Another fine mess - Clarke on 'higgledy piggledy' law

The Irish legal system is like a house with a series of ungainly extensions, Chief Justice Frank Clarke told the annual conference of the Law Reform Commission at Dublin Castle on 1 November 2017.

“Laws change from time to time, case law develops and statute law may be amended, but sometimes it becomes unwieldy and not fit for purpose,” he said. “That can be a prime reason for embarking on a systematic process of law reform.

Many of the current rules of the Supreme Court date back to 1880s with the most radical update being the move from Roman to Arabic numerals any overview of whether the area as a whole needs a root-and-branch review.

The area of civil procedural review is already under scrutiny by a committee led by Mr  Justice Peter Kelly. The LRC has also already proposed reform of the law of evidence.

The Chief Justice also said that it struck him, as both a trial and an appellate judge, that there has been a lot less attention paid to reform of civil evidence than to reform of criminal evidence.

He said there has been an interesting and radical change in the constitutional architecture of the superior courts, as a result of the establishment of the Court of Appeal three years ago. It is now possible to appeal to the Supreme Court only with the leave of that court.

“That test [of leave to appeal] is hardwired into the constitution in the form of the words introduced by the 33 ^rd  amendment and requires that the Supreme Court be satisfied that the case involves an issue of general public importance or that it is in the interests of justice that an appeal be brought to the Supreme Court.”

New constitutional architecture

“One of the side-effects of that new constitutional architecture is that the Supreme Court is now picking the cases that seem to it to meet that constitutional threshold,” the Chief Justice said.

“The single most common reason why an appeal is not permitted is that the court says that the case involves simply the application of well-established principles to the circumstances or facts of a particular case. In other words it doesn’t involve an issue of general public importance.”

“The corollary of that is that the cases that do get through that net are an indication of the kind of areas that are throwing up significant legal problems.

“If there are lot of cases are being certified for appeal to the Supreme Court, that seems to imply that that area of law is generating problems which are not easily solved,” he said.

The types of cases being certified as involving issues of general public importance come under three broad classifications: environment; extradition [and more particularly European arrest warrant cases] and  child law cases, both domestic and international.

“The public would be surprised about the proportion of cases now coming through to the Supreme Court that are environmental,” he said.

Though the High Court is dominated by personal injury cases, only a tiny fraction make it through to the higher courts on the basis of legal issues, the Chief Justice said.

There is an overlay of European law which can be difficult to interpret in these three areas, he said, pointing out that EU legislation is not drafted in a way which fits easily into the differing legal systems of 27 countries.

He referred to a complex piece of Irish environmental law as ‘almost impenetrable’ in that it held up two large projects and its interpretation took up the time of a large number of very skilled senior counsel and judiciary.

This prompts questions about the quality of our legislation, the Chief Justice said.

“We haven’t been very good at transposing European measures into our own law,” he said. “We’ve also created very unwieldy structures for deciding many cases. We have cases where some bits go to local authorities, other bits to An Bord Pleanala, some bits go to the Environmental Protection Agency and the like. That in turn creates legal difficulties.”

He said that the public is expected to participate in environmental decision-making [under the Public Participation Directive] but he wondered how members of the public are expected to act within that legislation when even experts find it hard to follow.

Unwieldy

He said that decision-making structures have become extremely unwieldy, sometimes irrational, and frequently overly-complicated, in the courts and in tribunals, and a review project is long overdue.

Tribunals in England have evolved as a layer below the courts with an internal appellate structure and a clear route to the courts where a legal decision is necessary, he said. These bodies make legally-binding decisions in expert areas.

“It stands in stark contrast to what we have in Ireland,” he said, where each new form of right or obligation, whether licensing or a regulatory regime, is accompanied by both a new regulatory body and a regulatory appeal body, a right of appeal to the courts, and an entitlement to seek to judicial review.

“I think we have got ourselves into a significant mess in this area,” he declared. “Perhaps the judiciary have played their role in creating that mess.”

The Chief Justice said he had written a judgment in the Fitzgibbon case which was a plaintive cry for greater clarity from the legislature about what they mean by the word ‘appeal’.

“Our system of  ad hoc  bodies, set up on a once-off basis, to determine rights and obligations in a whole range of areas, is unwieldy, is likely to lead to disputes...about procedures... and is making the whole system...unnecessarily complex ...and ultimately more costly for parties and less likely to deliver rights and obligations.

“That carries on within the court system where we have a myriad of different types of review from the lower courts up,” he said.

“I find it difficult not to believe that a much more straight-forward, streamlined and simplified system would make it much clearer for parties, and would greatly reduce the extent to which litigation turns into collateral disputes [about arena],” he said.

The Chief Justice said it would be hugely valuable if the Law Reform Commission could make recommendations on a much more streamlined system and would consider the UK tribunal approach, adapted as it thinks appropriate.

The Chief Justice concluded by saying the single largest number of applications for leave to appeal to the Supreme Court, as an independent jurisdiction, following defeats in both the High Court and Court of Appeal, were using the architecture of the 33 ^rd  amendment.

Measures that were designed to stop people ‘playing the system’ by prolonging litigation in areas where there were policy reasons why the litigation should come to an early end, have resulted in further complications, because of the parallel constitutional architecture, he said.

“We have created categories of case [immigration and the environment] where there is a limitation on the right of appeal within the superior courts.

 “Those measures were designed to stop people bringing unmeritorious appeals which slowed up planning permissions or delayed finality in the immigration system, for instance.”

“The terminology that the [Irish] people adopted in the constitutional amendment is slighter  lighter, in terms of the threshold [of leave to appeal], than the terminology in the legislation,” he pointed out.

The constitutional amendment uses the term “of general public importance” but most of the legislation that a judge has to consider, in certifying whether to allow an appeal, is couched in terms of “exceptional public importance”.

“Is there a difference?” the Chief Justice asked.

“Are there points that are of general public importance that are not of exceptional importance?

 “Probably,” he answered.

Legal snouts

Former Justice Minister Senator Michael McDowell SC told the conference that he was currently engaged in attempted law reform in the Seanad in tabling a bid to change the law on succession to halt the evaporation of estates by legal cases taken in bad faith.

“The reason I’ve done that is that it is a huge injustice, and an infringement of the right to bequeath property...if [an estate] becomes effectively a trough into which legal snouts go,” he said.

Senator McDowell said that Ireland must strive to create and maintain a judicial system in which the world has confidence. It’s an absolute economic necessity that our legal system carries international trust, not merely in integrity - that people aren’t taking bribes -  but that it can resolve the issues which come before it, in good time, such as on cases of intellectual property.

Excellence in the judicial system is of central importance to the economic well-being of the state, he said, referring to the EU’s “centrifugal forces which tend to draw in to the centre economic activity on the basis of scale and location”.

These forces are loaded against countries such as Ireland, which are on the periphery, he said, and therefore we must have our own countervailing advantages, such as taxation, language and, in particular, excellence in the judicial system.

Senator McDowell said that the recent judicial appointments controversy had failed to address the key issue of the quality of the bench and whether the move is likely to improve standards in the administration of justice.

“We should apply our brains to that issue above all and not be distracted by silly arguments about cronyism or party political appointments,” he said.

He pointed out that, in what he called a serious mistake and a “very dishonest sleight of hand”, a provision was inserted into an obscure schedule of a pensions’ act, ruling that a judge had to serve for twenty years in order to be fully pensionable. Therefore in order to be a fully pensioned judge, one had to be appointed at fifty, given a retirement age lowered from 72 to 70.

“What was wrong about that decision was this: the explanatory memorandum for that bill never mentioned that subject at all.” Senator McDowell said this move, without any debate whatsoever, has had implications for the quality of our judiciary.

“The result is that it is increasingly difficult to get people at the height of their career [senior partners from large commercial firms or senior counsel] to apply for judicial office. Nothing is being done to improve the attractiveness of the bench for people who are excellent and at the top of their game.”

He said the new judicial appointment process will be complex and will cost up to one million euro annually as opposed to the current 35,000.

Lassitude

Senator McDowell also criticised what he called the lassitude across the legal system and the serious delay in getting cases on.

“All across our legal system, processes and procedures are becoming lengthier and more unwieldy and more expensive. Whether in criminal or civil law the Irish legal system is far slower than other common law jurisdictions in disposal of its case load.

“I’ve heard throughout my existence about the paperless court but I’ve had to buy a new trolley recently, for the ordinary carrying-out of my practice.

 

“The amount of paper generated is phenomenal. The discovery process is phenomenal.

“We have over-complicated our law. The discovery process was a rarity when I was starting out. Now there are fleets of junior barristers hired by the large solicitors’ firms, for weeks on end, poring through documents to comply with discovery obligations.”

Senator McDowell said he did not believe the present legal system is sustainable pointing out that an inept teacher cannot be dismissed in Ireland without the High Court becoming involved with the decision.

“When I was Minister for Justice I struggled manfully, but unsuccessfully, to get a Judicial Council into law.

“It seems to me that the judiciary should have a voice. They should make their views known to the parliamentarians. I don’t believe it’s enough for the judiciary to send quiet messages to the corridors of power,  sotto voce.

“I believe that our present judicial system may buckle under the weight of increased activity, inadequate reform, outdated procedures and starvation of resources. 

 “If we allow our legal system to decay and deteriorate, and if we don’t have the top people that are available to us exercising that power, we will all be the losers. Repairing a damaged and discredited system in the eyes of the people will be no easy task,” he concluded.