A Chathaoirligh,
I am pleased to present the Thirty-third Amendment of the Constitution
(Court of Appeal) Bill 2013 to the House. This Bill
brings us a further step along the road towards the establishment of a
Court of Appeal which is a commitment in the Programme for Government.
The case for the establishment of a Court of Appeal has been well
rehearsed. The previous Government established a Working Group on a Court
of Appeal in 2006. The Group, which published its Report in August 2009,
was chaired by the current Chief Justice and comprised members of the
judiciary, representatives of the Bar Council and the Law Society, and
senior officials from the Attorney General’s Office, the Department of the
Taoiseach and my own Department.
The Report includes a comprehensive analysis of the then current situation in the Supreme Court, a review of the position in other common law countries and sets out a path, including proposed constitutional change that has garnered the support of most parties interested in the reform of our courts system.
I mentioned that the Report reviewed the then current situation in the Supreme Court. When the Report was written, the waiting time for cases was two and a half years. In the intervening years, that delay has lengthened to over four years meaning that someone lodging an appeal with the Supreme<
Court today could not expect to have their case decided before 2017.
Delay is truly the enemy of justice or, as the old maxim goes, “justice
delayed is justice denied”. Former Chief Justice of the United States of America, William E. Burger put it well when he spoke of inefficiency and delay draining “even a just judgment of its value”. Our citizens have a right, recognised in Article 6 of the European Convention on Human Rights, to a fair and speedy trial and 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.
And it is not just our reputation from the point of view of human rights and rule of law that is in the dock. 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. International investors, all things being equal, will favour a country with an efficient and effective legal system over one without such a system.
It is worth going back to see how Ireland has reached the current pass in relation to delay in the Supreme Court. When the Courts (Supplemental Provisions) Act was passed in 1961, it provided for 4 ordinary members of the Supreme Court and 5 ordinary members of the High Court, a more or less equal allocation of resources. There are now 36 High Court judges, a 6 fold increase, whereas the number of Supreme Court judges has only doubled from 4 to 8 ordinary judges.
Over the years the volume of litigation has increased dramatically meaning that there are more cases to hear. But as important to the growth in the backlog of cases, if not more important, is the fact that litigation has become infinitely more complex. In the commercial field, to take one example, the scope and complexity of transactions and the speed with which they can be effected is something that could barely have been imagined until recently.
A mile downriver from the Four Courts is the International Financial Services Centre, home now to banks and financial institutions from around the globe and to major international accountancy and legal firms, whose clients include the largest corporations in the world. The success of the IFSC, or the great work that the IDA does in attracting foreign direct investment into Ireland is done no favours at all by an overloaded courts system that is incapable of dealing with the administration of justice in a reasonable timescale.
However, structural reform, important though it is, is never the sole answer to problems such as the Supreme Court backlog and I am not so naive as to think that the creation of a Court of Appeal is, of itself, the answer. Changing structures, appointing new bodies, and so on, can create the illusion of progress and reform while leaving in place the practices and procedures that gave rise, at least in part, to the problems in the first place. I want to place on record my own and the Government’s appreciation of the leadership provided by Chief Justice Denham and her management of the Supreme Court list. The creation of a new Court provides an opportunity for the courts and the Courts Service to explore new ways of doing business and rather than replicate what already exists, to take a fresh look at how work is done and the scope for the deployment of new technologies.
The Court of Appeal can be an incubator of new approaches and could in time become the template for the operation of the other courts. There is an opportunity seldom afforded within an existing system to look around at other countries to see what can be done to ensure that the new court develops its own distinct culture reflecting the importance of its work,and its approach to that work. My view is that that approach should be one that is focused on efficiency and the use of all available technologies to deliver value for money and a better experience for users of the service.
This is a once-in–a-lifetime opportunity that cannot be wasted. The Court of Appeal’s judicial leadership will be entrusted with the pioneering task of establishing a new court. It will be in their hands to seize the opportunity that this presents and I can assure them of every support in that task.
Turning now to the Bill before the House today. Usually Bills providing for an amendment to the Constitution are relatively straight-forward. They propose an amendment of an Article, the People vote on it and if it is accepted, the Article is changed and that is the end of the matter. This Bill is considerably more complex because if the People vote in favour of the establishment of the Court of Appeal, there will be no Court of Appeal in existence when the President signs this Bill. The reason for that is simple. The establishment of the Court of Appeal will require the enactment of an “Implementation Bill” that will provide for the Court, the appointment of judges, their remuneration, and a number of other issues.
That Bill cannot be enacted unless the People approve the amendment and even then, it will take some time from the enactment of that Bill in the first half of 2014 to the physical establishment of the new Court, which I expect to take place in time for the start of the new law term next Autumn.
There will undoubtedly be some interest in the number of judges to be appointed to the Court of Appeal. As Senators will be aware, the Courts and Civil Law (Miscellaneous Provisions) Bill provides for the appointment of 2 additional judges to the Supreme Court, bringing its complement, including the Chief Justice, to 10. This will allow the Supreme Court to sit in two Divisions which I expect will allow it to make progress on the backlog of cases waiting to be heard. By the time the legislation providing for the establishment of the Court of Appeal is being processed, we will be in a better position to decide on the appropriate number of judges to appoint to the Court of Appeal. It should be noted in this context that the Court of Appeal will be taking over the work of the Court of Criminal Appeal. That court which currently sits on an ad hoc basis, with a combination of Supreme Court and High Court judges, also has a
backlog of cases. My expectation is that the Court of Appeal will sit in Divisions with a dedicated criminal division, at least in the initial stages. Overall, my preliminary assessment is that the new court will require 10 judges (9 ordinary and a President) but that the final decision on this can only be made when we have a clearer picture of the backlog which will then exist. What I can say however, is that there is no point in creating a Court of Appeal and then starving it of resources. You don’t need me to tell you that if all this exercise achieves is that people have to wait four years for their cases to be heard by the Court of Appeal rather than by the Supreme Court, it will have been an entirely pointless exercise and a failure. Our objective must be that after the Court of Appeal is established, appeals from the High Court will be heard within a reasonable timeframe.
In the normal course, I would now proceed to go through the Bill section by section and explain each section. Given the way that the Bill is drafted, with most of the content in Schedules, this would be very confusing. Instead I propose to deal with the different issues in the Bill as units and explain where they occur and what they mean. I hope that will make it easier to understand and for Senators to engage with the Bill and frame any questions they wish to ask or issues they wish to raise.
Section 1 of the Bill provides for the definitions used in the Bill. “the establishment day” is the day the Court of Appeal is established on foot of the enactment of “the relevant law” which is the Implementation Bill referred to just now.
Section 2 deals with the commencement provisions and I will deal with those as I go through the
Bill.
Section 3 will be commenced on enactment of the Bill. That means that on enactment, the Constitution will be amended to include the text in Schedules 1 and 2. Schedule 1 provides for the addition of the Court of
Appeal to the list of courts contained in Article 34.2. Schedule 2 is a new Article 34A which will be inserted on enactment, but which will not appear in the text of the Constitution once the Court of Appeal has been established.
New Article 34A provides for the enactment of a law, the Implementation Bill to which I just referred, providing for the establishment of the Court of Appeal, as soon as practicable after the enactment of the Bill. That law will require the Government to appoint by order “the establishment day”
– the day the Court of Appeal is established.
Sections 4, 5 and 6 will commence on the day the Court of Appeal is established. Section 4 of the Bill refers to Schedule 3 which sets out a new section 4 to be inserted in Article 34. New section 4 provides that the Court of Appeal will have appellate jurisdiction from the High Court and such other courts as may be prescribed by law and the decisions of the Court of Appeal are to be final, except in the limited circumstances where an appeal may be allowed by the Supreme Court. The section further provides that no law may be enacted to exclude cases concerning the constitutionality of statutes from being heard by the Court of Appeal.
Section 4 also provides for a renumbering of sections 4 and 5 of Article 34
to take account of the insertion of the new section 4.
Section 5 refers to Schedules 4 and 5 of the Bill. The amendment contained
in Schedule 4 provides that the Supreme Court will hear an appeal from the
Court of Appeal provided that it is satisfied that it concerns a matter of
general public importance or that it is necessary in the interests of
justice that the Supreme Court hears the appeal.
The amendment contained in Schedule 5 provides for the taking of appeals
directly from the High Court to the Supreme Court in exceptional
circumstances. This so-called “leapfrogging” provision is intended to
allow the Supreme Court to hear cases which meet the criteria set out for
appeals from the Court of Appeal to the Supreme Court, where there are
exceptional circumstances that warrant it being heard by the Supreme Court.
Exceptional circumstances could include cases where there is a particular
urgency and where the Supreme Court is satisfied that the case would be
accepted by it on appeal from the Court of Appeal in any event. Section 5
also provides for the renumbering of subsection 4° following the insertion
of new subsection 4° in Article 34.4.
Subsections 2(f) and (g) of section 5 provide for the deletion of
subsection 5 of Article 34.4. This subsection contains the so-called
“one-judgment” rule. That rule provides that the Supreme Court may only
issue one judgment when it hears challenges to the constitutionality of
legislation. The application of the rule in these circumstances and in
relation to Article 26 references was considered in considerable detail by
the Constitution Review Group. The Group recommended in its Report that
the rule be deleted from Article 34 but retained in Article 26.
The Government has decided that rather than imposing this rule on the Court
of Appeal it would be better to reform the system in line with the
recommendation of the Constitution Review Group. I am convinced that
justice will be best served by giving the judiciary the freedom, where they
so desire, to give judgments, including minority judgments, on important
matters concerning the constitutionality of our laws. While it is not
intended to change the Article 26 procedure at this time, it is something
that the Government may come back to in the future.
Moving on to section 6 which deals with a number of other amendments to the
Constitution consequential on the establishment of the Court of Appeal.
These are listed in a table set out in Schedule 6.
Article 12.8 is to be amended to provide for the inclusion of the President
of the Court of Appeal among the list of Judges before whom the President
of Ireland must make his or her declaration or oath.
Article 14.2.2° is to be amended to provide for the replacement of the
President of the High Court by the President of the Court of Appeal as the
person who would substitute for the Chief Justice on the Presidential
Commission, if the position of Chief Justice were vacant or if he/she were
unable to act.
Paragraph i of Article 31.2 is to be amended to provide that the President
of the Court of Appeal shall be an ex-officio member of the Council of
State.
Article 34.3.2° is to be amended to include the Court of Appeal (with the
High Court and Supreme Court) in the list of courts to which an appeal
concerning the constitutionality of legislation may be heard.
The amendment to Article 34.6.2° (currently Article 34.5.2°) provides for<<p_pT/>the swearing of the judicial declaration by judges of the Court of Appeal.
Article 35.1 is amended to provide for the appointment of judges of the
Court of Appeal by the President.
Article 35.4.1° is amended to provide for the removal of judges of the
Court of Appeal in accordance with the provisions of that section. I will
return to this provision later when I deal with Section 7 of the Bill.
Paragraph i of Article 36 provides for the regulation by law of the number
of judges, their remuneration, age of retirement and pensions. The
amendment adds the Court of Appeal to the list of Courts covered by the
provision.
Article 40.4.3° deals with habeas corpus cases and is being amended to
provide that where the High Court is satisfied that the person is being
detained in accordance with the law but that the law is unconstitutional,
the High Court shall refer the question of the validity of the law to the
Court of Appeal rather than to the Supreme Court as at present.
Section 6 also refers to Schedule 7 which deals with how the cases that are
before the Supreme Court when the Court of Appeal is established are to be
dealt with.
Schedule 7 contains a new Article 64 that is to be inserted into the
Constitution on the establishment day, but is not to appear in texts of the
Constitution published one year after that date. This format is modelled
on the commencement provision which arose under the 19th Amendment
following the Good Friday Agreement.
It provides that cases that have been heard or part heard by the Supreme
Court on establishment day will be determined by the Supreme Court. Where
a case has not been heard, the Supreme Court may transfer the appeal to the
Court of Appeal or a party to the appeal may apply to have the case
transferred.
The Schedule clarifies that the reference to an appeal having been heard in
full or in part, does not include the hearing of an interlocutory
application in relation to the appeal or unless the appeal itself concerns
a procedural matter, the hearing by the Supreme Court of any procedural or
application or motion in the matter.
Section 7 deals with the interface between this Bill and the Thirty-second
Amendment of the Constitution (Abolition of Seanad Éireann) Bill 2013. The
Bills intersect in relation to Article 35.4.1° which deals with the
impeachment of judges. The purpose of section 7 and Schedule 8 is to
ensure that regardless as to whether the Seanad is abolished or not, and if
it is, whether it is abolished before or after the establishment of the
Court of Appeal, judges of the new court will be covered by the impeachment
provision in Article 35.4.1°.
Section 8 deals with the citation of the Bill.
In conclusion, I don’t believe that the status quo of ever-lengthening
queues of cases lining up to be heard by the Supreme Court is tenable.
something has to be done. There will be arguments as to the best approach
but the Government has taken the view that the Working Group, chaired by
now Chief Justice Denham, which examined the issue for over two years and
which reported in 2009, provides the road map to the optimum solution. It
is the approach favoured by those who engaged in the consultation process
on the issue, and is the only one that delivers a constitutionally-based
Court of Appeal. It is the solution that ensures that the Supreme Court
will only hear cases that merit its attention and that there is a coherence
to our courts
architecture that is not there at present.
I am pleased to commend the Thirty-third Amendment of the Constitution
(Court of Appeal) Bill 2013 to the House.