Court of appeal vote could bring about major shake-up of courts system

Waiting time for appeal to Supreme Court is four years


Alan Shatter: had 

a strained relationship with the judiciary

Alan Shatter: had a strained relationship with the judiciary

 

What is the Court of Appeal referendum about?
It has been overshadowed by the debate on the abolition of the Seanad, but there’s a second referendum taking place on October 4th.

If passed, it would bring about the biggest shake-up in the courts system since 1937. Voters are being asked to amend the Constitution so as to allow for the creation of a new intermediate court between the High Court and Supreme Court. The Court of Appeal would hear most of the appeals currently heard by the Supreme Court, virtually all appeals from decisions of the High Court and – if laws are passed to provide for this – appeals
from other courts as well.


Why would we need
another court?
The appellate court system is under huge pressure. Unusually among equivalent courts elsewhere in the world, the Supreme Court is the final court of appeal for all cases thrown up by the High Court, regardless of whether or not they have a constitutional element. While the High Court has expanded to handle the increasing volume and complexity of the cases coming before it, a bottleneck has developed farther up the chain in the Supreme Court.

In 2003, the waiting time for an appeal at the highest court was four months. Today, it’s four years.


Let’s flesh this out a little. Would a decision of the court of appeal be final?
In general, yes. In some cases, however, there may be a further appeal from the court of appeal to the Supreme Court, and there may be some direct appeals from the High Court to the Supreme Court.


Under what circumstances would the Supreme
Court hear appeals from
the court of appeal?
If it considered that: (a), the decision involved a matter of general public importance;
or (b), the interests of justice required such an appeal.

The same considerations would be weighed up by the Supreme Court in deciding whether to hear an appeal directly from the High Court.


Would the new court
deal with civil or
criminal appeals?
Both. On the criminal side, it would take over the work of the Court of Criminal Appeal, which currently sits on an ad hoc basis with a combination of Supreme Court and High Court judges and has its own backlog of cases.


How many judges would
sit on the new court?
The referendum Bill is silent on this, but Minister for Justice Alan Shatter’s
“preliminary assessment” in July was that the new court would require 10 judges.


What about their pay
and pensions?
We don’t know yet. Salaries and pensions will be set out in legislation if the referendum is passed. The expectation in legal circles is that the salary for an ordinary member of
the new court would be somewhere between that of a new judge on the High Court (€172,710) and the Supreme Court (€182,895).


When would it be up
and running?
The Government believes it could be established in the autumn of 2014.


Would the new court
have any knock-on
constitutional effects?
The Constitution would be changed to provide that the president of the court of appeal would be the person to substitute for the chief justice on the Presidential Commission.

This body, which is made up of the chief justice, the ceann comhairle and the cathaoirleach of the Seanad, is the collective vice-presidency of Ireland, taking over all functions when the office of President is vacant or the head of State is unavailable.

Currently it is the president of the High Court who substitutes for the chief justice on the commission. In another change, the president of the court of appeal would become an ex-officio member of the Council of State.


Anything else we should know about the referendum?
Yes, actually. The referendum Bill also contains a section that would do away with the one-judgment rule in the Supreme Court.


Never heard of it.
At present, the Constitution states that when the Supreme Court hears challenges to
the constitutionality of legislation, it must give only one judgment.

That means we don’t know if any of the judges disagree with the decision or why. If the referendum is passed,
the one-judgment rule in constitutional challenges
will be removed.

However, the rule will remain in cases where the President refers a Bill to the Supreme Court to test its constitutionality before he signs it into law. A decision in these referral cases would continue to be given by one judge speaking for the court.


Are people agreed that removing the one-judgment rule is a good thing?
Lawyers differ on this. Proponents such as Mr Shatter believe justice is best served by giving the judiciary the freedom to give judgments, including minority judgments, on important matters concerning the constitutionality of our laws.

Critics argue that allowing judges air dissenting opinions only creates uncertainty and even weakens the authority of the court’s decision.


Finally, where do the
political parties stand
on the referendum?
All the major parties are calling for a Yes vote.