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

It gives me great pleasure to be here with you today to discuss the Court of Appeal Bill 2014. You may recall that last July the House was dealing with the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013. Subsequently, on foot of the passage of that Bill, a Referendum was held in October of that year in relation to the proposition that a Court of Appeal should be established. That proposition was accepted by over 65% of voters. During the Referendum campaign it was made clear that the implementing legislation necessary to establish the Court of Appeal would be advanced as quickly as possible. Indeed, during the debate in the House it was indicated that July 2014 was the likely target date for enactment of that legislation. As you can see, we are well on course to honour that commitment and I would like to thank Senators for their cooperation in making the necessary time available for us to deal with the Bill before the start of the summer recess.

I am conscious of the fact that there may not be as much time to discuss the Bill as some of you might wish. However, it is important to bear in mind the fact that the policy of the Bill has already been settled by the Referendum result last year and the legislation we are discussing simply gives effect to that policy choice. I would also acknowledge that, on the face of it, the Bill is not the most accessible. However, this is inevitable given that it is primarily directed towards the amendment of a range of Acts dealing both with the courts system and with other areas. As such, it is a technical piece of legislation which is intended to create the necessary legal infrastructure which will enable the Court of Appeal to be accommodated within the existing courts’ structure.

I’m sure that I don’t need to justify the establishment of a Court of Appeal to this House. The unacceptable delays which exist at the moment in relation to appeals to the Supreme Court cannot be defended. This is notwithstanding the extraordinary efforts on the part of the judiciary to manage matters so that appeals can be dealt with in a more efficient manner. However, there is a basic reality which cannot be denied which relates to the ever-growing volume of litigation and the imbalance which has developed as between the High Court and the Supreme Court.

The last truly significant change in our courts system happened in 1961 when our existing courts were established pursuant to Article 34 of the Constitution. At that time, there were five Supreme Court judges and seven High Court judges. Today there are thirty-six High Court judges and 10 Supreme Court judges, the last two of which were appointed within the past year. This has put the Supreme Court under considerable pressure and means that even when mechanisms have been put in place at the level of the lower courts to deal with cases promptly those gains are being lost because of the time it takes to get a case from the High Court to the Supreme Court. I am thinking here, in particular, of the Commercial Court which has its own procedures designed to expedite the cases which come before it and which has been very successful in reducing the waiting times for cases involving very substantial sums of money.

It has already been observed that Ireland is unusual among the common law jurisdictions in not having an intermediate Court of Appeal. This deficiency was remedied in principle by the constitutional amendment. The practical adjustments required to have the new Court operational form the essential substance of this Bill.

It may be beneficial if I dwell briefly on the framework which is provided by the new provisions in the Constitution as that framework informs the content of this Bill which can only be understood when placed within that framework.

By virtue of those provisions there is an obligation to enact a law providing for the establishment of the Court of Appeal, as soon as is practicable. That obligation is being met by the Bill which is now before this House. That law is to require the Government to appoint by order a day on which the Court of Appeal shall be established. Section 5 of the Bill refers.

The Constitution also specifies that the Court of Appeal is to have appellate jurisdiction from the High Court and such other courts as may be prescribed by law and that its decisions are to be final, except in the limited circumstances where an appeal may be allowed by the Supreme Court. What is referred to here is the provision that the Supreme Court will hear an appeal from the Court of Appeal provided that it is satisfied that it concerns a matter of general public importance or that it is necessary in the interests of justice that the Supreme Court hears the appeal. There is also a provision whereby appeals may be taken directly from the High Court to the Supreme Court in exceptional circumstances. This so-called “leapfrogging” provision is intended to allow the Supreme Court to hear cases which meet the criteria set out for appeals from the Court of Appeal to the Supreme Court, where there are exceptional circumstances that warrant it being heard by that Court.

Finally, I would draw the attention of Senators to the new Article 64 that is to be inserted into the Constitution on the establishment day, but is not to appear in texts of the Constitution published one year after that date. It provides that cases that have been heard or part heard by the Supreme Court on establishment day will be determined by the Supreme Court. Where a case has not been heard, the Supreme Court may transfer the appeal to the Court of Appeal or a party to the appeal may apply to have the case transferred.

I will now outline some of the key provisions in the Bill which is before us. 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 14 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. These rates of remuneration have regard to the rates which would be payable in respect of appointments to the office of Chief Justice and President of the High Court post-January 2012.

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 1 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 15, 16 and 17 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 18 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 12 and 13 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, Senators 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.

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 32 with regard to the High Court, and section 43 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 in Part 4 of the Bill which also have a jurisdictional import. Section 74 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 75 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. However, the limitation will continue to be valid in relation to the Court of Appeal.

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 76. 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 73 repeals a number of relevant provisions which touch upon those courts while section 78 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 45 and 54 respectively. Associated provisions which have a bearing on the courts-martial appeal legal aid regime are to be found in sections 49 and 50 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 19 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.

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. The Bill as published did not contain provisions in relation to this matter but amendments have been introduced which will give the Supreme Court the tools which it needs to manage its business in a more effective manner. Such tools are already well established in the leading common law jurisdictions at Supreme or Superior Courts level and the necessary changes have now been accommodated in section 44. Equivalent provisions in relation to the Court of Appeal are to be found in section 10. The changes introduced will also allow the Chief Justice and the President of the Court of Appeal, as appropriate, to 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.

Finally, a further new provision which relates to the Supreme Court concerns the ability of that Court to deal with the appeal applications which are allowed for under the Constitution on the papers. Any ensuing appeals will, of course be dealt with in the ordinary way.

At this point I think it would be appropriate if I were to place on record my own and the Government’s appreciation of the leadership provided by Chief Justice Denham in relation to this project. As you know, she chaired the Working Group which recommended the establishment of the Court of Appeal and she has been a driving force ever since in carrying this project forward.

Other provisions of the Bill accommodate judges of the Court of Appeal within the order of precedence which applies to judges of the existing courts. That is set out in Section 28. Section 20 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 24 and 25 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 40 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. Section 39 amends section 2 of the Legal Terms Act 1945 to allow a judge of the Court of Appeal to be a member of the Irish Legal Terms Advisory Committee. Section 68 modifies the definition of “judicial office in the Superior Courts” in the Charities Act 2009 to take account of the new Court. Further amendments introduced subsequent to the Bill’s publication provide for the adaptation of a range of criminal law statutes, most notably the Criminal Procedure Act 1967 and the Criminal Procedure Act 2010.

Before concluding, I would like to refer briefly to the fact that, as Senators will have noticed, it is proposed that there will be an early signature motion in respect of this Bill. There may be some curiosity as to why this is the case and it might be helpful if I set out the context which informs the proposal. The current process for the appointment of judges is set out in sections 12 to 17 of the Courts and Courts Officers Act 1995 which established the Judicial Appointments Advisory Board. Under that process, which is of course the subject of review at the moment, the Board submits to the Minister for Justice and Equality the names of the persons who have applied for appointment and whom it recommends as suitable for appointment. The judge or judges are then appointed by the President on the advice of the Government.

If the Court of Appeal is to be operational in the autumn, certain arrangements need to be put in place. These include convening the Judicial Appointments Advisory Board, advertising and seeking expressions of interest, and identifying suitable candidates. That process needs to commence without delay in order to ensure that the new Court can be operational within the required timeframe.

In conclusion, I would note that this House has an honourable tradition when it comes to dealing with matters which are of national import. I have had the privilege of working here and I know and appreciate the value of the work which is done by all of the representatives who come from different traditions and represent a range of important interests. The establishment of a Court of Appeal is something which transcends party boundaries. It will represent a sea change on our judicial landscape and I very much hope that Senators will support this vital piece of legal infrastructure.

I commend this Bill to the House.