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Explainer: What is the Court of Appeal Referendum all about?

All the questions you were embarrassed to ask – answered.

Image: Four Courts via Shutterstock

WE’VE ALL SEEN the television ads and heard the political rows about the upcoming Seanad Referendum but not everyone will know that we’re being asked to vote on a second matter on 4 October.

Overshadowed by the abolition of the Seanad debate, the electorate will be asked if it wants to establish a Court of Appeal when voters go to the ballot boxes next Friday. The government says the referendum will represent (if passed) the most fundamental reform to the court structure in Ireland since the State was founded.

As little has been said or heard about the topic, TheJournal.ie has put together an explainer on the issue.

What will be asked on 4 October?

The 33rd Amendment of the Constitution provides for the establishment of a Court of Appeal.

So, if we vote ‘yes’ what happens?

A new court will be established. It will be called the Court of Appeal and will hear cases being brought by people who are not happy with decisions made by the High Court.

It will create a new layer in the Irish judicial system – between the High Court and the Supreme Court – in the hope that it will lessen the workload of the Supreme Court.

And, if we vote ‘no’ what happens?

Nothing. The system will remain the same and appeals from the High Court will continue to be heard by the Supreme Court.

There is already a Criminal Court of Appeal which hears criminal cases from the High Court, Circuit Court and the Special Criminal Court. That will continue to sit, when necessary, in the event of a ‘no’ vote.

What is the current backlog/waiting time in the Supreme Court?

The proposal to set up a Court of Appeal comes as the backlog of cases at the Supreme Court grows and grows.

Currently, the average waiting time for a case to be heard by the top court in the land is approximately four years.

There are now 664 cases outstanding in the Supreme Court. Of those, 77 have been given priority and will be heard in the next 12 months.

Realistically, the waiting time for hundreds of the others could then be longer than four years.

Hang on though, you already said there is a Criminal Court of Appeal?

We do. But in the words of Minister Alan Shatter, it sits only “sporadically”. It uses three of the same judges that the High Court and Supreme Court use.

Will a new court speed things up?

That’s the idea but other measures are also required. Two additional judges have been nominated to the Supreme Court by the government and, once ratified by the President, that should mean more sittings in two divisions.

Two divisions of the Supreme Court can sit at the same time if the cases do not involve a challenge to the constitutionality of a statute or if they do not raise important issue of laws. For these hearings, the court would normally consist of three judges. Therefore, with nine judges and a president, the Supreme Court should be able to hold two divisions at the same time more often.

Seven judges may sit to hear cases of “exceptional importance”.

To speed things up further, the Court of Appeal will sit in divisions of just three judges. There will be a dedicated criminal division, as well as a civil division.

How much will it cost? Will this just mean more judges on high salaries?

The Department of Justice says it is still analysing costs but expects to run the Court of Appeal on about €2.5 million to €3 million per year.

That figure will include judges’ salaries, the cost of overheads and support staff.

How many judges will be needed?

This is an important question when it comes to costing the endeavour but it cannot be answered until the Justice Department knows how long the Supreme Court backlog will be on date of establishment.

The current figure being bounced around is 10 – nine judges and a president.

Sounds pretty straight-forward, does anyone oppose this?

Although all four main political parties support the proposals, there are some dissenting voices.

Direct Democracy Ireland says it opposes the establishment of a new court as it would mean people lose their recourse to the Supreme Court “in most cases”.

Why are there no posters?

You’re correct. This referendum has not been spoken about as much as previous votes on our Constitution.

That is something that has annoyed Minister Shatter. But it stems from all the political parties actually agreeing on something.

What kinds of cases will still be heard in the Supreme Court?

The Supreme Court will still hear cases of general public importance or where it is necessary in the interests of justice.

However, most of the appeals from the country’s 36 High Courts that are currently heard there will be moved to the Court of Appeal instead.

The Court of Appeal will also hear cases about whether or not a law is constitutional.

What about appeals from other courts?

Eventually, it is thought the Court of Appeal will hear appeals from all the courts of the land but further laws will need to be passed to allow for this.

If a case fails in the proposed Court of Appeal will applicants be able to appeal again at the Supreme Court?

Yes, but only at the discretion of the Supreme Court. The reasons would be the same as those given for cases that go directly to the Supreme Court:

If the Supreme Court believes the decision by the Court of Appeal involves a matter of general public importance, it would hear an appeal. And, if the interests of justice require such an appeal, it will also hear one.

The government envisages that less cases will be heard in the Supreme Court because not all cases that go before its judges would fall into either of these categories.

What happens in other countries?

As we’re often compared to New Zealand because of our similar population sizes, we’ll take that as an example. There, the courts system is a pyramid – the top layer being the Supreme Court where only matters of great public importance are heard, while at the bottom there are the district courts.

Because the Supreme Court hears only a small proportion of cases, the Court of Appeal is in reality the last court for an appeal for most cases in the legal system.

It is quite unusual not to have a Court of Appeal. In fact, the government claims that it is a violation of human rights under article 6 of the European Convention on Human Rights.

Anything else we need to know?

Well, yes, the referendum will also include a proposal to change the ‘one judgement’ rule.

What’s that?

Currently, when the Supreme Court issues a decision on a law’s constitutionality, only one judge is allowed to give the decision even though at least five judges will have presided over the case.

The majority decides the case but because of the ‘one judgement’ rule, it is never known if any of the judges disagreed with the ruling – and, if they did, why they did.

In the case of a yes vote, this ‘one judgement’ clause will be scrapped and each opinion will be heard. The majority ruling on whether the Act – passed through the Oireachtas previously – is constitutional will still count.

Should that not be a separate question?

Some would argue yes. But those in power – the government – say the two issues are directly related.

Asked by TheJournal.ie for an explanation, the Justice Department said:

In the interests of openness and transparency, the government is of the view that the new Court of Appeal should be able to issue multiple judgements in challenges to the constitutionality of legislation.

And the government says to allow it in the Court of Appeal and not in the Supreme Court would create an “inconsistency” in how similar cases were dealt with depending on where they were finally determined.

So, to avoid this inconsistency, the proposal, if accepted, will “allow both the Supreme Court and the Court of Appeal to issue multiple judgements in the limited class of cases concerned with the one-judgement rule”.

Can the President still refer a new law to the Supreme Court?

Yes. The change to the ‘one judgement’ rule will not affect the President’s right to summon the Supreme Court to make a decision on the constitutionality of a law.

Are there any others questions you need answered? Let us know in the comments section.

Poll: Do you want to establish a Court of Appeal?

Here is Alan Shatter’s quick guide to the Court of Appeal referendum

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