Thirty-third Amendment of the Constitution of Ireland

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The Thirty-third Amendment of the Constitution is an amendment to the Constitution of Ireland which established a Court of Appeal to sit between the existing High and Supreme Courts, and take over the existing appellate jurisdiction of the Supreme Court. The amendment was effected by the Thirty-third Amendment of the Constitution (Court of Appeal) Act 2013, which was approved by the electorate in a referendum on 4 October 2013, and then signed into law by the President of Ireland, Michael D. Higgins on 1 November 2013.[1]

The Thirty-third Amendment makes appeals from the Court of Appeal to the Supreme Court subject to obtaining the Supreme Court's leave, which would only be granted in cases of general public importance or in the interests of justice.[2] This is intended to reduce the work load of the Supreme Court and allow it to concentrate on a smaller number of more important cases. Before the adoption of the amendment, the Supreme Court had mandatory jurisdiction—civil cases decided by the High Court were directly appealable to the Supreme Court, which had no choice over which appeals it heard.

The bill was passed through both houses of the Oireachtas on 24 July 2013 and was put to a referendum on 4 October 2013, at which 65.1% voted in favour, on a turnout of 39.15%.[3][4] The government expects the Court of Appeal to be in place by October 2014.[5][6]

Background[edit]

The Constitution provided for the establishment of two courts: the Supreme Court and the High Court. Other courts may be established by statute but may not question the constitutionality of legislation. The High Court is a court of first instance with general original jurisdiction, hearing the most important cases in civil law and criminal law (in the latter case sitting as the Central Criminal Court). The High Court also acts as an appellate court for cases initially heard before the Circuit Court, a court of limited jurisdiction.

The Supreme Court hears appeals from the High Court and the Court of Criminal Appeal and, less often, referrals of bills from the President under Article 26 of the Constitution. While the Supreme Court has the final authority to interpret the Constitution, many cases it hears are not constitutional in nature. In 1971 there were five Justices on the Supreme Court and seven on the High Court; in 2009 the respective figures were eight and 36.[7] The number of cases appealed to the Supreme Court has increased faster than the number of justices, resulting in a backlog of several years.[2] In 2006 the then government established a Working Group on a Court of Appeal, chaired by Susan Denham, who was then an ordinary Justice of the Supreme Court and became Chief Justice in 2010.[2][8] The Working Group's report was published in May 2009.[2][9]

The 2013 bill was published by Alan Shatter, the Minister for Justice and Equality, on 9 July 2013. It is along the lines of the recommendations of the 2009 Working Group's report.[2]

The bill makes one change not related to the new Court of Appeal: removing the "one-judgment rule" which provided that only one opinion could be given by the Supreme Court on constitutional cases. The deletion will allow divergent views, such as in concurring and dissenting opinions, to be published.[10] This change only applies to reviews under Article 34, not review of bills under Article 26.[11]

Changes[edit]

The substantive changes to the Constitution are in Article 34, which defines the court system.

Section Subsection Existing text New text Section of bill effecting
1 Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public. No change
2 The Courts shall comprise Courts of First Instance and a Court of Final Appeal. The Courts shall comprise:
i Courts of First Instance;
ii a Court of Appeal; and
iii a Court of Final Appeal.
3(a,b)
3 1°-4° Describes the Courts of First Instance, including the High Court No change
4 new) 1°–3° New section
1° The Court of Appeal shall—
i save as otherwise provided by this Article, and
ii with such exceptions and subject to such regulations as may be prescribed by law,
have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.
2° No law shall be enacted excepting from the appellate jurisdiction of the Court of Appeal cases which involve questions as to the validity of any law having regard to the provisions of this Constitution.
3° The decision of the Court of Appeal shall be final and conclusive, save as otherwise provided by this Article.
3(c,d)
5 [was 4] The Court of Final Appeal shall be called the Supreme Court. No change
5 [was 4] The president of the Supreme Court shall be called the Chief Justice. No change
5 [was 4] The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law. The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—
i the decision involves a matter of general public importance, or
ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.
5(2)(a,b)
5 [was 4] New section Notwithstanding section 4.1° hereof, the Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the High Court if the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal to it, and a precondition for the Supreme Court being so satisfied is the presence of either or both of the following factors:
i the decision involves a matter of general public importance;
ii the interests of justice.
5(2)(c,d)
5 [was 4] 5° [was 4°] No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution. No change except renumbering 5(2)(e)
5 [was 4] The decision of the Supreme Court on a question as to the validity of a law having regard to the provisions of this Constitution shall be pronounced by such one of the judges of that Court as that Court shall direct, and no other opinion on such question, whether assenting or dissenting, shall be pronounced, nor shall the existence of any such other opinion be disclosed. Deleted 5(2)(f,g)
5 [was 4] The decision of the Supreme Court shall in all cases be final and conclusive. No change
6 [was 5] Prescribes the oath of office for judges No change

The other changes are:

Schedule 2
inserts a transitory article 34A to mandate the establishment of the new Court of Appeal by an ordinary Act of the Oireachtas.
Schedule 6
scattered consequential amendments to refer to the new Court wherever the Supreme Court and High Court are currently mentioned.
Schedule 7
inserts a transitory article 64 to allow appeals from the High Court pending before the Supreme Court at the creation of the Court of Appeal to be transferred to the new Court.
Schedule 8
a consequential amendment which would only have been relevant if the Seanad Abolition Bill had become law. That bill was put to referendum the same day as this bill, and was rejected.

The President of the High Court will continue to be ex officio a member of both the Council of State and the Supreme Court (the latter provision is by statute, not under the Constitution).[11] The President of the new court will also be a member of both bodies.[11] The existing Court of Criminal Appeal will be merged with the new Court of Appeal.[11] The government plans to reduce the number of Supreme Court judges from ten to five as sitting justices retire.[12]

Debate[edit]

The bill was supported by all parties in the Dáil and in the Seanad,[13][14] including the four largest parties, Fine Gael, Labour, Fianna Fáil, and Sinn Féin, all of which ran low-key campaigns.[15] On 1 October 2013 all four issued a joint statement urging a Yes-vote.[16]

A referendum commission was established, as required by law, to oversee the referendum to be held on 4 October 2013. The referendum commission's dedicated website was launched on 5 September 2013.[17][18]

Alan Shatter expressed concern that the referendum would be overshadowed by the simultaneous referendum proposing abolition of the Seanad.[19] Shatter also criticised RTÉ's coverage of the referendum, suggesting it avoided discussing the issue at all for fear of violating its obligation of neutrality.[20]

Elizabeth Dunne, the High Court judge who chaired the referendum commission, expressed concern about the lack of public debate on the Court of Appeal proposal.[21]

In a speech on 27 September, Chief Justice Susan Denham described the current backlog of court cases as "unsustainable" and the referendum as "an invitation for citizens to enable the superior courts to work better"; she did not explicitly advocate a yes vote, because separation of powers required judges to be impartial.[22] Michael Williams, a solicitor opposed to the referendum, felt the speech "stepped across the line" into politics.[23] The Law Society of Ireland, the professional body for solicitors, recommended that its members advise clients to vote yes.[24][25] The Bar Council of Ireland, the body for barristers, also called for a Yes-vote.[26][27] The Irish Farmers' Association advised farmers to support the bill to reduce delays in litigation.[28][29]

Michael Williams wrote in The Irish Times that the Court of Appeal was no substitute for a more fundamental reform of the Irish judicial system, which he said was unlikely as it would challenge the vested interests of lawyers.[30] Mattie McGrath expressed a similar viewpoint and called for a No-vote.[31] While Williams favours removing the one-judgment rule, he criticised the joining of that with the Court of Appeal in a single amendment requiring a single referendum.[30] Seth Barrett Tillman, a lecturer in law at National University of Ireland, Maynooth, considered that, since the Court of Criminal Appeal had been created without a constitutional amendment, the same ought to be possible for a Civil Court of Appeal.[32] Lawyer Paul Anthony McDermott suggested the delays in hearing cases were caused by too many litigants rather than too few judges or courts.[33] Diarmuid Rossa Phelan, a prominent Irish barrister and law professor at the School of Law at Trinity College, Dublin, suggested that giving the Supreme Court absolute discretion to select which cases to hear was dangerous and would need to be monitored for mission creep.[34] The Master of the High Court, Edmund Honohan, described the proposal as a "crude device" that would lead to an increase in litigation and in interlocutory appeals, and claimed the Supreme Court's backlog could be cleared by addressing "case management, time management, paper management, submissions and so forth".[35]

The Irish Times noted that "few voices" were "raised against the amendment" and that awareness of the issues was hampered by the prohibition of publicly funded advocacy campaigning; it recommended a Yes-vote.[36] Ruadhan Mac Cormaic, legal affairs correspondent for the Times, reported that many lawyers were privately sceptical that the court would reduce the backlog, and that if its cases were perceived tediously technical it might struggle to recruit high-quality judges.[6]

Opinion polls[edit]

An opinion poll on 10–17 September 2013 asked how well voters felt they understood the issue. Of respondents, 6% said "very well", 9% "quite well", 30% "to some extent", 21% "not particularly well" and 33% "not at all".[37]

Likely voting intentions
Date Source Polling agency Sample size Yes No Undecided Ref
27–28 September 2013 The Irish Times Ipsos MRBI 1,000 43% 14% 44% [38]
10–17 September 2013 The Sunday Times Behaviour & Attitudes 934 59% 16% 25%[t 1] [37][39][40]
Note
  1. ^ 22% don't know; 3% won't vote

Voting card error[edit]

Dublin City Council apologised after using an out-of-date electoral register file to generate polling information cards; this resulted in 35,000 voters and deceased people receiving incorrect information about where to vote.[41] Cards were regenerated using the correct data.[41]

Results[edit]

National[edit]

Thirty-third Amendment of the Constitution Bill 2013[42]
Choice Votes  %
Referendum passed Yes 795,008 65.16
No 425,047 34.84
Valid votes 1,581,998 98.4
Invalid or blank votes 20,080 1.6
Total votes 1,240,135 100
Registered voters/turnout 3,167,484 39.15

By constituency[edit]

The following were the results by constituency:[3][43]

Constituency Electorate Turnout  % Turnout Yes  % Yes No  % No Spoilt
Carlow–Kilkenny 111,304 41,424 37.22 25,902 63.7 14,759 36.3 763
Cavan–Monaghan 100,434 34,630 34.48 21,050 62.14 12,827 37.86 753
Clare 79,295 30,547 38.52 19,385 64.67 10,591 35.33 571
Cork East 81,534 31,788 38.99 19,367 62.04 11,852 37.96 569
Cork North–Central 74,828 28,917 38.64 17,811 62.69 10,599 37.31 507
Cork North–West 62,118 26,132 42.07 16,076 62.68 9,571 37.32 485
Cork South–Central 90,662 38,356 42.31 24,837 65.67 12,986 34.33 533
Cork South–West 59,813 25,351 42.38 15,764 63.33 9,128 36.67 459
Donegal North–East 58,032 16,966 29.24 9,361 56.29 7,270 43.71 335
Donegal South–West 61,656 18,786 30.47 11,978 65.01 6,448 34.99 360
Dublin Central 55,018 20,305 36.91 13,431 67.15 6,571 32.85 303
Dublin Mid–West 65,093 24,857 38.19 16,194 65.94 8,363 34.06 300
Dublin North 69,488 28,239 40.64 19,258 68.93 8,682 31.07 299
Dublin North–Central 53,884 25,972 48.2 17,325 67.54 8,326 32.46 321
Dublin North–East 58,444 25,501 43.63 16,856 66.83 8,366 33.17 279
Dublin North–West 50,943 18,506 36.33 11,846 64.87 6,414 35.13 246
Dublin South 101,884 46,821 45.96 33,959 73.36 12,334 26.64 528
Dublin South–Central 79,173 30,178 38.12 19,740 66.25 10,055 33.75 383
Dublin South–East 55,442 22,478 40.54 17,020 76.61 5,195 23.39 263
Dublin South–West 69,879 26,519 37.95 17,541 66.85 8,700 33.15 278
Dublin West 62,192 24,234 38.97 16,266 67.79 7,728 32.21 240
Dún Laoghaire 79,207 36,562 46.16 26,209 72.59 9,899 27.41 454
Galway East 82,588 29,812 36.1 18,269 62.62 10,907 37.38 636
Galway West 91,994 32,806 35.66 21,373 66.42 10,806 33.58 627
Kerry North–West Limerick 61,998 22,995 37.09 13,831 61.49 8,663 38.51 501
Kerry South 56,532 22,158 39.2 13,602 62.71 8,090 37.29 466
Kildare North 75,043 30,851 41.11 20,295 66.61 10,175 33.39 381
Kildare South 57,454 21,899 38.12 13,636 63.14 7,959 36.86 304
Laois–Offaly 106,057 39,600 37.34 24,416 62.61 14,584 37.39 600
Limerick 65,186 25,026 38.39 15,062 61.4 9,468 38.6 496
Limerick City 64,909 24,645 37.97 16,061 66.26 8,178 33.74 406
Longford–Westmeath 85,791 31,602 36.84 19,146 61.79 11,839 38.21 617
Louth 102,088 38,720 37.93 24,372 63.88 13,783 36.12 565
Mayo 94,860 36,023 37.97 23,596 66.83 11,713 33.17 714
Meath East 64,440 24,070 37.35 15,466 65.01 8,324 34.99 280
Meath West 62,891 22,526 35.82 13,785 62.22 8,372 37.78 369
Roscommon–South Leitrim 59,006 25,333 42.93 15,197 61.23 9,623 38.77 513
Sligo–North Leitrim 60,228 23,960 39.78 14,631 62.34 8,839 37.66 490
Tipperary North 62,233 26,608 42.76 16,571 63.56 9,502 36.44 535
Tipperary South 56,060 23,375 41.7 15,262 66.54 7,673 33.46 440
Waterford 76,442 31,092 40.67 18,825 61.68 11,697 38.32 570
Wexford 106,329 41,157 38.71 26,478 65.54 13,924 34.46 755
Wicklow 94,932 42,808 45.09 27,958 66.22 14,264 33.78 586
Total 3,167,384 1,240,135 39.15 795,008 65.16 425,047 34.84 20,080

Enactment and implementation[edit]

The referendum returning officer issued a provisional result certificate of the votes, which was published in Iris Oifigiúil on 8 October 2013.[44] As no petition challenging the results was lodged at the High Court by 15 October, the certificate became final.[45] President Michael D. Higgins signed the bill into law on 1 November 2013, after returning from a state visit to Central America.[1][46]

Before the new court can come into being, statutory laws regulating its operation must be passed, and judges recruited.[6] This process was initially expected to be complete by October 2014.[6] Seán Ryan was announced as the President-designate of the new Court on 25 February 2014.[47] The Court of Appeal Act 2014 was introduced as a government bill on 2 July 2014, passed by the Dáil on 15 July and the Seanad on 16 July,[48] and signed by the President on 20 July.[49] On 23 July the government named six High Court judges who would be transferred to the new Court under Ryan.[50] The Court is expected to be in operation, and the 2014 Act commenced, by the end of 2014.[50][reference incorrect]

References[edit]

Footnotes[edit]

  1. ^ a b "Legislation Signed by President Higgins". Dublin: Office of the President. Retrieved 4 November 2013. 
  2. ^ a b c d e "Shatter publishes Bill to amend the Constitution to provide for Court of Appeal". MerrionStreet.ie. Irish Government. 9 July 2013. Retrieved 9 July 2013. 
  3. ^ a b "Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013". Referendum Ireland. 5 October 2013. 
  4. ^ "Referendum on Abolition of Seanad and Court of Appeal to be held on Friday 4th October". MerrionStreet.ie. Government of Ireland. 24 July 2013. Retrieved 24 July 2013. 
  5. ^ Kelly, Fiach (7 October 2013). "New court will be up and running by autumn 2014". Irish Independent. Retrieved 9 October 2013. 
  6. ^ a b c d Mac Cormaic, Ruadhan (6 October 2013). "Yes vote in ‘the other referendum’ brings relief for court’s champions". The Irish Times. Retrieved 9 October 2013. 
  7. ^ Working Group on a Court of Appeal 2009, p.6
  8. ^ Working Group on a Court of Appeal 2009, p.9
  9. ^ Working Group on a Court of Appeal 2009, p.1
  10. ^ Mac Cormaic, Ruadhan (24 July 2013). "Attention turns to Áras as President awaits abortion Bi". The Irish Times. Retrieved 25 July 2013. 
  11. ^ a b c d "Written Answers Nos. 1024 - 1041: Constitutional Amendments". Dáil debates. 18 September 2013. p. 109. Retrieved 20 September 2013. 
  12. ^ Mac Cormaic, Ruadhan (3 October 2013). "Government plans to halve size of Supreme Court". The Irish Times. Retrieved 4 October 2013. 
  13. ^ "Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013: Second Stage". Dáil debates. 11 July 2013. Retrieved 5 September 2013. 
  14. ^ "Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013: Second Stage". Seanad debates. 24 July 2013. Retrieved 5 September 2013. 
  15. ^ "The Court of Appeal referendum is one thing all political parties are agreed on". Retrieved 20 September 2013. 
  16. ^ Mac Cormaic, Ruadhan (2 October 2013). "In an unusual move, parties unite to call for Yes vote on appeals court". The Irish Times. Retrieved 2 October 2013. 
  17. ^ "Referendum Commission begins information campaign". RTÉ.ie. 5 September 2013. Retrieved 6 September 2013. 
  18. ^ "Court of Appeal – main changes". Dublin: Referendum Commission. September 2013. Retrieved 6 September 2013. 
  19. ^ O'Halloran, Marie (25 July 2013). "Warning that public will be unaware of second referendum on a Court of Appeal". The Irish Times. Retrieved 5 September 2013. 
  20. ^ "Shatter concerned at RTÉ coverage of court of appeal referendum". Retrieved 20 September 2013. 
  21. ^ Brennan, Michael (5 September 2013). "Referendum Commission concerned about lack of debate on plan to set up court of appeal". Irish Independent. Retrieved 5 September 2013. 
  22. ^ Mac Cormaic, Ruadhan. "Supreme Court backlog unsustainable - chief justice". The Irish Times. Retrieved 27 September 2013. 
  23. ^ Phelan, Shane (28 September 2013). "Chief Justice courts controversy by intervening in appeals referendum". Irish Independent. Retrieved 1 October 2013. 
  24. ^ Mac Cormaic, Ruadhan (26 September 2013). "Solicitors urged to ask clients to vote Yes in Court of Appeal vote". The Irish Times. p. 1. Retrieved 26 September 2013. 
  25. ^ McCourt, James (24 September 2013). "Vote ‘Yes’ for a Court of Appeal". Law Society of Ireland. Retrieved 26 September 2013. 
  26. ^ Mac Cormaic, Ruadhan (28 September 2013). "Barristers call for Yes vote". The Irish Times. Retrieved 1 October 2013. 
  27. ^ "Bar Council Calls for Yes Vote in Court of Appeal Referendum" (Press release). Bar Council of Ireland. 27 September 2013. Retrieved 1 October 2013. 
  28. ^ "IFA urges farm families to vote yes in court of appeal referendum" (Press release). Irish Farmers' Association. 26 September 2013. Retrieved 27 September 2013. 
  29. ^ Healy, Alison (27 September 2013). "National Ploughing Championships to return to Stradbally". The Irish Times. Retrieved 27 September 2013. "Earlier today, the Irish Farmers’ Association (IFA) urged farm families to vote Yes in the Court of Appeal referendum." 
  30. ^ a b "Court of Appeal is no substitute for radical reform of costly system". Retrieved 20 September 2013. 
  31. ^ "McGrath calls for no vote on court of appeal". Retrieved 20 September 2013. 
  32. ^ "Shatter arguments for Court of Appeal ’incoherent’, says law lecturer". Retrieved 20 September 2013. 
  33. ^ "New Court of Appeal not the solution says constitutional lawyer". Irish Examiner. 1 October 2013. Retrieved 1 October 2013. 
  34. ^ Phelan, Diarmuid Rossa (30 September 2013). "Supreme Court’s control of access to itself needs to be watched". The Irish Times. Retrieved 1 October 2013. 
  35. ^ Mac Cormaic, Ruadhan (30 September 2013). "Appeal court proposal a ‘crude device’, says High Court master". The Irish Times. Retrieved 2 October 2013. 
  36. ^ "A court of appeal". The Irish Times. 27 September 2013. Retrieved 27 September 2013. 
  37. ^ a b McShane, Ian (September 2013). "J.4769: Sunday Times Opinion Poll". Behaviour & Attitudes. pp. 3, 17. Retrieved 22 September 2013. 
  38. ^ Beesley, Arthur (30 September 2013). "Seanad referendum set to pass on cost argument". The Irish Times. Retrieved 30 September 2013. 
  39. ^ O'Brien, Stephen (21 September 2013). "Tweet 381465960860770304". Twitter. Retrieved 22 September 2013. 
  40. ^ "New poll suggests Labour Party experiencing an increase in support". RTÉ.ie. 21 September 2013. Retrieved 22 September 2013. 
  41. ^ a b Carty, Ed (2 October 2013). "Polling cards to dead error corrected". Irish Independent. Retrieved 3 October 2013. 
  42. ^ "Referendum Results". Department of the Environment, Community and Local Government. Retrieved 14 August 2014. 
  43. ^ "Court of Appeal Results". The Irish Times. 5 October 2013. 
  44. ^ Ní Fhlanghaile, Ríona (8 October 2013). "Constitutional Referendum". Irish Oifigiúil (Government of Ireland) (81): 1262–64. 
  45. ^ Referendum Act 1994, sec.42 (2)
  46. ^ "Week beginning Monday, 28 October 2013". Presidential engagements. Dublin: Office of the President. Retrieved 7 November 2013. 
  47. ^ Mac Cormaic, Ruadhán (26 February 2014). "High Court judge Seán Ryan set to become president of new Court of Appeal". The Irish Times. Retrieved 25 July 2014. 
  48. ^ "Court of Appeal Bill 2014: Committee and Remaining Stages". Seanad Éireann debates. Oireachtas. 16 July 2014. Retrieved 25 July 2014. 
  49. ^ "Court of Appeal Bill 2014 (Number 68 of 2014)". Bills. Oireachtas. Retrieved 7 July 2014. 
  50. ^ a b McGee, Harry (24 July 2014). "Nine judges appointed, promoted in shake-up of courts". The Irish Times. Retrieved 25 July 2014. 

External links[edit]