TENSION BETWEEN the executive and the judiciary is normal in a functioning democracy. The prerogatives of the two pillars of government are jealously guarded, sometimes to an excessive degree. So when Minister for Justice Alan Shatter expresses the hope that his announcement concerning court reforms will “kickstart a public debate” on changes in the constitutional framework, he is unlikely to be disappointed. By stressing the importance of public debate, Mr Shatter has tweaked their lordships’ wigs.
Many of the changes outlined by the Minister are uncontentious. They have been proposed by the Law Reform Commission or requested by Chief Justice Susan Denham on the grounds that “the current situation in the Supreme Court in unsustainable”. But others stray into the traditional remit of the President or offer the prospect of strengthening the influence of the executive. In the aftermath of last year’s referendums on judicial salaries and the power of Oireachtas committees, a querulous reaction can be expected from some quarters.
Long before becoming Minister, Mr Shatter – who specialised in family law – tended to be a controversial and abrasive figure. He argued for the removal of traditional barriers between solicitors and lawyers and a modernisation of the courts system, particularly in relation to children and family courts. It is no surprise, therefore, that the Minister should raise the prospect of establishing a specialised family courts structure, even as he accepted Mrs Justice Denham’s case for the creation of a superior civil court of appeal that would absorb some of the workload that has fallen on the Supreme Court.
The superior courts have been swamped by work since the recession. Even before that, however, wealthy individuals absorbed a great deal of time as they sought to prevent tribunals from investigating or making findings concerning their affairs. Additional judges were appointed. But as their workloads expanded, the legal working year – which allows for up to 15 weeks vacation – remained largely unchanged. Oireachtas salaries and holidays have been cut to reflect changed economic circumstances. The judiciary might consider that approach in relation to their working days.
Commercial Court proceedings have been cited as a template for how business can be conducted speedily and with minimum costs in other courts. Issues are narrowed down in advance of formal hearings and parties are encouraged to use alternative dispute resolution procedures.
A referendum will be required to establish specialist courts, as requested by the judiciary. In addition to that, however, Mr Shatter suggested the Government should be entitled to challenge a Supreme Court ruling after a specified time or based on different legal questions; that it should be able to refer draft legislation for constitutional testing and that the Supreme Court might refuse to examine legislation referred by the President. The latter suggestion, in particular, requires greater clarification and justification.