Drastic Court/constitutional changes

seb65

Bye bye Ireland's safeguards of democracy:

"Referendum to pave way for shake-up of courts system"
The Irish Times
July 18, 2012

THE MINISTER for Justice has announced a referendum on reorganising the structure of the courts, including the setting up of a court of civil appeal and a new unified family court, bringing about the biggest shake-up in the courts since the foundation of the State.

Alan Shatter also said the Government would consider including a second amendment in the referendum. This would allow challenges to laws found constitutional after the President referred them to the Supreme Court and allow the Government itself to refer international agreements, including those relating to EU treaties, to the Supreme Court.

A referendum on a court of civil appeal, which would deal with appeals on civil matters from the High Court; and reform of the family courts, are both promised in the programme for government.

Mr Shatter said that instead of a referendum setting up a new court, the Government had agreed on one to allow the Oireachtas establish additional superior courts, including a court of civil appeal and a new family court structure.

Further courts could be established without a referendum as and when they became necessary, he said.

The surprise announcements came after yesterday’s Cabinet meeting and were made at the launch of the Courts Service annual report. He said no date had yet been set for such a referendum.

He said the Government had also agreed that other constitutional changes should be considered, including changes to the article allowing the President refer a Bill to the Supreme Court and a new mechanism that would enable the Government to refer international agreements that it intended to ratify to the Supreme Court.

He said this would be likely to be used principally in relation to amendments to EU treaties. It would mean that the Government could ask the Supreme Court for its opinion as well as the Attorney General, and, if the court found such treaties compatible with the Constitution, it would avoid the need for a referendum.

This could also pre-empt a situation where an individual took a challenge to a proposed EU treaty change.

Mr Shatter said the Government was also considering providing for a secular judicial declaration. The declaration made by judges at the moment begins “In the presence of Almighty God . . . ”

Article 26 of the Constitution allows the President, after consultation with the Council of State, to refer a Bill to the Supreme Court for a declaration as to its constitutionality. Mr Shatter said one of the issues being considered by the Government is conferring a power on the Supreme Court to reject such a referral due to the absence of an evidential basis for it.

At the moment, once the Supreme Court decides on a Bill’s constitutionality after a referral the Bill cannot be challenged again.

The Government will consider further constitutional amendment to allow further challenges if issues arise that were not considered the first time, or following a lapse of five years, or another specified period of time.

Mr Shatter said the Government accepted the need for a court of civil appeal. At the moment the only way to challenge a decision of the High Court on a civil matter, including procedural matters, is through an appeal to the Supreme Court, which received almost 500 new appeals last year. Eighteen per cent of them came from lay litigants. Delays in the Supreme Court, apart from urgent cases, are now running at more than three years.

Two years ago a working group chaired by the present Chief Justice, Mrs Justice Susan Denham, recommended the establishment of a court of appeal, with a civil and a criminal panel, to hear appeals other than those raising exceptional or constitutional issues.

It pointed out that other Supreme Courts, for example those in the UK and the US, hear fewer than 100 cases a year.

Victor

Too many layers?

I wonder if there could be some rationalisation of the district/circuit/high courts.

seb65

Victor wrote: »

Too many layers?

I wonder if there could be some rationalisation of the district/circuit/high courts.

It's not really the layers that concern me. A lot of jurisdictions have separate court of appeals. A particular division devoted to family court is not particularly bad. My main issue was that Shatter is seeking to: 1) limit the president's power to refer legislation to the Supreme Court - the most effective means of access to justice that the Irish citizen has to challenge the constitutionality of legislation; and 2) take away the right of Irish citizens to vote by referendum, on international agreements - i.e., the EU treaties that then become binding in Irish law.

Manach

There is a need to make the system more streamlined so as to speed up access to determination, however I'd have thought the minister might have spent even a brief period in consultation with the public/interested parties or else roll this into the constitutional convention?

Procrastastudy

I don't think anyone would argue the Re Art 26 procedure doesn't need tinkering with. Then again I'm usually wrong!

I also don't think we can continue to be the constant lone hold out (or is there two) every time there's a European treaty. Not if we want to stay in Europe anyway. Every other state seems to trust the elected government of the day to make the decision. That said I'll eat my hat if it ever passes referendum that we don't need a referendum

Procrastastudy

seb65 wrote: »

1) limit the president's power to refer legislation to the Supreme Court - the most effective means of access to justice that the Irish citizen has to challenge the constitutionality of legislation;

Not after it has been referred to the Supreme Court under Article 26. I think thats something they are looking to change.

Victor

GCDLawstudent wrote: »

Not after it has been referred to the Supreme Court under Article 26. I think thats something they are looking to change.

Agreed. Surely it is impossible for the court to view every possible scenario in considering constitutionality.

and allow the Government itself to refer international agreements, including those relating to EU treaties, to the Supreme Court.

I presume this relates to agreements that are at the margins of constitutionality.

The government is perfectly entitled to agree to make international agreements. However, in pretty much every country, international agreements are subject to ratification by the relevant parliamentary or other procedure. Not every international agreement has constitutional implications.

234

I think it's more in relation to the fact that the Supreme Court has stated that not every EU treary needs to be put to referendum as some of them are captured within previous amendments to the Constitution and are essentially what we signed up for when we entered the EU. However, there has been no means of determining this and if any treaty was not put to referendum, even if the AG though it was constitutionally sound, some nutter would challenge it anyway.

FreudianSlippers

Shatter trying to get rid of the President? There is no need to give the government Art 26 powers, historically the President has used it correctly IMO. It also makes zero sense to, on one hand, complain about how clogged the SC is and then on the other allow for the government to clog up the SC more.

The problem also is not how super busy the SC is... the problem is the HC; we need to fix the HC before doing anything else and that includes a new court of civil appeal.

Procrastastudy

Would it not be an idea to up the jurisdictions of the DC and CC to the levels suggested? I'm confused at th the reasoning behind not allowing cases up to €100,000 to he heard at Circuit Court level.

coylemj

seb65 wrote: »

He said the Government had also agreed that other constitutional changes should be considered, including changes to the article allowing the President refer a Bill to the Supreme Court and a new mechanism that would enable the Government to refer international agreements that it intended to ratify to the Supreme Court.

We definitely need this provision in the constitution. The cynical way that SF and assorted lefties hijacked the last referendum to get themselves on TV political programs debating head to head with leading members of FF/FG/Labour was a complete disgrace. No matter how worthy the topic of an EU treaty change, anyone who is against it is guaranteed equal time on national TV and radio, that is something that needs to be changed ASAP.

Sinn Fein's strategy is to oppose everything, that way they get themselves media coverage which is completely disproportionate to their electoral support. EU treaty referendums are manna from heaven for them.

I thought the referendum we passed in 1972 said that anything we needed to ratify by virtue of our membership of the EEC (now EU) couldn't be challenged on the basis that it was repugnant to the Constitution?

Victor

coylemj wrote: »

I thought the referendum we passed in 1972 said that anything we needed to ratify by virtue of our membership of the EEC (now EU) couldn't be challenged on the basis that it was repugnant to the Constitution?

Sure, but that applied to matters within the competencies of the communities at the time. Those competencies have expanded.