Court of Appeal is no substitute for radical reform of costly system

Do we really need to appoint yet more judges?

 The Scales of Justice look over the courts yard in Dublin  – “our High and Supreme Courts continue to fail us.” PHOTOGRAPH: ALAN BETSON / THE IRISH TIMES

The Scales of Justice look over the courts yard in Dublin – “our High and Supreme Courts continue to fail us.” PHOTOGRAPH: ALAN BETSON / THE IRISH TIMES

Thu, Sep 19, 2013, 01:05

Minister for Justice Alan Shatter’s article, (“Court of Appeal needed to clear backlog of cases”, September 11th) recommending us to vote to create a new Court of Appeal and abolish the rule that forbids dissenting judgments when the Supreme Court rules on a constitutional issue, seems persuasive at first sight. But, like a kaleidoscope, when you shake it and look again you see a different pattern.

Mr Shatter does not mention some things we may need to know. One is that between 1992 and 2003 the amount spent on legal services in Ireland trebled, from about €320 million to €1 billion. The Minister does not give us any estimate of what increase in that figure a new court of appeal will cause.

The pattern I see is like this. Over the past 50 years , there have been problems with delays in the High Court. The solution has always been to appoint more judges – the result, that the number of High Court judges has risen from seven to 37.

Inevitably, since the Supreme Court hears appeals from High Court decisions, its workload has increased and the Supreme Court is now four years in arrears, and failing to perform its function, even though it has recently doubled in size. The solution proposed? Appoint more judges.

But both courts continue to fail us in two fundamental ways. The time between when you consult your lawyer and when your claim is heard by a judge in the High Court is measured in years. If there is an appeal, that time is at least doubled. And the cost is so high that well over half of the population is afraid to seek justice . To the minority who can afford it, justice is delayed. To the rest of us, denied.

Surely, if this is what we see in our kaleidoscope, we will view the proposal to create a new layer of judges differently – as a sticking-plaster, where major surgery is needed.

I think what the Irish people need now is a radical appraisal of our court process, followed by fundamental reformThere is much to look at. If reform had been tried and had not improved the administration of justice, then it might be wise to appoint a new tier of judges, but we should not assume it.

Lawyers and judges, should be involved in a review, if only because the structure is so complex that few non-lawyers could find their way around it without guidance. But they should not predominate, or control the outcome .

They and their predecessors are those who have shaped the system, primarily to suit themselves, and with inadequate consideration for those who meed their service. They have been largely responsible for the “more of the same” approach that has been tried up to now and has failed us.

And lawyers make their living from the system as it stands, and would be nervous of change that may threaten livelihoods. They are also likely to bring into the process a deep-seated resistance to change – the King Inns motto , “Nolumus Mutari”, translates as “we don’t want to change”.

Moreover, another aspect of the Government’s proposal, I suspect, will also annoy citizens . We are being asked to vote on suggested amendments to a Constitution that belongs to us, and which only we can amend. When we come to vote, we think carefully and we weigh consequences.

We should not be restricted in how we decide. But the Government has presented us with a composite proposal. We may vote against a new Court of Appeal, and against the rule forbidding dissenting Supreme Court judgments . Or we may vote in favour of both.

But we must vote the same way on each. We may not approve one and reject the other, a restriction on our right to vote as we choose that shows contempt by the government to the people. Perhaps we should give the Government a clear indication that we will not be treated in this way. Otherwise, they or their successors may get the impression it is acceptable.

Michael Williams’s “Serving the People?”, was recently published by Liffey Press.

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