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Dáil Éireann debate -
Friday, 25 Feb 1927

Vol. 18 No. 10

PRIVATE BUSINESS. - CIRCUIT COURT APPEALS BILL, 1927—REPORT.

I move: "That the Bill be received for final consideration."

I want to advert again to the point I made on the Second Reading stage of this Bill, and to give expression to my doubts as to the wisdom of this form of legislation. I doubt whether it is, in fact, in accordance with constitutional requirements. I have a belief that there was some meaning in the provision of Article 68 of the Constitution which provides that the judges of the Supreme Court and High Court shall not be removed except for stated misbehaviour or incapacity, and then only by resolutions passed by both Dáil Eireann and Seanad Eireann, and that the remuneration of judges shall not be diminished during their continuance in office. I think the provisions regarding judges were not intended mainly to protect judges. I think the object of provisions of that kind was to protect citizens, and they were inserted in the Constitution rather to protect citizens against possibilities of panicky action or unfair discrimination on the part of an Executive or even a Parliament. It is not an unknown thing that Parliaments have been apt to introduce legislation of a panicky nature in time of political excitement, and the object of the Constitution is largely directed to saving the public from that kind of spasmodie action of Parliament. In defending this provision the Minister made certain statements which certainly raised or rather increased the doubts which I had as to the wisdom of this provision. He pointed out that these Commissioners are not made High Court judges by the fact of being set up by statute, invested for the time being with particular powers—appellate jurisdiction of High Court judges. "I stress the fact," he said, "that it is the particular powers of a High Court judge which are vested in the Commissioners, and they are being set up ad hoc to deal with certain functions of a High Court judge to try certain classes of cases." It is not because of the immediate circumstances that I am making these representations, but because of the precedent that is being created and, particularly, in view of the explanations given by the Minister for making this precedent. The section says that when hearing and determining appeals under this Act the Commissioners shall have all the powers, jurisdiction, and privileges of judges of the High Court, and in every way these judges are to be judges of the High Court for the particular purposes of the Act. If that is possible, under the Constitution, I want to know what is to prevent a Ministry and a Parliament passing an Act of a similar kind, getting round the Constitution, and setting up High Court judges with particular powers to try particular cases? In my opinion the effect of this kind of specially set up ad hoc court is to evade the requirements of the Constitution. It is a bad principle and makes of no effect that provision in the Constitution, so far as that provision is intended to be a protection of the public —as a protection of the judge it is all right—but we did not put into the Constitution articles of that kind merely for the protection of judges' salaries or their tenure of office. The Constitution provision is to protect the public against panicky action on the part of the Legislature or Executive and, I think, the precedent that is being set up by setting up judges to fulfil functions of a High Court judge in special cases might be followed when political excitement prevails, and it is sought to set up a special court to try a special kind of prisoner. That, I say, is an evasion of the constitutional provision and I think we ought to avoid it.

The Deputy avoided saying in so many words he considered the Bill a breach of the Constitution—that he considered the Bill unconstitutional. I wonder whether he thinks it is. If he does, no doubt he will push his view and his protest further through the appropriate channel, but I am advised that that is not the position, that it is in accord with the Constitution to introduce and to pass a measure of this kind. Unlike Deputy Johnson, I have to deal with the practical situation with which I am confronted. I have to deal with facts rather more than with theories, and the actual position is that there are 520 appeals from the Circuit judges pending, the oldest, I think, dating back to October or November of 1925. What action should I take to deal with that situation? I am not satisfied, as I have said before in the Dáil, that there is a case for the appointment of an additional permanent High Court judge, and I will take a lot more convincing on that point. I certainly would not ask the Dáil to sanction such a step until this accumulation of arrears has been cleared, and which I regard as abnormal, and we have had the opportunity of observing the manner in which the High Court is then able to keep in touch with current work.

The tendency is, I think, and will continue to be, that the High Court will become less and less a court of original jurisdiction and more and more of dealing with appellant work from the Circuit Courts. Before asking the Oireachtas to sanction the appointment of an additional judge of the High Court I certainly want to see the situation as it exists after these arrears have been cleared away. I gave on the Second Reading of this Bill my reasons for believing that if the arrears are once cleared away the High Court will be able to keep in touch with its normal work without an additional appointment. Facing these facts I thought it right as an alternative to asking the Dáil to sanction an increase of the High Court Bench to appoint Commissioners of Appeal, who would exercise for a period the appellate jurisdiction of the High Court. I think it is a reasonable proposal. I do not regard it as either an infringement or an evasion of the Constitution. If Deputy Johnson adheres to his view his course will be to challenge the Bill in the courts as unconstitutional. That is not my advice. I think, faced with the actual situation, faced with 520 appeals from the Circuit Court, that this is a sensible and appropriate step to take and the step that is most in the public interest.

I had intended drawing attention to the position outlined by Deputy Johnson on the occasion of the Second Reading of the Bill, but I was prevented from doing so owing to being laid up and not able to attend the Dáil. I think it is well the question has been raised, and it is also satisfactory we should know from the Minister that he has made inquiries, and is now satisfied that the action he proposes to take is constitutional. People like Deputy Johnson, if I might say so, and certainly like myself, are not in a position to take a matter like this and challenge it in the courts. Neither are we—speaking for myself certainly—in the position of the Minister in having at our disposal expert opinion on the matter, but it is somewhat satisfactory, to say the least, that we have now a definite assurance from the Minister that he, having made inquiries, is satisfied on the advice given to him, which I presume is the best legal advice obtainable, that the action he has taken is constitutional. Prima facie there does seem to me something unconstitutional in the action. As far as I can remember Article 64 of the Constitution lays it down that the judicial powers shall be vested in judges to be appointed as hereinafter provided for, and Article 68 then provides the method of appointment of these judges, laying it down that they shall be appointed on the advice of the Executive, and shall be permanent in the sense that they shall not be removable except they have proved themselves to be unfit for their office either by incompetency or wilful misconduct. That being so, it is hard to see at first glance that persons can be appointed in whom judicial powers are vested in accordance with these two articles of the Constitution. I admit that there is a difficulty to be got over in regard to the present state of appeals, but my complaint really is that the Minister has not tackled this question from another point of view, namely, that he has not come to see at long last that the whole system embodied in the Courts of Justice Act, 1924, has broken down. I am sorry that evidently he has not seen that, and that the appointment of temporary Commissioners, or call them what you please, is only a mere temporary expedient to bolster up a system which is well known to have failed.

There is a huge number of appeals pending. It has been stated that one of the reasons for this is the operation of the Damage to Property Act, but that is not my information. Most of the appeals pending are appeals in ordinary civil cases that would have taken place even if there had been no damage to property, and even if these appeals will be wiped off by this temporary expedient, what is there to prevent a subsequent number of appeals accumulating in the future? The system whereby these appeals have been undisposed of is a system which was not in existence before the Courts of Justice Act. The old civil bill appeal from the County Court Judge was abolished. The civil bill appeal prior to the Act of 1924 consisted of a re-hearing of the case, and that re-hearing took place before judges who went down the country to hear these cases. The Courts of Justice Act did away with that and said: "No; there shall be no re-hearing by judges in the country. All appeals must come up to Dublin; they must be on the stenographer's notes, and they must be heard by judges of the High Court in Dublin." The Judges of the High Court have not been able to hear these appeals, because they have not been able to devote the time to them and at the same time attend to their other duties. I think, with respect, that it would be better for the Minister to have made a through investigation of the whole working of the Courts of Justice Act and to have devised some means, not only for disposing of these appeals now but for preventing such a state of affairs coming into existence again. The Minister says that he would be loath, if he could avoid it—I think that that was the sense of his statement—to appoint another High Court Judge. I quite follow his position in that regard as a custodian of the purse of the State. But if he, on investigation, were to come to the conclusion that another High Court Judge, or two, were required, I put it to him that it would be more satisfactory to settle this matter upon a permanent basis than for the moment to use a temporary means, which, to say the least of it, though it may not be unconstitutional, is not exactly in accordance with the spirit of the Constitution.

While I am on that point let me say that the Constitution under which we now are is a written Constitution, that it has embodied some of the greatest axioms of the British Constitution, which is an unwritten one, and one of the great safeguards of the British Constitution for the public at large is the absolute independence of the judiciary. That has been, very rightly, embodied in our Constitution. But though this may not be a strict departure from the letter of the Constitution, I do not think it is advisable in any way to depart from the spirit embodied in the principle that I have enunciated. These gentlemen who will be appointed will be, in many respects, equivalent to Judges. The Minister may say that they will not actually be judges, but they are to be vested with the full judicial powers of High Court Judges, in respect, it is true, only of the work on which they will be called upon to adjudicate. These gentlemen will, no doubt, conduct their courts with all fairness and impartiality, but at the same time there is no getting away from the fact that while they are there, they are there only for the moment, and they are not in the same position, no matter how well-meaning they may be, as judges, who, once appointed, are for ever absolutely independent of the Executive.

I do not suggest for a moment that any appointment such as the Minister contemplates will mean that special treatment will be given, say, to State cases. In these very cases that I have mentioned—Damage to Property Act cases—the Minister for Finance is himself one of the parties. He is in most cases the appellant, and he will come as the appellant before this Court, a Court that is only brought into existence temporarily.

I say that that is not a right position, either for the State or the court to occupy, that no matter how upright the judges may be, it is not fair either to the party on the other side, which is not the State, nor is it fair to the judges themselves, nor is it proper for a Department of State to come before a court which is only brought into existence temporarily and the conduct of whose affairs must inevitably form the subject matter of comment by the State afterwards. I think, therefore, from all points of view, from the point of view of the breakdown—I say the breakdown—of the Courts of Justice Act, from the point of view of the semi-unconstitutional, if not completely unconstitutional action in the appointment of these judges, and from the point of view of the conduct of the affairs of the State by the Government, that it would be far better for the Minister to have evolved, after due consideration and investigation, some plan whereby the Courts of Justice Act could be permanently amended to meet the requirements of the case at the moment, which requirements may occur in the future just as much as in the past, and which this remedy certainly will not be the means of avoiding.

When the Deputy rose to speak, I anticipated the line that he would take. There are 520 pending appeals from the Circuit Court. Therefore, says the Deputy, the Courts of Justice Act is all wrong——

That is not the only reason.

——let us go back to the good old days of assizes, civil bill appeals, and so on. This appeal on notes to the High Court is all wrong. It does not give the same opportunities to the legal profession. Incidentally may I add, it does not give the opportunity to litigants that existed in the past to mend their hand. If the Courts of Justice Act is defective, as the Deputy suggests, might I remind him that it was based on the unanimous report of a committee of experienced lawyers, who had every opportunity of familiarising themselves with the defects of the system that had hitherto existed. They condemned the practice of a full rehearing of Circuit Court cases, and they condemned it with very intimate knowledge of the abuses to which it gave rise. But the Deputy, I am aware, in yearning for the good old days is, in fact, speaking the authentic voice of his profession. But we have to decide whether the law and the legal processes exist for the lawyers or for the people of the State, and it will take more argument than the Deputy has so far retailed to us to convince me that it would be in the real interest of the people of the State to scrap the system of appeal on notes from the Circuit Court and go back to the full re-hearing, with all the opportunity which that afforded for a stopping of the holes which manifested themselves when the case was first tried.

We know that the County Court trial of the past was simply like the preliminary gallop before the race. Each litigant sized up the strength and the weakness of his opponent's position. He mended his hand in the interval between that and the appeal, and the real test was when the re-hearing came on appeal. The other was fencing. Five hundred and twenty appeals from the Circuit Court is the position with which we are faced, and there is sought to be built on that structure that the Courts of Justice Act has broken down, that it needs either to be scrapped in its entirety, or drastically overhauled. I do not accept any suggestion of the kind. I gave, on Second Reading, in the Deputy's absence, the considerations which led me to believe that when these appeals were cleared away the High Court will be able to deal with its normal current business. The considerations were that the Central Criminal Court, which is presided over by a High Court Judge, disposed of a very large volume of business since its constitution, and the arrears of criminal business are now practically wiped off. It is to be presumed that that court will not make such demands on the time of High Court judges in the future. In addition, fifteen days have been taken off the Long Vacation since last year, and the High Court is now assisted by a master. The work performed by the master was performed in the past by the judges, and the fact that there is a master under the Court Officers Act must mean a saving of practically the time of one judge. For these reasons I refrain from recommending to the Dáil any addition to the High Court Bench at the moment. As I say, it does not surprise me in the least that the Deputy would hail these 520 appeals as a complete case against the Courts of Justice Act——

Of course I have not said that.

——that it is the decentralisation which is disliked and the lopping off of the old full re-hearing of a case, with new evidence admitted, instead of an appeal on notes. Many of these appeals will be withdrawn when the Act is passed and when the Commissioners get to work. The Deputy knows that. He knows that many of them are simply blocking, bogus appeals which neither the litigants nor their professional advisers will persist in when the court is there, functioning and ready to hear them. It has been our experience in the past that quite a large proportion—over 50 per cent.— of appeals were put in simply for the purpose of blocking the judgment creditor over a period.

Does that speak well for the Act?

That was the experience in the past. I venture to forecast to the Deputy that of those 520 appeals these Commissioners will not have to try 300.

That may be so, I quite admit, but I say that that does not speak well for the system by which the appeals that have been made have been held up for over two years. It is the system to which I object.

Well, the Deputy's system would, no doubt, be very different. Whether it would be better, from the point of view of the layman, the ordinary citizen up and down the country, is quite another matter.

The layman wants his case heard.

Yes, and we are making provisions to hear it. I do not agree with the Deputy that he has no remedy if the Bill is unconstitutional. If the Bill is unconstitutional, the matter can be brought before the High Court, or the Supreme Court, for a decision. But if the real contention is that, quite apart from the Constitution, the thing to do to meet this 520 appeals position is either to add to the High Court Bench here and now, with no belief that the normal situation will require such addition, or to scrap or drastically amend the Courts of Justice Act, then I do not accept either of these contentions, and I adhere to the position that the step that the Executive Council is taking, on the advice of the Attorney-General, is the soundest and most appropriate step to take.

Question put and declared carried.

I move:—"That the Bill do now pass."

Question put and declared carried.

I should like to be recorded as dissenting.

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