Alan Shatter's case for the establishment of a new court of appeal is made very starkly by the statistics for rulings of the Supreme Court last year. The court delivered itself of some 121 judgments, nearly twice as many as its brethren in the US, and nearly five times as many as appeals were laid before it (605) from the expanding caseload of the High Court. However commendable the productivity, the result is that appellants can expect to wait four years to have their case decided, while ten years ago it was a four-month wait.
Justice delayed is justice denied, and it makes unarguable sense in equity as well as economic efficiency to establish a new intermediary court, akin to that in most of our neighbours, to lift some of the appeals burden. The Minister for Justice’s referendum is welcome and deserves to get a smooth passage even if the idea of increasing judicial numbers sticks in the craw of sections of the public which see judges as pampered and aloof.
And yet, as the series this week by Ruadhán Mac Cormaic shows, broadly speaking we are well served by our Supreme Court. Citizens can take comfort from a largely non-ideological jurisprudence that has often set limits to state overreach, usually without the sort of groundbreaking judicial activism that could threaten legislators’ prerogatives .
Sometimes it has appeared to show a lack of understanding or sympathy with the real world of politics – Crotty, McKenna, and Abbeylara spring to mind – but where a tension arises between individual rights and politics it is clearly better to lean towards the former.
What most clearly still needs reform, as this paper has often argued, is the system of appointment of judges and their disciplining. With appointments at the gift of governments, albeit notionally from a list produced by the Judicial Appointments Advisory Committee, there has long been a perception that governments will favour their own supporters in bench appointments – whether true or not, and there is certainly considerable truth to it, the effect is to undermine the authority of the court.
Typically, however, this country’s favouritism is not really to do with any attempt to sway the politics of the court or to make it more sympathetic to a government, unlike the US’s highly politicised system. Indeed, academic research reported in the series suggests reassuringly that there is no correlation between judicial decisions and the party in power when a particular judge was appointed.
Rather, Irish political patronage is largely to do with that old-fashioned jobs for the boys culture that has infected Irish politics for so long. It is time the politicians let go.
Recent proposals from Mr Justice Frank Clarke for a judicial commission to oversee appointments, discipline and pay deserve not to be left moulder in a dusty Four Courts drawer.