The Rule of Law & Access to Justice in Ireland

On Saturday, 2 March 2013 the Department of Justice and Equality hosted a seminar on Constitutional Reform in relation to the Courts in Ireland. While the need for such reform is quite clear, it is surprising that there is not a similar impetus to ensure access to justice for all in Ireland. The Programme for Government of the Fine Gael and Labour coalition gave a commitment to create  a permanent Civil Court of Appeal and the establishment of a distinct and separate family court. Referenda will be held in the Autumn on proposals to reform some of the current court structures. The impetus for such reform is set out in Minister Shatter’s speech delivered to the seminar. Long delays in the Supreme Court and the the cost to individuals and business in having such long waiting times for disputes to be ultimately determined is a core driving factor for this reform. Minister Shatter also noted Ireland’s obligations under Article 6 of the European Convention on Human Rights (right to speedy determination of disputes) and the domestic transposition measure, the European Convention on Human Rights Act 2003.  The Chief Justice, Susan Denham, in her contribution echoed the sentiments of Minister Shatter noting:

The current situation in the Supreme Court and the Court of Criminal Appeal is unsustainable, it is untenable, it cannot be defended. An appeal certified as ready yesterday is in danger of not getting a date for hearing until mid 2017. The most recent appeals from the general list that have been given dates were certified in July 2008. All other things being equal and without any measure of priority, an appeal certified as ready yesterday is in danger of not being given a date until mid 2017, effectively a four and a half year waiting time.

Denham CJ’s speech was reported widely in the media (see hereherehere and here). One of the interesting aspects to this reporting was the focus on how effective systems of adjudication and dispute resolution is needed as it may damage Ireland’s economy into the future. While not quite a rallying call for “the best small country in the work in which to do business” (or on Twitter #TBSCITWIWTDB), the media reporting of this event equated access to justice and the need for reform as being more compelling solely due to potential impact on prosperity. Denham CJ’s paper was more nuanced than this, with impacts on the economy being (rightly) an aspect of concern in arguing for reformed court structures. Denham CJ’s argument for reform was four fold:

  1. Litigants have a right to a speedy resolution of disputes;
  2. Delays on appeals from the Commercial Court in the High Court may impact on the broader economy;
  3. Delays impact on the ability of courts to assess the functions of the government and other regulatory agencies of the State; and,
  4. Delays impact on Ireland’s international obligations, with the European Court of Human Rights finding a three year delay to be unacceptable in its decision of Superwood Holdings v Ireland.

That said, a strong undercurrent throughout the paper delivered by the Chief Justice, related to the necessity for court reform and independence of the judiciary so as  to attract  investment i.e.:

The development of a Court of Appeal is of significant importance not only structurally, but is necessary to maintain the internationally recognised standing of Ireland as a democratic State, for the People, but also as a good place to do business.

Judicial independence is also critical to commerce and business in Ireland, and to international corporations coming to Ireland and setting up business here.

The former Chairman of the Federal Reserve Bank of the United States often remarked that the rule of law is the single most important contributor to economic growth [reference omitted].

Something that was missing from the contributions by both Minister Shatter and Chief Justice Denham was any discussion on the inability of individuals or business (in particular small and medium sized enterprises) to access justice. While the case for reform of the current court systems and structures has been clearly made, there seems to be no appetite for political or judicial discussions on the significant limits placed on those seeking access to our courts in the first place. Delays in consideration for  civil legal aid continue to increase. Those seeking the services of the Legal Aid Board have to wait between 1 and 1o months for the first appointment with a solicitor (as of at December 2011, the last date of statistics available). The Legal Aid Board recognised that while this was a snapshot of a particular time, waiting times for its services were increasing.

Over the last number of years, Supreme Court judges in the United Kingdom have raised concerns as regards reform of legal aid and access to justice (see here and here). This week, the President of the UK Supreme Court, raised concerns about the reform of legal aid provision in the UK, noting:

…if you start cutting legal aid you start cutting people off from justice … affecting their rights.

While reform of court structures is very important and the forthcoming Autumn referenda on courts issues is welcome, it is also necessary for a conversation to take place at all levels of society as regards access to justice in Ireland. The Free Legal Advice Centres (FLAC) has  highlighted the need for proper civil legal aid provision since the 1960s. In FLAC’s 2009 Report, Civil Legal Aid in Ireland: 40 years OnFLAC notes the significant level of unmet legal aid need in Ireland and calls for a properly resources system of legal aid and advice in Ireland. So as well as ensuring Ireland becomes #TBSCITWIWTDB, we also need to remember that reform of courts is all well and good, but for many in Ireland, these changes will not impact on their ability to access justice in the first place.  Increasing access to justice is also a key indicator of our respect for a society operating under the rule of law.

Many thanks to Dearhbail McDonald for sending me on Denham CJ’s paper. I should also note that while I am a member of FLAC Council, all views expressed in this blog post are mine alone.