Yes vote in ‘the other referendum’ brings relief for court’s champions

Questions remain over new institution


It elicited scant debate and in the end it drew a predictably low turnout, but by saying Yes in the referendum best known as “the other one”, the people have approved a constitutional change that will bring about the biggest shake-up of the courts system since 1937.

By 796,008 to 425,047, voters said Yes to the proposal to create a Court of Appeal, a new institution that will sit between the Supreme Court and the High Court.

The court is ostensibly designed to solve a pressing problem: the bottleneck at the Supreme Court, where a four-year backlog has developed as a result of an increase in the volume and complexity of cases being appealed from the expanding High Court. But it’s also aimed at effecting a deeper overhaul of how business is done at the apex of the system. The Supreme Court will no longer be the final court of appeals for all types of cases; from now on it will focus on appeals that are of special public importance and will presumably evolve in time into a type of constitutional court that Ireland has never had. For the first time, it will have a filtering mechanism; it can pick and choose what cases it will hear, and take more time in deciding them.

The Government hopes to have the Court of Appeal in place by October 2014. In the meantime, efforts to reduce the backlog have been strengthened with the appointment of two new Supreme Court judges, whose swearing-in later this month will bring the court from eight to 10 judges. The long-term plan is that, provided the backlog clears, the next five retirees from the Supreme Court will not be replaced and the court will in future comprise only five judges.

Of more immediate importance are the unanswered questions about the Court of Appeal. Minister for Justice Alan Shatter envisages appointing 10 judges to the new court, but their salaries and other conditions haven’t yet been set out. Neither is it clear where the judges will come from (will they be High Court judges, practicing lawyers or a mix of both?) or whether there will be much interest among serving members of the judiciary in applying for the posts. A High Court judge who enjoys life in the “front-line” as a trial judge may be reluctant to join an appeals court that could have its most interesting cases plucked from its hands by the Supreme Court. “If it’s regarded as a dumping ground for very boring cases like personal injuries quantums, you’re not going to get top-calibre people applying for it. They’d be bored out of their minds,” one senior counsel told The Irish Times.

One of the big winners is Chief Justice Susan Denham, who chaired the working group that first recommended establishing a new appeals court in 2009 and then championed the idea from concept to ballot paper. She didn’t explicitly call for a Yes vote, but her views are hardly a secret; the case for a new appellate court has been a theme of her speeches since she became Ireland’s most senior judge two years ago. Mr Shatter was persuaded of that case, and shepherded the proposal over the finishing line in the face of an uninterested media. He emerges with credit, as do the small number of politicians who campaigned for the court.

For them, there will be no small measure of relief tonight. The proposal was never likely to excite much controversy, but at the outset supporters feared two that two things could scupper it. First, that opponents would gain traction by latching onto the fact that the new court would cost up to €3 million a year and involve hiring 10 new judges - a hard sell at any time, but all the more so on the eve of another tough budget in the middle of the worst economic crisis in the State’s history. Throughout the campaign, there was a sense that Fine Gael, having boxed itself into a corner with the disputed claim that the State could save €20 million by abolishing the Seanad, could run into difficulty if the cost of the new court became a major talking point. Given the lack of interest or knowledge among politicians on the Yes side, it would not have taken much for a semi-organised political force with an eye for an effective slogan to have made a close contest of it.

The second obstacle was voter apathy. A solid block of the voting public can be relied on to say no to every constitutional amendment a Government proposes. Advocates had to guard against complacency and persuade enough people not to bin the green ballot paper after they had marked the white one on Seanad abolition.

Against that background, it’s an open question whether the lack of organised opposition helped or hindered advocates of the appeals court. The truth is that many senior lawyers were in private quite sceptical of the proposal, but nearly all were unwilling to go public with their views. The result was that all the main parties, the legal profession and nearly all non-governmental groups appeared to be behind it. Public critics of the proposal were an eclectic and diffuse bunch whose observations - some of them acute - were treated as vaguely eccentric. The media, finding it difficult to process an issue that could not be reduced to the customary confrontation between two antagonistic forces, largely ignored the whole thing.

Not that any of this will trouble the court’s champions in Government and the Four Courts too much tonight. As they emerge from one landmine-strewn battlefield, their thoughts will already be turning to the formidable task of figuring how to give practical effect to this far-reaching reform.