By Michael Gallagher

Most of the debate over the 4 October referendums has focused on the abolition of the Seanad, understandably enough, but there’s another referendum too: the 33rd amendment on the establishment of a Court of Appeal. Sometimes when there is more than one referendum on the same day, the ‘minor’ proposal is seen as uncontentious and passes without difficulty, but on other occasions its very lack of visibility can count against it, as when voters finally become aware of it some of them suspect that it is being deliberately kept quite as the political class is trying to smuggle something through without their noticing, so to speak. It may then take just one well-delivered blow to finish it off, as happened two years ago when the presidential election overshadowed the referendum on extending the powers of Oireachtas committees, and the intervention of the former Attorneys-General was enough to tilt the balance against it, even though after the event most voters seemed to favour the idea that it embodied and could no longer recall the arguments that had led them to vote No.

Could this happen with the referendum on the Court of Appeal? While there are aspects that are not entirely clear, it does not seem that there is anything that is likely to be seized upon by opponents and presented as dangerous to the citizen or the state. Indeed, while both the Bar Council and the Law Society are backing the proposal, no group has formed to oppose it. The rationale offered for the new court is that the Supreme Court is overloaded, with a waiting list of around four years before an appeal is heard. Perhaps, as some have argued, the Supreme Court could reduce the backlog by amending its working practices, but it would require something dramatic to eliminate such a backlog and, besides, the proposal is concerned with principle as well as workload. The Supreme Court hears a mishmash of cases, from an appeal against a conviction for fraud to a major constitutional case. More sensible, it is argued by the government, to establish a Court of Appeal to deal with most routine appeals, leaving the Supreme Court to concentrate on major cases that ‘involve a matter of general public importance’.

This goes some way towards moving the Irish judicial system away from the US model, where all sorts of cases can potentially reach the Supreme Court, and towards the standard European model, where a constitutional court, completely separate from the regular court system, hears cases where the constitutionality of legislation is at stake.

The proposals will not go this far, though. For one thing, the Supreme Court will by no means be separate from the rest of the court system. It may hear appeals from the new Court of Appeal if, again, the case concerns ‘a matter of general public importance’ or ‘the interests of justice’ require this (the decision as to whether a given case meets these rather subjective requirements is of course the Supreme Court’s alone), or direct from the High Court, bypassing the Court of Appeal, for essentially the same reasons. In the case of an appeal from a judgment of the High Court, it will be the Supreme Court itself that decides whether to accept jurisdiction or whether, as we can expect to happen in the great majority of cases, to pass the appeal to the Court of Appeal. The proposed amendments to the constitution do not spell out all of the detail but, rather, leave some matters to be settled by law, which leaves us somewhat in the dark as to the eventual, perhaps potentially slightly tangled, relationship between the High Court, the Court of Appeal and the Supreme Court.

In addition, another way in which these proposals do not amount to a separation between a Supreme Court focussed on constitutional cases and a Court of Appeal that deals with cases with no constitutional implications is that the Court of Appeal will have the power to hear appeals from the High Court as to whether an Act of the Oireachtas is constitutional. (The constitution, if amended by a Yes vote on 4 October, will state that no law can be passed to prevent this: schedule 3, part 2, section 4.2.) This seems to go somewhat against the principle of the division of labour, which would point to the gradual emergence of a Supreme Court whose members spend much of their time on cases with constitutional implications and a Court of Appeal that deals with cases without such implications. If the Court of Appeal too hears constitutional cases, as will be the situation, then the distinction between it and the Supreme Court seems to be primarily one of hierarchy rather than specialism. This will also mean that it will take longer than at present to get a definite decision on the constitutionality of a piece of legislation, as any such case may go through three courts instead of the current two.

Just as at present High Court judges may be promoted to the Supreme Court, in future High Court judges will be able to see two tiers of the judiciary above them and, presumably, will in many cases hope to be promoted to one or the other or, in the fullness of time, to both. This is again quite different from the pattern of European constitutional courts, whose members are not routinely recruited from the regular judiciary but tend to include, for example, legal academics. Moreover, members of constitutional courts are appointed for fixed and usually non-renewable terms of six to twelve years. Existing practice in this country, though, is that judges are practising barristers who may serve on the bench until they reach retirement age, and the current proposals do not contain any hint of a change here.

Removal of the ‘one judgment’ rule from Article 34.4.5 is in line with calls from various quarters over the years, most notably the Constitution Review Group (CRG) in its 1996 report. Although this has no real relation to the principle of establishing the Court of Appeal, if it is to be raised at all then it makes sense to include it as part of a reform package, as it is far too arcane to be put to the people as a stand-alone item. Some arguments for and against it were noted in a post here in July 2012. One perhaps anomalous aspect of this proposal is that whereas, as noted above, most European countries have a dedicated constitutional court and the introduction of the Court of Appeal might be seen as a step towards this European model, for the most part those European constitutional courts firmly apply the ‘one judgment’ rule, unlike the US Supreme Court. It is not surprising that the original proposal to relax the one judgment rule for presidential referrals (Article 26.2.2), a matter on which the CRG itself was undecided, has been allowed to lapse.

In the summer of 2012 the Minister for Justice also indicated the possibility of amending Article 34.3.3 (which states that the constitutionality of an Act upheld by the Supreme Court following a presidential referral can never again be challenged) and to make provision for judges to take a secular oath instead of the Christian oath currently prescribed for judges. These ideas seem to have sunk without trace, for the moment at least. Perhaps proposals along these lines will find a place amidst the flurry of referendums the government seems to have in mind for 2014 and 2015.