Alan Shatter's reforms: Wheels of justice set to roll again but still need oiling

As another legal year begins, Kyran Fitzgerald looks at the impact of reforms pursued during Alan Shatter’s tenure as justice minister and outlines remaining bugbears.

The country’s courts are never fully idle, but the legal system goes into a form of hibernation in late summer.

In a week’s time, however, the lawyers will return from their vacation refreshed, litigants will foregather and another legal year will begin.

As the recovery gathers pace, the downturn that hit the legal world is largely over. However, scar tissue remains from various cutback-related confrontations and, certainly, the world in which lawyers and judges operate has changed fundamentally.

Senior judges faced-off with the Cabinet over reductions in their pay and pension packages.

The Chief Justice, Susan Denham, played a part in cooling passions. Pickets were not mounted outside judges’ chambers.

The three-year tenure of Alan Shatter as justice minister was one of long overdue reforms pursued, but with plenty of squawking and many feathers ruffled. Courthouses were closed across the land, dealing a blow to country towns.

Barristers and solicitors, reliant on the public purse, endured sharp cuts in income.

Practitioners on circuit will tell you that in many smaller towns, solicitors have felt the pain along with their neighbours as local economies have been hollowed out. The large law firms sailed through the recession, largely intact.

Many are now booming. Solicitors’ practices elsewhere have suffered — the result being a much greater concentration of power and wealth in the profession.

The Law Society Gazette, however, has reported an uptick in hiring of young professionals over the past couple of years.

Just 10% of practising solicitors are now aged over 55 and a distinct majority are female as the ripples of recovery spread.

A key Shatter reform, the launch of a new Court of Appeal, was implemented almost two years ago.

Critics argue that its establishment has meant the addition of yet another layer in the courts. What cannot be denied is that the new court has facilitated a considerable easing in the pressure on the Supreme Court.

Delays in actions reaching Ireland’s top court had reached over four years as the judges struggled to cope with a huge case load.

In 2014 alone, the Supreme Court dealt with over 700 cases, some of them pretty frivolous in nature. Compare this with the US and UK Supreme Courts, each of which handle around 85 to 90 cases each year.

Around 1,350 cases were transferred from the Supreme Court to the new Court of Appeal. The intention is that the Supreme Court judges should concentrate on cases of legal or national importance.

Now, it seems, the ten-person Court of Appeal is itself struggling with its workload despite what insiders say is a Trojan work rate. In contrast, the Supreme Court has succeeded in clearing its backlog of legacy cases.

When the Court of Appeal was established, part of the Supreme Court workload was passed over to this body, leaving the rest with the Supreme Court.

The establishment of this court opened up a large number of vacancies further down the chain and some lawyers suggest that enforced selections have resulted in talent mismatches, with judges lacking the necessary experience handling difficult cases.

The whole issue of judicial appointments remains a thorny one. Some question the current trend to promote judges up the line rather than to recruit from leading practitioners. Many in practice like the idea of losing colleagues to the Bench as it can mean more work for them in their areas of activity.

Whisper it, but some lawyers and judges tend to push hard their case for appointment or promotion.

Such activity, surely rather demeaning, is not something one wants if the traditional separation of powers between the Executive and Judiciary is to be best preserved.

The truth is that, despite past reforms, political party allegiance has remained a factor in the handing out of jobs on the Bench. Fortunately, many such appointees have gone on to display independence of mind, or base ingratitude towards those who raised them up from the ranks.

The latest Programme for Government contains a commitment to replace the Judicial Appointments Advisory Board with a new Judicial Appointments Commission drawn largely from outside the legal profession.

The Minister for Justice and Equality, Frances Fitzgerald, has said that the Government will push to enact the legislation in the coming months.

Given the rickety state of the Government, this cannot be taken as a given.

A big disappointment to many is the failure to fulfil Alan Shatter’s plan for a specialist Family Court system.

However, the media have been granted access to report on cases subject to the condition that if names of parties are revealed, heavy penalties could be applied.

The easing of reporting restrictions has opened the previously mysterious family courts to scrutiny, reducing levels of suspicion.

The recovery has meant that investment in the rebuilding or refurbishment of seven major courts, including Anglesea Street in Cork, Limerick, Waterford, Mullingar and Letterkenny, is well underway, with just four projects remaining outstanding.

The wheels of justice can appear rusty but they do run.

The Irish legal system is well-regarded overseas, in part because of our Common Law legacy.

However, Irish lawyers and jurists draw from several wells, including the US, the old Commonwealth and, of course, the European Court of Justice and Court of Human Rights.

The sheer level of delay has remained a bugbear, though the establishment of the Commercial Court and the introduction of case management and the promotion of alternative dispute resolution have greatly helped.

Technology has reduced the need for witnesses to appear in person — greatly reducing the costs borne by the State and by private parties.

But some things never change.

Those old familiars of the law — the litigant-crank; the windy, verbose counsel; and an ever-present avalanche of paper, carried around these days in wheelies — have not gone away.

There are aspects of the law as practised in our courts, which Charles Dickens, author of the Bleak House account of a law case lasting generations, would quickly recognise.


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