THE MINISTER for Justice has announced a referendum on reorganising the structure of the courts, including the setting up of a court of civil appeal and a new unified family court, bringing about the biggest shake-up in the courts since the foundation of the State.
Alan Shatter also said the Government would consider including a second amendment in the referendum. This would allow challenges to laws found constitutional after the President referred them to the Supreme Court and allow the Government itself to refer international agreements, including those relating to EU treaties, to the Supreme Court.
A referendum on a court of civil appeal, which would deal with appeals on civil matters from the High Court; and reform of the family courts, are both promised in the programme for government.
Mr Shatter said that instead of a referendum setting up a new court, the Government had agreed on one to allow the Oireachtas establish additional superior courts, including a court of civil appeal and a new family court structure.
Further courts could be established without a referendum as and when they became necessary, he said.
The surprise announcements came after yesterday’s Cabinet meeting and were made at the launch of the Courts Service annual report. He said no date had yet been set for such a referendum.
He said the Government had also agreed that other constitutional changes should be considered, including changes to the article allowing the President refer a Bill to the Supreme Court and a new mechanism that would enable the Government to refer international agreements that it intended to ratify to the Supreme Court.
He said this would be likely to be used principally in relation to amendments to EU treaties. It would mean that the Government could ask the Supreme Court for its opinion as well as the Attorney General, and, if the court found such treaties compatible with the Constitution, it would avoid the need for a referendum.
This could also pre-empt a situation where an individual took a challenge to a proposed EU treaty change.
Mr Shatter said the Government was also considering providing for a secular judicial declaration. The declaration made by judges at the moment begins “In the presence of Almighty God . . . ”
Article 26 of the Constitution allows the President, after consultation with the Council of State, to refer a Bill to the Supreme Court for a declaration as to its constitutionality. Mr Shatter said one of the issues being considered by the Government is conferring a power on the Supreme Court to reject such a referral due to the absence of an evidential basis for it.
At the moment, once the Supreme Court decides on a Bill’s constitutionality after a referral the Bill cannot be challenged again.
The Government will consider further constitutional amendment to allow further challenges if issues arise that were not considered the first time, or following a lapse of five years, or another specified period of time.
Mr Shatter said the Government accepted the need for a court of civil appeal. At the moment the only way to challenge a decision of the High Court on a civil matter, including procedural matters, is through an appeal to the Supreme Court, which received almost 500 new appeals last year. Eighteen per cent of them came from lay litigants. Delays in the Supreme Court, apart from urgent cases, are now running at more than three years.
Two years ago a working group chaired by the present Chief Justice, Mrs Justice Susan Denham, recommended the establishment of a court of appeal, with a civil and a criminal panel, to hear appeals other than those raising exceptional or constitutional issues.
It pointed out that other Supreme Courts, for example those in the UK and the US, hear fewer than 100 cases a year.