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.