An Bord Snip and the Legal System

I am opening this strand to facilitate discussion about the many recommendations made for reform of the legal system by the McCarthy Report. Whilst there are lively discussions going on here and in many other media concerning proposals for cuts there has been little discussion of the extensive proposals for the legal system beyond a focus on the abolition of the tipstaff posts within the Courts Service and merger of various ombudsman functions. The law pages of neither the Sunday Business Post nor the Irish Times give any mention to the Report. For convenience I list some of the highlights below:

Management of the courts and supporting the Judiciary

Rationalise the network and operations of the District and Circuit Courts

Abolition of Tipstaffs grade

Judicial review of judgements – ‘Courts should be given the necessary powers to correct themselves with the consent of both parties. Furthermore, those involved in the case should not be awarded costs if they insist on Judicial Review without initially engaging with the original court in its efforts to correct its decision.’

Address ‘out-dated practices which are sharply at odds with what is expected throughout other areas of the public and private sectors. In particular, the Group recommends that the Courts should:
• provide for Monday sittings;
• open the Courts for the full year (rather than closing for prolonged periods of time);
• introduce pre-trial hearings to deal with technical matters in advance of jury selection;
• streamline the selection of Juries (for example by providing the Defence an opportunity to object for stated reasons to individuals on a long panel of potential jurors, before jurors are
called to serve); and
• use court real estate more efficiently (e.g. using a court room to hear one case in the morning and one in the afternoon rather than one a day).
The efficiency of the Courts system could be improved by providing prospective judges with judicial training prior to going on the bench and ongoing professional development, by providing the Presidents of the Courts with meaningful powers and functions in the area of discipline and the
issuing of practice directions, by establishing a Judicial Council to address serious disciplinary issues and by strengthening the independent role of the Judicial Appointments Board in the appointment of judges.’

Reduce the number of County Registrars

‘The feasibility of introducing a limited number of short-term non-pensionable law graduate internship placements contracts of 1 to 2 years clerking for a group of judges to assist judges with research should be explored.’

Reduce surplus security personnel at the Four Courts

Review charging system

Introduce a limited means testing system for criminal legal aid

Extend digital audio recording to the Civil Courts

An Garda Síochána

Better co-ordination to reduce time spent by Gardaí in court

Rationalise the Garda station network

Transfer responsibility of immigration control at entry point to INIS

Review of Garda pay and allowances


Regulation and Oversight

Merger of ComReg and the Broadcasting Authority of Ireland (*corrected 22 July)

Merger of Property Registration Authority (PRA) with Ordnance Survey Ireland and the Valuations Office (*corrected 22 July)

Establishment of an Ombudsman Commission (taking on the role currently undertaken by the Office of the Ombudsman, the Children’s Ombudsman and the Information Commissioner)

Merge the Property Services Regulatory Authority with the Private Residential Tenancies Board

Transfer the disability functions of D/JE&LR to the Office for Mental Health and Disability in the Department of Health & Children

Other

Improve Value for Money in the Coroners Service

Abolish Law Reform Commission

Reallocate the statutory employment and occupational benefits
responsibilities of the Equality Tribunal to the Employment Appeals Tribunal

‘Reduce expenditure on the gender mainstreaming [and integration] and transfer the function to the Department of Enterprise, Trade & Employment’

Reduce the allocation to equality organisations and projects

Abolish the Office of the Minister for Integration

Staffing levels in the youth detention centres should be reduced

‘Duplication of legal advice – The Group is of the view that other State bodies may be unnecessarily seeking legal advice for the same or similar matters particularly regarding the interpretation of legislation. This duplication leads to wasteful expenditure and the Group concludes that as far as possible public bodies should be able to avail of the expertise of Government legal services, via their parent Department in each
case.’

‘Legal Costs – The Group has noted the practice of different state organisations pursuing legal cases against one another e.g. the Commissioner for Aviation Regulation vs. Aer Rianta. This duplication unnecessarily increases the burden of legal costs borne by the State. The Group proposes that there should be compulsory arbitration of legal disputes involving State bodies. Any State body wishing to resolve a legal dispute with another State body would be required to inform the relevant Minister who would then be responsible for mediating a solution or arranging for other forms of independent mediation. Legislative change should be initiated to implement this proposal if necessary. The Group notes that the revised and updated Code of Practice for the Governance of State Bodies provides that where a legal dispute involves another State body, every effort should be made to mediate, arbitrate or otherwise before expensive legal costs are incurred and that the Department of Finance should be notified of such legal issues and their costs. ’

‘Distinction between junior and senior counsel – The Group has looked at the difference in the level of legal fees payable to junior and senior counsel. The Government, at its discretion, grants Patents of Precedence at the Bar on the recommendation of an Advisory Committee consisting of the Chief Justice, the President of the High Court, the Attorney General and the Chairman of the Bar Council. The Group is of the view that this distinction is unnecessary and contributes to higher legal costs payable by the State. Other jurisdictions function adequately without this hierarchy of legal professionals. The Group notes that this practice applies across the entire legal industry but considers that the removal of this distinction is unlikely to have a significant negative impact on the legal system.’

Author: Colin Scott

Colin Scott is Principal, UCD College of Social Sciences and Law and Professor of EU Regulation and Governance at UCD. He is a Co-Editor of Legal Studies (Wiley-Blackwell).

29 thoughts on “An Bord Snip and the Legal System”

  1. Many thanks for this extremely useful post, Colin. The report obviously has many implications for particular branches of the legal system. I would like to add some of the changes that could, if implemented, have a significant impact on labour lawyers.

    Rationalise the industrial relations institutions (Labour Court, LRC, EAT, etc.). The Board notes that the very complex structure for industrial relations institutions has to be simplified and streamlined. The rationalisation should include:
    • the merger of the Labour Court and the Labour Relations Commission;
    • the transfer of activities such as the administration for Joint Labour Committees and the Rights Commissioners to the National Employment Rights Authority;
    • consideration of the merits of merging the Equality Tribunal into the rationalised IR structure, given that many of its cases occur in the workplace; and
    • discontinuing functions such as the Industrial Relations Advisory Service, the Workplace Mediation Service, industrial relations research, public relations, etc.

    Merge the Health & Safety Authority and the National Employment Rights Authority into a single Work Place Inspectorate.

  2. Why was no consideration given I wonder to investigatign the costs (from the state side but its a more general one) of ; setting a state bar exam twice a year, abolishing the dual system, and letting whomever passes teh exam practice law . Combine this with allowing such bar-passers to work on an exclusive basis without being approached by “solicitors” for “instruction”.

  3. Abolishing the tipstaffs would be lunacy. They actually keep the whole system running, facilitating talks, etc. If you get rid of them, the courts will grind to a halt. Bad idea.

    Reducing the number of County Registrars means the work will be done slower, meaning more costs and delay, which easily outweighs the costs associated with the County Registrar, as well as undermining the other aims. Bad idea.

    The judges already have research assistants. Courts are already used for more than one case a day, if possible. Judges already do CPD, including as chairs of CPD events. One would wonder who was advising them on this aspect…

    If you get rid of the long vacation, no-one will be able to get things sorted out – when in Court, it’s dead time for all other aspects. Judgements, etc, will be late, again leading to delay and costs. Bad idea. After all, time the courts are out but are ticking off the judgements and filing is time not costing the State money. Monday sittings, however, I’m fine with (albeit the superior Court already sit on Mondays for motions and lists).

    Stopping independent arms of the State litigating against each other is a tiny bit problematic, when one considers the role of people like the Human Rights Commission.

    Abolishing the LRC, while tempting given the shambles it’s become, isn’t a good idea either, if you want to save money into the future.

    Getting rid of the distinction between juniors and silks ignores the fact that other professions do have such grades – ask a consultant if she’s an SHO – and also ignores the fact that almost no other Common Law jurisdiction does function without that distinction. Also, abolishing everything across a legal system to save the State money isn’t really on.

    If they really want to save money, make the various departments settle earlier, and make them listen to the advice they’re given instead of the Civil Servants insisting that they’re right no matter what.

  4. @ Brian – because that’s got nothing to do with the expenditure of the State. The State is not the only person who avails of legal advice.

    Even in unified professions, the distinction rapidly reasserts itself between trial practitioners and office practitioners. After all, solicitors have full rights of audience in every court, and can run any case they want to. If you’re the client, you can ask for that. Just as in medicine, if you want a referral to a specialist, then it’s up to you.

  5. I wondered when I saw this where McCarthy got his information from: plenty of courts sit year round, Mondays are not used for hanging around and are not ‘days off’, there is already a system of judicial clerks in the High Court (judicial fellows), and why recommend the abolition of the SC/BL divide and not the abolition of the BL/Solr divide? There is some very sensible stuff here, but some seems somewhat uninformed and the implications of the recommendations for the legal system as a whole (especially for benchmarks apart from ‘efficiency’, however that is to be defined) are underexplored.

  6. County Registrars

    County Registrars are the heros of the Courts systems. Cutting them does not make sense to me unless you are going to have more junior people doing the same work for less pay. I certainly do not think County Registrars are underworked/

    Property Registration Authority

    I would be sorry to see the Property Registration being merged. It has done huge work over the last number of years and has huge projects on the horizon. The Authority has shown a flair for IT projects that puts other bodies in the ha’penny place. One would fear for a dilution of the body. Perhaps shared resources should be put in place rather than mergers?

    Law Reform Commission

    Law Reform is a crucial part of making ourselves competitive and of reducing transaction costs. I would be interested to know who will perform these functions in the future. Given the strategic importance of law reform it seems folly to get rid of the law reform commission.

    For instance, our employment and labour legislation needs to be radically overhauled and simplified. Who will do that?

    Giving more power to NERA

    I cry at the thought of it.

    Duplication of Advice

    This is an excellent point. At the moment we have a situation of one law for Kerry and another law for Donegal in the case of statutes where the competent authority is the Local Authorty or a branch of the HSE. The application of law should be uniform and the expertise should be share. I suggest that there is huge scope for a Web 2.0 took to help solicitors for local authorities and the health boards share counsels’ opinions and legal research. The State has paid for these opinions and research so the results should be shared amongst all providing services to the state.

    Private Residential Tenancies Board / Employment Appeals Tribunal

    I think the members of the PRTB and the EAT are not working as hard as they should be. I think there needs to be an examination of the throughput, hearing hours and expenses. The EAT secretariat is fine body and the EAT itself does push case loads but they start late and finish early.

    If the PRTB is merged with the PRSA then I hope the PRSA people are put in charge.

    List generally

    I suggest that there should be a costs penalty for any case which settles on the steps of the Court, EAT, PRTB etc. I think who should pay such cost should be a point of negotiation between the parties. Obviously the party in the wrong will be under more pressure. This should help courts and other bodies reduce lists.

    I suggest that there should be WIFI in all courts and facility for Gardai to be working on their paper while there. I also think there should be a mechanism for Garda evidence to be given on affidavit by consent in the case of a plea. It is worth considering Garda evidence being given by video from some of the larger Garda Stations.

    It irks me that there is no mention of the wastage of time and resources caused to citizens and legal practitioners by inefficiencies in the Courts. A Garda not turning up can cost two or three days work for a minor offence. A judge turning up late and lists not being divided into different time slots can wast a few month’s work if you add up the man hours. On the WIFI – I think this should be extended to all courts and legal representatives and witnesses should be encouraged to avail of it.

  7. @Tim O’Connor

    I don’t know what kind of tipstaffs you have come across but I have never seen one performing any useful function.

  8. @Tim O’Connor

    I agree with you on getting Civil Servants to listen to advice though. Litigating against some of the local authorities is not like litigating against a rational person. Sometimes, the people making the decisions do not seem to be concerned about the cost to the state or the huge costs to other people who are entitled to expec tthe state to act lawfully. For a party of resources to keep upping the ante in terms of legal costs is offensive enough when that party is a private entity acting rationally. It is even more offensive when it is a public body acting irrationally!

  9. @ Tim : to think that the state wouldnt save money if we had truly competitive legal professionals is to ignore the horrific abuse of taxpayers funds that is the tribunal system.
    Are they still charging in Guineas btw? Whats with that….

  10. @BL – where is there a lack of competition amongst legal professional outside of judges, tribunal chairmen, and tribunal lawyers??

  11. @Brian Lucey. “So barristers are specialists? In what?”

    My brother-in-law is a barrister so don’t get me started. A specialist in nothing but has an opinion on everything – actually, he does specialise in collecting properties from distressed families for his ‘portfolio’. The whole system could do with reforming – it is archaic.

  12. Removing the distinction between barristers and solicitors when is not mentioned in the report. Removing the distinction between junior and senior counsel is mentioned.

    Insofar as the removal of the distinction will make it a meritocracy and will lessen the requirement for the State to engage senior counsels for High Court and Supreme Court cases where the complexity does not require a senior, it is welcome.

    It will also allow junior barristers to charge senior counsel rates for certain types of cases. This is to be welcomed as many juniors are as good or better than seniors but don’t want to cut out a chunk of their practice by being elevated to a higher fee level. (One could say that any senior counsel can charge what he or she wants but the Law Library is a small place physically and in terms of numbers and structures are in place to maintain a highly “collegiate” Bar).

  13. I think abolition of the Law Reform Commission would be a mistake as its proposals are based on thorough research. It amazes me that Government Departments publish Bills all the time with no research paper or consultation document beforehand. If you want quality legislation it needs research to back it up.

    At first glance abolition of junior / senior counsel distinction sounds like a good idea but I suspect parties would still end up paying same amount in many cases.

    Re abolition of solicitor/barrister distinction I suspect they didn’t propose that as Competition Authority has considered it and rejected it.
    Reminder of other Competition Authority proposals:
    http://tinyurl.com/law490

  14. The Merging of the PRA is hilarious as the PRA has just been set up. As if Comreg and BrodCom aren’t big enough. What would it be called property Competition and broadcasting authority?

    If McCarthy thought about saving money on a cost benefit analysis, which is I thought the bread and butter of economics, then surely cutting what are almost essential needs of any society is highly dubious

    If it was just about saving money why not close the prisons or all the District Courts? He must have thought these ideas laughable but to cut the cogs essential to the smooth running of the justice system is equally dubious

  15. I presume that the proposal is to abolish or streamline the Labour Relations Commission and not the Law Reform Commission.

    As a small employer, I had reasonably good experience of the LRC recently. An ex employee made a claim and we reached agreement under their guidance or mediation. Sure it could be better and quicker, but it was a lot faster than the courts. (Amount: €3,000)

    As a consumer, I had a great experience with the Financial Services Ombudsman. Processed the complaint very quickly. Listened to both sides and made a decision. (Amount: €100k)

    I have no direct experience of the Small Claims Court, but those who have used it, praise it.

    Both of the above were done without any money spent on the legal profession.

    By comparison, I have spent around 18 months pursuing a business debtor through the courts for a sum of €9,000 and there is probably another 12 months to go. There are solicitors and barristers involved on both sides.

    I would welcome an informal system where I make my claim, I represent myself and I pay my own costs. This would dramatically reduce costs to businesses; it would reduce the number of people who abuse the court system to avoid paying creditors and it would remove a lot of time consuming cases and paperwork from the courts system.

    Mulligan

  16. For clarity:

    * The abolition of the Law Reform Commission is proposed. It is suggested it should notbe a permanent body and temporary groups can be set up to investigate specific areas.

    * The merger of the Labour Relations Commission with the Labour Court is proposed.

    * It is proposed that Ordnance Survey Ireland, The Valuations Office and the Property Registration Authority should be merged. (This makes great sense.)

    * A merger of Comreg and the Broadcasting Authority is proposed. The PRA is not included in this. The error in the first post should be corrected if possible.

  17. County Registrars: This is clearly an area ripe for reform. The Dublin Circuit Registrar and her office handle a huge work load, without major delays. If Dublin can manage then I do not see why the likes of Roscommon/Leitrim, Waterford/Wexford, Laoise/Offaly and Carlow Kilkenny cannot be merged.

    Law Reform Commission: In other countries this function is left to academia. I would suggest the LRC be subsumed into a university law faculty. A voluntary (unpaid) board of solicitors, barristers, judges and academics could review papers submitted by members of the profession, and doctoral/masters students. The best or suitable ones could be then published. These review boards are very common is the states and less so here. Students and practitioners are always carrying out excellent research and a proper forum for publishing it would be welcome and the prestige of being published would suffice for payment.

  18. @Dermot
    Whilst it is true that students and practitioners carry out excellent research, and I would add academics to that too, frequently such research lacks the focus on law reform. Law reform bodies combine the resourcing with the authority both to engage in the necessary research and to engage in the kind of consultative processes that enhance both the quality and the legitimacy of the outcomes. It would be difficult to replicate that in a university setting.
    On a factual point law reform bodies are very common in the common law world, even in the lower jurisdictions of the Canadian and Australian federal systems. Here is a sample listing and I do not think any have been snipped:
    England and Wales
    Scotland
    Australia
    New South Wales
    Victoria
    Queensland
    Western Australia
    Nova Scotia
    Manitoba
    Saskatchewan
    British Columbia
    Uganda
    South Africa
    Tanzania
    Hong Kong
    Fiji
    New Jersey

  19. I think the very reason the Law Reform commission was brought in, in 1975, was to avoid costly ad hoc systems which McCarthy is proposing.

    Also when would the new LRC meet when a law creates an issue that the government wants changed or when a controversy occurs. Both would be inadvisable

  20. In 2008 the Commission published 6 reports. I would suggest that is a poor return for €1m. If the government commissioned such reports, by putting them out to tender there would invariably be a better return.

    Again I can’t see why university law faculties couldn’t do such work with the right structures in place. There’s no reason why a university team should be unable to carry out a consultation phase similar to that of the Commission.

  21. @ dermot

    The 6 reports where part of a new Programme of Law reform which will run till 2014. Areas Included are juries, sexual offences, ADR, Victims and criminal law etc etc

    Bertie ahern spent over 1m on personal consultants. And the same figure is probably spent on all party commitees discussing a single section of ONE piece of legislation

    THe law Reform commission is the right structure and is full of practising members of the law profession. Suggesting that law lecturers and students could do better is disingenuous and mildly insulting

  22. @Aiden – I think the case you make is even stronger if it is pointed out that the Commission members and staff include judges, academics and recent graduates in addition to practising members of the legal profession.

    One question I have is whether law reform bodies would benefit from broadening their disciplinary expertise in the social sciences in order to enhance their capacity for such matters as analysis of the operation of the legal system and policy problems (for example through statistical analysis) and the unintended effects of past and proposed reforms. Some law reform bodies (for example Canada, and New South Wales) have even appointed commissioners from social science disciplines (eg sociology, psychology). There is a very substantial social science expertise in the operation of all aspects of the legal system internationally (with empirical research published in journals such as Law & Society Review, Law and Social Inquiry, and Law and Policy). Many legal academics do bring substantial interdisciplinary expertise, of course, and that may be sufficient, particularly where social science expertise can be brought in on an ad hoc basis for particular reports.

    Further to my earlier post I notice that the Canadian government ceased funding the federal Law Commission in 2006, without technically abolishing it. I hope and trust that political support was not undermined by the routine practice of maintaining one social scientist amongst the commissioners.

  23. The reason The Sunday Business Post legal page doesn’t mention these proposals is because the editor and main contributor – me – is on a (well-deserved) four-week break in France (but still keeping up with the important blogs, obviously). However, I’m glad to say tThe Sunday Business Post was first with the tipstaffs story some months ago. I’ll be back on top of the story as soon as I return!!

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