Like previous speakers, I underline that access to justice is a fundamental cornerstone of our democracy, as it is for any democracy. Delays undermine that. I have stood in the Chamber quite a bit in recent weeks to talk about access to justice, how we need to look at the failings in criminal and civil legal aid, and the failings in providing an adequate number of judges and registrars, in addition to other resources, all of which are fundamental to access to justice.
I will, however, focus on a slightly different matter. There has been some talk about the Executive giving up its power to somewhat unaccountable quangos and how that is undermining our democracy. I fully believe a similar parallel process is happening within our courts system, with the relentless march of the administrate state. The Chief Justice, when he spoke at the Law Reform Commission’s annual conference in November 2017 said:
[In Ireland] Every time there is a new form of right or obligation created, we create a new body. Sometimes there is a regulatory body, and a regulatory appeal body, and sometimes the legislation says you can appeal from that body to the courts on a point of law, sometimes to the Circuit Court and sometimes to the High Court. Sometimes you may even appeal on the merits to the Circuit Court. … behind that there is always the right to seek judicial review and there … [are acres] of case law about whether or not the internal … systems in the regulatory bodies … [were] exhausted before seeking judicial review. … often a party argues that if they had … [sought that exhaustion], it would have been too late and … [it is a] collateral attack on the original decision. I think we have gotten ourselves into [a] significant … [mess] in this area.
I hold some concern that we are continuing to do with this Bill exactly what the Chief Justice spoke against. I find it interesting that I first heard the above quote from then law reform commissioner Mr. Justice Maurice Collins who is now, of course, on the Supreme Court, at a Law Reform Commission seminar on the Zalewski case, about which the Chief Justice said, “The standard of justice administered under Article 37 cannot be lower or less demanding than the justice administered in courts under Article 34”. Again, I am quite concerned that we have now created a new right, and a new body to assess that right, which is essentially an Article 37 body. We do not seem to be providing, in the legislation, for justice to be administered to the same standard, and in no less demanding a way, than the justice administered in the courts.
It begs the question, if the courts already exist, surely they are the best places to hear these cases? While I appreciate the kernel of this is that we failed to provide an effective remedy previously, ensuring the courts are accessible is the effective remedy. The courts are already there. They are our effective remedy as long as we provide sufficient judges, timely hearings, translators to ensure the courts are accessible, and legal aid to ensure that citizens can demand their constitutional due. It seems to me that some of the Bill’s provisions are unnecessary and what we have before us fails to meet the standards set out in the Zalewski case.
More than that, I will point out some other particular concerns regarding the Bill. Subsection 10(7) references avoiding divergence in assessors, which highlights the importance of precedent. This speaks to the challenges of the Zalewski decision and ensuring that the justice administered is of a reasonable standard. It indicates that perhaps we will not achieve that with this legislation.
Section 19 provides a differing onus and acceptance between the State and citizen as regards an assessment. In cases of a failure to respond, the Minister is deemed to have accepted an assessment where the citizen is deemed not to have accepted it, which is deeply unfair. It is a splitting and a setting up of the State in opposition to and against the citizen, when the citizen and the State should be one and on the same side.
When we talk about the State being a model litigant, such elements do not underpin that idea. Section 25 goes some way towards inoculating against that, but my concerns still stand.
Sections 20 and 21 provide for a somewhat stilted appeals system and a system for making decisions on costs. We already have decent structures for appeal and for deciding costs. We simply need to make them more accessible. We should do so not by creating a new body or new right; we should do it by ensuring that the courts overall are ultimately accessible. Much of this comes from the relentless march of the administrative state. It gives me pause and makes me reflect on comments made by some recently retired senior civil servants who have been derogatory about individual barristers and other lawyers, the judicial review process, access to the courts in general and our Judiciary, which has served us well. I hope those are individual views and not reflective of the Department of Justice as a whole. In general, the staff of the Department like our Judiciary. The ultimate remedy is to ensure that the courts are accessible and effective. That is where we should be focusing our time and resources. The Minister of State opened by talking about how we are doing that in some cases but that we need to double down on it by providing effective legal aid for criminal and civil cases, making our courts accessible by ensuring that translators are available and buildings are accessible and ensuring we have a sufficient number of judges.