[Deputy Alan Shatter: ] The reason for that is simple. The establishment of the court of appeal will require the enactment of an implementation Bill that will provide for the court, the appointment of judges, their remuneration, and a number of other issues. That Bill cannot be enacted unless the people approve the amendment and even then, it will take some time from the enactment of that Bill to physically establish the new court. I hope to be in a position to outline the key elements of the implementation Bill in advance of the holding of the referendum, so that there is the opportunity for people to see what it is intended to provide for in the legislation. That Bill will be enacted in the first half of 2014 and all going well, I expect that the new court will be established in the autumn of 2014.
There will undoubtedly be some interest in the number of judges to be appointed to the court of appeal. The Courts and Civil Law (Miscellaneous Provisions) Bill 2013, which is currently before the Oireachtas, provides for the appointment of two additional judges to the Supreme Court, bringing its complement, including the Chief Justice, to ten. This will allow the Supreme Court to sit in two divisions, which I expect will allow it to make progress on the backlog of cases waiting to be heard. By the time the legislation providing for the establishment of the court of appeal is being processed, we will be in a better position to decide on the appropriate number of judges to appoint to the court of appeal. It should be noted in this context that the court of appeal will be taking over the work of the Court of Criminal Appeal. That court, which currently sits on an ad hoc basis, with a combination of Supreme Court and High Court judges, also has a backlog of cases. My expectation is that the court of appeal will sit in divisions with a dedicated criminal division, at least in the initial stages. Overall, my preliminary assessment is that the new court will require ten judges, nine ordinary and a President, but the final decision on this can only be made when we have a clearer picture of the backlog which will then exist. However, there is no point in creating a court of appeal and then starving it of resources. If all this exercise results in is people waiting four years for their cases to be heard by the court of appeal rather than by the Supreme Court, it will have been an entirely nugatory exercise and a failure. Our objective must be that after the court of appeal is established, appeals from the High Court will be heard within a reasonable timeframe.
In the normal course, I would now proceed to go through the Bill section by section and explain each section. Given the way that the Bill is drafted, with most of the content in Schedules, this would be very confusing. Instead, I propose to deal with the different issues in the Bill as units and explain where they occur and what they mean. I hope that will make it easier to understand and for Deputies to engage with the Bill and frame any questions they wish to ask or issues they wish to raise.
Section 1 provides for the definitions used in the Bill. The "establishment day" is the day the court of appeal is established on foot of the enactment of "the relevant law", which is the implementation Bill referred to just now. Section 2 deals with the commencement provisions and I will deal with those as I go through the Bill. Section 3 will be commenced on enactment of the Bill. That means that on enactment, the Constitution will be amended to include the text in Schedules 1 and 2. Schedule 1 provides for the addition of the court of appeal to the list of courts contained in Article 34.2. Schedule 2 is a new Article 34A which will be inserted on enactment, but which will not appear in the text of the Constitution once the court of appeal has been established. The new Article 34A provides for the enactment of a law, the implementation Bill to which I just referred, providing for the establishment of the court of appeal, as soon as practicable after the enactment of the Bill. That law will require the Government to appoint by order "the establishment day", which is the day the court of appeal is established.
Sections 4, 5 and 6 will commence on the day the court of appeal is established. Section 4 of the Bill refers to Schedule 3, which sets out a new section 4 to be inserted in Article 34 of the Constitution. A new section 4 provides that the court of appeal will have appellate jurisdiction from the High Court and such other courts as may be prescribed by law and the decisions of the court of appeal are to be final, except in the limited circumstances where an appeal may be allowed by the Supreme Court. The section further provides that no law may be enacted to exclude cases concerning the constitutionality of statutes from being heard by the court of appeal. Section 4 also provides for a renumbering of sections 4 and 5 of Article 34 to take account of the insertion of the new section 4.
Section 5 refers to Schedules 4 and 5 of the Bill. The amendment contained in Schedule 4 provides that the Supreme Court will hear an appeal from the court of appeal, provided that it is satisfied that it concerns a matter of general public importance or that it is necessary in the interests of justice that the Supreme Court hears the appeal. The amendment contained in Schedule 5 provides for the taking of appeals directly from the High Court to the Supreme Court in exceptional circumstances. This so-called "leapfrogging" provision is intended to allow the Supreme Court to hear cases which meet the criteria set out for appeals from the court of appeal to the Supreme Court, where there are exceptional circumstances that warrant it being heard by the Supreme Court. Exceptional circumstances could include cases where there is a particular urgency and where the Supreme Court is satisfied that the case would be accepted by it on appeal from the court of appeal in any event. Section 5 also provides for the renumbering of subsection 4° following the insertion of new subsection 4° in Article 34.4.
Subsections 2(f) and (g) of section 5 provide for the deletion of subsection 5 of Article 34.4. This subsection contains the so-called "one-judgment" rule. That rule provides that the Supreme Court may only issue one judgment when it hears challenges to the constitutionality of legislation. The application of the rule in these circumstances and in Article 26 referrals was considered in considerable detail by the Constitution review group, which recommended that the rule be deleted from Article 34 but retained in Article 26.
It is my strong view that justice is best served by giving the Judiciary the freedom, where they so desire, to give judgments, including minority judgments, on important matters concerning the constitutionality of our laws. For the time being, this reform, in line with the review group's recommendation, is limited to the Article 34. Therefore, if the referendum is carried, both the court of appeal and the Supreme Court will be able to issue multiple judgments in cases involving challenges to the constitutionality of laws, in the same way as in all other cases that come before them.
Section 6 deals with a number of other amendments to the Constitution consequential on the establishment of the court of appeal. These are listed in a table set out in Schedule 6.
Article 12.8 is to be amended to provide for the inclusion of the president of the court of appeal among the list of judges before whom the President of Ireland must make his declaration or oath. Article 14.2.2° is to be amended to provide for the replacement of the President of the High Court by the president of the court of appeal as the person who would substitute for the Chief Justice on the Presidential Commission, if the position of Chief Justice were vacant, or if he or she were unable to act. Paragraph (i) of Article 31.2 is to be amended to provide that the president of the court of appeal shall be an ex-officio member of the Council of State. Article 34.3.2° is to be amended to include the court of appeal, with the High Court and Supreme Court, in the list of courts to which an appeal concerning the constitutionality of legislation may be heard. The amendment to Article 34.6.2° - currently Article 34.5.2° - provides for the swearing of the judicial declaration by judges of the court of appeal. Article 35.1 is amended to provide for the appointment of judges of the court of appeal by the President. Article 35.4.1° is amended to provide for the removal of judges of the court of appeal in accordance with the provisions of that section. I will return to this provision later when I deal with section 7 of the Bill. Paragraph (i) of Article 36 provides for the regulation by law of the number of judges, their remuneration, age of retirement and pensions. The amendment adds the court of appeal to the list of courts covered by the provision. Article 40.4.3° deals with habeas corpus cases and is being amended to provide that where the High Court is satisfied that the person is being detained in accordance with the law but that the law is unconstitutional, the High Court shall refer the question of the validity of the law to the court of appeal rather than to the Supreme Court as at present.
Section 6 also refers to Schedule 7, which deals with how the cases that are before the Supreme Court when the court of appeal is established are to be dealt with. Schedule 7 contains a new Article 64 that is to be inserted into the Constitution on the establishment day, but is not to appear in texts of the Constitution published one year after that date. It provides that cases that have been heard or part heard by the Supreme Court on establishment day will be determined by the Supreme Court. Where a case has not been heard, the Supreme Court may transfer the appeal to the court of appeal, or a party to the appeal may apply to have the case transferred.