A court of appeal
Somewhat eclipsed by the debate on the Seanad the referendum on establishing a Court of Appeal nevertheless deserves the sympathetic consideration of voters. And support.
The proposed 33rd Amendment to the Consttitution, the first substantial restructuring of the courts since 1937, and although some have complained at what they see as the complexity of the proposal, it actually represents a relatively straightforward change - the insertion of a new court between the High Court and the Supreme Court. That perception of complexity is probably more a reflection of the nature of the campaign and the reality that referendum rules constrain the Government from spending money promoting a measure that has the unanimous backing of the main political parties
That there is a huge problem with the growing backlog of cases on he Supreme Cout list is accepted by all. Over 500 appeals await resolution and court received 605 appeals last year, up 21 per cent on 2011. Claimants are now unlikely to have their case resolved for 4½ years, a tenfold increase in the waiting time in a decade.
It is accepted by all that such delays undermine the quality of justice dispensed, almost certainly violate citizens’ rights under Article 6 of the European Convention on Human Rights to a fair and speedy hearing of their legal disputes, and may well act as a disincentive to international investment by companies concerned at whether the they would have effective access to legal remedies.
At issue, from the few voices raised against the amendment, is whether this is indeed the only and best way to remedy the situation, although recommended by the report of the Working Group on a Court of Appeal chaired by now Chief Justice Susan Denham.
One former registrar has suggested it would be cheaper to expand the jurisdiction of the lower courts, employ more and cheaper lower court judges, and allow the High Court become the effective court of appeal. The savings would, however, be relatively modest, and it is likely that the Supreme Court would also come under pressure to use its discretion take more appeals from the High Court than it will under theproposed regime (it will only consider cases that are of particular public interest or where the interests of justice required such an appeal).
Or the Supreme Court could be asked to work harder and more efficiently, although, as Minister for Justice Alan Sghatter has been pointing out the court’s productivity in terms of annual case throughput compares most favourably already with other jurisdictions.
The amendment also provides that the court of appeal and Supreme Court will be able to issue multiple judgments on most individual cases, unlike the current Supreme Court where minority views are not publicly reflected. The change is a significant and welcome extension of transparency which would allow lawyers and academics to understand with a greater degree of certainty the likely evolution of the law and the key preoccupations of the court’s members.