will give compensation to a child as long as there is insurance on a car, regardless of whether the child has dropped out of the sky in front of the car. I wonder at times if justice is administered in court.
I am pleased that 72 years will no longer be the age at which judges must retire. I am not sure whether it is 65 or 68 now but it is still too old; judges should be retired before that. If I have a chance to vote against that, I will; although I may not bring down the Government I will have expressed my view.
I am not too pushed about the wearing of wigs. If people want to wear wigs and are happy in that awful garb, that is fair enough. It has no impact on speeding up the court process.
I worry about delays in court. This Bill deals mainly with the upper levels of court. I will not deal with that because several people have spoken about the appointment of judges, the advisory group, etc. The vast majority of people deal in the Circuit Court and I find it difficult to understand why it cannot be dealt with in this Bill. The Review Body of Civil Jurisdiction in England, published in 1988 said:
 Delay undermines justice. It reduces the availability of evidence and erodes a reliability of that which is available. It denies compensation to those who are entitled to it until long after it is most needed. Delay causes continual personal stress, anxiety and financial hardship to ordinary people and their families. It may induce economically weaker parties to accept unfair settlements. It also frustrates the efficient conduct of commerce and industry.
For that reason we should do everything possible to avoid delay.
I note that solicitors can now be appointed to the Circuit Court and I welcome that. Solicitors have a practical down to earth experience of living in the real world and would bring sanity to the position of judge of the Circuit Court. County registrars are appointed from the ranks of solicitors and they look after the Circuit Court.
Section 31 allows the Master of the High Court to exercise limited functions and powers of a judicial nature. I would like similar powers to be granted to registrars in the Circuit Court. Given that a review on that has been undertaken, it is disappointing that such powers are not provided in the Bill. Registrars must have eight years practical experience. While their work could be compared to that of clerical officers their salaries are on the level of an assistant secretary in a Department and that is only correct. I cannot understand why those people who are qualified in legal matters are not given appropriate responsibility. A clerical officer could nearly do the work of a registrar. Like the Master of the High Court the powers of registrars should be extended.
There is a pile up of cases in the Circuit Court at present. An article on my county was published in the SeptemberOctober 1994 edition of the Law Society Gazette. It states:
According to Carlow Bar Association, criminal matters are receiving a disproportionate share in the Circuit  Court and the number of criminal trials pending would prevent the Court from dealing with District Court civil appeals, civil and matrimonial cases in forthcoming sessions [this actually happened]. The Bar Association estimates that cases that were ready for hearing in June 1993 are unlikely to be reached until February 1995 at the earliest. [It will probably be June 1995, almost a two year delay, before new cases are dealt with.] The Circuit Court sits in Carlow for four weeks each year but only one week is allocated to non criminal business.
At the request of Carlow Bar Association the society made representations to the Department of Justice to point out that a delay of this magnitude was unacceptable. The society reiterated the call by Carlow Bar Association for greater time to be allocated to civil businesses or for an alternative solution such as the allocation of an additional Judge to the Carlow Circuit to deal with the backlog of civil work. They welcomed the announcement that the Department review of activity levels in the Circuit Court has been completed but, again, they asked the Department to take urgent action to deal with the situation in Carlow.
Given that a review of the activities of the Circuit Court, its efficiency and level of work has been completed why does the Bill not address the needs of the Circuit Court where the limit on claims dealt with has been increased fron £15,000 to £30,000? That has resulted in the work load of the Circuit Court being nearly doubled and resources have not been provided to deal with the additional work. Prior to that change cases in the Circuit Court were not up to date but there is a big backlog now. Delays result in additional costs. Sometimes cases are postponed and solicitors are delayed in dealing with other cases. Perhaps a stricter line should be taken on appeals and petitions to postpone court cases and rigid rules should be set allowing the postponement of cases only when people  are ill in hospital and so on. Perhaps too many frivolous reasons are given for postponing court cases, leading to delays and increased costs.
There are problems also in Laois, part of the midlands circuit. A study carried out there compared the number of cases dealt with in 1983 to those dealt with in 1993. There was a general increase, but I was flabbergasted to discover that appeals from the District Court increased from 100 in 1983 to 973 in 1993. The appointment of an additional judge would be required to deal adequately with the increased work load. The Circuit Court also has responsibility for family law cases which have contributed to the increased work load. If we do not address the problem of the backlog of cases in the Circuit Court there will be increased delays. A review body in England has said that delay undermines justice. In Laois it is estimated that the minimum time a litigant must wait for his or her case to be heard is 12 months.
Under the ground rents Act registrars are allowed to be arbitrators and their legal skills are recognised under it. Why is it not possible for them to deal in other quasi-legal affairs, such as claims in respect of car accidents? Claims are often increased to justify their being heard in the Circuit Court and they far exceed a realistic figure. More often than not, a barter system is in operation. Registrars, who are qualified solicitors, could deal with a good deal of work which causes delays in the Circuit Court. I would not envisage it would cause a problem as long as people have the right to appeal.
The talents of our registrars should not be wasted. Judges should be like surgeons; they should do their job and leave the administration work to registrars who are officials of the Circuit Court. To address the problem of the delay in dealing with cases in the Circuit Court it is necessary to either appoint additional Circuit Court judges and provide the required back-up staff or  increase the number of seessions. A Circuit Court judge in the midlands circuit sits longer hours than his predecessor, yet that has not had any great effect in reducing the backlog of cases. The power of registrars should be increased and they should be given additional work of which they are capable. New circuits should be set up and others should be discontinued.
It is an archaic system that a judge appears once a term in an area to deal with a backlog of cases. If the Master of the High Court can be given new powers to administer his or her court, registrars in the Circuit Court should also be allowed administer the court under their jurisdiction. That change could be achieved without involving additional costs. Registrars are being paid a high salary but they are being asked to use their talents to less than 25 per cent of full potential. It is time that position was addressed. I would like to share the remainder of my time with Deputy Jim Mitchell.
An Leas-Cheann Comhairle Joe Jacob
An Leas-Cheann Comhairle: I am sure that is satisfactory.
Mr. J. Mitchell Mr. J. Mitchell
Mr. J. Mitchell: I am grateful for the opportunity to contribute, albeit briefly, to this important debate. The question of the performance of the courts is an important one and deserves the most detailed scrutiny. Courts and individual judges are rightly independent in the performance of their duty, yet we must square their independence with some degree of accountability. I do not mean accountability in terms of decisions or judgments made. Judgments, except in the case of the Supreme Court, can always be appealed upwards. In the case of the Supreme Court a single judge does not make a decision; it is a collegial court. Since my brief tenure as Minister for Justice I have been concerned that there is not a way to measure, criticise or improve the efficiency and effectiveness of the courts. Will the Courts Commission have a role in that respect to ensure the efficiency and effectiveness of courts in general and individual  courts in particular? I know of cases that were delayed in court because a judge misled papers or had forgotten the facts of the case. Nobody, not even the Chief Justice, has a role in dealing with such judges. This is an important debate and we should be seeking, perhaps through the vehicle of the Courts Commission, to bring about accountability in the performance of the courts.
We should go much further in distancing from the political process appointments to the courts. This Bill is a step in the right direction though I criticise it in one respect — that the Judicial Appointments Advisory Board is a completely in-house body composed of judges and people from the Incorporated Law Society and the Bar Council. The Law Library and the legal profession generally is very incestuous, a very powerful lobby whose interests are not always coincidental with those of the public and whose views of what is appropriate are not always what the public see as appropriate. I ask the Minister to consider appointing to the Judicial Appointments Advisory Board experts other than lawyers, for instance, people with senior management and personnel experience who understand management matters. That would ensure efficiency as well as judicial jurisprudence.
While I welcome the proposals in the Bill, the words of the Constitution should be given much more consideration. The Constitution provides that judges shall be appointed by the President. It provides also that all functions of the President granted by the Constitution shall, except where it is specified it should be at that office holder's absolute discretion, be exercised on the advice of the Government. I accept that, but in practice it has been taken to mean that the Government has the initiative in nominating judges and the President can only appoint the person whose nomination has been initiated by the Government. If this Bill is enacted the Government's initiative will be confined to the Chief Justice, the President  of the Court of Appeal and the Presidents of the High Court, Circuit Court and District Court. I do not know why the Government is retaining that initiative. My party made a proposal in this regard before the Bill was published.
A law consistent with the Constitution could be drafted to give the initiative of nomination to the President in consultation with an advisory board along the lines I suggested. The President could go to the Government for its advice on the person she believes should be appointed and at that point the Government could give its advice. It is very clear from the recent coincidence of the Beef Tribunal report and the appointment of the Chief Justice that these matters are open to misinterpretation. It is much better for all concerned that there be a greater distance between the Executive and the Judiciary. The initiative should be given to the President, who could also be chairperson of the Courts Commission. The Constitution states that the President can be assigned, by law, to such other functions as the Legislature sees fit.
Recently we granted substantial increases to judges, in line with the substantial increase given to Ministers. While we are giving judges of the Supreme Court much higher salaries, in this Bill we seem to be taking from the Supreme Court a great bulk of its functions. What will be the role of Supreme Court judges? How busy will they be? Will they work full time or part time? One of my concerns, particularly in my roll as Chairman of the Committee of Public Accounts, is that we seem to be creating three new bodies: a Court of Appeal, which I accept will supplant the Court of Criminal Appeal; a Courts Commission and a Judicial Appointments Advisory Board. This will involve additional cost to the Exchequer. Have these bodies been measured for efficiency, effectiveness and value for public money?
The independence of the courts can be squared with proper accountability in a democracy. For instance, in the UK the Lord Chancellor who is a member  of the Cabinet also has a role in terms of the performance of judges. He can reprimand and censure individual judges for poor performance or behaviour. Even if this Bill is enacted there will be nobody here with such a role. While such a person should not be in the Executive or political field, because of the need to separate the executive from the Judiciary, that role could be granted to the President. The presidency is an office that is under-utilised. The President — not only the present incumbent — would be a particularly apt person to oversee the performance of the courts and make recommendations on judicial appointments.
I carried out surveys in my constituency about two years ago on people's perception of crime on the ground, the findings were interesting. It was clear that most people who are concerned about and want action on crime do not favour a hang-'em, flog-'em policy. It was surprising that while the Garda get huge support from the public, the courts are held in poor regard by many people. I take no satisfaction in making that point, but it highlights the fact that there would be great support among the public for any steps that would be taken to make the courts more efficient, effective and realistic in making decisions.
I hope that this Bill is not carved in stone and that the Minister will be willing to accept amendments. I hope she will be prepared to accept amendments to the make-up of the Judicial Appointments Advisory Board. It would be an important improvement if the board was not comprised of lawyers, as proposed, and management and personnel expertise was imported.
Miss Coughlan Miss Coughlan
Miss Coughlan: The major change envisaged in creating a new intermediate appellate court is long overdue and meets with universal approval. This Bill will ensure that citizens with personal injury claims in the High Court can look forward to an early resolution of their cases where the outcome is appealed. For too long the legal system has been  open to the criticism by aggrieved citizens that justice delayed has resulted in justice being denied.
The Supreme Court, as we are constantly reminded, is greatly overburdened by the vast array of major constitutional, commercial and common law cases which are becoming a feature of our increasingly litigious society. The removal of private citizen personal injury claims from the Supreme Court is welcome. This new court, with the powers given in section 37, which should result in full disclosure of all the pertinent medical and technical evidence in these cases, can only oil the wheels of justice and ensure a speedy resolution of them.
The benefits are twofold. The Supreme Court should now be free to tackle the major cases on which it is increasingly being asked to adjudicate, the outcome of which can and very often does touch upon the life of every citizen.
The 1991 Courts Act increased the civil jurisdiction of all courts and the amount of damages such courts could award by way of civil remedy. The practical consequence of this Act has been a huge increase in the volume of litigation conducted in the Circuit Court. In County Donegal there are currently 157 civil cases to be dealt with, the majority of which relate to the claims of ordinary people for damages resulting from injuries received in road traffic accidents. These cases cannot be heard in the immediate future and to this extent I ask the Minister and the Minister of State to give urgent consideration to increasing the number of Circuit Court judges and reducing the size of the circuits. Many circuits cover as many as four counties to be dealt with by one judge. My circuit, the northern circuit, stretches from Buncrana in Inishowen to Castleblaney in County Monaghan.
Part III of the Bill which deals with the proposed Judicial Appointments Advisory Board is also welcome. Transparency in the manner of appointment of judges is something with which we, as  legislators, should be rightly concerned. The practical workings of the board and its proposed constituent members cause me some concern based on a consideration of our Constitution. It is envisaged that a committee of the board will recommend candidates for judicial appointment by the Government. The Bill states, that the Government shall first consider the names submitted but need not necessarily be bound by them. Where a Government proposes to appoint a person not recommended by the board a degree of constitutional friction may arise. The Judiciary is, by constitutional ordinance, distinct, separate and wholly independent of either the Oireachtas or the Executive. This solemn constitutional separateness has served this country well and the independence and integrity of the Judiciary is testament to that constitutional prerogative.
The senior judges who will constitute the majority of this board may be drawn into unnecessary conflict with the Government if their nominee is not accepted. One thinks immediately of the column inches in the media — who could blame them — in the event of the Government seeing fit to overlook the considered choice of the most senior judges in the land, especially when that choice is supported by reasons as it must by virtue of section 25 (1).
Mr. J. Mitchell Mr. J. Mitchell
Mr. J. Mitchell: I hesitate to interrupt Deputy Coughlan but I draw attention to the fact that we do not have a quorum in the House.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
Miss Coughlan Miss Coughlan
Miss Coughlan: I did not realise what I had to say was contentious, that the Fine Gael Deputy did not want to hear what I had to say; perhaps he had a minor message to deal with. If more Members of his party were present he would not have to send out for them.
Mr. Power Mr. Power
 Mr. Power: They have a history of bad kidneys.
Miss Coughlan Miss Coughlan
Miss Coughlan: As regards section 25 (1) in the event of the Government seeing fit to overlook the considered choice of the most senior judges in the land especially when it is supported by reasons, would this be interpreted as a vote of no confidence in them? The potential for conflict is obvious and its consequences, given the constitutional separateness about which I have spoken are alarming. However, on the contrary, if a future Government felt compelled by way of some unwritten constitutional consciousness in all instances to appoint a judge from the list provided by the board, the consequences would be equally imperfect.
Judges are not constitutionally envisaged or intended to be the Government's recruiting agents. Furthermore, six of the intended eight members are judges and they are being asked to recruit for the Government from among their own ranks their potential successors. I ask the Minister to consider the points made by other Members on appointing additional people to the board, if it is to continue. It is a potentially invidious and unfair to ask independent judges to adjudicate on those who, in many instances, are their friends and former colleagues. A lawyer considering judicial appointment may well wonder whether to give his all in a courtroom battle which may be presided over by a member of the interview board. Article 6.1 of the Constitution states:
All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
The people, through their elected representatives, are excluded from their constitutionally given right to designate their rulers of the State and, therefore,  ultimately to determine who shall exercise all powers of government, legislative, executive and in this instance judicial. I have solemn constitutional concerns about the potential practical workings of such a board and its constituent members in close proximity to the Government, touching on such constitutional sacred territory.
There are incidental provisions relating to the workings of the board which also appears to be unusual. The board may, for instance, consult the Attorney General about the suitability of a person to hold judicial office but should they consult him or her about one or all of the nominees? If the Attorney General is to be consulted in what circumstances should he be consulted and why not make him a member of the board in the first place?
Section 25 (4) states: “A committee shall not submit to the Minister the name of any person under subsection (1) of this section unless the person has attended a course of education or training...” It is apparent, therefore, that all nominees intending to seek judicial office should attend such a course, but who will pay for it, what will it entail, how long will it take to complete, who will evaluate the nominees during their time on the course, will there be a written or oral examination at its conclusion and who will evaluate the results of same? All these questions have to be firmly teased out before such structures are put in place.
Part IV of the Bill which has two sections, 29 and 30 deals with the establishment of the Courts Commission but the composition of its members is not dealt with. Will they be judges, civil servants, lawyers or lay people? Will they report weekly, monthly or annually and are they to comment on the administration, funding and condition of courthouses? Will it be their brief to extend to individual judges their judgement, legal policy, the legal system, particular advocates or lawyers?
The organisation and management of the courts and court service are matters  almost wholly within the remit of the Department of Justice in consultation with the various judicial presidents. Do we really need another group?
The intended extension of the powers of the Master of the High Court is undoubtedly commendable but is it permissible under our Constitution? The proposed powers to be given to the Taxing Master of the High Court on legal fees is universally welcome. The public has read, with a mixture of awe and wonderment, about the legal fees which some lawyers are capable of commanding. By and large these fees were fixed under a scale fee structure but by virtue of the Competition Act, 1991, and the express overtures of the then Minister, Deputy O'Malley, the lawyers abolished the scale fees and the cost of the Beef Tribunal is one of the results of that single minded pursuance of this policy. The market dictates all — a laissez faire policy, beloved of that Deputy's party, may well frustrate the Minister's very laudable intentions in this regard.
Sílim go bhfuil a lán oibre le déanamh fós. Ag éisteacht le gach duine atá ag caint sa díospóireacht seo, sílim nach bhfuil gach duine sásta mar gheall ar an méid atá os ár gcomhair. Tá súil agam go mbeidh muid ábalta níos mó a dhéanamh, go mór mór nuair a théann an Bille seo os comhair an gcoiste. Guím gach rath ar an méid oibre atá le déanamh fós ag an Aire Stáit agus ag an Aire, ionas go mbeidh gach duine sásta leis an mBille, Bille an-thábhachtach a bhfuil go leor daoine ag caint faoi, ní amháin sa Teach seo ach taobh amuigh freisin. Fáiltím go mór an Bille agus tá súil agam go mbeidh muid ábalta níos mó a dhéanamh taobh amuigh den Dáil, sa choiste go mórmhór, ionas go mbeidh muid sásta leis an mBille seo.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley: This Bill makes its appearance now as a direct result of an extraordinarily unseemly row between the two Government parties, and more particularly the two Government party leaders on the question of whom to appoint to the Presidency of the High Court. This row has dragged the  Judiciary and the judicial process into unnecessary disrepute. It is a scandalous and petty squabble for which the two parties and the two party leaders rightly deserve the contempt of the country. The people of Cork will soon have the opportunity to express that contempt and I certainly hope they will.
As far as they go most of the provisions of this Bill are welcome but none is new. As far back as 1987 I recommended the establishment of a Court of Appeal and Deputy McDowell recommended it on several occasions since then. We included it in the Programme for Government in 1989 but we could not get the Fianna Fáil Party to take it up and implement it.
The provisions of the Bill, which are far from revolutionary and only of limited value are the small price that Labour asks to be paid to take itself off the hook, of its own making, in the Whelehan affair. Tactically, the Labour Party was wrong from the start. It handled the matter extremely badly. Bad and all as its tactics and wrong as its motives may have been I believe it is right in its objections to the appointment of Mr. Whelehan, the Attorney General, as President of the High Court. The question arises as to whether he is suitable for appointment to any senior judicial post or office.
The first thing that must be said about the Attorney General and his attitude to the present controversy is that he must want the job extraordinarily badly if he is prepared to endure the open contempt of more than one-third of the Government he serves. Any senior lawyer endowed with a less thick skin would long since have declared that he had no interest in the post and would have preserved his dignity and that of the Judiciary generally.
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: I am sorry to intervene but I have consistently sought, as the Deputy is well aware, to ensure that no reflection of this kind was made on a constitutional officer who is defenceless against accusations made against him in this House. I appeal to  the Deputy not to personalise matters and not to say anything that would reflect on the character or good name of the incumbent of the present Office of the Attorney General because in this privileged assembly he cannot defend himself.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley: It is impossible to talk about the present matter without referring to the Attorney General who is at the centre of all these matters.
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: The office may be in the public domain but the personality should not be reflected upon.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley: You will recall that when Deputies tried to raise aspects of this matter this morning you advised them that they could do so in this debate.
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: The Chair has consistently said that if serious charges are to be made against any persons inside or outside this House they should be made by way of substantive motion. That has been my advice to the House in all circumstances where the character or good name of a person outside the House was likely to be reflected upon by way of accusation or innuendo across the floor of this House.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley: Sir, I will try to observe as best I can what you say but I simply want to describe, as I see it, the public actions of the Attorney General in the exercise of his duties as a public official. He is answerable to this House through the Taoiseach although he is not a Member of the House.
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: He is essentially a constitutional officer of the State.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley: He is not, Sir. He is a legal adviser to the Government.
The period in office of the present Attorney General is richly endowed with controversies and mistakes. There is a long litany of such incidents and it  is only necessary to refer to a few of them here. His handling of the “X” case was, frankly, grotesque if viewed from the point of view of either humanity or common sense. By way of contrast to the speed with which he pursued that unfortunate child, we had his unwillingness, over a very long period, to do anything to allow the extradition of the paedophile priest, Fr. Brendan Smyth, to Northern Ireland to answer very serious charges. This deliberate prolonged delay by the Attorney General had the effect of protecting the priest at the potential expense of innocent young people. His failure to deal with the matter over a prolonged period was in spite of repeated requests from the gardaí——
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: I am sorry to intervene but if the Deputy is to go on to a sustained attack of that kind I ask him again to consider the situation and do as I say, namely, put down a substantive motion on the matter. He should not make those kinds of allegations across the floor of the House. This is not a court of law and it is quite unjustifiable.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley: Sir, it is my belief that I am entitled to comment on the public actions of a public official——
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: I suggest the Deputy may comment on the office but not on the personality involved.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley:——who is answerable to this House through the Taoiseach. I do not wish to reflect on his personality, Sir. I simply wish to draw attention to some events.
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: The Deputy knows the view of the Chair.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley: I do, Sir, and I am trying to observe it but I feel it is wrong to shy away from these matters——
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: I trust the  Deputy will not seek to circumvent that view.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley: ——particularly because of the point I am coming to now, that apart from what the gardaí had asked in terms of the exercise of his powers under the extradition Acts, it now appears that this delay occurred in spite of requests from the British Attorney General, as disclosed in the House of Commons yesterday. It is an eloquent commentary on the pathetic futility with which we find ourselves faced and the total lack of parliamentary and democratic accountability in this House that that information was readily forthcoming in the House of Commons yesterday but questions on the same point here were disallowed in the House or not answered.
The deliberate prolonged inaction was bad enough but what is even worse is the way in which some of his Fianna Fáil colleagues such as the Taoiseach and the Minister for Transport, Energy and Communications, in particular, were copied in hiding behind and blaming civil servants for his own shortcomings and for his unwillingness to be accountable for what happens in his own office. It is remarkable, but clearly part of a pattern, that on the very day the Minister for Transport, Energy and Communications was wheeling out a civil servant to take the blame for the alteration of an official document in relation to Galmoy, the Attorney General, in this House, through the Minister of State at the Department of the Taoiseach, was blaming civil servants for allegedly not showing him papers. It may or may not be true that the Attorney General did not see these papers but I find it impossible to believe he was not aware of the fact that an application had been made for the extradition of this priest and that he was not aware of the need for him to deal with the matter under the Extradition Act, 1987.
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: I wish the Deputy would show some restraint in  relation to his remarks about the Attorney General. It is going a bit far to continue along that line, Deputy.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley: That makes it difficult to speak as one might wish in this House and it tends to underline the point I already made.
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: The Chair does nothing more, in accordance with the long standing conventions of this House, than safeguard the good name and reputation of Members outside the House who are defenceless against allegations of a serious kind made against them in this privileged assembly.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley: Sir, many things were said about me inside and outside this House and I have had to put up with it.
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: I am not concerned with what happens outside this House, Deputy.
Mr. O'Malley Mr. O'Malley
Mr. O'Malley: I feel I am entitled to comment on some of the events. In particular, the doubts I expressed are compounded by the manner in which a certain matter was investigated early last year and I am familiar with all the circumstances.
When I made a complaint to a certain constitutional officer, as we shall call him, about the conduct and activities of a certain barrister employed by the State in the beef tribunal based, I might add, on that barrister's own admissions, I was told there would be an investigation of the matter by the constitutional officer concerned. He purportedly carried out some form of rapid investigation by speaking only to the barrister concerned and to some others on the State team and, having heard their version of the matter, he purported to make a finding which he published at lunch time that day to the effect that the barrister concerned had acted properly and that there was no foundation for my complaints.
This seemed to me to be akin to a judge acquitting a defendant without  hearing the case or the evidence for the prosecution. Even when that evidence was given to him later that day — and it was abundantly clear what the import and effect of it was — he refused to withdraw his purported finding. Subsequently, the barrister's own professional body held an inquiry into the matter where it found the barrister concerned to be seriously at fault and it imposed a substantial fine on him. That body could scarcely be described as being biased in my favour. Its findings cut the ground from under the constitutional officer concerned and the whole episode raises serious doubts about his ability to take an open and judicial approach to disputed facts.
The proposal to appoint the present Attorney General prior to the passage of this Bill by the Oireachtas flies in the face of the spirit of section 28 which makes it clear that the Government should first have regard to the suitability of existing High Court judges. Section 28 is right so far as it goes except that it should make it obligatory on them to do so and appoint one of their number to the post. When this controversy first erupted in September the Taoiseach put out the story that there was a binding convention that the Attorney General of the day would be appointed President of the High Court if such a vacancy arose. There is no such convention. I cannot recall any such appointment in recent years but if at some time in the past 72 years there was such an appointment, there does not appear to have been more than one and that cannot be regarded as a binding tradition. Few, if any, Attorneys' General were appointed President of the High Court and that such a story can be put out without challenge is a reflection on our commentators who take so much of what is dished out to them by the Government as gospel.
The costs provisions in section 36 are welcome. The present position is intolerable. That section and others connected to it deserve close scrutiny on Committee Stage to ensure they achieve the necessary objective of bringing costs  under control and preventing them being determined by judges.
One of the least important sections, although it gets a great deal of coverage, is section 41 which deals with the question of wigs. It applies only to barristers and solicitors. Why should judges wear wigs? That should be looked at on Committee Stage.
The proposal to appoint solicitors as judges of the Circuit Court is welcome but I do not understand why the same provision does not apply to High Court and Supreme Court judges. It is an indication of how slowly things move and change in the law that a provision along these lines was inserted by me in the Courts Bill, 1971 as Minister for Justice but it had to be removed from that Bill under “superior pressure”. I was young then and less able to stand up for my rights than I am now.
As regards the establishment of the Court of Appeal and the terms of employment of the president of that court, section 3 (2) (a) states: “a President who shall be an ordinary judge of the High Court designated by the Government...” Does that mean designated for good or from time to time? The ordinary judges who would serve there will be designated by the Chief Justice from time to time. If the president is to be designated from time to time it is most unsatisfactory because he can be removed from office if he gives a decision that does not appeal to the Government. That needs to be clarified. The subsection is unclear.
Another matter that needs to be clarified is what happens to a judge currently serving who may be appointed to the presidency? Will he continue to serve as president until age 72 or, under the other provisions will he retire at 65 years even though he can continue to serve as an ordinary judge of the High Court until he is 72?
I look forward to raising other matters on Committee Stage.
Mr. N. Ahern Mr. N. Ahern
Mr. N. Ahern: I welcome the Bill as a significant reform of the system. The  court system is central to our democracy and touches on the lives of more and more people as years go by.
There is provision here for a Court of Appeal as laid down in the Programme for Government. Throughout the courts system but particularly at Supreme Court level there is a huge backlog of cases to be heard. Many of these are appeals from the High Court. Important constitutional cases are heard before appeals with the result that many appeals are not heard for years. The Court of Appeal should help reduce the backlog of cases awaiting Supreme Court hearing.
Why are there different retirement ages for different judges? The general age for retirement in the public service is 65 years. The Minister is proposing change but almost reluctantly, and more or less suggests that the retirement age may not be 65 and there could be a compromise. I do not see why judges should be treated differently from other grades in the public or private sector. Deputy O'Donoghue spoke about great judgements given by judges in their seventies. Perhaps that is so, but I do not understand why genius should suddenly hit a judge in his later years of life any more than it should any other worker. A person is something of a rarity if he is still employed in the public sector at 65. I was employed in a semi-State body and early retirement was offered to anyone who wished to avail of it. I do not understand why it should be considered that a judge's best years lie ahead of him when other people must retire at 65. They should have to retire at 65 also. Naturally those who were appointed would continue to serve under the rules governing their appointment.
I welcome section 39 which deals with solicitors being eligible for appointment as circuit court judges. Why does the Bill not go further and say they could be eligible for appointment to the High Court and Supreme Court? I do not see any logical reason why this should not be done. Those who wished to be appointed would be assessed as to their  suitability, experience and knowledge of the law.
Since 1971 solicitors have the right of audience in all courts. However, very few solicitors have taken it up because they believe judges, ex-barristers, frown on it on the basis that their profession will be done out of a fee. Naturally, a solicitor wants to be on the right side of a judge and does not want to step on his toes.
I welcome the proposal to appoint solicitors as judges of the Circuit Court. Obviously this will encourage more solicitors to take cases to the Circuit Court. I would like to think solicitors could aspire to being appointed judges of any court so that there would be a fundamental change in the system and solicitors would take cases to all courts. This would give people a much greater choice and reduce the staggering cost of taking a case to court.
The Constitution provides that the final appointment to the Judicial Appointments Advisory Board, will be made by the President. While recommendations made to the Government can only be taken as advice, obviously it will find it difficult to veer away from these. During debates on legislation reference is made to the need to make the system more transparent. This is fine in theory but may not be so in practice. There seems to be a demand to take the decision making powers away from the Government and give them to an independent board. This is merely sucking power away from the Government and politicians, and I question this. Many of these boards are so independent that they are almost not answerable to anybody. Decisions made by such bodies outside the political system may not be better than those made by Government.
The system for appointing judges has served us very well up to now. The independence and integrity of judges is of the highest standard and judges are very well respected. Odd decisions have been made by judges from time to time but the same can be said of some of the decisions made in other walks of life. Most people regard the Judiciary as  knowledgeable, learned, good and fair minded interpreters of the law. However, recent events may have damaged this reputation. Some judges were appointed on the basis of services to or past relationship with a political party, but no payback was ever suggested, promised, expected or demanded. There was certainly no question of a judicial payback or that the point of view of a particular party would be taken into account.
I am afraid that the political system may have shot itself in the foot by dragging judges into the political system, labelling them one way or the other and denying them the right to express views outside their employment. In recent years some judges have been labelled and cast aside while others have been almost hero worshipped. Mr. Justice Rory O'Hanlon was almost hounded out of his position by some liberal minded people because he expressed some views outside his job. Yet no one could point to any of his judgments and say they were not professional, well reasoned or logically argued.
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: The Chair would prefer if there were no references to particular judges or to a judge in a manner in which he or she might be identifiable.
Mr. N. Ahern Mr. N. Ahern
Mr. N. Ahern: The person to whom I am referring had views and might have been a member of groups regarded as conservative or pro-life, but he never allowed his views to interfere with a judgement. He was targeted and hounded out of his job by people who did not regard him as “in tune”.
I could refer to more recent cases in which the Government was involved. There has to be give and take in a partnership Government and it is not a case of waiting until something is demanded of one party. As in any partnership, one partner has to anticipate the needs of the other. In a recent case my party made a nomination which it anticipated the other party would support given the person's past membership of that party.  However, it was reluctant to support his nomination and he was seen as somewhat “out of tune” because he had not delivered, so to speak, in the case of a recent tribunal.
Deputy O'Malley referred to a recent case which politicised, the Judiciary. This labelling of members of the Judiciary is a disgrace — if someone throws enough mud obviously some of it will stick. These people have their own careers. Like actors, they have been cast in a role for so long they cannot get out of it.
Mr. O'Dea Mr. O'Dea
Mr. O'Dea: Typecast.
Mr. N. Ahern Mr. N. Ahern
Mr. N. Ahern: If a judge or someone in the legal profession is labelled as a liberal or conservative over a period of time obviously this label will stick and other people will object to it after a while. We are doing ourselves a great disservice. In a recent court case a pro-life group asked a judge if she would disqualify herself from hearing the case. This is very sad and no group should have to make such a suggestion to a judge. Obviously we have damaged——
An Ceann Comhairle Seán Treacy
An Ceann Comhairle: Again, I would prefer if the Deputy did not personalise matters.
Mr. N. Ahern Mr. N. Ahern
Mr. N. Ahern: I will not mention names. We have politicised some members of the Judiciary giving them labels of left or right. People will be unhappy to have their cases heard by some of the judges around whom we have built a certain image. We have done a great disservice to the judicial system by politicising it, and we have a great deal of work to do to get back to the position where judges were not judged on the basis of where they came from, who appointed them or their past membership of parties and where no one questioned their judgement from an ideological point of view or felt that they had any kind of political hangups.
We must be aware of the limitations of our powers. There are the politicians  who make the laws, those who enforce it and those who interpret it. The divide must be kept rigidly between those groups. Of late I get the impression that some politicians would like to encroach on the area of enforcement or interpretation. Politics or political power is, for some parties, of a short term nature. Perhaps some politicans look on the Civil Service as long term. Some politicians try to place their eggs in certain nests, like the cuckoo, so that if they go out of power certain things will continue to grow for a long time and their form of ideology will develop and prosper.
The membership of the Judicial Appointments Advisory Board will be from the legal profession. While that makes sense there should be a few people on the board from other administrations, general business or the commercial world. The legal profession should not control the board because it does not give a good image if one group has the whole market cornered.
I welcome the initiative to ban the wearing of wigs by barristers in court. There has been an ongoing policy to restrict the wearing of wigs in various courts as people who go to the courts on an occasional basis can be put off by it.
I welcome the provision to appoint extra judges, I hope it will eliminate delays and provide a better system.
I hope the new section dealing with court officers will be beneficial and that it will reduce costs, as suggested. We continue to hear various suggestions to reduce the cost of court cases but, unfortunately, they are never implemented.
I welcome the setting up of a Courts Commission as the courts system is cumbersome. Obviously there are more judges than heretofore and, increasingly, the public have recourse to the courts. It is the biggest growth business in the country and I do not expect this Bill will prevent that growth. I am frightened at the manner in which the interpretation of law is growing. It would be beneficial to reduce the cost of court cases. As a member of a local  authority for many years I am aware that many playgrounds, etc., have had to be closed because of the cost of court cases. I would like to think that this Bill is one small step towards getting a grip on the legal system and helping to make it transparent. I hope that the people who drafted the Bill see it as valuable, that they respect it and see the courts as a place to get a fair minded, independent decision.
Mr. Shatter Mr. Shatter
Mr. Shatter: I welcome the Bill. I will not reiterate what has been said earlier as to the reason it is in the House. I have advocated, for many years, reform of our courts system and the formation of a court of civil appeal which could reduce the backlog in the courts in dealing with appeals which currently snarl up the High Court and result in many cases having to go to the Supreme Court which could be resolved more speedily at a court of civil appeal level. The structure the Minister proposed for a new court of appeal, involving the Court of Criminal Appeal, as it currently stands, and the new civil court all in one court of appeal is correct.
I should preface any remarks, be they praiseworthy or critical, by declaring an interest, which will not come as any great surprise to anyone here. As well as wearing my political hat, as everyone knows, I am still a practising solicitor and do some legal work which I regard, to some extent, as a sanity preserver. If I did nothing but spend my day in this House speaking to an empty Chamber I would have been carried out many years ago in a strait-jacket. It is no harm to reflect that this is probably the only place in Ireland where people are expected to stand up and deliver a lengthy address to a normally empty Chamber. Indeed, if the practices in which we engage in this House were engaged in outside it, most of us would, long ago, have been certified and be inpatients in a mental establishment.
In declaring an interest I know people in this House have a view of me which is sometimes complimentary and at other times uncomplimentary but within the  legal profession I am something of a legal hybrid. I regard myself as one of Dessie's children. When I was qualifying as a lawyer Deputy O'Malley, fortunately, was Minister for Justice. His Courts Act, 1971, granted solicitors a right of audience in the superior courts and was designed as one step along the road to providing a unified legal profession. When I say I am something of a legal hybrid, I mean that apart from delivering occasional addresses to Members or absent Members of this House, one of the things I have been doing, going back to 1978, is acting as an advocate in the High Court and in the Supreme Court in a variety of different cases — some of which have been cases of importance and some which have affected not merely constitutional changes, in the sense of helping in the development of constitutional rights — but which also on occasions required this Chamber to introduce emergency legislation.
I speak about the courts not as someone from the outside looking in but as a person who has been inside the courts and inside this House. Something which has added to the gaiety of our nation has been the attachment which members of the Law Library have to wearing horsehair on their heads. As a person who has appeared in the courts in many cases over the years I always regarded it as a cause of personal amusement that lawyers acting opposite me, acting as advocates, felt the necessity to wear 17th century garb before appearing in court. As we have been told recently in quotes emanating from the Law Library they feel it provides some degree of sexual equality and anonymity and ensures that barristers are neuter gender. Whether that means that barristers have been legally or physically neutered — or perhaps the neuter gender is confined to their appearance in court — escapes me. During the past 18 years or so it has not been a legal impediment not to have been able to wear pieces of horsehair on my head in the courts. That I have not balanced a piece of horsehair on my  head in the way my forefathers did 300 years ago has not taken from the solemnity of the occasion or the seriousness with which judges treat either legal submissions or my attempts to cross examine witnesses. That view of life was the catalyst for the inclusion of a provision in the Judicial Separation Act, 1989 which abolished the wearing of wigs and gowns by barristers and judges in family law cases, the first legislation to deal with the issue of horsehair. Since 1989 both senior and junior counsel have regularly appeared before the courts in major family law cases wearing neither wigs nor gowns but, nevertheless, they were taken seriously.
The Minister of State, Deputy O'Dea — who shares my prejudices on this matter — and I, have gone on the airwaves about this issue. In a vote held in the Law Library, we are told, a majority voted in favour of wearing wigs, but I am not sure if we have an accurate report of what took place. It would be interesting to request the chairman of the Bar Council, not merely to tell us the result, but to publish the questionnaire which was distributed to members of the Law Library which I understand was much more obtuse than merely asking barristers if they wished to wear wigs.
In modernising our courts, we need to blow the cobwebs out of the system, including the earlobes of the legal profession. I am somewhat confused by section 41 which states that a barrister or a solicitor shall not wear, in any court established under the Constitution, a wig of the kind heretofore worn. Does that mean they can wear a different type of wig? Does it mean that barristers who feel a sentimental attachment to their wigs — which are usually a dirty looking grey colour and have not been washed since the year dot — can have them dyed black, pink or blue and continue to wear them in court? Would that constitute wearing a wig of a different kind to that heretofore worn?
Senior counsel tend to wear more  elaborate and interesting wigs than junior counsel in that some have tassels floating behind. Will they be perceived as wearing wigs of a kind not heretofore worn if they take a shears to the tassels but appear in the court still adorned in horsehair? I fail to understand the need for “a wig of the kind heretofore worn”. Such phraseology was not necessary in the Judicial Separation Act which ensures that judges and barristers do not wear wigs. I am conscious that many bald headed people like to wear hairpieces and the Minister may wish to ensure those who wish to wear hairpieces do not have to shove them in their pockets as they enter court. That might cause recognition difficulties for colleagues, clients or instructing solicitors used to seeing them wearing hairpieces. It may be necessary to tease out in the legislation how we can allow people wear a hairpiece but not the type of wig that represents the 17th century in all its glory. However, the phraseology in the Bill is rather odd and if recalcitrant members of the Bar Library, who have as much legal ingenuity in this matter as I or any other Member of this House, wish to retain their wigs, it will guarantee that the horsehair, slightly altered, will be used following the enactment of this legislation.
Why does the legislation not refer to the wearing of wigs by judges? It requires barristers to appear in court naked from the neck up, but judges will sit in court, frazzled from wearing horsehair particularly on hot summer days. While some judges dote on their wigs and resent taking them off for family law cases, many are happy not to wear them. Has a survey been carried out on the members of the Circuit, High and Supreme Courts to ascertain if they are taken more seriously by the public because they wear wigs? Members of the Supreme Court in the United States do not deem it necessary to wear wigs. If barristers do not have to wear wigs, why should judges have to wear them? District justices do not wear wigs. While some might suggest it would interfere with the independence of the Judiciary,  the 1989 Act has worked well. Are we to have barristers who will appear in court naked from the neck up until they become judges when once again they will reach for the horsehair? What will that add to the judicial system? The Minister did not explain the need for judges to continue to wear wigs. Will they wear them in the new Court of Appeal? Will this be a brand new, whiter than white court in which people will not wear wigs? Will new rules of court be drawn up requiring the wearing of wigs in the Court of Appeal? Would that not be odd at a time when we are abolishing the wearing of them by barristers? Will some Minister explain why it is deemed necessary for judges to wear wigs?
While welcoming the establishment of a court of civil appeal, it is extraordinary that despite everything said about the incapacity and inadequacy of our current court system to deal with family law cases, there is no suggestion of establishing a new structure of family courts. A working document published by the Law Reform Commission last spring described our family law courts as a sad parody of justice and recommended the formation of eight regional family courts.
That report was a damning indictment of the current court system in that it claimed the system cannot cope with the volume of cases before it, the courts do not structurally provide proper facilities for dealing with family and marriage breakdown cases and an unacceptable burden is imposed on judges. Delays of up to three years in having a judicial separation case determined for couples whose marriages have collapsed is totally unacceptable. It may take up to three years for a battered wife to have her case heard. Judges under pressure feel the need to short circuit the hearing of cases and in some cases a system of conveyor belt justice operates in which insufficient consideration is given to difficult family problems and decisions made affecting the future welfare, not just of wives and husbands but of children, are hastily  reached without adequate consideration. That is not acceptable. Since taking up office the Government has been accident prone in dealing with divorce. As a prerequisite to a divorce referendum, legislation should be introduced to provide for the establishment of proper family courts with adequate back up services. Despite all the crocodile tears shed for the plight of the victims of broken marriages it is a scandal that there is at present no back-up service provided by the welfare services to the courts system to produce family assessments when required to judges. There is one welfare officer with the Dublin district court which deals with thousands of custody, barring and maintenance applications every year. If at present a district judge wants a family assessment carried out to determine which parent should have custody of children in the event of a conflict, or an application for a barring order or where there is an allegation of violence, it can take a minimum of 12 months for such reports to be prepared and recommendations made to the court. I raised that issue through questions in the past 12 months. I was told by the Minister that she is aware of the problems and will give consideration to them. We should not shed crocodile tears in public about these issues when we have the capacity to take action to deal with them. The back-up service that the Judiciary want to deal with family cases should be provided as a matter of urgency.
In her speech the Minister said she would appoint additional judges which would help clear the backlog. It will not unless there are adequate court facilities for the hearing of cases. It will not resolve the problem unless the judges appointed have some understanding of marriage breakdown, family law and the needs of children. Lawyers who have appeared in criminal or personal injury cases cannot be appointed to the family courts and be expected to have an understanding or a background in social training to deal with these issues properly. This Bill should have been the  vehicle for addressing this issue but the Government did not avail of the opportunity to do so.
Another issue I wish to raise — it is as well I made a declaration of interest — concerns a widening of the type of people from whom judicial appointments can be made. The Bill proposes — I welcome this aspect — that it should be possible that a solicitor be appointed to the Circuit Court. There are approximately 1,500 barristers in this State and 5,500 solicitors. Solicitors are appointed to conduct multi-million pound arbitrations and take decisions on them. Solicitors are appointed to preside over employment appeals tribunals and a variety of other bodies that take fundamental decisions affecting the rights of individuals. If the Minister is finally grasping the nettle she should grasp it in full and not by halves. The monopoly of the Law Library in the appointment of the Judiciary should not simply be dented, it should be broken. The Law Library has been operating a cartel on judicial appointments, with the support of barristers operating within one area of our Civil Service, who have a vested interest in assisting the Law Library to maintain that cartel.
There is no reason it should not be possible to allow for the appointment of a solicitor as a judge, not merely to the Circuit Court but to the High Court and Supreme Court. Obviously, people should not be appointed unless they have the ability but we should dramatically widen the pool of experienced lawyers from whom our Judiciary can be selected. The Minister is not doing that and, if it is not done in this Bill, it will not be done for the next 20 years.
I would like the Minister to explain a provision in the Bill I do not understand. She said there will be special training for judges. I expressed the view many times that those who wish to practise in marital and family cases should have some background expertise and training. Where will the Minister provide this training? Will it be provided in the universities? Are aspirant barristers  to be asked to indicate if they would like to be judges and be sent off to participate in courses? Who will conduct the courses? Where will they take place? What will be their duration? In what areas of law will they be conducted? None of those questions was answered in this Bill.
The final issue I wish to mention briefly concerns the Attorney General's office. I am unhappy at the level of political vitriol and character assassination that has formed part of our politics over the past few weeks. It seems it is open season at present to assassinate the characters of individuals. Perhaps the need to do so is heightened by by-election fever. It seems there have been problems in regard to the Attorney General's office that did not begin with the incumbent but go back a long way. That office is yet another Law Library monopoly, is unwieldy in the manner in which it operates and too slow in dealing with matters. There is no reason recruitment of legal personnel to that office should also be confined to qualified barristers.
There is a need for a radical overhaul of the Office of the Attorney General regardless of what person happens to be its incumbent. There is a need, as happens in other countries, to ensure that a forum is provided, so that whoever happens to be the incumbent must give an account of the running of that office to Members of this House to whom he or she should be politically responsible. The way that office operates at present is not satisfactory. Many years ago when Declan Costello, now a High Court judge, was a Member of this House the position was different. We need to ensure that if the Attorney General is not a Member of this House there is a mechanism which allows him or her to account to this House for the functioning of the Office of the Attorney General. The way we deal with this at present is undemocratic and entirely unsatisfactory.
Mr. Briscoe Mr. Briscoe
Mr. Briscoe: I shall begin where Deputy Shatter left off by referring to  the Office of the Attorney General. I share with him a certain disgust at the manner in which the present holder of that office has been subjected to unfair attacks in this House by Members who should know better. They have been Members of this House long enough to know the rules of fair behaviour, especially when people are not present to defend themselves. I was disappointed, but not surprised, by Deputy O'Malley's attack on the holder of that office.
It is easy to state that were the Attorney General to do what certain people asked, to resign from office, he would be letting down future holders of that office.
He has been very courageous in remaining in office. He must have been tempted many times to say to his wife and family that he has had enough of this and decide to return to general practice. He has not done so because he realised that whatever he might do would set a precedent. I have nothing but the highest praise for the manner in which he courageously withstood many unfair attacks.
This Bill may well be one lawyers will feel happy debating since its provisions fall within their bailiwick. I speak as a layman reflecting what I believe to be the views of the ordinary people about the legal profession. Some years ago I took part in a debate with law students. The former Chief Justice, Mr. Justice Finlay, then the President of the High Court, also participated. In my naïvety I contended that the law should be subservient to justice, that justice was the most important thing but Mr. Justice Finlay suggested that justice always must be subservient to the law, that it was a matter for the legislators to draft the laws which the Judiciary could implement. Citizens of any State want justice to be seen to be done. Something that disgusted the people of this entire nation, including many within the legal profession, was the size of the fees — far in excess of what the State expected it would have to pay out — accepted by certain members of the legal profession,  people engaged in deciding what those in other areas of public service should be getting. I refer specifically to the beef tribunal. Had I been a lawyer entitled, under the arrangement I had made, to accept £1 million, it would not have cost me very much from the point of view of being a credit to my profession to say that £.5 million would be sufficient and to forgo the other half. People who accepted those fees did not do themselves or their profession any good.
I was talking to a member of the legal profession not so long ago who said that years ago, when the former Taoiseach, Jack Lynch, was in office he had suggested to him that the State should pay lawyers' fees and that the litigants should pay their fees to the State. I felt this was something that the public would welcome and I mentioned it recently to the Minister for Justice in the course of a brief conversation which was not a specific approach to her about this. Her answer was that this would probably cost the State more. I do not think so. If generous fees were set by the State it would still be nothing like the fees which certain top members of the profession expect as their right. Private citizens have no protection when it comes to legal fees. A company which is involved in a legal action can treat fees as part of its overheads. However, a private citizen who is caught up in litigation has no such relief and this is something that should be addressed, particularly where a private citizen cannot come up with the fees expected.
I welcome the suggestion that solicitors might be appointed as judges in the Circuit Court and possibly in higher courts. The late Arthur Cox was renowned throughout Ireland as the expert in company law. What a judge that man would have made. There are other solicitors at the top of their profession who would make excellent judges, particularly if they were to concentrate on their area of expertise. This is something the Minister should examine in greater detail. She should not  necessarily confine solicitors to being appointed to the Circuit Court.
We need courts that sit at night, particularly District Courts to deal with motoring offences. We are all aware of the danger on our roads from motorists. I am a motorist and drive probably in excess of 400 miles a week so I know what it is like to have one's life constantly put at risk by people who break the speed limits. In order to have such cases heard quickly we should have night courts as they do in the United States.
I have reservations about the conduct of some district justices. Not everyone appeals a district justice's verdict; people very often accept the result. However, where someone feels he should take it further he can appeal and the verdict may be overturned. There have been district justices who have had a record number of their judgments overturned — I have in mind a particular individual who is no longer a district justice. Such justices should be dismissed, having shown themselves to be incompetent. Perhaps there is something quietly happening in this regard that we do not know about.
I was amused by Deputy Shatter's comments about wigs. He wondered if a lawyer who removes the tassels from his wig might be deemed not to be wearing the wig he had been wearing heretofore. I am sorry I did not interrupt to suggest that a wig without tassels might be called a “tasstrated” wig. However, I agree with what he said about the horsehair. We should go the whole way and have judges also dispense with the wearing of wigs. We are a republic. People have respect for the law and I do not think that dispensing with wigs will make people less fearful of the judge's verdict. There should be more to justice than formality.
We have a reasonably good Judiciary but the public perception is that they are somewhat over-protected by the Garda and otherwise and do not really know the depredations the ordinary person has to suffer because of lack of  security. People often feel that criminals are treated leniently. Perhaps there is some way in which the judges could be more in touch with people. If people feel they are not getting justice they will take the law into their own hands. That is something I have always feared. It is one of the worst things that can happen to a society. We have seen the beginnings of this in some flats complexes in the city of Dublin.
I welcome the Bill and hope it will speed up the process of the law. I am glad there is to be an appeal court. At present it takes far too long to deal with the cases of people who feel they have been wrongly convicted. This new appeal court system will be welcomed. It is a good idea to have people, not necessarily lawyers, on the judicial commission which is to play a role in the appointment of judges. That removes a good deal of onus from the Government of the day. The system has served us well. We do not have so many deviant judges, although I am sure there are a few. A society cannot be without some and judges would not claim they do not exist. Generally, the standard of person appointed has been very high and we can be proud of that. It is evident when members of Bar associations from other countries visit. Members of the Irish Bar always turn out in good numbers to greet them and acquit themselves well. They are held in high esteem by lawyers abroad.
Mr. Boylan Mr. Boylan
Mr. Boylan: I welcome the opportunity to make a brief contribution to the debate. It is important that matters like this are discussed in the House and Deputies who represent the ordinary people are given an opportunity to express their opinions. I hope they will be considered before the Bill is enacted. This Bill would not have been introduced at this time but for the difficulties the Government encountered a few weeks ago in regard to the appointment of the President of the High Court and the role of the Attorney General in that. I am annoyed and disappointed about what happened. I am sure 90 per cent  of the people, have a high regard for the Judiciary. That standard can only be maintained as long as there is respect for the system and the people who operate it. Ninety per cent of people will never see the inside of a courthouse nor would they wish to, but problems must be dealt with. People must go to court to have matters which may not be related to law and order decided on by a judge. Most people are happy with the hearing they get in court and the decisions handed down.
For the Attorney General to say he was not aware of an application to extradite a person engaged in activities in my county——
An Leas-Cheann Comhairle Joe Jacob
An Leas-Cheann Comhairle: While I accept that the Office of the Attorney General is in the public domain at this time, I remind Deputies that the Attorney General is a constitutional officer of the State and they should refrain from making any remarks which would reflect either personally or otherwise on the present office holder.
Mr. Boylan Mr. Boylan
Mr. Boylan: I have not named the person referred to or the extradition warrant. I am entitled to express my views on the role of the Attorney General particularly his statement that he was unaware of an application in his office in respect of this controversial matter. I do not accept that. The matter was widely reported in the newspapers.
An Leas-Cheann Comhairle Joe Jacob
An Leas-Cheann Comhairle: The Deputy should not disregard the Chair's ruling in this matter.
Mr. Boylan Mr. Boylan
Mr. Boylan: This issue has caused a great deal of annoyance and disappointment and it casts a reflection on the people involved. It is proper that reference should be made to this, it is going to give rise to a case. I accept the Chair's ruling on the matter, but I am not alone in my disappointment on how this controversial matter was handled.
The judicial system has worked well and, by and large, people are happy with it, but the cost of going to court is  prohibitive. People may feel they must go to court to have matters resolved but the cost may be prohibitive. Some in the middle to higher income groups are well off and can afford to pay and those in the lower income group are entitled to free legal aid. However, the majority of taxpayers do not qualify for free legal aid and they are afraid to go to court to settle matters they and their families consider important because of the enormous costs involved. A standard fee should be set. People who go to their solicitor may be advised that the services of a barrister were necessary and that may cost a four figure sum. One wonders whether the high costs awarded in some cases arise because of fees charged by barristers or from researching the background of the case. The setting of standard fees would allay the fears of many.
The costs involved in the beef tribunal would scare people seeking redress in the courts into settling. That is not good enough. Access to the judicial system should be available to everyone, but that is not the position at present. However, it could be easily rectified. My salary is well known as is the Minister's and the recent increase awarded to Members were widely discussed. The issue of whether they were justified is a matter for another debate. A standard fee should be set for barristers so that people would be aware of the expenses they are likely to incur. They should not have to mortgage their houses to pay such fees.
I understand that initially wigs were worn to protect the identity of barristers and judges who defended or acted on behalf of people who might take revenge. In the present climate of peace I hope that day is long past. It is not necessary for barristers to wear a wig to protect their identity when defending or prosecuting. It is time to move forward and recognise that legal practitioners are ordinary people who should mix with the general public. The perception among the public is that legal practitioners are aloof and removed from the reality of life. The banner headlines  in the media given to high awards, may lead people to think that the judge in question was not familiar with the case and that he was out of touch with reality, but that is not true.
I am familiar with the courthouses in County Cavan. Some are used as meeting places or by politicians to hold clinics. They are cold buildings and people do not spend much time in them. The small courthouses in towns and villages of rural Ireland are not suitable for holding court hearings. Many do not have toilet facilities or heating and the paint is peeling off the walls. It is time that position was rectified and it would not cost an enormous sum of money. If we are serious about providing a suitable place for a judge, practitioners and witnesses it is time this was brought to the attention of the Minister. Given the small outlay involved courthouses should be properly maintained. I get the impression they are being allowed deteriorate like other rural businesses, such as post offices and so on. Judges have refused to sit in some courthouses with the result that the system of justice is being moved from people who must pay the cost of travelling to larger towns. Courts should be held in local courthouses. It is time that matter was addressed. The vast majority of people have a high regard for the Judiciary and for law and order. Only a small number is involved in crime and there should be an adequate legal system to deal with the problem. There should be institutions where these people are trained and rehabilitated in preparation for their return to society. The reason many people are regularly involved in crime is that they have no job and are at a loss as to where to turn to make a decent start in life again. The judicial system should provide proper training centres and places of detention for these people.
Mr. Nolan Mr. Nolan
Mr. Nolan: I welcome the opportunity to speak on this timely legislation. The Bill covers three main areas: the courts, the Judiciary and legal costs.  As has been well ventilated by previous speakers, these matters need to be addressed. The appointment of a judicial commission, promised in the Programme for Government, is a necessary move. The purpose of the commission will be to advise the Minister and the Government on the organisation and management of courts and court services and 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.
Every Member knows there are areas which need urgent attention by the Minister. For example, in the area of court accommodation — I am sure every Member has experience of lack of accommodation in their constituencies — most accommodation is appalling. In some areas there are no proper consultation rooms for litigants. With the volume of family law cases coming before the courts, bearing in mind the upcoming divorce referendum, there is great pressure on our courts and court facilities. The traditional courtroom atmosphere is not appropriate to deal with family law matters. Privacy is necessary, but this is not provided in many courthouses built early this century or in the middle of the last. A major investment is needed by the Department of Justice to upgrade facilities.
Under the 1935 Act the maintenance and provision of courthouse accommodation was the responsibility of local government, but that position was changed in the 1990 Act. I am concerned about the lack of investment in this area by the Department of Justice. Certainly the commitment is there but a huge capital investment is necessary to bring courthouse accommodation in most rural areas up to an acceptable standard.
I thank the Minister of State for the major investment in Carlow courthouse. It was needed for a long time and is very welcome. I compliment the Department of Justice on ensuring that facilities are put in place for disabled people. I am sure we all recall courthouses with steps  up to the front door, to which people with disabilities were unable to gain access.
Since the removal of rates in the mid-1970s expenditure on courthouses has been almost exclusively provided by the Department of Justice and central funds rather than by local authorities. Confusion about who is responsible for this matter has resulted in it not being a priority at central or local government. Legal personnel who practise in our courts, members of the Judiciary and the Garda Síochána who attend court, frequently make complaints, not only to me but to other Members of the House, about the lack of accommodation and back-up facilities.
There is a great case to be made for training judges — I compliment the President of the District Court in this regard. Judges appointed to the District Court, Circuit Court and High Court may have specialised in a particular area of law and it is important that they have a broad view of the problems experienced in all areas of court work. The Minister for Justice has acknowledged that she will address the matter of training and I hope she will have the cooperation of the Judiciary in that regard.
Civil litigation is an extremely slow process, one normally has to wait two to three years before one can bring proceedings to the High Court. I know of cases where individuals died while awaiting hearing of their case by the High Court, and that is unacceptable. In the Bill the Minister proposes to appoint extra judges. This is timely and will go some way towards reducing the backlog of cases pending. Sometimes cases are delayed because judges are not immediately available to hear them and in other instances cases have to be postponed due to lack of courtroom accommodation.
I am critical of the judicial system in one area, that is the discrepancies in sentencing. Legal representatives sometimes advise clients of the sentences they may expect from particular judges. There are considerable inconsistencies  in the sentences imposed by different judges of the same court. It is obvious that circumstances differ from case to case, but if there is no general consistency or uniformity in sentencing the system will be brought into disrepute. This problem may be addressed by training judges.
The Minister should consider introducing greater flexibility regarding the location of court hearings. During renovation of the courthouse in Carlow the District Court was transferred to a local hotel and compliments were paid by all concerned in this move. Under existing law, court cases need not be heard in courthouses. This matter should be considered by the Minister in her overall review of the courts system. Flexibility should be shown by the Judiciary in the location of family law hearings in particular, which may be heard in any reasonable accommodation. The important thing is that justice is done.
Legislation may be introduced to provide for divorce and this would result in a large increase in the number of family law cases. Family courts should be made more user friendly given that at some stage children would be involved. A court of law may sit in any room and in any type of accommodation, provided that the law is administered properly by the right personnel. Our paramount interest should be to facilitate citizens so that justice can be meted out in any type of reasonable accommodation without all the trappings.
A little common sense might be usefully employed in regard to the Special Criminal Court. I note that a figure of £500,000 was included in the Department's Vote for last year and the year before to meet the cost of transferring prisoners from Portlaoise to Dublin. In many instances this causes disruption for motorists and many hearings end in an adjournment. I fail to see why the courthouse in Portlaoise cannot be used. It might be better to bring the judges and counsel to Portlaoise to hear these cases. We could make better use of the time and money involved.
At present cases heard in the Circuit  Court can be appealed to the High Court. We will have to address this matter as it does not make sense.
We should re-examine the system we have inherited from the British. We should introduce a new court structure which should be informal and accessible 24 hours a day in urban centres — Dublin, Cork, Galway and, perhaps, Limerick — to deal with cases involving serious crime, without any of the trappings lawyers and judges have sought to add to the system during the years. My colleague, Deputy Briscoe, raised this matter earlier and it should be seriously considered by the Department. This new court structure should be far simpler and more easily understood by the public.
On the question of the backlog of cases the appointment of extra judges will be of help in alleviating this problem. In some areas there is a delay of two to three years. This is not good enough. The Department has indicated that the reason for the backlog is the huge number of personal injury claims. An interesting statistic is that 93 per cent of such cases never end up in court as many claims are settled on the steps of the courthouse. We must tackle this problem as many genuine cases cannot be heard because of the backlog.
The Minister has addressed the question of legal costs in the Bill in the provisions dealing with the Taxing Master. The beef tribunal may have diverted attention from the courts in this regard but there is no harm in the Minister providing for some control over costs.
The main point I want to make is that a little common sense might be usefully employed in reforming the court system. I welcome the Minister's announcement that barristers will no longer be permitted to wear wigs in court. This is common sense. In this regard court facilities should be made more user friendly. This is but one step and much more needs to be done. I welcome the Bill.
Mr. Penrose Mr. Penrose
Mr. Penrose: I am glad to have this  opportunity to address the House on the Courts and Court Officers Bill which I hope will reform the legal system. It is beyond doubt that the time has come to reshape our court structure.
Like Deputy Shatter, I should make a declaration of interest as I am a member of the Law Library. I have listened carefully to comments about the mode of dress. I have no problem with section 41 which prohibits barristers and solicitors from wearing wigs. In a recent survey carried out by the Bar Council I indicated that I was in favour of the removal of wigs and the retention of the gown. Under the Judicial Separation and Family Law Reform Act, 1989 wigs are not worn in family law proceedings and under section 13 of the Criminal Evidence Act, 1992 judges, barristers and solicitors are not allowed to wear either wigs or gowns in the examination of witnesses, particularly by television link.
In all the years I have been practising at the Bar not one plaintiff or defendant has mentioned the mode of dress. I always thought that some reference would be made to the anachronistic horse hair which bedecked a barrister's head. I am amused therefore that such attention is being paid to court dress by Members, given that there are other more important and far reaching provisions which will make a major contribution in the development of our legal system and court structure.
The establishment of the new Court of Appeal which embraces both criminal and civil jurisdictions is an important development since it will go some way to lighten the heavy workload of the Supreme Court. The large number of appeals to the Supreme Court has led to the list being clogged. A large number of the appeals concern personal injury cases. A corollary of the large increase in the number of appeals to the Supreme Court has been considerable delays in hearing cases. Some Members referred to the possibility of an infringement of the right of final appeal to the Supreme Court. From my reading of the  Bill it is clear that the appellant jurisdiction of the Supreme Court is derived from the Constitution and its status on matters of law under the provisions of the Constitution is maintained. I do not see a constitutional attack on its jurisdiction. The right of appeal to the Supreme Court on matters of exceptional public importance will be retained.
Section 29 permits the Minister to set up on a statutory basis a judicial commission to be known as the Courts Commission and I hope this will effectively manage and organise the courts. Because of the primacy in our Constitution of the right of access to our courts, it is important that every effort be made to ensure the people have an uninhibited right of access to the courts. Has the Minister given any thought to the composition of the commission as it will have a very important role?
Deputy Boylan referred to the standard of courthouse accommodation and I hope the Courts Commission will examine this. Some of the available accommodation is certainly substandard. Nowhere is this more evident than when the number of family law cases heard in the Circuit Court increases. Should certain other events take place in 1995 there will be a further increase in the number of family court cases. It is important that the Courts Commission pay particular attention to the provision of proper accommodation. That right is as important to the litigant as any other aspect of access to the courts. Very often in family law cases the consultation takes place outside the building in the rain or in a crowded hallway. Couples who have already been through the mediation and conciliation process arrive in an environment where privacy should be the prime factor, yet husband and wife are within feet of each other with their respective solicitors and counsel trying to take instructions on custody, property rights and the judicial separation itself. That will have to be tackled and adequate provision made to improve and increase the number of courthouses.
 It is anachronistic that the responsibility for courthouses still rests with local authorities. The local authority is expected to raise money by means of commercial rates, service charges or other means to try to repair and maintain courthouses. It is time the Department of Justice took full responsibility in that regard, and not leave this matter in the hands of local authorities who are strapped for cash. The Minister is aware that orders of mandamus have been sought and given on the standard of courthouses to force repaires of same. Some judges have refused to sit in substandard courthouses and I certainly do not blame them for that. The public is entitled to proper surroundings to ventilate a case.
I hope the membership of the Courts Commission will reflect the make up of society and not be confined to members of the legal profession. The expertise of other professions is important to ensure the effective functioning of the commission. The Minister's commitment to flexibility, and to reflecting the widest spectrum of society is welcome. Members have spoken of their desire to divorce the operation of the courts from the function of the Department of Justice and vest them in an independent administrative commission and it will be interesting to see the proposals the Courts Commission bring forward in this regard.
The establishment of the Judicial Appointments Advisory Board cannot and should not interfere with the appointment process in so far as the Government is obliged by Article 35.1 of the Constitution to put forward the names of persons to the President. The brouhaha surrounding recent proposed appointments give impetus to finding an acceptable method of selecting candidates for appointment to judical office. The setting up of the Judicial Appointments Advisory Board introduces a new and transparent procedure to appointments to judicial office. The present system for selecting persons for appointment to judicial office has served us well  and the integrity, fairness and independence of the Judiciary is above reproach. The board will identify suitable candidates for appointment to the Judiciary and make recommendations to the Government on such appointments. This ensures that the formal act of appointing judges remains in the hands of the Executive as decreed by the Constitution but removes from the Executive the task of identifying candidates for appointment. In order that this provision has effect the Government will have to undertake to abide by the recommendations of the board. This is not the first time a committee has been established to put forward names of suitable candidates for appointment as there is a very clear procedure set out in section 2 of the Prosecution of Offences Act, 1974, which establishes a committee to select suitable candidates for appointment as Director of Public Prosecutions. There is already a clear precedent in this regard. Article 6 of the Constitution sets out the separation of powers and I have heard various references to this important cornerstone of our democracy. The appointment of judges is based on merit and the removal of any basis for allegations, however spurious, that political affiliation is the sole determinant of appointment represents an important advance and reinforces the separation of powers.
I have noted the Minister's comments on the measures to reduce costs.
Dáil Éireann 446 Courts and Court Officers Bill, 1994: Second Stage (Resumed).