Convention dwarfed by flagged changes to Constitution


Government proposals to redesign the courts structure and limit one of the President’s few powers fall outside the remit of the long awaited constitutional convention

IN A speech to a conference on the Constitution two weeks ago, the Chief Justice, Mrs Justice Susan Denham, suggested the holding of a referendum to enable the Oireachtas to establish a court of appeal and other courts as it found necessary, including a reorganisation of the family courts, whose functions are at present divided between the District, Circuit and High courts.

This follows a report from a working group under her chairmanship that recommended a referendum to establish a court of appeal, freeing up the Supreme Court to concentrate on constitutional matters and issues of exceptional importance, and providing a mechanism to deal with the huge backlog in the Supreme Court, where delays run to more than three years.

The Constitution names the Supreme and High courts, and permits the setting up of “courts of limited and local jurisdiction”, that is, the Circuit and District courts. Another appeal court therefore requires a constitutional change, and this was promised by the programme for government.

However, no one expected the suggestion of an amendment enabling the Oireachtas to provide for new courts to be taken up and announced so quickly.

Reform of the family courts was also promised in the programme and Minister for Justice Alan Shatter said he favours the setting up of a single family court, with two levels. At the moment the District Court deals with child care orders, maintenance, custody and access, and domestic violence, while the Circuit and High Court both deal with judicial separation and divorce. Only the High Court can deal with adoption.

The Minister said one level of the new court would deal with most applications, while a higher level would deal with particularly complex issues. The new court could incorporate a welfare service and include alternatives to court, like mediation, he said.

So far, so uncontroversial.

However, the Government has also asked for consideration of a range of further constitutional changes. These include an optional secular declaration for judges, removing the reference to “In the presence of Almighty God”, and allowing the Supreme Court to reject a referral of a Bill by the President under article 26 if it considered there was insufficient evidence for the referral.

This proposal is puzzling, as there have been relatively few referrals of Bills by presidents to the Supreme Court, so it is hard to see what problem is being solved. It would amount to a significant diminution in the office’s power.

The proposal to allow further challenges to Bills found constitutional following such a referral will be welcomed, as the fact they were beyond challenge, irrespective of problems emerging later, has been widely criticised.

The suggestion that the Government could itself refer international treaties to the Supreme Court will also provoke widespread debate, as it is likely to reduce the prospect of ongoing referendums on EU treaties.

If adopted by referendum, these proposals will redesign the courts structure, establishing a constitutional court. They will limit one of the few powers of the President. They will grant power to the executive to refer treaties to the Supreme Court. They will make reference to “God” in the judicial declaration optional.

Meanwhile, the much-vaunted constitutional convention will be considering such weighty matters as the blasphemy law and lowering the voting age – for further consideration by the Government at an unspecified later date.