The fact that judges and politicians have an extremely prickly relationship is no reason why reforms that would benefit society and the economy should be delayed. A backlog in the number of cases before the Supreme Court has been growing for many years. It now takes nine months to hear a priority case. Otherwise, a four-year delay can be expected. The situation, as Chief Justice Susan Denham pointed out recently and Minister for Justice Alan Shatter publicly acknowledged, is "unsustainable". So, why the delay in dealing with the problem? Part of the reason is a concern by Government not to offend their lordships. Important cost considerations exist. And the well-developed egos of judges with their sensitivity to political interference that could affect their status or entitlements have to be taken into account.
Establishing and staffing a new court of appeal at Supreme Court level, with a criminal division and a permanent cadre of judges, has the potential to put a great number of noses out of joint. Such reforms were formally recommended to the last government, four years ago. But sensitivities were such that the drafting of necessary legislation and the terms of a constitutional amendment have only reached preliminary stage.
Mr Shatter has described holding an autumn referendum to alter the structure of the Supreme Court as “ambitious”. So it is. But what is wrong with that? After all, a constitutional amendment to allow for the transfer of patent litigation to a new court, under EU rules, has been pencilled in for that time. Both matters should be dealt with simultaneously. Otherwise, the sclerosis that has inhibited legal reforms in other areas will set in.
Increasing wealth in this State brought within it an explosion in litigation. Over the past 45 years, the number of High Courts established by government has increased five-fold. At the same time, the Supreme Court grew from one to two divisions. As a consequence, it is no longer able to cope with the number of cases referred upwards from lower courts. Some wealthy individuals and companies use those in-built delays as blocking mechanisms.
In proposing the establishment of a new court of appeal to the Government, the Chief Justice emphasised the "critical importance" of not impinging on the independence of the judiciary. Concerns clearly exist in relation to future conditions and appointments. Attorney General Maire Whelan made reference to a new appeals court in Australia where difficulties had arisen because of "a disturbance of seniority among judges". But, any organisation that operates purely on the basis of "'Buggins turn" becomes inefficient. Energy, experience and talent are all required if the backlog of appeal cases is to be cleared. Promotions to the new court should reflect that. Similarly, judges should consider extending traditional law terms to bring their working year into line with modern practice.