I move amendment No. 1: "In line 24, immediately after the word ‘than,' to insert the word ‘five.'" You will find that there is a blank in the print of the Bill for the period within which the Act is to become operative. It is suggested that five months would allow a reasonable time for the preliminary organisation of the Courts. That would be the maximum.
TUARASGABHAIL I DTAOBH CUR AMACH RITEACH I GCOIR BAILE ATHA CLIATH THEAS. - THE COURTS OF JUSTICE BILL, 1923.—COMMITTEE.
I dtaobh an Ailt seo, ba mhaith liom a rádh go mba cheart an teideal a bheith i nGaedhilg agus teideal gach Breitheamh an agus gach Cúirt fósta. Mar tá sé fé láthair ins an mBille, ní fhuil teideal Gaedhealach ach ar aon Bhreitheamh amháin— an Priomh-Bhreitheamh. Mar gheall ar sin, molfainn do'n Uachtarán an Alt seo agus Alt a cúig a athrú agus teidil Gaedhealach a chur isteach in ionad na dteideal atá ann fé láthair. What I have said in regard to this Section would also apply to Section 5. It is only right, in my opinion, that Irish titles should be given to all the Judges in the Courts. It is within our knowledge that the title Dáil Eireann, is now not looked upon as a translation of anything. That is because it was adopted right from the beginning. We have a case in point in the Gárda Siothchána. We hear people talking about a force called the Civic Guard, which does not really exist. I suggest that if we put in here the Irish titles and use them right from the beginning, they will come to be known and to be used by everybody as a matter of course. I do not presume to suggest what the titles should be, but I would urge the President to refer the matter to some of the Irish scholars whom he has at his disposal here, and to look into the question as to whether or not Irish titles for all the Judges of the Courts should not be designed and used right from the beginning.
Táim ar aon intinn leis an Teachta ar an gceist seo. Creidim go bhfuil Coiste ag obair fé láthair ag socrú na n-ainmneacha nGaodhalach. Sin é an fáth nach bhfuil na h-ainmneacha i nGaedhilg ins an mBille go fóill. Nuair a socróchar na h-ainmneacha cuirfear isteach iad.
An bhfuilir sásta le sin?
I would like to put one question, with regard to Section 4, that is more or less applicable to many other parts of this Bill. The Bill has been drafted upon the report of the Judicial Committee and, unfortunately, the drafting in connection with the Bill is so nearly like, in general essentials, the report itself, that fundamental matters that ought to be provided for are not provided for at all. I take this Section 4 as an instance of what prevails in many other parts of this Bill (Section 4 quoted). The moment this Act is passed the old Judges cease to exist, because there is no Court in respect of which they can continue to exist until all of them, or some of them, are transferred to the new Court that has been created. But it is equally true that all the other officers of the Court are dispensed with. This Clause creates a new Court and attaches to it six judges, but attaches to it no other officers whatever. Neither the Registrar nor any of the other permanent officers is provided for. Of course, it will be said that rules of procedure at some subsequent date will provide the officials, but between the enactment of this Act and the adoption of these rules of procedure, there will be no officers for these Courts whatever. That is a fact that, I think, Deputies here little suspect. I think I am correct in saying that this matter was drawn to the attention of the Ministry in the last Dáil by Deputy Fitzgibbon, who intended to have raised it very forcibly on this occasion. Not only will there be no officers, in the ordinary static meaning of the word, but no officers in the general sense in which solicitors are officers of the Court. No provision has been made for them.
There is an amendment down in connection with that.
I am dealing with Section 4. Is there an amendment to that?
We have an amendment which deals with solicitors remaining officers of the Court.
I am dealing with this particular Section, and I do suggest, in respect of Section 4, that when the new Court has been created and the Judges have been attached to the Court, all the officers of that Court should, at the same time and in the same words, be created, in order that on the enactment of this Section the entire High Court shall come into being fully equipped not only in respect of Judges, but in respect of all the other officers, who are just as essential a part of the Court.
I take it the Deputy has not read the whole of the amendments. If the Deputy had read the whole of the amendments he would have found provision for what he is addressing himself to the Dáil about. On page 13 of the amendments, Part 5, Miscellaneous Transitory Provisions. he will find this matter dealt with.
I am sorry. That is a new body of amendments. I had the old list of amendments in my hand and I had not read the new list.
I beg to move: "In lines 21 and 23 to delete the word `a' and to insert in lieu thereof in each line the words `an additional'." The object of this amendment is to make it clear that the ex-officio Judges are in addition to and not included in the Judges mentioned in Sections 4 and 5.
It may have come under the notice of some Deputies that by an oversight I tabled an amendment which was, of course, out of order, dealing with the later section setting out the remuneration of those Judges. That was, to be more accurate, Section 14. The purpose I had in view in that amendment was not so much the fixation of a salary as bringing under notice a doctrine. It occurs to me that that doctrine could be brought under notice quite as effectually as a criticism of Section 7. We have here two orders of Judges of the higher jurisdiction. One of them is, in a sense, an inferior order to the other, and yet the onerous and highly special duties of the higher orders, to wit, those of the Supreme Court Judges, are to be discharged on occasions by Judges of the High Court, by Judges of the Court of first instance. There is to be a distinction between them in regard to salary and also to precedence, and yet it is contemplated that they may discharge the same duties under the same responsibilities. I would respectfully suggest that it would be a slight improvement of a very admirable measure if the Judges of the Supreme Court were kept apart and their duties reserved to the Judges of that special class. Two very different sets of endowment or human quality are called for in regard to these two orders. A Judge of the Court of first instance is largely dealing with juries, dealing with counsel who are arguing matters of fact as well as of law in the presence of juries. His knowledge of human nature enables him to appreciate by the demeanour of a witness under examination the credibility or otherwise of the testimony submitted, the power of handling counsel, and of discharging some of those duties, which you yourself, Sir, so excellently discharged—these call for a particular kind of training, and they are looked for in an advocate in the Courts. On the other hand, special aptitude and experience in the procedure of the Supreme Court are required to deal with more abstract things and with critical questions of law and the interpretation of law. The type of training and experience that fits a man for the position of a Supreme Court Judge is very special and this interchangeability of the two seems to me to be somewhat of a blot on the Bill. A Judge of the Court of first instance might very well be a part of the constitution of the Court of Appeal, but that he should, under certain circumstances, officiate as a Judge of the Supreme Court seems to me to be highly undesirable. I would press that upon the attention of the Minister in charge of the Bill in the hope that the matter will be re-considered.
The justification for this arrangement is that we cannot afford to set up a larger Court of Appeal. If it were possible it would have been desirable to get a Court of Appeal quite independent from what the Deputy calls the inferior Courts by having a larger number of ordinary Judges. This particular practice is not unknown in this country. It may not be at all necessary to resort to it, and I should say, from all the expressions of opinion which we have got on this Bill, there must be a plethora of useful material out of which it may be possible to man the Bench, and if it is well-manned in the inferior Courts the necessity for an appeal to the Superior Courts may not arise so often in the future.
I move: "In line 47 to insert after the word `addressed' the words `officially by titles in Irish'." I have been anticipated by Deputy O'Connell to some extent in the idea and spirit of this amendment. My purpose was to draw attention incidentally to the letter addressed by the President to the Judicial Committee on whose report much of the present Bill was founded and, if you will permit me, I will read it.
"In the long struggle for the right to rule in our own country there has been no sphere of the administration lately ended which impressed itself on the minds of our people as a standing monument of alien government more than the system, the machinery, and the administration of law and justice, which supplanted in comparatively modern times the laws and institutions till then a part of the living national organism. The body of laws and the system of judicature so imposed upon this nation were English (not even British) in their seed. English in their growth, English in their vitality. Their ritual, their nomenclature, were only to be understood by the student of the history of the people of Southern Britain. A remarkable and characteristic product of the genius of that people, the manner of their administration prevented them from striking root in the fertile soil of this nation."
Our determination was to keep Ireland Irish and, just as a beginning has been made in the Dáil and had already been made in the University by promoting, or attempting to promote, the general use of the ancient language of the country, it is desirable that in the law courts especially a beginning should be made to use the national language for business purposes. It will be in the recollection of Deputies that not very long ago one of the Courts refused an affidavit in Irish unless it were stamped again, and we had a debate on the subject in the Third Dáil.
I do not want to repeat what I said then, but I may briefly say that I drew a parallel between the situation here and what was the case of the Anglo-Saxon under the Norman settlement. All the respectable people during the Norman period used Norman Franch. It was the language of the higher clergy. Above all it was the language of the Law Courts. In that way the native speech of the people was supplanted. It is most desirable that in the education of the barrister and solicitor, Irish should be included, and as an inducement to that the purpose here was to set up the practice, a very small thing, of addressing Judges by Irish titles in terms of respect of Irish character. On consideration of the amendment I feel satisfied that, inasmuch, both in the recommendation of the Judicial Committee, and further in the later section of the Bill setting out the constitution of the rule-making authority and the matters to be dealt with by the rule-making authority, there is provision taken which ought to be deemed sufficient provision for arranging under the form of rules and regulations the title and mode of address. Therefore, I would ask permission to withdraw this amendment inasmuch as it is unnecessary for no other purpose than the purpose of propaganda, the purpose for which I used it just now.
With the permission of the Dáil, I wish to withdraw the new Sub-Section to be inserted after Section 12. I find there is an article, 68 of the Constitution, whereby the safeguard I sought to embody has already been provided. The amendment is, under the circumstances, superfluous.
I beg to move to delete the section and to substitute therefor:—
"Every Judge of the High Court and of the Supreme Court shall on appointment be duly sworn in manner to be determined in manner appointed by Rules to be made under this part of this Act."
I may seem, by the repetition of this amendment through the three parts of the Bill, to be particularly bent upon the administration of an oath. My objection—I should put it in this way— is rather to the precise form of declaration, inserted in the Bill. I want something which will mark the solemnity of the appointment of a Judge, and in that way shall be indicative of the high responsibility attaching to the office, something to impress the popular imagination with the character of the Court as the administrative instrument of law and in fact as the protection of whatever of civilisation we can achieve. With all respect I submit that this declaration savours rather of the kind of formula which anyone appointed to a minor office might repeat—his undertaking to do his best while in office and that at the end of the term it shall not be a reproach against him that he did not do his best. I shall be told, no doubt, that the whole trend in recent years is against the taking of an oath on the assumption of public offices. That is a fact, I know, but it is precisely because it is a fact that I wish to resist the tendency in so far as regards Ireland at any rate. In England the so-called education that prevails there has been productive of an attitude of mind which is now politely called agnosticism. People have thrown over religious beliefs, and politeness requires that those who still cling to religion in some form or another should speak as if they had none. If we are casting away English traditions in other respects why should we go out of our way to adopt them now? We are doing away with the old Courts and old procedure. Is it not more in consonance with the tradition of our own past that God and His government of the world should be recognised on solemn occasions such as are dealt with here? No doubt men will take an oath intending to interpret it according to their own peculiar fashion. There is no binding declaration that could be framed that would have a coercive force over those who are unconscionable. On the other hand it will have a binding force. It will have even a useful force inasmuch as those who listen to the judgment of a Judge will remember that he has solemnly called upon God to witness that he administers the law of the land without fear, favour or affection between all the citizens, and they will recognise at any rate in some measure that he is there not as the mere private individual they know him outside the precincts of the Court, but officially clothed with more than ordinary office and discharging in the name of the State one of its highest functions as a sacred trust. It is as part of the ritual and impressiveness on the part of public imagination that I contend for this and not because I conceive that any Judge who would be disposed to abuse his high office would be restrained by the fact of having an oath of a different form administered to him.
I will undertake to reconsider this matter to see how far it is possible to meet the point raised by the Deputy on the next stage.
I am satisfied.
In view of an assurance which I have received from the Attorney-General, I beg to withdraw this amendment.
On Section 14 I would like to say, in conjunction with my friend, Deputy Magennis, that I had an amendment down which was distinctly out of order but which, at any rate, showed how we stood in regard to the proposed salaries of these Judges. What I would like the Committee to understand is that my view was not so much that these salaries should be increased, but rather that the practice adopted elsewhere should be put into operation here, and that is that all Judges should be placed on an equal footing with the exception, perhaps, of the President of the High Court and the Chief Justice of the Supreme Court. That is a practice in operation in England to-day. It works very well there, and we have just passed Section 7, which renders it possible for the Chief Justice to obtain the assistance of the Judges of the High Court. Therefore, they are to that extent interchangeable, and I think that it would be advantageous to the State if it could be possible to have all Judges placed upon an equal footing, with the exceptions that I have mentioned, and I would ask the Government to take this suggestion into their consideration.
I do not know whether the Deputy has seen the Report of the Judiciary Committee. There were two or three Judges on it, and one of them an ex-Lord Chancellor, and the Bill contains their recommendations. On page 23 the Report states that the salaries of the members of the Supreme Court be as follows:— The President, £4,000, and each Judge £3,000 per year. On the previous page the salary for the President of the High Court was £3,000, and of the other members of the High Court £2,500. On this Committee there was certainly a large majority of the legal profession, and ordinarily one would expect that they would make recommendations which, in their opinion, were fair recommendations. We know that Judges are paid much higher salaries in England than here, but this is certainly a country which cannot compete, I think, even in such an important profession as the legal profession, with the salaries paid in England, and I should say that I think, on examination, it will be found that in other countries they are not so well paid as in England. It is a time for economy. We have very, very large sums to meet under Article 10 of the Treaty, and even if the sums were inadequate—and our advice is that they are not; that they are fair— we are certainly approaching a period in the history of our country when economy must be practised, and I think that the Deputy ought not to press his recommendation in this case. Generally speaking, these salaries compare favourably with the salaries that were paid before, and having regard to all the circumstances, I do not know that there would be any justification for the Government to recommend to the Dáil higher salaries than the Committee recommended, so that I am afraid I cannot undertake to give favourable consideration to the recommendation made by the Deputy.
The President has not quite met the case that Deputy Redmond put in one respect. I am absolutely certain that the Government wishes to do what is fair to the Judges, but he has not met the case. We think that they should get equal pay for equal work. Certainly I do not wish to increase the salaries of the Judges of the High Court, and I would rather reduce the salaries of the Judges of the Supreme Court, but as long as there is the possibility of promotion for a Judge that Judge to a certain extent loses his independence, and for an extra £500 a year a man might be inclined to become what people might think to be unduly subservient to the people who have it in their power to promote him to an extra £500 a year. That is why I should like to see all the Judges placed on the same level. I think the principle of giving Judges employed on similar work a similar rate of pay is a sound one on the whole, and I wish the President would consider whether something could not be done on the Report Stage or in another place.
Deputy Cooper has stated what I was about to state, that the President has entirely misconceived Deputy Redmond's point. I only wish to add that there should be nothing that would induce the question of promotion from the High Court to the Supreme Court being considered except on the one question only, the fitness of the Judge for that other kind of work, and no question of promotion with regard to salary. I think it is a principle that has been generally adopted in the other countries to which the President has appealed, that Judges ought to be paid on an equal basis. It does not necessarily mean any extra expenditure. It might mean a reduction in the expenses, but it does enforce a very salutary and very wise principle.
In considering this matter the Committee gave very great consideration to the question of the Judges' salaries. The point that has been raised that they should be all equal would, I think, be wrong, because the different Courts are on a different level, and must be so in the ordinary administration of justice. The amounts put down as salaries are not as high as in Great Britain, but I think that that principle, and the President's remarks on that, apply a great deal more widely than in this case. In our Free State we cannot aim to give any men the enormous salaries they get on the other side of the water.
It was never suggested.
I thought it was in your amendment that was withdrawn. I would like to say that I think the body of the people will recognise that the status of the Judges, as defined in the Bill before us, is safeguarded, that the salaries attaching to the positions are adequate, all things considered, and that the Circuit Judge promoted to the Supreme Court would naturally look for additional emoluments in connection with his higher status.
Perhaps I may be permitted to explain that I never suggested for a moment that Irish Judges should be paid a salary equal to that of English Judges. What I was suggesting was that the system which was in force there, namely, that all Judges, with the exception of the three I mentioned in England—and it may be two in Ireland—should be placed on an equal salary, and on an equal footing. All Judges in England are paid £5,000per annum, with the exceptions I have mentioned. I have never suggested and would not dream of suggesting that any Judge in Ireland would be paid that sum.
I do not understand Deputy Cooper's and Deputy Figgis's criticism of my statement. This Bill represents as nearly as it is possible to represent the opinions presented to us by the Committee asked by us to advise us on this matter. These recommendations are their recommendations, and if Deputy Figgis has any misgivings about it, if he looks up page 23 on the constitution of the Court, he will find that one or more Judges, on the invitation of the President of the Supreme Court, may act in the Court of Appeal, and immediately underneath that the two salaries are mentioned, and on the preceding page £2,500 a year. If that has not a bearing on the question raised I do not know what would have.
Surely we are not going to start on such business as this on the principle and on the general line of argument that because a certain recommendation has been made in a certain way by the Judiciary Committee, that, therefore, we as a legislature are rendered helpless in face of that suggestion. We retain, surely, our rights here as a legislature. I know from members of the Committee that it is not their desire that they should be used, or that their report should be used, here in any way as a cudgel. The principle is not the question of the size of the salaries, whether they be large or small. The principle that has been stated is the principle that has been adopted as a result of experience in other countries, and that principle is that all Judges in the Central Courts of the State should be placed upon an equal level. If the President states that the country cannot afford high salaries very well, let the Supreme Court Judges be reduced to the rate of the High Court Judges, but at least keep them on the same basis.
If the Deputies who have spoken would suggest that the salaries should be £2,000 a year for all the Judges, I think they would have the support of the Deputies on these benches. It would be something definite, at all events, to go upon. I do think, though, that it makes for fair administration and that the Judges would be more independent of the Executive by putting them on the same level. I think that is the point that Deputy Redmond makes, and it would appeal to most people. I will not agree if they are going to be raised to the Supreme Court standing. I think the point put forward is a sound point, and would make the Courts of Justice more independent of any Executive that might be, and that they would not use their position to please the Executive in order to get promotion. That, I think, is the point made.
The amendment was tabled at the special request of the representatives of the Bar Council of Ireland, and the case as presented by them to us who tabled the amendment, which was out of order by the way, was that through their experience of the past history of the Bar in Ireland there were men of this temperament, that so long as there was a salary higher than that of which they were in receipt their energies will be devoted by intrigue and by every variety of device that they could encompass to secure that high salary, and that that was not a healthy spirit to develop in the future Bar. They pointed out that the representation that the money would come out of the taxpayers' pocket was a mistake, that a large part of these expenses are defrayed out of the litigant's pocket. There is scarcely a step that a man engaged in litigation can take in which he is not called on to disburse heavy fees, stamp duties, and what not, and it is from these well-springs of finance that the monies are procurable, and that, therefore, it is the interest of the litigant who has to pay through the nose for the law he receives to have the highest and best type of Judge that the money is able to secure. It is true that the Judges in Great Britain receive a uniform salary of £5,000 a year, and that is spoken of as if it had no influence on or no relation to our present problem, at the very moment when the cream of the Bar, or a large part of it at any rate, is migrating to the other side. From the very first moment that Irish independence was in the air distinguished members of the Bar began to get called to the English Bar, and have taken up residence there. and everyone has to admit that the attraction of higher emoluments, and of greater dignity held out within two and a half hours' steaming of where we stand, has an important effect, and will, in spite of patriotism, continue to have an important effect in diverting from the service of the Free State the better legal brain. Whether we like it or not that is a fact we have to face. Are we going to retain in the service of Ireland the best legal minds and training and experience? I have no doubt we shall be told this represents something like the average of the highest incomes at the Bar in Dublin. It possibly does, but let us remember that in the past, and more particularly in England, men in receipt of huge incomes at the Bar did not take judgeships until they were considerably advanced in years, until their medical adviser had told them they could no longer endure the strain of the work that was necessitated for the earning of these incomes, and that the medical practitioner would not be responsible for their health unless they went on the Bench. Then you had the spectacle of very ancient lawgivers, on the Bench, with criticism in the Press and Parliament with regard to their mental incapacity.
Again I say, let us not follow British traditions in these things, but let us try to get younger judges from the beginning, men who are in the prime of life, and who are able to give their best. With a view to that, which I think is a laudable object, we should have the remuneration of the High Court Judges something which has a real relation to the amount of income that it is within the competence of such men to earn. There is another thing, too, which will arise later on, by which this matter can be prejudiced, to wit—the relative position of the Circuit Court Judge and the Judge of the Higher Judicature Court. £2,500 for the High Court of first instance is, I suggest, at any rate as a venture, by way of a guess, arrived at, as Deputy Hewat himself almost told us, in order to have something for the Circuit Judge to move up to in his ascent by way of promotion. I shall have something to say, later on, with regard to the salary of the Circuit Judge, with a view to showing that it is not such as to secure the services of the men we wish to secure. You will not be able to take away from the practice of the Bar the man whom you would like to seduce from practice, and to put on your Bench.
Why not meet the equities of the situation by increasing their salary in the inferior courts? I use the word inferior, I would remind the President, in its technical sense in regard to the Court below. I am not disparaging it in any way. I think in many ways it is the more valuable court. You must have some distinction between them, and if £2,000 and allowances for expenses were an equitable salary for a Judge in the Circuit Court, then there is no reasonable relation between that and the £2,500 set down here. These are some of the considerations that weighed with members of the Bar. No doubt all this seems pleading for one profession. It looks like an attempt to raise the wages on behalf of a trades union.
The oldest trade union.
Yes. But on the other hand, remember that by a very natural propensity the member of the Bar is anxious to have an income comparable with that of his rival in medicine or in trade and commerce. There is the public advantage or utility to be considered also, and I have tried to impress upon the Dáil, as far as I could, that point of view. I do not care personally whether the remuneration of the Bar be high or low. It does not concern me as an individual. But, looking at it from the point of view of how it affects the State, I do suggest to you that personal ambition, personal striving, men's sense of their value ought to be taken into account when we are considering legislation with the idea of doing the best for the country. £2,500 for one set and £3,000 for another set, and yet the Judges who are to receive £2,500 are to be in their own sphere like the British Jack-Tar who is soldier and sailor, too. They are to be Judges of the Supreme Court and to officiate in the Courts of Appeal as well. Yet prudence and status are to be determined, and one of the factors must be salary. Therefore, for all purposes they are equal except for the purpose of remuneration. When it comes to be a question of the pay they are to receive they are inferior judges; when it comes to the question of the discharge of duty to the State, they are superior judges. That seems to me an anomaly.
"In line 25 to insert after the word ‘retires' the word ‘voluntarily' and to delete from the words ‘or vacates' to the word ‘infirmity,' lines 26 and 27, inclusive. And at the end of the section, line 29, to add the words `any Judge, however, of the said Courts, or either of them, who by reason of age or permanent incapacity is obliged to vacate his office shall be granted a pension according to a scale to be determined by Rules to be made under this part of this Act, and sanctioned by the Minister of Finance'."
The first part of the amendment is a very small thing. It is a proposal to introduce the word "voluntarily" after the word "retires." The only reason for that is that a Judge who has retired is retired, but the Judge who has retired is not eligible for this Superannuation Allowance, and, therefore, for the sake of greater clearness and unmistakeability, I suggest to make the reference to the Judge who voluntarily or spontaneously withdraws from office. It is not of great consequence, I must confess. But the second part of the amendment is one for which I do claim more value inasmuch as, unlike the contention of the Bar Council of which I made myself the mouthpiece in the last Section, this is an effort to save the public purse. It is obvious to anyone that a barrister might be elevated to the Bench and then within a few years, possibly within a few months, may develop an incurable disease. He might have paralysis or might suffer from dementia, or he might be incapacitated in some other way, and under this provision as it stands he would be eligible for a retiring allowance of two-thirds of his salary. Therefore, I propose that the retiring allowance in such cases should be calculated and should be determined upon some scale, and I suggest that that scale should be drawn up by the Rule-making authority. I do not know that the amendment is in the best possible form, but I recommend the idea of it at any rate to the acceptance of the Minister.
The first part of it is certainly acceptable. The second part I would undertake to have considered on the next stage and see if it is possible to meet this by either adopting this amendment or putting up one on the same lines.
Then I beg leave to withdraw it.
I beg to move the following amendment:—
"In line 33, to insert immediately after the word `Eireann' and before the full stop, the words `or the growing produce thereof.' "
The effect of it is that the Judges' salaries and pensions will be paid out of the revenue of the Central Fund and not out of capital.
I was proposing to insert, in line 2, after the words "minor matters," the words "and all other matters," but the point intended to be covered by my amendment is better dealt with in the amendment that follows, and consequently I withdraw my amendment in the interests of the other. It is not desirable to transfer jurisdiction in general terms, and the later amendment transfers it specifically in detail.
I beg to move the addition to the Section of two new Sub-sections, as follows:—
(2) "There shall be transferred to the Chief Justice and exercisable by him all such jurisdiction in relation to solicitors as was lately exercised by the Lord Chancellor of Ireland and is at the passing of this Act exercised by the Lord Chief Justice of Ireland."
(3) "There shall be transferred to the Chief Justice and vested in him the appointment of Notaries Public and of Commissioners to administer Oaths of the High Court and Supreme Court."
I have been anticipated in this regard by Deputy Figgis, but I think I have also been followed by Deputy Duggan, and if Deputy Duggan can assure me that Part 5 covers this amendment of mine, I shall have much pleasure in withdrawing it. In Part 5 other officers are mentioned. These two new Sub-sections are only transferring jurisdiction in relation to solicitors from the present authorities to their future substitutes, and also in regard to number 3 it is transferring the appointment of public notaries and commissioners to administer oaths from the present authorities to the future substitutes.
In the last Dáil I think Deputy Fitzgibbon raised this matter. We will accept these two new Sub-sections.
I am moving to insert the following new Sub-section before Section 21:—
"All existing solicitors of the Supreme Court and all existing Commissioners to administer Oaths shall be transferred to and become Solicitors and Commissioners respectively of the High Court and of the Supreme Court."
I think that has been dealt with by the new amendment.
I do not think that would come under Part 5.
No, but it is acceptable. Deputy Fitzgibbon raised that point.
I wish to move the insertion of the following new Section before Section 22:—
"If in any case not expressly provided for by this Act a liability to any duty or any authority or power not incident to the administration of Justice in any Court whose jurisdiction is transferred by this Act to the High Court or to the Supreme Court respectively shall have been imposed or conferred by any Statute, law or custom upon the Judges or any Judge of any such Courts, every Judge of the High Court or of the Supreme Court as the case may be except where otherwise expressly directed by this Act shall be capable of performing and exercising and shall be liable to perform and exercise every such duty, authority and power in the same manner as if this Act had not passed and as if he had been duly appointed the successor of a Judge liable to perform such duty or possessing such authority or power before the passing of this Act. Any such duty, authority or power imposed or conferred by any Statute law or custom in any such case as aforesaid upon the Lord Chancellor, the Lord Chief Justice of Ireland or the Master of the Rolls shall be performed and exercised by the Chief Justice."
The members of the Committee may think that this is a very formidable Section, but in reality it amounts to very little. Words, they say, sometimes are given to us to conceal our thoughts, but in this case the thought is a very simple one. This Section is really only a continuing Section. It proposes to continue certain powers that are already conferred by former enactments on holders of high judicial office, such as the present Lord Chief Justice and the present Master of the Rolls, and to continue those powers to their successors. The present Master of the Rolls, for instance, is ex-officio head of the Charity Commissioners and I should think it would be most desirable that his successors should occupy the same position. He is also Keeper of the Rolls. The Lord Chief Justice of Ireland is ex-officio the Governor of several public institutions. Among other positions he occupies is that of a visitor to Trinity College, and, I am reminded by Deputy Sir J. Craig, the College of Physicians. The new Section that I propose means merely that these powers which are not exactly incident to the administration of justice in the various Courts should be transferred to the successors of these existing judges.
Is this a matter that really comes under this Bill at all?
I think it does come under this Bill, because in virtue of their present office the holders of these offices occupy the positions and have the power that I refer to. When the existing judgeships shall be abolished these positions shall be vacant, and I am only suggesting that their successors should be those in the same position.
I suggest that this is a matter for the institutions referred to by Deputy Redmond. If alterations are necessary they should be made by those institutions rather than that we should provide successors. I presume these offices were filled in an ex-officio capacity by resolution of these bodies, and they appointed the Lord Chief Justice or somebody else as ex-officio members, and the appointments were not made by the Dáil or its predecessor in any Act of Parliament.
The arguments used by Deputy Hewat do not apply as far as some institutions are concerned, because under the Act of Parliament, in connection with Trinity College, and under the Act of Parliament in connection with the College of Physicians, these men are appointed ex-officio—the Lord Chief Justice and the Master of the Rolls. If disputes arise they have to go before these gentlemen, and also questions of finance, for instance, in the case of the College of Physicians, which deals with Sir Patrick Dun's estate. The accounts of this estate have to be submitted to these visitors of the College, who were appointed by Act of Parliament.
I think the statements made are not quite accurate because the visitor to Trinity College is not appointed by Act of Parliament at all. He was appointed by King's Letter. I think the question raised by Deputy Redmond is a very important one and deserves more consideration than we can give to it on this, the first time that the Bill has been before us. I would suggest that the point raised should be reserved for further consideration and taken, say, on the Report Stage.
I submit that what Deputy Sir James Craig has stated has confirmed rather than contradicted what I said. He states distinctly it was the Act of Parliament that Trinity College has got that confers this ex-officio position on the Judge. Now this is not a private Bill for Trinity College or otherwise. It is a Judiciary Bill, and I submit that the ex-officio appointments that are referred to have absolutely nothing to do with our Bill here, and that the proper way to approach that subject would be to get their Bills altered or amended if it is thought desirable.
I think if you were to accept Deputy Hewat's reading of this amendment you would have ruled it out of order in the first instance. If it has nothing to do with this Bill, therefore it should never have appeared on the Order Paper. It must be remembered that many of these institutions carry on charitable work, and are you, I ask, going to put them to the expense of coming here to get a special Act of the Dáil to do a certain thing when you can put in an omnibus clause in this Bill that would give them the same powers and save them all this expense?
In reply to Deputy Hewat, I just wish to say that we are now abolishing these existing Judges, and one of the powers appertaining to the holding of the office of these judges was the exercise of these ex-officio powers and duties. Surely when we are abolishing the existing office it is only right that we should make some provision whereby their successors should be in precisely a similar position in regard to these most important institutions, as some of them are. Take, for instance, the Charitable Donations and Bequests. That is a most important institution, and I think it would be unfair for us not to place the new substituted judge in a similar position and to give that institution the benefit of his experience and knowledge, just as it had the previous benefit of the existing judges.
There is a consideration that I suggest has been overlooked in the argument of Deputies Redmond and Hewat. It is so long since some Deputies read the report of the Judiciary Committee that it is easy to understand that they have forgotten some of its details. The recommendation there, which is acted upon in the framing of the Bill, gets rid of separate jurisdictions of every sort in the sense of having no more Masters of the Rolls in Equity Jurisdiction, no Bankruptcy Judge sitting in a Bankruptcy Court, and all the rest. They are all, by a Section of this Bill, placed on an equal footing as Judges of first instance. In other words, the reform which was begun in the eighties in the English Courts has been carried out to the last letter. There was a time when there was a Court of Exchequer and a Lord Chief Baron of the Exchequer, and there was a Court of Common Pleas, the President of which had his own distinctive title. These things were abolished, and the Lord Chief Baron was known in a friendly jocose manner as "the last of the Barons." The title remained to him after the office had gone. In this present Bill the reform has been carried still further. The method of one Court, one Judge, if I may put it that way, is carried out thoroughly, and so if there were functions or duties attached to the Master of the Roll's position ex-officio, with the disappearance of that separate jurisdiction that ought to disappear, rather than be renewed in a Judiciary Bill on the assumption, which is not sustainable, that there will be someone among the Judges of the new Court who will occupy a position comparable with the office of the Master of the Rolls. With all respect, I submit that there is a mistake underlying the contention that there is anyone to continue in the office of Master of the Rolls, but there is one office that does persist—the one that was formerly known as the Lord Chancellor. The office persists, but the title is that of Chief Justice or Chief Judge of all the Judges, and the jurisdiction which belonged to the Lord Chancellor, and which was recently transferred on the extinction of that office to the Lord Chief Justice, now passes by a special operation of this enactment to the equivalent office. That, so far as I can see from a study of the report prepared by the Judiciary Committee and of this Bill, is the only thing in this measure that is a continuation of anything in the nature of separate powers. I would suggest, with all respect, that this amendment, as Deputy Hewat has contended, is not germane to this measure.
The point made by Deputy Magennis is only correct in what may be described as the strictly judicial functions of the Judges concerned, and not in respect of the extra-judicial functions—functions attached, as it were, by passing. One of them that I am concerned with more particularly, and one of very great importance, and one that may prove of very great importance in the future— affects the records of this country, which ought to be published and are published under the authority of the Master of the Rolls, as he is at present known. That is strictly not a judicial capacity at all. His judicial capacity, I believe I am correct in stating, has grown out of the other functions he held originally. But the fact remains that whereas the exercise of his judicial capacity is merged in the new Court, this other function is not so merged, and should be merged and should be definitely attached either to the whole body or to certain persons of the whole body.
On a point of order am I right in saying that on Wednesday evenings Government business stops at 7 o'clock, and I suggest that as it is after 7 now this business should be adjourned?
That is so if private business was down on the paper, but as there is no other business on the agenda Government business proceeds until half-past eight.
Standing Order 74 says: "The Order Paper shall be confined to questions and Ministerial business on Tuesdays and Thursdays, during the entire sitting, on Wednesday until 7 o'clock p.m., and on Friday till 6 o'clock p.m. Motions or Bills, if any, moved by private Teachtai, and appearing on the Order Paper, shall be taken during the remaining period of ordinary sittings on Wednesdays and Fridays: Provided that a Minister may move after Questions on and Wednesday or Friday, that, on that day, specified Ministerial business shall not be interrupted if under consideration at the time fixed for taking up motions or Bills to be moved by private Teachtai. Such motions may be proposed without notice and shall be decided without amendment." I hope the President does not think that I want to obstruct the Bill, but I think that we have got into a tangle, and if I am right in suggesting to report progress that would enable him to find a way out of it, and tell us to-morrow what he is going to do.
The usual practice when private members table business on Wednesdays or Fridays is to take it at 7 o'clock. Unless Government business is pressing we allow private business to go on these days. Towards the end of last session we had to make an appeal for the whole time for Government business, but ordinarily private business will go on at the time indicated. I would say that this particular amendment appears to me to be very far-reaching in character, and I do not think I could recommend the Dáil to accept an amendment without seeing precisely where it is that we are going. If there are emoluments, duties and offices other than those we prescribe in this Bill, we ought to have them defined, and knowing what they are, see how best to distribute them if it is considered advisable to distribute them. If they are duties of an onerous character, taking up a considerable amount of time of a Judge, it might be well that they be re-distributed between three or four Judges, but I do not think that I could advise the Dáil to pass an amendment so sweeping in its character as this without much closer examination.
Perhaps the President would consider it further, and I might again bring it up on Report stage.
I will have some enquiries made into it.
Perhaps in considering the matter, as other public bodies are involved, the President would consider the advisability of consulting these other bodies.
Perhaps the President would also consider the fact that the title of the Bill is "The Courts of Justice Bill."
Yes, it was my impression that this matter could not come in in any case.
I think you would require a separate Bill to transfer the powers that are referred to by Deputy Sir James Craig.
I take it the amendment is withdrawn.
Would the President consider my suggestion to report Progress? He has got a good many clauses, and we are coming now to the most important ones. I think that strictly under Standing Order 74, to which I have already referred, he is not in order in taking Government business after 7 o'clock.
It was the usual practice when there was no private members' business down on the agenda to go on. Of course, it is open to the President to move to report Progress if he likes.
It is open to any Deputy to move to report Progress.
Is it not clear that the rule referred to by Deputy Major Cooper is meant to deal with the situation where there is private business to be transacted, and where the Minister asks for the time of the Dáil for Ministerial business? That, I submit, has no application whatever in a case such as the present, where there is not on the Paper any private business whatever. I submit that in a case like this the business in progress continues automatically; there is nothing to stop it until we come to the ordinary hour for adjournment.
This question was never raised before. The Dáil sits according to the Standing Order between the hours of three and half-past eight p.m., and I think it is quite in order for the business to proceed.
I beg to move:—
To add at the end of the Section the words:—
"Provided that nothing in this Act, nor in any rule made under its provisions, shall take away, or prejudice, the right of any party to an action to have questions of fact tried by a jury in such cases as he might heretofore of right have so required, nor upon any trial before a Jury to have the issues submitted and left to the jury before which the same shall come for trial with proper and complete direction by the judge upon the law and as to the evidence applicable to such issues; and provided that such right may be enforced by motion in the High Court, or by motion in the Supreme Court, in accordance with the practice at present existing in the respective Courts; and provided that subject to all existing enactments limiting, regulating, or affecting the costs payable in any action by reference to the amount recovered therein, the costs of every action, question, and issue tried by a jury shall follow the event, unless upon application made the Judge at the trial, or the Court, shall for special cause shown and stated in the Order, otherwise direct, and any order of a Judge as to such costs may be discharged or varied by the Supreme Court, and provided also that in all actions for Libel where the jury shall give damages under forty shillings, the plaintiff shall not be entitled to more costs than damages."
This amendment contains two provisos, and those provisos are copied out of the Judicature Act. The first proviso is from Section 48 of the Judicature (Ireland) Act. It is meant to preserve the right of any party to an action to have questions of fact tried by a jury. The second proviso was put into the Irish Judicature Act advisedly after the English Judicature Act had given to the Judge a discretion with regard to costs. It has been the practice in Ireland under a rule of the Benchers to make the costs follow the event in an issue tried by a jury. Inasmuch as these things are already provided for by Statute, to seek to introduce them into the present measure seems a work of supererogation, and quite unnecessary.
But it was in the mind of certain members of the Bar that under a decision given some time ago in England it might be possible for the rule-making authority to make a rule which would in effect supersede this provision of the Judicature Act, but a rule-making authority cannot supersede by a rule an enactment of the Act which confers the rule-making authority upon them. Consequently it was to make this provision of the Judicature Act stand firm against any assault that the provisos were borrowed and introduced here. In England—we will make England be the bad example for this purpose—it was not unknown, when a judge had taken offence with regard to the too independent demeanour or conduct of counsel, that though the jury found for the offending counsel the judge refused to give costs. Some of those who advocated this amendment were fearful that in coming years something of that kind might happen and they sought to preclude it. Personally, when I look at the composition of the rule-making authority, and when I find, moreover, that the rules made are to be submitted to this Dáil for criticism, and may be annulled in consequence of criticism, I think that the amendment is not at all necessary. However, as I tabled it on behalf, as I have said, of those who had this special interest in the matter, I am discharging my duty to them, who are in large part constituents of mine. So that in one sense I am putting their arguments before you as their mouthpiece, and in another way expressing an individual opinion that the case is already provided for and, therefore, unless Deputy Redmond seeks to press the matter, I would withdraw it.
I beg to move: In line 2, to delete the words "of the twelve." This is a small point. The Section says: "In the trial of all civil cases before a judge and jury a majority vote of nine of the twelve members of the jury shall be necessary and sufficient to determine the verdict." The wording implies that there must be twelve. By consent in practice there may be only eleven, and it was to obviate that interpretation that this amendment was put down. Some formula of this tenor would meet the case: "In the trial of all civil cases before a judge and jury a majority vote in the proportion of nine to twelve," or something of a similar nature.
The Deputy can hardly arrive at a proportion in the case of eleven jurymen.
That is already dealt with in proportional representation. A fraction of a man counts as a whole man.
I do not think I can accept this amendment. There are cases, I believe, in which agreement may be arrived at between the parties to the suit under which less than twelve jurors are taken, but I take it if that be the case that it would also be a matter of agreement between them as to what proportion should be taken. That, I suppose, would meet the Deputy's point.
I beg to move: In lines 12 and 14, to delete the word "heard," and to substitute therefor the word "prosecuted." This amendment is purely verbal.
Yes, I accept that amendment.
The next amendment is: In line 21, after the word "amount" to insert the words "subject, or nature." I withdraw this amendment inasmuch as the words "subject or nature." might be taken to be at variance with Section 56 later on, which excludes from the jurisdiction of the Court to which the case would be remitted a number of important things, for example the habeas corpus quo warranto and the rest.
I move after line 24 to add a sub-section as follows:
"When any action shall be pending in a Circuit Court, any party to such action may, at any time before service of notice of trial therein, apply to the High Court that the action be transferred to the High Court or to some other Circuit Court; and thereupon if the Court shall consider that the action is fit to be tried in the High Court, or owing to the special circumstances of the case ought to be transferred to such other Circuit Court, it may order such transfer upon such terms in either case, and subject to such conditions as to costs or otherwise as may appear to be just; and every action so transferred to the High Court shall proceed therein in the same way as if it had originally been instituted in the High Court subject to such rules as may be made regulating the utilization of the pleadings already provided for the Circuit Court; and in the event of an action being transferred to another Circuit Court the judge thereof shall have the same jurisdiction as if it had been commenced in his own court."
Fortunately for the Dáil this amendment speaks for itself. As regards Part I. of the Bill, it deals properly with matters relating to the High Court jurisdiction, but this Sub-Section refers to cases pending in a Circuit Court, and empowers any party, before service of notice of trial, to apply to the High Court to have it transferred to the High Court or to some other Circuit Court. Now, in the place where more logically it might be introduced on page 6, in these amendments, Deputy Duggan has tabled an amendment covering the whole ground and some more perhaps. It is, therefore, practically unnecessary for me to move this amendment, inasmuch as the same matter will arise again on his amendment.
I would undertake to have it examined in the meantime. The principle of it is acceptable. I am not sure if it is covered by the other amendment. We might have a little change in the wording.
Before passing from this it strikes me that the effect of this amendment, or any alteration of it, would be to defeat one of the intentions of the Bill, and that is cheap litigation. If either of the parties apply to the High Court for transfer from the Circuit Court, it seems to me, and I am very innocent of those legal questions, that you are inviting the wealthier of the two parties to penalise the poorer by going from the Circuit Courts to the High Court. You thereby defeat, to that extent, the purpose of the Bill. You are rather encouraging the wealthier litigant, on either side, to defeat the purpose of the Bill by simply adding to the expense.
That was not the intention in accepting the principle of the amendment. It was that a Court may think and decide that it is a proper case for transfer, and certainly not to benefit the wealthier litigant against another who is not wealthy.
Besides Deputy Johnson overlooks that the applicant would have to give security for costs. If he lost his case he would be mulcted in the higher rate of costs, so that he must very carefully consider beforehand in which Court he will have the venue.
The next amendment reads:—In line 28, after the word "Court" to insert the words "or from the Circuit Court to the High Court." This was merely a drafting amendment. It was consequent on the acceptance of the other amendment, if it had been accepted, and therefore goes out with the other. It is met later by Deputy Duggan's amendment.
I move: In line 34, after the word "indictments" to add the words "but every indictment shall be preferred directly to the jury which tries the accused."
I move: To delete all words from "shall," at the end of line 48, to the word "which," at the end of line 54, inclusive. I think this is rather important in principle, but it does not require very much to explain it. The effect of the amendment would be to make the decision of the Court of Criminal Appeal final and conclusive, and prevent the possibility of a further appeal, provided the Attorney-General sanctioned it. I believe that is the practice adopted in certain other countries, particularly America, and that it has been found to be most disadvantageous. I suggest that we should not follow it. It would throw upon the prosecuting counsel the duty of saying whether a decision ought to be challenged further or not. Certainly it does not seem to me a thing to be recommended. I suggest, for the consideration of the Government, and the President in particular, that the decision of the Court of Criminal Appeal should be final and conclusive.
I desire to support Deputy Thrift in this amendment, and in doing so I would like to remind the Committee that this is an entirely new departure, the establishment of a Court of Criminal Appeal. Having that Court of Criminal Appeal, I venture to suggest it should be final and decisive. According to this Section, it shall rest with the Attorney-General whether the appeal shall be taken from the Court of Criminal Appeal or not, and one is bound to realise that the Attorney-General is a party to every criminal proceeding. He is the law officer of the State and, without in any way disparaging the occupier of the office, whoever he may be, it must be recognised that he is a biassed party and in some cases it is possible that the Attorney-General might feel hurt if he had not been successful in his prosecution and might desire to take it to a further Court. That is really only a small point, but the question whether there should be an appeal at all from this Court of Criminal Appeal is a very important point and should be very carefully considered by this Committee. What is the necessity to have two Courts of Appeal from a criminal conviction? At the present moment we have none. I gladly welcome the proposal to institute one. I think it is most proper and humane, but why not finish there with that one, and make it final and conclusive? It is true, I understand, in England and elsewhere, that there is an appeal, but, as in other matters we have been already appealed to to stand upon our own in these affairs, I suggest that our Court of Criminal Appeal should be the final and decisive Court to determine an appeal that has come from a previous conviction.
I would like to oppose the amendment. The clause as set out here leaves appeal to the Supreme Court, which will have to take an exceptionally high position in the new order of things. There is abolition of the appeal to the House of Lords and unless our Supreme Court takes up a very high position we will miss the decision of the House of Lords and the atmosphere surrounding such decision in the future. We all know that the law and the lawyer may define the law in a very technical sense, and will have some hesitation in going outside the law to do justice. The great strength of the appeal to the House of Lords in the past has been that you got out of the technicalities of the law and got broad justice. I think that is what is wanted here, and that is what I would hope our Supreme Court would fulfil in the future.
I suggest that a good part of what Deputy Hewat has stated hardly applies, because the House of Lords has no decision in respect of criminal appeals at all. There is one additional argument, and it affects what Deputy Hewat has said, and bears also on what Deputy Redmond has stated. Bias may not exist in the Attorney-General. I should hope that in very few cases would there be any question of bias existing in the Attorney-General, but, inasmuch as he would be a party to the proceedings if he gave his certificate so that the matter should be carried from that Court, which is already a Court of Appeal, to a higher Court, bias would unquestionably be imputed.
As to the point about the Supreme Court, if the Attorney-General were to give a certificate from the Court of Criminal Appeal to the Supreme Court, and the Supreme Court happened to support the Attorney-General in that specific instance, bias may also happen to be imputed to him and also to the Court. Generally, I think there is everything to be gained that there should be now a Court of Criminal Appeal in Ireland. Having created that Court let it be a final court, and let its judicial review be final, with no prospect of appeal further. Appeals upon appeals must necessarily be bad and injurious.
Perhaps I might remind the Committee that my attitude in this is not at all favourable to my brethren at the Bar, because the more appeals there are the better it is for them. On the contrary, the attitude I adopted in this is to curtail and make final the decision of the Court of Appeal. It might be said that a higher appeal would lie to the Privy Council. That is a matter which would require consideration, but whether that further appeal did lie according to our Constitution or not I feel confident at any rate that the Privy Council, who are the final and only arbiters as to what shall be taken by them, and what shall be heard by them, would never dream of accepting or of hearing a case on appeal from an Irish Court of Criminal Appeal, which had been made final and conclusive by this Dáil. Therefore, it is with that feeling of confidence in regard to any future action by the Privy Council that I ask you to approve of this amendment.
I did propose to accept amendment 21. If we are giving let us give generously, and I would have the Supreme Court of Appeal the final tribunal before whom any person should have an opportunity of appearing if he thinks injustice has been done to him. That, I think, is fair, and the person is entitled to it. There is just the possibility that an attempt might be made to skip the Supreme Court if it were not there, and to go direct to the Privy Council. I do not think that is desirable. It will not make for confidence in the institutions we are putting up, and I do not think that the Deputy should press this particular case.
I beg to withdraw my amendment.
I move: "After the word ‘unless,' line 50, to insert the words ‘that count or.'" The statement made by the President that he is going to accept this amendment makes it unnecessary for me to say very much. The Clause provides that the certificate of the Attorney-General would justify an appeal to the Supreme Court. The point is raised that the Attorney-General should not be the only decider as to whether the matter in question was of exceptional importance. The Judges of the Courts would be capable of deciding upon such a question just as well as the Attorney-General, and the Clause should allow, I submit, the Court to give such a certificate. As the President has declared his willingness to accept the amendment, I say no more.
I beg to move to report Progress, and ask leave to sit again to-morrow.