A question of justice without delay

Q We know about the vote on whether or not to retain the Seanad but what is the referendum regarding the establishment of a Court of Appeal?

A. The Court of Appeal referendum allows registered citizens to vote yes or no to the proposal:

- To establish a Court of Appeal and

- To change how the Supreme Court issues decisions in cases where it is asked to decide whether or not a law is constitutional (the “one judgment” rule).

Q. How are the courts currently structured?

A. Article 34 of Bunreacht na hÉireann governs our courts. Article 34.1 provides that: ‘‘Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution...’’

Article 34.2 of the Constitution goes on to make provision for ‘‘Courts of First Instance’’ and a ‘‘Court of Final Appeal”.

The article provides for the legislature to decide on the structure of lower courts but specifies the establishment of a High Court with original jurisdiction and a Supreme Court as the court of final appeal. It does not specify the establishment of a court of appeal.

The current structure of the sup-erior courts remains as it was when established in 1922 and re-established in the 1937 Constitution and in 1961 by the Courts (Constitution and Establishment) Act.

Q. What are the jurisdictions of the superior courts?

A. The High Court — Article 34.3.1 of the Constitution provides that the High Court enjoys ‘‘full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal’’.

The Court of Criminal Appeal — There is no reference in the Constitution to the Court of Criminal Appeal. It is a creature of statute and the only intermediate appellate court in Ireland. It was established by s.3 of the Courts (Establishment and Constitution) Act 1961.

The Supreme Court — Article 34.4 sets out the jurisdiction of the Supreme Court. As the court of last resort, the Supreme Court enjoys only a limited original jurisdiction whereby Article 26 allows it to adjudicate on a bill referred to it by the President. Generally, the Supreme Court operates as an appellate (appeals) court only.

Q. What will the amendment do?

A. The purpose of the 33rd amendment to the Constitution is to enable the Oireachtas to create a new Court of Appeal. Proponents say this institutional reform is necessary to ensure we have a courts system capable of resolving legal issues with reasonable speed.

Q. What’s the problem?

A. The need for a Court of Appeal arises mainly from a significant backlog of cases before the Supreme Court and the consequent long delays in appeals being dealt with by it. At present, the waiting list is over 500 which means that anyone lodging an appeal with the court is likely to have to wait at least four years.

Q. Can’t the judges sit for longer and work harder to clear the backlog?

A. They have done all they can, according to Justice Minister Alan Shatter. “The judges have taken many initiatives to produce a more efficient case management system,” he says. “The institutional structure they have inherited is simply not adequate for dealing with the volume and complexity of today’s lawsuits.”

Q. What is the structural problem?

A. The Irish Supreme Court, unlike other common-law countries like the UK, the US, and New Zealand, is the court of final appeal in all cases. In those other jurisdictions a supreme court mainly deals with cases involving substantial points of law or issues of public importance.

According to Mr Shatter, this institutional structure has produced a bottleneck in the appeals process, owing to the growth in the volume and complexity of litigation.

Q. How does the system work now?

A. 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 Supreme Court capable of dividing into two panels. Thus the Supreme Court is hearing appeals from 36 High Courts.

Q. Why the increase in judges since 1968?

A. Our accession to the EEC in 1973 spawned a growing body of EU law and, at the same time, Ireland changed from a mainly agricultural economy to a sophisticated knowledge economy, focusing on services and hi-tech industries.

This means the Supreme Court must now handle appeals involving a wide and growing sophistication of legal issues involving constitutional law, administrative law, European law, international law and treaties, commercial law, and family law.

Q. But don’t we have a court of appeal already?

A. Yes, and no. The Court of Criminal Appeal is our only court of appeal and, as its title suggests, deals exclusively with criminal matters. It sits on an ad hoc basis, with a mix of Supreme Court and High Court judges.

Q. So, what’s the problem?

A. It lacks a clear constitutional basis, to say the least and may, in fact, be constitutionally unsound. It also has a backlog of cases, mirroring what is happening in the Supreme Court.

Q. Why does this matter?

A. The old adage of “justice delayed is justice denied” comes into play. The delay in dealing with appeals undermines the rule of law, imposes unnecessary costs on litigants, and blights our international reputation as a law-abiding and law-enforcing nation.

Firstly, it violates the right to a speedy hearing under Article 6 of the European Convention on Human Rights. Ireland has already had to pay compensation to individuals who have successfully taken cases to the ECHR in relation to delay.

Secondly, it endangers the economy. The expectation that individuals or companies can speedily enforce their legal rights underpins all investment and commercial transactions. Justice delayed erodes this.

Q. Is there anything unusual about this referendum?

A. Yes. It is, in fact, two referenda in one, aside from the Seanad vote. We are asked to allow the establishment of a court of appeal and also to change the rule which permits only one judgment to be pronounced in constitutional cases and dissenting judgments not disclosed.

Q. Where does this rule come from?

A. Legal historians say that it emerged in the 1930s in order to protect judges from political interference if their views contrasted with that of the Government.

Q. But can’t we agree to a court of appeal whilst keeping the one-judgment rule?

A. No. Strangely, the Government has decided otherwise. A vote for a court of appeal means a vote to change the one-judgment rule, and vice versa.

Q. How much will the new court of appeal cost?

A. Difficult to estimate. Fine Gael has been vociferous in claiming that scrapping the Seanad will save €20m but is silent on the cost of establishing the new court. The minister does not give any estimate.

Between 1992 and 2003 the amount spent on legal services in Ireland trebled, from about €320m to €1bn.

The likelihood is that it will involve the recruitment of up to 10 new judges and that the cost will run into millions.

Q. Considering we have 19 more High Court judges than we had in the 60s, why will adding yet more judges solve matters?

A. That is the real issue. As barrister Paul Anthony McDermott put it on RTÉ radio’s Morning Ireland:

“This proposal is putting in another layer and the idea is obviously to reduce delays and make the system more efficient, but in a legal version of scientific Boyle’s law, lawyers tend to fill the available space, so there must be a risk that if you create another layer of courts that it will result in more cases.”