The Cabinet has approved legislation that will help the courts clear a backlog of cases resulting from the Covid-19 lockdown. The Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020, brought in by Justice Minister Helen McEntee, will also expand the use of video links in criminal and civil proceedings. It will introduce remote hearings in civil proceedings and allow for electronic filing of documents in civil matters.
These changes were long overdue but it is extraordinary that it has taken a pandemic to drag our outdated legal system into the 21st century. Indeed, Chief Justice Frank Clarke spoke on Tuesday of modernisation being forced on the courts by the pandemic. Launching the Courts Service 2019 annual report, he said the Courts Service has had to fit five years of modernisation into five months.
The effects of the Covid-19 pandemic has drastically altered how the courts have carried out its duties in recent months, leading the Chief Justice to declare: “2019 seems like a different time and will be used as a benchmark for how courts were before the pandemic.” Given that changes are being made in a very limited way, focus should now shift to a broader canvas and attention given to the overriding need for a complete overhaul of our legal system, both at court and practitioner level. Restrictive rules and practices dating from the 19th century have no relevance in a modern democracy, yet they persist.
Dessie O’Malley, the former justice minister and founder of the Progressive Democrats, has often bemoaned the slow progress of change, famously lampooning court dress and practices in anpolemic in 2011: “Titles inherited from a monarchy of occupation and Gilbert & Sullivan-style fancy dress may create an air of awe and mystery in less sophisticated witnesses and litigants but they hardly serve a valid purpose in this society.” With Brexit looming, we should also ponder whether our inherited Common Law system is fit for purpose. Among those giving this question serious thought is EU advocate general Gerard Hogan who says Brexit may rupture Anglo-Irish legal ties. Speaking last year at the EU Bar Association’s annual conference in Dublin, the former High Court judge forecast that there would be “very significant pressure” on the State to become part of a homogenous system of civil law over the next 10-15 years that would be “very difficult, if not impossible, for us to stay out of”.
We had no power over the arrival of Covid-19 but we are managing to control its continued existence. Likewise, we had no power over the decision of the UK electorate to leave the EU but we can control our response to it. The pandemic and Brexit are not just difficulties for us; they are opportunities for change. We should grasp those opportunities.
It is already happening in other areas of life. Many people who are working from home will want to continue to do so, rather than go back to the drudgery of a long commute. Doctors and medical centres are hosting virtual clinics for patients. Why should the legal system be any different?