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

All of us know that as politicians we can make speeches and discuss the reason this is in the public interest but if the broadcast media go deaf and do not report any of it, and if the print media ignore it, communicating a message becomes extraordinarily difficult. People get so much material put through their letterboxes these days that the traditional way of informing people by leafleting and other methods is not always successful in grabbing people's attention from other matters of greater importance to them in their daily lives. I would hope, if this Bill is passed by the Seanad today, that as a public service broadcaster RTE will give adequate attention to reporting that it has been passed by both Houses and that two referendums will be held on 4 October next, first, on the issue that has given rise to an amount of controversy in this House but, second, on an issue that has given rise to practically no controversy in either House and which is universally recognised as being in the public interest. It is of crucial importance that people vote "Yes" for this reform.

It is important to touch upon some of the issues raised. Senator O'Brien asked when people will see reductions in the waiting times for appeals. There will be an introductory phase of this process. I would hope the appointment of two additional members to the Supreme Court will, during the remaining part of 2013 into 2014, contribute to some extent to reducing the time delays but the creation of the court of appeal will be crucial. When it is created, based on the provisions contained in this proposal, certain appeals may be retained by the Supreme Court. There will be other appeals that will find their way into the court of appeal. We will then be in a position where we will have a Supreme Court that can sit in two divisions dealing with appeals and a separate court of appeal that had not previously existed dealing with appeals. It will take a little time for the backlog to be dealt with but we are providing an architecture which will facilitate that, and it will be for the new members of the court of appeal, as independent members of the Judiciary, to ensure that court does its business in a manner that is efficient but in which any appeal coming before it is fully and properly addressed.

Senator Conway made the point that this reform should have been in place some years ago. I believe, not simply wearing my political hat but both as a practising lawyer and as an academic who has written about various legal issues, this reform should have been put in place 20 years ago. An interesting statistic was given. If we look at the large number of cases our Supreme Court deals with for a population of 4.5 million people compared to the number of cases heard and in which judgments are delivered by the United States Supreme Court, it is extraordinary that our court deals with almost 50% more cases per annum in respect of which judgments are delivered and heard than the US Supreme Court. If one does the population comparator it makes no sense, and it is one of the reasons we need a court of appeal that can deliver justice in the determination of cases which are of individual importance to those engaged in them but which are not of general public importance and where it is not necessary, in the interests of justice, that the Supreme Court be engaged.

A number of Senators made reference to the connectivity between this proposal and the Seanad referendum. In circumstances in which the people are being asked to make a decision on whether to abolish or retain the Seanad and where we have a Constitution which deals with a number of issues that are interconnected, this measure had to address where we would be should the Seanad referendum result in a vote to abolish or in a vote to retain. We had to ensure that there were alternative legal mechanisms in place so that there was no issue surrounding the validity of the court of appeal and no issue arising relating to members of the Judiciary in the area of impeachment in respect to which there could be any uncertainties. It was necessary to address those issues in a comprehensive way. I appreciate that that means that the Bill looks complex but it is easily explained. It is explained to people who vote on the basis that as citizens of this State they are entitled to know that should they unfortunately have to resort to our courts system to have something of importance in their lives addressed and resolved, we are making a change which would ensure that their court case is heard and dealt with within a reasonable timeframe to ensure that whatever the issue is, it can be resolved and they can get on with their lives. It is as simple and straightforward as that. It is crucial that we deliver justice in an efficient, effective and reasonable way and within reasonable timeframes. The debate need not become unduly complex. If we look at neighbouring jurisdictions in the European Union, many states would have a court which deals with appeals under the type of structure we will have should the referendum be successful.

Senator Zappone raised the issue of how the leapfrogging provision might work where there is an issue in respect of an appeal involving exceptional circumstances that warrant the appeal to be dealt with urgently, where it is a matter of general public importance and therefore is necessary in the interests of justice, and where it is a case which would pre-qualify for the Supreme Court deciding it should be deal with. What we provide in the constitutional amendment is what I describe as the fundamental legal architecture, namely, the base law on which this is relied upon. Clearly, rules of court will be provided by the court rules committees which will set out the way one goes about dealing with that in a formal context. I presume it would arise in circumstances where a case is determined in the High Court and one or all of the parties to the proceedings will make an application to the Supreme Court setting out the reason they believe the case is one in respect to which the leapfrog mechanism should apply. The Supreme Court will hear that as a preliminary issue and would then make a decision. If the Supreme Court decided the case on appeal should come to it, it would be a case to be heard by the Supreme Court.

If the Supreme Court took the view that it was not a case of exceptional urgency and of general public importance, and decided there was not a necessity in the interests of justice that the matter be dealt with by it, obviously it would decline to agree to the leapfrogging mechanism and the case would go to the court of appeal in normal course. I expect that the courts themselves may develop some rules of court in relation to that matter.

Senator Barrett referred to competitive issues and issues in the business area. One of the litmus tests when multinational companies are deciding whether to locate in Ireland relates to our rule of law provisions. They want to know what happens if they get engaged in a commercial dispute and have to go to the Irish courts. When they ask whether we have an independent Judiciary, the answer is that we do. They look at whether delays might occur if a dispute arises because delays can create major difficulty in business. Any undue delay could have a detrimental impact on the commercial capacity of a business to conduct its day-to-day affairs and thereby affect its financial stability or liquidity. It is important for us to address this issue in a commercial context. There is little point in having a High Court that deals with speed with issues of commercial dispute, only for a logjam to arise if one of the parties in dispute decides to travel the Supreme Court route. There is a concern that people occasionally lodge an appeal simply as a tactic, in the knowledge that it serves to delay by three or four years the economic impact of the judgment that will inevitably be confirmed against them. I think we have to ensure our courts system is not misused in that way. I think this proposal will resolve that.

Senator Bacik raised the interesting issue of whether we will have a one-judgment rule when legislation is constitutionally challenged. We are proposing to allow each member of the Supreme Court to deliver a judgment. I agree with the views of the review group that examined this. I have always felt that the one-judgment rule is extraordinarily artificial. There are various circumstances in which our courts may deliver what I would describe as constitutional interpretations. I have no wish to re-enter the frame on the X case other than to point out that in that case, the Supreme Court was called on to interpret a constitutional provision. Each member of the court could deliver their judgment. There was transparency regarding how each of them regarded the factual background and the legal submissions they heard. If it is logical for each member of the Supreme Court to deliver a judgment on a constitutional interpretation within that type of legal application, I believe it would be completely illogical to provide for a single judgment in the case of a challenge to the constitutionality of legislation. It makes no sense. It is important for us to acknowledge that law evolves, society's values change and people's insights and perceptions change. Some of the greatest judgments delivered by the US Supreme Court have been dissenting judgments that became a majority judgment some decades later in changed circumstances, when the issue was revisited in a new era of greater understanding and insight.

One of the rights that people enjoy as citizens is an entitlement to have a visibility of the manner in which our courts reach decisions - the thought processes that are used and the manner in which judgments are framed. I think this measure provides an important additional degree of transparency. The one-judgment rule would have created a dilemma in this case. Most courts of appeal across the world, such as the one we are proposing to establish, allow for judges to deliver a multiplicity of judgments, regardless of whether they sit as three-judge courts or a five-judge courts. It would be very odd if we allowed this new court of appeal to deliver a multiplicity of judgments while allowing the Supreme Court to deliver a single judgment in the case of a constitutional challenge. One might have all three judges of a divisional court of the High Court delivering the same judgment, and another group of judges in the court of appeal agreeing with the High Court, but one judgment from the Supreme Court where one judge appears to disagree with everyone who has previously delivered a judgment on the matter. It is important for us to have this level of transparency. It is important for members of the Judiciary to be able to deliver the judgment they individually believe to be correct, as opposed to some composite judgment they have to agree among themselves, which could result in a member of the court not fully buying in to the compromise reasoning that is being given. I do not know whether that happens in practice, having never been a member of the Supreme Court-----