Wednesday, 24 July 2013
An Bille um an Tríú Leasú is Tríocha ar an mBunreacht (Cúirt Achomhairc) 2013: An Dara Céim - Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013: Second Stage
I welcome the Minister for Justice and Equality, Deputy Alan Shatter, as well as the Bill which has received a general welcome across the House. I agree with the comments made by other colleagues that it is long overdue to enable us to deal with the extensive delays in dealing with the list of cases currently before the Supreme Court. Others have spoken, as the Minister mentioned, about the four year backlog of cases before the court, as well as the announcement by the Chief Justice that the courts simply cannot admit any more cases to its priority list, about which something must be done. The idea of having a court of appeal has been mooted for some time and it is welcome to see the issue being put to the people in the referendum.
The recent excellent series of articles in The Irish Times on the operation of the Supreme Court illustrates the wide breadth of cases heard, including appeals from the High Court and constitutional cases. The establishment of a court of appeal will render the Supreme Court more like the constitutional courts in European jurisdictions or the court de cassation in France. We will see the court of appeal constituting an important filtering mechanism, apart from anything else. I absolutely support the provisions of the Bill dealing with it and, as others pointed out, it will improve access to justice for individual citizens, which is very important. I also commend the Chief Justice for her careful stewardship and work in putting forward proposals for reform in this area. A long process has led to the proposed change envisioned in the Bill.
I will focus on another aspect of the Bill that perhaps has received less attention, the provisions in section 5 providing for the deletion of Article 34.4.5° which contains the so-called one judgment rule. As the Minister noted, the rule provides that the Supreme Court can only issue one judgment when it hears challenges to the constitutionality of legislation. The provision indicates that the decision shall be pronounced by such one of the judges of the court as that court shall direct and no other opinion, assenting or dissenting, shall be pronounced. The Constitution review group in 1996 recommended a deletion of the rule to enable judges to give judgments in the normal dissenting and assenting way. If this provision is passed, there will potentially be a multiplicity of judgments on constitutional challenges.
There has been a very interesting debate about the one judgment rule and already a good deal of academic debate on law blogs about this proposal in the Bill. I hope it will give rise to further debate in the run-up to the referendum and that we will consider the history of the one judgment rule both in Article 34 and Article 26. I am glad that the Bill does not propose a change to the Article 26.2.2° rule which is framed somewhat differently in that the decision of the majority of the judges of the Supreme Court on an Article 26 reference shall be the decision of the court. It is clearly set out that it must be a majority decision, but there is a one judgment rule in place for Article 26 references and the referendum will not change that position. The Constitution review group could not reach a decision on the Article 26 one judgment rule, but it recommended change to the Article 34 one judgment rule.
The one judgment rule was inserted on foot of the 1941 amendments and following the 1940 constitutional revision committee review. Dr. Gerard Hogan's excellent book on the history of the Constitution gives us a really good insight into the debate on the one judgment rule at that point and we might revisit it in the course of this referendum debate. Éamon de Valera very clearly put his view forward that while from an educational point of view a multiplicity of judgments might be desirable, for him the desirability of a definite opinion was more decisive, which is why he favoured the one judgment rule in both Article 26 and Article 34. He argued that if we did not have a one judgment rule, it might be bandied about from month to month that a decision had only been made by a mere majority of the Supreme Court, with people saying there were five judges on one side and three on another, which was altogether undesirable. He was very much in favour of having a decisive approach and greater legal certainty.
Against this, the preponderance of academic opinion, as well as that of the Constitution review group, was that not only would abolition of the one judgment rule make it easier for judges but that it also would make it better for the public in general because we would be able to see in a more transparent fashion the reasoning used by judges in coming to a decision. Furthermore, having a number of judgments in any case contributes to the development of jurisprudence. That argument has been brought forward very strongly in the United States. I find the issue fascinating and it would be good for the debate to gain wider interest.