As reported by Ruadhán Mac Cormaic in yesterday’s Irish Times, the Irish Supreme Court is to make written submissions available to the public. This is an excellent development – the public’s right of access to court documents is a very important aspect of the open administration of justice. According to Ruadhán:
In a direction to lawyers, posted on the Courts Service website, Ms Justice Denham said the new practice would apply to all submissions sent to the Supreme Court Office as of yesterday. The documents will only be available once the relevant appeal hearing begins.
(Para updated 8 October 2013: updates underlined) I found it hard to track down the relevant Practice Direction: when I wrote this post it
is was not yet either on the Courts Service News page or the Supreme Court Practice Directions page, though it is now available on the Practice Directions page. However, on twitter, Ruadhán pointed me to the current Legal Diary (doc | pdf), where I found the following Practice Direction:
THE SUPREME COURT
1. Subject to directions of the Supreme Court and the following paragraphs of this direction, a copy of written submissions lodged in or transmitted to the Supreme Court Office or handed in to the Supreme Court on or after the 7th October, 2013 in relation to, or in the course of, the hearing of any appeal or matter will be made available to any person requesting same, on payment of any fee chargeable for such copy.
2. A person making such a request will be provided with –
(a) a copy of such written submissions in the form in which they have been received or
(b) where paragraph 3 applies, a copy of the redacted version of such written submissions lodged in accordance with that paragraph.
3. With effect from the date aforementioned, each party to an appeal or matter shall, where the written submissions contain any information the publication of which is prohibited by, or would contravene any restriction contained in, any enactment or rule of law or order of a court, transmit to the Office of the Supreme Court a redacted version of that party’s written submissions in electronic format, from which all such information shall have been deleted.
4. It shall be the responsibility of the parties that submissions will not contain scandalous, abusive or vexatious material.
5. Submissions will not be made available prior to the commencement of the hearing of the appeal. Any publication by the person who obtains the submissions should respect any prohibition in law or order of the Court.
6. A request for a copy of written submissions shall be made to the Registrar of the Supreme Court.
7. The Registrar of the Supreme Court may –
(a) seek the direction of the Supreme Court in relation to a request made under this direction,
(b) provide a copy of written submissions in electronic form.
7th October, 2013
It’s very welcome that submissions should be available, but it’s a long way from what other similar courts are doing. Take, for example, all of the material already available online in advance of today’s argument in McCutcheon v Federal Election Commission before the Supreme Court of the United States, the comprehensive policy on access to court records before the Supreme Court of Canada, and the current cases submissions page recently commenced by the High Court of Australia. I hope that the Court can move quickly to making these submissions available online, much as those other similar courts are doing. I also hope that that the policy is extended to other Irish courts in due course.
However, I am particularly uncomfortable with the reference to “payment of any fee chargeable for such copy”. I really hope that the discretion inhere in “any fee” means that a fee will not appear in the schedule of fees payable in the various offices of the Supreme and High courts.
Finally, this development has the potential to let in some more light into the Supreme Court appeals process, but it’s quite a weak light, and there are still too many shadows. This is step, a first step, an important step, but for all that, a small step towards slightly more open justice in the Irish Supreme Court.