It may pass largely unnoticed, stirring the passions of only the most ardent followers of arcane constitutional protocol, but tomorrow someone in Government will sign an order that will usher in a new era for the courts system.
In a referendum last year, 65 per cent of voters approved the establishment of a Court of Appeal, which is designed to ease a chronic backlog at the Supreme Court and allow that court to focus on cases of major importance. But the amendment approved by the people doesn't technically appear in the Constitution yet; it will be inserted tomorrow, all going to plan, when an order activating the section is signed and the new court comes into existence.
What happens next is a sequence of moves that have been choreographed for months. As soon as the new court is established, the automatic right of appeal from the High Court to the Supreme Court disappears. If someone urgently needs to review a High Court judge's decision, there has to be somewhere for them to go. So the Court of Appeal will need judges.
Within 24 hours of the establishment order being signed, the seven men and two women selected by the Government to preside on the new court will troop out to the Phoenix Park, where President Michael D Higgins will formally appoint them. They'll barely be out the door before President Higgins appoints eight judges to replace them on the High Court.
"Not only do the ducks have to be in a row, but they have to be in the right order before you start shooting them," said Mr Justice Frank Clarke of the Supreme Court, speaking about the establishment of the new court at an event organised by the UCD Law Society last week.
Two kinds of appeal
The new court will change the Supreme Court in ways that are not yet entirely clear. With the automatic right to appeal to the highest court gone, there will be two types of appeal to the Supreme Court: an ordinary appeal of a decision by the Court of Appeal, and a so-called “leapfrog” appeal that bypasses the Court of Appeal. For the first time, it will be for the Supreme Court itself to decide what appeals to entertain.
The Constitution offers some guidance: the court must be satisfied that the appeal involves a significant legal issue or that it is in the interests of justice that it be heard. What any of that means is for the judges to decide; expect a fair amount of argument in court over how these terms should be interpreted.
Critics of the proposal to create a Court of Appeal say it makes little sense to simply shunt the four-year backlog of cases to a new court without addressing the underlying reasons for the bottleneck. The real solution, the argument goes, is longer sittings, shorter hearings and more aggressive case management by the judges themselves.
The legislation setting up the new court explicitly authorises more hands-on management of cases from the bench. If the judges use this power, it will make a difference. It may even emerge that a large proportion of the backlog are simply cases that were parked in the long-term car park that was the Supreme Court by litigants whose only hope was to put off the final judgment in their case.
Shorter hearings – along the lines of the US Supreme Court, where each side gets as little as 15 minutes, for example – are more controversial. In his address to the UCD Law Society, Mr Justice Clarke argued that oral argument was a vital way of teasing out key points. “I can certainly say, from my experience, that there have been quite a few cases where my take on the case has shifted as a result of debate between the court and the barristers arguing the case,” he said.
Question of effect
One of the big questions, once the new court is bedded in and the backlogs cleared, is what real effect all of this will have on the Supreme Court. It won’t quite become a constitutional court, given that it will presumably hear important cases in all sorts of other areas as well, including commercial, property and criminal law, but it will certainly have more space and time in which to work.
If it really was such a bad thing that the Supreme Court was distracted from the most important cases – as advocates of reform always said – then it logically follows that the court hasn’t been as effective as it could be. Will the quality of judgments improve? Will a five-judge court (the long-term plan) be more cohesive and consistent in its thinking? Will we see more dissenting judgments from a court where split decisions have until now been relatively rare?
Most importantly, will we see shifts in the way the re-fashioned court reads the Constitution and applies it to major questions to come?
Ruadhán Mac Cormaic is Legal Affairs Correspondent