merrion street

Chief Justice, Attorney General, Members of the Judiciary, Ladies and

Gentlemen, welcome to today’s Seminar. That so many of you have got out of

your beds to be here on a Saturday morning is a source of great

encouragement to the Government and to me as Minister, as we embark on a

road that will lead to a significant and long overdue reform of our courts

system. I would like to thank Ken Murphy and the Law Society for hosting

us here this morning.

As you will know, the Programme for Government commits the Government to

“…take the necessary steps to create a permanent Civil Court of Appeal”,

and to “introduce a constitutional amendment to allow for the

establishment of a distinct and separate system of family courts to

streamline family law court processes and make them more efficient and less

costly”. Last July, the Government agreed in principle to the holding of

the necessary referenda and also agreed to consider a number of other

issues. Briefly, those other issues concern the judicial declaration or

oath; and the referral of Bills to the Supreme Court by the President under

Article 26, both of which I will touch on later.

I want the message to go out loud and clear that this Government is

absolutely committed to proceeding with the necessary amendments to the

Constitution to give effect to the commitments in the Programme for

Government and we are working to a timetable that envisages the issues

being put to the People in the Autumn. While the Government is committed

to change, we have an open mind on the detail of that change and I hope

that this Seminar will assist with the development of our thinking on the

issues involved.

I would like to turn first to the Court of Appeal proposal, which has been

given added urgency by the recent decision of the Chief Justice to stop

taking new priority cases, given that the priority list is already over 70.

This development is itself instructive. Not alone do we have a significant

backlog of cases waiting to be heard in the Supreme Court, but we also have

a backlog of priority cases – effectively a backlog on top of a backlog.

This unsatisfactory state of affairs is undoing the progress being made in

other areas of the judicial system. The Commercial Court has established

itself as a specialist court in the field of commercial law, and great

credit is due to all those judges involved in the development and

management of that list. However, the increase in the volume and

complexity of litigation arising from the economic crash, with the

resultant increase in the number of appeals to the Supreme Court, has just

added to the logjam of appeals. The efficient processing of work in the

Commercial Court, while praiseworthy in its own right, is of doubtful value

to either the appellant or defendant who may then have to wait several

years for the final determination of their proceedings.

I should say in passing, that any criticism of the delays in the Supreme

Court are not criticisms that can be laid at the door of the Chief Justice.

That the situation isn’t even worse than it is, is down to her ingenuity

and her capacity to wring the greatest efficiencies possible, from a system

that is clearly overburdened.

I note that the Chief Justice’s address today is intriguingly entitled

“Unsustainable”, which I presume is a reference to the workload and level

of backlog now being experienced by the Supreme Court. And of course, it

is unsustainable, but more than that, it simply cannot be allowed to

continue. At its most basic, it offends against the maxim that “justice

delayed is justice denied”. Former US Chief Justice Burger spoke of

inefficiency and delay draining “even a just judgment of its value”.

Everyone is entitled to expect that litigation will be progressed

efficiently so that matters can be determined definitively and people can

move on.

There is a cost to society in not having an efficient court system.

Leaving aside the obvious costs faced by the parties directly concerned,

there is a cost to our reputation as a developed modern democracy if people

can’t have their cases litigated without undue delay. We all know that

this is an issue for foreign multinationals when they are deciding where to

invest. Countries that have properly functioning efficient and effective

legal systems are at a clear advantage over those that don’t.

I might mention in passing the work of the McFarlane Group chaired by Mr

Justice McDermott. I established that Group to advise me on measures that

could be taken to address delay in the courts system. The impetus for the

establishment of the Group was the European Court of Human Rights decision

in relation to the delay in processing an appeal by Mr McFarlane. It is

clear from that case and others that the right under the European

Convention to a timely trial is something that is to be taken for granted

and that failure on the part of the State to provide appropriate remedies,

including by addressing the source of the delays, is not an option.

Furthermore, it is abundantly clear that “sticking plaster solutions” have

a short lifespan. Only fundamental reform that provides a streamlined

system that is properly resourced can provide a long-term sustainable

solution. I look forward to receiving the Group’s report in the near

future.

I might also remark that there is no great mystery to the Supreme Court

backlog. The number of cases being taken before the High Court has

increased dramatically, as reflected in the increase from 7 to 36 in the

number of High Court judges since 1961. More cases means more appeals, of

increasing length and complexity, and those appeals have only one place to

go as things stand – the Supreme Court which has only 8 judges. The

treatment of all cases as if they were of equal weight is, if I might

borrow a word, “unsustainable”. We urgently need a new courts architecture

that results in the appropriate cases being heard in the appropriate forum.

As you all know, the Chief Justice, in a former life, chaired the Working

Group on the Court of Appeal. That Report, which was published in 2009,

provides an excellent template for any discussion on the establishment of a

Court of Appeal. As I said earlier, I have no desire to prejudge our

deliberations on the shape of that Court, but I should say that the

intention is that there will be one Court, with both Criminal and Civil

jurisdiction. Outside of that, I have an open mind.

Issues that need to be considered include the number of judges that should

be appointed to the Court of Appeal and how they should be appointed. For

example, should it be a permanent court or should judges of the High Court

and Supreme Court be seconded to it? A key issue is the path that

constitutional challenges should take. The Working Group took a particular

view on this issue but I would like to hear if there are other views. The

issue basically is whether appeals involving the constitutionality of

statutes should be appealed from the High Court to the Supreme Court, as at

present, or whether in the new dispensation, they should go to the Court of

Appeal and then only on to the Supreme Court in exceptional circumstances,

in the public interest, and subject to the Supreme Court’s leave to appeal

requirements. The Working Group favoured the latter approach, but with the

possibility of leapfrogging, in exceptional circumstances, from the High

Court to the Supreme Court. While we have no fixed view on this, the

Government would be anxious to avoid or at least to minimise the

possibility of two appeals from High Court judgments.

This issue is further complicated by the fact that in many cases, a

constitutional issue is raised in proceedings, in addition to the

substantive issue. Depending on the appeal regime chosen, you could have

the splitting or fragmentation of cases, with the constitutional part going

from the High to Supreme Court and the substantive case going to the Court

of Appeal. The workability or desirability of this is open to serious

question. I look forward to hearing your views.

Whatever solution is arrived at must have the effect of greatly reducing

the number of cases presenting at the Supreme Court for determination. If

that is not achieved, then this will have been a wholly pointless exercise.

The Court of Appeal cannot be a staging post on the road to the Supreme

Court. Appeals from the Court of Appeal must be the exception and the

rules governing such appeals must be sufficiently strict and strictly

enforced to ensure that this is the case.

I would now like to refer to one final matter of relevance to this issue

and that relates to how we might approach the current substantial backlog

of cases awaiting hearing of appeals in the Supreme Court. There are a

variety of different steps that could be taken which include the

possibility of appointing an additional member or additional members to the

Supreme Court and the Supreme Court, with regularity, hearing more appeal

cases on a divisional basis. On the assumption that the referendum to

establish the Court of Appeal is successful, the establishment of such

court would have no automatic impact on the current Supreme Court list. I

have no doubt that there would be a constitutional difficulty with

requiring that current appeals to the Supreme Court be transferred back

into a new Court of Appeal. However, I believe there should be no

difficulty in facilitating the determination of such appeal by the Court of

Appeal in circumstances in which all parties to the appeal are agreed on

such approach. The desirability of the provision permitting this should

form part of our consideration of the proposed reform.

The reform we envisage will involve a significant rewriting of Article 34

of the Constitution. That being the case, the question arises as to what

other changes should be made. One that has been discussed for many years

is the current judicial oath or judicial declaration. The Review Group on

the Constitution looked at this as did the Joint Oireachtas Committee

subsequently. The issue concerns whether there should be a secular oath

and, if so, whether this should be instead of the religious oath that is

currently set out in Article 34 or as an alternative to that oath. Again,

my general sense is that reform is desirable and individuals should be

entitled to take a secular oath but I have an open mind as to the shape of

that reform and again look forward to hearing your views.

Turning briefly to the Family Court proposal, the Government has decided in

principle to amend the Constitution to provide for a separate independent

Family Court structure. I have long held the view that Ireland should have

a dedicated and integrated Family Court structure that is properly

resourced to meet the particular needs of people at a vulnerable time in

their lives. I believe that the judges in those Family Courts should be

specialist permanent judges, with expertise in family law. Structurally,

what I envisage is a two-tier court comprising of a lower Family Court with

limited jurisdiction and a higher Court with unlimited jurisdiction. The

lower Court would essentially exercise the family law jurisdiction and the

jurisdiction in child care matters presently vested in the District Court

and a particular issue may arise as to the construction of that Court, in

particular when dealing with child care and protection matters, to provide

for a more inquisitorial and less adversarial approach. The Court of

unlimited jurisdiction would essentially have vested in it all current

Circuit and High Court jurisdiction in family matters including adoption

and child abduction. In the context of the latter Court, an issue arises

with regard to the determination by it or by the existing High Court of

constitutional challenges or constitutional issues relating to family

matters to which not only Articles 41,42 and 42A of the Constitution apply

but to which articles such as Article 40 are of relevance and to which

provisions contained in the European Convention on Human Rights and

fundamental freedoms are also relevant. In the context of the new Family

Court structure, it is envisaged that appeals from the Court of unlimited

jurisdiction would be taken to the new Court of Appeal. One of the

questions that arises is how to ensure that the particular ethos of the

Family Courts is maintained where cases are appealed from the higher Court

to the new Court of Appeal. I would welcome views as to how the structure

envisaged might be accommodated in the Constitution and any views you might

have generally on the establishment of such courts. I am also conscious in

this regard that, in time, there may be a requirement for other specialist

courts, for example in the areas of planning and the environment, and would

welcome any views you may have on how the Constitutional architecture might

be adapted to allow for such developments.

Finally, I want to mention that I am hosting a Seminar to deal exclusively

with the detailed operational issues surrounding the establishment of a

stand-alone Family Court structure on the 6th of July next. It is hoped

that the Seminar will be addressed by the President of the Family Court of

Australia and will facilitate a comprehensive discussion on the workings

within this State of a dedicated Family Court structure.

Last July’s Government Decision also dealt with a number of other issues.

In particular, the Government decided to consider what changes, if any,

should be made to the constitutional arrangements surrounding the reference

of Bills by the President to the Supreme Court under Article 26. The first

issue that the Government decided to consider is whether the Supreme Court

should be able to refuse to consider a reference from the President on the

grounds that there is no proper factual or evidential basis for the

referral. The second concerns the one-judgment rule in Article 26. Is it

appropriate in a modern State that decisions of the Supreme Court should be

cloaked in some artificial consensus where on some occasions, a minority

may dissent? Should the People know how the court split, if split it did,

on issues of major national and constitutional significance and should

there not be transparency for substantive areas of disagreement? I know

there are arguments against change but I am convinced that, as a Nation, we

need to constantly question the status quo to ensure that it measures up to

the needs of an open modern transparent democracy. And that is not to say

that changing Article 26 is the right thing to do, just that we should

consider it, and make a call as to the appropriate stance to adopt.

The next issue that the Government decided to consider was whether change

was needed in relation to the impregnability of statutes once their

constitutionality has been confirmed following an Article 26 reference.

Again, the question arises as to whether the status quo should be preserved

or whether there should be change to make allowances for changing societal

views or technological developments, or to recognise that, subsequent to

the constitutionality of a statute being upheld in an Article 26 reference,

a new matter could arise not considered by the Supreme Court in respect of

which a constitutional challenge is merited. The question arises as to

whether a more nuanced approach is desirable, or could be developed, which

reconciles the need for constitutional stability in the long run with the

need for the flexibility to reflect the constantly changing face of modern

society. It is worth bearing in mind that Article 26 references are dealt

with in a vacuum with hypothetical arguments presented on both sides.

Could we consider a system that would allow the Supreme Court to revisit

decisions where new information, not available or considered at the time of

the original decision, becomes available subsequently? Or is it worth

considering allowing statutes that have been approved under Article 26 to

be challenged after a certain length of time has elapsed since the original

decision, say 5 years? No doubt there are countless variations on these

possibilities and equally many arguments in favour of retaining the status

quo which has, arguably, served us well. I will say no more on this point,

as I am sure that Tom Cooney’s address will give us plenty of food for

thought.

The Government also wishes to consider whether it should be able to refer

an international agreement to the Supreme Court to test its

constitutionality. As it stands, the constitutionality of any agreement

entered into by the State is open to constitutional challenge, unless it

has been approved by the People in a Referendum. The idea here is that

rather than holding Referenda or alternatively taking the risk of a

successful challenge to an agreement, the Government could, ab initio, have

the Agreement constitution-proofed by the Supreme Court. Again, this is

something on which I would welcome views.

As you have seen, our agenda today is long and the issues are many and

complex. This Seminar is a genuine consultative exercise designed to

engage as many people as possible to ensure that we get the right result.

I am grateful to the Chief Justice, Susan Denham, the Attorney General,

Máire Whelan, Director General of the Law Society, Ken Murphy, the Chairman

of the Bar Council, David Nolan and to Tom Cooney, the former distinguished

law lecturer and one of my Departmental Special Advisers, for agreeing to

address our Seminar. I look forward, as I’m sure you all do, to their

contributions and to what I expect to be a lively exchange of views during

the Open Forum.

Thanks again for attending in such numbers and I hope you enjoy the

morning.

Thank you.