Check against Delivery
Chief Justice, Attorney General, Members of the Judiciary, Ladies and Gentlemen, welcome to today’s Seminar. That so many of you have got out of your beds to be here on a Saturday morning is a source of great encouragement to the Government and to me as Minister, as we embark on a road that will lead to a significant and long overdue reform of our courts system. I would like to thank Ken Murphy and the Law Society for hosting us here this morning.
As you will know, the Programme for Government commits the Government to "…take the necessary steps to create a permanent Civil Court of Appeal", and to "introduce a constitutional amendment to allow for the establishment of a distinct and separate system of family courts to streamline family law court processes and make them more efficient and less costly". Last July, the Government agreed in principle to the holding of the necessary referenda and also agreed to consider a number of other issues. Briefly, those other issues concern the judicial declaration or oath; and the referral of Bills to the Supreme Court by the President under Article 26, both of which I will touch on later.
I want the message to go out loud and clear that this Government is absolutely committed to proceeding with the necessary amendments to the Constitution to give effect to the commitments in the Programme for Government and we are working to a timetable that envisages the issues being put to the People in the Autumn. While the Government is committed to change, we have an open mind on the detail of that change and I hope that this Seminar will assist with the development of our thinking on the issues involved.
I would like to turn first to the Court of Appeal proposal, which has been given added urgency by the recent decision of the Chief Justice to stop taking new priority cases, given that the priority list is already over 70. This development is itself instructive. Not alone do we have a significant backlog of cases waiting to be heard in the Supreme Court, but we also have a backlog of priority cases – effectively a backlog on top of a backlog. This unsatisfactory state of affairs is undoing the progress being made in other areas of the judicial system. The Commercial Court has established itself as a specialist court in the field of commercial law, and great credit is due to all those judges involved in the development and management of that list. However, the increase in the volume and complexity of litigation arising from the economic crash, with the resultant increase in the number of appeals to the Supreme Court, has just added to the logjam of appeals. The efficient processing of work in the Commercial Court, while praiseworthy in its own right, is of doubtful value to either the appellant or defendant who may then have to wait several years for the final determination of their proceedings.
I should say in passing, that any criticism of the delays in the Supreme Court are not criticisms that can be laid at the door of the Chief Justice. That the situation isn’t even worse than it is, is down to her ingenuity and her capacity to wring the greatest efficiencies possible, from a system that is clearly overburdened.
I note that the Chief Justice’s address today is intriguingly entitled "Unsustainable", which I presume is a reference to the workload and level of backlog now being experienced by the Supreme Court. And of course, it is unsustainable, but more than that, it simply cannot be allowed to continue. At its most basic, it offends against the maxim that "justice delayed is justice denied". Former US Chief Justice Burger spoke of inefficiency and delay draining "even a just judgment of its value". Everyone is entitled to expect that litigation will be progressed efficiently so that matters can be determined definitively and people can move on.
There is a cost to society in not having an efficient court system. Leaving aside the obvious costs faced by the parties directly concerned, there is a cost to our reputation as a developed modern democracy if people can’t have their cases litigated without undue delay. We all know that this is an issue for foreign multinationals when they are deciding where to invest. Countries that have properly functioning efficient and effective legal systems are at a clear advantage over those that don’t.
I might mention in passing the work of the McFarlane Group chaired by Mr Justice McDermott. I established that Group to advise me on measures that could be taken to address delay in the courts system. The impetus for the establishment of the Group was the European Court of Human Rights decision in relation to the delay in processing an appeal by Mr McFarlane. It is clear from that case and others that the right under the European Convention to a timely trial is something that is to be taken for granted and that failure on the part of the State to provide appropriate remedies, including by addressing the source of the delays, is not an option. Furthermore, it is abundantly clear that "sticking plaster solutions" have a short lifespan. Only fundamental reform that provides a streamlined system that is properly resourced can provide a long-term sustainable solution. I look forward to receiving the Group’s report in the near future.
I might also remark that there is no great mystery to the Supreme Court backlog. The number of cases being taken before the High Court has increased dramatically, as reflected in the increase from 7 to 36 in the number of High Court judges since 1961. More cases means more appeals, of increasing length and complexity, and those appeals have only one place to go as things stand – the Supreme Court which has only 8 judges. The treatment of all cases as if they were of equal weight is, if I might borrow a word, "unsustainable". We urgently need a new courts architecture that results in the appropriate cases being heard in the appropriate forum.
As you all know, the Chief Justice, in a former life, chaired the Working Group on the Court of Appeal. That Report, which was published in 2009, provides an excellent template for any discussion on the establishment of a Court of Appeal. As I said earlier, I have no desire to prejudge our deliberations on the shape of that Court, but I should say that the intention is that there will be one Court, with both Criminal and Civil jurisdiction. Outside of that, I have an open mind.
Issues that need to be considered include the number of judges that should be appointed to the Court of Appeal and how they should be appointed. For example, should it be a permanent court or should judges of the High Court and Supreme Court be seconded to it? A key issue is the path that constitutional challenges should take. The Working Group took a particular view on this issue but I would like to hear if there are other views. The issue basically is whether appeals involving the constitutionality of statutes should be appealed from the High Court to the Supreme Court, as at present, or whether in the new dispensation, they should go to the Court of Appeal and then only on to the Supreme Court in exceptional circumstances, in the public interest, and subject to the Supreme Court’s leave to appeal requirements. The Working Group favoured the latter approach, but with the possibility of leapfrogging, in exceptional circumstances, from the High Court to the Supreme Court. While we have no fixed view on this, the Government would be anxious to avoid or at least to minimise the possibility of two appeals from High Court judgments.
This issue is further complicated by the fact that in many cases, a constitutional issue is raised in proceedings, in addition to the substantive issue. Depending on the appeal regime chosen, you could have the splitting or fragmentation of cases, with the constitutional part going from the High to Supreme Court and the substantive case going to the Court of Appeal. The workability or desirability of this is open to serious question. I look forward to hearing your views.
Whatever solution is arrived at must have the effect of greatly reducing the number of cases presenting at the Supreme Court for determination. If that is not achieved, then this will have been a wholly pointless exercise. The Court of Appeal cannot be a staging post on the road to the Supreme Court. Appeals from the Court of Appeal must be the exception and the rules governing such appeals must be sufficiently strict and strictly enforced to ensure that this is the case.
I would now like to refer to one final matter of relevance to this issue and that relates to how we might approach the current substantial backlog of cases awaiting hearing of appeals in the Supreme Court. There are a variety of different steps that could be taken which include the possibility of appointing an additional member or additional members to the Supreme Court and the Supreme Court, with regularity, hearing more appeal cases on a divisional basis. On the assumption that the referendum to establish the Court of Appeal is successful, the establishment of such court would have no automatic impact on the current Supreme Court list. I have no doubt that there would be a constitutional difficulty with requiring that current appeals to the Supreme Court be transferred back into a new Court of Appeal. However, I believe there should be no difficulty in facilitating the determination of such appeal by the Court of Appeal in circumstances in which all parties to the appeal are agreed on such approach. The desirability of the provision permitting this should form part of our consideration of the proposed reform.
The reform we envisage will involve a significant rewriting of Article 34 of the Constitution. That being the case, the question arises as to what other changes should be made. One that has been discussed for many years is the current judicial oath or judicial declaration. The Review Group on the Constitution looked at this as did the Joint Oireachtas Committee subsequently. The issue concerns whether there should be a secular oath and, if so, whether this should be instead of the religious oath that is currently set out in Article 34 or as an alternative to that oath. Again, my general sense is that reform is desirable and individuals should be entitled to take a secular oath but I have an open mind as to the shape of that reform and again look forward to hearing your views.
Turning briefly to the Family Court proposal, the Government has decided in principle to amend the Constitution to provide for a separate independent Family Court structure. I have long held the view that Ireland should have a dedicated and integrated Family Court structure that is properly resourced to meet the particular needs of people at a vulnerable time in their lives. I believe that the judges in those Family Courts should be specialist permanent judges, with expertise in family law. Structurally, what I envisage is a two-tier court comprising of a lower Family Court with limited jurisdiction and a higher Court with unlimited jurisdiction. The lower Court would essentially exercise the family law jurisdiction and the jurisdiction in child care matters presently vested in the District Court and a particular issue may arise as to the construction of that Court, in particular when dealing with child care and protection matters, to provide for a more inquisitorial and less adversarial approach. The Court of unlimited jurisdiction would essentially have vested in it all current Circuit and High Court jurisdiction in family matters including adoption and child abduction. In the context of the latter Court, an issue arises with regard to the determination by it or by the existing High Court of constitutional challenges or constitutional issues relating to family matters to which not only Articles 41,42 and 42A of the Constitution apply but to which articles such as Article 40 are of relevance and to which provisions contained in the European Convention on Human Rights and fundamental freedoms are also relevant. In the context of the new Family Court structure, it is envisaged that appeals from the Court of unlimited jurisdiction would be taken to the new Court of Appeal. One of the questions that arises is how to ensure that the particular ethos of the Family Courts is maintained where cases are appealed from the higher Court to the new Court of Appeal. I would welcome views as to how the structure envisaged might be accommodated in the Constitution and any views you might have generally on the establishment of such courts. I am also conscious in this regard that, in time, there may be a requirement for other specialist courts, for example in the areas of planning and the environment, and would welcome any views you may have on how the Constitutional architecture might be adapted to allow for such developments.
Finally, I want to mention that I am hosting a Seminar to deal exclusively with the detailed operational issues surrounding the establishment of a stand-alone Family Court structure on the 6th of July next. It is hoped that the Seminar will be addressed by the President of the Family Court of Australia and will facilitate a comprehensive discussion on the workings within this State of a dedicated Family Court structure.
Last July’s Government Decision also dealt with a number of other issues. In particular, the Government decided to consider what changes, if any, should be made to the constitutional arrangements surrounding the reference of Bills by the President to the Supreme Court under Article 26. The first issue that the Government decided to consider is whether the Supreme Court should be able to refuse to consider a reference from the President on the grounds that there is no proper factual or evidential basis for the referral. The second concerns the one-judgment rule in Article 26. Is it appropriate in a modern State that decisions of the Supreme Court should be cloaked in some artificial consensus where on some occasions, a minority may dissent? Should the People know how the court split, if split it did, on issues of major national and constitutional significance and should there not be transparency for substantive areas of disagreement? I know there are arguments against change but I am convinced that, as a Nation, we need to constantly question the status quo to ensure that it measures up to the needs of an open modern transparent democracy. And that is not to say that changing Article 26 is the right thing to do, just that we should consider it, and make a call as to the appropriate stance to adopt.
The next issue that the Government decided to consider was whether change was needed in relation to the impregnability of statutes once their constitutionality has been confirmed following an Article 26 reference. Again, the question arises as to whether the status quo should be preserved or whether there should be change to make allowances for changing societal views or technological developments, or to recognise that, subsequent to the constitutionality of a statute being upheld in an Article 26 reference, a new matter could arise not considered by the Supreme Court in respect of which a constitutional challenge is merited. The question arises as to whether a more nuanced approach is desirable, or could be developed, which reconciles the need for constitutional stability in the long run with the need for the flexibility to reflect the constantly changing face of modern society. It is worth bearing in mind that Article 26 references are dealt with in a vacuum with hypothetical arguments presented on both sides. Could we consider a system that would allow the Supreme Court to revisit decisions where new information, not available or considered at the time of the original decision, becomes available subsequently? Or is it worth considering allowing statutes that have been approved under Article 26 to be challenged after a certain length of time has elapsed since the original decision, say 5 years? No doubt there are countless variations on these possibilities and equally many arguments in favour of retaining the status quo which has, arguably, served us well. I will say no more on this point, as I am sure that Tom Cooney’s address will give us plenty of food for thought.
The Government also wishes to consider whether it should be able to refer an international agreement to the Supreme Court to test its constitutionality. As it stands, the constitutionality of any agreement entered into by the State is open to constitutional challenge, unless it has been approved by the People in a Referendum. The idea here is that rather than holding Referenda or alternatively taking the risk of a successful challenge to an agreement, the Government could, ab initio, have the Agreement constitution-proofed by the Supreme Court. Again, this is something on which I would welcome views.
As you have seen, our agenda today is long and the issues are many and complex. This Seminar is a genuine consultative exercise designed to engage as many people as possible to ensure that we get the right result. I am grateful to the Chief Justice, Susan Denham, the Attorney General, Máire Whelan, Director General of the Law Society, Ken Murphy, the Chairman of the Bar Council, David Nolan and to Tom Cooney, the former distinguished law lecturer and one of my Departmental Special Advisers, for agreeing to address our Seminar. I look forward, as I’m sure you all do, to their contributions and to what I expect to be a lively exchange of views during the Open Forum.
Thanks again for attending in such numbers and I hope you enjoy the morning.