Statement from Chief Justice Frank Clarke at the Beginning of the New Legal Year

03rd October 2019

The Chief Justice has made a statement to mark the beginning of a New Legal Year. The statement was made at The Criminal Courts Of Justice at 2pm on October 3rd.

Below is the text of the statement.

Any good programme of reform begins with a planning stage.  But the point must be reached where the process moves from planning to implementation.  Across a range of areas of significant importance both to the judiciary and to the administration of justice, we are at the stage where preparation is coming to an end and implementation is about to begin.  I want, in this address at the opening of the new legal year, to touch on some important aspects of that transition.  

The long standing project to establish a Judicial Council is the reform measure closest to full implementation.  It is, however, important to set out publicly both what has been done, and what needs to be done, before the Judicial Council can be fully up and running.

While the legislation to establish the Judicial Council was a long time in gestation, we all know that it became law in late July.  However, the legislation requires, before it comes into active force, to be commenced by ministerial order and, perhaps more crucially, an “establishment day” needs to be designated.  But it is particularly important to understand that the fixing of an establishment day triggers a whole series of mandatory time-lines which are to be found in the Judicial Council Act itself.  The Judicial Council consists of the entire Irish judiciary and the legislation requires that it have a first meeting, not more than three months from the establishment date.  At that first meeting the Council is required to carry out a wide range of statutory functions including, importantly, the establishment of the principal statutory committees through which most of its work will be carried out.  There are specific time limits in the legislation for the establishment of those committees.  

It is also of importance to record that two of those committees, being the Sentencing and Information Committee and the Judicial Conduct Committee, are required to have lay members who are to be appointed in accordance with a transparent process under the auspices of the Public Appointments Commission.  In addition, it is necessary that those committees, once established, are in a position to carry out their statutory roles.  For example, appropriate machinery must be in place to process complaints to the Judicial Conduct Committee.  The Personal Injury Guidelines Committee needs to be able to conduct the research on the levels of awards in other jurisdictions to which the legislation refers and be in a position to make its first recommendations to the Board of the Judicial Council within the timeframe specified in legislation.  

It is also important to understand that the timeline for the creation of each of the statutory committees is triggered by the designation of the establishment day.  In other words, there cannot be a two speed approach to the creation of the various committees.  Once the establishment day is designated, then all committees must come on stream within statutory timelines which are challenging but doable.  

While all of that may seem like a great deal of detail, this is, in my view, a matter where the detail is important.  Many of the committees will have important legal consequences.  Courts will be legally required to have regard to the guidelines formulated by both the sentencing and personal injury committees.  Reasons will have to be given for departing from those guidelines in the particular circumstances of an individual case.  Obviously, the Judicial Conduct Committee has the power to determine complaints and, if appropriate, impose sanctions.  It is vitally important, therefore, that the establishment of each of these committees is legally robust so as to minimise the risk of challenges.  In the real world, exposing the work of those committees to a greater risk of stateable legal challenge, can only delay rather that speed up the time at which their work will have legal effect.  In that context, it makes no sense at all to take any shortcuts.  

But is also clear from that analysis that it would be foolish to designate an establishment day until there was reasonably confidence that all of the statutory committees will be able to come into being and carry out their designated roles within the timeframe which the legislation requires.  It is not possible to have an establishment date for some purposes only.  

That analysis, which to some may seem over-detailed, is in my view absolutely necessary to understand the various steps which need to be taken before it is prudent to designate an establishment day.  But I should also strongly emphasise that work is already well underway towards putting in place the necessary measures to allow for the establishment day to be safely designated.  The Minister has already commenced two aspects of the legislation.  The first were those provisions designed to allow me, as Chief Justice, to appoint a member of the staff of the Courts Service to act as Interim Secretary to the Council.  On the day after those provisions were commenced, I nominated Mr. Kevin O’Neill, Principal Registrar of the High Court, to be Interim Secretary.  Pending a formal process to enable the Board of the Judicial Council, when it is set up, to select a secretary, the Interim Secretary has all the powers of what is, in substance, the CEO of the Judicial Council.  Mr. O’Neill has already taken up his position as Interim Secretary and he and I have been engaged in ongoing discussions with the Minister for Justice and Equality and his officials, together with the Attorney General, on putting in place the measures needed to allow for the safe designation of an establishment day.  

The second set of provisions of the Judicial Council Act which have been commenced by the Minister are those which enable the Public Appointments Commission to begin the transparent process for the appointment of the lay members to both the Sentencing and Information Committee and the Judicial Conduct Committee.  While those committees can, under the legislation, have a slightly longer lead in time than the Personal Injuries Guidelines Committee, nonetheless the designation of the establishment day would trigger the need for those committees to be themselves established and it is, therefore, important that there can be confidence that the lay members can be appointed in time before the establishment day is finalised.  

In addition, I have been in discussions with the Minister, and Mr. O’Neill has been in discussions with the Minister’s officials, with a view to determining the resources which it will be necessary to give to the Judicial Council in order for it to carry out its statutory remit.  It is hoped that much greater clarity on this issues will be achieved in the context of the budget which, as well all know, is due to be delivered next week.  It would again not be prudent to formally establish the Council without some reasonable comfort that it will have the resources to carry out its statutory role within the timeframes which the legislation specifies.  

I would not wish to paint a negative picture.  Much work has already been done and work is ongoing at a significant pace.  I know that the Minister has indicated his strong desire to establish the Council before the end of the year.  I have indicated to the Minister that I, and the judiciary, share a commitment to achieving that timescale.  I do not doubt that it can be done.  But it is of particular importance that there is a wide public understanding that the designation of an establishment day does not simply involve the Minister signing a statutory instrument.  It requires all of us to be satisfied that the timelines that then become binding can be met.  

On our side, it will be necessary to identify the relatively significant number of judges who will have to play roles on the Board and various committees of the Council.  In some cases, such as the Personal Injuries Guidelines Committee, it is for me, as Chief Justice, to nominate the members.  However, before so doing, it is appropriate that I consult with the Presidents of the Courts.  In other cases, it is necessary to arrange for elections.   With all this in mind, I have arranged for a meeting of the Presidents of the Courts to take place early next week so that we can identify the steps which we need to take to ensure that the Council is in a position to hit the ground running as soon as it is established.  In similar vein, I have organised a meeting of the entire judiciary to take place within the next ten days so as to apprise all judges of where we are and where we need to go.  

My aim is to have as much preliminary work as is possible done prior to the establishment day, so that each of the strands of the Council can start its work with something more than a blank sheet of paper.  I can assure you all that any preparatory work which can be done in advance of the establishment day will be done.  However, there are elements of the work of the Council, and its committees, which require the exercise of legal powers which will not be available until either the Council itself or a relevant committee is established.  For example, the Personal Injuries Guidelines Committee will, when it is established, have the legal power to require that information be given to it which might be relevant to its work.  That legal power will override GDPR requirements.  But that legal power cannot be exercised until the committee is formally established.  

One final part of the remit of the Judicial Council also merits mention.  The establishment of the Council will mean that its Judicial Studies Committee will take over information and training functions for the judiciary.  I commissioned a report from Dr. Rónán Kennedy of NUIG on the requirements for a modern fit for purpose scheme which would bring our system up to best international practice.  An interim report has already been submitted to Government and a final report will shortly follow.  I hope that the required resources will be made available to enable us to put in place programmes such as are commonplace in comparable jurisdictions such as Scotland. 

The overall message which I wish to convey by this rather detailed analysis is that significant work has been done and continues at a pace.  The judiciary are committed to the establishment of the Judicial Council as soon as it is appropriate to do so.  However, the Council will exercise significant legal powers and it is important that its establishment and that of its committees are legally robust or else we all run the risk of defeating the very purpose of bringing these important measures into play.  We need to do this properly and not just get it done.  While I fully understand the desire to have the Council and its committees up and running as quickly as possible, it is important that we do not take shortcuts which could, in the medium term, makes things worse rather than better.  

 The second major area of reform on which I wish to touch concerns the courts and the allied topic of access to justice.  I have repeatedly emphasised that not all of the elements which affect access to justice are within the control of the judiciary.  We do not, for example, control the market for legal services.   However, in that latter context, it is, perhaps, of some relevance to note that the new legal costs regime is close to coming into effect.  

However, what we, in the courts, can do is to seek to ensure that both our court processes and the methods by which people can access them are fit for purpose in the digital age.  A great deal of planning work has gone in to this area in recent years.  Despite the very limited resources which were available in the IT field as a result of the cutbacks associated with the great recession – which have only very recently begun to be reversed – the Courts Service has put in place a number of projects designed to bring specific aspects of our processes online.  The e-licensing project is being rolled out across the country.  Much of the new insolvency jurisdiction is conducted by online filing.  It is now possible to apply to the Supreme Court for leave to appeal online, although the take up in that regard has been disappointing.  In that latter context, we have, in consultation with practitioners, identified some tweaks to the system which I am hopeful may lead to much greater use.  

However, all of these developments have, in reality, taken place in what might be described as niche areas.  A widespread move towards the digital management of most, if not all, court proceedings, will require a major investment.  At a meeting of the Board of the Courts Service just before the summer, a major report prepared by consultants in conjunction with the judiciary and senior Courts Service staff was adopted.  This report provides a vision for the development of the court process over the next ten years.  While not confined to IT, a radical increase in the use of digital technology is one of the central planks of the recommendations.  That report has gone to Government.  However, it is clear that it will require a significant increase in IT funding if its recommendations are to be implemented.  A parallel report considered the need to strengthen the number of IT professionals in the Courts Service.  The recommendations of that report have also been accepted and have gone to Government.  However, there are challenging issues in recruitment in the IT area because of comparative pay rates in the public and private sector.  I would like to see a commitment all round to the necessary investment to allow us to implement a strategy which I am convinced will give us a court process as good as that which can be found anywhere else. 

I had the benefit last week of a presentation at a senior judicial and official level from the Supreme Court of Victoria in Australia.  Much of the business of those courts are now conducted online with documents being printed out only to the extent that lawyers, individuals or judges feel that a specific document may be more usefully considered in hardcopy form.  Because of the previous if understandable cutbacks in IT expenditure, it is fair to say that we are somewhere behind the leading jurisdictions in the use of digital technology.  However, that, perhaps, gives us the opportunity to learn from others as to what worked and what did not work.  For example, I had the honour to be asked to be a speaker at a seminar on the use of digital technology conducted by the General Court of the European Union in Luxembourg last week.  One of the points made by Dutch colleagues in the discussion which followed was that a great deal of money had been spent in their jurisdiction on systems which turned out to be a long way short of ideal.

But we have now reached the end of the planning stage in this area.  I hope that we can now move on to implementation.  I was slightly bemused by a media comment which suggested that we in the courts could do a lot more to use digital technology.  I agree.  However, we cannot use what we do not have, and we cannot have that which is not resourced.  I hope that the necessary resources will now be put in place.  

In parallel with that vision for the Courts Service, the committee under the President of the High Court, Mr. Justice Peter Kelly, which has been considering reforms of our civil procedure, is nearing the end of its work.  I understand that it is hoped that it will be in a position to report in the first half of next year.  I have often said that digitalising a less than perfect paper system will simply produce a less than perfect digital system.  Reform of our procedures is a very necessary parallel to the implementation of more easily accessible means of managing the court process.  Many beneficial procedural reforms will not be capable of giving the maximum benefit unless we can also implement the vision contained in the Courts Service Report.  Equally, that vision will produce far from optimal results without the reform of procedures contemplated.  Both go hand in hand.  Both have or are reaching the end of the planning process.  Both will soon be ready to begin implementation.  But the necessary resources to deliver that implementation is the vital last link in the chain.  

Finally, I want to say something about judicial numbers.  I have always accepted that it is insufficient for the judiciary to simply demand continual increases in the number of judges without, at the same time, adopting measures designed to make best use of what we have.  I think that the reforms to procedure and to court administration to which I have referred show that we are intent on addressing that side of the equation.  There may also be a case for an in-depth look at our court structures to see if they continue to be fit for purpose in modern times.  It had been my understanding that the Government proposed to establish a small high level working group to assess, on an objective basis, the reasonable requirements for judicial numbers over the next four or five years.  The backdrop to the requirement for more judges is the simple fact that Ireland has, by far, the lowest number of judges per head of population in the developed world.  I would greatly welcome the speedy establishment of such a group and have committed to setting up a parallel judicial committee to engage with it, once established.  

I do appreciate that there may also be a case for a more radical look at the structure of our courts.  The centenary of the establishment of the courts of an independent Ireland in 1924, would mark an appropriate target date for the full implementation of any measures decided on.  But it would, in my view, take that length of time to do adequate research, give proper consideration to the issues and allow for a realistic implementation period for any changes.  A similar timeframe will be needed before the first benefits of the roll out of the Courts Service vision could realistically begin to come into play and an assessment made of the beneficial effects both those changes and of the civil procedural reforms likely to be recommended by the Kelly Committee.  

I do not see any reason why two separate processes cannot carry on in parallel.  First, a long term plan, designed to put in place those changes which have already been identified but also any structural reforms which may be considered necessary.   But second, there is also, in my view, a real need to address the situation that will pertain over the next five years until 2024.  I see no reason why the high level working group which has been discussed could not start its considerations immediately, so that it could make recommendations to cover the next four to five years and thus run in parallel with a more substantial project designed to identify our real needs from 2024 onwards.  

The immediate need for an increase in judicial numbers in the Court of Appeal has long been identified and accepted.  I very much welcomed the speed with which the Oireachtas enacted, on the last day before the Dáil recess, the necessary legislation to allow for an increase in the total complement of the Court of Appeal from 10 – 16.  As soon as that legislation was passed, the President of the Court of Appeal acted immediately to make arrangements to bring forward the likely hearing date of those cases which, under the existing regime, could not be accommodated until well into 2021.  Many such cases now have provisional dates fixed between the middle of October and early January.  

Against that background of expedition on all sides, I have to say that I find it regrettable that appointments have not yet been made.  In those circumstances, it is my understanding that President Birmingham will have to make arrangements on Tuesday next to remove from the early list those cases which had been promised a speedy hearing.  In the absence of appointments, it is just not possible to empanel a second bench to deal with civil cases as had been envisaged.  That process of removing cases from the list will have to continue for as long as the appointments are not made.  This is, quite frankly, most unfair to litigants who were given the reasonable expectation of an early hearing.  

But there are other knock on effects.  It seems probable that at least a significant number of those appointed to the Court of Appeal will be promoted from the High Court.  That has the potential to cause problems for the High Court until such time as their replacements are themselves appointed.  I had hoped that much of these measures could have been completed while the courts were in recess so that any disruption would be minimised.  However, that is no longer now possible.  The Presidents of the Court of Appeal and the High Court will have to manage the situation either by allowing promoted judges to remain working in the High Court until their successors are appointed or by leaving the High Court short of numbers.  Either eventuality is going to lead to legitimate disappointment on the part of litigants who expected their cases to be heard.  It is true, of course, that cases sometimes have to be postponed due to factors outside anyone’s control.  A judge may become ill with no replacement available.  A case may run significantly over time leaving a judge unable to take up new work or the like.  But the current problems were avoidable, if timely appointments had been made.  I would ask that there now be no further delay and that the appointments to the Court of Appeal are made at the earliest possible time.  

In conclusion, I think it is important to recognise that many beneficial changes in our court system have derived from important and considered judge led reports.  The creation of a single integrated courts administration was brought about as a result of the establishment of the Courts Service which stemmed from a report of the 1990s.  Likewise, the significant improvement in the workings of our higher appellate courts (hopefully augmented by the additional appointments to the Court of Appeal to which I have referred) stem from a report on the desirability of the creation of a Court of Appeal.  However, other suggestions have not always been implemented, sometimes because of lack of resources.  I very much hope that the range of reforms that are set out in the various reports either already with government or shortly to be brought to government’s attention, will be given the priority and the resources they deserve and require.  In the overall scheme of things, the amount of money involved, while significant, falls a long way short of the funding requirements of other agencies.  We now have the plans to put in place a fully fit for purpose court system to mark the centenary of the independent Irish Courts. I hope that there will be a commitment to provide the resources to make those plans a reality.