According to an article by Paul Cullen on the front page of today’s Irish Times, there are moves under way to create a new Court of Appeal for Ireland. This can only be welcome news, both for litigants and for judges.
Even though the nine judges of the Supreme Court can sit now in divisions of three, it can still take up to two years or more for an appeal to be heard; and a Court of Appeal that relieved that backlog of cases and allowed litigants’ appeals to be heard and decided more quickly would undoubtedly be good news for litigants. Moreover, too many cases come to the Court to allow it to do its work as a Supreme Court: at present, it hears more than 300 cases a year, compared with no more than 100 in the US Supreme Court, the Supreme Court of Canada, the High Court of Australia, and the House of Lords (which, in its judicial capacity, is the UK’s highest court). In those jurisdictions, there is an automatic right to appeal to Court of Appeal level from cases at High Court level, so litigants always get the option of an appeal; but there is an appeal from Court of Appeal level to the court of final appeal only in cases where that latter court is persuaded that there are special or exceptional reasons for the appeal to be heard. If this logical model is followed in Ireland, then interposing a Court of Appeal would provide litigants with an untrammelled right of appeal whilst allowing the Supreme Court to take only the most important cases, as those other courts of final appeal do.
Cullen reports that a “committee chaired by Ms Justice Susan Denham of the Supreme Court has been established to consider the necessity for a new court and to make recommendations for greater efficiency in court procedures”. Mrs Justice Denhan has a great deal of experience in this kind of thing. She was Chair of the Working Group on a Courts Commission (1995-1998). It was established in October 1995 by the then Minister for Justice, Mrs Nora Owen, and, in six reports between April 1996 and December 1998, the Group made a series of recommendations which established the Courts Service and modernized court procedures. That Group worked quickly and efficiently, making practical and comprehensive recommendations. It is to be hoped that this one does too.
Beyond Cullen’s piece in the Irish Times, there is very little in the public domain about this group; all that can be done at this stage is to speculate on the various questions that they will have to consider.
They will have to face a cluster of constitutional questions. At least four come to mind. First, on the one hand, legislation already provides for a Court of Criminal Appeal, which might provide a roadmap for a broader court intermediate between the High Court and the Supreme Court. On the other hand, Article 34.2 of the Constitution provides that “The Courts shall comprise Courts of First Instance and a Court of Final Appeal”. If “comprise” means “consists of” or “be made up of”, then this would mean that the only main courts can be the High Court and the Supreme Court, and there would be no constitutional space for a Court of Appeal. Admittedly, Article 34 does go on to provide (in Art 34.4) that “The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law”, but it is unlikely that a proper Court of Appeal could be described as having a “local and limited” jurisdiction.
Second, the power to rule on issues relating to the constitutional validity of statutes is reserved at present only to the High Court and Supreme Court under Art 34.4.2, and, if the Court of Appeal is not to be hobbled, it too should enjoy that power. Moreover, it would unfair on a litigant, who stumbles across a constitutional issue whilst appearing in that court, to be told that the case could not be decided on that basis, and that the issue would have to be teased out on further appeal to the Supreme Court (an appeal which neither party might otherwise have wanted). Third, in principle, judges of the Court of Appeal should have the same constitutional level of independence and security of tenure as High Court and Supreme Court judges currently enjoy under Art 35.4.1 (though a full review of procedures for dealing with judicial misconduct is ongoing in the Department of Justice with a view to legislating on the issue (see the section on “Judicial Conduct” in the Implementation and Progress Report (Nov 2004) (pdf)), and Mrs Justice Denham has also been involved in this process). But if there is to be a constitutional amendment to Article 34.2 to secure the place of the Court of Appeal, and/or if there is to be to an amendment to Art 35.4.1 anyway, then thought should also be given to amending that latter article to give Court of Appeal judges the same level of protection as High Court and Supreme Court judges.
Fourth, the President of the High Court ranks second in the judicial hierarchy after the Chief Justice of the Supreme Court, and interposing a Court of Appeal between those two courts would have implications for that hierachy. In particular, adding a President of a Court of Appeal (or, perhaps, Presidents of any Divisions of that Court) to rank higher than or even co-equal with the President of the High Court would certainly require statutory amendment (which could easily be done) and could have constitutional implications. For example, there are various indicia in the Constitution (eg, Articles 14.2.2 and 32.2) that the President of the High Court ranks second after the Chief Justice; this is expressly recognised by section 9 of the Courts (No 2) Act, 1997; and it is reinforced by s10(2) of the Courts (Supplemental Provisions) Act, 1961 which makes the President of the High Court ex officio a member of the Supreme Court. It would not be a problem, in any Courts Act providing for the new Court of Appeal, to realign the heirarchy of senior judges, and to provide that the the President of the Court of Appeal (or, perhaps, the Presidents of its Divisions) should also be ex officio members of the Supreme Court (and, for my own part, I would not disturb the convention that the President of the High Court should also ex officio be a member of the Supreme Court). But if there is to be a constitutional amendment to Article 34.2 to secure the place of the Court of Appeal, thought should also be given to amending Articles 14.2.2 and 32.2 as well, to secure the place of that Court’s presiding judge or judges.
As well as these major constitutional and statutory issues, there will be many other necessary changes to the Courts Acts 1929-1997 (statutes discussed by my TCD colleague Prof Hilary Delany in her book on these Acts) not least relating to the number of judges in the Court. The Supreme Court consists of nine judges (including the President of the High Court); the High Court consists of the President and thirty-one others. The Court of Appeal will probably consist of an intermediate number of judges; perhaps about fifteen. My guess is that it might sit in (perhaps) three panels: a Criminal Division (taking over and revamping the work of the Court of Criminal Appeal); a Civil Division; and an Adminstrative – or Public Law – Division (recognising the reality of how much administrative or public law litigation there is nowadays). A bench of about fifteen judges would make this three-fold division workable, allowing the Court of Appeal to sit in panels or three or five judges, as necessary.
Finally, there will be the practical problems of where to site it. In the UK, the plan to transform the House of Lords into a Supreme Court has been beset by the practical problems of finding and developing an appropriate prestige site. But this is not an insurmoutable problem, if there is appropriate political, judicial and societal support.
We have been here before: I seem to remember discussions about it in 1994 which came to naught. It was a good idea then, and is still a good idea now.