I welcome the Minister for Justice and Equality, Deputy Alan Shatter, back to the House. We are on Second Stage of the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013. The motion pursuant to section 23 of the Referendum Act 1994, prescribing a statement for the information of voters to be included in the polling card, will be debated in conjunction with Second Stage of the Bill and moved when the debate on the Bill is concluded.
Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013: Second Stage
I am pleased to present the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013 to the House. The 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 Department. The report includes a comprehensive analysis of the then position 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 the courts system.
I have mentioned that the report reviews the then position in the Supreme Court. When it was written, the waiting time for cases before that court 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 his or her case decided before 2017. Delay is truly the enemy of justice or, as the old maxim goes, "Justice delayed is justice denied". The former chief justice of the United States of America, William E. Burger, put it well when he spoke about inefficiency and delay draining "even a just judgment of its value". 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 in relation to delay.
It is not just our reputation from the point of view of human rights and the rule of law that is in the dock. Today's international business world works best where the law is clear, the Judiciary is independent and 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. All things being equal, international investors will favour a country with an efficient and effective legal system over one without such a system. To put it simply, I also believe citizens of the State who feel the need to engage in litigation should know that as regards litigation which is conducted in the High Court, even if there is an appeal, that the outstanding issues in dispute can be resolved within a reasonable period of time.
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 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 sixfold increase, whereas the number of Supreme Court judges has only doubled from four to eight ordinary judges. As Members of the House may know, the Courts and Civil Law (Miscellaneous Provisions) Bill has now completed its passage in both Houses. It allows for the appointment of two additional judges to the Supreme Court on being signed by the President. Even at that, there will not be an adequate number of judges in the Supreme Court to ensure appeals are addressed within a reasonable period, if all appeals from the High Court will continue to have to be dealt with at Supreme Court level in the civil law area.
During 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 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 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 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 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.
The status quo of 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.
I welcome the Minister to the House. I do not intend to detain him for long on this legislation, which the Fianna Fáil Party fully supports. We will actively campaign for a "Yes" vote on 4 October on the question that will be put to the people on the establishment of a court of appeal, while actively campaign for a "No" vote on the other question related to the ill-considered proposal to abolish the Seanad.
The Minister addressed many of the questions I had planned to ask. It is difficult to state, in advance of a referendum being passed, when the new court of appeal will be established and the backlog of the cases to the Supreme Court will start to clear. However, the Minister addressed these issues as best he could. I note, for example, that he cited a date of autumn 2014 for the establishment of the new court. I had also intended to ask a question on the number of judges but the Minister addressed the matter. It is difficult to ask him to look into a crystal ball. If, however, the referendum is passed and the court of appeal is up and running by autumn of 2014, in light of his legal experience, when would the Minister expect the number of cases going before the Supreme Court to reduce and the backlog to be cleared?
The Minister correctly noted the importance of having major multinational corporations locate their European and global headquarters in Dublin. For this reason, it is important to ensure there are no undue delays. When does the Minister expect improvements to take place?
The process of appointing judges has been the subject of criticism, some of it justified. We all want this process to be transparent. Successive Governments, including the current and previous Administrations, have been criticised for making certain appointments. The Minister will be aware of the specific cases to which I refer. Is he considering improving the appointment process to make it more transparent? Should the referendum be passed, we will have an opportunity to change the appointment process in respect of the nine or ten judges to the new court. This would ensure transparency in the appointment of judges.
The number of High Court judges increased from seven to 36, whereas the number of judges in the Supreme Court only increased from four to eight over the same period. I am pleased to note the number of Supreme Court judges is set to increase to ten.
The Minister indicated that progress has been made on the establishment of a commercial court to fast-track disputes and that appeals from this court were still subject to the same delays as the Supreme Court. How does he envisage this will work on the commercial side?
As I noted, the Minister's contribution was comprehensive and addressed most of the questions I had intended to ask. I fully support the Bill and my party will advocate a "Yes" vote in the forthcoming referendum.
Senator Martin Conway has eight minutes' speaking time.
Brevity is the order of the day. That Senator Darragh O'Brien and his party colleagues fully support the legislation indicates that it has been in the pipeline for some time. The working group chaired by the current Chief Justice made significant recommendations. I pay tribute to the previous Government for establishing the working group and setting this process in train.
Ireland is out of sync with our international counterparts in that we do not have a court of appeal. At present, all material being appealed from the High Court goes straight to the Supreme Court whose function should be to deal with issues of major public interest, matters of a constitutional nature or issue with serious legal implications. It should not have to deal with such a large caseload as is before it at present. It makes eminent sense, therefore, to have a court of appeal.
The Minister, in his comprehensive contribution, outlined how he believes the new court will work in practice. I note there is a delay of approximately four years in cases going before the Supreme Court. If the referendum is passed, it will enable the new court of appeal to quickly acquire some of the current caseload of the Supreme Court and address the logjam. Justice delayed is justice denied. The Minister is proposing comprehensive reform of the courts system. This should have been done long ago and it is welcome that the matter is finally being addressed. I have every confidence that citizens will view the Minister's proposals as a correct step forward and endorse them.
I also welcome the fact that the Minister expects to have the court of appeal up and running in September 2014. While it is 12 months away, it is still ambitious. It is a commitment that was made in the programme for Government. It is very welcome to have a referendum, hopefully successfully over the line, and have the structures in place within three years of the Government taking office.
Senator Darragh O'Brien asked how long it would take to see the results. I would like to hear the Minister's view on that. I expect, however, that once the structure is in place one will quickly see the time delay issue being addressed.
I wish the Minister well. For my part, as Fine Gael's spokesperson on justice in the Seanad, I will be doing everything I can to encourage the Irish people to support this referendum. I look forward to hearing other contributions.
I welcome the Minister and commend him for bringing this Bill forward. It demonstrates great leadership and is another example of the Minister as a reformer. This is a tremendous opportunity for the people to choose "Yes" for access to justice. Like Senator O'Brien, I will certainly be campaigning for a "Yes" vote. As the Minister indicated, access to justice costs money but that has not stopped him from bringing this legislation forward. I am thrilled to see this Bill coming forward in the context of his Ministry.
I am speaking from the perspective as somebody who, as the Minister noted in his speech, has been and continues to be a user of the service. It is particularly in light of that experience that I am so thrilled that this measure is coming before the people. I want to say a little bit about that experience because it relates to the issue of delay. So much about this Bill concerns the delays involved and creating more efficiency for users, as well as presenting an opportunity to administer justice in more innovative ways than the judges and courts have been able to do.
The case that I originally took with my partner was one that we believed was of a constitutional nature - a matter of public importance. We believed that democracy is not an abstract concept, so the decision to go to court had to do with our belief in the right of citizens to engage with this structure of Irish democracy in order to seek justice for ourselves.
Article 34.1 of the Constitution states: "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution ... ". That is what the Constitution proclaims, so we wanted to ensure that our fundamental rights were protected in the same way as those of other citizens. This judicial structure is there precisely for that purpose, to provide for citizens to practice democracy in this way. That concerns a belief in a way of practising democracy and the importance of having access to justice in that regard.
In terms of my own personal experience, it was in 2002 that we decided to seek some form of legal recognition of our life partnership, which was a couple of years before we even began the legal process explicitly. I am making this point because those delays between the High Court and the Supreme Court meant a certain amount in the past, but the whole legal journey is considerably longer than that. That is why it is so important to make this system more efficient.
In 2002, we made a decision and in 2003 we got married in Canada. In mid-2004, after being denied an application to the Revenue Commissioners to note our marital status, we applied for a date to seek leave for a judicial review. In November 2004, we got that date whereby we simply sought permission to take a judicial review. In October 2006, we got a date for a court hearing for that judicial review, which took a couple of weeks; that was two years after getting leave. In December 2006, we got a High Court judgment and filed for an appeal to the Supreme Court in January 2007. We got first sight of a couple of Supreme Court judges in October 2011. Therefore, our delay was five years, even though that was in the earlier period where it is often noted that the delay was two and a half years. Now it is said to be four years, but our delay was five years.
I am noting that, from the perspective of having had that personal experience, it was in the past - and probably continues to be - quite a bit more lengthy than the average time. One requires an exceptional amount of both physical and mental health in order to take this legal journey. Even if one is supported by lawyers, it still requires a considerable amount of resources in all sorts of dimensions.
We have initiated a new case because we could not get permission before the Supreme Court to amend the proceedings in order to deal explicitly with the issue we wanted to deal with. We are on the journey again and are hoping that, in light of the Minister's leadership, the delay will not be as lengthy in future.
As regards delays, the Minister has noted that the status quo is untenable. The explanatory memorandum refers to the importance of our international obligations, including the European Convention on Human Rights. Article 6 of that convention provides that legal proceedings be dealt with in a timely manner. In this instance, it is positive that the Minister and the Government are really taking serious note of those international obligations concerning the European Convention on Human Rights.
Like the Minister, I would also like to commend highly the leadership of our current Chief Justice who took that leadership stance prior to her appointment by insisting that we ultimately get to the point of establishing a court of appeal. I am hoping that the people will agree with that.
I wish to make a couple of more comments about access to justice which, as the Minister noted, is central to establishing this court of appeal. I commend the Minister for saying that he will not starve the court of appeal of resources, while being aware that access to justice costs money.
Taking a holistic approach to access to justice, another long-standing issue is the provision of civil legal aid. Our civil legal aid system is in dire need of reform. Currently, whole categories of actions are excluded from accessing civil legal aid. People who are at risk of eviction are excluded from applying for civil legal aid, as are those seeking representation before the Employment Appeals Tribunal and the Equality Tribunal.
I commend the Minister for retaining the legal aid budget at a consistent level for the last couple of years. However, the cuts to the budget - implemented before the current Government came to power - ensured that it remains under-resourced. We will have access to justice in terms of establishing a court of civil appeal, but we need to ensure that people will have the resources in order to begin the process of taking cases through the courts.
There has been much coverage of the troika's concerns about legal charges in this country and the focus on competition within the legal profession. This Bill, providing for a referendum, will also help us in that regard.
In Schedule 5, Part 2 there is an identification of criteria whereby the decision is made for a case either to leapfrog to the Supreme Court or be heard by the Supreme Court once a judgment has been made by the court of appeal. The decision involves a matter of general public importance and-or being in the interests of justice.
Will there be a delineation between how the decision is made and the application of the criteria to determine which cases can be heard by the Supreme Court, either through the leap-frogging process or subsequent to a decision of the court of appeal?
I welcome the Minister to the House and commend him on introducing this Bill for debate and enactment. He is a reforming Minister and the steps that he has taken since assuming office have been welcome, not only for professionals operating within the legal system, but for consumers of legal services.
Without doubt, the Bill is key legislation and fundamental to the modernisation and reform of the courts and legal services. It provides for the establishment of a new court of appeal. Currently, Ireland is out of line with other common law jurisdictions, in that all appeals from the High Court are heard in the Supreme Court. Other countries, including the United Kingdom, Australia, New Zealand and Canada, have courts of appeal that hear appeals from their High Court equivalents. Only the more important cases, including those involving the development of law, are heard by the Supreme Court. Consequently, the highest courts in countries with much larger populations, such as the US and the UK, deal with proportionally fewer cases than the Irish Supreme Court does. A total of 605 cases were appealed to the Supreme Court last year, representing a 21% increase on the previous year. It issued 121 judgments compared with the 64 judgments issued by the US Supreme Court and the 85 judgments issued by the UK Supreme Court. When one considers their respective population sizes, this is clearly unsustainable.
Should this amendment to the Constitution be passed, a new court of appeal will be established. It will have two prongs - a court of civil appeal and a court of criminal appeal. Much time and deliberation have gone into the Bill's proposals, which are based on the Report of the Working Group on a Court of Appeal, published in 2009. That report concluded that, among other measures, the court's establishment would be necessary and would have a positive effect in terms of the efficiency and effectiveness of the courts system.
The court will be tasked with hearing appeals from the High Court. From my time working as a lawyer in the Four Courts, the new court will be a welcome departure, in that it will assist in reducing the time within which an appeal can be heard and will limit the remit of the Supreme Court, which will only hear cases on appeal from the court of appeal and, in exceptional circumstances, from the High Court. Given the robust economic situation of the Celtic tiger and the fallout from same in the shape of increased litigation, our court infrastructure has failed to keep up to speed. Our population has also grown, given the influx of people and businesses from other jurisdictions. All of these factors place further demands on our court system.
The ultimate appellate court, the Supreme Court, is dealing with a four-year backlog of cases. Exacerbating this situation is the fact that, in the past 40 years, there has been a six-fold increase in the number of High Court judges whereas the size of the Supreme Court has only doubled. Down the years, a plethora of new cases have necessitated the appointment of extra High Court judges in order to allow the system to operate effectively. However, the by-product of same is that more cases have been appealed to the Supreme Court, placing a large burden on the workload of the Judiciary in that court. These delays pose significant issues for consumers of the legal process.
From the infrastructure outlined in the Bill, it is clear that the appeals clogging up the list system in the Supreme Court will be dealt with by the proposed court of appeal and will not need the engagement of the Supreme Court. This is to be welcomed by legal services, as it is in the interests of justice that a litigant be allowed to litigate a claim within a reasonable time. Under the current regime, this is not always the case, given the aforementioned backlog. The establishment of the new court will change the situation dramatically.
It is important to business nationally and internationally that we have the best court system possible. In particular, a permanent court of criminal appeal is an essential cog in a functional criminal law system. This court will have the benefit of ensuring that those who are found guilty will be able to avail of the appeals process more quickly, as will the Director of Public Prosecutions, DPP, when appealing the leniency of a sentence or otherwise.
From the point at which the referendum is passed, the Supreme Court will be able to focus on cases of general public importance or on cases where there are specific reasons in the interests of justice for an appeal to be taken to that court. In doing this, we will ensure that the current delays will not be repeated. If the referendum is passed, it is important that the necessary courts establishment Bill be moved before the Houses at the earliest opportunity so that this new court can be established immediately.
I will express a reservation about the upcoming referendum. It is important to ensure that the wording is explained in lay man's terms so that the referendum is not seen as being alien to voters. People should not feel isolated by the language used. An all-embracing formula of words should be used, as the establishment of this legal infrastructure is essential to the proper functioning of our court system.
Having worked within Ireland's legal system for a number of years, I will campaign for a "Yes" vote in the referendum, as it is in everyone's interests.
I welcome the Minister and this legislation. I am in awe of the fact that there are so many lawyers in the House. I am not a lawyer, but I have had the honour of defending cases - 37 on one occasion - against me in the High Court. I won and the State appealed that decision against me to the Supreme Court. It was a long time ago and I doubt that anyone who is around would remember that situation in 1971, but I won the case in the Supreme Court on the basis of discrimination on grounds of religion. The Minister would be interested to know that a statutory instrument was used to ban the sale of meat, yet excluded the selling of meat killed using the kosher method. I remembered from my college days that discrimination on grounds of religion was unconstitutional. I do not remember the delay lasting for longer than two years, but that the current delays are even longer has reminded me of the importance of this situation, particularly for small to medium-sized enterprises, SMEs. They should get speedy resolutions.
I welcome the Bill, the words used by the Minister and the court of appeal, but I will touch on a matter that has not received quite the same attention, namely, the Seanad's role in the formation of legislation, resulting in a lesser burden on the courts. The Bill refers to changes in the Bill "if the Seanad were to be abolished". The Bill contains many references to the Seanad and demonstrates how the Constitution is being butchered through the Government's determination to get rid of the Seanad. The public should be aware that the Constitution would be significantly changed and besmirched were Seanad abolition to come to pass. I do not believe that it will be abolished, and I was delighted to hear Senators state today that they would vote "Yes" on this referendum but "No" on Seanad abolition. The argument has been made that we would be better off with a new Constitution, given the fact that there could be 75 changes to it were the Seanad to be abolished.
It is somewhat illogical that the Government is going ahead with more oversight through this court while doing away with another crucial element of oversight in our society, namely, this House. Our court system protects the rights of citizens. The Seanad also plays a part in that vital process. For example, it has made more than 500 improvements to legislation through amendments in recent years. This fact poses a concern. Other Members should consider that, had we not made these improvements, it is more likely that people's rights would have been infringed upon. Consequently, it is more likely that they would have sought recourse in the courts.
The Seanad's role in the formation of legislation results in better legislation and reduces the likelihood of a burden on the courts at a later date. In a nutshell, the Seanad makes legislation more watertight. The Construction Contracts Bill 2010, which we passed yesterday, sets down in primary legislation surety of payment to construction subcontractors with the express intention of reducing the burden on the courts.
Surely, in discussing the aim to reduce the burden on our court system, through a new court of appeal, we should acknowledge the crucial role of the Seanad in the area of oversight of legislation. We should also give consideration to the importance of speed.
I welcome the moves being made by the Minister to help clear the backlog in our courts and to bring them up to date and ensure they are fit for purpose within the next year. Currently, the Supreme Court is unable to filter out all but cases of exceptional constitutional and public importance, resulting in a waiting list of up to four years. Supreme courts in other countries hear a limited amount of cases each year. We must move with the times. The writers of the 1937 Constitution could not have foreseen the explosion of litigation we now have.
I often use the analogy of the customer and do so again. There needs to be a better service for customers to allow their cases be held more quickly. It was interesting to hear Mrs. Justice Susan Denham point to Ireland's international standing as regards the rule of law, which encompasses judicial independence and an effective court system. She said a strong rule of law "propels prosperity". This is an important consideration for business people and investors when deciding to do business in a country. In particular, delays on appeal from the commercial court in the High Court may impact on the wider economy. Mrs. Justice Denham referred to the fact that the former chairman of the US Federal Reserve often stated that the rule of law is the single most important contributor to economic growth. This is not something I thought of previously, but it is a reminder of why we need to get behind this legislation. I support the Minister on this and wish him every success with it in the referendum.
I welcome the Minister to the House. I welcome this proposal to amend the Constitution and to set up a court of appeal. In regard to the court system, as far back as 1994 I recall we had a problem in Cork where there were over 6,000 cases on the personal injury waiting list for a hearing in the High Court. I remember being on a "Morning Ireland" show with the Minister at the time, Deputy Willie O'Dea, seeking the appointment of extra judges. At that time we had 17 High Court judges. Now we have 36. In fairness, appointments have been made over past few years and the backlog in the High Court is not as severe as the backlog we have in the Supreme Court.
I have been in and out of the Supreme Court on a number of occasions over the past few years and one of the problems I see in regard to it is that appeals to the Supreme Court are being used in order to delay judgments. Some people withdraw their case at the last minute, having used the process knowing full well there would be a delay. I know they must file the documentation, but they use the process because of the delay in it. They know there is a waiting list of four years and that gives them some breathing time to try to deal with the issue. These people are using the appeal process wrongly. Setting up the process of an appeal court will eliminate this abuse of the current court system.
One issue with which I have difficulty - the Supreme Court also finds difficulty with this - concerns the number of cases before the Supreme Court where there are lay litigants. I do not suggest that people are not entitled to bring their appeals to the Supreme Court, but the Supreme Court finds it must give additional assistance to people who are lay litigants. This adds to the workload of the Supreme Court. I hope that the speeding up of the appeals process from the High Court will reduce the number of appeals filed. The four-year delay that exists across the board, particularly in the area of family law, has major consequences for the people involved. The Minister has led reform in the area of family law over many years and has been very much aware of the need to ensure appeals are dealt with in an expeditious manner.
I welcome the proposed changes in the court system. The limits in the Circuit Court are being changed and this means the volume of work going to the High Court will reduce. This was dealt with in previous legislation over the past few months. I welcome this legislation and will support the referendum. I agree with colleagues that it is important we provide the correct information to the people that this is not about reducing the powers or the role of the courts, but about making the system more efficient and ensuring everyone who feels entitled to take a case has access to the courts in a timely manner.
I apologise, but I would like to raise the issue of the taxation of costs. I know the Minister cannot deal with this issue today, but it is an area with which we need to deal. I received a letter in the past few days from someone who has been waiting for a decision on the taxation of costs for over three years. In this legislation we are dealing with the development of a new system to get rid of backlogs, so let us not create backlogs in other areas. Taxation of costs is an issue that must be dealt with and perhaps I can talk to the Minister after this debate about it.
I welcome the Minister to the House. Unlike the arrangements in other common law jurisdictions, the Irish Supreme Court is the court of final appeal in all appeals from the lower courts. According to recent figures published by the Courts Service and reported in The Irish Times, the Supreme Court received 605 appeals last year, a 21% increase on 2011. It issued 114 judgments, up 56% from 2011. This is quite extensive compared with the US Supreme Court, which issued 64 judgments last year, and the UK Supreme Court which issued 85 judgments last year. We are all aware there is currently a four-year backlog of cases at the Supreme Court.
The establishment of a court of appeal would represent a major reform and streamlining of the court system, and will bring Ireland more in line with Article 6 of the European Convention of Human Rights. While retaining the right of appeal from the court of appeal to the Supreme Court, in line with well-defined constitutional standards, it will help reduce the backlog of cases by removing from the Supreme Court's remit cases that are not appeals on constitutional issues or cases of major importance. This will make the Supreme Court more of a constitutional court in the true sense.
I welcome the abolition of the one-judgment rule in cases involving the constitutionality of laws. This will allow the Supreme Court to issue more than one judgment and will be beneficial to the development of jurisprudence and public interest law. I agree with the Minister, Deputy Shatter, that an efficient and effective court system will help make Ireland more attractive to investors and multinational companies.
My one concern pertains to section 7, which deals with the interface between this Bill and the Thirty-second Amendment of the Constitution (Abolition of Seanad Eireann) Bill 2013. This is not so much a concern about the Bill before us, which I fully support and welcome, but more about the disquiet it raises in me about how uncertain and complex are the ramifications of the possible abolition of the Seanad. This is just one example of many instances of "if the Seanad is retained, then this, and if the Seanad is abolished, then that". For example, section 7 references the vote on the thirty-second amendment. If the people vote "Yes" to abolish the Seanad - a big if - the date of that decision is not the same as abolition day, which is also mentioned by this Bill. Therefore, is the implementation day of the court of appeal expected for the term of the next Government rather than within the term of the current Government or will we have to have many Bills with all of these choices? There is a question with regard to the day of the vote and the date of abolition, if agreed, because these are not the same.
As I made very clear during yesterday's debate, the question of Seanad abolition is one for the people and the people alone to answer. However, I remain concerned about the lack of clarity and certainty about what our Constitution will look like without the Seanad and how the gaps that will be left will be filled.
Cé nach n-aontaím i gcónaí leis an Aire i dtaobh cúrsaí polaitíochta, cathfidh mé a admháil go bhfuil sé mar cheann de na hAirí is mó oibre. We do not necessarily always agree on policy issues, but I commend the Minister for his work rate, as he has been one of the busiest Ministers and I hope he has a good break over the summer.
The Thirty-third Amendment of the Constitution (Court of Appeal) Bill is before us and we in Sinn Féin are also supporting it. As we know, it provides for the establishment of a new court of appeal, with a referendum required to make the necessary constitutional provision for its establishment. If the referendum is carried, the new court will hear appeals from the High Court, while the Supreme Court will hear cases on appeal from the court of appeal and, in exceptional circumstances, the High Court. This reform will bring about a major change in the courts system. I concur with much of what has been said by colleagues about the backlogs in the courts system. This provision will ease the four year backlog of cases in the Supreme Court which in future will only take appeals on constitutional issues or cases of major importance. We support the legislation and the proposition that the question be put to the people.
I take the opportunity to speak briefly on the issue of judicial appointments. As the Minister knows, Sinn Féin launched the Reform of Judicial Appointments Procedures Bill 2013 early this year. It is part of our campaign to end the political cronyism embedded in Irish society. When launching the Bill, we did so in the hope that it would put an end to the system of political appointees being made judges. The practice of the Government appointing senior judges must end if the public is to have any faith in a Judiciary free from political or other bias. This Fine Gael and Labour Party Government promised to be a reforming one and put an end to the "jobs for the boys" culture, but looking at the judicial appointments made so far, it is clear that many political cronies have been given jobs.
It is important to welcome the creation of a new court where proceedings take place within a reasonable time as an inefficient court system is costly. As runaway legal costs hamper even small businesses, I welcome the initiative to end this. I offer my support to the Bill and ask the Minister to take on board some of the concerns I have highlighted. I concur with the sentiment expressed by the Minister that justice delayed is justice denied and cannot let the opportunity pass without referring to an Adjournment matter on direct provision that I tabled for discussion last week and was taken on the Minister's behalf. In that instance justice has been delayed and denied. The figures we received last week indicated that 1,849 people in the direct provision system had been waiting for over five years for a resolution of their cases. I agree that part of the delay is caused by the fact that people in that position take court cases to clarify the position or challenge rulings. That system is inappropriate and requires reform, as we are denying people the justice they deserve.
As I indicated on the Order of Business, I am dismayed by the Minister's statement yesterday on Bethany Home. We are disappointed with the treatment of the Magdalen survivors, as well as those who suffered as a result of symphysiotomy. In these cases we have also seen justice being delayed and denied and I hope that when the Minister returns reinvigorated after the summer break, he will try to deal with these issues as quickly as possible. I will raise them, in particular the issue of direct provision, as many times as possible. It has been stated not just by me but also by the Ombudsman and Mrs. Justice Catherine McGuinness that we have a scandal on our hands that is in the same league as that involving the Magdalen survivors, Bethany Home and those affected by symphysiotomy and a future Taoiseach will have to make a public apology if we do not act very quickly to effect change.
I note that the Minister, in making statements when he was in opposition, hoped to implement a new system in order that people would stay no longer than six months in direct provision accommodation. That hope has not been delivered on. I note that the immigration, residency and protection Bill has not been brought forward, but I hope it will be introduced quickly as the Minister has indicated that many of the reforms he is willing to implement in direct provision will form part of it. The people in that system deserve better and should not be kept in it as long as they are. There must be reform.
Sinn Féin supports the Minister on this Bill and thanks him for bringing it forward.
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 cour 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.
I have a somewhat open mind on it because of the strong argument in favour of allowing judges to give individual judgments in these cases. On the other hand, particularly with an Article 26 reference, there is a strong argument, as Eamon de Valera said, in favour of greater legal certainty.
I teach criminal law and have examined a plethora of judgments such as the Murray v. Ireland case which deals with mens rea and the definition of recklessness. Therefore, I can vouch that generations of law students have struggled with what actually was the majority judgment of the court in that case. I hope we will not see similar difficulties arising with constitutional judgments in the future, on foot of the change.
I call Senator Barrett and he has five minutes.
I thank the Acting Chairman. I do not think that I shall use up my allotted time.
I welcome the Minister and his proposals. He gave numbers today which mean that the number of Supreme Court judges will increase by two up to ten and the number of High Court judges will increase from ten to 46. As his script said, there were four Supreme Court judges and five High Court judges in 1961. I am concerned, as an economist would be, about the growing appetite for law and litigation. We seem to be simply transferring resources from one person to another rather than directly creating anything.
I am concerned about the cost of the IFSC and so on which the Minister also mentioned in his script. As he knows, the National Competitiveness Council has received complaints from small businesses, as other Senators have said, and from large enterprises about the cost of law in Ireland. I have dropped in on cases in the High Court and there were multiple appearances, particularly where the State is involved. One can have in attendance a Minister, a quango, notice parties and so on. There are literally armies of lawyers also present. The citizenship is substantially outnumbered when the State is involved in a case.
I am concerned about statutory instruments. They can become law without being properly assessed here. I have had some connection with Mr. Justice Roderick Murphy who, as the Minister will know, deregulated the taxi business. That industry has been substantially re-regulated by statutory instruments that have never been discussed, as far as I can see, in either House which will lead to all sorts of legal complications down the way. We feel the same way about European directives. I said that as a lead into my next comment. I find the 33rd amendment of the Constitution a much more attractive proposition than the 32nd amendment.
There has been an explosion in the amount of litigation. The appetite of Irish people for litigation and the urge to spend so much resources on it must be of concern when we try to improve the overall competitiveness.
I have noted the new Supreme Court arrangements. When I visited the Supreme Court in Washington it was pointed out by an usher, rather like the great ushers that we have here, that there is a squash court in the attic. In fact, the US Supreme Court is not the highest court in the land because every day people play squash there at lunchtime. My joke must be excusable because this is the last day of term. I thank the Minister and wish his Bill every success.
The Senator's joke is inexcusable on any grounds but I thank him none the less.
I welcome the Minister and the legislation. I really welcome his reforming zeal in this regard and his intention to deal with delayed cases in our courts. Students of law well know, we must learn the maxim: "Equity aids the vigilant, not those who slumber on their rights" which is more simply rendered as delay defeats equity. In certain cases a people's delay in bringing their own case can deprive them of the remedy they seek. As the Minister has rightly said, it is all the more unfortunate and wrong if a delay caused by the administration of justice deprives people of the certainty to which they are entitled, I mean in regard to where they stand regarding the law.
I wish to note what Senator Bacik said about the one judgment rule and she raised interesting issues. She made an interesting comment about Eamon de Valera's preference for certainty and what one could sum up as a wish to have the law clear, pronounced and settled. I prefer the possibility of having different judgments being on the record even if it leads to some doubt or competition. Senator Bacik's comment is quite right in terms of the development of jurisprudence and transparency.
Another issue is the avoidance of group think. Judges who deliver decisions that may differ from each other know that their decisions will be made known and their reasoning will be subject to scrutiny. That may make them more conscious of their duty to the society that they serve. I am glad that Mr. Justice Hederman's decision in the X case is a matter of public record.
The Minister referred to the great work done by the current Chief Justice, Mrs. Justice Denham, in leading the reform process in the area, particularly the report of the working group in August 2009. However, I shall go back further. In the Judicial Studies Institute Journal judges often ventilate their views on issues where the realm of public policy and law intersect. In the journal the then Chief Justice, Mr. Justice Ronan Keane, commented on the structure of the hierarch of the courts. In 2001 he wrote:
Ireland is unusual in having a one tier appeal system in civil cases. It would be far more satisfactory if a permanent Court of Appeal existed which sat in both civil and criminal divisions and which heard appeals from the High Court in all civil cases and cases of serious crime. That court in turn could grant leave to appeal to the Supreme Court where it was satisfied that a point of law of public importance was involved.
If anything, the situation has become more urgent and I agree with the assessment of the current Chief Justice that an appeal tier is urgently needed. The delays before the court are a matter of record and the Minister has set that out very clearly and starkly. He also rightly mentioned the impact on business and commerce.
If a new court of appeal is to be approved by the people then the following key question must be answered. On what basis will leave to appeal be granted, or not granted, by the Supreme Court? The question may be a cause for some concern as the public debate unfolds. The current position is that a full right of appeal from the High Court is de facto allowed but it is not the case elsewhere. As the House may be aware, the Supreme Court of the United States of America reviews the appeal dockets before its judges decide in conference which matters will be listed for hearing. They have judicial discretion as to which matters are afforded a full appeal to the highest court in that land.
In this country we guard the right of access to a court to resolve our disputes and protect our rights and good name. Public interest in protecting full access to the courts was seen by the rejection of the referendum on committees of inquiry, a referendum that was dear to the hearts of some Ministers. In order to avoid any fear or apprehension that judicial discretion, when listing a matter for appeal in the Supreme Court, would not be clear and based on rational criteria. It is worth considering making provision for reasons for rejecting an appeal from any court of appeal to the Supreme Court to be given in written form and open to scrutiny.
This legislation provides for two situations, where it is a matter of urgent general public importance or necessary in the interest of justice as the Supreme Court may decide to hear an appeal from the court of appeal. The legislation also provides for leapfrogging where the Supreme Court is of the view that a case, in any event, would end up before it. Therefore, the appeal may go straight from the High Court.
I am sceptical about the need for a constitutional referendum. The views of Mr. Justice Ronan Keane are persuasive. He continued:
There would appear to be no necessity to amend the Constitution in order to provide for the establishment of a new appeals structure of this nature. The Supreme Court has already held that there was nothing in the Constitution to preclude the establishment by the Oireachtas of the Court of Criminal Appeal in its present form. It was held that it was open to the Oireachtas to establish both courts of first instance and courts of appeal other than those mandated by the Constitution, i.e., the High Court and Supreme Court.
I commend the Minister's reforming zeal but I am not sure about all of the proposed amendments of the Constitution. Are they all necessary or desirable? The rush to abolish this House is part of that drive. In general, we should treat moves to change the Constitution with great care and debate because it is the basic framework of laws in this country. The Constitution guarantees our liberties and rights and should not be changed lightly.
I wonder whether there is a need to do what needs to be done in terms of establishing the court of appeal in this way. The Minister might be kind enough to address that.
It has been said in relation to the composition of any court of appeal that the experience in criminal cases would be that a permanent court of appeal would not suffer from the problems that now arise from the fact that the current Court of Criminal Appeal consists of three judges chosen for a particular list of cases. Mr. Justice Keane has suggested, and I quote, that the cycling of judges led to serious inconsistencies in the jurisprudence of that court-----
The Senator is way over time.
-----and in particular in the all-important area of sentencing. I see the Minister is proposing to address that. The appointment of permanent judges would appear to be central and it is essential that we would have a fixed complement of permanent judges chosen for the task.
I thank all those who spoke and for the support expressed by the overwhelming majority of Senators for this Bill. I was very pleased to hear what Senator O'Brien had to say, which mirrored what his colleague in the Dáil said. I hope we will actively engage both within the political parties and those who are Independent in seeking support for this measure. I am not sanguine about the outcome of referendums. I am conscious that there is another referendum that has created a great deal of excitement in this House and a great deal of media interest. There is a possibility that the focus on that issue will result in the general public being unaware of what this proposal is about and it could create a difficulty in securing the "Yes" vote required.
It is notable that the issues relating to the Seanad and the Protection of Life During Pregnancy Bill got so much media attention and focus, both of which were entirely understandable. The court of appeal referendum Bill passed through the other House with practically no media notice. I believe it is important that the general public are informed as to the reason this is a reform that is in their interests and the reason they should vote "Yes".
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-----
-----but I think it is preferable. I have no ambition to be a member of the Supreme Court either.
It is below the Minister's pay grade.
It is a good idea that we have that level of transparency.
I was asked why we need a referendum. We need a referendum so that the people can make a decision. Our Constitution presently provides that appeals go from the High Court to the Supreme Court. If we are going to put a new legal architecture in place, it is important for the people to be given an opportunity to express their views on that. The people are sovereign. They are being given an opportunity to express their views on an issue of importance because we are creating an architecture in which the vast majority of appeals from the High Court will be dealt with in the court of appeal and will never enter the Supreme Court. The Supreme Court will deal with cases that are seen to be of general public importance, or where it is necessary in the interests of justice for that court to deal with such cases. The principles that will be applicable are similar to those that are applied by supreme courts in other states across the world. The idea is to ensure the Supreme Court is called into duty in such circumstances only. It is important to make sure the people approve of that change. The current position is that once a case a determined in the High Court, it can automatically be appealed to the Supreme Court.
It is worth mentioning that it is important for appeals in cases in the criminal justice area - an individual may be appealing against a conviction or against the length of the sentence imposed on him or her, or the DPP may be appealing against the leniency of the sentence - to be heard without undue delay as well. There is a very substantial public interest in that regard. We have a Court of Criminal Appeal that is established by statute, but it does not sit five days a week. It is composed of members of the High Court and the Supreme Court. I think the constitutional foundation that will result in the establishment of a general court of appeal that will be able to sit permanently if necessary in two divisions - one dealing with criminal cases and the other dealing with all the other areas of civil law - will ensure we protect the civil rights of those who are charged with offences and convicted and the rights of the public. If the DPP believes that a sentence is too lenient, this measure will ensure the issue of leniency will addressed with speed. I believe this change has the capacity to bring about a system that reflects the type of court structure we should have in the 21st century. I hope all of the Senators who have expressed support for this measure will support it enthusiastically during the referendum campaign and use their local media to urge people to vote "Yes". I am looking forward to knocking on a few doors, hopefully in weather that is as good as the weather we have had recently, to urge a "Yes" vote on this issue.
Can I ask the Minister to comment on what I had to say about the transparency of the Supreme Court?
When it is proposed to take Committee Stage?