I move amendment No. 1:—
In page 5, to add at the end of Section 4 a new sub-section as follows:—
(5) This section shall come into operation on such day as the Executive Council shall by order fix for that purpose.
Vol. 64 No. 4
I move amendment No. 1:—
In page 5, to add at the end of Section 4 a new sub-section as follows:—
(5) This section shall come into operation on such day as the Executive Council shall by order fix for that purpose.
I move amendment No. 2:—
In page 5, line 52, Section 7 (3), to delete the words "because of illness, absence, or any other cause" and substitute the words "owing to other public duties or services temporarily imposed on him or on account of illness or for any other sufficient cause".
I move amendment No. 3:—
In page 5, line 59, Section 7 (4), to delete the words "to have been and".
I move amendment No. 4:—
In page 7 to delete Section 10, lines 27 to 35 inclusive.
I undertook to put before the House the result of consultations with the Bar and the judiciary. I consulted the Bar, and I think they are in favour of an amendment on the lines suggested by Deputy Costello that the Court of Criminal Appeal should be constituted of three High Court judges. I took the opinion of the judges, and they were practically unanimous about the constitution of the Court of Criminal Appeal. The judges said that nothing had been brought to their notice to show that there was any fault to be found with the constitution of the court as it is. They pointed out that nothing was brought to their notice by any member of the legal profession, and, on the whole. I think it is better to leave the position as it is, the Court consisting of one Supreme Court judge and two High Court judges.
Did the Minister consult the Bar Council subsequent to representations from the judiciary?
At the same time. The point is that the representations from the judiciary came in simultaneously with those from the Bar Council.
Was the Minister adverting to things of which that is the effect? Has the Minister considered the question of appeals from the Criminal Appeal Court to the Supreme Court? An appeal from the Criminal Appeal Court is on the certificate of the Criminal Appeal Court itself, and I pointed out at various stages of the Bill that that particular kind of appeal, depending on the certificate of the court from which the appeal was taken, was objectionable in principle. While I cannot say so with any degree of accuracy, I think the Minister undertook to look into that matter. I also think that the Bar Council was anxious that appeals should be by way of application for leave to appeal to the Supreme Court itself on questions involving very big principles from the Court of Criminal Appeal and should not be dependent on the certificate of the court from which the appeal was taken, but on the decision of the Supreme Court. Procedure should be devised by which there should be liberty to appeal, and subsequently, if the court thought it a case fit to prosecute in the Supreme Court, or one raising an important point of law, the Supreme Court could give liberty to appeal. I do not know if the Minister considered that.
The Deputy is correct as to what the view of the Bar Council was, but the view of the judges was that the question of giving a certificate for a further appeal was one that the court that had already heard the appeal was more competent to judge.
I have the greatest possible respect for the views of the judges, and in anything I say I do not in any way animadvert on their judgment, but I adhere to the stand we took on the question of the certificate, that it is not right in principle that a court from which an appeal is sought to be taken should itself be the judge of what is and what is not a proper case for a higher tribunal. I am perfectly certain that in every case requiring an application for a certificate, either in the Criminal Appeal Court, the High Court or the Circuit Court, they have always exercised their authority bona fide and have never refused a genuine case. But we think and we pressed the point on the Minister that it is wrong in principle that such a state of affairs should exist. We think the Supreme Court, before whom the appeal will be subsequently heard, should, by way of preliminary hearing, have an opportunity of determining whether or not an appeal involving considerations of public policy, or general considerations of law, or raising important principles, have the opportunity of hearing and determining that before the appeal came on. While I have the greatest respect for the opinion of the judges, I think they ought not to be allowed to have full sway, and that the opinion of the Bar Council, of the Bar generally, and of those on this side of the House, should be heard, that a substitute for the certificate which exists at present should be by way of allowing an application to the Supreme Court. I would like to know if the Minister has any views, other than the fact that the judiciary have expressed their views. While the views of the judiciary are entitled to the greatest possible respect and weight, I think other views might equally be taken into consideration on this particular aspect of the case.
What strikes me in this matter is that if we were to allow the application for leave to appeal to be made to the Supreme Court it would mean going into the entire case before that Court.
The judges' point is that it would mean reading all the evidence before the court could decide. If you had to go to the Supreme Court before they would be in a position to deal with it, they suggest that they should know all the relevant facts. It appears to me that that would be a double hearing before the Supreme Court. Having considered these aspects, and not having heard any complaints, I am inclined to leave the matter as it is. I may say that it is probable this is not the last Courts of Justice Bill, and if a case can be made of some miscarriage of justice arising, it might have some bearing then.
The Minister will appreciate that it would be extremely difficult to make a case of a miscarriage of justice taking place by reason of a refusal of a certificate. To make any such case would be to attack the bona fides of the judges. No one would make that case.
I am not saying that.
I understood that your suggestion was that if a miscarriage of justice could be made out for an amendment of the law the matter might be further considered in some later Courts of Justice Bill. I do not wish to press the matter further. It is one in which we feel that the principle should be left to the appellant tribunal. We think that as the intention under this Bill is to make the Supreme Court consist of more judges than is the case at present, it therefore gives a very good tribunal to hear important points arising in connection with the administration of the criminal law. As the Minister cannot see his way to adopt the suggestion, I will not press it.
I move amendment No. 5:—
In page 7 to delete Section 12, lines 50 to 59 inclusive.
What is the point in this amendment?
To delete Section 12 dealing with appeals under the Industrial and Commercial Property (Protection) Act. Some objection was taken on the Committee Stage. I do not think the Courts of Justice Bill is the appropriate place for this section. A commission is at present sitting dealing with the patent law and it is likely that legislation will eventuate from their report. It would be there this section should be embodied and not in a Courts of Justice Bill.
Does the Minister agree with the principle embodied in the section he proposes to delete?
I have no objection.
I think far from having any objection he agreed to it. Having agreed and inserted it in the Bill I want to know at this stage why it is being put out now. I am not convinced by the Minister's suggestion that because a commission is sitting legislation will eventuate from the report of that commission. Everybody knows that commissions sit frequently in sxcula sxculorum, and that legislation resulting from majority reports, or from minority reports for that matter, takes a very long time to eventuate. Now, there is no doubt whatever that an appeal to the law officer under the Industrial and Commercial Property Act is, in itself, a bad principle, and the sooner that it is done away with the better. I cannot see that there is any substance in the Minister's suggestion that the place to deal with this matter is not in a Courts of Justice Bill. I think it is. I think it is the appropriate place to deal with it. In this Bill we are dealing with the jurisdiction of the High Court and of the Supreme Court. If a thing has any reference to patent law or industrial property, we think that the right conferred upon the Attorney-General, and if I may express my own personal opinion, the burden which was imposed on the Attorney-General under the Industrial and Commercial Property Act of 1927, is one that should be removed at the earliest possible moment. That is why we object to this section being taken out of this Bill. It was put in on an earlier stage, and why not let it stay in? What is the objection to it?
I had a similar amendment to this on the Committee Stage and I withdrew it on representations made by Deputy Costello. I said I would further consider it. I am informed that no cases have arisen since, and not for some time, that this section would be required to deal with. If a number of cases had arisen, perhaps there would be some case for it, but very few cases at any time did arise, and none has arisen since the Bill was last before the House.
One has arisen in the last six or eight months. One actually was heard by the present Mr. Justice Maguire when he was Attorney-General. It took days and days to hear. I regard that as a very grave burden on the Attorney-General. I regard it as the sort of burden that should not be imposed on the Attorney-General who, not merely has to hear those appeals, but has to advise the Controller of the Patent Office in reference to matters arising in his Department. The Attorney-General has also to advise the various Ministers and the Executive Council in reference to matters arising on the 1927 Act. That is sufficiently burdensome without placing it in the power of some person who, instead of going to the High Court, can impose this duty on the Attorney-General of having to sit for days and days hearing this particular class of evidence, and then, if he thinks fit, can bring the case to the High Court. I think the Minister should leave the section in. It is in the Bill now, inserted by him at our instance and request. Why it should be deleted at the present moment I fail to see.
I know it was at the instance of the late Attorney-General that this section was put in. What I feel about the matter is this: several proposals have been made from time to time to include in this Courts of Justice Bill various matters which I think are not relevant to a Courts of Justice Bill at all. I think the Deputy will concede that this is a matter which should be dealt with in another Bill resulting from the report of the commission already referred to; that it is in that Bill it should be included and not in this one. I am attempting to relieve lawyers from the trouble of searching in places that they least expected to find the law dealing with a particular matter. I suggest that, except in a case where a lawyer is familiar with it, a Courts of Justice Bill is the last place a lawyer would look for a matter of this sort.
I do not agree at all with the Minister. A Courts of Justice Bill is the Bill that lawyers will be most familiar with.
I have had to exclude proposals with regard to licensing laws and other things which it was sought to introduce into this Bill. It is not a question of principle. The only objection I have to the inclusion of this section is that this is not the appropriate place for it. I do not want to be loading this Bill with matters that should be dealt with in a Bill brought forward by the Minister for Industry and Commerce.
Now that the section is in the Bill, I think it might as well stay in. The consideration urged by the Minister is one that might have more weight if it were put forward six months ago, but now that this section has appeared in several prints of the Bill, I think it would be just as well to leave it in. Lawyers dealing with a Courts of Justice Bill will know it better than any other statute, and if this section is allowed to remain in then, when dealing with questions relating to industrial and commercial property, they will not have any trouble in finding out that the jurisdiction of the Attorney-General in reference to patent law is taken away from him by this Bill: I do not think there is any substance in the Minister's proposal. I think that, having extracted from the Attorney-General of the time his acceptance of the principle involved in this amendment, it ought not to be withdrawn now, and be allowed to wait over pending the report of the commission to which the Minister has referred. That commission may sit for a very long time. It may take a long time to prepare its report. When it has reported a long time will be occupied by the various Departments in considering its report, and God only knows when a Bill will result dealing with industrial and commercial property. In the meantime, a reform has been accepted in principle, and the Minister, I think, should give effect to it in this Bill.
I might be prepared to agree to that if the commission was not near the time when it will be considering its final report.
I do not think that the Minister's last argument has any validity whatever. Even supposing the commission is near the time when it will be considering its final report, everybody knows that, even when the commission has finished its labours, it will be months and months before the various Departments will have had an opportunity of considering that report. It will be years before the Executive Council considers it, and it will probably be decades before the Bill comes before the Dáil. After long efforts on our part this section was put into the Bill with the concurrence of the Minister and the then Attorney-General. It has been in print for months, and now the House is asked to delete it merely because a commission is going to report and some legislation may eventuate from the report of that commission. The reform that the amendment proposes to carry out is one that, I think, should not be delayed.
Is it the Minister's sense of neatness that is hurt by allowing the section to remain in the Bill? We had one Minister to-day struck by the principle of uniformity. I think he was doing things that he did not want to do. I hope that the Minister's sense of neatness will not prevent him doing what, in principle, he approves of.
I move amendment No. 6:
In page 8, line 7, Section 13 (2), after the word "Act" to insert the words—
"the following provisions shall have effect in relation to the remittal or transfer of actions under that section, that is to say:—
(a) an action shall not be remitted or transferred under the said section if the High Court is satisfied that, having regard to all the circumstances, and notwithstanding that such action could have been commenced in the Circuit Court, it was reasonable that such action should have been commenced in the High Court;
and in line 8, to delete the word "that" and substitute the words "the said".
This amendment refers to the decision in the Hosie v. Lawless case. I undertook in the Committee Stage to try and get something, if I might so put it, to make it difficult to transfer a case from the High Court to the Circuit Court. That is the intention in any case—to reverse the position in Hosie v. Lawless. We have tried to get as suitable words as we could, and, as far as the phrasing of the amendment is concerned, it goes as far as we can to try to meet that position.
I am glad the Minister has put-down this amendment. It is an eminently satisfactory alteration. I have considered the proposed wording, and, while a number of alternative drafts could be put forward, I think that this one gives the greatest promise of the largest number of cases to the lawyers. We shall have a grand time construing this section, and I welcome it with open arms.
I move amendment No. 7:—
In page 12, Section 24 (1), to delete the word "High" in line 9 and also in line 10, and substitute the word "Supreme" in each case.
This amendment provides that a case stated by the Circuit Court judge will go direct to the Supreme Court and will thus cut out the High Court on a question of law.
I move amendment No. 8:—
In page 12, line 10, Section 24 (1), after the word "court" to add the words "unless such judge is of opinion that such question of law is not of sufficient importance to justify such reference".
The effect of this amendment is to give discretion to the Circuit Court judge to refuse to state a case where he considers the case is frivolous.
I am rather uneasy about this amendment. It gives a certain discretion to the judge who has just decided a case to say whether or not it is sufficiently important for a case stated. However, I shall not raise any objection.
The Deputy appreciates that the mandatory provision is retained.
I move amendment No. 11:—
In page 13, to add at the end of Section 33 a new sub-section as follows:—
(4) Notwithstanding anything contained in this Part of this Act, where a question of law has been referred under this Act by a judge of the Circuit Court to the Supreme Court by way of case stated and has been determined by the Supreme Court, no appeal shall lie from the judgment or order, or any part of the judgment or order, of the Circuit Court for the purposes of which such question of law was so referred.
This amendment deals with a rather remote possibility. It was felt, when the matter was being examined, that litigants having agreed to have a question of law submitted by the Circuit Court judge to the Supreme Court for decision, the defeated party might, subsequent to the decision of the Supreme Court, take the case to the High Court by way of ordinary appeal. We think it is desirable to provide against that.
Why does the Minister think that desirable? A very difficult question of law may be involved and it may be eminently desirable to obtain an expeditious decision from the Supreme Court on that point of law. The issues of fact have subsequently to be determined. These issues may be as important to the litigants as the point of law and I am not at all satisfied that they should not have a right of appeal on the facts. It is only on the facts that the appeal will be effective, because the High Court will be bound by the decision of the Supreme Court on the point of law.
Will not the parties themselves have agreed on the facts in presenting the case stated?
No. Take as an example the case from which I came to-day in the Supreme Court. The facts were not gone into at all. The whole point was as to the construction of a certain section. In a case of that kind, the facts would subsequently have to be determined as between the parties. Before you enter into the facts it may be necessary to have a decision on the construction of a statute. That decision having been given, the facts would be considered having regard to the law as laid down by the Supreme Court. I am not at all in favour of this new system but when it is determined that there should be a full rehearing by way of appeal on the facts, I am not sure that that appeal on fact should not also be allowed in this case. The two matters may be in separate watertight compartments. The appeal on fact would not complicate the matter because when the case would come before the High Court judge on appeal, he would have the law laid down for him by the Supreme Court and he would merely have to address his mind to the issue of fact.
I am not particularly keen on this amendment, either. What was represented to me when dealing with this particular section was that litigants had an alternative method and that, having agreed on the facts and the case stated having been decided by the Supreme Court, there was a remote possibility that a litigant would take an appeal to the High Court.
As a layman, perhaps I could be informed whether it would be possible to restrict the right of appeal to grounds other than the point of law determined by the Supreme Court on the case stated?
I think you will have to leave these matters more or less in the hands of the judge. He would get agreement on the facts before submitting the case to the Supreme Court on a point of law.
I have not a shred of interest in this case but, under Section 24, all the parties consent to is to refer to the Supreme Court "any question of law arising in such matter." A point of law may emerge which is entirely divorced from and apart from the facts but it may be a point of law on which it would be eminently desirable to seek a decision from the Supreme Court. Having got that decision, the residue of the case could be proceeded with, having regard to the law as laid down by the Supreme Court. It would be for the Circuit Court judge to determine how that law should be applied to the facts. On that question, I think there should be a right of appeal to the High Court—that is, as to how the law, as found by the Supreme Court on the case stated, should be applied to the facts.
The section contemplates agreement on the facts.
It is not so stated. The wording is "any question of law arising in such matter." A question of law may arise in a matter which is pending. The point of law may be the construction of a section of a statute. That point might be referred by consent to the Supreme Court in the course of the administration of an estate. The law having been settled, the matter would be continued in the Circuit Court. If the Minister's amendment is inserted, it may raise serious complications.
If the Deputy thinks there is anything objectionable in it, I am prepared to withdraw it.
I am not raising these matters by way of obstruction.
I am aware of that. I am prepared to withdraw the amendment if the Deputy so desires.
It would probably be better to withdraw it because if a vexatious appeal were brought to the High Court, after a case stated by the Supreme Court, the judge would deal with the matter very expeditiously.
I move amendment No. 12:—
In page 14, lines 50 and 51, Section 36 (4), to delete the words "The Minister for Justice shall by order made after consultation with", and in line 52 to delete the word "appoint" and substitute the words "shall jointly determine".
The object of this amendment is to provide that the Chief Justice and the President of the High Court shall determine jointly in respect of each half-yearly sittings of the High Court on Circuit the number of judges who will travel and sit, and so on. It is purely a matter of arrangement. Deputy McGilligan moved an amendment in this connection on the Committee Stage.
I think this is a desirable amendment.
I move amendment No. 13:—
In page 16, line 25, Section 40 (3), after the word "stated" to add the words "and, in particular, may so adjourn such pronouncement to Dublin and there pronounce his said judgment or order at any time after such determination."
I think Deputy Costello raised this point on the Committee Stage. The object of this amendment is to enable the appeal judge, when he is referring a question of law arising in an appeal to the Supreme Court by way of case stated, to adjourn the pronouncement of his judgment. It would not mean that he would have to go back to where he heard the case and give his judgment there; he can give his decision in Dublin.
I move amendment No. 14:—
In page 19, before Section 49, to insert a new section as follows:—
Notwithstanding anything contained in Section 72 of the Principal Act, the Executive Council may, if and whenever they think proper so to do, permit a justice of the District Court who is assigned to a district which includes an area where the Irish language is in general use and who possesses such knowledge of the Irish language as enables him to dispense with the assistance of an interpreter when evidence is given in that language to continue in office for so long (but not exceeding in any case five years) after he has reached the age of retirement applicable to him by virtue of the said Section 72, and the Executive Council are satisfied that such justice is not suffering from any physical or mental ill-health or disability which would render him unfit to discharge efficiently the duties of his office.
Amongst the amendments submitted on the Committee Stage was one put in by Deputy MacFadden, the object being to extend the retiring age of a district justice to 70 years in the Gaeltacht areas. Where these Irish-speaking justices are operating in an Irish-speaking district and are able to conduct the business without the assistance of an interpreter, and where they are physically and mentally fit, it is proposed that they can be continued for a further period not exceeding five years from the retiring age of 65 years.
I do not know whether this is the proper time to raise a point arising on Section 49, or whether it would be more desirable to wait until the Bill has been reported to the House. However, it is a small point and perhaps the Minister will consider it. The section deals with the pension rights of district justices, and it allows district justices who have, prior to their appointment as district justices, occupied certain public positions, to reckon the period of their occupancy of such positions for the purpose of their pensions. There are one or two of these men—I am not sure whether there is only the one man—who occupied a position for 12 months or a couple of years as a legal officer in the Army. There was certainly one man who occupied such a position. He was subsequently appointed a commissioner in connection with the Winding-up Commission. I think, in justice to him, his service as a legal officer in the Army should be reckoned for the purpose of a pension. It is a matter of considerable importance to him, having regard to the age when he was appointed a district justice.
A number of concessions have been made by the Minister, and perhaps he would go a step further and give favourable consideration to this particular case. I do not think it would involve the Exchequer in any great amount, if anything at all eventually, and I think, in justice to the individual, the Minister might see his way to grant this request. I did not put down an amendment; I thought it more advisable to mention the matter in this way to the Minister.
I am afraid I cannot give any undertaking along these lines. There is more than my Department concerned in this matter. We have to a considerable extent improved the position of district justices, as the Deputy will observe from the sections in this Bill. We have improved their pension rights. We have taken them out of the position where they were regarded as civil servants, taken them out of the control of the Superannuation Acts. I have already indicated the improvement in pensions to which they are entitled under the provisions of this Bill. I have pointed out the alternative proposals giving them an opportunity to opt and retain their old pension rights. Even then they would get 10 per cent. of an increase. The great body of the district justices are quite satisfied with that, but as happens in the case of almost every Bill, there will be some people who become district justices late and, while they may fare better than they would have fared ordinarily, they do not fare comparatively as well as the others. That has been the subject of communications between the Departments and in that connection we have gone as far as we can, and we have set out our proposals in the Bill. I do not think I can make any promise to the Deputy arising out of the case he has mentioned.
I quite appreciate that the Minister has gone very far to meet our proposals in the way of bettering the position of district justices. I had intended to express my gratification in connection with the proposals set out in the Bill at a suitable opportunity. The opportunity having arisen now, I would like to say that I think the Minister has dealt very fairly with district justices on the whole, as fairly as I could expect a Minister of the present Government to deal with them, and that is saying a lot. The district justices have been comparatively well treated under this Bill, and the Minister has met us very fairly indeed. There is only one man affected by this. The general position is that if a man occupies a position in the public service, on being appointed to another position in the public service he is entitled to reckon his previous service. This man served in the Army and I think it only proper that he should be entitled to add his period of service in the defence forces to his period of service as a district justice. It will involve very little expense on the Exchequer and it may mean a lot of difference to this man.
I move amendments Nos. 15, 16 and 17, which may be taken together:—
In page 20, Section 50 (4), (b), to delete in line 43 the brackets and letter "(i)" and also to delete lines 45 and 50 and substitute for those lines the words "decide that such conduct amounts to misbehaviour in office or that it amounts to misconduct and (in either case) that such justice is, on account of such conduct, unfit to continue to hold his office".
In page 20 to delete Section 50 (5).
In page 21, line 7, Section 50 (6), (b), to delete the words "grave misconduct" and substitute the words "either misbehaviour in office or misconduct", and in line 11 to delete the word "misconduct" and substitute the words "misbehaviour in office or misconduct, as the case may be".
The object of these amendments is to delete from Section 50 all references to the censuring of district justices. We had a great deal of criticism during the Committee Stage in regard to this matter and I have decided to delete all references to any censure of district justices and leave the position as suggested by the Deputies opposite.
While this section, even as now amended, is objectionable, I want to express my appreciation of the way the Minister has met our objections in connection with this matter.
I move amendment No. 18:—
In page 21, to delete Section 50 (8). This amendment has somewhat the same effect. It relates to what was regarded as an objectionable proposal, to inquire into the personal circumstances of the district justice. I explained what was behind that, what was suggested by some district justices as to the difficulty they had in dealing with cases in certain areas where they had married, and so on. Representations were made to us and, having considered the matter, we have decided to delete that particular provision.
I move amendment No. 19:—
In page 21, before Section 51 to insert a new section as follows:—
(1) Whenever an assistant justice of the District Court appointed (whether before or after the passing of this Act) under Section 13 of the Courts of Justice Act, 1928 (No. 15 of 1928), has or shall have completed five years' service as such assistant justice, the salary of £800 per annum which he is entitled, under sub-section (4) of the said Section 13, to receive shall become and be increased, as on and from the 1st day of April, 1936, or such completion (whichever is the later) to £900 per annum.
(2) Whenever any such assistant justice as is mentioned in the foregoing sub-section of this section shall have completed ten years' service as such assistant justice, the increased salary of £900 per annum which he is entitled, by virtue of the said foregoing sub-section, to receive shall become and be further increased to nine hundred and fifty pounds per annum.
(3) All salary payable to an assistant justice by virtue of this section shall be charged on and payable out of the Central Fund or the growing produce thereof.
This amendment provides for an increase of salaries of assistant justices of the District Court. There are three assistant district justices and their salaries, as fixed by previous Acts, are £800 per year. Under this section they are immediately getting an increase to £900 and after another five years they will be increased to £950. This amendment provides that it shall have retrospective effect from 1st April last, the beginning of the financial year.
I move amendment No. 20:—
In page 22, line 19, Section 52, before the word "rates" to insert the words "sum not exceeding twenty-five pounds in respect of", and in lines 20 and 21, to delete the words "irrespective of the amount thereof".
The purpose of this amendment is to limit the jurisdiction in proceedings at the suit of local authorities, fishery boards and drainage boards to £25. That will bring it into line with the jurisdiction they had in similar cases. It was suggested on Committee Stage.
I move amendment No. 21:—
In page 23, before Section 55, to insert a new section as follows:—
Whenever an order is made by the District Court binding a person to the peace or to good behaviour or to both the peace and good behaviour and requiring him to enter into a recognisance in that behalf, such person may, at any time within one month after he has entered into such recognisance in accordance with such order, and on giving seven days' notice to the officer of the Gárda Síochána in charge of the district in which such person resides, apply in a summary manner to the judge of the Circuit Court within whose circuit the courthouse in which such order was made is situate to be released from the obligations imposed on him by such order and such recognisance respectively, and on the hearing of such application such judge may, if he so thinks proper, release such person from such obligations or modify in such manner as such judge thinks proper all or any of such obligations, and may make such release or modification either absolutely or subject to conditions and, in particular, subject to such person entering in the District Court into a new recognisance in lieu of such first-mentioned recognisance.
The purpose of this amendment is to give the right of appeal in cases of binding to the peace. Representations were made on Committee Stage and I indicated at the time that I agreed with them. I do not know whether, as drafted, it meets the Deputies opposite, but I think it is as far as we can go.
It strikes me as a very peculiar provision. I think it does go some way to meet the objections we raised, but it provides that if a district justice makes a person enter into recognisances to be of the peace, that person has to remain tied by these recognisances pending the appeal, although it subsequently transpires that the district justice ought never to have made him suffer that indignity. I cannot see the point of that. In an ordinary case of appeal, if a man is sent to jail, he has not to go to jail pending the appeal. Why should he enter into recognisances to be of the peace pending his appeal? It may be that he might not find it convenient to get people to go bail for him, as the saying is, to enter into recognisances for him. They may be his own in £200 and two sureties of £500 each, and he might not be able to get them, and pending the appeal, what is he to do? It may be an appeal in respect of which the Circuit judge may say that there ought never to have been an order made binding him to enter into recognisances. As it stands, it seems a very peculiar provision going entirely contrary to the tendency of our Courts of Justice Acts recently to enable an appeal in every case of a criminal matter to be had from the district justice. I do not know what is behind this particular form of drafting.
There is this behind it, that binding to the peace has an instantaneous effect. That is the advantage of its immediate operation as it is. I indicated, the Deputy will remember, on the Committee Stage that it was on these lines I could only go. I discussed it with the then Attorney-General, and apparently the people who have to prosecute think it is of some advantage that binding to the peace should have this instantaneous effect. I do not think it is going to leave a slur on a man that a conviction may leave, and if, when litigating some other matter, they are being cross-examined as to this binding to the peace, they are in the position of being able to say that they are having that reviewed by the Circuit Court judge. Under this amendment, they can appear summarily before the Circuit Court judge with a view to having it removed.
I am not convinced but it is better than nothing.
I move amendment No. 23:—
In page 25, before Section 64, in Part V to insert the following new section:—
Whenever in criminal proceedings depositions are taken before a justice of the District Court it shall not be lawful to print or publish in any newspaper, periodical or other publication a report summary or other description of the evidence given by any person appearing in such proceedings during the taking of such depositions and any person who acts in contravention of this section shall be guilty of an offence under this Act and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds.
This amendment is introduced with a view to preserving that impartiality right through that ought to be associated with our trials. There is a feeling in the minds of a very wide section of the community that absolute justice is not done because of the publication of evidence at the stage of the taking of depositions before the district justice. For obvious reasons, the defence at that stage does not put its cards on the table, and, from one hearing to the other, a pile of depositions is brought forward by the superintendent of the area in an effort to associate the accused with the particular offence. Automatically and incidentally, there is being created a bias against the accused in the mind of the general public reading this welter of evidence, and nobody is putting evidence forward on his behalf. From that general public is eventually drawn the jury which tries the case, and it is suggested that if the evidence were to be taken without publication of the details, it would make for a fairer trial and the jury who, as I say, would be drawn from the general public, would approach the case with free and fresh minds and with the evidence both for and against before them.
In certain cases at present, certain district justices use a questionable discretion in relation to the hearing of cases in the absence of publicity. Doubt has been expressed—I do not attempt to speak with confidence on these legal matters—as to whether district justices are warranted in doing so. It is considered desirable to hear certain cases without publicity with a view to the preservation of public morality, and it would be equally good, in the interests of justice to the person concerned, that what is sought in this amendment should be given effect to and that depositions should be taken in the absence of publicity. When the case comes to be tried and the defence is ready to put its cards on the table, all the matters could be given full publicity. I believe that it would make for the removal of what is felt by a good many people to be an inherent injustice that is being perpetuated in our code at present.
I do not know that the present system has created any hardship or resulted in any injustice, but, as it is at present, a district justice has power to exclude people from the court. Under the Rules of Court, in all cases of proceedings for indictable offences, the place in which any justice shall sit for the preliminary investigation of any offence shall not be deemed an open court, and such justice may, in his discretion, order that no person save the person conducting the prosecution and the counsel or solicitor of the person charged shall have access to, or be, or remain in such place without the consent or permission of such justice. That is his discretion now.
That does not seem to meet the point I am dealing with. I am asking that it should be the rule. It is so for particular types of cases.
The district justice can do it in any case.
I want to ensure that an accused person will be treated as innocent until proven guilty. Under the present system, there is a welter of evidence creating animus against the charged person in the public mind, and the public will eventually be the jury. I do not see what disadvantage there could possibly be in adopting this suggestion. There would be quite sufficient publicity in the Press if the case were mentioned by name without publication of the details, and that is all that is being asked. It would be no disadvantage to anybody, and it would certainly be an advantage to accused persons who may be innocent and who eventually may be proved innocent of the charge.
I do not see how we can go any further than the provision at present. That is the right at present, and excluding the public includes excluding the Press.
It is a discretion.
Would the Minister not see his way to make it an order?
I do not think it necessary.
I move amendment No. 24:—
In page 26, Section 66 (3), before paragraph (e) to insert a new paragraph as follows:—
(e) the principal officer of the Department of Justice.
The object of this amendment, and also amendments Nos. 28 and 29, which come later, is to provide that the principal officer of the Department of Justice shall be ex officio a member of each of the three Rules Committees.
Is the Minister not going to give us any reason for this very radical amendment in the Rule-making Authority? It is the first time in the history of legal procedure, either in this country or in the English tribunals, that an official of the Government has been inserted into the Rule-making Authority. It is rather late in the day in connection with this Bill that such a radical alteration should be made, and I think that we are entitled at least to know the reasons for it. We have very strong objections to this proposal and we intend to oppose it.
The rule-making power is being conferred on the Rules Committee, subject to the concurrence of the Minister for Justice, and it is because of that position that it was thought desirable to have a representative from the Department of Justice.
Surely that is no reason for it. This is an amendment that has been introduced in a very incidental manner by the Minister. Surely he realises that to put an official of the Executive upon the three rule-making committees is doing something that has never been done before? In the Judicature Act, the Common Law Procedure Acts and all other Acts relating to judicial procedure, the courts have always been independent of the Executive. It has never been suggested that there is any ground for interfering with them in the control of their own procedure. It is not an incidental matter. It is an attack on the independence of the courts and, if it is to be justified, it should be justified on that basis.
If it is viewed in that way, I do not want to move the amendment but there has been some difficulty in the past in getting the rules committees to meet. That has been why the rules have not been submitted to the Minister for his concurrence. If it is regarded as an interference, I have no desire to intrude.
That is a very satisfactory position for the Minister to take up and there can be no objection to it.
I think this amendment has to be connected with amendment No. 25.
Amendments Nos. 24, 28 and 29, under which it is proposed to have an officer of the Department of Justice sitting on each of the three rule-making committees go together. I think it is also possibly connected with amendment No. 25 in which it is proposed to delete from Section 66 (3), paragraph (e). I can quite understand that the Registrar of the Supreme Court, who under the section as it stands, is to be a member of the committee, would not wish to be a member of the committee. Instead of being a member, he is to become secretary and possibly the Minister has some idea that if the Registrar of the court were no longer to be a member of the committee, he might be replaced by another official.
That has no relation to it at all. It was because of representations made by the Registrar himself.
I can quite understand that if the Registrar does not wish to act as a member of the rule-making committee he should not be asked to do so. That is quite satisfactory and I think everybody will approve of it, but it is surely very objectionable from the point of view of the independence of the court that an officer of the Department of Justice should take his place. However, if the Minister does not wish to press the amendment there is no reason to say any more.
Is the amendment withdrawn?
Yes. There will have to be a consequential amendment to that. There will now be only four instead of five ex-officio members.
I move amendment No. 25:—
In page 26, Section 66 (3), to delete paragraph (e).
This amendment goes with amendment No. 27. It provides that the Registrar of the Supreme Court will not be a member of the Superior Court's Rules Committee.
I move amendment No. 26:—
In page 26, line 29, Section 66 (4), after the word "Court" to insert the words and brackets "and shall (when the number of such ordinary judges exceeds two) be".
This is consequential on amendment No. 1.
On amendment No. 1?
I do not see how it is connected with amendment No. 1. Possibly the Minister will explain.
There would be automatic operation of this section when the Bill became law if the position were left as it is. The amendment proposes to fix such date as the Executive Council may decide.
That is amendment No. 1.
That follows from Section 66.
What is this thing about the judges being more than two?
Without this amendment the rules making committee in Section 66 would be inappropriate. An amendment has already been passed dealing with Section 4 providing that that section shall not come into operation until such date as is appointed by the Executive Council. With regard to the rules making committee, if the Chief Justice nominated two from the ordinary judges, the arithmetic at any rate would not be appropriate. There are only two with the Chief Justice.
That is all we want.
You need not nominate them.
I think the grammar and also the sense are not satisfactory.
It is a matter of drafting. I have not very much interest in it one way or another.
Is the difficulty that, at the moment, it seems to be an absurd thing to have the Chief Justice nominating two when there are only two?
You need more than two before you can nominate.
If there are only two it seems to me to be automatic.
Possibly, but they can be nominated.
Not in the sense of choosing from a greater number.
If the section were to read: "Two of the nominated members of the said committee shall be the ordinary judges of the Supreme Court and shall, when the number of such ordinary judges exceeds two, be nominated by the Chief Justice," I think the grammar would be right. I think it is rather an elaborate way of expressing a very simple idea. However, there should not be any difficulty about it. We understand the point.
It is only a matter of drafting.
I move amendment No. 27:—
In page 26, before Section 66 (8), to insert a new sub-section as follows:—
(8) The Registrar of the Supreme Court shall be the secretary of the said committee.
I move amendment No. 30:—
In page 32, First Schedule, Part I, in the portion of the third column relating to the Courts of Justice Act, 1924, to delete the figures "95".
When this Bill was first introduced, it dealt with majority verdicts, and it is necessary to delete the reference in the Schedule to Section 95 of the Courts of Justice Act, 1924.
I move amendment No. 31.
In page 33, Second Schedule, in the first column to delete the word "Lifford" and substitute the word "Letterkenny."
I move this amendment for the reason that Lifford is not the centre for Donegal, and besides there is not suitable accommodation there. Letterkenny is really the centre. The litigants from a large area of Donegal who would be obliged to go to Lifford would actually have to pass through the town of Letterkenny. The people of the north-west section of Donegal would actually have to pass through the town of Letterkenny on their way to Lifford, the distance from Letterkenny to Lifford being roughly 18 or 20 miles. The distance from any part of Inishowen to Letterkenny is somewhat similar to the distance from any part of Inishowen to Lifford, and of South Donegal the same might be said. For those reasons Letterkenny is really the centre, and would be far more convenient than Lifford for the people of Donegal. Apart from the litigants I hold that it is a more convenient centre even for those engaged in the legal profession. Besides, there is ample accommodation there. It is a town with a population of upwards of 3,500. It is the centre of education. The County Mental Hospital was constructed there for the reason that it is the centre for the county. The Hospitals Commission, which has recently been in the county in connection with the hospitalisation of Donegal, decided that their scheme would be for a major hospital, and the centre for that major hospital for Donegal was fixed at Letterkenny. When that central hospital was completed the County Hospital in Lifford was to be closed, which, in itself, is proof that Lifford is not the centre for a court or for any other institution constructed on behalf of the County Donegal. There is no accommodation in Lifford. It is a small township. There is no hotel, or nobody who caters for people in the way of lunches or teas. I think those matters should be taken into consideration as a justification for this amendment to delete "Lifford" and substitute "Letterkenny."
I have no very fixed ideas about this matter. Apparently the County Council is proposing to transfer its offices from Lifford to Letterkenny. There is a courthouse in Lifford where two courts were held in the time of the Assizes, but I understand it was in a very dilapidated condition. There is at present a courthouse suitable for one court in the town of Letterkenny. If the Donegal people want to have the court transferred to Letterkenny I have no objection, but they must bear in mind that they will have to erect a suitable courthouse at Letterkenny. At present such a courthouse is not available for holding two courts. From the other aspect of the matter I believe it is in some respects more suitable than Lifford. That may be accounted for by the development of road transport. Formerly it was not so suitable owing to the railways. I understand that that objection does not now obtain, but what the people will have to be clear about is that they will have to put up a proper courthouse at Letterkenny.
At Government expense?
I do not think so; at the ratepayers' expense, I am sure.
Does Deputy Blaney accept that proposal?
I might mention that the question of reconstructing or repairing the Lifford courthouse was under consideration a few months ago by the Donegal County Council. At the present time they have no accommodation in the courthouse for any court. The District Court is the only court that is being held there. All the courts have been held in Letterkenny, and the County Council left over consideration of the question of repairing the Lifford courthouse until after the Courts of Justice Bill had been passed. From the point of view of the people of Donegal, they know full well that they would have to expend money on the Lifford courthouse if Lifford were decided on, or, if Letterkenny is decided on, on the reconstruction of the courthouse there. They know full well that the courthouse would have to be reconstructed even in Lifford.
I should like to draw the Minister's attention to an amendment which was accepted some time ago. It is amendment No. 14. There appears to be something left out of it in the draft, and it does not make sense.
I think Deputy Geoghegan is drafting something at the moment.
It certainly does not make sense as it stands at the moment.
I agree with you.
We have passed it.
With your permission, Sir, amendment No. 14 may be reverted to for a moment. Deputy O'Sullivan has been good enough to draw my attention to what was undoubtedly a lack of elegance in the language in which it was expressed.
That is putting it nicely.
Possibly there was also a lack of clarity. That was due, I think, to the fact that at one time it was contemplated to have another sentence or perhaps other sentences in this amendment. Consequently, if the House were agreeable, I would seek a transposition of some of the words. I will read from the draft for the moment: "Notwithstanding anything contained in Section 72 of the Principal Act the Executive Council may, if and whenever they think proper so to do, permit a justice of the District Court." I propose putting in after that the words "whom they are satisfied is not suffering from any physical or mental ill-health or disability which would render him unfit to discharge efficiently the duties of his office and"—then resuming the present wording—"who is assigned to a district which includes an area where the Irish language is in general use and who possesses such knowledge of the Irish language as enables him to dispense with the assistance of an interpreter when evidence is given in that language to continue in office for so long (but not exceeding in any case five years) after he has reached the age of retirement applicable to him by virtue of the said Section 72," putting a full stop after "72" and striking out the remainder of the draft. I have substantially transposed the last three lines and placed them after the words "District Court".
But it is not right yet. Even then, there is something left out.
I am very grateful to Deputy Costello for calling my attention to it.
Apparently, the suggestion is that the district justice should be allowed to stay on for such a period, not exceeding five years, as somebody should determine, but that period is left out, and all that is left in is that he may be allowed to stay in "for so long" after he has reached a certain age, and it stops there. For how long?
Not in any case exceeding five years.
But is he still to get one year or two years, or what is he to get? There is certainly something left out there.
Should not the word be "as" instead of "and"?
There was also an error in grammar, I should like to point out, in the new version that the Attorney-General has just read out. It occurs immediately after the printed part, where he said "whom they are satisfied" is something or other. I think the word should be "who" instead of "whom".
I do not agree with the Deputy.
Could the Attorney-General give us the linked phrase?
I am not interested in the grammar, but in the fact that there is a lacuna in the section. It does not state for how long. Is it intended that the Minister for Justice should have the power to extend the time for a certain period?
The intention is that the Executive Council should have the power.
But, unfortunately, it is not there.
Perhaps, if the motion that the Bill be received for final consideration were to be postponed till to-morrow, the Attorney-General could bring in an amendment to deal with this matter of phraseology.
If you would permit, Sir, it would be possible to bring in such an amendment to-morrow.
We have no objection to a postponement so as to enable the Attorney-General to amend this thing properly.
Well, if we postpone the stage that the Bill be received for final consideration until to-morrow, the Attorney-General might then be able to have this thing properly drafted.
We would have no objection to that, provided that it is not postponed till 3 o'clock to-morrow when we cannot be here.
We will bring it in to-morrow, Sir.
Is it the arrangement then, to leave it until to-morrow?
There are two more stages, and I am suggesting that on the stage that the Bill be received for final consideration this matter of phraseology might be dealt with, and then there is the last stage: That the Bill do now pass.
Well, in that connection, might I ask a question: namely, why is Section 61 still in the Bill? We understood that it was going to be taken out. It is the section which deals with the power of the Attorney-General to send forward for trial a case in connection with which the district justice had refused informations. We were under the impression that that was going to be taken out. I understood that that was what the Minister said.
What I said was that we would reconsider it. The late Attorney-General undertook that he would reconsider it. He did reconsider it, and it remains.
The Minister says that it remains. Well, then, we vote against this Bill because it is there.
I should like to point out that, not merely is that section still there, but an amendment on the Report Stage has been inserted, although I do not think it was formally passed. The late Attorney-General moved to amend by putting in a new phrase. On that, a discussion was raised, and I certainly thought that the Minister approved of the whole clause being withdrawn, although the Attorney-General may not have. The clause is still there with the amendment which was pressed to a division and was not passed.
I shall look into that matter, but I am afraid the section, in general, will have to stand.
The amendment means very little, but what is important is that it has been put in although it was not passed, I think, and I understood the clause was to be withdrawn.
We shall certainly facilitate the Minister with regard to this matter of drafting, but we think he ought to meet us to the extent of not taking this motion until we are able to be here in the House when we come from court to-morrow. We are quite prepared to facilitate him, but I do wish to air my views, Sir, for a few moments on Section 61.
Debate adjourned until to-morrow on the motion that the Bill be received for final consideration.
Surely, Sir, it is not proposed to take the Final Stage to-morrow?
Yes, I think so.
Yes. The amendments have been disposed of, and all that is left is this one in connection with which there is a question of drafting.
But the Fifth Stage is one before which there is generally some time allowed to elapse.
Surely the Deputy does not suggest that we should take up the consideration of this Bill to-morrow solely to deal with this matter of drafting. There has been a great amount of delay already, as the Deputy knows, in connection with this Bill.
That is not our fault.
But surely the Deputy is not suggesting that we should take up the Bill to-morrow for the consideration of that matter of drafting alone, and then adjourn for a further period before taking up the Final Stage?
Yes. If we had passed this stage to-day, I would have suggested an adjournment for a week, and why not? Surely, a Single Chamber Government has a right to as much time as possible for the consideration of Bills?
But surely, in connection with a Bill on which there has been so much debate already in the Dáil, it should not be necessary to take up the consideration of the Bill merely for that one point of drafting to-morrow, and then to adjourn the Final Stage of the Bill for a further period?
I can put an amendment to that, and that is that there has been no Bill which has been so delayed, but that is not our fault.
I may point out that the usual time to ask for adjournment is when a particular stage of a Bill is being debated, and I suggest that we should take up that matter to-morrow when the Bill is being received for final consideration.