Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

Tairgim: "Go léifear an Bille an Dara hUair anois."

I move: "That the Bill be now read a Second Time."

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 has long been called for and was explicitly provided for 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 Departments of the Taoiseach and Justice.

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. It sets out a path, including proposed constitutional change that has garnered the support of most parties interested in the reform of our courts system. 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. A 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. Ireland has already had to pay compensation to individuals who have successfully taken cases to the European Court of Human Rights on delay. 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 with delay in the Supreme Court. When the Courts (Supplemental Provisions) Act was passed in 1961, it provided for four ordinary members of the Supreme Court and five ordinary members of the High Court, a more or less equal allocation of resources. There are now 36 High Court judges, a six-fold increase, whereas the number of Supreme Court judges has only doubled from four to eight ordinary judges.

Over the years the volume of litigation has increased dramatically meaning that there are more cases to hear. However, 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 could only have been imagined until recently.

A mile down river from the Four Courts is the International Financial Services Centre, IFSC, home now to banks and financial institutions from around the globe and to major international accountancy and legal firms whose clients include the world's largest corporations. The success of the IFSC, or the great work that IDA Ireland does in attracting foreign direct investment into Ireland, is done no favours 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. 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 the 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, 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 could 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 the new court develops its own distinct culture reflecting the importance of its work but also its approach to that work. My view is that such an 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 not to 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 its hands to seize the opportunity that this presents and I assure it of every support in that task.

Usually Bills providing for an amendment to the Constitution are relatively straightforward. They propose an amendment of an article and the people vote on it. If it is accepted, the article is changed and that is the end of the matter. This Bill, like the one providing for the abolition of the Seanad, is considerably more complex. That complexity arises mainly from the fact that 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 to physically establish the new court. I hope to be in a position to outline the key elements of the implementation Bill in advance of the holding of the referendum, so that there is the opportunity for people to see what it is intended to provide for in the legislation. That Bill will be enacted in the first half of 2014 and all going well, I expect that the new court will be established in the autumn of 2014.

There will undoubtedly be some interest in the number of judges to be appointed to the court of appeal. The Courts and Civil Law (Miscellaneous Provisions) Bill 203, which is currently before the Oireachtas, provides for the appointment of two additional judges to the Supreme Court, bringing its complement, including the Chief Justice, to ten. 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 ten judges, nine ordinary and a President, but the final decision on this can only be made when we have a clearer picture of the backlog which will then exist. However, there is no point in creating a court of appeal and then starving it of resources. If all this exercise results in is people waiting 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 nugatory 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 Deputies to engage with the Bill and frame any questions they wish to ask or issues they wish to raise.

Section 1 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. The 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", which is 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 of the Constitution. A 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 Article 26 referrals was considered in considerable detail by the Constitution review group, which recommended that the rule be deleted from Article 34 but retained in Article 26.

It is my strong view that justice is 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. For the time being, this reform, in line with the review group's recommendation, is limited to the Article 34. Therefore, if the referendum is carried, both the court of appeal and the Supreme Court will be able to issue multiple judgments in cases involving challenges to the constitutionality of laws, in the same way as in all other cases that come before them.

Section 6 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 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 or 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-officiomember 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 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 corpuscases 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. 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. Both the Seanad abolition Bill and this Bill provide for the amendment of the same subsection 1° of Article 35.4. The provisions in section 7 and in Schedule 8 cover the sequencing of those amendments, should they both happen, to ensure that at all times after the establishment of the court of appeal, its judges are subject to the impeachment provisions in Article 35.4. After all that, Members will be glad to hear that the final section, section 8, deals with the citation of the Bill.

In conclusion, I do not believe that the status quoof 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 reported in 2009, provides the roadmap 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 which 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 and I await with interest the contributions of Members.

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