Courts of Justice Bill, 1934—Second Stage

The Attorney-General

On behalf of the Minister for Justice, I would like to move that this Bill be read a Second Time. The Bill, as Deputies will no doubt have observed, is based largely on the report of the Joint Committee of the Dáil and Seanad which considered these matters some five years ago and presented its report on the 6th November, 1930. I do not propose at this stage to delay the House any longer than is necessary to refer to the more important amendments effected by the Bill and to indicate in what respects we have or have not implemented the Joint Committee's report.

Perhaps the two most important changes embodied in the Bill are:— (1) the increase in the strength of the Supreme Court and (2) the alteration in the method of hearing appeals from the Circuit Court.

In making these two important alterations of the existing system we are acting on the recommendation of the Joint Committee of both Houses. It may, however, be said, with considerable truth, that whilst we are in these two important matters following the Committee's report in the general sense, we are not implementing the report, so far as it concerns these matters, in its entirety.

The Committee's recommendations were: (1) That the Supreme Court ought not to consist of only three members; (2) that there should be such addition to the number of judges of the High Court as may be necessary to enable that Court to perform all its work without any accumulation of arrears; and (3) that appeals from the Circuit Court should be dealt with locally by way of rehearing, two High Court judges sitting together, at least in the more important cases, and the stenographer's note to be retained, not as the basis of the appeal, but as a useful adjunct.

The extent to which these recommendations have been carried out and the extent to which they have not been carried out may be summarised as follows, viz.: (1) It is proposed in Section 4 to appoint two more judges of the Supreme Court, but we are providing that any appeal or other matter may be heard by a court consisting of such number of judges being not less than three nor more than five as the Chief Justice shall determine; (2) it is not proposed to add to the number of High Court judges; and (3) we are providing in Part IV of the Bill that appeals from the Circuit Court should be dealt with by way of rehearing, locally; that is, we are abandoning the method introduced by the 1924 Act, whereby these appeals are heard in Dublin on shorthand notes and reverting to the system which operated in the days of the old county court. We are, however, providing for one judge only in the hearing of the appeals, and we are not making any provision for the retention of the stenographer's note. On these two matters the Bill diverges from the recommendations of the Joint Committee. Also, it is provided in Section 39 that appeals in civil jury cases will be heard in Dublin on the notes of the Circuit Court judge and that every such appeal shall be brought by way of motion for a new trial.

Deputies will doubtless expect an explanation of the extent to which our proposals fall short of the Committee's recommendations. As far as the constitution of the Supreme Court is concerned, we contemplate that a full court of five will be available for cases of the first importance, and that a Supreme Court of three members will still be competent to deal with a great number of appeals from the High Court. I do not think that anybody will seriously suggest that every case that goes to the Supreme Court is of such importance that it could not be dealt with by a court of less than five members. If our proposals receive the assent of the Oireachtas, the position will be that the two additional Supreme Court Judges will be frequently available to assist the High Court and that the two other ordinary Supreme Court Judges may, in certain circumstances, be also available for this purpose. It is partly due to this provision that the recommendation of the Joint Committee as regards increasing the personnel of the High Court has not been followed. Furthermore, we are providing that all the ordinary judges of the Supreme Court will be available in addition, of course, to the High Court Judges for dealing with appeals from the Circuit Court. We believe that these arrangements will obviate the necessity for an increase in the personnel of the High Court without causing any undue embarrassment to the Supreme Court or affecting the dignity or standing of that court as the final court of appeal.

In providing for one judge only for Circuit Court appeals we have borne in mind that there is a large body of opinion in favour of this course, and also that it will eliminate the possibility of dissatisfaction arising in cases resulting in a difference of opinion between two appeal judges. I think the experience of those concerned with the working of the courts generally is that as an appellate tribunal one judge is, on the whole, a more satisfactory tribunal than two. A further point is that if appeals are to be heard by two judges, it is almost certain that the appointment of at least one additional High Court Judge will be found necessary. So far as official stenographers notes are concerned, our view is that these notes first became a feature of civil cases in the courts as a result of the system of appeal established by the 1924 Act, and we think that with the abandonment of that system the official stenographers' notes must also go.

It will be apparent that, over and above other considerations, the Government in arriving at decisions on the points with which I have been dealing felt compelled to have due regard to the interests of the general taxpayer as well as to those of the litigant, and I frankly confess that where the decision was in doubt one way or the other the deciding factor has been the necessity for economy. The result is the compromise which is expressed in the Bill.

In pursuance of the same line of thought, I may, perhaps, here allude briefly to the provisions of Section 47 of the Bill regarding the pensions of justices of the District Court. Here again we have thought ourselves obliged to adopt a middle course between the existing law and the recommendations of the Committee. Under the 1924 Act a justice of the District Court has the same pension terms as a civil servant; he cannot obtain the maximum pension until he has served for 40 years. The Committee recommended full pension after 15 years' service. It is to be feared that, in making this recommendation, the Committee did not advert to the fact that men are usually appointed to the District Court Bench at a comparatively early age and that the recommendation, if carried into effect, would, in fact, entitle several of the existing justices to retire on full pension at a very early age indeed. This proposal was naturally regarded with great disfavour by the Minister for Finance, and we finally reached an agreement on the basis of full pensions for justices of the District Court after 30 years' service and proportionately smaller pensions for a lesser number of years' service, with a concession to those few of the original justices who, by reason of their comparatively advanced ages on appointment, are required to retire before they had served even two-thirds of the necessary 30 years.

The Joint Committee made certain minor recommendations regarding the existing Rule-making Committees which were designed to improve the working of these Committees. We have introduced in Part VI of the Bill certain proposals which will, we hope, achieve more fully the object aimed at by the Joint Committee. The present law as regards the making of Rules of Court is that they are made by the Minister for Justice with the consent of the appropriate Rule-making Committee and do not come into operation until they have been approved by a resolution of both Houses. The Department of Justice has made representations that that system has not worked well in practice. There was delay and confusion as regards both the District Court Rules and the Circuit Court Rules, and no serious attempt has been made to revise or codify the Rules of the High Court. The Minister for Justice has formed the opinion that whatever advantages there may be in theory from having the Rules of Court made by an Executive Minister and debated in the Oireachtas before coming into operation, these advantages are completely overshadowed in practice by the delay and confusion caused thereby.

In the case of the District Court Rules, to which I have referred, one of the Houses declined to pass certain Rules—a very small and insignificant part of the total—and the question then arose as to whether this refusal invalidated all the Rules, and after the Rules had been in operation for a considerable time this question actually went to the Supreme Court and resulted in a majority decision for the validity of the Rules. In the case of the Circuit Court Rules, a complete code—compiled with great care—was rejected by one of the Houses and rejected substantially on the plea that the jurisdiction of the Circuit Court was too extensive, a plea which was not only really irrelevant but which was itself rejected in principle by the Joint Committee which advised that the jurisdiction of the Circuit Court should remain unchanged. We think that less cumbersome machinery is necessary if Rules of Court are to be made and changed speedily as may be required in practice, and we have, accordingly, proposed to leave the making of these Rules in the hands of the Rule-making Committees, subject only to the consent of the Minister for Justice.

We also propose to give each Rule-making Committee a definite statutory secretary, so that interested people will know to whom to address any complaints or suggestions which they may desire to make. Furthermore, we are imposing in Section 70 a statutory duty on the secretary to summon a meeting of the Committee once at least in each year for the purpose of considering the practice, procedure and administration of the court in relation to which the Committee is constituted. The Committee is required by the same section to report to the Minister for Justice whether any and, if so, what amendments should be made in the Rules. I am sure it will be agreed that that is a great improvement on the present position.

Section 19 of the Bill gives effect to a proposal of the Joint Committee that jurisdiction in the winding-up of companies and in lunacy should cease to be exercised by the Circuit Court. We have, however, after careful consideration, decided to allow the Circuit Court jurisdiction, as regards minors, to stand. It appears to be popular and useful. The Bill also carries out a number of other less important recommendations of the Joint Committee upon which I do not think it necessary to dilate at this stage. There are also other recommendations which we think may best be left to the Rules Committee.

I propose to refer briefly to certain of the Committee's recommendations of a more or less important nature which we have not adopted. Possibly the most important of the recommendations in this category is that dealing with the question of transfer of actions from the High Court to the Circuit Court. Under the existing law as interpreted in a judgment of the Supreme Court—Hosie v. Lawless— the question for the court to consider, on an application to transfer an action pending in the High Court which might have been commenced in the Circuit Court, is whether there is anything in the action which takes it out of the general policy of the Courts of Justice Act, 1924, and makes it more fit to be tried in the High Court than in the Circuit Court. The Joint Committee recommend that an action should not be transferred to the Circuit Court if it was shown that it was reasonable that it should have been commenced in the High Court. In other words, the Committee considered that access to the High Court should be made easier than it is under existing conditions. We have not accepted this recommendation. I think the House will agree that if an action is within the jurisdiction conferred on the Circuit Court by the Oireachtas, it is proper that it should be prosecuted in that Court unless it is shown that there are some special circumstances obtaining which make the action more fit to be tried in the High Court than in the Circuit Court.

The Committee recommended that the ages of retirement of judges and district justices should be extended. The present position is that judges of the Supreme Court, High Court and Circuit Court are required to retire on reaching the age of 72 years, and that district justices must retire at 65, except in the cases of the Dublin Metropolitan and Cork City justices, who may continue in office until reaching the age of 70 years. The Committee proposed that the ages of retirement of Supreme Court, High Court and Circuit Court judges should be 75 years and of district justices, 72 years. We do not think it would be wise, in the interest both of economy and efficiency, to alter the present retiring ages, and we are accordingly not accepting the Committee's proposals in this respect.

Another recommendation of the Committee which we are not implementing is that dealing with the qualification for appointment as district justice. Under the present law a practising barrister or solicitor of not less than six years' standing may be appointed a district justice. The Committee wanted the qualification period extended to 10 years. The qualification periods in the case of Supreme Court and High Court judges is 12 years, in the case of Circuit Court judges 10 years. Having regard to these figures, I do not think the period of six years in the case of district justices is too short, and we do not accordingly propose to make any change in the existing position.

There are certain proposals in the Bill to which I should perhaps direct special attention at this stage, for the reason that they do not arise directly from anything contained in the Report of the Joint Committee. Thus Section 8 of the Bill is entirely new in this sense. This section transfers from the Chief Justice to the President of the High Court, or a judge nominated by him, the jurisdiction as regards minors and persons of unsound mind which is historically associated with the Lord Chancellor. It seemed to us that the Chief Justice's time was so intimately associated with the work of the Supreme Court that any special duty thrown upon him must necessarily delay the work of the Supreme Court generally, or, to put the matter in an admittedly exaggerated form merely in order to make the point perfectly clear, it might be said that under the present system the whole Supreme Court is required, so far as loss of time is concerned, to deal with this class of business. Also it seemed to us not altogether proper or elegant that an appeal should lie, even in theory, from the decision of the highest judge in the State. Discussing the matter with the Chief Justice, I found that he had no objection to the proposal, subject to certain safeguards as regards the privacy of the work and the adequacy of the High Court personnel to cope with the extra work, with which I was in full agreement.

It will be observed that as regards the circuits of the Circuit Court, it is proposed to abandon the eight statutory circuits created by the 1924 Act in favour of nine circuits which are to be specified by order of the Executive Council. When the 1924 Act was passed it created eight statutory circuits and eight judges, one judge to each circuit. It was soon discovered that the Dublin circuit required two judges permanently, and that two of the other circuits were so heavy as to require between them practically the whole time of another or tenth circuit judge. Accordingly, after an interval during which things were tided over by the appointment of temporary judges, an Act was passed (No. 15 of 1928), authorising the permanent appointment of two or more judges of the Circuit Court, in addition to the original eight, two of the ten judges to be "movable" judges, assignable by the Minister for Justice from time to time to whatever circuit stood in need of assistance. In point of fact, however, one of these two theoretically "movable" judges has been assigned since his appointment to the Dublin circuit, and the other spends almost his entire time in the counties of Donegal and Sligo. On the other hand, in certain other circuits the judges are not fully occupied. In these circumstances, we propose to abandon the idea of "movable" judges, which has in fact caused some confusion, and to reapportion the country into nine circuits, of which the Dublin circuit will have two judges and the other circuits a judge apiece. If possible, we hope to arrange matters so that one of the judges outside Dublin will have a circuit considerably lighter than the other, with the intention and on the understanding that he will devote his spare time to assisting in the Dublin circuit. We hope in this way to get the entire work of the Circuit Court kept up to date without increasing the number of judges, and without too frequent exercise of the power of appointing temporary judges, which power, however, we are retaining as a precaution. I may perhaps add that the task of dividing the country into circuits so as to ensure that each judge will have enough work to do, and yet not too much work is not an easy one: the pace at which different judges work varies greatly, and there are at present circuits which leave their existing judges a fair amount of leisure, but which might overtax other judges.

It will be observed that power has been taken by the Minister for Justice in Section 61 to fix court fees with the approval of the Minister for Finance, and without reference to any other authority. The present law in the matter is contained in Section 57 of the Court Officers Act, 1926, and under that section the Rule-making Committee of each court has a veto over any proposals to increase fees. It is the definite view of the Minister for Finance, which certainly seems to be supported by statistics from other countries, that the revenue derived by the State from litigants in our civil courts by way of court fees is too small in proportion to the amount which the general taxpayer has to contribute towards the maintenance of the courts, and cases have been cited where the amount of court fees did seem ridiculously small in comparison to the large sums which the litigants were prepared to pay and did pay for other purposes in the same cases. It is felt that the Executive Government has a right and a duty to determine the proportion in which the general taxpayer, on the one hand, and the litigant on the other hand, shall provide the sums necessary for the maintenance of the civil courts, and that the decision formed by the responsible Ministers on that subject should not be liable to be vetoed by the Rule-making Committee.

I think that the provisions of Section 49 of the Bill call for some special mention at this stage. It has unfortunately happened that one or two justices of the District Court have from time to time been guilty of indiscretions, not serious enough to call for their removal from office, but serious enough to justify a formal rebuke and warning. I am glad to say that these cases are rare: the great majority of the justices manage to do their work without giving offence to any reasonable person. Nevertheless, we feel that there should be some middle course open to the Government in dealing with a justice who, whilst he does not commit any one definite offence serious enough to justify his dismissal, is not keeping up to the general high standard of dignity and reticence. At present no such middle course is open. There is statutory power to remove a justice from office, but there is no power to warn or censure him. Under the Act of 1924 a justice may be removed from office for misbehaviour on the certificate of the Chief Justice and the Attorney-General. We are now asking the President of the High Court to join the Chief Justice and the Attorney-General so as to form an advisory committee of three whose duty it will be to investigate fully any complaint referred to it by the Minister for Justice and to recommend what action should be taken.

The present tribunal, as everybody who has any experience in such matters will probably agree, is an unsatisfactory one. First of all, there is the difficulty which I mentioned a moment ago with regard to the constitution of the courts for hearing circuit appeals—that it is a court of two. It is a most unsatisfactory tribunal in my opinion. We propose, under this Bill, to constitute a committee of three, and give to the majority of that committee jurisdiction either to recommend the transfer or punishment otherwise of the District Justice in connection with whom a complaint has been brought before it, or to refuse to do either of those things. It will be observed that on that committee there are two judges. Therefore, the jurisdiction of dealing with the District Justices is, one might say, committed to a judicial authority. I think this is a great improvement on the present system, apart altogether from the necessity and value of the additional provisions as regards the way in which the District Justices may be dealt with. There is only one other matter to which I think it necessary to refer and that is the proposal for a majority verdict by nine members of the jury in both civil and criminal cases. Deputies are probably aware that that particular provision is not new, in this sense, that it was first embodied in the Juries Act which expired some two years ago, and during the operation of which in all criminal cases the law was exactly as is proposed to be provided for under the present Bill. There has been a good deal of criticism of that section, and I do not wish to say that the Government are wedded to it or want to insist upon its being embodied in the Bill. If the weight of opinion is in favour of the law being allowed to remain as it is at the moment I think there will be no objection to that course on the part of the Government. This particular Bill has been under draft for a considerable time, and until some considerable period had elapsed from the passing out of effect of the 1927 Act we had not an opportunity of judging exactly what would be the effect of returning to the old law with regard to unanimous verdicts. I think it is arguable that the experience has been, since a return was made to the old law, that no great difficulty has been found in the working of the criminal law, and that there has not been any greater number of disagreements in criminal cases than there were during the period of its operation. It may well be that the value of that provision was more theoretical than practical. However, when we come to deal with it on the Committee Stage I imagine that the matter will probably be fully discussed and we can have the views of those who are interested in it.

Mr. McGilligan

Is the Attorney-General recommending this change?

The Attorney-General

I do not know if the Deputy considers that I have made clear what the attitude is.

Mr. McGilligan

Can the Attorney-General say what it is?

The Attorney-General

I have indicated, I think, that it is to be left to the House to decide whether or not the change is desirable.

Mr. MacDermot

Has the Government any opinion on the subject?

Mr. McGilligan

Has the Attorney-General any personal point of view?

The Attorney-General

My own personal opinion, if it is of value at this stage, is that the desirability of returning to the nine verdict has not been established.

Mr. McGilligan

So its inclusion in the Bill is against your point of view?

The Attorney-General

Unfortunately, as the Deputy is aware, the Minister is unable to be here, and I do not wish to commit him in his absence. He was taken rather suddenly ill before the House met, and I do not wish to outline what precisely his attitude is.

Mr. McGilligan

Was there an Executive Council decision in regard to this?

The Attorney-General

Presumably, when it found its way into the Bill.

Mr. McGilligan

Contrary to your point of view? I am only asking what authority is behind this recommendation.

The Attorney-General

I thought I explained with reasonable clearness the history of the matter——

Mr. McGilligan

We know the history.

The Attorney-General

——not alone as regards this particular provision but as to how it came to be in the Bill. I referred to the fact that since the Bill has been published this is one of the provisions against which most criticism seems to have been directed. This measure, as a whole, I presume, can hardly be regarded as a contentious one. This particular provision, as I say, is one upon which the Government is not taking any definite stand. The words I used were that the Government was not wedded to the proposal.

Mr. McGilligan

It is hardly even courting it?

The Attorney-General

I think I have now outlined the main features of the Bill at sufficient length to justify the House in passing the Second Stage. When the Committee Stage comes to be discussed we will probably have constructive criticism, and any suggestions for the improvement of the measure, whether from Deputies or interested bodies or individuals outside, will be considered.

Mr. Costello

We propose to oppose this measure and vote against it on the Second Reading. When we take up that attitude on this Bill in the particular circumstances that the country is confronted with at the moment we realise the great principle that was laid down by the Joint Committee which dealt with the matters that were before them in connection with the Courts of Justice, when they said they were

"convinced that the peace and credit of the country will depend more than anything else upon the impartial and efficient administration of the law by courts which will have the confidence and respect of the people and of the legal profession."

I take the view that this Bill, as it will work in practice, will not command the confidence either of the people or of the legal profession. We object to the Bill because it is inopportune in the circumstances of the present time. We object to the Bill because it will increase the cost of litigation both to the State and to the litigants. We object to the Bill because neither the state of business at the Bar, nor in the legal profession generally, warrants the provisions in this Bill nor does the economic condition of the country warrant it, nor the national finances. And we object to the Bill because it contains principles which are thoroughly unsound and even vicious. We object to the Bill, lastly, because not in one single instance in the major aspects of the Bill does it follow the recommendations of the Joint Committee.

We find in this Bill provision for the appointment of two new Supreme Court judges. Let me say at the outset that I am thoroughly in favour of the Supreme Court—the final court of this land—consisting of five judges. But let me quote for the House the resolution proposed by Deputy Little, and seconded by Senator Comyn, during the proceedings of the Joint Committee in reference to the proposal that the Supreme Court should consist of five judges. The recommendation of Deputy Little and Senator Comyn, the two representatives of Fianna Fáil on the Joint Committee, will be found on page xciv of the Report of the Joint Committee. Deputy Little moved and Senator Comyn seconded:

"The Committee are, however, convinced that the considerations which, it is stated in evidence, weighed against any recommendation by the Judiciary Committee of 1923 for an increase in membership of the Supreme Court are even more compelling to-day. The Committee are of the opinion that there should be no increase in the cost of the Supreme Court until the increased prosperity of the country warrants it, and until the volume of business in the Superior Courts urgently requires it."

The Fianna Fáil members of the Joint Committee in 1929 were of opinion that the prosperity of the country at that time did not warrant an increase in membership of the Supreme Court. The amount and volume of business in the Supreme Court at that time did not warrant the proposed reform. Compare the conditions, as regards prosperity, at that time with the present time. Is there any possible justification, not merely for the provision as regards an increase in the membership of the Supreme Court, but for any of the other various provisions in this Bill which will very largely increase the cost to the State and to the litigants, considering the plight of the farmers as it existed at that time and as it exists at present. In the year 1930-31, when the recommendations of the Joint Committee were under consideration by the last Administration, they came to the conclusion, acting honestly as they always acted, that they would not be justified in putting the taxpayers of the country to the increased expense consequent upon the putting into operation of the recommendation of the Joint Committee. It was because they had the feeling that the country at that time was not in such a position that they would be justified in increasing the expenditure on the courts of justice that the Joint Committee recommendations were not carried into effect. The country at that time was in a far better position, economically, than it is at the present time.

I believe before this debate is finished the House will hear the views of the farmer Deputies on this side of the House as to whether they are in favour of increased expenditure on the courts of justice and on litigation at a time when most of them are on the verge of penury and starvation. If Deputy Little and Senator Comyn thought, in 1929, that the prosperity of the country was not such as to justify increased expenditure in these directions, there certainly is no justification for such expenditure at the present time. Much as I am in favour of the reform of the judicial system, on the lines of this Bill, and on the lines represented by the Joint Committee, I could not possibly vote for this Bill in the circumstances of the country at the present time.

We have no information from the Attorney-General, acting for the Minister for Justice, as to what the cost of this Bill will be. Deputies should remember when they are considering that aspect of the case that a very large proportion of legal business has been taken away from the ordinary court of justice in this country. Deputy Little and Senator Comyn did not think in 1929 that the volume of legal business at that time justified the putting into operation of the reforms recommended by the Joint Committee. Deputy Little does not know, because he is not in active practice at the moment, what the state of the legal business at present is. But we who are in active practice know that there never was, certainly not in my time in the last twenty years, a period when there was so little business doing. The Bar is feeling the pinch and the legal profession generally is showing the repercussions from the economic conditions. There is very little business in the Supreme Court this term—there never was so little business in the Supreme Court in my time. Deputy Little who in 1929, when the Supreme Court was overworked, and unable to overtake its business, thought it was not an opportune time to increase its membership, now thinks fit to put into operation these recommendations when the economic conditions do not merely justify them, but do not in the least degree warrant them. This Bill is going to cost a lot. We do not know how much. A lot of the ordinary court work is taken away. The Military Tribunal is doing a considerable amount of criminal business. The Government has set up a new tribunal in connection with the Land Commission—an appellate tribunal. The land annuities cases are taken over from the District Courts and handed to the county registrars. Notwithstanding that, the Government are prepared to say that the prosperity of the country and the state of legal business justify them in bringing in this Bill. The Government are prepared to say that this condition of things justified them in appointing two Supreme Court judges and in changing the system of appeal from the District Courts which will involve very considerable expenditure, which must come out of the taxpayers' pocket. It will be necessary for judges to go on circuit. The Bill makes provision for registrars, for clerks, for forms, judges' allowances and travelling expenses, judges' lodgings, judges' servants, and all the rest. It makes all these provisions and it shows, as the Attorney-General frankly remarked to-day, and the opinion he expressed is mine also, that even under the provisions of this Bill it will not be possible to carry out the system of rehearing even with the increased judges provided under this Bill. The provision for Commissioners of Assize clearly demonstrates the Government's views that even with two additional Supreme Court judges and even with perambulating judges of Assize, it will not be possible to overtake the hearing of Circuit Court appeals under the new system.

All these new and additional expenses are going to be put on the taxpayer at a time when there is no justification for it and litigants are going to be charged these, as the Attorney-General has frankly admitted here to-day. It is quite clear that Section 61 was put in at the instance of the Department of Finance, who want litigants to pay their whack, and there is no provision in Section 61—I may refer to it again later but in case I do not, I want to refer to it now— giving any control by this House or by the Seanad as to the amount of fees that will be charged. It is one of the fundamental principles, or ought to be one of the fundamental principles, in connection with courts of justice that every citizen should have the right to refer to the courts of the land at the least possible price to himself. Under this Bill, it is proposed to increase the fees to litigants and the effect of that may be to keep poor people out of their rights, to keep them from defending themselves in the courts of this country and to keep them from establishing their rights through the constitutional courts set up in this country.

There is that danger in the Bill. It is obvious that the Department of Finance wants to extract some of the cost of this new system out of litigants' pockets. It is a compromise, the Attorney-General says, between the taxpayer and the litigant—a compromise which will injure both and benefit neither, in my opinion. It is going to increase, as I say, the cost of litigation, both to the taxpayer and to the litigant. I have referred to the fact that there never was such little legal business as at the moment. I said that during this last term—the term we are now in—the Supreme Court had just enough work to keep it fully occupied and no more. We have been able to dispense with one of our High Court judges and the work of the High Court has been carried on for the last three or four months— since the Long Vacation—on a staff of four judges. But we are going to appoint two new Supreme Court judges and we are going to change the whole system at a time when the economic conditions in this country are in such a parlous condition.

There are five or six principles in this Bill, five or six matters of major importance, and I want to draw the attention of the House to each of those in a very few words. The greater portion of the Bill is taken up with matters of unimportant detail and I do not propose to refer to those at the present stage. They can be dealt with more appropriately in Committee. The first big principle that appears in this Bill is the principle of the increase in the number of judges of the Supreme Court. I stated at the outset, and I restate here, that I am personally strongly in favour of the final Court of Appeal in this country being a court consisting of five judges. It is one of the few matters that are in common with the Government Party and every Party in this House, I think—certainly with this Party— that we have no use for the appeal to the Privy Council. We are both in agreement on that, but, because we are, it is incumbent upon us to give to the people of this country, and to the people of other countries who may come and litigate their affairs here against citizens of this country, a strong Court of Appeal which is the final Court of Appeal, finally declaring rights and laying down the law which will affect the citizens of this State for all time, until changed by the Oireachtas. It should be a court that would command the confidence and respect of every single citizen in the State, and command the confidence and respect of every citizen in other States who does business with us, because, as the Joint Committee said in their Report

"The peace and credit of the country will depend on the impartial and efficient administration of the law."

People who are going to have business dealings with us want to see what kind of a court they are going to be faced with, in the event of dispute arising in the course of those business transactions and you are not going to have any feeling of security, you are not going to have any feeling of confidence by people coming here, or our own people unless you have a strong and efficient court. I make no reflection, nor did the Committee who made their recommendations make any reflection, on the existing Supreme Court which consisted, for the last 11 years, of only three judges. The Chief Justice, in giving his evidence, pointed out to the Committee that he, in 1923, when the new court system was being established in this country, had recommended that there should be a Supreme Court of five judges. Everybody was in favour of that at the time, but there had been a Civil War, and it was not felt by the Government at that time that they would be justified in the financial conditions consequent on that Civil War in having a Supreme Court of five judges. But they were convinced, and were always convinced and agreed in toto with the recommendations of the Joint Committee, that there should be a Supreme Court of five judges. There should not be, and it is quite unjustifiable to set up in this country, a system by which you have a Supreme Court, the highest court in the country, the court that is supposed to command the greatest respect for its decisions, consisting of three judges and two others who will be sometimes in and sometimes out.

The new members of the Supreme Court will be sometimes High Court judges and sometimes Supreme Court judges and there may be sometimes a court consisting of three Supreme Court judges and two other High Court judges hearing appeals from the judgment of those two Supreme High Court judges. The thing is ludicrous nonsense. It is unjustifiable in principle and will bring nothing but disrespect for the court system of this country if persisted in. I would prefer that we should wait until the country was able to stand the cost of a proper Supreme Court, consisting of five members, rather than to have the mongrel proposition that is embodied in this Bill. There is no justification whatever for it. This Supreme Court, the Attorney-General says, should normally consist only of three judges and it is only in cases of first importance that the five Supreme Court judges should sit for a hearing and he said that he did not think it would be suggested that every case is of such importance that the five judges should sit upon it. I suggest that every case that goes to the Supreme Court of this country is of such first-class importance as to warrant a hearing before five High Court judges. Nobody is able to tell, when a case goes to the Supreme Court, what point of law is going to be involved in it. Nobody but an official who has never practised in the Supreme Court or in any of the courts of this country would ever make such a suggestion and the Attorney-General himself, I am sure, does not agree with it.

Cases that come before the Supreme Court are of relative importance. Some are of supreme importance, some of great importance and some of less importance, but the thing that has to be remembered is that every case decides a principle, small or great, and that principle is laid down by the Supreme Court of this country and is the law of this country. From that point of view, every case that goes before the Supreme Court is of equal importance in so far as it lays down those principles and in so far as it acts as a guide to other litigants coming into court. Is it to be said that the Supreme Court is to consist, sometimes of three and sometimes of five judges, and that when you see a case decided in the Supreme Court by three judges, the decision is not to have the same binding force, the same weight as precedent and the same effect in laying down what is to be the future law, affecting the rights and liberties of the people of this country, as a decision of the five judges? Is there to be an appeal from the decision of the three to a decision of the five? Where is it to begin and where is it to end? There can be nothing but confusion and nothing but ultimate disrespect for a court that will be composed in the manner in which it is proposed that this Supreme Court will be composed under the provisions of this Bill.

The Attorney-General

What about the Court of Criminal Appeal at the moment?

Mr. Costello

An utterly irrelevant observation on the part of the Attorney-General.

The Attorney-General

Oh, I see.

Mr. Costello

Section 5 deals with the power of making these new Supreme Court judges into temporary High Court judges. As drafted at the moment, the Bill puts these Supreme Court judges on the same par as the Military Tribunal. They will be an inferior tribunal subject to certiorari. It is proposed—

"that the Chief Justice may request any ordinary judge or judges of the Supreme Court to sit in the High Court as an additional judge thereof, and every judge of the Supreme Court so requested shall sit in the High Court and be an additional judge thereof for such purposes and during such time as shall be specified in such request."

In other words, when we are practising at the Bar we can go down to one of these new judges sitting in the High Court and ask him for what purpose is he there, for what length of time is specified in the request, and we can say to him that he is to sit there only for such purpose and during such time and no longer. If he goes one inch outside of what is specified in the request of the Chief Justice, then that judge is no longer a High Court judge; he is not a judge at all and he is subject to certiorari because his jurisdiction is limited, in the same way as that of the Military Tribunal. I do not know if such a position was intended. If this is a question of principle, or if it is only a question of drafting, it is clear that it should be altered. There is no justification for taking these Supreme Court judges and putting them into the High Court. The only justification for the proposal is one of expense. I think that may be inferred from one of the remarks made by the Attorney-General. That is the real reason. Rather than to bring such a vicious system into our courts it would be better not to have such a reform introduced at all. We should have the Supreme Court judges sitting and doing nothing else but acting as an appeal tribunal in this country to maintain the liberties and rights of the people. It would be much better to do that than to bring in the mongrel proposals embodied in this Bill.

That is not the only objection there. The Supreme Court judges have to go on Assize. They have to go and rehear cases of £50, £10 and £5 all over the country. I will be told that the old Lord Justices of Appeal in the British days used to go on Assize. If that argument is made to me, it leaves me cold, because I have no respect for that system. I think it ought not to be referred to. That is what we are doing in reverting to the point of view of the Supreme Court judges having to do the work of Assize. We are reverting to the British system. The Fianna Fáil Government, the patriotic Government, is reverting to the British system of Supreme Court judges going on Assize.

In any event, it is wrong. They are going to deal with small cases at Assize. The Joint Committee point out that 90 per cent. of the cases heard in the Circuit Courts from 1924 to 1929 corresponded roughly to the cases that would have been within the jurisdiction of the old Circuit Court— having regard to the fall in the value of money. It is quite true that 90 per cent. of the cases heard in the Circuit Courts would have been within the jurisdiction of the old county courts. Those are the cases that will be heard by the judges who ought to be aloof, sitting solely in the Supreme Court, building up for themselves respect in the country and in the legal profession as men learned in the law, and as men fit to lay down the principles of law as members of the Supreme Tribunal in this country.

They are to go around and hurriedly hear small cases and hear them, perhaps, without sufficient time for due or adequate consideration. I would like to go more fully into this matter but there are other points with which I want to deal. I want again to appeal to this Government not to enforce a system such as that embodied in this Bill. So far as I am personally concerned, and I speak for the other members of this Party, I want to say that if this Government brought in a proposal to have an ultimate tribunal of five permanent members of the Supreme Court it would receive enthusiastic support on this side of the House. So far as my Party is concerned, we will fight the present proposal all through until this Bill leaves the House.

The next big aspect of this Bill is the reversion to the British system of rehearing civil bill appeals. I realise that the majority of the members of my own profession—I cannot speak for the members of the solicitors profession—are in favour of rehearing. I state explicitly that I am personally entirely against that system, both in principle and as a result of my own experience on circuit for a fair number of years. The Supreme Court provisions in this Bill do not follow the recommendation of the Joint Committee. Neither do they profess, in reference to the new system of rehearing appeals, to follow the recommendations of the Joint Committee. The Attorney-General, in his statement, passed very lightly over the reason why the recommendations of the Joint Committee were not followed. I am against the system of rehearing on principle. In any event, if there is to be rehearing it will only be possible as a system which will give satisfaction and justice to the litigants if it is worked on the principle, recommended by the Joint Committee, of rehearing by two judges. There is no possible justification for rehearing by one judge an appeal from another judge. A High Court judge, because he has been appointed to the High Court, is deemed to know more than the Circuit judge. If we go back and speak not of the present but of the old judiciary, will not everybody who has ever been on circuit admit that you were faced with this situation: that the appeal judge had to rehear a case heard before the County Court judge, who was a better lawyer and a better judge of fact and life than the High Court judge, who was appointed because of his political affiliations. I am not now reflecting on any High Court judge or any future judge who may be appointed. It is sometimes a matter of accident. Even at the present time I will say that there are one or two Circuit Court judges who are the equals of the High Court judges. I will not go any further than that. But we will find that there will be a rehearing from one Circuit judge who commands the confidence of those who are practising before him, who commands their respect and in reference to whose decision on a particular case both sides are satisfied that he has correctly decided. But one side or the other, the side that is beaten will appeal in the hope that a judge of less experience, less knowledge of the world, perhaps even less knowledge of the law, will hear the appeal from the Circuit Court judge.

If you have two judges, at least you have two minds against one mind. Under this new system of rehearing you have one mind against another mind, the mind of a man who ought to be in no hurry hearing the case, the Circuit Court judge who, perhaps, knows from long years of experience as a Circuit Court judge, the mentality of the people with whom he is dealing. There is an appeal taken from him and it is heard by a man from Dublin in a hurry with no knowledge of the particular mentality of the country people of the county where he is sitting as Assize judge at the moment. That is not a system that can be justified in principle, nor is it a system that will ultimately give satisfaction to the litigants. I know I am, in a sense, like a voice crying in the wilderness on this question of rehearing. I know probably that this will be passed, but I do take this opportunity of voicing my own protest against that system. The system of rehearing is bad in principle. The reasons for it are given in the evidence that was submitted before the Joint Committee by the President of the High Court and the Chief Justice, notably amongst others, and I do not propose to restate it.

If the system of appeals must be changed, then there should be at least two High Court judges hearing the case and in no other way can it be hoped that this system will give ultimate satisfaction to the litigants or the public, or command respect. Again, that would be a costly matter. But why persist in this if we are not able to stand the expense? I would prefer to support the present Ministry in the expense of such a system. I would prefer to see them appointing the additional judges necessary for that system rather than support the proposals contained in the Bill, and I would be the first to congratulate such of my brethren at the Bar who are lucky enough to gain the advantage of the opportunity offered by such proposals. That is not enough. This Bill departs from the recommendation of the Joint Committee in a further very vital respect. The Attorney-General has not made any reference to the reasons why the provisions of Section 39 of the Bill were introduced. My colleagues at the Bar think that the provisions of the Bill about rehearing will benefit their profession. I sincerely hope so, as a member of a trades union, whilst I look forward with dismay and considerable perturbation to trekking around the country again on the occasion of Assizes. If it is going to benefit the profession, Section 39 of the Bill is going to take the substance out of any appeals that are going to be heard. What is the meaning of it? It is entirely unjustified. The Attorney-General did not make any reference to it in his statement, and, since I got this Bill, I have been unable to see what is the point of it. The provisions of Section 39 are to the effect that there is to be no rehearing of any case in the Circuit Court where it has been tried by a jury.

The Attorney-General

I did refer to it. I referred to it as continuing the present provisions.

Mr. Costello

I did not catch it. If the principle is to be accepted that there is to be a rehearing, why not go the whole way? Either have it one way or the other. Have it on the present system, which is a good system but has not got a proper chance. Have it altogether on the present system or altogether on the new system, but to have another mongrel provision in the Bill about rehearing is not satisfactory. What is going to happen? Everybody is entitled as of right, in accordance with the present law, to a jury in cases of tort. Everybody is going to have a jury from this on, in cases of tort in order to avoid a rehearing. Take a running down case, a negligence action. The plaintiff will have it. Why? He will have it because his junior counsel down there, making his way at the Bar and looking for business from the solicitors, will address the jury and he will appeal to them, as in fact they have been appealed to, and he will say "Are you going to find Paddy Murphy of Ballydehob guilty of negligence, your own fellow-townsman?"

Mr. Donnelly

They would not do that.

Mr. Costello

It has been done and, therefore, they will have a jury. What is the position of an insurance company that might be involved? Because the local jury will not find Paddy Murphy guilty of negligence the insurance company will have to pay and motorists will have to increase their premiums.

The Attorney-General

That is the law at present.

Mr. Costello

Certainly not.

The Attorney-General

At present the system of appeal from the verdict of a jury in a Circuit Court is a motion for a new trial.

Mr. Costello

Not at all. The Attorney-General is quite wrong. The provisions in this Bill are fundamentally different from the provisions in reference to appeals at the present time. The appeals at present from jury actions in the Circuit Court are on the notes of a stenographer. The appeals proposed here are on the judge's notes, doing away with the stenographer. Anybody who has had any experience of the practice by way of new trial motion knows what that means. At present the two judges in the City of Dublin have the notes before them and so everything in a negligence action is submitted to them. In the past few weeks I reversed a decision in a negligence action on the notes. I am quite satisfied, and I say it without hesitation, that if that case came up on the judge's notes I could not have stated the case. The principle at the moment is rehearing on stenographer's notes where there is, in theory at least, an appeal on fact. The new system proposed by those people who are the protagonists of the full rehearing is, that in cases of tort there should be, not a hearing on fact but a hearing on law based, not on stenographer's notes, but on the judge's notes.

Could I pause a moment and say one word about stenographer's notes as against the system of judge's notes? I intended to refer to it later in connection with what I regard as a very vital omission from this Bill, the omission to carry out the recommendation of the Joint Committee that there should be stenographer's notes on trials by judges with juries and trials by judges without juries in the High Court. Every practitioner knows, and the Attorney-General knows, that there is no more unsatisfactory form of appeal than an appeal on a judge's notes. The judge's notes consist of the hurried scraps he takes down in his notebook of the evidence given during the progress of the hearing.

The accuracy or inaccuracy of these notes depends on the capacity or incapacity of the judge to take down the evidence. Many judges prefer to retain the evidence in their head because it gives them the advantage of watching the witnesses and of ascertaining from the demeanour of the witnesses whether or not they are telling the truth. Now the judge has to forget about the witnesses and to spend the time during which he should be observing the demeanour of the witnesses taking notes. One person is able to take a full note, another is not. The person who is able to take a full note may or may not be a good judge. Your capacity to take a note of evidence does not determine whether or not you are a good or a bad judge. The effect of this will be, if you have a first-class judge hearing one of these cases, doing his business, watching the witnesses, controlling counsel, managing the case firmly, keeping it within proper limits, that his note must of necessity be scrappy and must be merely confined to such notes or hieroglyphics as will enable him afterwards to refresh his memory. It will not be possible for anybody to appeal from such a note, because you cannot state to a court of appeal what was the issue in the case, what was the evidence in the case, or sometimes even what were the grounds of the decision in the case. It is a thoroughly vicious principle which is introduced here.

I was going to appeal, and I do it here and now, perhaps somewhat out of its order, for the adoption of the recommendation of the Joint Committee providing that there should be official stenographers in the High Court. Those of us who have practised before a judge and jury know that one of the most important things in connection with any subsequent appeal from the verdict of that judge and jury is the judge's charge. That judge's charge does not appear on his notes, because it is delivered orally. In the hurry at the end of the case, after the charge, counsel have to get up and object to the charge there and then on certain specific grounds. You have to be pretty slick to be able to do it; but you also have to bear in mind that if you do it the judge may be cross and annoyed and may bring back the jury having heard your objection to his charge, and do you down before the jury. You have, therefore, to be very careful how far you object to the judge's charge. But if you do not object, and you appeal by way of new trial motion on that judge's notes, you cannot say a word about it in the Supreme Court because you will be asked: "Where is your objection noted by the judge?" Unless the judge is able to write shorthand, the notes must of necessity be scrappy, because a judge hearing a case in the High Court must watch the jury, must watch the witnesses, must watch counsel, and also must retain in his head everything that has been stated. He must concentrate upon what is going on and the effect of the evidence given and, in the course of the hearing, sift the wheat from the chaff, the relevant from the irrelevant. If he is taking notes as a scrivener his attention must be diverted. In paragraph 93, the Joint Committee recommended as follows:—

(a) An official stenographer should report the proceedings at every sitting of the High Court when engaged in the trial of cases, civil or criminal, with witnesses, whether with or without a jury. The official transcript in the former case to include the judge's charge and any directions or advice to the jury, with all objections taken or requisitions made, and in the latter his judgement, but omitting in both the speeches of counsel.

Such report to be available to the parties upon such terms as to payment as the Rule-making Authority shall prescribe.

(b) That the services of an official stenographer should be available for the Supreme Court to take down and transcribe judgments. The transcription should be submitted to the judges concerned for revision and be afterwards made accessible to the public.

Embodied in those recommendations of the Joint Committee is a reform that has been badly wanted by the legal profession on behalf of the public and the litigants for many a long year. The Attorney-General in his opening statement said they proposed to drop the system of stenographers because it had its origin in the system of Circuit Court appeals originated by the Courts of Justice Act, 1924. The system of stenographers existed long before the Circuit Courts, but it existed at the expense of the litigants. It was a very costly affair and was not even part of the official record of the proceedings. It did exist in the Chancery Court and it exists at present in those courts which correspond to the Chancery Court. It is nonsense to say that because stenographers were brought in for Circuit Court hearing by way of appeal on stenographers' notes and because that system has been done away with, therefore the stenographers should disappear from the Circuit Court and the High Court. They were never more needed than they would be if this new system is tried. They were never more needed than at present in the High Court, or rather I should say, in that part of the High Court in which the system of shorthand transcription does not exist; because it does exist in those two courts—Mr. Justice Johnston's and Mr. Justice Meredith's—which correspond to the old Chancery Court. In those courts at present the evidence is taken down by an official stenographer paid by the State, and the transcript of the evidence, as taken down by the stenographer, is the basis upon which appeals are taken in the Supreme Court. Why should not that be extended to the High Court? It would be a small expense which would be largely paid for by the fees charged to the litigants.

Not merely is that recommendation of the Joint Committee rejected, but the old vicious system of judge's notes is resurrected again in reference to jury trials before the Circuit Court. The Joint Committee recommended that the official stenographers should be retained in the Circuit Court; not that their transcript should necessarily form part of the record of the proceedings in the Circuit Court, but that it should be available to any of the parties to the suit in the Circuit Court on payment of the prescribed fees. What is the objection to that? I do not know—it passes my understanding.

One of the greatest objections to the new system of re-hearing is the facilities for perjury which it holds out. Everybody knows that cases were brought in the County Court as a trial run and then the litigants changed their cases when they came before the Judge of Assize. It is proposed to return to that system of re-hearing; but it is not proposed to give that safeguard against perjury recommended by the Joint Committee. Why I do not know. Why should it be necessary, as is proposed in this Bill by inference, to put out of employment, without compensation, those people who have been employed for the last 11 years as official stenographers? Not a single provision is made in this Bill for these people who have been in employment for the last 11 years. They are going to be turned out on the roadside without compensation. Many of these official stenographers were men who had been attached to the Press; sometimes to the provincial Press and sometimes to the Dublin Press. They have lost touch with their former occupation. Other people have got inside them. They have lost their connections with the Press. They are going to be turned out now from the positions which they have held for the last 11 years, because the present Government will not provide in this Bill, at very small expense, a safeguard against possible perjury due to the system of re-hearing proposed in the Bill, or a reform which the public, the judiciary, the Bar and the solicitor profession have wanted for many years in the High Court. The Chief Justice gave evidence before the Joint Committee in reference to paragraph (b) of Recommendation 93, and again it was based on the necessity for having some system which would command the respect and confidence of the country. At the present time the Supreme Court lays down the final principles which have to guide judges in reference to the cases that come before them. Judgments are sometimes written and sometimes delivered orally. There is no State official attached to the Supreme Court for the purpose of taking down those judgments. In many instances, cases of importance have not found their way from the Supreme Court into the law reports. The result has been that because they are not available, because even counsel cannot be aware of them, cases have had to be re-argued in the Supreme Court, at enormous expense to the litigants, which would never have been brought into court at all— not to say into the Supreme Court— if it had been possible to ascertain decisions by means of the system proposed here in this recommendation. This could be done by perusal of an official record lodged in the Supreme Court offices. I think the Attorney-General should give favourable consideration to the proposal for the reestablishment of official stenographers. If he cannot see his way to the establishment of official stenographers in the Circuit Court on the rehearing, at least he should give effect to that much-needed reform, and have official stenographers in the High Court.

The Attorney-General, in a rather brief and vague manner, has passed over the provisions of Section 8 of the Bill, transferring lunacy and minor matters from the Chief Justice to any and every judge of the High Court. I, personally, am utterly and irrevocably opposed to the provisions of Section 8 in that respect, and so far as I am concerned I will oppose it at every stage. The system of lunacy and minor matters being committed to the care of the Chief Justice has been in operation for eleven years to the supreme satisfaction of the litigants, the public, the judiciary and the legal profession. During all that period there have been only three appeals taken from any judgment of the Chief Justice. What is the necessity for the change? Nobody asked for it. There was never a whisper of it from the public. Certainly the Chief Justice did not want to shirk that work, and the system as it obtains to-day is due entirely to the anxious care and the personal and individual attention which the Chief Justice has given to every patient in a lunacy matter, and to every minor under his charge. Nobody wanted this change. So far as I know, not one single member of the public has asked for it in the last three years since the present Government came into power. I see no necessity for it, and see a lot that may be said against it. The Attorney-General said in as tactful a manner as possible that one of the reasons why this was proposed was that when the Chief Justice is sitting on Friday to hear lunacy and minor matters the other two members of the Supreme Court are doing nothing. He tried to say that. I say it bluntly, but he said it very tactfully. During the time when the Chief Justice sits on Friday, from 11 o'clock until six or seven o'clock in the evening, the other members of the Supreme Court are not doing nothing. They avail themselves of the opportunity and are engaged in considering judgments which they have reserved during the week. On the following morning— Saturday—all three judges of the Supreme Court meet in conference in the Four Courts. The Chief Justice is ready to do the work, so far as I know. He is doing work which requires the individual attention of the judge to whose charge this particular jurisdiction is committed.

If Deputies will take the trouble to read the evidence of the Chief Justice before the Joint Committee on the question of lunacy and minor jurisdiction they will see the reasons why this section should never have been introduced into the Bill. Unless you have a judge who is prepared to give individual attention to each individual patient and minor very grave abuses and very grave hardship to unfortunate patients will be liable to arise, as they arose in the past. It will be seen from that evidence that the Chief Justice gave each case his own individual and undivided attention. Personal touch is required in dealing with such matters as lunacy. Under this Bill it is proposed to take that work away from the judge who will have time to do it, and give it to God knows whom. Under this Bill the Chief Justice will not have to go to Assizes. He will be here during two months of the year when his brethren in the Supreme Court will be at Assizes, and when the members of the High Court will be at Assizes. Who is to look after the patients in lunacy during that period except the Chief Justice? In the interval, the members of the High Court will be busy on jury cases, non-jury cases and all the rest of it. Under the provisions of the Bill there is no single judge definitely appointed to deal with lunacy and minor matters. Under the provisions of Section 8 the jurisdiction is transferred from the Chief Justice to the President of the High Court, or such member of the High Court as he may appoint. In other words, you can have any of the six judges of the High Court, or the two members of the Supreme Court, at any given moment from day to day or from time to time. Under the provisions of this Bill there will be nobody capable of giving the personal attention which is required in lunacy matters, and which has been given during the last 11 years by the Chief Justice.

It is nonsense to say it is undesirable that there should be appeals from the Chief Justice to the Supreme Court. As I have already pointed out, there have been only three such appeals during the last 11 years—an absolute tribute to the manner in which that jurisdiction has been administered. But is it wrong in principle, according to the standards of the present Government, that there should be such an appeal, even in theory, as the Attorney-General says? There will be appeals from the two additional Supreme Court judges to their colleagues in the Supreme Court. Why should it be wrong in principle that there should be, even in theory, an appeal from the Chief Justice to the Supreme Court, while it is not wrong that there should be an appeal to their colleagues from the decisions of the other two members of the Supreme Court sitting as judges ad hoc in the High Court? I would appeal to the Government to drop this provision. There is no point in it. I cannot see any necessity for it. Under whose care is the staff to be on the present proposal? At the present moment it is under the control of the Chief Justice. Under the provisions of this Bill I cannot see that the staff is under anybody's control. However, that is a small point. I take that as one of the principles in the Bill which is utterly unwanted, utterly uncalled for, wrong in principle, and one which is liable to work grave injustice to patients under the care and control of the courts in lunacy and minor matters.

Next, and even more vicious, is the principle contained in that portion of the Bill which deals with the removal and transfer of district justices. If I approved of this Bill in every single detail, with the exception of the provisions of Section 49, if I wanted a new Supreme Court such as is suggested here, and if I wanted a new system of rehearing, such as is embodied in the Bill, I would vote against this Bill so long as it contained the provisions of Section 49. These provisions are nothing more than an effort by the Executive Government to get control of one branch of the judiciary and no principle can be more vicious than that. I took a note of the words the Attorney-General spoke in this connection. I was anxious to know how the Government would justify that particular provision. He says that one or two justices have been guilty of what he called "indiscretions," that they were very rare, and that the great majority of district justices do their work as they should do it. There is a provision for removal for misconduct in the original Courts of Justice Act, but these are significant words which are used by the Attorney-General: "There should be a middle course." Open to whom? Is it to the Oireachtas? Is it to the judiciary, even? No. "To the Government." These are his own words justifying Section 49: "There should be a middle course open to the Government." In other words, the officials of the Department of Justice should be able to transfer district justices from one end of the country to the other merely because they were not imposing sufficient fines or sufficiently long terms of imprisonment or were giving people the benefit of the Probation of Offenders Act. That is in essence what is contained in Section 49.

I cannot conceive anything more vicious than the principle contained in that section and it will have my inveterate and continued opposition so long as we have any control over the Bill. There is no provision of the courts system set up in 1924 which has worked so admirably or which has given such general satisfaction as the District Court. There have been, as the Attorney-General says, cases where district justices have suffered from an inability to keep their mouths shut, but that is all. Those are the only indiscretions I know of. I take the test of whether a man is a good or bad district justice to be: Do you ever hear of him? If you never hear of him, if his pronouncements are not used as headlines in the newspapers, then, in my view, he is a first-class district justice; but if he is regarded as good publicity by the newspapers, then he is a bad district justice. But good or bad, whether he does his work keeping his mouth shut, or whether he is unable to restrain himself from giving ex-cathedra pronouncements on morality, sociology, or other topics, that is a matter which you should not try to remedy in this way. The remedy for that is not the method proposed in the Bill. The remedy is to appoint only good men and to give them the advice I gave on more than one occasion: “Keep your mouth shut.”

The Government want this middle course, the Attorney-General says, and there is a species of veneer put on that because the section says that the complaint shall be referred to a tribunal consisting of the Chief Justice, the President of the High Court and the Attorney-General. That is to be the justification for this section. Governmental and Departmental interference is writ largely over that section. The Minister for Justice is to make the complaint. The Minister for Justice is to censure the man because he has said something that perhaps a political Executive of the day will not approve of. The Minister for Justice is to make the complaint. He is to censure and the Executive Council is to remove. The Minister and the Executive Council are in every line of that. The Minister for Justice may refer the complaint to a committee of whom the Attorney-General is one and he has to get only one man, who perhaps was the previous Attorney-General, to agree with him. Assuming that that was the most blameless tribunal, the best tribunal you could possibly get for this thing, is it not going to subject district justices to interference in the exercise of their judicial functions merely because there is a threat that the Minister for Justice can make a complaint about them to this advisory committee?

It is perhaps not without its significance that while this section provides that the district justice is to have no remedy against the decision of the majority of this tribunal, in the courts of the land, there is no provision that he is to be heard by the tribunal. Nowhere in the section is there a provision for giving him an opportunity of being heard. The decision is to be final, conclusive and not appealable to any court in the land. It is not to be heard in public. It may be heard behind his back, so far as the provisions of the Bill are concerned. There is no provision enabling this advisory committee to publish a report saying that the Minister for Justice has exceeded his functions and abused his powers and is himself worthy of censure for having brought the case before the advisory committee. That is carefully left out. There is a provision for censure. There is a provision for the Minister for Justice transferring, but there is no provision enabling this committee to publish a report exonerating the district justice from perhaps a groundless charge, perhaps a political charge, or a charge based on political bias against the district justice.

Why should district justices more than any other branch of the judiciary be selected for treatment of this kind? It is arguable that district justices are within the provisions of the constitutions in relation to the judiciary. I do not say it is a sound argument, but it is arguable. Let that pass for the moment. The district justices system is undoubtedly an integral part of our court system. It is as I have said a system which has given the greatest satisfaction to all litigants. Why should the presiding judge in that court be selected rather than anybody else for this class of treatment? Why did you not select the members of the Appeals Tribunal in the Land Commission? They have quasi-judicial functions and they have judicial tenure.

They are not mentioned here. Circuit judges, High Court judges, judges of the Railway Tribunal, and Supreme Court judges are not mentioned. Someone is harking back to the system of removable magistrates, because someone hankers to have control departmentally by this provision of district justices, without it being asked for by the public, or any branch of the legal profession, and without it being mentioned before, or recommended by the Joint Committee. Straight out of the blue we find ourselves faced with this outrageous and vicious proposal in this Bill. Why the district judges should be picked upon I do not know. I speak impartially because I have as much objection as anyone to judicial pronouncements ex cathedra, on all sorts of topics, but I say that they are not more prone to that than the members of the other branches of the judiciary. I hold that circuit judges are about the best. It would be wise if district justices just considered the facts and remembered that they are not put into a position in order to make pronouncements ex cathedra on all and sundry, on relevant and irrelevant topics, arising out of petty larceny or cases involving moral principles. That is the only evil that exists. The remedy is: appoint good men and you will have no trouble. This is not the way to do it. It is a vicious principle, and I am certainly surprised if the Attorney-General stands for it. I hope before this Bill leaves the House that we will have the pleasure of hearing the Attorney-General saying that he has been convinced that there is no necessity for this particular provision in Section 49, and that that provision having seen the light of day now for the first time, we will see it buried for ever.

I was extremely interested in the provision for majority verdicts, and I looked forward with considerable feelings of anticipation and pleasure to hearing the Attorney-General or the Minister for Justice. I thought the Minister for Justice would be presenting this Bill to-day; and that we would have heard both the Minister and the Attorney-General justifying the insertion of a section which is precisely word for word a copy of the section dealing with majority verdicts in the Juries Protection Act, 1929. This side of the House rang with denunciations then. The Minister for Industry and Commerce, who was then Deputy Lemass, and the Minister for Justice, who was then Deputy Ruttledge, as well as the Minister for Finance, then Deputy MacEntee, were brought into play, and even the President, who was then Deputy de Valera, leader of the Opposition, laid down the fundamental principles about majority verdicts. I regarded this section as one of the sections which was going to provide me with considerable pleasure. It was obvious to-day that the Attorney-General finds himself in considerable difficulty. Personally I had a very great feeling of sympathy for him in the position in which he found himself.

The Minister for Justice and the Executive Council were apparently persuaded that they ought to embody in the Bill a provision for majority verdicts in criminal cases. Let us see one or two of the things that the present Ministers said, not about the Juries Protection Bill, but about the principle of majority verdicts in criminal trials. This section found its way, not into a Courts of Justice Bill, and not even into a Juries Bill, but into a Juries Protection Bill. It was put into that Bill because, as Deputy O'Higgins said during the course of the debates, juries at that time were being regarded as perambulating Aunt Sallies, to be shot at sight by certain members of armed organisations then existing in this country. Jurymen had been shot and intimidated, and one had been killed, and it was in order to give them some measure of protection that the principle of majority verdicts was introduced, as temporary protection. If a majority verdict was there, each of the 12 men could answer some patriot who came up to him with a gun and asked: "Why did you find that man guilty?" He could say: "I did not find him guilty. I was one of the three." The whole 12 could be one of the three, and consequently the patriot with the gun would not be able so easily to find out who in fact delivered the verdict. That was the genesis of the provision about majority verdicts, that found itself sponsored, in circumstances of considerable difficulty, by the last Government. They have not departed in any way from their adherence to majority verdicts in criminal trials. They were forced into it by murder, intimidation, and threats of murder and violence. As he was then, Deputy Lemass, in column 1620, Volume 29, of the Dáil Debates said that the accused had a fundamental right to have a unanimous verdict in criminal cases.

Mr. Dillon

Where is that?

Mr. Costello

In the debate on the Second Reading of the Juries Protection Bill, column 1620, Volume 29. He said that the accused had a perfect right to have a unanimous verdict, and in moving a motion on behalf of the then Deputy Ruttledge, Deputy Lemass was still more rhetorical. This is what he said at page 1012 of Volume 30 of the Dáil Debates:

"We are opposed to the principle of majority verdicts in any trial."

He went the whole hog this time, criminal and civil:

"We think it degrading the whole system of trial by jury and liable to make its operation farcical."

That is what Deputy Lemass, who is now Minister for Industry and Commerce, and who sponsors an endeavour to have a section in a Court of Justice Bill—not a Juries Protection Bill—said about majority verdicts. The then Deputy Ruttledge said he did not know on what principle, or what ground the Minister could justify the introduction of such a system. The President, who was then leader of the Opposition, also spoke on behalf of the principle of unanimity. This is what he said in column 1564 of Volume 29:

"... the institutions that have grown up through a long series of years and have been accepted ought not to be put aside and destroyed simply because a particular Executive finds it convenient for the moment to put them aside."

The present Executive comes in with a proposal to put this institution of the unanimous verdict in criminal trials aside, and it does not know why it wants to put it aside. That is what the Attorney-General said, that the Executive Council put this provision into the Bill and did not know why they did so. They did not know whether they would recommend it and did not know whether they would stand over it or not. The President having now taken up that attitude took the attitude in 1929 that institutions that have grown up through a long series of years ought not to be destroyed because a particular Executive finds it convenient for the moment to put them aside. He went on:

"The ordinary method of trial by jury and unanimity of verdict has been accepted. Take, for instance, the case of unanimity of verdict which has been accepted mainly on the the theory that a man is innocent unless he is proved guilty and that, if there is any reasonable doubt he should get the benefit of the doubt. That is all reversed in this Bill."

We do not know why this section was put into the Bill. The Attorney-General does not know. As we stand we do not know why this section was put into the Bill. We do not know its purpose, and we do not know if the Executive Council want to retain it in the Bill or not. These matters have taken me a considerably longer time to deal with than I had intended. There are some other matters that we can more properly deal with on the Committee Stage of this Bill. But there are one or two small points that I want to refer to briefly because they raise questions of principle. Some of them have been referred to by the Attorney-General in introducing the Bill. One of these was the remittal or transfer of actions. I regret that owing, perhaps, to the acoustic properties of this Chamber I did not quite get the explanation the Attorney-General gave for the departure in this respect contained in the report of the Joint Committee. But I want to direct the attention of the House to the fact that Section 12 of the Bill, which provides for the remittal, and transfer of actions, is, in the first place, as has been admitted, contrary to the recommendations of the Joint Committee, and is, in my opinion, unconstitutional, ultra vires, and will be void if it ever becomes law.

The Joint Committee examined the question after hearing evidence as to the manner in which transfer from the High Court should be made to the Circuit Court and made certain recommendations. These provided most specifically that the jurisdiction to make these transfers should not be vested in or conferred upon the Master of the High Court. But here we find in Section 12, precisely the opposite of what the Joint Committee recommended and we have no explanation of why that is done. Every citizen, according to the Constitution, has a right of access to the High Courts of the State set up under the Constitution. If a citizen of this State institutes an action in the High Court, under this provision he is going to be deprived of his specific right by the Master of the High Court who is merely in a permanent position and who is a man incapable legally—I say incapable legally because he is a man I have a great respect for personally—of deciding matters judicially. Here he is going to decide a matter affecting the fundamental rights of the citizens. I recommend that that provision should be taken out and that a private citizen should not have to expose any further illegality or inefficiency on the part of the Government.

There is a provision arising out of this matter which has given rise to very great perturbation in the minds of both branches of the legal profession and that is the provision under Section 21. We have had no explanation of that from the Attorney-General. We could not expect him to deal with every section of the Bill, but I hope he will deal with this section at another time. I am only voicing the very strong view, both of my own branch of the profession and of the solicitor branch of the profession, on the section which provides for the remittal of actions from the High Court to the Circuit Court, and which gives the Circuit Court the right to award more damages than £300. In these circumstances every case started in the High Court could be transferred indirectly to the Circuit Court. It is felt that this is an indirect method of opening up a very wide jurisdiction to the Circuit Court. I recommend that that matter should be very fully investigated, and that on the Committee Stage we should, at least, be told the reason why this is necessary. We should be told what it is they want to achieve or else it should be excluded altogether. The Government do not appear to know whether they want a majority verdict in criminal cases or not and I do not think they know whether they want Section 21 in this Bill or not.

I want to refer to another point and that is in regard to the Judgments Extension Act. We are in a very humiliating position with regard to that. The Joint Committee reported upon this matter and recommended that there should be a reciprocal arrangement between this country and Northern Ireland and between this country and Great Britain in the matter of the mutual enforcement of Judgments, the grant of Probates and Letters of Administration, and matters of that kind. The Attorney-General must know that there is, and has been, in existence for a long time a very admirable document dealing with the whole suggested matter of the extension of judgments between this country and Northern Ireland and Great Britain and that some arrangement should be made. The Ministry has entered into a Coal-Cattle Pact recently. Let them use their opportunities to the full and try to make a new agreement with Great Britain to enforce this. We are in this position. A judgment obtained in England against a Free State citizen can be registered in the Four Courts here, but if we get a judgment against an English subject we cannot register it in England, and have to sue him all over again, whereas an English litigant can register his judgment in our courts against an Irish citizen. That should be remedied as far as possible. Then there is another point. The point I have just touched on arises out of this Bill. This next point, perhaps, is not strictly relevant to the scope of a Courts of Justice Bill—it is the question of arbitration.

Deputies know that arbitration ousts the jurisdiction of the courts of justice and, therefore, it is relevant, I think, to a Courts of Justice Bill. The matter I wish to mention now is one that has caused, is causing, and will continue to cause, very great hardship to citizens of this country unless something is done. I shall illustrate by referring to what everybody knows of their own knowledge, namely, the usual arbitration clause in an insurance policy. This is a tremendous weapon in the hands of a powerful company like an insurance company against an ordinary poor or ignorant person. It ousts the jurisdiction of the courts. It is nonsense when one takes out an insurance policy to say he agrees to all the conditions that can be enforced against you. The real fact is that a person entering into an agreement like that has no choice. The Chief Justice pointed out that business people seem to think that there is some kind of magic in arbitration proceedings for which they have to pay than there is in judicial proceedings before an independent judge paid by the State to do the job for which they prefer to pay a layman. I would like to see arbitration done away with altogether, but I say that reform in that direction is absolutely necessary and can wait no longer.

In every contract providing for arbitration there should be a provision that the arbitrator should have power to award the costs of the arbitration. What is it that happens at present? There is a claim, say, for £50 or a £100 on an insurance policy. The company disclaims liability and the matter must go to arbitration. Very often a poor ignorant person has to go to arbitration in these matters. The arbitrator has no power to award costs. The arbitration is held and perhaps there is sufficient money for the person involved to place his case before an arbitrator or arbitrators. The arbitrator makes his award and sits down on it until somebody pays him for it and the insurance company will not pay him because they know perfectly well that it will be against them. Unless that person, with a claim of £50 or £100, is in a position to pay as much as the claim which is the subject matter in dispute is worth for the costs of the arbitrator, he will never hear how the arbitrator has decided. That is an evil that brooks no further delay, I suggest, and it ought to be remedied at the earliest possible moment.

I have said a lot of hard things about this Bill and about the Government that introduced this Bill. I want to end on a note of congratulation. I do not often congratulate the Government but I do congratulate them on this, that they have seen the error of their way in one respect. Very great moral damage was done some years ago when the Fianna Fáil Publicity or Propaganda Bureau or whatever it was—perhaps Deputy Donnelly was responsible for it—issued a huge advertisement in which they set forth a detailed list of the salaries of the judges, starting with the Chief Justice at £4,000 a year and continuing with the salaries of the Supreme Court judges at £3,000 a year. Deputy Little and Senator Comyn, in the continuation of the motion I have already read in 1929 recommended as follows:

"The Committee are of opinion that there should be no increase in the cost of the Supreme Court..."

I have read this part before.

"... until the increased prosperity of the country warrants it and until the volume of business in the superior courts urgently requires it."

They went on and further they recommended—Deputy Little and Senator Comyn—that:

"any changes made in the Supreme Court should be accompanied by a reduction of salary in the light of a comparative study of the salaries paid to judges of equal rank in other European countries; for instance, in France, where the scale of judicial salaries is much lower than the Free State."

That statement and that advertisement to which I have referred may have been good political propaganda for the Fianna Fáil Party, but it did great moral damage in this country. I am glad to see—and I congratulate them upon it—that the Government have now seen that even though they could get political kudos and public-house votes from holding up the judiciary of this country to contempt, as they did, it is not a thing they ought to stand over as a Government, so that we have both sides of the House committed to the independence of a properly paid judiciary, a judiciary that is not to be the sport of political propaganda any more and no more will Fianna Fáil, or anybody else, whether as a Government or in opposition, or whether they want votes or do not want votes, go out and say: "We are out to cut the judges' salaries." I congratulate the Government sincerely and not cynically on that change of front. I think it is a proper thing that that should be recognised—and I am making no cheap debating point in raising this here to-day—on both sides of the House and that there should be no further effort to gain votes at the expense of high principles.

Mr. Dillon

What I want to say on this Bill is more or less from the point of view of the ordinary man in the street. Deputy Costello has covered the technical aspects of this legislation with great ability and in detail, but I want to draw the attention of the Government to certain matters which one might have expected a Bill of this kind to touch upon and which do not seem to be dealt with. Deputy Costello, in another connection, has pointed out that it is a very fundamental right of the citizen to enter the courts for the purpose of getting judgment in any matter wherein his rights are jeopardised. The Constitution is extremely solicitous to secure that right to every citizen, but we find that, in practice, while the Constitutional right is preserved, many would-be litigants are constrained to forego justice because they cannot afford the cost that litigation imposes upon them.

I very well remember when the Land Act of 1932 or 1933 was passing through this House, a very scandalous section of that Act was defended on the ground that the alternative method of collecting debts claimed by the Land Commission was made desirable by the fact that the cost of court proceedings to recover them was too high, and that it was in the interest of the tenant purchaser that the courts should be set aside and that the sheriff should be authorised to make seizures without reference to the court at all, because this procedure would spare them the monstrous costs that were levied on proceedings by the Land Commission to recover annuities which they believed to be due. Now, of course, from the expedient adopted in the Land Act of 1933, the most evil consequences flowed, and I am happy to think that litigation is at present proceeding which will require the courts to pass on the effectiveness of that legislation, and if the courts decide——

An Ceann Comhairle

The Deputy does not want to prejudge the matter? It is sub judice and it might be wiser to leave it.

Mr. Dillon

I accept your suggestion, Sir. If a situation arises whereunder litigants in those matters and all other matters will be required to approach the courts in the usual way, we will find ourselves face to face with a situation which calls forth the strongest possible condemnation from the supporters of the Government itself. We will find a situation created whereunder ordinary litigants in this country will have to pay costs which every supporter of the Government has already denounced as grossly excessive and sufficiently excessive to justify a very serious interference with the normal functioning of the judiciary in the country. The simple remedy for that would be to get up and clamour for an all-round cut in the costs of the High Court and the courts of minor jurisdiction in this country. To my mind, that would be a fatal mistake, but what I think the situation calls for now is that provision should be made for an inquiry into the whole question of the cost of the administration of justice in this country and the best method whereby the process of the court could be made available, not only in theory but in practice, to every citizen, be he rich or poor, and that there will be secured to every citizen, even though he be a poor man, the full process of the law against the wealthiest corporation which would seek to infringe his constitutional rights.

There is another aspect of the matter touched upon in this Bill which presents itself to the ordinary layman in a way which is perhaps slightly different from that in which it presents itself to the lawyer. The ordinary litigant down the country who starts proceedings in the Circuit Court finds that before he can get his case heard at all months elapse. After an appeal is brought from the decision of the Circuit judge, years may elapse before a conclusive decision is arrived at. That simply means that justice is not available to the people at all. Because it is of the very essence of efficient administration that it should be rapidly available to litigants. The effect of dilatory administration of the law is to create feuds and ill-feeling and possibly crime where such things should not arise at all. I have repeatedly pointed out in this House to more than one Minister for Justice that the delays in the Circuit Courts and in the High Courts are defeating the ends of justice. I put it to the Minister that while he is passing this legislation through the House now, adequate steps should be taken to secure that people who have differences could go to court and get a verdict within a reasonable time. I consider the maximum delay that should be imposed upon a litigant would be the time to elapse between the cause of action arising and the next session of the court in the area where the litigating parties dwell.

Deputy Costello has referred to Section 49 of this Bill. I want to join with him most earnestly in protesting against the principle laid down there. I am well aware that the same old story is going to be told in connection with this section as is told in all similar circumstances. That is that while there is some slight infringement in the fundamental principles of the independence of the judiciary there are ample safeguards. We hear that daily told, time and time again, in respect of fundamental principles that are being encroached upon in this House. We are always told that we might encroach with safety, that there are ample safeguards. In every single case where that undertaking has been given consequences have flown from the encroachment on those fundamental principles and these are consequences of a most disastrous kind.

We all know that one of the most valuable things we have in this country is the absolute independence and incorruptibility of the judiciary, which does give the whole body politic a sense of security; that at least as long as the citizens can go into the courts they have an absolute guarantee that there is someone there who will vindicate their rights, without any possibility of an Executive penalising the judge for his impartiality and possibly for his courage in giving what is an unpopular verdict from the Government point of view. Now, one branch of the judiciary are going to be made liable to reprimand, or they are removable by the Minister for Justice after receiving a report from a committee of judges and the Attorney-General. On the surface it looks perfectly all right. You are going to get the Chief Justice, the President of the High Court and the Attorney-General examining a complaint made by the Minister for Justice coldly and judicially returning their report and the Minister for Justice absolutely restricted by the terms of that report. The fact remains that once you create a situation whereunder you can say to a district justice, "Now, mind your step or the Minister for Justice shall start trouble with you," at that moment the independence of the judiciary is gone.

We all know that any member of the judiciary can be removed from office on a motion passed by this House with a certain majority. The Minister for Justice might say to-day to a judge of the superior court or of a court of inferior jurisdiction: "If you pursue the line you are pursuing I will remove you from office." Of course it is necessary that there should be some machinery whereby when a man is patently unfit for his duties and for his office he should be removed from office. But it is deliberately laid down that the machinery to remove him is one that commands the support not only of the Government's supporters but of the vast majority of the elected representatives of the people. That is done in order to make it completely impossible to remove a judge. That is done to create a situation under which the judge is as independent as it is humanly possible to make him, once he has been elevated to the Bench.

Now, we have for the first time a point where the independence of the judiciary is to be contracted. The whole history of legislation in regard to the judiciary from the earliest times has been one of steady extension of judicial independence at the expense of the Executive. The stronger democracy has grown the more insistent it has become that the judiciary shall be independent of the Executive. The stronger democracy is everywhere the stronger you will find the judiciary. The moment you have an autocracy or dictatorship in history or at the present day, that very moment you will find that the first organ at which autocracy strikes is the judiciary. Dictatorships always strike first at the judiciary. That is the first element that the dictator wants to get under his control. You are taking power in this Bill towards contracting the independence of the judiciary and bringing it within striking distance of the Executive. What I want to say to Deputies on the other side is this: do try to remember that a day will certainly dawn when Fianna Fáil will not be the Government, and when the independence of the judiciary will be a matter of vital concern to every member and every supporter of that Party. It is so easy to forget when you want to have a skelp at somebody who is politically offensive to you that the day may come when the independence of the holder of that office may mean the difference to you between slavery and liberty.

Those of us, and there are many in this House, who have lived outside this country know what an essential difference it makes to the whole enjoyment of individual liberty to have an independent judiciary. Many of us have seen the effects of having an elected judiciary which has to depend for continuation in office on the goodwill of the mass of the voters and who, in certain circumstances, will allow themselves to be swayed by popular clamour for a particular verdict though, according to their own consciences as judges, the verdict should go the other way. The moment that situation develops, every man in the State becomes the bond slave of a tyrannical government. We have seen during the last twelve months time and time again in hours of the most violent political stress, political leaders going into the courts of this country and being delivered from jail by the High Courts. We have seen all the most fundamental rights of the members of one political Party assailed by the members of another political Party in the name of the law and we have seen the members of one political Party go into the courts and upset the Executive. Why have they been able to do it? Because a long tradition of independence gave the judiciary that quality which made it possible for them to examine the question dispassionately and to decide the issues raised in a purely legalistic way without any reference whatever to what the effect on the popular mind might be.

What alarms me about this proposal is its specious harmlessness. To my mind a section of this kind coming before Dáil Eireann containing a perfectly bald statement asking for power to be conferred on the Minister for Justice to dismiss a judge whenever he wanted to, would be far less dangerous than the type of section we have here because the average Deputy would instinctively recoil from giving an arbitrary power to a politician to dismiss the judiciary at his own sweet will. But here we have the safeguards, the exhortation to break in upon the principle under cover of these adequate safeguards, and what I want to impress upon the House now is this: The safeguards are not worth a thread if you once let the principle go, and I am profoundly convinced that nobody knows that better than the Attorney-General himself. I cannot imagine how he has allowed himself to be put in the position of fathering a proposal of this kind. He knows well the evils that will flow from interference with the independence of the judiciary. He knows well that whatever advantages may arise from the ability to check or reprove a district justice, the corresponding evils infinitely outweigh them. It is impossible to get perfection in any human institution and all we can try to do is to get the greatest good. We have something that heretofore has been sacrosanct and of incalculable value to everybody, both minority and majority. Section 49 is going to strike a deadly blow at that whole principle and I appeal to the Attorney-General to mend his hand in that particular.

The Attorney-General

Is the Deputy aware of the present position?

Mr. Dillon

Yes, I am fully aware of the present position, and I am asking the Attorney-General to allow the present position at least to stand. I would be very much interested to hear his defence of the proposed middle course that he adumbrates in this Bill. I know that Deputy Costello and his colleagues, when they formed the Government of this country, were responsible for a proposal to validate majority verdicts in criminal trials, and Deputy Costello has read out the trenchant observations that that proposal drew from the Opposition, as it then was. I want to join with the Opposition, as it then was, the Government as it now is, in a remonstrance against the system of majority verdicts in criminal trials, more especially in trials where the penalty prescribed by law is death.

The jury system is a strange system inasmuch as its historical development is extremely obscure. Many learned works have been written on the exact way in which the jury system did develop. Many of the most learned jurists differ as to when it first was instituted and how it really developed in the eleventh and twelfth centuries. But, however it developed, it has come down to us as a system whereunder 12 men or 12 men and women are required to declare somebody guilty by a unanimous verdict before he is adjudged by a court of law or before he is condemned to whatever penalty the law might prescribe. I can imagine that in civil trials, that is to say, in actions, the unanimous verdict is not of such vital importance because, unless I am mistaken, the application of the jury system to cases of that character does not go as far back in history as the jury system does in the case of criminal trials. But it seems to me that where a man is on trial for his life and where, after hearing the evidence and the charge from the judge, and such observations as prosecuting counsel and counsel for the defence have to make, and there still remain three men out of the 12 who believe the man to be innocent, no legislature can properly lay down that the prisoner at the bar should be made subject to the supreme penalty.

It is rather difficult to argue as to why a jury should not consist of nine men or why a jury should not consist of six men, and if you can make a case that nine men would constitute as good a jury as 12 it seems reasonable enough to say if you can get nine men out of 12 to agree, if the other three did not happen to be in the box would you not have it a unanimous jury? The only answer I can make to that is that all I require is that whatever number you have in the box will be unanimous in the judgment they give before any person shall be made liable on the capital charge.

I am not sure, if I was pressed for a logical reason to defend that, that I could find one. But I say that in a matter of such grave consequence, the lesson of centuries of experience ought to guide us unless we have some very grave reason for departing from the system which we have inherited. The jury system has obtained in this country since the 12th century; it has obtained in England possibly since the ninth century; and it seems to have worked very well. I think the vast body of experienced lawyers would say that very few people escape punishment because juries have failed to agree when they ought to agree. I think a great many lawyers will agree that a large number of people have been spared from grave injustice because one or two men have had the courage to stand out on a jury and resist the majority of the men in the box who were swayed one way or another by some salient fact in the case as stated by the prosecution. I freely confess that I find myself rather at a loss to produce any logical argument to defend the unanimous verdict as against the majority verdict.

The Attorney-General

It must be a bad case.

Mr. Dillon

Not necessarily. I find myself forced back to this sound ground for resisting change. I know that the system has worked well in the past; I know it has resulted in substantial justice being done. I hear no adequate reason advanced for changing the system; and until I hear such reason advanced, I do not wish to risk the evils that may arise from a change. If the Attorney-General will turn that over in his mind, I think he will find perhaps a little logic in the reason I put forward, but a great deal of commonsense. The new broom is always anxious to discover a short cut, a more efficient way of doing the job, and he suddenly discovers that in choosing what seems to him a more efficient way to do the job he has only chosen a way that was in use 1,000 years ago and which was altered in order to avoid some abuse that manifested itself as a result of that way of doing the job, and when he goes back unwittingly to the old way of doing it, the very self-same abuse begins to manifest itself that obtained before the change was made. We have the system of unanimous verdicts; we have the 12 men. It has worked very well. It has resulted in substantial justice; and I appeal to the Government to leave well alone in view of the fact that they can advance no substantial reason why they should alter it.

I would be glad if the Attorney-General would address himself to the question of costs which I mentioned earlier and to the extremely tedious progress of litigation in the Circuit Courts and in the Appeal Court which hears appeals from the Circuit Courts, and to consider ways and means (1) of bringing costs within the capacity of the poorest person in the country to pay; and (2) to consider ways and means of speeding up litigation so that people will get verdicts within a reasonable time after the cause of action has arisen. I do not want to repeat myself, because I dealt with this question during the Attorney-General's absence, and doubtless he will look into it. I also invite his special attention to Section 49 and to that question of the majority verdict. I urge on him to drop Section 49 and to give us back our unanimous verdicts of 12 good men and true.

Mr. Moore

I realise that this is largely a Bill on which lawyers' opinions count for a great deal more than the opinions of non-lawyers; but we have all to give a vote on the subject.

Mr. McGilligan

That is a wrong point of view about the Bill.

Mr. Moore

As we have all to give a vote on the subject, we have to make our minds at rest with regard to provisions that strike us as important. There are two sections which I should like the Attorney-General to explain or defend—Sections 22 and 57. In these you have the provision that where an action is taken in the court and the court finds it has no jurisdiction, the judge is empowered to give such costs as the defendant would have been entitled to if the case had been tried and the decision was against the complainant. I should like to know what is the purpose of such a proposal as that, whether it is a new idea in the law, or whether there are grave abuses prevailing in the matter of people bringing actions in the court for which there is no jurisdiction, and that it is imperative that means should be taken to stop these abuses. As the clauses stand they look to me rather an outrage. If I think I have reasonable cause of action and I find my way to the court and the court, having heard my case—it looks from the way the sections are worded as if it was expected there would be an argument on the subject—finds that it has no jurisdiction on the matter the judge is empowered to impoverish me is he likes for daring to go into his court.

Why should every individual be supposed to know the law so well that he should be able to tell on what matters the court has or has not jurisdiction? We are all supposed to know the law. That is one of these conventions which is accepted, though it seems to me a very ridiculous convention in present circumstances. I am not going to question it now, but surely it should not be within the power of a judge, as I say, to punish with severity an individual who, thinking he has a grievance against his neighbour, against a corporation, against the Government, attempts to assert his grievance and to plead his grievance in the court?

Further, let us consider the more ordinary case, where such a complainant would have employed a solicitor, and the solicitor advises him that he has a case and he brings the case to court. Mind you, the Bill does not propose to punish the solicitor although he has been hall-marked by the Incorporated Law Society as a proper person to advise on and practise the law. The Bill proposes that it is the person who has dared to consult a solicitor who must pay the damages. Surely if there is punishment due in the case, the punishment is due to the solicitor who allows his client to prevail upon him notwithstanding his advice that the court has no jurisdiction. I should certainly like to hear the Attorney-General's defence of what seems to me an outrageous proposal.

That brings me to a point which, I think, has been just slightly touched upon by Deputy Dillon. This Bill is largely conceived under the idea that there is no such thing as poor people or people of only moderate means in this country. The Bill is not of the slightest importance to 80 per cent. of the people of this country, and I cannot understand why in the new situation, which applies not only in this but in every other country, the Government can afford to look on at a position where it is enmeshing people in law of every kind, and where the lives of the most rural of the people are being organised and urbanised by legislation every day. The Government is offering no machinery and proposing no means of enlightening the people as to their rights, or enabling them to assert their rights in law. We will be told, of course, that the poor man has no difficulty in finding a solicitor to take up his case. I wonder if that is quite true. Remember, the poor man does not, any more than anybody else, like to go begging for favours to a solicitor, and even getting the favour from a solicitor often means that he pays much dearer for it in the end than if he had the means to pay the solicitor at the beginning. Even if he did find the solicitor, in a lot of the cases which concern him nowadays, getting the solicitor is only half the job. He is facing an insurance company, with regard, say, to employers' liability. He is facing an insurance company with regard to a road accident or something of that sort, and the solicitor has got to speculate on all the expenses that will be attached to bringing the case to a successful fruition; he has got to finance the case for his client. Is that satisfactory to the Government? We passed here elaborate legislation enabling people to get damages in cases of accident in their employment, but we offer them no means whatever of getting their rights under that Act. I think lawyer Deputies opposite will admit that there are several hundred pounds expenses before the case is decided in the court; that senior counsel might be required; that all sorts of interlocutory motions and all that sort of thing may have to be faced; that appeals may have to be faced, and that the best possible way for a wealthy person to defeat a poor person's action against him, particularly if he thinks that poor person has a good case, is by a system of appeal.

From my experience, the position has become extremely serious with regard to this question of enabling people to avail of their rights under the law. At present, for instance, in a great many towns there is quite a ferment with regard, for instance, to town tenants' grievances, or what are alleged to be town tenants' grievances. We passed an Act here in 1931 of which, with great respect to the House, I do not think more than four or six Deputies had even an approximate understanding, and I greatly doubt if the average lawyer throughout the country has much of an understanding of it either. In my opinion, a lot of the grievances which are being complained of at present are covered by the 1931 Act, but where are people to get information with regard to that Act or to get advice upon it? To get useful advice on such a complicated piece of legislation would require a large amount of money, and it is not alone people in poverty but people of small means who are practically outside the law at present because their opportunities of asserting or defending their rights within the law or defending themselves within the law are so very limited on account of the expense. Many Deputies could tell of their experience since the Road Transport Act was passed in 1932. They could tell of people, who, simply through failing to understand a rather difficult Act and lack of opportunity of having the law explained to them, have landed themselves in trouble so that their whole means of livelihood are destroyed. That, of course, is not quite the same thing. In that case the trouble is an excusable ignorance of the law, but the real point I want to emphasise is that with the present spate of legislation, which is affecting the lives of the people every day, the Government will have to take notice, I think, of the fact that so many people are, first of all, finding it difficult to understand the law, and again, finding it practically impossible to get their rights under the law. I think it would be found, if there were an examination made of the position in other countries, that almost every country in the world has faced that problem in recent years. I think it would be found, for instance, that in Sweden and in Belgium—in those two countries at least—provision is made for enabling poor people to take an action without having to pay the stamp fees and other charges that belong to the initial stages of a serious action, and further, to get assistance of the best lawyers in their actions. In the South American Republics, as far as I know, there are elaborate systems of enabling poor people to make use of the courts. Again, I say that as far as I am concerned, at all events, I take very little interest in this Bill. At the most, I think it can affect only about 20 per cent. of the people, and I suggest that the rights of the other 80 per cent. are worthy of the attention of the Government in this matter.

Mr. R. Holohan

I rise to oppose this Bill because of the extra cost and expense that are put on the people of the country. First of all you have the appointment of two judges at a salary of £3,000 each, and another person at a salary of £1,700. At the same time you had here a couple of hours ago a Bill passed in this House for the provision and maintenance of pounds in this country for the confiscated cattle of the unfortunate people. Owners whose cattle are confiscated and brought to those pounds are called upon to contribute their share of the salaries of those judges. I am not arguing the point as to whether £3,000 is too much or too little for those judges. I know they are entitled to a decent payment, but I think this is a time during which appointments which cost so much should be avoided, in order not to increase the burden of the unfortunate people in the country who are not able to pay their way at the moment. I oppose the Bill from that point of view—because of the unreasonable amount of expense that is going to be involved. I do not believe it is necessary that those judges should be appointed. They could be done without for a few years more, until the people of the country are a little more prosperous and in a better position to meet such expense. When the big majority of the people are hardly able to get sufficient to maintain themselves and their families, this is hardly the time to make further appointments of people with salaries such as are proposed in the Bill. I think it is about time to call a halt to such appointments, and I oppose the Bill because of the expense involved.

Mr. Bennett

My opposition to this Bill is based on grounds somewhat similar to those indicated by Deputy Holohan. I oppose it on the grounds of the expense involved for the community; and, secondly, because I think that the time is not appropriate for the introduction of the Bill. Everybody knows that the people engaged in the chief industry in the country are in a precarious condition economically and unless there is a desperate need for any legislation involving the expenditure of further money, now is not the time to introduce it. The position of the agriculturist at the moment is that he is not able to bear the cost of the present administration, not to speak of any additions to it. He does not believe that this is an appropriate time for the introduction of a Bill such as this, however much it may be needed. There does not appear, to the mind of any ordinary layman, to be any extraordinary urgency for the introduction of the Bill now. It would appear to the agricultural community that instead of there being any great necessity for additions to the judiciary, either in the High Courts or in the Circuit Courts, there is a necessity at the moment for reduction in the number of public servants. If we take the average farmer's position, he seldom appears before any court, either on the civil or criminal side. That has been the general experience, though in the last year his contact with the law has been more frequent than hitherto.

For instance, if the farmer is backward in the payment of either his annuities or rates, he is denied the benefit of the ordinary courts. He is not brought before a judge of the High Court, a judge of the Circuit Court or a justice of the lower courts. He is left to the tender mercies of the registrar or the bailiff to decide his case. The mere fact of there being judges does not affect him very much. If his son, a young man, joins a particular political organisation, as many young men do, which is not favourable to the Government of the day, and if, in the exuberance of his youth, he does something that does not appeal to the Government, he is not brought before the ordinary courts. He is not brought before a high court or a lower court. The ordinary judicial systems have nothing whatever to do with him. He is brought before a substitute court, a military court——

Mr. Corry

Who formed it?

Mr. Bennett

It does not matter who formed it. He is brought before the Military Tribunal. If it is a civil case in regard to what I might call household debts, such as annuities and rates are, he is not brought before a judge or jury. The sheriff and the bailiff are the men who determine his position.

Mr. Holohan

They make him pay twice.

Mr. Bennett

If a farmer's son commits a political offence he is not brought before a judge of the High Court or of the lower court. He is brought before the Military Tribunal. So that there appears to the agricultural community to be no necessity at the moment for any extension of the courts. To the layman in the country, there appears to be no justification for the extension of the number of judges. He objects to the expenses that it will entail. He is already burdened with sufficient expense and he finds it very hard to manage. In expenditure of public money, particularly in a time of economic crisis such as exists at the moment, the country expects value for every pound expended. There should be pound for pound value, but in this case what do we find? A pound for the farmer at his own expense and pounds for aspiring Fianna Fáil legal luminaries at the farmer's expense. There is no equity whatever in the matter. These, shortly, are the principal grounds on which I, for one, as representing the agricultural community, base my opposition to the Bill. The Bill, in itself, may be in parts a good Bill, but there are certain sections of it which do not appear so good. There are certain sections of the Bill which, if it were introduced even in a reasonable time and if the necessity arose for it, one might also have to criticise. I do not intend to spend any portion of my time in criticising the various portions of the Bill with perhaps one exception. That is Section 73, which provides for a majority verdict.

Mr. MacEntee

Did you ever vote for a majority verdict?

Mr. Bennett

In any measure, whether it is a temporary measure or a permanent measure, I would be opposed to the principle of majority verdicts in criminal cases and certainly as Deputy Dillon put it in cases of murder which require the extreme penalty——

Mr. MacEntee

Did you ever vote for a majority verdict?

Mr. McGilligan

Did you ever speak against it?

Mr. Bennett

I certainly never spoke for it.

Mr. MacEntee

Did you vote for it?

Mr. Bennett

I am not quite certain but if I were speaking on the measure I should certainly speak against it.

Mr. MacEntee

On the 31st May, Deputy Bennett voted in favour of a majority verdict in murder cases.

Mr. McGilligan

What did Deputy MacEntee do?

Mr. MacEntee

He spoke against it.

Mr. Bennett

I certainly would vote against the inclusion of the majority verdict in this Bill for the reason that I hold that in criminal cases a prisoner is entitled to the verdict of his peers. That is an old way of putting it. He was entitled to be judged by his peers, by all his peers, and the verdict to be given was to be the unanimous verdict of the jury. We have down through the ages that expression emphasised on several occasions by judges on the Bench. It is familiar to almost everyone who reads the paper that in extreme cases the judge, when charging the jury, lays particular stress upon the point that the accused is to be given the full benefit of any doubts that exist in the minds of any particular juror or in the minds of the jury as a whole. If that is the judge's view in charging a jury what would be his opinion, if he could express it, on the majority verdict of nine of a particular jury, which left it open to three out of 12 to be opposed to the verdict of the majority? If the evidence in a particular criminal case was so strong as to convince three out of 12 men that the case against a defendant was not proved, that they would not agree with the majority of their brethren that the criminal was guilty, is not that a certain demonstration that there was a large element of doubt in that case? To my mind, it would be certain verification of the judge's charge, that if there was a doubt the defendant should get the benefit. I do not know in how many countries the principle of majority verdicts prevails. It is certainly a principle to which I would object very strongly being introduced here at any time.

There are other sections in the Bill to which one might possibly take exception, but I wish principally to voice my objection to this Bill on the ground that this is not an appropriate time to introduce it; that the expense incurred will have to be borne by people who will get the least benefit; that there appears to be no urgent necessity for its introduction, and that the proposal might wait until times were more prosperous; in other words, to recall the public expression of members of the Government a couple of years ago that this was not an appropriate occasion for incurring additional judicial expenditure because of the depression. That argument prevails much more strongly now than it did then. This is certainly not a time when any extra expenditure should be incurred in this State for any purpose, without dire necessity or proper reasons. This is not a time at which there is any necessity for the introduction of this Bill, and for that reason I am opposed to the Second Reading.

Mr. Corry

Deputy Bennett was very amusing to-night. He has three objections to this Bill. He objects to the Tribunal. But it is not very many years since the Deputy spent a whole night here trotting along the Lobby in support of the Tribunal. The matter was so urgent then that a meeting of the Seanad had to be held in order to rush a Bill through in the middle of the night. The Deputy now objects to a crack of his own whip. He also complained that farmers cannot go to court in cases in which the sheriff is sent down. A rather faster procedure was carried out in 1924, when we had the income tax people and the sheriffs chasing after income tax due in 1919— some of which was not due at all, but which we did not get the chance of proving.

Mr. O'Leary

The Deputy is going back to 1919.

Mr. Corry

Yes. I had the experience of two lorries of military being sent down to seize my cattle. Deputy Bennett complains of majority verdicts. But he voted in favour of them, although he says now that he is opposed to such a proposal. I do not know what kind of a man the Deputy is, because the three things that he complains of are the three things that he supported and voted for ten years ago. The Deputy referred to the convincing manner in which juries are addressed. We need only go back a few months to wonder how some juries were convinced. For instance, a jury was convinced that farmers were innocent and that labourers were guilty in seizure cases. The farmers who were brought up were found innocent and allowed out, while the labourers were found guilty, the evidence against both being the same. The labourers went to jail and the farmers went home. I wonder what kind of a jury was in that case.

Mr. Bennett

Are you going to improve the position by minority verdicts?

Mr. Corry

No, that is what you are up against. I cannot understand Deputy Bennett's objections in view of his previous attitude.

Mr. MacDermot

Is that all we are to have? This is very disappointing. I was waiting eagerly to hear Deputy Corry's views. I was very anxious to hear his views on the salaries of the judges, and I implore him to tell us what they are.

An Ceann Comhairle

Deputy Curran.

Mr. McGilligan

(to the Government Benches): Come on!

An Ceann Comhairle

It is for the Ceann Comhairle to call upon Deputies to speak.

Mr. Curran

As I was anxious to hear Deputy Corry's views on this Bill, I must say that I am desperately disappointed at his contribution to the debate.

Mr. Corry

The Deputy has my sympathy.

Mr. Curran

I wonder does Deputy Corry remember an advertisement that was inserted in the newspapers by the Fianna Fáil Party dealing with the salaries paid in this State. I wonder what is going to be done about the salaries that are going to be given now—£3,000 a year? Does Deputy Corry remember the statement he made in this House that no man was worth £1,000 a year? What a happy knack he has of forgetting his own actions! I do not want to talk about the legal side of this Bill, because that has been dealt with very ably by members of the legal profession on both sides of the House. I am certainly challenging the right of the Government to bring in the Bill, and to put taxation on the people at this time, seeing they have made no case whatever for its introduction. I did not even hear the Attorney-General making the case that the High Court or the Supreme Court could not function, except at great inconvenience, without an addition being made to the number of judges. He did not make that case. Deputy Corry came along and talked about the Military Tribunal, the sheriffs and majority rule.

Mr. Corry

Following Deputy Bennett's example.

Mr. Curran

It is a pity the Deputy did not follow his own example in the past, having regard to what he said about extra expenditure. It is from that viewpoint that I object to this Bill. I would be one of the last persons to object to the judiciary, above all others in the State, having salaries in keeping with their responsible positions. That has to be faced. If we are not able to pay them decent salaries, it would be better to have fewer members of the judiciary and to pay them well, rather than have Deputy Corry talking about reducing the salaries of judges and everyone else. That is the line of argument which the Deputy took up in the past. He is committing the country to more expense and taxation by standing by the Government now. I was hoping that the Deputy would say something about the advertisement that the Fianna Fáil Party put into the newspapers. I remember it, as I read it more than once. It is the greatest pity that the Deputy could not produce it to-night, in order to inscribe on it the number of extra positions and the amount of extra salaries that have been added since the Fianna Fáil Government came into power. I would like to have a comparison made with the numbers at the time that the cry was "Down with salaries!" and the present time. It is from that point of view that I object to the Bill.

If Deputy Corry and many members of the Fianna Fáil Party could only speak their minds, having regard to the statements they made, they would object to this Bill just as much as I do. I suppose they have to answer to the Party Whip. That is the unfortunate thing about Parties and Governments. Deputy Corry does not believe in this Bill, and does not want it any more than I do, but he has not the pluck to stand up and to say so. With these few words I have made my protest against the Bill in the shortest time that it was possible for me to do it.

Mr. Geoghegan

I rise with diffidence on this Bill because my reading of history leads me to the conclusion that any real reform that has ever taken place in regard to the administration of the law has been forced upon the legal profession from outside. Possibly, a member of the legal profession is not the most valued contributor to a debate of this sort. There are, however, a few thoughts arising out of practice in both branches of the legal profession, extending over 27 years, that I feel may be helpful to some members of this House. I begin by an appeal to the Government to reconsider Section 73, the clause which provides that a verdict of nine members of a jury in a criminal trial is, in fact, to be deemed the verdict of the twelve. It is, I think, an unfortunate provision. It may or may not have been justified in the past as a temporary measure, but that it should creep into our law with the permanence that will follow from the passage of this Bill is, I feel, a matter for regret. It is not the mere regret of breaking with an established usage or an old tradition. It is a feeling that has been prompted by experience in the defence of prisoners. The prisoners that I have prosecuted have been few, but up to 1924 I defended very many. Looking back on it I have had the feeling that, where there was a disagreement by a jury, in most cases there was some colour of reason for that disagreement, and that more especially in criminal cases involving grave issues, involving the life of a citizen or involving a long period of penal servitude. That disagreement sometimes is an expression of the doubt that ought to be the prisoner's privilege. Sometimes it is in the nature of a piece of unmerited good luck. The instances in which the real criminal will escape because 12 ordinary men fail to agree are so negligible that I suggest to the Government they might consider whether they are worth legislating for.

I ask the Government to look at another aspect of the case: that the real criminal usually has a kind of propensity towards crime. If it should so happen, as I have said, that by unmerited good luck he escapes by successive disagreements the probability is that that man will commit another crime, and the next time he is put on trial for his fresh offence, it is highly improbable that he will have similar good fortune.

It is in my view largely a matter for the consideration of the Minister for Justice and the Attorney-General. They have, of course, statistical information available to them that is not available to me. I merely put it in this way: that I think Section 73 is worthy of reconsideration by the Government and that, possibly, when they are reconsidering Section 73 they will advert to a kindred matter which many consider an unfortunate omission from this Bill. That is the abolition which took place in 1924 of the right to a jury in a civil action where the claim was for unliquidated damages arising out of contract. In the Courts of Justice Act, 1924, it was provided that every citizen had the right to demand a jury in any action that originated in a wrong, independent of contract, but on the strict reading of the statute it is manifest that in any action arising out of contract, as distinct from a wrong independent of contract, he has not that right. The result is that in a type of action, such as one for breach of promise of marriage, which in a way is essentially an action founded on a wrong though in form based on a contract, there is no right to a jury. Similarly, in any type of action, say for breach of contract by dismissal or arising out of the sale of goods, or out of a building contract where you may have the most grievous charges of fraud levelled against a man, he is not entitled to have these issues tried by a jury. To most people the difference between a charge of fraud and a charge of crime is so slight as not to be worth noticing. I ask the Government to consider whether in this Bill they could not restore the right to which we were accustomed in this country to have jury actions for unliquidated actions tried by a jury. I do not suggest for a moment that we should revert to the practice which had existed previous to 1924, of having what are known as liquidated or very definite claims arising out of contract tried by a jury. I feel that that probably was a very good reform. It was in the interests of the commercial community.

On the matter of the hearing of appeals from the Circuit Court dealt with in Sections 39 and 40 of the Bill I feel that the Bill may not prove altogether successful. Under Section 39, which deals with civil actions tried by a Circuit Court judge and a jury, there is provision for appeal to the High Court, sitting in Dublin. In substance, the re-hearing is to be upon the judge's notes. I join with, at least, one appeal that I heard—I was out of the House for some time—for reconsideration of that clause and the principle enshrined in it. I agree, to a large extent, with the case made for reconsideration. It may be that, in certain types of action, tried in a particular county, justice would not be done where the findings of fact are by a jury drawn from a very limited area. It might well be desirable, in the interests of justice, that a fuller right of appeal than that contained in Section 39 should be given. There has also been a certain amount of criticism of Section 40, which provides for the rehearing of Circuit Court appeals other than those in jury cases and certain other cases which are rare. Most of the appeals from the Circuit Court will fall to be dealt with under Section 40 and I venture to put it to the House with some force that it is not the most desirable form of appeal that could be devised from a Circuit Court judge to one other judge, whether he be a High Court or a Supreme Court judge. Public opinion would probably be better satisfied if the ultimate and final decision in Circuit Court appeals were to be based upon the opinions of, at least, two judges. If the appeal were to be from the Circuit Court judge to two judges, it is obvious that, even in the event of the two judges disagreeing, the litigants would know that two minds concurred —that the Circuit Court judge and one at least, of the judges of the Appeal Court concurred in a certain finding. It seems to me that there is a good deal of force in the criticism that has been advanced in respect of this section and that it should receive some consideration.

Deputy Curran has raised the question of the expense of the Bill. That is, of course, a very important aspect of the whole matter and the House might be assisted if it knew to what extent the administration of justice on the civil side is self-supporting. There is a very large contribution by litigants in the way of the fees and the stamp duties they pay in instituting and carrying on their various cases, many of which are virtually of a non-contentious nature and do not entail any call at all upon the time of the judges. The total amount of the fees and stamp duties so paid must be very great and must go a very long way to case the burden upon the taxpayer. But, assuming that there is an appreciable burden remaining on the taxpayer, it may well be considered whether the present system is not unfair to some citizens who are unlucky enough to be drawn into litigation. In the Circuit Court a good deal of the litigation is, in a sense, wanton, and could be avoided altogether, but people will go on with their actions. I have known small farmers who, under the system that existed since 1924, started, perhaps irrationally and indiscreetly, an action in the Circuit Court and were brought to the High Court on appeal. The entire cost of the appeal, including the transcript of the shorthand notes and the fees paid to solicitor and counsel, exceeded £100. Contrasted with the cost of the hearing of appeals from the county courts prior to 1924, that is a staggering amount. Then, the entire cost, including fees of solicitor and counsel, in similar cases, ranged from about £5 to a maximum of about £9. Now, in many cases, they run to £100. That is an appalling burden to place upon a small farmer or a small trader. I venture to think that if Deputies from rural constituencies inquire into cases that come from their own areas, they will find that the existing system of hearing Circuit Court appeals does, undoubtedly, impose a very severe burden on the citizens concerned.

There are one or two other matters which I should like to see dealt with in this Bill or, if not appropriate to this Bill, then in some other Bill having to do with the administration of justice. One of these matters is provision for poor persons carrying on litigation. In at least one other country, the enactments relating to the administration of justice provide for the payment out of public funds of such stamp duties and fees as the State would enact, in cases of litigation carried on by a poor person. They provide also for payment of a trifling amount for travelling and similar expenses and for some little remuneration for the solicitor. The barrister engaged in the case is expected to give his services gratuitously, and that service is apparently given gladly and freely by busy advocates.

I should like to see established the basis of a system like that in this country whereby the poor person, subject to supervision of course, would be able to resort to the courts of the land without being liable to pay State fees or stamp duties and whereby there would be an organisation set up which would place at his disposal gratuitously the services of solicitors and barristers. I am sure that the services from both branches of the profession would be available if such an organisation to make them available were set up. Another system that has found favour in, at least, one continental country is a system whereby, in certain classes of case, there is no advocacy at all. That greatly cases the burden of litigation. Many cases of this class could be carried on without the aid of paid or professional advocates, but if a professional advocate has a right of audience in court, and one of the litigants invites that aid, it is inevitable that his opponent will also invoke professional aid, thereby greatly increasing the burden of expense.

The points arising on this Bill are so largely matters of detail and so much better suited to Committee Stage that I find it difficult to make a Second Reading speech in reference to it. I have dealt with this matter of the majority verdict because I think that it involves a point of principle. I think that the absence of a jury in cases of unliquidated damages also involves a point of principle. I have suggested to the House that a majority verdict may be necessary in times of stress or excitement or passion. The administration of justice in a certain type of criminal case has also been touched upon by Deputies in this House; I refer to what Deputies have said about the trial of certain criminal cases by the Constitution (Special Powers) Tribunal. I move the adjournment of the debate.

An Ceann Comhairle

Debate adjourned till to-morrow.

Both Deputy Bennett and Deputy O'Donovan expressed a desire to raise, on the motion for the adjournment, matters arising out of questions on the Order Paper. Deputy Bennett has priority in point of time, as his question took precedence on the Order Paper. The Chair is giving him that priority on the adjournment.

Dáil Éireann debate - Wednesday, 20 Feb 1935