Government approves in principle referendum on courts structure

Scofflaw

Out today:

Government approves in principle a future Referendum on Article 34 of the Constitution

The Minister for Justice, Equality and Defence, Alan Shatter, T.D, has announced that the Government today approved, in principle, proposals for a number of major reforms to our Courts Structures. The Minster said that proposals accepted by his Government colleagues will require the holding of a Constitutional Referendum and have the potential to achieve some of the most significant changes to the courts structures which had remained largely unchanged since 1924.

The Minister said: "An amendment to Article 34 of the Constitution, as proposed, would permit the establishment of additional superior courts including, for example, the establishment of a Civil Court of Appeal and a new separate Family Court structure. This proposal would also allow the Oireachtas to consider the establishment of other specialist superior courts, should they be required. The work to be undertaken will also consider the constitutional change required to enable the State to participate in any arrangement providing for the establishment of a European Patent Court. "

The Government also agreed that consideration should be given to other constitutional changes including, for example, possible amendments to Article 26 dealing with the reference of a Bill by the President to the Supreme Court. The Minister said "I am of the view that we need to review the procedure whereby the Supreme Court is confined to delivering one judgment only and no minority judgment may be delivered in the determination of an Article 26 application. This may create an artificial appearance of unanimity and consideration is being given to whether there should be greater transparency and whether it is in the public interest that individual members of the court should be enabled to deliver individual judgements.

Also, consideration is to be given to conferring a power on the Supreme Court to determine whether a Presidential reference of a Bill to the Supreme Court under Article 26 should be capable of rejection by that Court for such adjudication due to the absence of a proper factual or evidential basis on which to conduct such adjudication."

Consideration is also to be given to possible amendments to Article 26 and Article 34, in respect of Bills referred by the President to the Supreme Court, to enable possible future constitutional challenges to Bills already upheld as constitutional following such reference. For example, such further constitutional challenge could be appropriate with regard to legislation where a question arises not addressed by the Supreme Court in its original decision under Article 26, and/or following the lapse of five years or some other specified period from the date of the original decision.

With regard to the establishment of a Court of Civil Appeal other issues also arise for consideration such as whether, following the High Court adjudicating in a constitutional matter, an appeal should be made directly to the Supreme Court or whether the Court of Civil Appeal should play a role.

Finally consideration will be given to adding a secular oath as an optional alternative to the current form of judicial declaration contained in Article 34.5.

Minister Shatter said "I would now expect to engage in a broad public debate on these matters as the time has come to explore the much needed reform of the current Constitutional framework. In this context I also intend to bring forward at an early date the long promised Judicial Council Bill."

The Minister expressed his belief that, arising from this morning’s Government decision, the necessary first steps can now be taken towards making amendments to the Constitution to significantly improve the structure of the Courts for the benefit of all concerned. The Minister said he intends that work on these matters will commence shortly and a decision on when to hold the necessary referendum will be made at a later date.

Source: http://www.inis.gov.ie/en/JELR/Pages/PR12000214

There are quite a few proposed reforms in there - the question, of course, is whether they're useful reforms. All quite some way off, I take it by the tone, but it's never too early to start thinking about proposed reforms!

cordially,
Scofflaw

FreudianSlippers

Fix the High Court before piling useless money into a Court of Civil Appeal. The main problem with the courts is not how long it takes to get to the Supreme Court, it's that there are a bunch of useless applications by lay litigants clogging up the SC and that the HC is severely understaffed and there are not enough judges to hear the cases that are listed.

Nice little dig there by Shatter at trying to get rid of the Presidency... the President does a fine job at the moment of using his (well the President former did a fine job of using her) Article 26 powers and I don't see the need for giving this to the government.

On one hand complain about how clogged the Supreme Court is and then on the other allow for the government to clog up the SC more. :rolleyes: Smoooooth.

Scofflaw

FreudianSlippers wrote: »

Fix the High Court before piling useless money into a Court of Civil Appeal. The main problem with the courts is not how long it takes to get to the Supreme Court, it's that there are a bunch of useless applications by lay litigants clogging up the SC and that the HC is severely understaffed and there are not enough judges to hear the cases that are listed.

Nice little dig there by Shatter at trying to get rid of the Presidency... the President does a fine job at the moment of using his (well the President former did a fine job of using her) Article 26 powers and I don't see the need for giving this to the government.

On one hand complain about how clogged the Supreme Court is and then on the other allow for the government to clog up the SC more. :rolleyes: Smoooooth.

Good spot there - I take it you're seeing those moves as weakening the President's powers, and allowing the government to revisit judgements that legislation is unconstitutional? Such as, say, Crotty, McKenna, Coughlan?

cordially,
Scofflaw

FreudianSlippers

Scofflaw wrote: »

Good spot there - I take it you're seeing those moves as weakening the President's powers, and allowing the government to revisit judgements that legislation is unconstitutional? Such as, say, Crotty, McKenna, Coughlan?

cordially,
Scofflaw

It goes a lot further than just weakening the President; it makes the role completely pointless. My problem with all of these governmental powers proposed (as with the previous referendum) is that they are very vague as to the extent of what the government can and cannot do. Ok, so at its most basic level the government wants to show the people that they want to be able to consider the constitutionality of legislation (something which the president can already do) but it doesn't go far enough in explaining what types of legislation it can refer, how many times it can refer it, under what circumstances, etc.

I see potential for a government to re-challenge old legislation on new grounds or challenge legislation until they get the answer they want. There are millions of questions really as to what the government is up to recently - and they all point to a power grab from the executive and judiciary. The Legislative branch of this country wants power and sole power.

Scofflaw

FreudianSlippers wrote: »

It goes a lot further than just weakening the President; it makes the role completely pointless. My problem with all of these governmental powers proposed (as with the previous referendum) is that they are very vague as to the extent of what the government can and cannot do. Ok, so at its most basic level the government wants to show the people that they want to be able to consider the constitutionality of legislation (something which the president can already do) but it doesn't go far enough in explaining what types of legislation it can refer, how many times it can refer it, under what circumstances, etc.

I see potential for a government to re-challenge old legislation on new grounds or challenge legislation until they get the answer they want. There are millions of questions really as to what the government is up to recently - and they all point to a power grab from the executive and judiciary. The Legislative branch of this country wants power and sole power.

It's funny, really - I consider Fine Gael a good deal more clued in and innovative in matters constitutional and legislative than Fianna Fáil, and I'm suspicious of them for precisely that reason. It's interesting that the Crotty and McKenna judgements were both under Fine Gael governments, which suggests perhaps that people feel the pressure of power-centralisation and push back.

But this is not a legislature power-grab by any means, nor has the legislature seized any power from the executive. On the contrary, the executive has largely seized the powers of the legislature - between the Whip system and SIs, the government can effectively dictate legislation - and is moving on towards hollowing out the powers of the President and judiciary. The powers of local government, of course, were eaten up long ago, and even the apparent 'reform' of preventing TDs being simultaneously councillors acted to reduce the relevance of councils still further.

Even decentralisation was a subtle central power-grab, but this time at the Cabinet table - note that neither the Dept of the Taoiseach nor the Dept of Finance was ever included in decentralisation, but all other Ministries were, which would have had the effect of distancing them from the centre of affairs and separating them from each other.

cordially,
Scofflaw

limklad

As Long the "Check and Balance" or what left of it remains. If the Courts are happy and are finance enough to do their Job and not one item of intentional or unintentional power grab by the government, then I am fine with it. As long as I do not get the "Government knows best" type comments or Politicians say "We Know best what good for the country, so don't worry yourself about it" which will raise my suspicions what are they up to.

Ozymandius2011

I see some problems with the proposed amendments:

Consideration is also to be given to possible amendments to Article 26 and Article 34, in respect of Bills referred by the President to the Supreme Court, to enable possible future constitutional challenges to Bills already upheld as constitutional following such reference. For example, such further constitutional challenge could be appropriate with regard to legislation where a question arises not addressed by the Supreme Court in its original decision under Article 26, and/or following the lapse of five years or some other specified period from the date of the original decision.

This could lead to a US-style politicisation of the Supreme Court, which different parties pushing for appointments that would overturn previous SC rulings with which they disagreed. I am opposed to the concept of a "living" i.e. organic Constitution whose wordings - where they to stay the same - could have new meanings attached to them not envisaged (including by the electorate) at the time of writing. A culture of judicial-activism could result, encouraging (as in the US) lower courts to frustrate the implementation of legislation with which judges disagree in the hope of their being intrerpretation as unconstitutional (in reversal of previous SC rulings perhaps) by higher courts and ultimately the SC itself.

By impication, this also represents a denuding of the already weak check that the President provides on the executive and legislative branches of govt. That is reason enough to oppose it. We have in my humble opinion an unduly powerless Presidency which needs strengthening (particularly to compensate for an abolished Seanad Eireann) not weakening. Shatter's proposals on this matter smack of a power-grab by an already overmighty executive.

I have no objection to the remainder of his proposals. They could cut down on the workload of the SC and lead to fewer delays in the appeals process. The Pamela Izevbekhai case is a notable example of a case constantly adjourned for which bottlenecks in the process were blamed by the sitting judge. I do believe however that the reform of the courts ought to include clarification of the dangerously unclear process for impeachment of a judge, which is provided for in the Constitution but left so unclear as to (as the Curtin affair demonstrated) make its implementation as presently constituted unacceptable difficult to implement.