A new court of appeal would enhance access to justice

October 4th referendum will put court into Constitution


The purpose of the 33rd Amendment of the Constitution is to enable the Oireachtas to create a new court of appeal. This institutional reform is necessary to ensure our people have a courts system that is able to resolve appeals with reasonable speed.

The need for a court of appeal arises mainly from the on-going significant backlog of cases before the Supreme Court and the consequent long delays in appeals being dealt with by it.

Over 500 appeals await resolution. A person or company lodging an appeal with the court is unlikely to have their case resolved for 4½ years. And the number of appeals – up by more than 5 per cent this year – continues to increase significantly. Earlier this year, the Chief Justice announced her decision not to accept any new priority cases, given that there were already over 70 cases on the priority list.

The problem of justice delayed is not the fault of our judges. The judges have taken many initiatives to produce a more efficient case-management system. The institutional structure they have inherited is simply not adequate for dealing with the volume and complexity of today’s lawsuits.

The Supreme Court in Ireland, unlike other comparable common-law countries like the UK, the US, and New Zealand, is the court of final appeal in all cases. In those countries a supreme court mainly deals with cases involving substantial points of law or issues of major public importance. In Ireland, the Supreme Court is taken up with issues ranging from routine interlocutory orders to major constitutional issues, and everything in-between.

This institutional structure has produced a bottleneck in the appeals process owing to the growth in the volume and complexity of litigation.

On volume: Each high court judge who hears a case sits as the High Court. In 1968 there were seven high court judges and the Supreme Court heard appeals from them. In 2013 there are 36 High Court judges and a single Supreme Court capable of dividing into two panels. Thus the Supreme Court is hearing appeals from 36 High Courts.

On complexity: The courts have to handle appeals involving a wide range of legal issues.

Appeals raise questions about, for instance, statutory interpretation, constitutional law, administrative law, European Union law, commercial law and family law. The judges have to master boxes of information before an appeal comes to a hearing.

There is a Court of Criminal Appeal. It sits on an ad hoc basis, with a mix of Supreme Court and High Court judges. It lacks a clear constitutional basis. It also has a backlog of cases. The delay in dealing with appeals undermines the constitutional rule of law, imposes unnecessary costs on business, and blights our reputation. Justice delayed is justice denied.

First, this systemic flaw violates the right that everyone has under Article 6 of the European Convention on Human Rights to a fair and speedy hearing of their legal disputes. It causes misery to people enmeshed in family-law disputes or personal-injuries cases. Ireland has already had to pay compensation to individuals who have successfully taken cases to the European Court of Human Rights in relation to delay.

Second, it endangers the economy. The expectation that persons or companies will be able speedily to enforce their legal rights underpins all investment and commercial transactions. Justice delayed erodes this vital impersonal assurance.

Today’s international business world works best where the law is clear, where the judiciary is independent, and where those who find themselves either asserting their rights or defending their actions before the courts can expect to know the final outcome without undue delay.

Third, it impairs the administrative and regulatory structure of the State and State agencies since it denies timely clarification of the scope of their powers, rights and responsibilities to the detriment of citizens and all affected by action proposed or taken.

Fourth, it has the result that the State is failing to keep full faith with its international obligations. For instance, it is very hard for the Supreme Court promptly to resolve issues in child-abduction cases.

The proposed court of appeal will deal with most cases that are currently dealt with by the Supreme Court, thus reducing its workload and allowing it to focus on the development of the law.

The model for the new court of appeal is largely drawn from the 2009 Report of the Working Group on a Court of Appeal which was chaired by now Chief Justice Susan Denham.

New court
The proposed constitutional reform will unfold in two phases. The essential idea is, first, to provide for the new court of appeal in the Constitution. Thus, Article 34.2 will be amended to include the court of appeal in the list of courts that constitute the courts and a new Article 34A will be inserted after Article 34. Article 34A will require the Oireachtas to enact a law providing for the establishment of the court of appeal on an establishment day to be fixed by order by the Government.

And, second, if the referendum is passed, a Bill will be drafted to provide for the establishment of the court of appeal. The intention is to establish the new court to coincide with the new court term in October next year.

There are also amendments to the Constitution consequential on the establishment of the court of appeal. For example, there is a requirement that court of appeal judges make the required judicial declaration on taking office.

There are also amendments dealing with appeals to the Supreme Court and how the existing caseload of the Supreme Court is to be dealt with.

For example, the Supreme Court will only hear appeals from the court of appeal in relation to matters of general public importance or where the interests of justice require it.

Finally, the court of appeal will be able to issue multiple judgments where it rules on the constitutionality of a statute. Indeed, the one-judgment rule contained in Article 34.5.5 of the Constitution – when the Supreme Court is considering the constitutionality of an Act of the Oireachtas, it may give only one judgment, in other words, an institutional opinion – will be removed.

This reform is at one with the overall Government approach to openness and transparency and consistency in the law. The short of the matter is that not only are the courts independent but the individual judges on the courts are independent. This reform will respect the independent voice of the individual judge.

A “Yes” vote would take a positive step towards fashioning an efficient and effective courts system that ensures better access to justice.

Alan Shatter is Minister for Justice, Equality and Defence

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