IN COMMITTEE ON FINANCE. - COURT OFFICERS BILL, 1926—THIRD STAGE.
The Dáil went into Committee.
Section 1 put and agreed to.
SECTION 2.
In this Act—
the expression "the Minister" means the Minister for Justice; the expression "the Chief Justice" means the Chief Justice of the Irish Free State.
I beg to move:—
To add at the end of the section the following words: "the word ‘court' means a court of justice established by the Courts of Justice Acts 1924 and 1926 and does not include a court which though presided over by a judge or justice of one of these courts of justice was not established by those Acts."
The effect of the amendment is to make it clear that the Court of the Land Commission and any other such special court which is outside the regular courts set up under the Courts of Justice Act, are not affected by this Bill.
Amendment put and agreed to.
Question—"That Section 2, as amended, stand part of the Bill"—put and agreed to.
SECTION 3.
(1) There shall be attached to the High Court, the Supreme Court, and the Chief Justice respectively the following offices, that is to say:—
To the High Court,
The Central Office,
The Master's Office,
The Taxing-Master's Office,
The Probate Office,
The Bankruptey Office,
The Accounts and Inquiries Office,
The Accountant's Office;
To the Supreme Court,
The Office of the Registrar of the Supreme Court;
To the Chief Justice,
The Office of the Registrar to the Chief Justice.
(2) There shall be attached to the High Court, the Supreme Court, and the Chief Justice respectively the following officers (in this Part of this Act collectively referred to as principal officers), that is to say:—
To the High Court,
A Master who shall be styled the Master of the High Court.
Such number of Taxing-Masters as the Minister shall, with the sanction of the Minister for Finance, from time to time determine,
An Officer for Accounts and Inquiries,
A Probate Officer,
A Registrar in Bankruptcy,
An Assignee in Bankruptcy,
An Accountant;
To the Supreme Court,
A Registrar;
To the Chief Justice,
A Registrar.
(3) The Master of the High Court and the Taxing-Masters shall be appointed by the Executive Council and every other of the said principal officers shall be appointed by the Minister, and all the said principal officers (including the Master of the High Court and the Taxing-Masters) shall hold office at the pleasure of the Executive Council.
(4) Subject to the persons respectively appointed thereto being in good health at the time of appointment, the offices of the Master of the High Court and of the Taxing-Masters shall be pensionable offices within the Superannuation Acts, 1834 to 1923, and the pension, allowance, or gratuity granted to or in respect of a Master of the High Court or a Taxing-Master on his retirement or death shall be ascertained in the manner and subject to the conditions prescribed by those Acts.
(5) The Master of the High Court and every Taxing-Master shall retire from office on attaining the age of seventy years.
I beg to move:—
In sub-section (1), page 3, line 30, to delete the words "The Master's Office."
The reason this amendment is introduced is that there is no necessity for a separate Central Office for the Master by reason of the fact that he will be head of the Central Office for which provision is made in the Bill.
Amendment put and agreed to.
I beg to move:—
In sub-section (1), page 3, line 34, to delete the words "Accounts and Inquiries" and substitute the word "Examiner's."
That is really a matter of drafting. It is felt that the title "Examiner's" is less cumbersome and less likely to be confused with the title of the Accountant and Auditor-General. I think the title proposed in the amendment is a more suitable title for the holder of the Office.
Amendment put and agreed to.
In regard to amendment (4) which stands in my name, I think it would be better, if I may be allowed, to postpone any discussion on it, because it is all involved in the amendment to Section 17. If that were carried, with good fortune and the grace of the Minister, we could move this amendment on the Report Stage. I beg leave to withdraw the amendment.
Amendment No. 4 not moved.
I beg to move:—
In sub-section (2), page 4, line 4, to delete the words "Officer for Accounts and Inquiries" and substitute the word "Examiner."
This amendment is consequential on amendment No. 3.
Amendment put and agreed to.
I beg to move:—
In sub-section (2) page 4, line 7, after the word "An" to insert the word "Official."
This is to distinguish between the official assignee, who is a permanent official of the Courts, and the creditors' assignee, who is a nominee of the creditors. There are two assignees in the Bankruptey Court—the official assignee and the creditors' assignee, and the object of this amendment is to distinguish between them.
Amendment put and agreed to.
I beg to move:—
In sub-section (3) line 17, page 4. to delete the words "shall hold office at the pleasure of the Executive Council" and substitute therefor the words "shall only be removable by the Executive Council on the recommendation of the Chief Justice."
This amendment was put down immediately after the Bill was introduced. I do not know how far the official amendments that have been put down since would cover the point. The object that was sought to be achieved by the amendment was that the Master of the High Court, the taxing masters, and the principal officers would only be removed from office on the recommendation of the Chief Justice. The section originally provided that the Master of the High Court and the taxing masters should be appointed by the Executive Council. It goes further than that, and leaves their position in the hands of the Minister, "and he shall only hold office at the pleasure of the Executive Council." Now, it seems to me, and it will possibly be accepted by the Minister for Justice, in view of the negotiations that proceeded as between the Judicature and the Ministry, that the Judicature should have some say in the matter rather than that the appointment should be terminable by the direction, or at the pleasure, of the Executive Council. The original clause as it stands does not necessarily operate in that way.
There is no objection to the appointment, because somebody must make the appointment, and the original appointment of the Executive Council is probably the best way that it could be made; but my point is that the appointment having been made by the Executive Council, the office should be permanently filled, subject to the good conduct of the man occupying the position, just in the same way as if he were one of the judges. I do not know whether it would be necessary to visualise what might happen under the clause as it originally stood. I would like to hear from the Minister or from the Parliamentary Secretary what his view is in connection with the adoption of this amendment.
The Deputy will notice amendment No. 8, which reads:
"(4) No principal officer nor any officer for the time being nominated to be a registrar of the High Court shall be removed from his office without the concurrence of the Chief Justice and the President of the High Court."
That amendment represents the agreement arrived at with the judges, and it is as far as I am prepared to go in the matter. The point of contrast with the Deputy's amendment is that the Deputy's amendment leaves the initiative with the Chief Justice. No removal of an officer shall take place without the concurrence of the Chief Justice. The official amendment which follows the Deputy's specifies that no principal officer shall be removed without the concurrence of the Chief Justice and President of the High Court. Personally I do not regard the official amendment (No. 8) as any real strengthening of the tenure of the principal officer. The principal officers would have Civil Service tenure. It is a tenure which reads on paper as a life tenure, at the pleasure of the Executive Council. Of course it is a very strong tenure, and it is not any strengthening of it to say that no officer shall be removed without the concurrence of these two judges, because I do not consider that there would be a proposal to remove any officer for a matter less weighty than that which would receive, of course, the concurrence of these two judges. I do not think that any civil servant has ever been removed for a matter which would fail to meet with the fullest approval of two such persons. So that while it is strengthening on paper the tenure of the principal officers to insert this amendment, I do not think that it is, in fact or in practice, a real strengthening. However, it represents an agreement. I would not accept the Deputy's amendment. My own amendment, which follows, is just about as far as the Executive is prepared to go in the matter.
Will the Minister say if his amendment meets with agreement? Is it an agreed amendment that has been put forward after discussion with the Judicature? I do not agree with the Minister that officials named here become civil servants under this clause. They are distinctly removable by the section itself. If you place them on the basis of a civil servant the difficulty is removed to some extent. But they are not placed in that because they are removable by a political and changeable body—a body that has not got any permanency itself. The Executive Council to-day may have quite a different view of political responsibility from the Executive Councils that may follow later on. There is nothing in this Bill itself that makes the principal officers like the Master of the High Court and the Taxing Master civil servants.
Surely the Deputy is aware that the tenure of a civil servant is at the pleasure of the Executive Council? An established civil servant, the best and the longest established civil servant, holds office at the pleasure of the Executive Council. That is probably a shock to the Deputy, but it is fact. Under this Bill the principal officer, quite apart from either the Deputy's amendment or the official amendment, would have the same tenure as any civil servant. In fact, the effect of my amendment is to give them, on paper, a somewhat stronger tenure.
I will have to disagree with the Minister in this particular case when he says that the principal officer could be termed a civil servant. In the Civil Service, ordinarily, a person enters by examination and proceeds up the ladder by promotion. This is a case in which the office is filled not by a person who has been spending his life in the Civil Service. It is filled by a man who has been imported into the position after a long experience in connection with other work.
I do not accept the Deputy's amendment.
In view of what the Minister has said, and because I think that probably his own amendment goes as far as the Executive Council would go, and because it probably goes far enough, I beg leave of the Dáil to withdraw my amendment.
Amendment, by leave, withdrawn.
I beg to move:—
"In page 4, before sub-section (4) to insert a new sub-section as follows:—
"(4) No principal officer nor any other officer for the time being nominated to be a registrar of the High Court shall be removed from his office without the concurrence of the Chief Justice and the President of the High Court."
The object of that amendment is to allay any fear that might exist that the Executive Council might remove a principal officer because of the fact that he made himself obnoxious.
Amendment agreed to.
I beg to move:—
In sub-section (4), page 4, lines 22 to 26, to delete all from the figures "1834" in line 22 to the end of the sub-section and substitute the following words—"for the time being in force and there may be granted either to those officers themselves on retirement or to their legal personal representatives on death such superannuation and other allowances or gratuities as might under the Superannuation Acts for the time being in force have been granted had they been appointed to the permanent Civil Service of Saorstát Eireann with certificates from the Civil Service Commissioners.
This is merely a drafting amendment. There is no difference in the meaning.
Amendment agreed to.
I beg to move:—
In sub-section (5), page 4, line 28, after the word "years" to add the words "but such age of retirement may, in the case of any Taxing-Master who was immediately before the commencement of this Part of this Act a Taxing-Master attached to the High Court, be extended by the Minister with the concurrence of the Minister for Finance to any age not exceeding seventy-five years."
The position at the moment is that the present Taxing Masters are approaching seventy years of age, and it is felt that they can continue to carry the duties of their office for some years to come and that it would not be in the interests of economy that they should retire on pension and have other men appointed to carry on the work which they are well able to do.
Is not this amendment sacrificing the principle that has been adopted under other Acts of having an age limit? If this amendment is adopted, how can you stand by the various age retirements for judges and others who do not run up to the age of seventy-five?
Of course you have three Taxing Masters, and these men took office, as Deputy Duggan explained, rather late in life, on the basis that they were accepting a life office. It so happens that the oldest of the Taxing Masters, Master MacNamara, is a man of very robust health, and his keenness is, I think, unimpaired. He is efficient and popular, and, in my opinion, capable of discharging the duties of his office for some years to come. The amendment does, perhaps, advert in a special manner to considerations like that, to considerations that both in the case of Master MacNamara and Master Denning you have men who though advanced in years, are fully capable and willing to continue to discharge the duties of their office for some years further.
I do not think it is a sacrificing of the general principle of an age limit. We are saying in the case of the county registrars that while there shall be a statutory retiring age of sixty-five we are asking for permissive elasticity for a further three years so that if a man were thought capable of discharging the duties of his office he might be retained in the public service up to sixty-eight years. In this case you are dealing with a very much smaller class. You are considering only three men, and there is perhaps—not improperly, I think—rather special advertence to the fact that those men are, for their years, exceptionally robust and exceptionally efficient. The other is a bigger class, and when you are laying down basic provisions you have to deal with the average rather than with the exception. I recognise some men do retain, up to and after their 70th year, quite a remarkable keenness and efficiency; but that is not the average, and when we are dealing with the bigger class of the county registrars we ought to, in the public interest, fix a maximum age of 68 years. As regards the three years between 65 and 68, we ought to leave it a matter of permissive and discretionary elasticity to say the retiring age shall be 65 years, but where we think fit that may be extended by a further three years.
The Minister's explanation is that it is a matter of expediency in this particular case that the age limit should be increased far in excess of anything adopted as a rule in connection with the courts. That may be sound in this case, but I am afraid it reacts on other arguments. We have been setting out ages in connection with other Bills, and there is a big difference between them and the ages now mentioned. That is the objection in this particular case. No doubt the men referred to are capable of doing their work, but the objection is that this particular principle would apply to a small section of higher officials, and we are not prepared to adopt it in regard to the bigger section of the people; in other words, we are discriminating between different classes and we are making a distinction that is, in my opinion, objectionable.
We have a precedent in the case of one of the judges. The late Recorder of Dublin had a special exemption from the age limit. I think his age was brought to 73 or 74 years.
The age limit here is 75 years.
Amendment 10 agreed to.
Question—"That Section 3, as amended, stand part of the Bill,"—put and agreed to.
Question —"That Section 4 stand part of the Bill,"—put and agreed to.
SECTION 5.
The Master of the High Court shall, subject to the general direction of the Minister, have the general superintendence and control of all offices established by this Part of this Act and shall also have and exercise such powers and authorities and perform and fulfil such duties and functions as shall be from time to time conferred on or assigned to him by statute or rule of court, and in particular (unless and until otherwise provided by statute or rule of court) shall have and perform all such other powers, authorities, duties, and functions as are or become vested in him by virtue of any other provision of this Act.
I beg to move:
To delete lines 45, 46 and 47 and substitute the following sub-section and words:—
"(1) The Master of the High Court shall have the general superintendence and control of such of the offices established by this Part of the Act as are attached to the High Court but shall in the exercise of such superintendence and control be subject to the general direction of the Minister in regard to all matters of general administration and to the directions of the President of the High Court in regard to all matters relating to the conduct of that part of the business of the High Court which is for the time being required by law to be transacted by or before one or more of the Judges of that Court.
(2) In addition to the general superintendence and control aforesaid the Master of the High Court."
The effect of that amendment is to limit the executive control of the Master of the High Court and the Minister, and it definitely excludes from executive control that part of the work immediately connected with the judge. As a matter of fact, it is one of the amendments which has been introduced to meet the objections that the Judiciary had.
Amendment agreed to.
Question—"That Section 5, as amended, stand part of the Bill,"— put and agreed to.
Question—"That Section 6, stand part of the Bill,"—put and agreed to.
SECTION 7.
The several Taxing-Masters shall have and exercise such powers and authorities and perform and fulfil such duties and functions as shall from time to time be conferred on or assigned to them by statute or rule of court and in particular (unless and until otherwise provided by statute or rule of court) shall have and exercise all such powers and authorities and perform and fulfil all such duties and functions in relation to the High Court, the Supreme Court, the Court of Criminal Appeal, and the Chief Justice as were formerly possessed and performed by the Taxing-Masters of the Supreme Court of Judicature in Ireland in relation to that Court.
I move:—
In page 5 to add at the end of the section the following words: "and shall also have, exercise, perform and fulfil such other powers, authorities, duties and functions as were immediately before the passing of the Courts of Justice Act, 1924 (No. 10 of 1924) vested or imposed by law in or on the Taxing Masters of the Supreme Court of Judicature then existing."
The meaning of that is very simple. The Taxing Masters had power, apart from cases in which there was an order of the Court directing them to tax costs, to tax ordinary costs between a solicitor and client on the recommendation of the client. The effect of this amendment is to vest in the Taxing-Master the power to discharge that function in future.
Amendment agreed to.
Question—"That Section 7, as amended, stand part of the Bill"—put and agreed to.
Question—"That Section 8 and 9 stand part of the Bill"—put and agreed to.
SECTION 10.
(1) The Bankruptcy Office shall consist of two branches whereof one branch shall be styled the Registrar's Branch and the other shall be styled the Assignee's Branch.
(2) The Registrar's Branch of the Bankruptcy Office shall be under the management of the Registrar in Bankruptcy and there shall be transacted therein all such business as shall from time to time be assigned thereto by statute or rule of court and in particular (unless and until otherwise provided by statute or rule of court) all such business as was formerly transacted in the Bankruptcy Office of the King's Bench Division of the High Court of Justice in Ireland.
(3) The Assignee's Branch of the Bankruptcy Office shall be under the management of the Assignee in Bankruptcy and there shall be transacted therein all such business as shall from time to time be assigned thereto by statute or rule of court and in particular (unless and until otherwise provided by statute or rule of court) all such business as was formerly transacted in the Office of the Official Assignee of the King's Bench Division of the High Court of Justice in Ireland.
I move:—
In page .5, to insert the word "Official" before the word "Assignee's" in lines 32 and 41 respectively and before the word "Assignee" in line 42.
The amendment is purely consequential.
Amendment agreed to.
Question—"That Section 10, as amended, stand part of the Bill"—put and agreed to.
Question—"That Section 11 stand part of the Bill"—put and agreed to.
SECTION 12.
The Assignee in Bankruptcy shall have and exercise all such powers and authorities and perform and fulfil such duties and functions as shall from time to time be conferred on or assigned to him by statute or rule of court and in particular (unless and until otherwise provided by statute or rule of court) shall have and exercise all such powers and authorities as immediately before the passing of this Act were vested by law in the Official Assignee in Bank-ruptey of the King's Bench Division of the High Court of Justice in Ireland and shall perform and fulfil such duties and functions as immediately before the passing of this Act were required by law to be or were in fact performed or fulfilled by the said Official Assignee.
I move the following amendment, which is consequential:—
In page 5, line 63. to insert the word "Official" before the word "Assignee."
Amendment agreed to.
Question—"That Section 12, as amended, stand part of the Bill,"— put and agreed to.
SECTION 13.
The Office of Accounts and Inquiries shall be under the management of the Officer for Accounts and Inquiries and there shall be transacted in that office all such business as shall from time to time be assigned thereto by statute or rule of court and in particular (unless and until otherwise provided by statute or rule of court) all such business as was formerly transacted in the offices attached to the respective Chambers of the Master of the Rolls and the ordinary judge of the Chancery Division of the High Court of Justice in Ireland and also such business as was formerly transacted in the offices attached to the Land Judge of the said Chancery Division including the offices attached to that Judge in his capacity of Receiver Judge.
I move:
In line 12, to delete the words "Office of Accounts and Inquiries" and substitute the words "Examiner's Office," and in line 13, to delete the words "Officer for Accounts and Inquiries" and substitute the word "Examiner."
That amendment also is purely consequential.
Amendment agreed to.
Question—"That Section 13, as amended, stand part of the Bill"—put and agreed to.
SECTION 14.
The Officer for Accounts and Inquiries shall have and exercise all such powers and authorities and perform and fulfil such duties and functions as shall from time to time be conferred on or assigned to him by statute or rule of court and in particular (unless and until otherwise provided by statute or rule of court) shall perform and fulfil such duties and functions as were formerly performed and fulfilled by the several Chief Clerks and Assistant Chief Clerks of the Master of the Rolls and the ordinary judge of the Chancery Division of the High Court of Justice in Ireland respectively and by the Registrar to the Land Judge of the said Chancery Division and by the Chief Receiver.
I move this amendment which is consequential:
In line 24, to delete the words "Officer for Accounts and Inquiries" and substitute the word "Examiner."
Amendment agreed to.
I move the following amendment:
In line 34, after the word "Receiver" to add the words "or the Receiver-Examiner."
The official in the Land Judge's Court was called at one time the Chief Receiver and at another time the Receiver-Examiner. That explains why this amendment is introduced.
Amendment agreed to.
Question—"That Section 14, as amended, stand part of the Bill,"—put and agreed to.
Sections 15 and 16 put and agreed to.
PROPOSED NEW SECTION 17.
I move:—
Before Section 17 to insert a new section as follows:—
"(1) The Office for Legal Assistance shall be under the management of the Officer for Legal Assistance.
(2) The Officer for Legal Assistance shall consider every application made to him in the prescribed form and if he is satisfied that by reason of the lack of means of the applicant or other sufficient cause that there is a prima facie reason for fear that the ends of justice may be defeated or that the applicant may not be able to secure the legal remedy or redress to which he may be entitled or that the applicant may be put to undue expense in securing such remedy or redress shall give such assistance to the applicant as he may deem reasonable in the manner and subject to the conditions prescribed by regulations provided by the Rules of Court."
This amendment embodies an idea that has been suggested more than once by me. It aims at making it possible for poor people to have the advantage of legal advice and assistance in pursuing their legal claims and protecting them against legal disability. It is not an innovation except in this country, that is to say, it is a proposition that has been, in one way or another, embodied in the statutes of several European countries and of America, and I think it is time, and I think this is a very opportune moment, to raise the question and have embodied this kind of assistance in our legal arrangements. The idea is to establish as an official of the courts an officer for legal assistance. The designation does not matter; such an officer has different descriptions in different countries, but in effect the intention is to make citizens, wealthy or poor, equal before the law, to give the poor citizen an opportunity to protect himself against injustice and to secure his rights. It is said that in respect of such a country as America 20,000,000 people are too poor to employ a lawyer. If that is anything like the case with regard to America it is probably correct to say that a very much larger proportion of the population in Ireland is too poor to hire lawyers. So conservative a public man as a former President of the United States, Wm. H. Taft, has spoken emphatically in favour of the extension of this proposition—the public defender—from a few States in America to all the States; and in Germany, and I think in Switzerland, Norway and other countries in Europe, such an office and such an officer is at the disposal of people who are too poor to engage lawyers and who would always be without legal assistance if there were no such public officials.
Sub-section (2) of the section which I propose says that "the Officer for Legal Assistance shall consider every application made to him in the prescribed form, and if he is satisfied that by reason of the lack of means of the applicant or other sufficient cause that there is a prima facie reason for fear that the ends of justice may be defeated or that the applicant may not be able to secure the legal remedy or redress to which he may be entitled or that the applicant may be put to undue expense in securing such remedy or redress, shall give such assistance to the applicant as he may deem reasonable in the manner and subject to the conditions prescribed by regulations provided by the Rules of Court." I think that it will be generally agreed that there are many cases where people without means are debarred by that fact from getting the advice and assistance in regard to law that they would be entitled to and would obtain had they such means. With respect, let us say, to claims under the Workmen's Compensation Act, a very big proportion of people who suffer from accidents and are entitled to compensation have a kind of legal assistance; they get assistance by virtue of the fact that they are backed by organisations which have legal assistance at their command. But there is a very large number of people who have not that support, who ought to be protected and have such advice of a legal kind as is necessary in respect of injury at their work through accident.
But apart from such cases as that, it is easily imagined how many cases arise where people, if they were in a position to seek an official and to get legal advice from him, would save themselves very much trouble and very much distress, and I would say that such an official should be available in most of the larger towns, if only as a conciliator between disputants and such an official as that has been appointed in other countries and has rendered very valuable civic service. If we have a public prosecutor it is not an unreasonable suggestion that there should be available, for people who are not able to afford it, a public defender. We know that the practice in the courts in respect of serious crime has been for counsel to be assigned to defend the prisoner, but that is not a sufficient safeguard. It very often happens at the last moment, when opportunities for the proper making up of a case are not available, and it is more or less accidental that a case is properly defended in such circumstances.
What I desire to see—and I would urge the Minister to consider this whole question—is that there should be an official ordinarily attached to the courts who could be approached by such a person who is unable to fee counsel, and get the legal assistance required. As I said, it is not by any means a proposition which is new and untried. It has been successfully tried and has been extended in other countries. I would like it to be possible to embody in this Bill, with a view to further embodiment in the Rules of Court that are to come before us some day, such a proposal, and I would ask the Minister to give favourable consideration to this amendment.
The problem which the Deputy's amendment adverts to is, of course, as he says, not a new one. It is one that has received a certain amount of attention in many countries, and so far as we can see no very ideal solution has been found. There is, in the old Rules of Court under which we are working at present, a certain limited provision to enable proceedings to be taken by or against poor persons. There are rules providing that, on proof of poverty and on the establishing of at least a prima facie case, facilities can be given. The Deputy, if he wants the reference, will find it under Rules 21 to 30 under Order 16. Rule 21 reads:—
Any person may be admitted in the manner heretofore accustomed to sue or defend as a pauper on proof that he is not worth £25, his wearing apparel and the subject matter of the cause or matter only excepted.
Section 22 reads:—
A person desirous of suing as a pauper shall lay a case before counsel for his opinion whether or not he has reasonable grounds for proceeding.
Section 23 reads:—
No person shall be permitted to sue as a pauper unless the case laid before counsel for his opinion and his opinion thereon with an affidavit of the party or his solicitor that the case contains a full and true statement of all the material facts
And so on
shall be produced before the Court or Judge.
Those rules were similar, if not identical, to the rules prevailing in England on the same subject. Then they went a small step further, such a step as, I think, Deputy Johnson would wish us to take under this Bill, but my information as to them is that they have not been completely satisfactory and that they have either been abandoned or are about to be abandoned in favour of a new scheme under which the legal profession itself is to arrange for the supply of legal assistance gratis in proper cases and to set up machinery for deciding what are proper cases. On the whole, while I am fully alive to the fact that there is a problem there which deserves and will receive consideration, I would not like to take a step simply by way of amendment to this Bill of establishing another office, which would probably be a costly office, to the regular establishments in connection with the Courts. I would like, too, to get some more definite and certain information as to the methods which have been adopted elsewhere. At the same time, I would like just to make the point that the need is not as great here as elsewhere. We have not just the same complex civilisation here that you have, say, in London or any of the larger capitals of the world, and I have not been able to find that there is a very crying need for the establishment of such an office as is contemplated by the Deputy's amendment. There is seldom a crying need without a fairly articulate demand, and we have received up to the time when the Deputy put down his amendment, scarcely any representations in favour of taking a new and further step along the line of providing facilities for litigation for poor persons. I would ask the Deputy to be satisfied with the assurance that we recognise the existence of the problem, but it is one towards a solution of which I would like to feel my way more carefully, and I am afraid I could not simply, by way of amendment to this Bill, take any step in the matter.
I appreciate the sympathetic manner in which the Minister has considered this proposal. I confess that I did not anticipate that he was going to embody this amendment, as it was drawn, in the Bill as perfect, and to proceed to make arrangements for the appointment of such an officer as is indicated. I think, however, that on further inquiry he will come to realise that it would be a step towards minimising the actual amount of litigation in the country and the trouble which people get into by virtue of their attempts to go to law. I have no doubt it is true that the simpler civilisation makes such a proposal somewhat less necessary than, let us say, in London or in America, but there are other countries in Europe which have provisions of a somewhat similar kind, where the civilisation is perhaps as simple as it is here. What I desire, above all, is to cheapen law and to prevent legal action in the courts. I think that if there was a public legal adviser to whom poor people could have access, it would probably save many contentions in the courts, and in other cases would give assistance which would prevent much injustice and consequently better regard for the law as a whole.
I would ask the Minister to follow up his promise by a really close inquiry into the operations in other countries of such a public legal defender and legal advisers. The practice has been fairly general, and while it is true that changes are taking place in England and that instead of officials of the courts doing the work, in future the legal profession themselves are doing it with the authority of the courts and under rules, as I understand it. The movement is in favour of extending the system of public assistance to poor persons and of simplifying access to such persons, so that what is going to happen in the future is quite in line with what I desire to take place here: that is to say, that people who are without wealth and without means to fee lawyers may have reliable legal assistance and not be thrown into the jaws of sharks, who are called lawyers sometimes, and that they will be able to rely on competent legal assistance rather than be misled into taking the advice of incompetent legal advisers. I think we ought to make some provision for such public assistance as I have indicated. With the leave of the House, I desire to withdraw the amendment, but I hope the Minister will pursue the inquiries which I have urged upon him.
Amendment, by leave, withdrawn.
Question—"That Section 17 stand part of the Bill"—put and agreed to.
SECTION 18.
The Registrar of the Supreme Court shall act as registrar to that Court and also as registrar to the Court of Criminal Appeal and shall perform and fulfil in relation to those Courts all such duties and functions as are usually performed and fulfilled by the registrar of a court and shall also have and exercise such powers and authorities and perform and fulfil such duties and functions as shall from time to time be assigned to him by statute or rule of court.
I move:—
Amendment 19.—In page 6 to insert at the beginning of the section the following sub-section and words:
"(1) The Registrar of the Supreme Court shall have the superintendence and control of the Office of the Registrar of the Supreme Court but shall in the exercise of such superintendence and control be subject to the general direction of the Minister in regard to all matters of general administration and to the directions of the Chief Justice in regard to all matters relating to the conduct of that part of the business of the Supreme Court and the Court of Criminal Appeal respectively which is for the time being required by law to be transacted by or before one or more of the judges of those courts respectively.
(2) In addition to the superintendence and control aforesaid."
The effect of that amendment is to leave the executive control with the Minister as to the routine work of the office of the Supreme Court and the Court of Criminal Appeal, but it makes it clear that control does not extend to the judicial side, and it makes the Registrar responsible to the Minister on the executive side.
Amendment put and agreed to.
Question—"That Section 18, as amended, stand part of the Bill"—put and agreed to.
Question—"That Section 19 stand part of the Bill"—put and agreed to.
SECTION 20.
The Registrar to the Chief Justice shall have and exercise all such powers and authorities and perform and fulfil such duties and functions in relation to the exercise of the jurisdictions transferred to the Chief Justice by Section 19 of the Courts of Justice Act, 1924 (No. 10 of 1924), as shall from time to time be conferred on or assigned to him by statute or rule of court and in particular (unless and until otherwise provided by statute or rule of court) shall have and exercise all such powers and authorities as were immediately before the passing of this Act vested in the Registrar in Lunacy in Ireland or in the Chief Clerk to the Lord Chancellor for Ireland and shall perform and fulfil all such functions and duties in relation to the exercise of the jurisdictions aforesaid as were formerly performed and fulfilled by the said Registrar in Lunacy and the said Chief Clerk respectively.
I move:—
To insert at the beginning of the section the following sub-section and words:—
"(1) The Registrar to the Chief Justice shall have the superintendence and control of the Office of the Registrar to the Chief Justice and shall in the exercise of such superintendence and control be subject to the general direction of the Minister in regard to all matters of general administration and to the directions of the Chief Justice in regard to all matters relating to the exercise of the jurisdictions transferred to the Chief Justice by Section 19 of the Courts of Justice Act, 1924 (No. 10 of 1924).
"(2) In addition to the superintendence and control aforesaid."
That has exactly a similar effect with regard to the Registrar of the Chief Justice as the preceding amendment had with regard to the Registrar of the Supreme Court.
Amendment put and agreed to.
Question—"That Section 20 as amended stand part of the Bill"—put and agreed to.
SECTION 21.
"No person shall be appointed under this Act to be Master of the High Court unless at the time of his appointment he is a barrister of not less than ten years' standing who either is then actually practising or has previously practised for not less than ten years."
Perhaps I might save some trouble on this if the Minister would indicate whether amendment 23 covers the point I am seeking in amendment 21.
I move:—
"To add at the end of the section the words ‘Provided always that any member of the staff who is otherwise qualified shall be eligible for appointment and for this purpose a member of the staff of ten years' standing who is also a barrister shall be deemed to be a practising barrister.'"
What I desire in amendment 21 is to make it possible that a member of the staff who has been in the service for a period of ten years and is also a barrister shall be deemed, for the purpose of this section, to be a practising barrister. I do not know how many this section may affect. It gives a possibility to some people who are in the courts if they are specially qualified to be in the running for the appointment of Master of the High Court. A practising barrister who has not had practice in the courts would be eligible under this section as it stands provided he has had actual practice in the courts for ten years, but he might not have knowledge of the working of the courts and the actual operations within the courts, whereas under the section a barrister who has been working within the courts and knows all the Rules of Court and has experience in the courts would be ineligible, that is to say, practice in pleading would be a qualification, but experience in the courts, having become a barrister, would leave the person ineligible. It seems to me there is a difficulty there which does not make for greater efficiency. I think there is a good deal to be said, provided educational qualifications and character qualifications are equal, for the argument that the person who has had actual experience in the administrative work of the court is better qualified for the mastership than a man with only equal qualifications but without that experience in the administrative side of the court work. The object of this amendment is to make it possible for such a person having that administrative experience and being a barrister to be appointed if otherwise eligible and otherwise preferable.
I am anxious to support Deputy Johnson in this amendment. I think the spirit of it is sound and I hope the Minister, if he does not see his way to accept it in Deputy Johnson's words, will accept either that or the alternative definition given in amendment No. 28 for the Deputy-Master of the High Court, which makes it possible for an existing official to become Deputy-Master. I think it should be also possible for an official with those qualifications to be a Master. As Deputy Duggan knows, there are barristers and barristers. There are some who, instead of practising, become professors of philosophy and leaders of parties. I have known barristers who have become leader-writers on newspapers. Therefore the word "practising barrister" is wisely put in; but a barrister, an official of the courts, is not in the same position as those who follow the attractions of politics or journalism. He is in constant touch with the work. He knows what is going on every day. He is in a legal atmosphere and therefore he should, as Deputy Johnson urges, be held eligible for the highest post. There is another point. The Minister, on the Second Reading, said he was anxious to avoid anything that would add to the Pensions Vote. That is his desire. It is, I think, the desire of the Dáil, and it is certainly the desire of the country, that we should not be burdened with more pensions than we can avoid. If he will leave the highest posts open to the officials of the court, he will give them an inducement to continue in their work. The word "economy" has become rather fly-blown; and by doing this you will effect some saving in the charge on the public for pensions. Therefore I hope the Minister will accept the spirit of this amendment and make the position of Master open to the existing officials of the court.
The Deputies will agree that we have gone very far and gone much further than any previous Government towards opening up every post, in the courts, to the staff. The only exception to that general provision is this position of Master and Taxing Master. There will probably be three in all, because I think it is likely in future that two Taxing Masters will be sufficient. That was not done in any arbitrary way. It was done after consideration and reflection. Perhaps the Deputies will agree that there is a strong case for having this chief officer in the court, a man taken from the ring who has lived the life of the Bar, who knows barristers, who has practised with and against barristers, rather than simply a man who has worked his way up through the grades of the Civil Service as it will be in the future. There is, I suggest, a difference between a B.L. and a barrister, between the man who has a degree, simply as a degree, in the same way as he may have his B.A. or M.A. from the University and a man who knows the minutiæ of the practice of the Bar and has himself practised.
I think there would be a very definite feeling, certainly of the members of the legal profession, and, I think, of most people familiar with the working of the courts, that this officer ought to be a man known to, and readily accessible to all the people who are in the ring, all the practising members of the profession, and that he should have a personal knowledge of the requirements and the difficulties of the profession. It is considerations of that kind which cause me to exclude this one post from the ordinary promotion of the staff, and to take the decision that the man to fill that post must have practised for a prescribed period or must be actually practising. In the same way we felt that the taxing masters ought to be people taken from the solicitors' profession and men of standing in that profession and known to its members.
It is not really that point of view, but just that we feel that a man would not be competent to discharge the duties of the office who had not practised in the profession himself. Those were the general considerations, and while I have, in the interval during which the Bill was under considerations, received one or two representations in the contrary direction, I was not convinced that it was not wise and sound and proper to take the chief officer, the Master of the High Courts, from the practising profession, or, at least, to say that he must, at the same time, have practised himself. We have thrown all the other offices open freely to the staff and made them accessible by promotion. I feel disposed to adhere to that one exception.
The Minister has really been answering a case that has not been made. One would think from the Minister's speech that Deputy Johnson's amendment made it compulsory for him to appoint an official, whereas that is not the case. The Minister could appoint a practising barrister if the amendment is carried. It only provides that if there happens to be in the courts an official with exceptional qualifications, and if the Minister thinks that he is better fitted for the post than any practising barrister he can appoint such a man.
I know. Perhaps I made the case incompletely. The case which I intended to outline was that it seems to me that the practising members of the profession are entitled to demand that the man who will fill that post will have practical knowledge of the requirements of the profession, such a knowledge that could only be acquired by having lived the life of a practising member of the profession.
I think there is a defect in the Minister's argument, even taking his own view of the desirability of having as Master someone who has had experience. Within the proposals of the Bill as they stand a person may be appointed, if otherwise thought qualified, even though he may have been outside practice for twenty years. He may have been outside the courts for twenty years, provided that he had practised for ten years. Then he might retire to the profession of journalism or to the professional chair for another ten or fifteen years, and he would still be eligible to be appointed as Master, whereas the man in daily touch with the profession, with a knowledge of the comings and goings, would be ineligible. I think there is a defect even from the Minister's own point of view. If he said that this clause should provide that the man who is to be appointed must be actually practising up-to-date the argument might be water-tight, but, inasmuch as it makes it possible for a man to be appointed as Master who has been out of touch with the courts for twenty years, by making it impossible for the man who is qualified as a barrister but has been in daily touch with the actual administrative side of the courts up to date, he creates an anomaly that ought to be remedied. As Deputy Cooper has emphasised, there is no suggestion here that you must appoint such a person or that there is going to be any inevitable rise of an incompetent. It is making it possible for the best qualified person to be appointed if that person happens to be an officer of the courts.
I think this is a point which might be argued indefinitely. I would like to say that I rather agree with the Minister as against the proposition to leave the office open to promotion within the staff. It is all very well to say that the amendment merely proposes to insert the word "may." I think you have got to make up your minds that the amendment means that either the post is going to be compulsorily filled by qualified men on the staff or that an outsider is going to be put into an invidious position by coming in under certain circumstances. The insertion of the word "may" is going to create a position in which the ordinary staff would claim promotion to the office, and if they do not get it there would be a distinct grievance. Where you put in the word "may" I think you might as well put in the word "shall." Under the new order of things these offices are going to be laid down on a Civil Service basis. While one has the greatest possible admiration for civil servants in connection with their training and ability, may I say that the Civil Service runs largely in a groove and that these offices would be no exception to the ordinary offices in which things go very much in a groove. This particular post should be thrown open for the appointment of a barrister who has had ten years' practice, rubbing shoulders with other barristers, and getting an intimacy, not only with his brother-barristers and with court procedure, but also with the general public and the views of the public on various matters. That is an experience which you cannot get in the ordinary routine of office. I think that the position is one which should be looked forward to by distinguished members of the Bar, as an office that ought to be thrown open to them in the ordinary way just as the position of a judge is thrown open to members of the Bar as an ordinary incentive in connection with their public and private life.
Of course Deputy Johnson, in putting forward his amendment, advances reasonable arguments. As far as I am concerned I believe that the State will be better served by the appointment of a person who has the qualifications laid down in the Bill. Deputy Johnson raised a question that a man who may be ten years at the Bar, may disappear for another period and then come back still qualified. I do not know how you would get over that difficulty as regards the appointment, but I would say that the Minister appointing a man who had been away from the Bar for a considerable time, occupying a position not analogous to that of Bar practice, would be stretching his authority very considerably. I do not imagine it is the intention that any such person should be appointed. If it is the intention that such a person should be appointed I think that an amendment might be properly framed to prevent any such thing happening.
I totally disagree with Deputy Hewat upon this matter. This officer's duties will be largely, if not entirely, administrative. He will have the general superintendence and control of all offices established by this part of this Bill. That is to say, his duties will be administrative very largely. A man may be an exceedingly good advocate at the Bar, have a very large practice, and plead cases very eloquently, but may be altogether helpless if put into an office. That is what is contemplated. He has the superintendence of the officers, who will be mainly civil servants, and I maintain that a man who has worked himself up through this office is at least as likely to be capable of superintending and controlling these offices as a man taken from the Bar who will be largely new to these duties and to this work. It is as likely that a man of that type if he has other qualifications —and if he has not the Minister would not appoint him—who has large experience of official routine of this kind will be capable of doing the work which we set out for him to do in this Bill as the man who has never had any experience of office work or of official duties.
I do not think that the Master's duty is quite correctly described by Deputy O'Connell.
The Master of the High Courts shall, "subject to the general direction of the Minister, have the general superintendence and control of all offices established by this part of the Act." It is quite clearly an administrative office and experience of administration, I urge, is at least as valuable for the work to be done as experience in advocacy in court.
I think that the Master is very largely in touch with the judges and the regulation of the court business.
Question put.
The Committee divided: Tá, 21; Níl, 42.
Tá:
- Pádraig Baxter.
- John Conlan.
- Bryan R. Cooper.
- Séamus Mac Cosgair.
- Tomás Mac Eoin.
- Pádraig Mac Fhlannchadha.
- Risteárd Mac Liam.
- Tomás de Nógla.
- William Norton.
- Ailfrid O Broin.
- Criostóir O Broin.
- Tomás O Conaill.
- Aodh O Cúlacháin.
- Tadhg O Donnabháin.
- Mícheál O hIfearnáin.
- Seán O Laidhin.
- Pádraic O Máille.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
- Pádraig O hOgáin (Luimneach).
Níl.
- Séamus Breathnach.
- Seoirse de Bhulbh.
- John J. Cole.
- Máighréad Ní Choileáin Bean Uí
- Dhrisceóil.
- Desmond Fitzgerald.
- John Good.
- Thomas Hennessy.
- William Hewat.
- Connor Hogan.
- Seosamh Mac a' Bhrighde.
- Parthalán O Conchubhair.
- Conchubhar O Conghaile.
- Máirtín O Conalláin.
- Eoghan O Dochartaigh.
- Séamus O Dóláin.
- Mícheál O Dubhghaill.
- Peadar O Dubhghaill.
- Pádraig O Dubhthaigh.
- Eamon O Dúgáin.
- Seán O Duinnín.
- Liam Mac Cosgair.
- Pádraig Mac Fadáin.
- Patrick McGilligan.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Pádraig Mag Ualghairg.
- Patrick J. Mulvany.
- James Sproule Myles.
- John T. Nolan.
- Peadar O hAodha.
- Mícheál O hAonghusa.
- Seán O Bruadair.
- Aindriú O Láimhín.
- Séamus O Leadáin.
- Fionán O Loingsigh.
- Séamus O Murchadha.
- Máirtín. O Rodaigh
- Seán O Súilleabháin.
- Andrew O'Shaughnessy.
- Mícheál O Tighearnaigh.
- Caoimhghín O hUigín.
- Seán Príomhdhall.
Tellers:—Tá: Deputies T. O'Connell and Cooper. Níl: Deputies Dolan and Sears.
Amendment declared lost.
Agreed to report progress.
The Dáil went out of Committee.
Progress reported.
Committee to sit again on Friday.
