In one of his final public engagements before retiring as Chief Justice, The Hon. Mr. Justice Mr. Frank Clarke hosted an inaugural Access to Justice Conference, bringing together a wide-ranging number of justice stakeholders and members of the public.
It is intended that a Conference Report will soon be published, together with recommendations and feedback from the plenary and workshop sessions.
Below are the conference addresses delivered by the Chief Justice, and the Minster for Justice, Heather Humphreys TD.
Opening Address by Chief Justice, The Hon. Mr. Justice Frank Clarke, Friday, October 1st 2021
Can I welcome first the small number who could be accommodated here in Blackhall Place but most particularly those of you who have remotely joined this plenary session of what I hope will be an important conference.
As some of you may know, I have returned to the theme of barriers to access to justice on regular occasions during my term as Chief Justice. It became increasingly clear to me that there is no single solution or silver bullet. The range of issues is wide and potential improvement requires action across many strands. With that in mind, I established, some time ago, a working group to see if we could make some real progress. I am particularly grateful that the Free Legal Advice Centre, the Legal Aid Board, the Bar Council and the Law Society all agreed to participate in that working group. I should emphasise that it was never intended that this group would be representative of all with a real interest in the topic. However, it was felt that a small working group was likely to be more effective.
However, recognising the need to widen the expertise and viewpoints available, this conference was planned. As our thinking developed, it seemed to us that there were two major strands to the debate. The first, which is perhaps a significant focus in today’s plenary session, involves the response of existing institutions whether that be government, the courts or state bodies. Indeed, it was clear that there were significant plans either being put in place or in the course of implementation by those institutions which can have a real effect on improving access to justice. The purpose of that aspect of the conference was to draw attention to those measures, to encourage that they continue to be implemented and to allow a debate to develop around further improvements.
However, it soon became clear to us that there was a second major strand which had, perhaps, not been the subject of sufficient attention to date. While it is easy to see how simpler court procedures, easier access to court systems, better legal aid and the like can make a real contribution, it also became clear that those measures, important as they are, would not of themselves provide anything like all the answers.
There are many who do not even know that there may be a legal aspect to their problems and that the law might provide solutions or at least an improvement in their situation. No matter how accessible our courts system may be or how supportive a model of legal aid we may achieve, it would be of little use to persons who do not know that there may be a legal solution to their problems in the first place.
While the State and the courts have, of course, a significant role to play, there are others, including the practising professions, who can bring their expertise to bear. We were, of course, aware of programmes designed to encourage lawyers to provide pro bono assistance but wondered whether that important resource might not be capable of being harnessed in a wider and more effective way.
We also reflected on the fact that there are undoubtedly areas where the problems of access to justice can be particularly acute. Minorities, marginalised groups or the vulnerable obviously run a real risk of having less effective access to justice than others. Particular areas of the law also can throw up special challenges.
We, therefore, decided that the focus of the second day of this conference would be on workshops designed to address specific issues with a view, hopefully, to identifying new and better ways in which we may be able, in the future, to widen access to justice in areas where it is particularly limited.
At a very simplistic level the purpose of today’s plenary session is to encourage the continuation of the initiatives adopted by major state bodies and to provide reasons why those initiatives make sense. The purpose of tomorrow is to help build a roadmap for further, and potentially more diverse, actions which may need to be taken in the future.
I am grateful that Minister Heather Humphreys has accepted our invitation to speak today. Government cannot provide all of the solutions needed to improve access to justice but many necessary measures cannot be advanced without significant government participation. For example, some of the streamlining of civil procedure recommended by the Kelly Review will require legislation. Much of the implementation of the Courts Service Modernisation Programme will require resources. None of this can be done without the Government being on side. Indeed, I see an overarching theme of today’s presentations as drawing attention to the interlocking nature of many of the questions which need to be addressed.
I welcome a number of significant initiatives taken by government in recent times. I will leave it to Minister Humphreys to deal with the details, but the commitment to implementing the recommended civil procedural reforms, the funding for the Courts Service Modernisation Programme, the Programme for Government’s provision for a review of civil legal aid and, indeed, the establishment of the working group now considering judicial numbers are all valuable contributions. I, of course, accept that government does not have a bottomless pit of funds. The health service, education and many other important aspects of life have legitimate claims to enhanced funding. However, I think it is important that the voice of the justice system and the need for enhanced access to justice at least has a seat at the table.
I have commented before, but it worth repeating, that an analysis of what we spend on our justice system in Ireland, compared with comparators both in the European Union and in other countries with similar legal systems to our own, places Ireland at or near the bottom. I do accept that international comparisons can be difficult. What counts as a judge in one state may be considered an administrative tribunal in another. Judicial numbers can be affected by factors such as the presence of lay magistrates in the United Kingdom system. It is not really possible to have exact comparisons and I would, therefore, accept that modest variations in numbers and sums of money spent could well be explained simply by different ways of counting.
However, an overall view of the data seems to me to demonstrate two things very clearly.
First, Ireland’s position at or near the bottom of the table is so stark that it cannot be explained solely by differences in our systems or ways of counting.
Second, and perhaps equally importantly, it is clear that taxpayers in countries in the common law system end up spending very significantly less on their justice system than is spent on behalf of the taxpayers of countries in the civil law system prevalent in continental Europe. It is beyond the scope of this short address to go into the reasons for this in detail but it is fair to say that there is a significant shift, in a common law system, towards work being done by parties and their lawyers (if they have them) as opposed to being done by the court and its researchers. This significant difference has the effect of transferring cost from the taxpayer to the parties to litigation. It is at least part of the explanation as to why the Irish taxpayer spends significantly less on our justice system compared with most continental countries while the Irish litigant spends more.
There are other consequences as well. It makes it harder for the unrepresented litigant in a common law system to deal with anything other than the most straightforward of case. The moral of this story, it seems to me, is that there is a strong case that some of the money that might have to be spent had Ireland a judge-led civil law system, but which is saved by the taxpayer by our common law system, might be deployed to help those who could not reasonably be expected to adequately present their case without legal assistance and who struggle to afford it.
That is, perhaps, a moral argument in favour of greater expenditure by our government on measures designed to facilitate access to justice. I recall, just before the pandemic, speaking to some Slovak judges who were complaining, as judges across the world tend to do, that they needed more colleagues to carry the workload. Slovakia is about twice the size of Ireland in population. But appears to have of the order of 12 times as many judges. That does not necessarily make the Slovak system better than ours but it almost certainly reduces the burden, both financial and otherwise, on litigants. The corollary of that is that there is a strong justification for spending some of the money saved by our system on enhancing access to justice.
But there is a practical argument as well. We will also have the benefit of hearing from Professor Trevor Farrow, who is a leading expert on the justification for enhanced access to justice. It seems to me that this provides a pragmatic compliment to the moral argument. Frequently we are faced with dilemmas which stem from the fact that the right thing and the practical thing pull, if not in opposite directions, at least in divergent ways. In my view, the data which Professor Farrow will present to us demonstrates that this is a case where the right thing and the pragmatic thing point in the same direction.
Of course the legal framework within which these issues arise is not just confined to our own national legal order under the Irish Constitution but also has the potential to be significantly influenced in the future both by the jurisprudence of the European Court of Human Rights but also, perhaps increasingly, by the Charter in the way in it may come to be interpreted and applied by the European Court of Justice. In that context, I am particularly happy that we will hear from Judge Siofra O’Leary who is, of course, a judge of the Court of Human Rights but also worked for many years at a high level in the Court of Justice. In this legal space we are not an island and even those who are not persuaded by the moral argument or the pragmatic argument will have to take into account the potential effects of the case law of those supra national bodies of which we are members.
While acknowledging the highly interlocking nature of the issues which need to be addressed, I would not at all like it to be thought that I am ignoring the very real part which courts and lawyers must play in finding and implementing solutions. In the very first address I gave at the beginning of the new legal year just after my appointment, I emphasised that we all have a role to play but that not all of the solutions lie within the hands of those of us directly involved in the justice system. That does not, however, mean that we do not have a significant role to play. In that context, I am very glad that we will hear from Angela Denning, Chief Executive of the Courts Service, about the role which the efficient administration of the courts can play in improving access to justice. Some of that action will, of course, interact with governmental measures in either improving legislation or providing resources. Yet another example of the interlocking nature of the necessary approach. But some of it involves things which we can do ourselves within the courts system by changing rules or practices so as to make access to justice cheaper for those who are represented and potentially possible for the unrepresented in at least a wider range of cases than might be the situation at present. While it is always wise for a judge to await the argument before reaching a final conclusion, I suspect that one of the themes from this morning will be that the major institutions involved are taking action but that there is a long road to follow. The consequences of not taking action will be significant. There is a duty on all of us to pull together to produce coherent interlocking measures to bring about a real improvement in the situation.
But also that there are very real consequences of not taking action both legal, not least in the shape of the Court of Human Rights or the European Court of Justice, or practical in the sense of the economic detriment suffered by countries which do not have adequate access to justice. These are big picture issues but they will, I hope, lay the ground for the more granular approach which we hope to see in tomorrow’s workshops.
Before handing over to our keynote speakers I would like to avail of the opportunity to make a few personal observations. The first concerns access to justice in criminal matters. It has long been considered that the criminal legal aid system provides appropriate defence to those who are charged with significant criminal offences but who do not have the means to provide for their own legal representation. To a large extent I consider that position to remain the case today which is why the focus of this conference is on access to justice in non-criminal matters. However, that does not mean that we should be complacent. Like all systems, things change and models which worked well in the past may cease to be fully fit for purpose. A number of criminal practitioners have drawn to my attention the fact that the disclosure obligations which now lie on the prosecution frequently involve defence legal teams having to go through extensive documentation to ascertain whether any of it may be relevant to an upcoming trial. The digital age has created an exponential expansion in the volume of material that can frequently be available and be of at least some potential relevance to litigation. Indeed, that very problem has, in certain types of civil cases, led to the well-known problems associated with the cost and complexity of discovery. The new criminal procedure regime may also need attention in the context of legal aid. I mention these matters to emphasise that we should not lose sight of the fact that the relatively satisfactory nature of criminal legal aid to date should not exclude a review of its continuing suitability for purpose in the future.
Criminal legal aid is, of course, principally concerned with the provision of legal assistance to defendants. However, access to justice for defendants in civil proceedings is, in my view, every bit as important as access to justice for claimants. The defendant who is unable to properly defend proceedings because they are not of a type where that can be done without legal assistance and where legal assistances is outside the means of the defendant concerned, is just as much denied proper access to justice as the claimant who cannot bring their case for similar reasons.
Indeed, I would go further. Parties, whether claimants or defendants, who are forced to settle proceedings on a basis which does not reflect an appropriate assessment of the weight of the respective cases and the likely outcomes can just as much be said to have been denied proper access to justice if the reason why they are forced into such a settlement is because of the costs of the proceedings.
We all want to encourage mediation and alternative dispute resolution. We all favour the resolution of proceedings by agreement where that can be done. But a fair and just resolution of any legal dispute should be based on a genuine assessment of the merits of the case.
These issues can loom particularly large where there is a disparity in resources between the competing interests. A well-resourced party, whether claimant or defendant, may be able to exercise undue influence on the outcome of settlement negotiations precisely because they can afford to take a certain course which is not open to a poorly resourced opponent. That sort of situation can arise across almost the whole range of litigation and is, in my view, just as much a barrier to access to justice as other more obvious impediments. The small or medium sized enterprise which is forced to settle proceedings on terms much less favourable than a reasonable assessment of the case would suggest, and has to do so because it just cannot afford to mount an appropriate defence, is just as much denied access to justice as a claimant with a good case which they cannot afford to bring.
It may be stating the obvious but I would like, finally, to return to a point which I made in that first address at the beginning of the new legal year in 2017.
Not everyone may agree that our laws are ideal and, indeed, there may be competing views as to what fair and just laws should look like. Not everyone may agree that all of our judges are fair and competent, although international assessments frequently place us in the upper range of the league tables in that regard.
However, even if our laws were universally considered perfect and every judge agreed to be the equivalent of Solomon, it would little avail a party whose position those laws favoured, if that party has not reasonable access to a court to ensure, if all other means of resolution fail, that their position is vindicated.
Address by Minster for Justice, Heather Humphrey’s TD, on the theme of Access to Justice: Widening access, removing barriers, improving the process
Chief Justice Clarke, distinguished guests, I am honoured to join you today on the topic of improving Access to Justice.
I am not just honoured to join you for this conference – but for one of your last official engagements, Chief Justice.
I have no doubt you are looking forward to a well-earned break after you stand down on October 10th. You will, I am sure, have plenty of time to relax and indulge in some of your passions.
Unfortunately, there are not that many race venues in my own county of Monaghan to invite you to. There are plenty, of course, in Meath. Perhaps Minister McEntee, when she returns from maternity leave, will gladly host you for an afternoon’s racing! I might add that I would be only too glad to attend, too.
On a serious note, Chief Justice, it is fitting that we are discussing Access to Justice at your seminar in the final days of your term. You have given the State great service, not least during the pandemic as you steered the judiciary through the most difficult of circumstances working closely with the Courts Service.
The last year and a half have been remarkably complex and important for us all at both the personal and professional levels, with the difficult impact of the pandemic coinciding with an ambitious Modernisation Programme for the Courts.
I want to commend the judiciary and the entire staff of the Courts Service for what has been achieved during this challenging period.
I also want to personally commend the Chief Justice, Presidents and all of the judiciary for the leadership you have shown in embracing the new practices and technologies that are at the core of modernising our justice system.
On today’s topic, I know, Chief Justice, that widening access to justice, removing barriers, and improving processes are subjects very dear to you. It is also an agenda that is a priority for me as Minister for Justice, for Minister McEntee and for the Government.
Widening access to justice means many things. It means that all our citizens can readily access the legal system and services when they need it. This may be at times of difficulty in their lives; or when they may be enforcing a contract or buying a home. But it also means ensuring that our legal system and the people working within it better represent the Ireland of today.
As part of our overall plan to increase diversity across the justice sector, I firmly believe there must be greater gender balance and diversity across the legal sector. We can achieve this through reform of legal education – by breaking down barriers which prevent a wider pool of people entering the legal profession.
These barriers that aspiring lawyers continue to face at the outset of their careers must be addressed for once and for all.
Widening access to justice means additional judicial resources, as well as reformed procedures and work practices, to reduce delays in our courts. It also means ensuring that those who need to access justice feel comfortable in engaging with our legal system – those who need recourse to the Family Courts, for example, and victims of Domestic, Sexual and Gender Based Violence. It means embedding and building upon the many reforms implemented during the pandemic to achieve a truly Digital First legal system.
Technology has played a significant role in keeping business going through the courts during the pandemic. In-court technology allows for the remote appearance of witnesses, prisoners and other parties to a physical courtroom setting; the digital display of evidence; and digital audio recording of proceedings. Significant investment has enabled these new technologies to be installed in courtrooms around the country.
And your Modernisation Programme continues apace and is a credit to all who work in the Courts Service. In acknowledging the achievements and new initiatives, I also want to commend the excellent cooperation that takes place on a daily basis between the courts and my Department.
We continue to appreciate the expert assistance and insights that you share with us on the daily operation of our judicial system. These are invaluable, not just in policy formulation and in the preparation of legislation – but also in terms of maintaining public confidence and engagement in our joint endeavors.
Legal aid is central to ensuring equality of access to justice, regardless of financial means. Justice Plan 2021, published by Minister McEntee commits us to a review of the Civil Legal Aid Scheme this year. We have long held the aspiration that justice should be blind not only in application, but in opportunity.
In May, it was announced that the Legal Aid Board will no longer include the Housing Assistance Payment in their calculation of entitlement to civil legal aid. T
his will have a positive impact for those who are of modest means and are in receipt of HAP or any other housing support measure provided by a Government department or any other public body.
The General Scheme of a Criminal Legal Aid Bill is being prepared and it will transfer the administration of the Criminal Legal Aid Scheme to the Legal Aid Board.
The Report of the Review of the Administration of Civil Justice, chaired by Mr. Justice Peter Kelly made over 90 recommendations across a range of areas to strengthen the administration of justice.
I have no doubt that, when implemented, these recommendations will transform the civil justice system for those who work within it and people who use it. An implementation group has been established to oversee and monitor execution of the recommendations.
An implementation plan is being finalised and I will to bring it to Government and publish it by the end of the month.
I can tell you today, however, that some of its key actions include:
Legislation will be brought forward by my Department to reform Judicial Review, Discovery, Multi – party Actions and changes to improve Court procedures,
A program of standardisation and simplification of court forms, and,
Wide ranging operational changes to how the Irish Courts are run, including providing more information to litigants without legal representation and a comprehensive update of the Courts IT systems.
As I mentioned earlier, tackling the scourge of Domestic, Sexual and Gender Based Violence is a priority for me, Minister McEntee and the Government.
We have had lengthy discussions at Cabinet on the issue and everyone, including the Taoiseach, is determined to help victims and get tough on perpetrators.
Minister McEntee’s Supporting a Victim’s Journey Plan is a detailed roadmap on how to implement the recommendations of the O’Malley Review.
Supporting a Victim’s Journey will protect and support vulnerable witnesses during the investigation and prosecution of sexual offences. We are working to create a system that supports victims and empowers them to report offences – knowing they will be supported, informed and treated respectfully throughout the criminal justice process.
We hope to provide for court procedures that support a faster and less adversarial resolution of family law disputes in specialised centres.
One of the Plan’s key recommendations is the development and rollout of training for all personnel a victim may come into contact with as they navigate the justice system.
This includes An Garda Síochána, the Director of Public Prosecutions, the legal profession and the judiciary.
It is recommended that all judges presiding over criminal trials for sexual offences and all lawyers appearing in such trials should have specialist training.
I know training has already begun under the Judicial Council and I urge all members of the judiciary to avail of this training as soon as possible.
Separately, the Bar of Ireland’s existing Continuous Professional Development (CPD) programme incorporates training for barristers dealing with vulnerable witnesses.
In September 2020, Government approved the drafting of a Family Court Bill to provide for the establishment of a District Family Court, Circuit Family Court and a Family High Court as divisions within the existing court structures. The General Scheme of the Bill is awaiting pre-legislative scrutiny by the Joint Oireachtas Committee on Justice.
The drafting of the Bill will be progressed as a matter of urgency, with a view to the Bill being published by the end of February 2022.I believe these are landmark reforms which will develop a more efficient and user-friendly family court system that puts families at the centre of its activities, provides access to specialist supports and encourages the use of alternative dispute resolution in family law proceedings.
The development of sensible, comprehensive and sensitive family law procedures, particularly for vulnerable families, will be central to the new system.
When we speak about widening access to justice and breaking down barriers, Chief Justice, reforms such as these are exactly what we mean.
These reforms will be supported by the construction of a purpose built family law court complex at Hammond Lane. Hammond Lane is a key project in the National Development Plan and I know is the priority project of the Courts Service. We hope construction will begin in 2023, and the doors of the complex will open in early 2026.
In order to help the Courts deal with Covid backlogs and address areas of immediate need, the Government recently approved of the largest increases in the number of judges in living memory.
I know this was welcomed by many of you.
The five extra judges will also help with Ireland’s participation in the Schengen Information System and strategic infrastructure development issues.
I was also pleased that in broader terms, a Judicial Planning Working Group has already convened to review the number and type of judges required in the coming five years. The Group will also examine other areas such as work practices.
This is in line with the commitment in the Programme for Government to consider the number of and type of judges required to ensure the efficient administration of justice over the next five years. The Group is to report in the spring of 2022.
I have also commissioned the OECD to prepare an independent review of the judicial resource needs, including benchmarks against international comparators, so that we have the numbers, skills, and processes to ensure access to justice over the next five years. I expect that report to be complete within the year.
The coming year will also see us hopefully enact the Judicial Appointments Commission Bill to bring greater transparency to the system of appointing judges.
The Government approved the General Scheme of the Judicial Appointments Commission Bill in December 2020, and the Bill is at an advanced stage of drafting.
The new Bill will put the Chief Justice at the head of the new Commission.
It will replace the Judicial Appointments Advisory Board.
There will be an equal number of lay persons and judges and the Attorney General will be a member in a non-voting capacity. Chief Justices have chaired the Advisory Board for 25 years and retaining this ensures that the selection process is absolutely rigorous and meets the need to have a strong, independent judiciary.
All persons who wish to considered for appointment to judicial office, including serving judges, will be required to apply to the Commission. No other process will be in place. The Commission will assess and deal with applications from serving judges and develop appropriate procedures for their assessment.
I believe the Bill will deliver substantial reform, providing for a modern and transparent system to deal with judicial appointments in the State.
In considering access to justice, we must also be frank. Legal costs in Ireland are prohibitive and act as a barrier to people to exercising their rights before the courts.
My Department issued a request for a tender of research to undertake an economic analysis of models or approaches to reducing litigation costs in Ireland.
As you are aware, the Kelly Review Group was split on whether scales of costs should be binding or non- binding. The research is expected to assess which of these approaches, or others it might identify, will achieve the aim of reducing costs for legal service users: citizens, businesses, as well as costs to the State.
The tendering process is still ongoing and it is expected to award the contract to a successful bidder in the coming weeks. Once this research is complete, my officials will consider its findings and use them to inform the development of proposals in this area.
Moving to the work of the Judicial Council, I am happy to note that, under the stewardship of the Chief Justice, the work of the Council is progressing steadily and instilling confidence in its work.
It is particularly worth noting the extent of the tasks which have already been undertaken, including the adoption of personal injuries guidelines and the extensive work which has been taken across all jurisdiction in the training of judges by judges.
The Judicial Conduct Committee was formally established with effect from 30 June 2020 and I understand submitted draft judicial conduct and ethics guidelines to the Board on the 28th June as per the Judicial Council Act 2019.
The Act further states that the Council must then adopt those guidelines within a further 12 month period from that date.
Once the guidelines are in place, the Minister for Justice will then make orders bringing into operation those relevant provisions of the Act which have not yet been commenced.
I acknowledge the commitment of all involved in the Judicial Council, and I look forward to on-going developments in its work.
Before I conclude, I would once again like to pay, in particular, tribute to the Hon. Mr. Justice Frank Clarke. As Chief Justice and as a judge of the Supreme Court and High Court, he has given a distinguished career of public service. He leaves a proud legacy of achievement.
The Hon. Mr. Justice Frank Clarke’s work has been of great importance and relevance to the citizens of the State. His leadership, direction and innovation – in particular, as I said, in light of the Covid pandemic – has ensured that access to justice, particularly for the most vulnerable in society, was maintained.
As I noted, Chief Justice Clarke’s substantial role in the establishment of the Judicial Council was essential and has paved the way for the support of and continued excellence among the judiciary in the future.
He has also been the first Chair of the Advisory Committee on the Grant of Patents of Precedence which has modernised the path to becoming Senior Counsel.
The Hon. Mr. Justice Clarke’s progressive vision and guidance in his role as Chief Justice has been an impetus for great change, progress and modernisation now and for the future.
Despite the immediate challenges of recovery and adjustment to the pandemic, the Judiciary and Courts Service have now set a path for a future of the courts system that continues to uphold the importance and centrality of access to justice.
We in Government will support you through the reforms and initiatives to which we are committed to in the Programme for Government and Justice Plan 2021.