Supplementary Estimate. - Courts of Justice Bill, 1934—Recommittal—(Resumed).
The decision of the High Court or of the High Court on circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable.
I move amendment No. 59:—
In page 16, Section 42, line 36, after the word "appealable" to add the words "provided, however, that the judges of the High Court or of the High Court on circuit shall, if an application on that behalf is made by any party to any matter pending before them, submit by way of case stated for the judgment of the Supreme Court any question of law arising on the hearing of an appeal."
Of course, it does not often happen, but, at the same time it does occur, that important question of law arise, and in such circumstances it is desirable that if people wish to have a case reviewed by the supreme tribunal on a question of law bearing on the case that opportunity should be available. Sub-section (3) of the last section might have some bearing on the matter. But in that sub-section it is not mandatory on the judge to grant the application. I am trying to make it mandatory if there is an application made by any of the parties. I am using the word "shall" instead of the word "may." I think it is very important, where a question of law arises, that it should be decided by the supreme tribunal. I ask the Minister to accept this amendment because a great number of people have suggested that it is eminently desirable to have such an amendment in the section.
I think the amendment is unnecessary. Sub-section (3) of Section 41 provides already that the circuit judge may submit any question of law to the Supreme Court.
I admit that, but I have put in the word "shall."
I think it would be very unsatisfactory to make it mandatory on the Circuit Court judge, who must have some discretion in these matters. I think sub-section (3) of Section 41 covers the matter.
I think it is noteworthy that although that sub-section (3) was in Section 40, as the Bill was originally drafted, the Bar Council's recommendation, on that matter, was on the lines of Deputy MacEoin's amendment. It certainly recommended that power should be given to the High Court on appeal to state a case on a question of law.
The Attorney-General
I have not had time to collate the sections. In the original Bill sub-section (3) was in Section 40. The same sub-section is now in Section 41. When it came before the Bar Council they suggested it was necessary that there should be power in the Court of Appeal to state a case on a point of law.
The argument is that the High Court on circuit, having its eye on the clock, the railway timetable and the expenses, may, in certain circumstances, not fully deal with a thing, and I think it should be open to one of the parties to insist that a case should be stated in the matter. I admit there is something in the contention that somebody might make a frivolous appeal, but I do not think, with the expenses involved, that any counsel would be so anxious, or so unwise, as to insist on having a case stated without sound reason.
The Attorney-General
I understood this question was raised on sub-section (3) of Section 41, and there was a sort of understanding that the Minister would go into the matter as to whether he would accept the suggestion made by Deputy Costello, making it mandatory, in some way, for the High Court judge to state a case. Deputy Costello suggested some words and the Minister promised he would look into the matter.
I am wondering if the Bar Council had anything in their minds. Possibly there was this distinction:—Section 41, sub-section (3) has reference to the High Court on circuit. Section 42 has reference to the High Court, or the High Court on circuit.
Perhaps there is something necessary to make it clear that it is the High Court and the High Court on circuit.
The Attorney-General
I think the distinction in connection with the High Court and the High Court on circuit is due to the fact that appeals from the Dublin Circuit go direct to the High Court. The reason the High Court is mentioned is, I think, because in cases of the Dublin Circuit, appeals go direct to the High Court, not to the High Court on circuit. Look at sub-section (1) paragraph (a).
Does the inclusion in Section 42 of the phrase "an appeal under this part of this Act shall be final and conclusive" mean in all High Court judgments or only in circuit appeals?
The Attorney-General
I think so. The title of Part IV of the Bill is "Appeals from the Circuit Court."
My amendment is meant to cover the High Court. I used the phrase High Court on circuit but I intended to include the High Court.
I will look into the matter between this and Report Stage.
Amendment, by leave, withdrawn.
Section 42 agreed to.
Amendment No. 60 not moved.
Question proposed: "That Section 43 stand part of the Bill."
Upon this there were certain recommendations made, one of which was accepted, about including civil bills amongst the documents. There was also a suggestion about sub-section (c) that, instead of having it that appeals shall not abate because of certain deaths, there was a recommendation that where an appellant or respondent dies, the appeal might be made against the representatives of the deceased. That was taken out. It was a recommendation of the sub-committee at the time.
I will look into it. I do not know why it was left out.
That was made to Section 42, which is now Section 43.
Sections 43 and 44 agreed to.
SECTION 45.
(5) Every officer travelling to and staying in an appeal town in pursuance of this section shall receive, out of moneys provided by the Oireachtas, such travelling expenses and subsistence allowance in respect of such travelling and staying as the Minister for Justice shall, with the sanction of the Minister for Finance, direct.
I move amendment No. 61:—
In page 17, Section 45 (5), line 65, before the word "direct" to insert the words "from time to time".
This is merely a drafting amendment.
Amendment put and agreed to.
Question proposed: "That Section 45, as amended, stand part of the Bill."
On the section. New duties are being imposed on the registrars. Is there any intention of meeting the complaints which some, at any rate, of those registrars make with regard not so much to emoluments while they are in service, as with regard to pensions and such matters? The matter will vary with regard to the individual, but the point can be made in a great many cases just as it was made in the case of the Master, that owing to certain qualifications being regarded as essential the people who go in for those posts go in at a fairly advanced stage of life, and that they cannot, therefore, qualify for anything like the full pension which, on paper, may be secured by them. There has been a suggestion put up—I think it has already been submitted to the Minister—that, where professional qualifications are demanded, the years which have to be spent in such professional occupation should be counted in. They are counted in as part of a man's training and qualifications, and they ought to count, possibly in some reduced form, towards the remuneration of his period of years in service, so as to enable him to get a somewhat higher fraction of the pension. I do not think the cost is likely to be considerable, and court fees are going to be raised.
Of course, this is a matter which cannot be provided for in this Bill, but it is one which may be considered in any case.
We might get it related to the raising of the court fees.
Question put and agreed to.
SECTION 46.
There shall be attached to every judge travelling and sitting as a judge of the High Court on circuit and to every Commissioner of the High Court on circuit one servant to perform such duties in relation to such judge or commissioner while travelling and sitting as such judge or commissioner as the Minister for Justice may appoint, and every such servant shall be appointed by the said Minister and shall hold office on such terms and conditions and receive out of moneys provided by the Oireachtas such remuneration and travelling expenses as the said Minister, with the sanction of the Minister for Finance, shall determine.
I move amendments Nos. 62 and 63:—
62. In page 18, Section 46, lines 3/4, to delete the words "perform such duties in relation to" and substitute the words "attend upon".
63. In page 18, Section 46, lines 5/6, to delete the words "as the Minister for Justice may appoint".
There is no need, I think, to quarrel or to go into any detail in regard to the words which I have used. As the Bill stands at the moment, it means that there are to be certain servants appointed to the judges of the High Court, and those people are to perform, if you please, such duties as the Minister for Justice will appoint. I really cannot believe that the Minister for Justice is going seriously to consider what orders are to be given to the judges' servants, as to whether they are to bring in his lunch at midday or some other hour, as to what is to be done about calling him in the morning, bringing him his shaving water, and so forth. Surely judges on circuit might be allowed to determine for themselves the duties to be performed by their servants? Later on I have put in a phrase to the effect that the terms and conditions governing the service of those servants—that is, the terms upon which they are to be payable, their pension rights, if any, and their emoluments—are, of course, to be determined by the Minister for Justice with the sanction of the Minister for Finance. Is it not pushing this regimentation very far to say that the judges' servants are to get directions in relation to their more or less menial duties from the Minister for Justice? In addition to that point I am urging another, and that is that the Minister's functions should be limited to settling the terms and conditions of service, and that the judges should be given the right to appoint the individual. That goes a step further from the first point which I urged. They are two distinct points.
I agree with the Deputy to a considerable extent that those judges should be able to tell their servants what they are to do, and it is not our desire to interfere with the judges in any way with regard to that particular matter. The trouble which arises is that those servants are regarded as civil servants, and they are subject to Civil Service regulations. That is how the difficulty has arisen. If the Deputy leaves it to the Report Stage I will try to get that particular matter adjusted.
This is a different point. The first point is that once a man is appointed the judge will be allowed to direct him as to his duties. I am urging another point too; those servants will be in somewhat close and intimate relation with the judges, and if they are not going to be exceedingly well paid—if it is not a post which will be, as it were, fought for amongst those people—would it not also be a proper thing to allow the judges to appoint those men who will be travelling around the country with them, and so forth? I think a judge should be given the right to get his own nominee. There used to be far too much patronage in the possession of judges; there is absolutely none now. I am judging this only from the angle of convenience. A judge may find his life made quite unpleasant by the fact that there has been forced on him some servant who is objectionable to him personally. There is not a great deal of patronage involved in giving to people who are in such a very high position the right to appoint their own body of servants.
I should like to say that in practice, of course, the judge will always be consulted. I cannot imagine any Minister trying to use patronage in any way for the purpose of putting somebody there whom the judge himself did not want. I am aware of one particular case where the judge was very glad that he had not the making of the appointment..
They would, undoubtedly, be persecuted with applications.
I quite agree with the Deputy that it is desirable that the judge should be satisfied with the person he has with him. The position is that that person is regarded as a civil servant, and that there must be a Minister who is to have responsibility for him.
But why should he be considered a civil servant?
Because he is paid out of public money. He is provided for under statute.
To that extent the rural postman is a civil servant.
He happens to be, and it would be better if he had not that status. The general average of the Civil Service, from the angle of pay, would not be brought down so low if he were not so considered. If the Oireachtas, working through the Minister, is allowed to state their terms and conditions, is there any great breach of the sacred Civil Service conditions in saying that the judge can appoint those people himself? How many would there be? Six or seven?
Eight. Why make a principle for the sake of eight people?
It is applied to over 12,000 people in the public service. It has been applied, as the Deputy has said, to the auxiliary postmen, and there is a very sound reason for it. People who are paid out of public funds are public servants. If they are not employed either in the police or in the defence forces, then they must come under the remaining category, that of civil servants. I think the objections which the Deputy has raised are very largely without any substance. I am perfectly certain that no Minister for Justice who wished to preserve normal relations with the judiciary would endeavour to force upon a judge an individual as that judge's personal servant who would not be acceptable to the judge. I am also perfectly certain that if—whether or not he was appointed with the consent of the judge—the person was found to be unsuitable and unfitted for his office, the Minister would have no compunction whatsoever in removing him from that office on the making of the necessary representations to him by the judge. I think that, in practice, it will be found that the points which the Deputy has raised have no substance in them whatever.
Presuming always good relations between the Ministry and the judges, you might make no regulations. If you presume that, you do not want regulations at all. All regulations, in relation to sport, cards and everything else, are made against the bad condition—against the emergency condition. Supposing there was a Minister who did not like a particular judge and he wanted to harry him, is there not an obvious way of doing it in this manner? It is unthinkable perhaps, but remember there is a colleague of mine who has been guarded and who objected strongly to the individuals who were guarding him. Were they taken away? He even gave reasons arising from their obscene language as to why they should be removed from him. Were they taken away? That is the fact. I do not say that there is a possibility of judges being persecuted round the place by unsuitable people, say drunken people, who are forced on them, but contrast it with the great principle that is at stake. Say there are eight civil servants of this type. Let us say they are not civil servants.
You cannot pay them then.
Let the judge pick his own servants and give them an increased allowance for that purpose if necessary. These men then will have no pension rights. I do not see any principle at stake in allowing the judge to say, "I want so and so." I am not going to press these amendments, however, as the Minister has said that the judges would be consulted. That is satisfactory as far as it goes. But there is the possibility of a Minister being in office who would not consult the judge's convenience and it is not desirable to have anybody possessed of these powers.
The guards were removed in the case quoted by the Deputy, as soon as it was brought to our notice.
They were about with Deputy General Mulcahy for a long time afterwards and the Deputy was forced into the position of having to raise the matter in this House.
Amendments, by leave, withdrawn.
Amendments Nos. 64 and 65 not moved.
Section 46 ordered to stand part of the Bill.
SECTION 47.
(1) On the occasion of every sitting of the High Court on circuit in an appeal town, it shall be the duty of the county registrar within whose functional area such appeal town is situate to arrange, with the sanction of the Minister for Finance, for the provision of suitable lodgings, meals, and other accommodation for the judges (including commissioners of the High Court on circuit) constituting the said Court at such sitting and for the servants attached to each such judge or commissioner in pursuance of this Part of this Act while they respectively are in such appeal town for the purposes of their duties as such judges, commissioners, or servants.
(2) All expenses incurred in the provision of accommodation for judges (including commissioners) of the High Court on circuit and their servants in pursuance of this section shall, to such extent as shall be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
I move amendments Nos. 66 and 67:—
66. In page 18, line 15, Section 47 (1), to delete the words "with the sanction of the Minister for Finance."
67. In page 18, line 26, Section 47 (2), to delete the words "shall be sanctioned by the Minister for Finance" and substitute the words "the Minister for Justice, with the sanction of the Minister for Finance, shall determine."
The Attorney-General
Do those meet Deputy McGilligan's point?
They meet the first point as to the sanction of the Minister for Finance.
Amendments put and agreed to.
Section 47 as amended agreed to.
SECTION 48.
The following provisions shall have effect in relation to appeals from judgments and orders of the Circuit Court in civil cases given or made before the commencement of this Part of this Act, that is to say:—
(a) if notice of appeal from such judgment or order was lawfully served before such commencement, the appeal from such judgment or order shall, if all parties so consent, be heard and determined under and in accordance with this Part of this Act, but if any party does not so consent such appeal shall be heard and determined as if this Part of this Act had not come into operation;
(b) if notice of appeal from such judgment or order is lawfully served after such commencement, the appeal from such judgment or order shall be heard and determined under and in accordance with this Part of this Act.
I move amendments Nos. 68 and 69:—
In page 18, Section 48 (b), line 42, to insert after the word "shall" the words "if all parties so consent".
In page 18, Section 48 (b), line 43, to insert after the word "determined" the words "as if this Part of this Act had not come into operation, but if any party does not so consent such appeal shall be heard and determined."
Again I do not think it is necessary to argue the case for these amendments. I was merely trying to get sub-section (b) into line with sub-section (a). I do not know why there has been this sudden swerve from the position under sub-section (a).
This deals with pending appeals. What I understand from the amendment is that if Part IV of the Act comes into operation, then if both parties agree, they can have the appeal by way of rehearing on the notes. I feel that goes to the root of the whole matter. One of the principles of the Bill is to have a rehearing without notes. These amendments give them a choice, and I do not think they are necessary.
The point I was dealing with was this. If an appeal has been taken before the Act comes into operation, the appeal is heard with the old system in view. Why then should not the appeal be heard under the old system unless all parties consent to its being heard under the new system? The Minister has reversed it.
In pending appeals, that is appeals of which notice has been served, and which have not been disposed of before the Act comes into operation, the same system obtains as at present, that is a rehearing on the notes, unless both parties agree to a rehearing without notes. Then when the Bill becomes an Act any new appeals will be under the new system, that is a rehearing without the notes.
Amendments, by leave, withdrawn.
Section 48 ordered to stand part of the Bill.
On behalf of Deputy Lynch I move amendment No. 70:—
In page 18, to insert before Section 49 and in Part V of the Bill a new section as follows:—
Section 69 of the Principal Act is hereby amended by the addition thereto of a new sub-section as follows:—"On and after the passing of this Act whenever the office of any justice of the District Court shall become vacant the new justice to be appointed shall be the person who is at the time the senior assistant justice of the District Court."
How far is that affected by the fact that amendment No. 71 is not being moved?
My interpretation of the amendment is that whenever a vacancy arises the senior assistant justice should be appointed. The objection I have to that in the first instance is that we are making special provision for the assistant justices under another section in the Bill, giving them increased salaries and so on. In addition it may happen that a vacancy may arise in a particular district and that the senior assistant justice would not be suitable for that district for the reason that he would have associations with the district.
Could not that be met by an exchange? Otherwise, I think there is a good deal to be said for the point that the man who has been assistant justice and who has shown his merits in service, should get the vacancy. They should be appointed in rotation in accordance with seniority. There will be other people taken on to take the place of the assistant justices and they in their turn will get their chance. There has been one sound argument urged against the amendment, that you might have a district falling vacant and that the individual who was senior assistant justice was from that area and that it was undesirable to have him appointed there. That could be met by an exchange of districts.
Of course, he is always eligible for appointment, but this amendment would confine the choice.
The practice is that though eligible he is not appointed. This amendment is to put an end to that.
Will the Minister accept the principle that, if at all possible, the person who has been appointed assistant district justice should get priority of treatment where a vacancy arises? The result will be that persons acting as temporary district justices will have the right to the vacancy and that a person who has not experience will not be accepted just for political reasons and put into the position over the man who has, perhaps, given good service.
Now, I agree that it may appear from experience that a person who has been appointed an assistant district justice would not be a good man to be appointed a full-time district justice. That might appear from the way he has carried on during his period as an assistant district justice. I think that the Minister ought to accept the principle that, if the men appointed assistant district justices prove themselves to be competent, capable and fairminded, they should get the preference where a vacancy arises for a full time district justice.
In the making of these appointments, I cannot go and lay down any principle, but all these matters, I assume, will be considered when a vacancy arises for a district justice. Further than that I cannot go. I am going a long way to meet any complaints in the case of assistant district justices by trying to provide higher remuneration for them. That will arise on amendment No. 78.
Amendment, by leave, withdrawn.
Amendment No. 71 not moved.
Amendment No. 72 is out of order. The amendment was obviously intended to be moved to sub-section (1) of Section 50. It is out of order as it proposes to impose a charge.
Section 49 agreed to.
SECTION 50.
On behalf of Deputy McFadden, I move amendment No. 73:
In page 19, before Section 50, to insert a new section as follows:—
Section 72 of the Principal Act is hereby amended by adding to the section the words "And provided that in the case of any justice of the District Court assigned to a district which comprises any part of the Gaeltacht certified by the Minister for Justice to be such the age of retirement shall be 70 years if within one year from the passing of this Act the Minister for Justice shall certify that such justice is capable of conducting a sitting of his court in the national language."
On the Report Stage I intend to introduce an amendment that will, to some extent, meet this amendment. It will be to the effect that where it is found that a district justice in the Gaeltacht areas is fit and able to carry on his duties, and that there is no other suitable person available for the vacancy, he may be continued to 70 years of age. It will not go as far as Deputy McFadden's amendment.
The Minister still proposes to keep the retiring age at 65 except in the Metropolitan area. The position, therefore, in future will be: 70 years in the Metropolitan area and 65 elsewhere, except in the Gaeltacht areas, where it will be 70 if the man shows that he knows Irish and that there is nobody else to take his place. Is that the proposal?
I am not sure if that is a slur on the Irish language or a tribute to it.
Amendment, by leave, withdrawn.
I move amendment No. 74:—
In page 19, before Section 50, to insert a new section as follows:—
Section 72 of the Principal Act is hereby amended by the substitution of the words "A justice of the District Court shall be entitled to hold office until he reaches the age of 70 years, unless it is proven satisfactorily to the Minister for Justice that he is unfit to continue to hold office by reason of his physical or mental health" for all the words before the proviso now contained in the said Section 72.
Cardinal Manning said at one time that a person who could not say what he had to say in ten minutes would never say it. Bearing that in mind, my remarks will be short, succinct and, I hope, to the point. The reason I have brought forward this amendment is that, as everybody knows, some of our greatest judges have been at the top of their form at the age of 70. I consider it a great waste of money and great expense to the Exchequer to be dismissing men at the comparatively early age of 65 to enable them to play golf or poker in the evenings. I understand that the justices in the cities of Dublin and Cork need not retire until they reach the age of 70. These justices have a great deal of work to do. On the average, I should say that they have more to do in a month than a rural justice has to do in six months. They operate in stuffy courthouses and have very little time for recreation, whereas the justices who preside in the country courts live a full-bodied, open-air life, and I am sure that at the age of 65, if the ordinary rules of hygiene apply, they ought to be in a much better condition than the justices in either Cork or Dublin.
I see no reason why men who are perfectly competent and perfectly able to do their work should be pensioned off at the age of 65, thereby putting extra on this overtaxed country, and at a time when they are prepared, willing and efficient to carry on the work entrusted to them. I think this is a very reasonable amendment. It ought to commend itself to any reasonable person. I cannot see any objection to it, and I hope and trust that it will be accepted by the Minister and by the learned Attorney-General. I know that the volume of public opinion is in favour of it. I feel that it is a desirable thing to do. I hope that there will be no division on it, and that it will be cheerfully and gladly accepted by the Government. I cannot see any reasonable objection whatsoever to it.
I support the amendment. Right at the beginning of the District Court section, I should like to say this that there is the tendency always—it was observable in the 1924 Act and in the discussions that took place when that measure was going through—to sort of demean and discredit the District Court. It is true that the district justices have to deal with matters of relatively minor importance, but in the discussion that we had here on an earlier section about the removal of a certain jurisdiction from the Chief Justice, there was brought into it the note that there was a good deal of humanity required in regard to, say, the treatment of minors and lunatics: that the whole matter had to be set on a different footing from the ordinary matters coming before the Supreme Court and the High Courts. I would like to say this about the District Court that it does make some approach to the requirements of common humanity. It does that more definitely than any of the other courts. The justice dealt out there has to be somewhat more ready, and, in the process, becomes somewhat rough and ready. I use that phrase without meaning to cast any discredit on the capacity of these district justices. The district justices are actually more in touch with a bigger percentage of the common humanity of the country than any of the other courts. The other courts are on a higher level and raised somewhat above the ordinary level of the people. There is required a little bit more of that essential humanity that I have spoken of in dealing with the matters that come before these District Courts.
I fail to see why there should be any distinction made with regard to retirements as between district justices as a class and the other judges, and I cannot see why district justices in the metropolitan area should be put on one age limit when it comes to retiring, while others, who will be living healthier lives and having better conditions all round, should be told that they are likely to fail to be capable of carrying out their duties a couple of years earlier. I intend to speak more fully on this at another stage, and on the whole matter of the District Courts. I think that will make a good jumping off ground for a discussion on the District Courts and on the unfair distinction which is made with regard to retirements. I will move very definitely on that, as I am strongly in favour of Deputy Burke's amendment, and will ask for a division later.
Progress reported. The Committee to sit again to-morrow.
