Chief Justice tells Dáil its laws are unintelligible

The Chief Justice Frank Clarke has pleaded with politicians to enact clearer laws, especially in the area of environmental law. He said European legislators also needed to bring greater clarity to the legislation they pass, and he said that uncertainly arises from constantly amending legislation.

The Chief Justice was speaking at the launch of the Courts Service Annual Report for 2017 at the Courts Service headquarters in Phoenix House in Smithfield, Dublin. The presentation was also addressed by the Minister for Justice, Charlie Flanagan.

In a wide-ranging speech on the current state of the law and legal services in Ireland, Mr Clarke addressed several issues, including new cases coming before the courts last year, the number of offences dealt with by the courts, significant changes in various aspects of courts business, fines, the commercial court, and the economic realities of the Courts Service.

Striking

Some of his most striking comments were on politicians and the business of enacting new laws. He was critical of the fact that some legislation is unclear or unduly complex, and this lack of clarity leads to the courts being burdened with extra work 

He said this was particularly true in the area of environmental law. 

“We must always be aware that not all legislation is clear, with a road map to the resolution of disputes, or to a clear understanding of the intent of the lawmakers,” he said. 

The Chief Justice added, “There will undoubtedly be arguments which will go beyond the unstateable or the trivial and which will take a lot of effort to resolve.

"As long as that remains the case – especially in the area of environmental and planning laws — then projects are going to be held up.

It is a reality that legislators, both in Europe and in Leinster House, sometimes produce unclear or unduly complex legislation

"The solution lies at least as much in the hands of legislators in producing greater clarity as it does in the courts and, from my perspective, lies even more on the legislative side.   

“This is a cry which is not based on a complaint that the policy behind any particular piece of legislation is wrong.

"That is not a judge’s business.  It is a cry for clearer legislation which will make the resolution of litigation easier and therefore quicker.

"If we keep amending legislation, as we have been doing a lot in recent times, then we create constant and shifting uncertainty. It is almost inevitable that there will be some issues of interpretation with any new model.

"If we keep changing the model then we perpetuate the period during which the interpretation of the existing model has not settled down.”

He said that if there was a political demand for greater speed in the resolution of cases then a significant part of the solution lies with politicians at European and national level.  

“If that does not happen then there will continue to be cases which will not be clear cut and which, under the CILFIT jurisprudence of the CJEU, may have to be referred to the European Court and there will continue to be projects which, even though they may successfully clear all hurdles at the end of the day, may suffer by being held up for too long," he said.  

Ireland’s courts received 650,000 cases last year of which 427,000 were criminal matters. The cost to the state of running the courts was reduced from €140m to €85m when the Courts Service handed over the fees generated to the state.

In his speech, Minister for Justice and Equality Charlie Flanagan praised the work of the Courts Service, particularly in relation to the major refurbishment of a number of courthouses around the country.  

Infrastructure

“In 2012, we announced a major infrastructure package, and in the last couple of months, we have really seen the fruits of that commitment,” he said. 

Last year, the new Drogheda courthouse was opened. In the last few months, new courthouses were opened in Letterkenny, Wexford, Limerick, Waterford and Cork. 

“Now, just Mullingar Courthouse is outstanding, and when its refurbishment and extension is finished, it will mark the completion of the Courts PPP Bundle, a massive programme of modernisation of our court facilities.

 “The total cost of just under €150m for the seven projects is the largest single investment in regional court structures in the history of the state.  It’s also the single largest capital project ever undertaken by the Courts Service,” he said.

He also said the Government would continue to appoint new judges on a continuous basis.

Fines

According to its annual report, the Courts Service continues to implement new legislation such as the Fines Act – where it had already introduced payment by instalment in Post Offices and postal reminders to those fined.

This has resulted in a reduction of those being imprisoned for non-payment of fines. 

However, there has been an increase in the number of bench warrants being issued for non-payment of fines. Those who are the subject of bench warrants have to be brought before the courts. This has a knock-on effect on the District Courts.

“The judiciary in the District Courts are noticing quite a significant impact on their work,” Helen Priestley of the Courts Service said.

To help alleviate this situation, the Courts Service introduced an option for those who have not paid their fines and are summonsed to court, to pay online before their due court appearance.

The fine can be paid right up to the appointed day of the court appearance. This is commonly known as the ‘third option to pay’.

This third chance to pay for those summonsed back to court who have not paid by instalment and who have ignored reminders, began in 2017, and the last quarter saw 40 per cent more fines paid at this stage.

This 40 per cent decrease in the numbers of those clogging up the courts system because of non-payment “is looking good for the future,” according to Helen Priestley.