AN autumn referendum will pave the way for a new Court of Appeal that will stand between the High Courts and the Supreme Court, it emerged yesterday, as the Chief Justice Susan Denham launched a devastating critique of the highest court in the land, where some listed cases won't be heard until 2017.
Ms Denham described the situation in the Supreme Court and the Court of Criminal Appeal as "unsustainable" and "untenable".
She told a Law Society seminar attended by the Minister for Justice Alan Shatter: "It cannot be defended.
"The most recent appeals from the general list that have been given dates were certified in July 2008.
"All other things being equal and without any measure of priority, an appeal certified as ready yesterday is in danger of not being given a date until mid-2017 – effectively a four-and-a-half year waiting time."
Mr Shatter confirmed that the Government was working toward a referendum on the new Court of Appeal before the end of the year.
It may also encompass other constitutional changes, including an amendment to allow for the establishment of a distinct and separate system of family courts to streamline family law court processes and make them more efficient and less costly.
Other changes being considered by the Government are on the judicial declaration or oath.
Mr Shatter said: "The issue concerns whether there should be a secular oath and, if so, whether this should be instead of the religious oath that is currently set out in Article 34 or as an alternative to that oath."
The Government is also examining the referral of bills to the Supreme Court by the President under Article 26 of the Constitution.
The criticism of the delays in cases being heard in the highest court by Ms Denham was unusually trenchant
She said: "In 1968 there were seven high courts and one Supreme Court. In 2013, there are 36 High Courts, and two courts possible in the Supreme Court – two divisions of the Supreme Court.
"The only appellate court for these civil cases is the Supreme Court. The Supreme Court is required to process in two courts appeals from 36 High Courts.
"This creates a bottleneck in the Irish courts system. The Supreme Court does not have the capacity to process promptly the volume of civil cases appealed from the High Court."
Ms Denham said that delays in cases being heard impacted on the economy.
"Speedy resolution of disputes is important in a successful economy. In particular, at this time, there are many commercial cases before the courts."
But the landmark address also carried a warning that it was critically important that any changes envisaged or planned for the courts do not impinge on the independence of the judiciary.
"Any person in the State, who wishes to bring a case against, let us say, the Government, a minister, a State agency such as the HSE, a very powerful institution, or a very powerful person. . . can commence their proceedings.
"Then a judge will hear the case, determine the facts, apply the law without fear or favour and reach an independent decision. This independence of the judiciary is the right of the people in a democratic state," she said.
In his address, Mr Shatter also raised the possibility of reducing the number of constitutional challenges to the Supreme Court in relation to international agreements.
Last year, Independent TD Thomas Pringle lost his bid to stop the Government ratifying the European Stability Mechanism Treaty.
The Supreme Court ruled that the treaty did not involve a transfer of sovereignty which would require a referendum to ratify it.
Mr Shatter told the seminar: "The Government also wishes to consider whether it should be able to refer an international agreement to the Supreme Court to test its constitutionality.
"The idea here is that rather than holding referenda or alternatively taking the risk of a successful challenge to an agreement, the Government could have the agreement constitution-proofed by the Supreme Court."