With the distraction of the Seanad referendum this Friday, the proposal on setting up a new Court of Appeal has been overlooked quite a bit. For the first time in the Twitter era, Ireland's going to the polls on a matter which doesn't have an agreed hashtag. It's been that kind of campaign.
But not only has the Court of Appeal referendum suffered from a relative lack of oxygen: one of its analogous other effects has been even more overshadowed - and, for many, has only come to light in recent days.
Most amendments to create a new institution or abolish an existing one have to make a series of smaller, minor changes. For example, the abolition of the Seanad would entail over 60 changes, so that current references to 'either House of the Oireachtas' are changed to refer specifically to the Dail, as the only surviving house.
For the Court of Appeal, the analogous changes are mostly minor and innocuous. For example, one of the changes is that the President of the Court of Appeal will be the designated substitute for the Chief Justice if they are unavailable to sit in the Presidential Commission. (Most of you will probably not know what the Presidential Commission is; suffice it to say, you'll probably never need to worry about it, or who its members are, or who will act as a hypothetical substitute for any of its members).
However, there's one change being rolled into the Court of Appeal which is a little less minor, and which for many people has only become a concern in recent days. It's the proposal to scrap the 'one judgment' rule: the principle where the Supreme Court only issues one ruling when it's deciding the constitutionality of a law passed by the Oireachtas.
What's that all about, anyway?
To explain this idea in general terms: whenever the Supreme Court is asked to rule on whether a law is in keeping with the constitution, it only ever publishes ONE judgment, irrespective of how many judges have heard the case.
The notion is that in a question as important as the legitimacy of a law, there shouldn't be any space for lingering doubt or question marks - either the Supreme Court says the law is valid, or it doesn't - and the Supreme Court shouldn't be undermining its own ruling by signposting areas of that ruling that are open to debate.
The counter-argument to this is that the principle is redundant: given that rulings by the Supreme Court cannot be appealed any further, there's nothing to be feared by the publication of a judgment which disagrees with the 'official' one. There's also the concern that forcing five (or seven, or more) Supreme Court judges to agree on a single text could require them to omit substantial and legitimate points from the final ruling simply because there isn't a consensus around them.
The government perceives this change as a relatively minor one - which is why it's been rolled into the Court of Appeal referendum, without the decision to put it as a separate question - but in legal circles there is some concern about the impact that the proposal could have. Indeed, in the media in recent days there has been commentary from some people who'd be perfectly happy to set up a Court of Appeal, but who are leaning towards a No vote simply because of the impact that abolishing the 'one judgment' may have.
With that in mind, it might be helpful for voters to understand the nature of the 'one judgment' principle in the first place, and the exact circumstances under which it operates.
There's actually two 'one judgments' - and we're not scrapping both
As it stands, the Constitution demands the 'one judgment' rule in two areas:
- Article 26, which deals with cases where the President asks the Supreme Court to test the constitutionality of a proposed new law, and
- Article 34, which sets up the courts system and mentions that any appeal to the Supreme Court about the constitutionality of a new law should be ruled upon with a single judgment.
What's important to note is that the referendum taking place on Friday doesn't abolish the one judgment rule in both of those cases - it's ONLY abolished in cases regarding Article 34.
This means that when a case is sent to the High Court on the grounds that an existing law is unconstitutional, and that case ultimately ends up at the Supreme Court, the court may now issue multiple rulings.
However, in cases where the President has directly asked the Supreme Court to rule on the legality of a bill he hasn't signed yet, the Supreme Court would then issue only a single unified ruling.
Can you reach one conclusion about 'one judgment'?
There could be some justifiable arguments that this is inconsistent - why have the principle remain in one case, but not in the other?
However, the idea of scrapping it for Article 34 but not for Article 26 is one that's been around for 17 years.
An all-party Oireachtas review of the Constitution in 1996 examined the question at length and concluded that the Article 34 rule was "unsatisfactory in its operation and is apt to create anomalies" - but could not agree a common position on Article 26, with some members believing the special nature of direct referrals to the Supreme Court meant there was still some basis for a single ruling.
The full report of the 1996 group is over 400 pages in length, but for convenience I've pulled out the appropriate six pages into a separate PDF which you can find here. The pages contain a comprehensive weighing-up of the arguments for maintaining and scrapping the rule for both Articles 26 and 34, which might help you make up your mind before voting on Friday.
Of course, whether you agree with the committee's conclusions - and those being put forward by the government on Friday - are entirely up to yourself!
Gavan Reilly is Today FM's political correspondent. http://twitter.com/gavreilly
