Speech by the Minister for Justice & Equality, Ms Frances Fitzgerald T.D. – Court of Appeal Bill 2014, Second Stage, Dáil Éireann

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.