The recent report by the Law Society on Ireland’s justice system caused quite a stir. Rightly so. It should be a cause for concern when it takes three times longer than elsewhere in Europe for a case to make its way through the courts here. In the wider context, it is just another example of our seemingly chronic inability to get stuff done.
Much of the subsequent focus has been on the number of judges. Again, we are bottom of the class in Europe when it comes to number of judges per capita. Hiring more judges is obviously a sensible response, but it is perhaps worth considering whether our problem is not that we don’t have enough judges, but rather we have too many lawyers.
We certainly have a lot of lawyers. According to the European Commission for the Efficiency of Justice (CEPEJ), which is the source of much of the information in the Law Society report, we have 282 lawyers per 100,000 inhabitants. This is significantly higher than the European median of 172 per 100,000.
It’s a lot of lawyers and it must be related to one of the other CEPEJ findings – that we are three times as litigious as our European peers. We bring seven criminal cases for every 100 people in the country. The French bring roughly 1½, the Germans 1¼ and the British – whose legal system most closely mimics ours – bring 2¼.
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Given that our crime rates are not out of line with European norms and actually lower for very serious offences such as homicide, the explanation is clearly not a national propensity for breaking the law.
There could be some other simple explanation. There is no single EU system for collecting crime and court statistics. It is possible, then, that something got lost in translation. What is treated as two cases in the Irish system might be treated as one case elsewhere, for example, but it’s fair to assume the CEPEJ would have taken that into account.
Our overabundance of lawyers does seem to suggest we have a penchant for litigation rather than crime. This must be as consequential as the availability of judges – if not more so – when we ask why the courts are so clogged up. But it’s not necessarily something you would expect the Law Society to dwell on.
It is undeniable that a lot of things end up in court here that might not do so in other European countries. By far the most high-profile example is the practice of the courts determining the size of awards to children injured during birth. Even if – as they usually do – the hospital admits liability, the court sets the damages.
Another more mainstream example is motor insurance and personal injuries claims. Despite ample evidence at this stage that awards made by the Personal Injuries Assessment Board are on a par with those that might be awarded by the courts, many cases still go to court.
Admittedly, these are examples of civil litigation – where Ireland is at the upper end of European norms but not an outlier – but they speak to a wider fetishisation of the courts as the only way to resolve legal issues.
The effect of this is particularly evident in the lack of enthusiasm shown for restorative justice and other methods of dealing with minor offences outside of the courts system. This approach is much more prevalent in other European countries, particularly northern European countries, who score far better than we do in the CEPEJ surveys. The approach also has the benefit of reducing recidivism rates.
This would suggest a solution to the congestion in courts and the widespread denial of the right timely access to justice is not to have fewer lawyers – appealing as that might sound. It suggests the solution is to stop creating so much work for them by reducing the number of cases that go to court.
Unfortunately, this idea has little support in Ireland, where we are going through a bit of a law-and-order moment as the Government struggles to deal with a sort of low-level moral panic about crime, much of its own making.
Politicians tend to lean into the narrative peddled by some popular media that crime is out of control. The press has been aware that crime sells since the time of the Penny Dreadfuls. Politicians should know better.
But perception trumps reality and it would be a brave justice minister who hangs their hat on restorative justice as the solution to congestion in the courts.
