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

In the commercial field, to take one example, the scope and complexity of transactions and the speed with which they can be effected could barely have been imagined until recently. In the commercial field, litigation has mushroomed.

A mile down-river from the Four Courts is the International Financial Services Centre, IFSC, home to banks and financial institutions from around the globe and 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 as it may be, 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 only 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. The Government appreciates 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 examine other countries to determine 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. 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 should not 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 that opportunity. I assure them they have every support in the task they will be asked to undertake should a referendum be successful.

Usually Bills providing for an amendment to the Constitution are relatively simple and 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. 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 in autumn 2014.

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 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. 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, 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 that the final decision on this can and should only be made when we have a clearer picture of the backlog that will exist following the referendum, should it be successful. What I can say, however, is that there is no point in creating a court of appeal and then starving it of resources. One does not need me to tell one that if all this exercise achieves is a set of circumstances in which 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. Notably, "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.

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, 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 provides for the enactment of a law, the implementation Bill to which I 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”, that 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 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 issue only one judgment when it hears challenges to the constitutionality of legislation. The application of the rule in these circumstances and in regard 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 it so desires, to give judgments, including minority or dissenting 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 a matter that the Government may return to in the future.

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 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 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 when I deal with section 7.

Paragraph i of Article 36 provided 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. 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.

The status quoof ever lengthening queues of cases lining up to be heard by the Supreme Court is not tenable. Something has to be done and while there will be arguments as to the best approach, the Government has taken the view that the working group chaired by now Chief Justice Denham, which examined the issue for more than 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 the only one that delivers a constitutionally based court of appeal. It is the solution that ensures the Supreme Court will only hear cases that merit its attention and there is a coherence to our courts architecture that does not exist at present. I am pleased to commend the Bill to the House and I hope it will have the support of Senators.