Check against delivery

 

I move: that the Bill be read a second time.

 

Deputies will recall that the Programme for Government indicated that the necessary steps to create a permanent Court of Appeal would be taken during the lifetime of the Government. On foot of that commitment, a Referendum was held on 4 October 2013 and the proposal to establish a Court of Appeal was agreed to by the people. During the course of the Referendum campaign it was made clear that, if the proposal was agreed, the Government would move expeditiously to enact the implementation legislation for the new court. Section 5 of the Bill provides that the Government shall appoint a day to be the establishment day for the purposes of the Act, and I envisage that the Court will be operational by autumn 2014, which is the start of the new legal term.

Given the technical nature of the general Scheme of the Bill, it was not considered suitable for pre-legislative scrutiny. However, the Scheme was made available to the Committee on Justice, Defence and Equality so as to facilitate that Committee in providing any views which it deemed appropriate.

Under our Constitution the judicial power is one of the three fundamental pillars upon which the institutions of our State rest. Our courts have a pivotal role in this society. This derives from the fact that the establishment and maintenance of an independent courts system is a critical element in upholding the regime of checks and balances which is a fundamental attribute of the doctrine of the separation of powers. That separation of powers protects citizens against the potential abuse of public power, and also promotes the smooth and efficient functioning of the State. In this context the courts have a particularly significant responsibility in terms of interpreting and applying the law to disputes between individuals and the State as well as to disputes which are wholly private in nature. They provide the ultimate forum in which such disputes can be resolved.

A properly functioning courts system provides certainty for the parties in individual cases and, where appropriate, offers a public explanation of the law to those who are not involved in the case in question. It helps to provide a legal framework within which individuals and businesses can arrange their affairs with a degree of confidence and security. In the commercial sphere in particular legal certainty is essential and helps to underpin the confidence that commercial entities must have that they are acting in a lawful manner, and that their actions will not attract unwarranted legal criticism or challenge. Legal certainty simplifies the commercial decision-making process, and allows for the clear and considered assessment of the advantages or disadvantages of a proposed course of action. The relative relevance of security against abuse of power, speedy and efficient dispute resolution, and legal certainty varies from case to case – however, it cannot be denied that in all scenarios a properly resourced and efficiently running courts system is essential.

The case for the establishment of a Court of Appeal has been well documented. The previous Government established a Working Group on a Court of Appeal in 2006. The Group, which published its Report in August 2009, was chaired by the current Chief Justice Mrs. Susan Denham, and comprised members of the judiciary, representatives of the Bar Council and the Law Society, and senior officials from the Attorney General’s Office, the Department of the Taoiseach and my own Department. The Report included a comprehensive analysis of the situation then prevailing in the Supreme Court, both in terms of the cases coming before that Court and the length of time it took for such cases to be brought to a conclusion. It also reviewed the position in other common law countries where the existence of an intermediate Court of Appeal is the norm and set out a path towards possible reform. The reform proposals were favoured by those who engaged in the consultation process on the issue. They will also ensure that the Supreme Court will only hear cases that merit its attention, and make certain that there is coherence to our courts architecture which does not exist currently.

It is worth recalling that there has been a continuing growth in High Court litigation, which has seen the number of High Court judges increase from 7 in 1961 to 36 today. By contrast, in the same period the increase in the number of Supreme Court judges has been from 5 to 10, following the appointment of two additional Supreme Court judges in October 2013. This has enabled the Supreme Court to sit in two panels on a continuing basis which has certainly assisted in the rate of disposal of cases. However, the backlog that has accumulated in the Supreme Court over the past number of years requires a more fundamental reform to bring about a more efficient appeal system.

There is no point in having a situation where any gains in terms of High Court efficiency are being lost at appeal stage because there is only one court to which an appeal may lie. The absence of a Court of Appeal has led to a huge volume of cases being referred to the Supreme Court compared to other similar common law jurisdictions. In consequence a considerable proportion of Supreme Court time is being spent in correcting errors of law rather than in developing the law in a reasoned fashion.

As the volume, duration and complexity of appeals continues to grow, the Supreme Court’s caseload is becoming increasingly unsustainable. Cases are taking longer to hear with the average waiting time for cases to be heard currently of the order of 48 months. That means that, in the absence of a Court of Appeal, someone lodging an appeal with the Supreme Court today might not have their case decided before 2018. Even cases with a priority listing are taking up to 11 months to come to hearing. Litigants have a right to a fair and speedy trial. As well as being a matter of natural justice, this right is recognised in Article 6 of the European Convention on Human Rights. Indeed, it will be recalled that Ireland has already had to pay compensation to individuals who have successfully taken cases to the European Court of Human Rights in relation to delay.

Apart from the impact on individual litigants, the delays being experienced have economic consequences which may influence external investment decisions and act as a barrier to growth. They also have implications for our ability to honour international obligations which may give rise to reputational damage and to financial penalties. Today’s international business world works best where the law is clear, where the judiciary is independent, and where those who find themselves either asserting their rights or defending their actions before the courts can expect to have a final determination without undue delay. If all other things are equal, international investors will favour a country with an efficient and effective legal system which is capable of dealing with the administration of justice in a reasonable timescale over a country without such a system.

Before I turn to the Bill which is before the House today, I would like to pay tribute to my predecessor as Minister for Justice and Equality, Alan Shatter, who did a great deal of valuable work in steering both the Constitutional Referendum and later this Bill to the point which we have reached today.

The establishment of the Court of Appeal requires the enactment of an “implementation” Bill which will provide for the establishment of the Court itself, the appointment of judges, their remuneration, and a number of other issues. The Court of Appeal Bill is technical in nature and contains a large number of provisions aimed at amending existing legislation in order to accommodate the new Court within the architecture of the existing courts structure. Given that the policy in this area was essentially “fixed” by last year’s Referendum, the Bill itself does not give rise to significant policy issues. However, it addresses important legal considerations as to how best to reflect the constitutional provisions which relate to the new Court and which regulate the relationship between it and the Supreme Court.

In the normal course, it would be usual to go through the Bill on a section by section basis, explaining each section. However, in this instance, given the nature of the Bill which is before the House, I propose to focus first of all on a specific number of topics and then I will deal with other, stand alone issues at the end of this speech.

Section 6 of the Bill provides for the establishment of a Court of Appeal in accordance with the terms of Article 34A of the Constitution and the appointment to that Court of a President and 9 ordinary judges. Section 13 sets out the remuneration of the President and ordinary judges of the Court of Appeal. In this regard, following consultation with my colleague the Minister for Public Expenditure and Reform, it has been agreed that the President of the Court of Appeal shall be paid €200,000 per annum, and that the salary of an ordinary judges of that Court shall be €177,803 per annum. Those figures have regard to the revised rates of judicial pay which were set by the Department of Public Expenditure and Reform in June 2013 following on from the enactment of the Financial Emergency Measures in the Public Interest Act 2013, and the reductions applied by virtue of that Act to judges' pay on foot of the Twenty-Ninth amendment to the Constitution concerning judicial remuneration which was approved in 2011. The rates of remuneration envisaged also have regard to the rates which are paid at present to the Chief Justice and ordinary judges of the Supreme Court, and to the President of the High Court and to ordinary judges of that Court.

In relation to pensions, the legislation recognises the fact that for any serving judges who may be appointed to the Court of Appeal, and who were appointed to judicial office prior to I January 2013, it will be necessary to maintain the existing pension provisions which are complex and spread over a number of Acts. This is provided for in sections 14, 15 and 16 of the Bill. For serving judges appointed on or after 1 January 2013, or for appointees who are not serving judges, the Single Public Service Pension Scheme will apply, and no special provision is required in this Bill in respect of such persons

Section 17 provides that, in the main, the age of retirement of a judge of the Court of Appeal shall be 70 years. This Section also specifies that, as an exception to the general rule, a judge of the Court of Appeal who is already a judge of another court and who is entitled to retire at age 72, shall continue to be entitled to retire at that age.

In relation to the appointment of judges to the Court of Appeal, Deputies will recall that the Government has announced Mr Justice Seán Ryan as President-Designate of that Court. The tenure of a President of the Court of Appeal will be for a period of 7 years, as is the case with other presiding judges. Sections 10 and 11 make the necessary amendments to provide that the Judicial Appointments Advisory Board will have a role as regards the appointment of ordinary judges of the Court of Appeal except of course in relation to serving judges who do not go through the JAAB process.

On a more general note, Deputies will be aware that a major review of the judicial appointments process is underway, to ensure that it reflects current best practice, that it is open, transparent and accountable and that it promotes diversity while also protecting the independence of our judiciary. My Department is currently examining submissions which have been received, and I am most anxious that, if reforms are to be made, they derive from a considered consultative process including public debate. To give Deputies a flavour of the submissions, the most significant theme emerging is the need to make the Judicial Appointments Advisory Board more central to the process, and by the same token to make the process less political. I envisage that I will be in a position to bring proposals for reform to the Government later this year.

Following the current practice, provision is made in section 6 for the Chief Justice and President of the High Court to be ex-officio additional judges of the Court of Appeal. That section also provides that the President of the Court of Appeal shall be ex-officio an additional judge of the other Superior Courts. Furthermore, ordinary judges of the Supreme Court or the High Court may sit as additional judges of the Court of Appeal when, because of illness or for other reasons, there are insufficient judges available to transact the business of the Court of Appeal. In this regard analogous provisions are to be found in section 31 with regard to the High Court, and section 42 which concerns the Supreme Court.

Section 8 of the Bill sets out the jurisdiction of the Court of Appeal which of course flows directly from the Constitution itself. The Courts (Supplemental Provisions) Act is amended by the insertion of a new section 7A which provides that the Court of Appeal shall be a superior court of record. In broad terms the Court of Appeal will have the jurisdiction which, immediately before the establishment day, was vested in or capable of being exercised by, the Supreme Court, the Court of Criminal Appeal and the Courts-Martial Appeal Court. The Court of Appeal may sit in divisions of three judges, which divisions may sit simultaneously. The Section also provides that interlocutory applications may be heard either by the President of the Court of Appeal sitting alone, or by another judge sitting alone who has been nominated for that purpose.

There are certain provisions towards the end of the Bill which also have a jurisdictional import. Section 68 deals by way of general amendment with the numerous references which at present exist in a variety of enactments in relation to appeals to the Supreme Court, including proceedings by way of cases stated to that Court. For ease of reference Schedule 2 deals with those Acts where consequential textual amendments are required.

Section 69 contains a provision in respect of decisions of the High Court in respect of which further appeal is possible in certain circumstances. This provision, which is general in nature, is to the effect that where there is a limitation in legislation on an appeal from the High Court to the Supreme Court, the limitation shall be read as being without prejudice to the provisions of Article 34.5.4 of the Constitution to the effect that the Supreme Court shall have appellate jurisdiction from decisions of the High Court in exceptional circumstances. A similar provision in respect of decisions of the High Court which are final and not subject to further appeal is to be found in section 70. A further related provision is set out in section 9 of the Bill which amends the Courts (Supplemental Provisions) Act 1961 by inserting a new section 7B. That section 7B provides that the Court of Appeal may, in certain circumstances, stay proceedings before it in respect of an appeal from a decision of the High Court. The purpose of this would be to enable the applicant to apply to the Supreme Court for leave to appeal the decision of the High Court under Article 34.5.4 of the Constitution

An issue which obviously arises on the establishment of the Court of Appeal is how to deal with appeals to the Supreme Court which have not yet been heard at the time the new Court is established. Essentially what is envisaged is that the Chief Justice may, if satisfied that it is in the interests of the administration of justice and the efficient determination of appeals to do so, and with the concurrence of the other judges of the Supreme Court, give a direction that appeals falling within a certain class of appeal which are pending before the Supreme Court shall be heard and determined by the Court of Appeal. On application by any of the parties to an appeal, the Supreme Court may, if it is satisfied that it is just to do so, cancel or vary the effect of that direction insofar as it relates to that appeal. Specific provision is not made in this Bill, given the detailed arrangements which are set out in the Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013.

As a consequence of the establishment of the Court of Appeal, both the Court of Criminal Appeal and the Courts-Martial Appeal Court will be abolished. Section 8 amends the Courts Supplemental (Provisions Act) 1961 to provide that, subject to the transitional provisions to which I shall return shortly, the jurisdiction of the Court of Criminal Appeal and the Courts-Martial Appeal Court shall be vested in the Court of Appeal. Section 67 repeals a number of relevant provisions which touch upon those courts while section 72 puts in place transitional arrangements for cases which are in being before those courts on the day of the establishment of the Court of Appeal. Essentially what is envisaged here is that where an appeal to either the Court of Criminal Appeal or the Courts-Martial Appeal Court has been initiated and heard, either in full or in part by either of those Courts, that those courts will retain their appellate jurisdiction in relation to the case in question.

The establishment of the Court of Appeal requires certain adaptations in both the civil and criminal legal aid regime and these are to be found in sections 44 and 51 respectively. Associated provisions which have a bearing on the courts-martial appeal legal aid regime are to be found in sections 47 and 48 of this Bill.

Deputies will be aware that the Court of Criminal Appeal currently sits on an ad hoc basis, relying on a combination of Supreme Court and High Court judges. Approximately 570 cases are currently lodged before that Court. While Section 18 provides that it shall be the function of the President of the Court of Appeal to arrange the distribution and allocation of the business of the Court, and to arrange the divisions which are referred to in section 8, I anticipate that the Court of Appeal will have a dedicated criminal panel, at least in the initial stages, until such time as the current backlog of cases before the Court of Criminal Appeal has been addressed. Section 8 provides for a single judgment rule in criminal appeal cases heard by the Court of Appeal, as is the practice in both the Court of Criminal Appeal and the Special Criminal Court at the moment.

It is not every day that we move to establish a new court and, in recognition of the fact that some issues in the future may require attention, Section 3 gives a broad power to make Regulations to deal with unanticipated difficulties which might arise in bringing provisions of the Act or of specified Articles of the Constitution into operation. The provision applies for a two year period and, if any Regulations need to be made under the section, they will be subject to an approval resolution by each House of the Oireachtas. While a provision of this nature is not commonplace it is not without precedent and a similar provision can, for instance, be found in the Local Government Reform Act 2014.

Deputies may also be interested in more mundane matters concerning where the new Court of Appeal will sit. Appeals in civil matters will be heard by the Court sitting in the Four Courts campus, while sittings relating to criminal matters will be heard in the Criminal Courts of Justice. The Office of the Registrar of the Court of Appeal and its staff will be located in Áras Uí Dhálaigh, which building is part of the Four Courts complex.

The creation of the Court of Appeal provides an opportunity for the courts and the Courts Service to explore new ways of doing business. In particular, it presents an opportunity for reform of some of the practices and procedures which are currently in place in the Supreme Court, and the putting in place of appropriate case management structures in both the Supreme Court and the Court of Appeal. I want to place on record my own and the Government’s appreciation of the leadership provided by Chief Justice Denham both in relation to this project and in her management of the Supreme Court list.

While case management in the Supreme Court is currently conducted on a non-statutory basis, I consider it appropriate that statutory backing be provided to underpin the reforms which I know the judiciary are keen to embark upon. Therefore I will be moving an amendment at Committee Stage which will provide that the Chief Justice and the President of the Court of Appeal, as appropriate, may issue practice directions in relation to appeals or applications made to those Courts. It is envisaged that such practice directions may relate to both civil and criminal proceedings.

Turning now to some of the other provisions of the Bill, the precedence of the judges of the new court vis-a-vis the judges of the existing courts is set out in Section 27. Section 19 concerns the President or ordinary judge of the Court of Appeal travelling with, and sitting as part of, the High Court on Circuit. Section 20 provides for the making of Rules of Court in respect of the Court of Appeal, while sections 23 and 24 provide for the establishment of the Office of Registrar of the Court of Appeal, the appointment of the Registrar of that Court, and the appointment of deputies for the Registrar of the Court of Appeal. The provisions relating to that Office mirror those which apply to the Supreme Court.

Part 3 of the Bill contains amendments to a range of Acts to take account of the establishment of the Court of Appeal. For example, section 39 amends the Seanad Electoral (Panel Members) Act 1947 to allow a judge of the Court of Appeal to be Chairman of the Appeal Board which hears appeals from decisions of the Seanad returning officer under that Act. A further example relates to section 49, which amends the Ethics in Public Office Act 1995 to allow a judge or former judge of the Court of Appeal to be appointed Chairperson of the Standards in Public Office Commission. Provision is also made to put in place the arrangements necessary should a Chairperson of the Commission, who is a judge of the Court of Appeal, be temporarily unable to act, and for the continuation in office as Chairperson of a person who ceases to be a judge of the Court of Appeal and who is not appointed to another judicial office.

In conclusion, this Bill provides for the establishment of the Court of Appeal in accordance with the terms of Article 34A of the Constitution. Furthermore, important legal considerations as to how best to reflect the constitutional provisions which relate to the new Court, and which regulate the relationship between it and the Supreme Court, are set out in the Bill. I am of the view that a modern and complex society such as our own, which has undergone, and indeed continues to undergo, rapid change places many demands on our legal structures and it is right that those structures should be examined and, if necessary, reformed to reflect the changing face of society. In this instance the establishment of the Court of Appeal will address many of the challenges and demands which face our court system and should result in a more positive experience than heretofore for all those who interact with it.

I look forward to hearing the views of Deputies on the proposals contained in this Bill and I commend this Bill to the House.

 

ENDS