Dáil Éireann debate -
Wednesday, 18 Apr 1928

Vol. 23 No. 1

RULES OF THE CIRCUIT COURT. - MOTION OF APPROVAL.

MINISTER for JUSTICE (Mr. Fitzgerald-Kenney)

I move:—

"Go gceaduíonn an Dáil na ‘Rialacha Cúirte Cuarda' a dhin an tAire Dlí agus Cirt an 16adh lá de Mhárta, 1928, fé Alt 66 den Acht Cúirteanna Breithiúnais, 1924 (Uimh. 10 de 1924); agus go bhfuil sé oiriúnach na rialacha san do theacht i ngníomh an ladh lá de Lúnasa, 1928.

"That the Dáil approves of the ‘Rules of the Circuit Court' made by the Minister for Justice on the 16th day of March, 1928, under Section 66 of the Courts of Justice Act, 1924 (No. 10 of 1924); and that it is expedient that the said rules shall come into operation on the 1st day of August, 1928."

This is a motion that the Rules of the Circuit Court which have been drafted by the Rule-Making Committee should receive Parliamentary sanction, as without the sanction of the Dáil and the Seanad these Rules do not come into operation. The volume containing the Rules is a very bulky volume indeed, and I would venture to suggest to the House that in order that public time may be saved as far as possible in the discussion we should not formally discuss these Rules to-day, but that we should postpone discussion of them for about a fortnight. It would facilitate matters very much, I think, if any Deputy who found fault with any Rule would kindly communicate with me and let me know the Rule with which he found fault and the defect which he found in it. As I say, this is a very bulky volume, and it contains a great number of Rules. Although I have gone through the Rules pretty well, I think that I cannot yet claim that I have got a complete mastery of every one of them and of every one of the details in connection with them.

I therefore venture to ask any Deputy to give me notice of any Rule which he thinks might be amended. We are all interested in the Circuit Court Rules and in having them as good as possible, and it is entirely a non-controversial matter from the Party point of view. The House is aware that I have no power to make Rules of my own, nor has the House any power to make them. Rules are made by a Rule-Making Committee. They are the only body who have the power, and these Rules do not become operative until they have been approved of by both Houses. Therefore the power of the House really consists in vetoing, not in constructing new Rules. I need hardly say, however, that I am strongly of the opinion that if the House expressed its view that a Rule should be amended the Rule-Making Committee will take that matter naturally very much into consideration. I should say that the Rule-Making Committee have given the most unsparing attention to the production of these Rules. I do not claim they are perfect. I do not think that any rules of this nature of a new kind can be perfect. Defects in any rules, no matter how skilfully drafted, will inevitably show when they have been in actual operation, but I would venture to think that the Rule-Making Committee have done their work, not only painstakingly, but most successfully.

AN CEANN COMHAIRLE

The Minister is moving that further consideration of the motion be postponed.

Mr. RUTTLEDGE

We on these Benches are satisfied with the suggestion made by the Minister as to postponing these for a fortnight and that amendments might be put in in the meantime. I take it that he means that if we disagree with any Rule or if Deputies consider that any Rules should be amended, amendments to these can be put before the Dáil. If we are to take it that this Rule-Making Committee has absolute power to make Rules and that we have no power of amendment except to veto them, it leaves us in a very peculiar, if not unfortunate, position. A great many of the Rules, as far as I can see, deal with matters of practice, and could be more or less agreed to, but there are others which in their present form entail, some of us think, unwarranted expense and also considerable delay which previous procedure did not entail. There is also disappointment that the Minister, notwithstanding the experience that he has had, and the general dissatisfacation throughout the country with the system obtaining of having appeals from the Circuit Courts on stenographers' notes, is still apparently adhering to that practice. As the Minister is aware, representations have been made to him on several occasions as to the dissatisfaction that exists with regard to that procedure, but, notwithstanding that, he has not seen fit to incorporate any change in the Rules now before the House.

Mr. FITZGERALD-KENNEY

The method of appeal is statutory and the Rules could not make a new method.

Mr. RUTTLEDGE

I put a question some time ago as to whether the Minister had any intention of changing that procedure and the reply given by the Minister was that he could not consider the matter until the new Rules were some time in operation. What the new Rules are going to effect, or what they are going to do to remove that defect, which is generally believed to exist, I do not see—I mean the operation of the new Rules.

Mr. FITZGERALD-KENNEY

If I might answer the Deputy in this matter: Until the Circuit Court has been completely in operation, the question of whether the method of appeal from the Circuit Court is or is not a good method cannot be decided. Until these Rules are in operation the Circuit Court will not be in full working order. For instance, there is the whole question of pleading.

Mr. RUTTLEDGE

Is the Minister not aware that under the procedure that exists up to the present, except that it may not be laid down in a regularised form and except that there may be in these Rules certain forms for certain methods of practice—mere details of practice—the Circuit Court has been in full operation for a considerable time past. You may now be extending or more clearly defining certain parts of its jurisdiction. But in the main the Circuit Court exists to-day as it will exist practically under the new Rules, and the experience that we have of the system of appeal is the same experience that we will have in future.

Mr. FITZGERALD-KENNEY

If I might say so, the error in the argument is that the Circuit Court has been operating really under the County Court Rules up to the present, and the County Court Rules were not satisfactory for a court that has no connection with the County Court.

Mr. RUTTLEDGE

It was operating with the more extending jurisdiction than the County Court.

Mr. FITZGERALD-KENNEY

That was quite a different court. The Circuit Court is not a successor to the County Court. I am trying to make that clear. It has an entirely new method of procedure.

Mr. MORRISSEY

I understand the position of the House in this matter is this: the House has no power to amend these Rules; they must be accepted or they must be rejected. I understood from the Minister that if any member of the House wished to make a suggestion as to a change or alteration in the Rules as they are at the present moment he would be prepared to receive such suggestions in the next fortnight and submit them to the Rule-Making Authorities for consideration.

Mr. FITZGERALD-KENNEY

I would consider each particular one myself, and if it appeared to me to be really substantial improvement I would undertake to convene the Rule-Making Authority and ask them to consider it. The suggested change would, of course, have to be a substantial improvement, because the Rule-Making Authority has gone to tremendous trouble in these matters.

Mr. MORRISSEY

The point I want to make is could not these suggestions be discussed here?

Mr. FITZGERALD-KENNEY

Certainly.

Mr. MORRISSEY

The suggestions could be discussed here in the House, and if a majority of the House were in favour of certain suggestions it might have the effect of getting the Rule-Making Authority to accept them.

Mr. FITZGERALD-KENNEY

Certainly. That is the reason I ask that any member who wishes to have a Rule improved or thinks that it could be improved would be good enough to let me know about the matter before the discussion comes on, so that I would be in a position to know what was in the mind of the Rule-Making Authority when it made the particular Rule.

Mr. RUTTLEDGE

Is that only merely on the construction of the Rules, or will the House have any say as to the amendment of a particular Rule, unless they oppose all the Rules? I gather that is what the Minister said. I think something similar was said when the District Court Rules were introduced. I am not clear about that, but I understand the House was told that they should accept the Rules, and that they were taken in globo, and that the House could not criticise a particular Rule. The Rules were passed through the Dáil and sent to the Senate. They were returned from the Senate to the Dáil on the ground that the Senate would not be allowed to alter certain Rules, and these came back to the Dáil for amendment. Could not the same procedure be adopted now? Where Rules are defective or calculated to cause hardship, could not these Rules come before the House for consideration?

Mr. FITZGERALD-KENNEY

The Deputy knows that it is by Statute the Rules are made. The Rule-Making Authority was created by Statute. I think it is better that the Rules should be made by a Rule-Making Authority rather than by the House. How on earth could the House draft and consider and debate each one of these Rules? If they did so they would have time for nothing else. The old Rules, of course, were always made by the Rule-Making Authority, whether they be the Rules of the County Court or the High Court, without any discussion in the House of Parliament.

Mr. RUTTLEDGE

I do not mean that at all. What I mean is if the House comes to the conclusion that certain Rules create hardship, and that members of the House consider they are not suitable, that the House should be in the position to send them back to the Rule-Making Authority to alter them.

AN CEANN COMHAIRLE

That is the position now. The position is that a Statute passed by the Oireachtas created the Rule-Making Authority, and merely leaves to the two Houses the power to approve or to fail to approve of the Rules when made. If a particular Rule does not meet with the approval of the House, the situation is exactly what Deputy Ruttledge said in his last statement, namely, that the Rules may go back to the Rule-Making Authority, through the Minister, and they may be altered and new Rules would then be put up for approval. But the House is not in a position either to approve of a certain number of Rules only, or to amend the Rules. The word amendment has been used. It is really a matter of suggestion. The actual amendment of the Rules can only be effected by the Rule-Making Authority. Therefore, amendments to the Rules cannot be sent into the Clerk in the same way as amendments to Bills. That is the situation.

Mr. FLINN

If the House failed to approve of all the Rules, are the Rules then rejected? I am addressing the Chair, but the Chair does not seem to have the courtesy to listen. (Deputies: Oh! Oh! Order!)

Mr. T.J. O'CONNELL

I think it is only right that you, sir, should ask, in the name of the House, that that remark should be withdrawn.

Mr. FLINN

If I have misunderstood the Chair that the Chair would not listen to a member of the House who was raising a point of order, I must certainly——

Mr. McGILLIGAN

Withdraw properly and not have any hypothetical nonsense.

Mr. G. BOLAND

We will have no hypothetical questions from you.

AN CEANN COMHAIRLE

I wonder if the House is satisfied with that withdrawal.

DEPUTIES

"No, no."

Mr. McGILLIGAN

Certainly not.

Mr. O'CONNELL

I, personally, am not satisfied. I think that for the honour of this House we should not allow remarks of that kind to be made regarding the conduct of the Chair. The Chair ought to be above criticism, even though the Deputy may feel that he has been badly treated. There is a way of showing that, and a way of moving in the House to have the action of the Chair dealt with if such is deserved. But I think that the House, as a whole, apart from party of any kind, should resent criticism of that kind made by Deputy Flinn. I personally am not satisfied with the withdrawal of the Deputy in the matter.

Mr. FLINN

The position was this: that I rose to a point of order and asked you a question. You were engaged, apparently, in conference with an officer of this House. You were not, apparently aware, as far as I could gather, of what was said to you or in a position to answer. I paused and waited to see if any attention of any sort or kind was being paid and, as far as I could see, no attention was being paid. I may have been wrong in that opinion, and if so I withdraw it. But if I was right in that opinion, that attention was not being paid by the Chair to a member of the House raising, in a proper manner, an orderly point of order, then I say that the discourtesy, the gross discourtesy on the part of the Chair to a member of the House——

Mr. A. BYRNE

There was none.

Mr. FLINN

I say that in my opinion the discourtesy——

AN CEANN COMHAIRLE

Will the Deputy keep to what he said and whether he is now withdrawing it?

Mr. FLINN

I have said that if I was mistaken in imagining that the Chair was not paying attention to an orderly point of order raised by me, then I would withdraw what I said. But if I was right in imagining that the Chair was engaged in conference with an official of this House and was not paying attention to a member of this House who was raising a point of order, then I say the discourtesy was on the part of the Chair to this House and not that of a member to the Chair.

Mr. O'CONNELL

Cannot the Deputy have the common decency to withdraw an insult—what he knows was an insult?

Mr. FLINN

Cannot you have the common decency——

Mr. O'CONNELL

He knows it was an insult. Every man of common sense knows it was a deliberate insult to the Chair.

The PRESIDENT

In matters of this kind there must be at all times and there has been at all times, from all members of the House, the utmost possible respect and deference to the Chair. Never during my time here have I heard a hypothetical withdrawal on the part of any Deputy and never have I heard any such inference drawn by any Deputy as to the conduct of the Chair. Assuming for a moment that the Ceann Comhairle was engaged in conference with an officer of the House, that is part of his duty and, in deference to his office, he ought not to be addressed by any Deputy in the course of that conference. I would strongly advise the preservation of that courtesy on the part of Deputies towards the Chair, and the unrestricted withdrawal of any statement calculated to reflect in any way on the conduct of the Chair.

Mr. FLINN

The standard of courtesy to the Chair, as represented by the President, is represented by his statement to the Chair that he could understand the difficulty of the Chair in ruling out of order a member of his own party.

AN CEANN COMHAIRLE

Deputy Flinn cannot bring into this matter any other question. What he is now doing is referring to another incident altogether—referring to a statement of the President which before the rising of the House on that day was withdrawn by the President. The question at issue here does not concern the President. It concerns Deputy Flinn himself and he must keep to that.

Mr. FLINN

If you put it like that, I withdraw the suggestion that the Chair has been deliberately discourteous to a member of this House.

The PRESIDENT

I must say I am not satisfied with that statement. The question was discourtesy, not deliberate discourtesy, and I would suggest to the Deputy the desirability of withdrawing the word "discourtesy" without any adjective.

Mr. A. BYRNE

Unreservedly.

Mr. FLINN

I withdraw the word "discourtesy."

AN CEANN COMHAIRLE

Will the Deputy repeat the question he asked me?

Mr. FLINN

Am I to understand that the position is, that if a single Rule in this schedule made by the Rule-Making Authority is rejected by the House, the whole of the Rules are rejected and sent back automatically to the Rule-Making Authority?

AN CEANN COMHAIRLE

My attention was being drawn to the section of the Act which governs the Rules of Court and the relation of the two Houses to these Rules when the Deputy was previously putting his question. The Section, I think, is 101:—

"No Rules of Court made under this Act shall come into operation unless and until they have been laid before each House of the Oireachtas and have been approved by resolution of each such House."

I think the Rules must be approved in globo, taken together and approved in the terms of the motion on the Order Paper. If the Deputy considers that the Rules should be gone through one by one and a motion of approval for each Rule proposed, he is under a misapprehension with regard to the procedure. It is suggested that if one Rule is disapproved of the whole must be disapproved. No decision of the House would change a particular Rule. The suggestion is that if in the discussion of the Rules one Rule or a number of Rules are disapproved of by the House, the Minister may make the suggestion to refer them back to the Rule-Making Authority. The House, of course, has power to reject the Rules simply because it objects to one or more, but it rejects the whole, not a part.

Mr. FLINN

Does it not amount in practice to the fact that by rejecting the Rules we can amend them? We can then keep rejecting and sending them back until they are altered by the Rule-Making Authority to a form of which the House will approve. That would seem to me to be using a steam hammer in cracking a nut; that the House, instead of inserting its own amendment, is put in the rather invidious position of rejecting the whole in order to criticise a part. That seems to me to be the position: that if we object to any Rule we must reject that Rule and then reject the whole of them. Then they would come up again for approval and, so far as I can see, if there was a majority that disliked ten Rules it would be in a position to send them back time and again, and the only safeguard they have is the fact that there is a majority prepared to carry out any instructions given in relation to the matter. I think the position is quite clear and that we have power to alter.

AN CEANN COMHAIRLE

I think there is not any necessity to add anything to what I have said about the Rules. The Act of Parliament is there. The debate is adjourned until Wednesday, 2nd May.

Debate adjourned until May 2.