Dáil Éireann debate -
Thursday, 14 Dec 1922

Vol. 2 No. 6

ADAPTATION OF BRITISH ENACTMENTS BILL. - OIREACHTAS SUBSTITUTED FOR PARLIAMENT.

The PRESIDENT

I move Clause 5, Sub-section 1, as follows:—

5.—(1) Every mention of or reference to Parliament or to both or each or either of the Houses of Parliament contained in any Act of the British Parliament having the force of law in Saorstát Eireann shall in regard to the doing or not doing of any act, matter or thing after the 6th day of December, 1922, in Saorstát Eireann be construed as a mention of or reference to both or each or either of the Houses or the corresponding House (as the case may be) of the Oireachtas and the expression "Parliamentary" in every such Act as aforesaid shall be construed accordingly.

Motion made, and question put:—"That Clause 5, Sub-section 1, stand part of the Bill."

Agreed.

The PRESIDENT

I beg to move Clause 5, Sub-section 2, as follows:—

Every mention of or reference to the presentation of an address to His (or Her) Majesty by both or each or either of the Houses of Parliament contained in any Act of the British Parliament having the force of law in Saorstát Eireann shall as from the 6th day of December, 1922, be construed and take effect as a mention of or reference to the passing of a resolution by both or each or either of the Houses or by the corresponding House (as the case may be) of the Oireachtas.

Motion made, and question put:—"That Clause 5, Sub-section 2, stand part of the Bill."

Agreed.

The PRESIDENT

I beg to move Clause 5, Sub-section 3, as follows:—

(3) For the purposes of this section Seanad Eireann shall be deemed to be the House of the Oireachtas corresponding to the Peers' House of the British Parliament and Dáil Eireann shall be deemed to be the House of the Oireachtas corresponding to the Commons' House of the British Parliament.

AN CEANN COMHAIRLE

There is an amendment by Deputy Johnson to Sub-section 3.

Mr. THOMAS JOHNSON

I suggest an amendment, not of great moment, perhaps, but it will help to prevent a possible misunderstanding. The amendment is:—

Section 5, Sub-section 3, line 45—"To insert after the word `Section,' `and subject to the limitations imposed upon the powers of Seanad Eireann by the Constitution of Saorstát Eireann.' "

The point of the amendment is that not knowing how many Acts of Parliament place special powers in the House of Peers or give that House special privileges we do not know what may be involved in the Clause, and Sub-section 3 as it stands might be taken to suggest that we are elevating the Seanad here to a position commensurate with that of the House of Lords as compared with the House of Commons in England. That, I think, ought to be avoided. Even though this amendment is not absolutely necessary, it at least emphasises the position that the Seanad in relation to the Oireachtas is not in the position of the House of Lords in relation to the House of Commons, or the Imperial Parliament as it is called. I beg to move this amendment.

The PRESIDENT

I do not think the amendment is necessary. An Act of Parliament cannot override or subvert in any way any Article of the Constitution.

Mr. THOMAS JOHNSON

I am quite prepared to agree that it is not necessary. But I think it is rather desirable that we should not leave a loophole for people reading that Act to say, "Well, this is a House of Lords on a small scale." I think we ought to disabuse the minds of the public in that matter. If the amendment is opposed I am not going to press it, but I would like it to be passed.

The PRESIDENT

I am afraid we will have to oppose it.

Amendment, by leave, withdrawn.

Motion made and question put: "That Sub-section 3 of Clause 5 stand part of the Bill."

Agreed.

The PRESIDENT

I move Sub-section (4) of Clause 5, which reads as follows:—

Notwithstanding anything to the contrary contained in this section, the expression "Act of Parliament" contained in any Act of the British Parliament having the force of law in Saorstát Eireann shall mean and include both Act of the British Parliament and Act of the Oireachtas.

Mr. DARRELL FIGGIS

Why in the last two lines should the words read as they do? Why should they not read: "Having the force of law ... shall mean ... an Act of the Oireachtas"? Why should an Act of the British Parliament be drawn into that reference?

The PRESIDENT

We take it in this case that you are wanting a description and the description is a British Act of Parliament. People can say if you arrest a man for maltreating his wife that it is under an Act of the British Parliament you are arresting him. We are defining that now by saying that it is an Act of Saorstát Eireann. I do not mean to say that it applies exclusively to that particular charge.

Motion made and question put: "That Sub-section 4, Clause 5, stand part of the Bill."

Agreed.

Clause 5 declared part of the Bill.

The PRESIDENT

I beg to move Clause 6, Sub-section (1) "Every power, authority and duty conferred or imposed by any Act of the British Parliament having the force of law in Saorstát Eireann on a Justice or on two or more Justices acting together shall as from the passing of this Act cease to be exerciseable or to be performed by such Justice or Justices and in lieu thereof as respects any act, matter or thing to be done or not done after the passing of this Act every such power or authority may be exercised and every such duty shall be performed by one Stipendiary Magistrate."

Mr. JOHNSON

I would like to draw particular attention to what perhaps is an oversight in this sub-section. We have no definition of "Stipendiary Magistrate." Am I right? It strikes me that perhaps this clause is premature unless we put in another clause or proviso stating that the term "Stipendiary Magistrate" shall be read as meaning the District Justices recently appointed under the resolution of the Provisional Parliament. We want something of that kind defined. We have no Stipendiary Magistrate and in the absence of such this clause would probably have no effect unless we have a defining clause.

Mr. DARRELL FIGGIS

There is another matter in that connection which I think arises here, though I do not quite see how it could be brought in myself in the wording. I think it is a matter of some importance, and I may say now in advance that I had intended to have raised it before, but withheld any question about it lest it might create any trouble outside in the process of the Courts. I understand that these recently appointed Stipendiary Magistrates were appointed under the Constabulary Act of, I think, 1834, or thereabouts, and they are appointed under the powers and forms of that Act. And under that Act a certain archaic oath is required, which was not put to these Stipendiaries, and it also required that a writ be issued by the Clerk of the Crown and Hanaper. I am not sure that their appointment under that law, unless some provision is made now, would not be appointments that would be held valid to such an extent that in respect of such commitments made by such Magistrates a writ of Habeas Corpus might issue. I think a phrase or two might very easily meet that matter and put it in order, as I suggest it is out of order.

Professor MAGENNIS

I suggest it is not out of order, because if the Deputy will read it again with sufficient consideration he will see the two sections together constitute a definition for our purposes of "Stipendiary Magistrate." The Stipendiary Magistrate is a magistrate on whom is now, by the operation of this, conferred all the jurisdiction hitherto exercised by certain Justices and certain Resident Magistrates. We are operating according to Article 73 of the Constitution, by virtue of which all previous Statutes referable to Ireland continue in force, and all those governing the appointments of Stipendiary Magistrates, for we had such an institution, continue to exist until repealed, and this I say is, by implication, in a manner or measure a definition of Stipendiary Magistrates.

Mr. DARRELL FIGGIS

I think the point raised by Deputy Magennis seems more an answer to Deputy Johnson's point rather than mine.

CATHAL O'SHANNON

I do not think the point raised by Deputy Magennis does answer Deputy Johnson. I think, if the clause stands as it is in the Bill, there will be a certain amount of confusion. Of course, it all depends on the powers and position and everything else of the late Magistrates. But take the case raised the other day and dealt with by the Minister for Home Affairs— the case dealing with the powers of Magistrates in committing lunatics. The Minister has made an arrangement by which, for instance, representatives on public bodies would act to some extent as Justices in such cases. What will be the position if this clause stands?

MINISTER for HOME AFFAIRS (Mr. K. O'Higgins)

I take it the effect of any arrangement I have made with regard to the members of Local Authorities would not have the effect of depriving a District Justice of any powers conferred on him by this clause, or Clause (2) in particular. It would merely mean that, in addition to the power of the District Justice, pending the appointment of Honorary Magistrates, two representatives of Local Authorities, on a doctor's certificate, might commit a lunatic. The force of Clause (2) is to enable one District Justice to perform any functions with regard to which in the past it was provided that two Justices sitting together would be necessary. For instance, as from the passing of this, licensing business could be done by a Justice sitting alone, and one of these District Justices could commit a lunatic to an asylum.

Mr. JOHNSON

My point lies wholly in this, whether a District Justice described in the resolutions authorising the appointment of these Justices is equivalent, and will be understood to be equivalent, to a Stipendiary Magistrate. If that is clear, and the Law Advisers consider it so, there is nothing more to be said; but it seems to me to require some little defining clause indicating that a Stipendiary Magistrate equals a District Justice.

Mr. O'HIGGINS

If the Dáil would consent I would like to move two minor amendments to this sub-section. One is in place of the words "Act of the British Parliament having the force of law in Saorstát Eireann" there be inserted the words "British Statute" in both sub-sections 1 and 2, and in place of the words "Stipendiary Magistrate" there be substituted the words "District Justice." I think those two amendments, involving no controversial or substantial point, but merely relating to a matter of phraseology, might be agreed to.

Amendment put and agreed to.

Mr. DARRELL FIGGIS

I press for consideration of the point that I raised. I am advised the point is one that ought to be rectified if confusion is not to ensue. Under the Act by which these Stipendiary Magistrates are to be appointed they must observe two qualifications. There must be a certain ridiculous form of Oath which they must take and there must be a certain writ of habeas corpus that must issue. Neither of these two qualifications has been fulfilled. Under the Act we have taken over the Justices that have now been appointed have not fulfilled the qualifications and are therefore not legally appointed. Therefore in taking over that Act these matters require to be revised. Now is the occasion to take advantage of the opportunity to make the necessary revision.

Mr. K. O'HIGGINS

There is one amendment consequential upon the one I have already moved, that I would now ask permission to move, and in doing so I would like to express regret that owing to the haste with which this Bill has been prepared, and certain other circumstances such as the absence on important business of the Law Officer, it has become necessary for us to move amendments of this kind. The amendment I would like to move is in paragraph 3 of this Section, in the paragraph (a) before the words "the expression" so that it would read—"Justice includes the expression a Justice of the Peace and does not mean or include a Divisional Magistrate of the City of Dublin, and nothing in this Section shall affect the powers, authority and duties of such Divisional Magistrates", and (b) the expression "District Justice" means a Magistrate appointed under the British Statute 6 and 7 William IV., Chapter 13, since the 6th day of December, 1922." It is defining the word District Justice. These small amendments get over a lot of Departmental difficulties and regularise the position a good deal for us, and I would be grateful if the Dáil would accept them.

Amendment put and agreed to.

Sub-section 1, as amended, put and agreed to.

The PRESIDENT

I beg to move Sub-section 2—"Every power, authority and duty conferred or imposed by any Act of the British Parliament having the force of law in Saorstát Eireann on a Resident Magistrate or on two or more Resident Magistrates acting together shall as from the passing of this Act cease to be exerciseable or to be performed by such Magistrate or Magistrates and in lieu thereof as respects any act, matter or thing to be done or not done after the passing of this Act, every such power or authority may be exercised and every such duty shall be performed by one Stipendiary Magistrate."

Professor MAGENNIS

Does Sub-section 3 confer upon one of the new District Justices the powers conferred by what was known as the Crimes Act or Coercion Act on two Resident Magistrates?

Mr. O'HIGGINS

No, there is no question of the powers under that Act attaching to the District Justices at all. It never did attach to them, and it would need specific legislation to do that now.

Professor MAGENNIS

I was afraid that it was intended to operate and that it was intended to confer these powers.

Mr. K. O'HIGGINS

If we thought it necessary to pass a Coercion Act we would not do it in that manner.

Question: "That Sub-section 2 as amended be passed," put and agreed to.

The PRESIDENT

I beg to move Sub-section 3: "In this Section the expression `Justice' includes the expression `Justice of the Peace,' and does not mean or include a Divisional Magistrate of the City of Dublin, and nothing in this Section shall affect the powers, authority and duties of such Divisional Magistrates."

AN CEANN COMHAIRLE

There is an amendment by the Minister for Home Affairs—a consequential amendment—to define District Justice.

Mr. K. O'HIGGINS

The Amendment I moved is to insert (a) before the words "the expression Justice" and to add (b) "That the expression District Justice means a Magistrate appointed under the British Statute of William IV. 6 and 7, Chapter 13, since the 6th day of December, 1922."

Mr. T. JOHNSON

I would suggest a verbal amendment which I think would make the Clause read better and that is to bring the words "since the 6th day of December" in after the words "Magistrate appointed." If the words came in in that part of the sentence the meaning would be clearer.

Mr. O'HIGGINS

Yes, I think it would be better.

Amendment agreed to.

Question: "That the Clause as amended be added to the Bill," put and agreed to.

Mr. K. O'HIGGINS

I do not move Clause 7.