Supreme Court’s control of access to itself needs to be watched

The proposed creation of a court of appeal deserves public scrutiny. First, there is always a risk people will vote against a measure as a protest against government, when they may not be opposed to the substance of the reform; second, there is more to it than just the creation of a court of appeal.

The problem of delay in appeals must be acknowledged. The four-year delay in the determination of appeals can be significantly reduced by enacting this legislation. This is an overwhelming reason, because delay causes harm to litigants. Not only the stress. There may also be substantive injustice caused by the delay, for example where the wrong status quo is maintained and entrenched (a project delayed, a parent without access to a child, an aging injured party without compensation, a myriad of situations).

Various judicial utterances favouring the establishment of a court of appeal stem from genuine professional concern about the damage caused to litigants by delay, and about the potential for procedural manoeuvring (unmeritorious appeals parking the day of reckoning) to which backlog gives rise.

The proposed amendment, however, deserves further analysis. First, the proposal entrenches in the Constitution the Supreme Court's power to refuse to hear appeals (from High Court or court of appeal). It must be satisfied that it is of public importance, or in the interests of justice. What, one might ask, could be exceptionable about that? Well, first, the legislature cannot prescribe by law a category of appeals the Supreme Court must hear. The Supreme Court may refuse, if it is not satisfied as above. Second, there is no right to have a challenge to the constitutionality of a law. Third, there will be argument about whether one has the right to argue. This is non-productive. Finally, in the round, it does give, at constitutional level, a lot of power to the Supreme Court, which neither legislator nor litigator can control, and which, like all power, can be abused. As litigation is public, an unpopular, and even losing, constitutional action at least must be determined in public, with reasons, at the highest level. This will no longer be the case.

Mission creep
Second, the proposal entrenches in the Constitution the phrase that the Supreme Court, or the Chief Justice, depending on the text, may do various things if satisfied that "it is in the interests of the administration of justice". This is a test on mission creep and to be watched. Administration and justice are not the same. The Constitution, in current form, states in Article 34 that "Justice shall be administered in Courts . . . " but that is a statement of the allocation of power to courts in a tripartite division of government between legislature, executive, and courts, not a test for the exercise of any particular judicial function. Same words, justice and administration, different sentence, intent and meaning. This "in the interests in the administration of justice" is used increasingly in judgments and procedural rulings. But judges are not administrators; and so far as they are, the test identifies their interest with that of the result in the case, which is a bad identification. The correct test is law, and justice. One must hold a line against the overreach of administrative demands as guiding principle. That said, in the proposed amendment, this test is confined to the transitional Article 64 (although this is scant comfort if your case is governed by it).

However, there must be a balance struck between access to the Supreme Court in principle, and in practice. This proposal will restrict access to the Supreme Court in principle, but in practice this is restricted by delay. The Court of Appeal will alleviate delay. In that, it will alleviate some suffering. The extent to which the Supreme Court will control access to itself is something to be reflected on. It is important that the courts are independent in how they decide cases, but not what cases they decide.
Diarmuid Rossa Phelan is professor of law at Trinity College Dublin