This section provides that the head of the judiciary shall be the chairman of a board, the function of which it is to take seisin of a matter which this House is asked to withdraw from the jurisdiction of the very judiciary over which the Chief Justice presides. Let us consider what that means. In this country, there is a Constitution, and the aim and object of that Constitution is that, if at any time the Executive of this State seeks to infringe the fundamental rights of one humble citizen standing absolutely alone, that citizen can appeal to the judiciary. They stand in a position of independence and security which enables any one amongst them, from the Chief Justice down to the puisne judge, to restrain by order of the court the Executive from doing anything until such time as the Executive has appeared before the judge and satisfied that judge that the thing they propose to do is in accordance not only with the statute law but with the Constitution which controls all statute law. Mrs. Buckley and other plaintiffs come into court.
Sinn Féin Funds Bill, 1947—Committee Stage (Resumed).
I would ask the Deputy to look at Section 10. This is a question of whether the Chief Justice should be chairman of the court, and if the Deputy looks at Section 10, he will see that the staying and dismissal of the pending action is in that section. On the previous day—I looked it up here—there were 20 columns of debate and that debate ranged over the personnel of the courts, the disposal of the funds, the fitness of the board, the plaintiffs and the removal from the courts. We cannot have a duplicate debate. There is ample opportunity of debating the matter on which the Deputy is now speaking on Section 10, where it is quite relevant. I submit that we might dispose of Section 4 on the question whether or not the chairman of the trust board shall be the Chief Justice. The Deputy will appreciate that.
I fully appreciate the Chair's feeling in the matter and its anxiety to provide for the expeditious disposal of public business, but I am sure the Chair will also understand the view of one who feels that the appointment of the Chief Justice to a position such as that envisaged in this Bill is a most loathsome outrage on the law —shameful, disgraceful and wholly inexplicable. With due respect, I shall not let it pass without expressing my amazement that the head of the judiciary was ever a party, as he is alleged to have been a party, to this shocking transaction. I am disgusted and horrified that the political head of a Government should have gone to the Chief Justice with any such request as the Taoiseach admits having addressed to him. Consider the facts. Mrs. Buckley, a citizen of this State, of the merits of whose case I know nothing, claiming to have a right—no more than that—moves in the courts. The Taoiseach, on the Second Stage of the Bill, knowing more of the circumstances of this lady and her associates than I, says she is poor, insignificant, so lacking in means that she has not the wherewithal to prosecute her suit. I have never heard in any other democratic country such adjectives used to disqualify a litigant. The courts are there to protect the poor, the insignificant and the weak. The tariff racketeers, the profiteers and the subscribers to the Government funds —are these the people the court must protect? They are well able to protect themselves. It is just for such a person as this, who is poor, insignificant and put to the limits of her resources to finance the means of putting the courts in action that the independence of the judiciary has been established. It appals and shocks me that the Chief Justice of Ireland would allow his name and high position to be associated with the proposition that because someone is poor, insignificant, bereft of resources and unable to prosecute her suit, she should be denied the protection of the court, that the Chief Justice should be told she will not be allowed to tell her tale before the courts because it might not suit the Government of the day. I have the horrid feeling that we are witness here to a grave and irretrievable step downwards. I have seen many things that were precious to liberty——
Does the Deputy not think that relevant to Section 10?
No, Sir. The horrible feature of this is that the Chief Justice is brought in. If the Taoiseach had proposed to come in, set the judiciary aside and establish a Parliamentary tribunal before which this thing could be consummated and done, then we might, at least, think of the judiciary resenting this procedure, remaining silent but indignant at this trespass on their rights and we might hope that, when we brought this Bill before them —as I am happy to think the Leader of the Opposition will most certainly do —and asked them to pronounce upon its constitutionality, we would not be in the position of asking the judges of the courts to declare that the Chief Justice himself is not fit for the office he holds. Remember, if we bring this Bill before the court, sitting on the bench before us, presiding over the court that is to try the constitutionality of the Bill is the Chief Justice, who, if we are to take the Taoiseach's word, has been consulted and has declared his readiness to be a party to this shameless and disgraceful transaction. What is terrifying me is that I see Deputies in this House—many of them knowing as well as I do the gravity and the evil of this thing—who are ashamed or afraid to take their stand. Some are so silly that they do not understand. Some do not realise the catastrophe it is for freemen when in the State in which they live the independence of the judiciary is gone. They do not realise that because they have grown up under the safe protection of the law. They do not remember the day when the mere Irish were denied that protection, when any minion of the Executive could trample their rights under foot just for being Irish or Catholic. They were faced with the horrid knowledge that there was no tribunal to which they might appeal. If the Chief Justice of this State presides over this tribunal, we are faced with the position that either he ceases to be Chief Justice or one of the most precious qualities of the judiciary, who are trustees of our liberties, is gone. There is no escape from that.
Even at this eleventh hour, I ask the Taoiseach to withdraw this section. I ask him to consider the position that will exist when that Bill comes before the Supreme Court, if, as I hope he will, the President directs that this matter be referred to the Supreme Court for prior determination as to its constitutionality before he signs it. If the court over which that Chief Justice presides determines that the instrument setting up the tribunal over which the Chief Justice has himself consented to preside, violates the fundamental rights of our people and had it been allowed to pass would have resulted in the denial of justice to poor insignificant, ineffective people, what will the Chief Justice do? If it be found that this strikes the foundation of the Constitution, if it be established on the Taoiseach's authority that the Chief Justice himself had a hand in it, can he continue to sit upon the bench as the protector of the Constitution?
I challenge the Taoiseach now to justify to this House the proposition that the Chief Justice should preside over the tribunal the function of which is to deliberate matters that have been withdrawn from that Chief Justice's jurisdiction by the intervention of the Legislature during the process of the litigation in question. I ask the Taoiseach to tell us, in his judgment, what the Chief Justice's position would be if the majority of his brethren on the Supreme Court Bench held this Bill to be a flagrant violation of the Constitution. I ask the Taoiseach to tell us if he has, since the Second Stage of this Bill was before the House, called the Attorney-General and asked him to give him a true record of what passed between the Attorney-General and the Chief Justice when the Attorney-General approached the Chief Justice as the messenger of the Executive. Did he tell the Chief Justice the full nature of the thing it was proposed to do? Are we to take it that the Chief Justice, having been apprised of the nature of this transaction, approved it?
Are we to learn to-day that, before the issue as to whether this law conformed with the Constitution or not was ever argued in the High Court, the Chief Justice has gone on record as approving it and declaring it to be that which he is bound by oath to determine judicially only after he has heard both sides and given due consideration to the arguments laid before him? Let the Taoiseach answer these questions and let the Deputies of this House who may have failed to realise the significance of what they are doing in this Bill open their eyes now, before it is too late. Here is the very cornerstone of liberty. The office of Chief Justice is the key-stone of the arch of freedom in our society. Fracture that and all will ultimately come down. Inevitably, if this section passes, the office of Chief Justice is disreputable in the land. The man who made it so, the Taoiseach, who is responsible for this proposal, has done very few things in his career for which there was not a purpose and the man who strikes at the independence of the judiciary, the man who shakes the confidence of the people in their ability to get from the judiciary that protection without which democratic freemen cannot live, and has a purpose for so doing, must have lost the scruples that a man who really loves liberty should entertain.
I challenge the Taoiseach to justify this thing; he knows he cannot. In a panic, to avoid a silly political exposure of his silly illogical past, to avoid being shown up in the courts, saying on the one hand that Sinn Féin collapsed in 1924 and on the other that he was president of Sinn Féin in 1926, he is prepared to jeopardise the very judiciary itself, to shake the foundation of the constitutional position of every citizen of this State. To such extremities will vanity carry a man. If he cannot save himself, then I say to those around him: "Save him from himself and prevent him from persisting in this most wicked undertaking."
I think the position is even more despicable than Deputy Dillon suggests. Deputy Dillon has pointed out the Chief Justice as acting in this matter against people because they are poor and insignificant, but I think that the Chief Justice also is being made a tool of the ruling Party and, in a manner humiliating to his office and humiliating to his person, he is showing that he is incapable of resisting being made a tool of the Party that put him into the office in which he is. He is doing it in full and secure knowledge of the blow that he is striking at our courts as independent institutions which ought to act independently and in clear knowledge of each particular case. The Taoiseach stated on the 20th March, at column 2532:—
"When I heard quite recently that the bill of the defendants had already gone up to something like £5,000 I asked myself: `how long more will this continue and what will be left? Are we going to have the old thing that where money is disputed the whole money goes in legal costs'."
The claim that we are asked to brush aside as not proper to be decided by the courts is one in which the defendants in the action have already thought it worth their while to spend £5,000. They have spent that in preparations to meet the case and the claim that has been put up against it. Surely, that very figure and the enormous amount of work that the defence felt themselves called upon to do in order to resist the claim is evidence enough that there was some kind of case to be met in the courts. Any Chief Justice, even if he had little respect for his office when it was a question of being ordered by his Party to submit to their wishes in the matter, would realise that here was a case which, with the enormity of the work that had to be done to meet it, showed that it was a case that should be left and should be decided by the courts. In this matter the Chief Justice is simply submitting himself as a tool to the ruling Party that put him into power, and in that way he has shown, as has been said before, that he is not fit to occupy the position into which he has been put— that he is degrading his own personality and that he is degrading the office which, in the interests of the country as a whole, he should be very scrupulous to adorn, and adorn in an independent spirit.
Is this an attack on the Chief Justice?
Certainly, and a deserved attack on the Chief Justice. The Taoiseach has given us ample evidence——
The Taoiseach is here to answer for himself.
——that the Chief Justice deserves to be attacked.
Who brought the Chief Justice into the House but yourself?
I am prepared to deal with the matter on a proper basis, but I thought there was a rule here that individuals in the courts would be protected.
They are degrading themselves and at the dictation of the Party.
Loud shouting will not do.
I have to shout in order to shout down the Taoiseach. He can get up and speak when he has listened to me.
Was there not a rule that members of the judiciary could be attacked only in this House in a definite way by resolution?
We are here asked to do a thing that is a degradation of the Chief Justice. We are asked to do that on the grounds that he has accepted the position that is prepared for him in this Bill. I think that in these special circumstances we are perfectly entitled to attack the Chief Justice on the line that the Chief Justice has shown that he is prepared to take in this matter. The line that he is prepared to take in this matter is that he is prepared to make himself a tool of the ruling Party in order to get the ruling Party out of whatever difficulty they feel they would find themselves in if this matter was brought to its conclusion in the courts.
What a travesty!
The Taoiseach told us on the 16th April, 1947, column 746:—
"In this case the Chief Justice was asked by the Attorney-General whether he would act in case the Dáil passed this Bill and in case such a body for the disposal of the funds was set up. I understand he accepted that and that is why, when I was asked about this before, I said the Chief Justice had been consulted."
Here we have a case that at this hour of the day the Taoiseach and every-body else might very well look at with a detached mind—that is as to how these funds were to be disposed of. They might very well look at that in a detached way. A case might be made by any body of citizens before the courts for a claim to these moneys. They could wait for a court decision on that matter. I am perfectly clear in my mind as to what the decision of the courts on the claim of any body in the country to these funds would most likely be. After leaving the case lie before the courts for years, and after leaving the trustees expend, as the Taoiseach has indicated, up to £5,000 for the defence, then suddenly and for no purpose that we know of the Government step into the matter.
The Deputy is anticipating Section 10.
Well, we are dealing with a section where we have the Chief Justice.
Not the disposal of the funds.
I am not talking about that, but I am talking about the magnitude of the case as indicated by the amount of work done and the amount of expense involved and the length of time that the proceedings were left lying before the courts before the Government intervened. They intervened then, and in spite of the passage of time, the amount of work done, the amount of expense involved, and in spite of the evidence that there is some kind of case—there is some kind of case anyway in the eyes of the defendants and apparently in the eyes of the plaintiffs because otherwise they would not come into the matter—the Government decided to take the matter from before the courts and the Chief Justice agrees. The courts are being humiliated and despised by the action of the Legislature in this particular kind of way. The Chief Justice agrees and in that dirty mess he offers to sit himself as the chairman of a group to decide what is going to be done with these funds. I think that the action of the Government in the matter of putting the Chief Justice into this particular position is disgusting and despicable. I think that the action of the Chief Justice himself in not resisting it is disgusting and despicable, but the action on the part of the Government itself is even more so.
The question is——
Is the Taoiseach not going to speak?
Certainly.
And we will talk after him and he will not enjoy it.
Will I not? I always enjoy the "poluphloisboios thalassa" from the opposite benches. The attack here on the Chief Justice is something that is new to this House. It is an attack that has not the slightest justification for it. What is proposed in this section is that if this Bill is passed—it will be null and void if it is not passed constitutionally: this board would not be set up if the Bill did not pass and was not held to be constitutional if it was questioned— and the board was set up, in that event the Chief Justice should either act as chairman of the board which was legitimately set up by the will of the Oireachtas, or, more probably, that he should nominate a chairman to act as chairman of the board. That is not a new thing in Bills. That type of proposal is found in quite a lot of Bills where it is a question of getting somebody to act as chairman or of nominating a chairman, so that there will be no suspicion of want of integrity. One would imagine that, in agreeing to act in these circumstances, the Chief Justice was guilty of some heinous crime— that he was a party to the whole of these transactions as the Opposition claim to put it. He was a party to nothing further than to consent to become chairman if and when this body was set up, and it could not be set up unless it was set up legally and properly. One would imagine that he was going to derive some advantage from its being set up which was going to influence his judgment in any other particular position in which he might be called upon to act. What advantage is he going to get? The advantage of sitting in a very difficult position to decide, if applicants come for help under the Bill, whether they were properly entitled to it. It is not the sort of thing that one goes running after. It is an onerous duty. When the Chief Justice or any other judge is named in a Bill and asked to perform functions of that sort, he is approached in the spirit of asking a person to perform a public duty, a duty which he does not have to perform. We had to appoint a tribunal not very long ago. When the judges were asked to sit on that tribunal over and above their ordinary work, one asked them simply to perform a public duty. They are asked to perform that public duty because they are considered as being persons above reproach in regard to their conduct of it. It is suggested that this might come before the Supreme Court. Nobody here, at any stage of this Bill, has suggested any ground on which it could be held to be unconstitutional.
God bless us.
No one indicated any ground whatever that even a layman would consider as a basis for regarding it as unconstitutional. If the President so regards it, it can, of course, be referred to the Supreme Court for consideration as to whether it is or is not constitutional. Once the matter was raised, I have asked for and tried to get any opinion I could upon it and the advice given to me is that there is no ground whatever for the suggestion that it is unconstitutional. But, suppose it were contested and that it was referred by the President to the Supreme Court, do you think that the Chief Justice, because he gave a conditional promise that he would act as chairman if this board was set up, on the understanding, of course, that the Bill was constitutional, was legal, would be in any way prevented from sitting on that bench and giving a fair judgment as to whether it was constitutional or not?
As to whether what he himself had done was constitutional or not?
He has done nothing.
He has consented to that.
Order.
He has done nothing, no matter how much the Deputy may shout.
He has consented to that.
He has not consented to anything except to the contingent possibility that if this board is set up and set up legally, in that event, he will act as chairman. That is not in any way becoming a party to the consideration as to whether it is legal, constitutional, or anything else. I have just as good an appreciation as the Deputy has of what a judge in a case like that ought to be concerned with and I see no reason why the Chief Justice, if this matter was brought before him as a result of action by the President for consideration, should have the slightest hesitation in sitting upon that court beside his colleagues and deciding upon it.
It is only those who wish to attribute wrong motives to people, as the Deputies yonder have done, who would have such thoughts in their minds. This clause in the Bill was put in because it was considered that it was in the public interest that if this board was set up there should be as chairman of it a person who would be above reproach as far as the disposition of the funds that would be at the disposal of the board is concerned. That, and that only, was the consideration that prompted the chairman being mentioned in the Bill as the Chief Justice or a person whom the Chief Justice might appoint. All this nonsense, this attempt to disparage the Chief Justice, either as far as his judgment was concerned or his position was concerned, is the despicable thing that has happened in this debate.
The Leader of the Opposition, when he began, did so in a different way. One has only to read, as we will when we come to deal with this in a more appropriate place, what the Deputy said when the thing was begun. But he had not at that time met his legal colleagues. He had not at that time considered with them what was going to be the plan of attack upon this Bill. He approached it then, on its First Reading, in the way that one would expect this matter would be approached in this House but it was thought a suitable line of attack to attack the Chief Justice and to attack us, the Executive, in this particular case and to suggest that because the Chief Justice was asked, as he had been asked in numbers of Bills, to act in a capacity as an impartial chairman, that there was some connivance between him and us at sapping the independence of the judiciary. The whole thing is make-believe and the country understands it as such. We have listened to the Deputy talking about this poor woman. I did not speak about her wealth or otherwise. I spoke of the body. When I was speaking about this I said that the body that claimed these funds was an insignificant body compared with the organisation to which the funds were originally subscribed.
Quote your words.
I used the words "originally subscribed" and I did that, not to say that because she was poor she should not get justice, but to point out to the House that the organisation claiming these funds was not by any means in substance the same sort of organisation as the organisation to which the funds had been originally subscribed. It was for that reason that the body was mentioned as an insignificant body. The Deputy, of course, is only anxious always to get some basis on which he can ride off, or pretend to be riding off, on high principles. He wanted then to pretend that the reason why I had introduced that at the start was that they were of this sort that they were not entitled to get justice. The whole thing is absurd.
The Taoiseach shall not have a fool's pardon. He is not a fool.
I am not, I hope.
Not a bit of it. Shrewd, calculating and resolute, he knows the nature of what he is doing but in this he sins against the light. This device of inviting the Chief Justice, under Section 4, had no other purpose, he says, than to secure that there should be impartiality as between the parties. In his own Second Reading speech he made it perfectly clear that it was not an occasion for detached impartiality, that it was an occasion when the heirs to a great political organisation could be allowed to dispose of the funds that belonged to that organisation. I have no reason to complain of that. Why should not they? But the issue joined in action here is, who are the heirs? It is a new principle in law if one of the claimants shall use his machined majority in an acquiescent Party to trample on the rights of the other by legislation steamrolled through this House ad hoc. Does anyone imagine that that is what was in his mind? He talks of the people down the country understanding whatever the Opposition say. He very rarely reveals his inner thoughts, but there is the key in the purpose of this section. He wants to deny to Mrs. Buckley and the other trustees the protection of the courts but he does not want the people down the country to understand what he is doing. He wants to be able to say to the people down the country: “I do not prevent her from appearing before the judge. Here is the Bill. The Chief Justice himself, I say, shall be the judge. Who says I denied her access to the courts? I gave her access to the Chief Justice to ensure that justice and equity would be done.” He has persuaded a big body of our people, and a large number of Deputies in this House will say to themselves: “Well after all, if all the Taoiseach did was to remove the matter from Judge Davitt's hands and put it into the Chief Justice's hands, what harm did that do Mrs. Buckley?” The Taoiseach did not come down in yesterday's shower. There are very few people who can thread their ways through his labyrinthine mind. There are very few people in this country who understand better than he how to fool our people. I do not claim to be able to counterfeit his subtleness, resourcefulness and unscrupulousness. But this much at least will be said, so that those who read it, if they want to read it, will not surrender these precious rights. I am happy to think that we have the assurance of the leader of the Opposition that every legal resource at our disposal will be employed to prevent the President signing this damnable Bill.
Now, now!
Wait a moment. When I come to that there is only one resource, the Supreme Court of this country. See how the subtle, poisonous tongue of the Taoiseach plays over that. "The Opposition are concerned," he says, "to slander the Chief Justice. Here is a new departure—a judge's person brought into discussion in the Dáil." He has never heard the like. Has ever anyone in any democratic Legislature in the world seen the like of that Bill? Is it not true that in any other circumstances had the Chief Justice's person become the subject of debate in this House the Ceann Comhairle would have remonstrated? He would have forbidden the Deputy to proceed and every one of us would have known that he was right. Why is he silent now? Why have we the right to argue the merits of the Chief Justice's person? Why are we within the Rules of Order in canvassing his name up and down the floor? Because the Taoiseach sought to use him, sought to shelter under it, in that disreputable sense.
The Deputy will appreciate that the Chair did not say there was a right to discuss the Chief Justice but Deputies might relevantly argue the position he might be placed in in certain circumstances.
And the propriety of having given prior approval to a Bill that came before the community.
He did not give prior approval to the Bill. That is known to be untrue.
What are the facts? Let us canvass them carefully and examine them specifically. We do so on the Taoiseach's own authority and I do so at some length and in detail. The Taoiseach says, with poison dripping from his tongue, it is suggested by the Opposition that the Chief Justice will be partial if this Bill should come before him—that he will act against his conscience. Who ever suggested that? No one in this House suggests that it is the intention of the Chief Justice in any conceivable circumstances to act against his conscience. If this Bill is brought before his court—and there is no other court before which it can be brought—his four brother judges on the bench beside him are in this dilemma that, if they condemn the Bill as a grave infringement of the Constitution, they say by implication before the country that the Chief Justice himself was a party to a trespass on the Constitution and in a case where he himself knew that one of the parties was insignificant and poor, and for those reasons are gravely embarrassed in the prosecution of our cause, whether it was well-advised or ill-advised to initiate it. The Taoiseach said: "I never said she was poor." He did. He said: "So insignificant were these plaintiffs that they could not even raise the money to pay their bills." That was the sneer. He said they were unimportant people, so insignificant that they could not raise the money to pay their bills. He was right. They are poor and insignificant and, to judge by their correspondence, exceedingly silly. Belonging to the Party to which they do, I would not expect them to be anything else. But, because they are poor and silly and insignificant, that is no reason to deny their rights under the law.
The Taoiseach gets into a passion when I say that the Chief Justice is a party to this Bill. As reported in column 744, Volume 105, `No. 5' of the Official Reports, in the initial stages of the discussion on this section, the Taoiseach said:—
"The Deputy is an adept at the false suggestion. He suggests, first of all, that the discussion here could have been anticipated. The Attorney, I take it who went to the Chief Justice, could, in the Deputy's view, have anticipated what would be stated here in the course of the debate. Everybody knows it would be quite impossible to anticipate it. When I came to this House with the Bill, I came on the grounds..."
The Taoiseach then proceeds to state the grounds. Then, as reported in column 746, the Taoiseach said:—
"In this case the Chief Justice was asked by the Attorney-General whether he would act in case the Dáil passed this Bill and in case such a body for the disposal of the funds was set up. I understood he accepted that and that is why, when I was asked about this before, I said the Chief Justice had been consulted; but the idea, when consulting the Chief Justice, that one could anticipate the phrases used here in connection with any argument that might arise, is clearly absurd."
Maybe I am only a simple creature. I know it takes a subtle mind to understand the Taoiseach. But does the paragraph I read out contain the implication that the Chief Justice was consulted? Does it or does it not? Let us read it again:—
"In this case the Chief Justice was asked by the Attorney-General whether he would act in case the Dáil passed this Bill and in case such a body for the disposal of the funds was set up. I understood he accepted that and that is why, when I was asked about this before, I said the Chief Justice had been consulted;..."
Is there some strange subtlety of meaning concealed in these words which cannot be deciphered except by reference to a dictionary which has caused me to use a paraphrase calculated to justify the rousing of the wrath and indignation of the Taoiseach? He, as Deputies will remember, was walloping the table not ten minutes ago because somebody said that the Chief Justice had been consulted. I said it—on the authority of the Taoiseach. I said he was consulted.
I want to know, when counsel who are instructed appear before the Chief Justice to argue that the Bill about which he was consulted is unconstitutional and should be so declared by him, are we to believe that his four brethren on the bench can be asked reasonably to declare that the Bill is unconstitutional and that, in so far as the Chief Justice was consulted, he gravely erred in giving his assent? Because, if we are, remember that in a matter of this kind there is only one judgment of the court. In their prior discussion, the justices may have various opinions, but, finally, they will take a decision as a court and that is the decision that will be communicated to the public, to the Oireachtas, and to the President. Are we to take it that the people of this country will be edified and their confidence in the Chief Justice confirmed and strengthened by the picture of that same Chief Justice delivering a judgment of his own court to the effect that, "this Bill is so grave a trespass on the fundamental rights of the citizens of this country, as guaranteed by the Constitution, that we forbid the President to sign" or that, "I was consulted before it was brought before us and I undertook to function under it and I was a party to the procedure" which it will become the duty of this House to discuss when Section 10 is before us?
Is there a single Deputy who considers that the interests of law, of propriety, of confidence in the judiciary, or any useful purpose can be served by the retention of this disgusting section? Is there any other country in the world save this where the Chief Justice could survive the commission of such a blunder? Possibly he has allowed himself to be walked into this. Possibly he did not realise the implications of the thing he was doing. But is there anyone on any side of this House who knows anything about jurisprudence or the principles underlying the law who will get up and make a case on its merits for the head of a judiciary to accept in advance the chairmanship of a tribunal to which a cause is about to be referred by ad hoc legislation which has been taken out of the seisin of the court over which he presides and which should never have got into their seisin if those courts did not believe it to be a proper matter for the courts to determine?
Four long years this matter has rested upon the records of the courts over which the Chief Justice presides. Could there be more conclusive testimony that the judiciary of this country felt that it was a proper matter for judicial examination and determination, because that is what matters, not the prudence of the litigants, not the ability of the counsel that represented them or the diligence of the attornies who prepared their cause, but the simple, unqualified question, though they be foolish, though they be improvident, though they be poor and insignificant, had they a right, under the law, to the protection of the judges? The whole judiciary over which the Chief Justice presides, have, by their action, made it manifest that they think they have. I dare the Taoiseach to deny——
That will be on Section 10.
I dare the Taoiseach to deny that the man who presides over that judiciary has entered into this strange conspiracy to set the judiciary aside.
That is a very severe statement.
Shame on the man who did it.
I do not think the Deputy is justified in stating that the Chief Justice entered into a conspiracy.
What am I to say? Let me read the passage again.
The Deputy read it twice and he would be repeating himself.
Faith, I am not repeating myself; I am repeating the Taoiseach.
That may be very slick, but the Deputy twice read that document. Is that not repetition?
I am asked by the Chair now, how can I speak of conspiracy. Did not these men consult? Did they or did they not? If they consulted and agreed and the result of their deliberations is wholly evil, is not that conspiracy? Shame on the Chief Justice who did it, and double shame——
He has no right to say that.
To say what?
To say: "Shame on the Chief Justice."
Why not?
It is unprecedented.
Yes, and this Bill is unprecedented. I say shame on the Taoiseach.
And I do not think that expression should be used here.
Shame on the Taoiseach who creates the situation in which the head of the judiciary is called on to justify his conduct before this House. Has it ever happened?
No, it is done by a prescribed process, and the Deputy knows that.
Has it ever happened in the past five and twenty years of this country's history, stormy and rough as some of those times may have been——
Whatever has happened, you are dragging the Chief Justice across the floor of the House.
Has it ever happened in the past 25 years of this country's history that any Leader of this House, any Prime Minister of this country, has drawn the name of the head of the judiciary down? Search the records and there was many a time when hardpressed Leaders of this House might gladly have availed of the opportunity to shelter behind the dignity of a king —for in this matter the Chief Justice should be a king, above reproach. But in all our trials, never once before has the attempt been made to set aside the judiciary and, at the same time, for the benefit of the people down the country, employ the Chief Justice as the chairman of an ah hoc tribunal for the purpose of persuading the people down the country that the judicial character of the proceedings was not going to be seriously disturbed. If this thing is done, we will all live to regret it, except, perhaps, the Taoiseach, because I am not persuaded that he does not know what he is doing. I am beginning to think he does.
The Taoiseach tries to excuse the action of the Chief Justice in this matter by suggesting that it has been put to him in this particular way: "Are you prepared to obey the will of the Oireachtas?" If the will of the Oireachtas expressed in this Bill puts him into Section 4 as the person to act as chairman of a committee to disburse funds taken away from the jurisdiction of the trustees and taken away from a review by the courts, a point arises as to the will of the Oireachtas. I am sorry Deputy Kennedy is leaving the House, because I was glad to hear somebody besides the Taoiseach raising his voice in this matter. "`Are you prepared to accept the will of the Oireachtas?" That is how the Chief Justice accepted this position.
What is the will of the Oireachtas? Surely the will of the Oireachtas is something that is expressed by vote after it is discussed in the House? But what discussion are we having here? In the vote on the Second Stage every Party in the House, except the Government's Party, voted against these proposals. The only voice we heard from the Government Party was the voice of the Taoiseach. It has been suggested he is interested in a particular way in getting this action stopped. Let us get away from that. The Chief Justice was asked if he was prepared to accept the will of the Oireachtas. Let us hear the mind of the Oireachtas first, and then it can express its will by a vote. Will any member of the Government Party put to us the reason why he thinks the Chief Justice should be put into this position?
We do not want to repeat things or elaborate points, but here is a case which, by a particular plaintiff, was taken before the courts and was accepted by the courts as a case properly to be tried. The defendant had to go to such extremes of preparation to meet the case that £5,000 was spent to date. Will any member of the Government Party argue that, in a country where we expect the courts to be independent of the Executive, a case of that kind should be taken out of the courts and an Act passed here, and that it should be passed here against the wishes of every Party in the House except the Government Party? Do not have it said, or do not put us in the position in which it can be said, that the will of the Oireachtas was expressed in such a way that after arguments were put up here on a particular question, the members of the Government Party met behind closed doors and that then the Taoiseach came here and rammed the decision of that Party meeting down the throats of members of other sections of the Oireachtas by the silent weight of the Government Party marching into the Lobby.
I ask the members of the Government Party to discuss this matter with us. We are now on the net point of the Chief Justice. The Taoiseach has indicated the situation in which we are all placed by putting the Chief Justice into the position in which he agrees beforehand to sit on this committee and to act as chairman of the committee. We have as a constitutional safeguard the provision that we can appeal to the President in certain circumstances and by a certain routine, if we consider that an Act passed through the Oireachtas is unconstitutional or offends against the Constitution. Having gone through that routine, the President can refer the matter to the Supreme Court after having heard the representations put up to him and having consulted with the Council of State. However, by bringing the Chief Justice into a measure of this kind in this way, even that safeguard is almost taken away from us because the Chief Justice is committed beforehand to the general provisions of this Bill. He is committed to them in so far as he is going to accept the chairmanship of the committee which is to take charge of the funds that are the subject of the action before the courts. If we are talking of the will of the Oireachtas, then I appeal to members of the Government Party to let us hear something of their will in the matter because it is nothing less than sandbagging the Oireachtas and sandbagging even the Presidential office in the matter, if proposals of this character are to be pushed through this House by the Taoiseach bringing in a Bill here, giving his own arguments and interpretation of it and using the silent weight of the votes of his Party in the House and putting it through against the desire of every other member, whether belonging to a Party or an Independent.
Lest it might be thought that this Bill affects only Deputies Dillon and Mulcahy, I would like to say, while not a lawyer but one who has always had great respect for the law and who generally takes a great interest in cases of major importance, that I am very interested in this Bill. On the Second Reading of the measure I think I put a point which the Taoiseach seemed to have over-looked, namely, that seeing the amount of money that would have to be paid to this tribunal for the administration of these funds, it was scarcely worth while, in fact that it was a waste of time, to introduce a Bill of this nature. I understood at the conclusion of that debate that the Taoiseach was more or less prepared to withdraw the Bill or at least to endeavour to secure unanimity as to the form the Bill should take. Again as a layman, as a man of common sense, and as one who, though not a lawyer, knows that the law when boiled down is nothing more or less than common sense, I want to put a straight question as man to man to the Taoiseach. Do not let him accuse me of playing a political game because I have been 20 years here, elected on my own record, without playing politics. I want to make that clear. Why was there any necessity to consult the Chief Justice prior to the introduction of this Bill? I want to know is it customary for any Government when introducing a Bill, let it be a Sinn Féin Funds Bill, an Industrial Bill or a Finance Bill, to consult the Chief Justice before that Bill is introduced and ask the Chief Justice what his attitude will be in the event of the Dáil passing the Bill. That is a blunt question, subject to no variations, and I want a straight answer to it.
Again, I want to put it straight to the Taoiseach: what was the subject-matter of the discourse that took place during the interview between the Attorney-General and the Chief Justice? So far as I understand, the Attorney-General when interviewing the Chief Justice occupies the same position as a solicitor does in relation to a K.C. when briefing him for a High Court action. What did the Attorney-General convey to the Chief Justice? What did he say to him? Did he express the views of the Taoiseach himself? In fact, did he deceive the Chief Justice by what he said in getting the Chief Justice, possibly under false pretences, to give his consent to act as chairman of a board to deal with a matter that was the subject of a pending law case? Unheard of! I am neither a solicitor nor a barrister. I do not occupy the position of either Deputy Dillon or Deputy Mulcahy. Again I want to emphasise that I am only a layman, possessed of a certain amount of common sense, but I want to state here and now that an instance was never known in the history of the Legislature of this or any other country, where the Chief Justice was asked his opinion as to the merits or demerits of a particular Bill about to be introduced into this assembly or any other assembly.
I find that in the course of the debate the Taoiseach has given as one of his chief reasons for introducing the Bill the fact that the people who were in charge of these funds were an insignificant body. But the principle is there. There is a principle at stake. Let me show by an example what I mean, and this should especially appeal to members of the Labour Party. Take a union the membership of which is 500 strong in a particular year. Then there is a falling-out between the members and a rival union starts. They dissociate themselves from the parent union. That goes on for years until, at length, the parent union has suffered so much from the differences that have existed for a number of years that they find their membership reduced possibly from the initial 500 to about ten faithful members who remain true to the union. When the union was strong it built up a fund amounting to, say, £1,000 or £2,000. This is important. Does the Taoiseach hold, if the leader of the rival union happens to become subsequently the head of the Government, that he can come in and by a majority of this House pass a Bill to prevent the men who remained faithful to the parent union doing whatever they liked with the funds, even if they went to the length of throwing them into a river or down a sewer? That is straight talk, and when Deputy Kennedy speaks about the Chief Justice in this connection, I ask him has he read the Bill. It does not strike me from the stupid way he sits in his seat that he ever read the Bill. You cannot tell us anything about respect for the law. I respected the law when he and the Taoiseach were destroying this country and violating the law.
The Deputy might leave that out.
We will not, when these taunts are thrown across the floor. I will meet them here or outside, rough or ready, and rough and tumble, too— anyway they like it. If the Chief Justice makes little of himself, we have the right to criticise him here, and I say that the Chief Justice has been made a tool of, consciously or unconsciously.
The Deputy should not be allowed to get away with that remark.
If you object to me, you can come outside and do so. I will oblige you now. Come outside and object to me now—come on.
I am ready to go outside.
I thought we were going to hear Deputy Kennedy here.
Put the section and let us have proper order here.
I will put the section.
Why should you put the section? I have challenged any member behind the Taoiseach to discuss this matter.
We are having nothing but challenges, apparently.
And my challenge to Deputy Kennedy was to talk in here.
I do not think that matters of this description will help the country or the House in any way and I deplore the action of two members of this House. This matter appears to be discussed with great heat. I and the Party I represent have an open mind in this matter, and the only point which the Opposition, Deputy Dillon and Deputy Mulcahy, appear to drive home is that there was some collusion —if I may use the word—so far as the Attorney-General in his discussions with the Chief Justice on the instructions of the Executive is concerned, and it more or less appears from the statement of the Taoiseach in introducing the Bill, as quoted by Deputy Dillon, that there had been such collusion. I ask the Taoiseach to make very clear what exactly did go on, because it is my view, and the view of the people I speak for, that, without a shadow of doubt, it belittles the Chief Justice to be let into—if that be the phrase—becoming chairman of this board when there was a danger of the matter coming before him in the courts for decision. I ask him to let us know as plainly as he can what were the actual instructions given by the Government to the Attorney-General when he was sent to the Chief Justice with a request or a command to him to become chairman of this board.
I was asked here when this section came up for discussion, I think, on Second Reading if the Chief Justice was consulted before his name or his office was put in the Bill. What does that mean? In other words, was he put into this Bill and not told anything about it? I said—I forget the actual words but this was the effect of it—that the Chief Justice had been informed.
About the Bill?
Of the fact that it was proposed to put in a section that the Chief Justice would be chairman of this board, it being understood by everybody that the board could not be set up and could not function, unless the Bill went through and was legal in every way. What more was necessary?
What does the Taoiseach mean by saying he was informed?
Told.
That he was going to be put into the Bill?
That, in this Bill as drafted, the Chief Justice was put in. This particular clause was submitted. This is nothing new in a Bill.
Is it not?
It is not. The Chief Justice has on many occasions been referred to in a Bill as the proper person to nominate a board.
Shutting out the courts in respect of a particular case?
That is not the question.
It is.
Surely it is.
The Taoiseach must be allowed to speak without interruption.
If Deputies on the opposite benches want to think that and pretend it is so, apart from every evidence to the contrary, I cannot help them. It is like the attitude of the Leader of the Opposition—that it would be extraordinary if a measure were passed in this House by the Government when everybody else objected to it.
And everybody behind the Government Front Bench was silent about it.
That is their business.
Order cannot be maintained if these interruptions are persisted in.
It is their business not to be dictated to by the Leader of the Opposition.
Good order cannot be maintained if continuous interruptions are to be permitted. I ask Deputies to conduct themselves and to help the Chair to conduct the proceedings in good order.
You are quite right; the Taoiseach requires protection.
We cannot have any business conducted if we are to have everybody shouting across the floor. That is the only sort of protection I need. In this matter, I have no qualm of any sort. Deputy Dillon has played about with the word "consult" and he then went on to the word "approve". It is a small step to "consult" as to whether he would consent to act and then to say he approves of the Bill. It is no concern of the Chief Justice to approve of the Bill—that is a matter for the Oireachtas. The question of the merits or demerits of the Bill was not for the Chief Justice. I take it that when he saw the Bill he realised, as I would if I were in his position, that it involved a certain situation for himself as Chief Justice, if the Bill was legally passed and he consented to do a public duty in acting. Whenever the Chief Justice or any other judge is mentioned in a Bill, he is mentioned because it is thought by the Government who framed the Bill that he would be the best person to act in that capacity and would give public confidence in doing so.
An attempt is made then to suggest either that we had got the Chief Justice to act under false pretences, or that he was a party to the Bill. Neither of these propositions is true. He was not deceived. He was asked by the Attorney-General whether he would consent to become chairman, or to nominate a chairman, and he consented. He has no further responsibility and is not involved in the Bill except to that extent. I repeat that the attempts to attack the Chief Justice were unwarranted and are a poor service, either to the country or to the judiciary. If the Opposition had wanted to deal with this on its merits, they could have objected to the Bill on the ground that it would not be appropriate for the Chief Justice to act in that capacity in this case, and the matter could have been argued on that level, but they chose to take it away from that level and deal with it on a personal level. I say again that I think it was a disgrace.
I do not mind what suggestions Deputies may make about my action. I can defend myself but, from the point of view of the courts and of ordinary, common decency, the attacks to which I have referred were unworthy of those who made them and unworthy of this House. The general question of staying the action of the courts will come up for discussion later and I do not propose to go into it now. The only question at issue is the propriety, or otherwise, of having the Chief Justice act as chairman. On the question of propriety, I have no hesitation in coming to a conclusion. In many other Bills which could also have become subjects of appeal to the Supreme Court, we indicated as chairman of boards the Chief Justice or other member of the Supreme Court. If it is suggested that, because a Bill may sometimes come before the Supreme Court for determination as to whether it is constitutional or not, we are not to indicate a member of the Supreme Court in such a Bill, then I think the contention is absurd. In most Bills in which judges are introduced in this way it is as people who are to do a public duty. They will not be asked to perform that public duty unless the body on which they are to function, or over which they are to preside, is legally set up. They have no interest in the matter save the performance of a public duty. They derive no benefit from it. An onerous duty is usually placed upon them and I cannot see how it can be suggested that, because a person is to be called upon to undertake an onerous duty, he is incapable of passing judgment on a different question—whether a Bill is legal or not. Nobody has suggested that the Chief Justice could have any interest in this Bill. Deputies stopped short, at least, at that. I do not think that that suggestion could be made. I have, therefore, no hesitation in holding that it is not contrary in any way to the public interest, to the independence of the judiciary or to any proper principle of democracy that we should retain this clause as it is.
The Taoiseach finished his speech by saying that it was not contrary to the interests of justice, to democracy or to the functioning of the courts to retain this clause. It is because it is contrary to all three that it is opposed. I think that the Chief Justice should not be abused. This House should try to protect him and should try to protect the office of Chief Justice, forgetting all about the particular occupant at the moment. If the position were as simple as the Taoiseach tries to make it appear, we should be dealing with a different matter altogether. But the Taoiseach is not the simple or innocent man he sometimes pretends to be. We know from experience that the proposals he puts before the House from time to time are not as simple or as innocent as he represents them to be. If anybody has been unfair either to the Chief Justice or to the position of Chief Justice, it is the Taoiseach. The judiciary is supposed to be free and completely independent of the Government of the day. Because of that, the ordinary citizen, no matter what his political views be, has the utmost confidence in the impartiality of the occupants of judicial offices, from the Chief Justice down. But if it is sought to make use of them in this way, how long will that confidence remain? The Taoiseach spoke about the Chief Justice and other members of the judiciary having been mentioned in other Bills which came before the House. He spoke in a general way. No Bill ever came before this House— and we had some extraordinary Bills during the past 15 years—of the same type as this Bill.
Every Bill is different from the previous one.
Exactly, but never has such an outrageous attempt to set aside the courts and the judiciary been made as is being made in this Bill. We have had previous experience of that. I do not think that the Taoiseach should be proud in refreshing our memories about it. However, let me deal with the measure before us. As an ordinary layman, like my friend, Deputy Coburn, I want to know what the position of the Chief Justice will be if, as appears likely, this Bill is challenged in the Supreme Court on the ground that it is ultra vires the Constitution? Will that not be putting the Chief Justice and the Supreme Court, as a whole, in an absolutely impossible position?
You do not show why or how?
This would be a grand country if the Taoiseach were half as innocent as he pretends to be.
Tell us exactly——
I am going to make my own speech and state my own views on this section. I am surprised at Deputy Donnellan standing up and telling us on this section that he and his Party have an open mind on the matter. I should not describe that as an open mind. I should describe it as a blank or completely empty mind. It shows that members of this House and Leaders of a Party in this House cannot grasp the cardinal importance of a measure such as this and the importance of the principle at stake. This is not a matter merely of the destination of Sinn Féin funds. There is a far more vital principle at stake. I am perfectly satisfied that the Taoiseach is as conscious as any other member of the House of the injury which is being done to the courts by bringing in this Bill. I am not one of those who ever under-estimated the Taoiseach. Therefore, I say that this is being done absolutely deliberately and of set purpose. If the law is to be completely at the mercy of whatever Government may be in power for the time being, then we shall cease to have any law. Remember, the Party opposite will not be always in power. Remember that the machinery being used here to-day in relation to litigation in connection with the Sinn Féin funds can be used by any other Government for any other purpose. I am not concerned with the merits of the case before the courts. That is not a matter for us but for the courts and that is what the courts are there for. This House will be completely stultifying itself, it will be out-raging the duties which we were sent here to perform, if this Bill becomes the law of the land. It will be outraging justice and undermining completely the confidence which the people have, I am glad to say, in all our courts. That is really what is vital, that is what is fundamental, despite the Taoiseach's attempt to gloss it over as being something of little importance. I am not concerned very much with what transpired between whoever went to see the Chief Justice and the Chief Justice. I would be terribly concerned to find that the Chief Justice had been constrained to accept the position set out in the Bill.
The Taoiseach who is usually very careful and very precise, as we know, in the use of his language—more so than anybody else in this House—said that the Chief Justice was "informed" of this matter, was "informed" that his name was going to be put in the Bill. I asked him what he meant by that and he said: "I mean just that, that he was informed". Later on, before he sat down, he changed that a little—he was "asked and consented". Which was the correct one?
Is there any inconsistency?
There is no consistency. I know that I am entirely and completely unable to deal with the Taoiseach when it comes to a matter of words or the various meanings which can be put upon them. As a matter of fact, not only am I unable to do so but there is nobody in this House capable of doing so.
Or in the country.
I do not know if one should even stop at the country. Even to me, there is a very distinct difference between saying that a person was "asked and consented" to a thing and was "informed" that such a thing was going to be done.
He said he saw the Bill.
The Taoiseach, in demurring to the quotation from his own speech in which he said that the Attorney-General consulted the Chief Justice, said:—
"It is no business of the Chief Justice to approve of this Bill or any other Bill."
I bet that sounded very true in the ears of many Deputies on the other side—but it is a most insulting misrepresentation. It is perfectly true that the Chief Justice, in all human probability, makes it a rule, owing to the exalted office he holds, to avoid perusing the Bills that come before this House, because he is the custodian of the Constitution which operates on every Bill passed by this House. Therefore, everyone will readily understand that it is no business of the Chief Justice in advance to approve a Bill. But suppose the Chief Justice is approached by the Attorney-General and asked: "Chief Justice, the Executive is bringing before Dáil Éireann a Bill and in it there is a provision that you, the Chief Justice, are to act as the chairman of a tribunal," is there any Deputy with the temerity to suggest that, without making any inquiry whatever as to the nature of the tribunal, how it was to be set up or for what it was to be set up, the Chief Justice replied: "All right. I will act as chairman of anything." I do not believe the Chief Justice did that. I believe that, when the Attorney-General went to him and said: "The Executive are about to introduce a Bill and in Section 4 it is proposed that you should preside over a tribunal to be set up under it," the Chief Justice said: "Well, show me the draft of the Bill."
He was actually shown it.
I wonder if that is right.
The Taoiseach says so—that he saw the Bill.
It would be well if only one Deputy spoke.
Not at all. I am very much obliged to the Leader of the Opposition. His interjection has afforded me information I had not got. I was surmising what the Leader of the Opposition was in a position to state as having happened.
As having been stated by the Taoiseach to have happened.
In those circumstances, surely there is an obligation on the Chief Justice to approve the subject matter of the Bill, before he says: "I will act as chairman of the tribunal".
A new form of construction.
Oh no, but the Taoiseach has quite a new constitutional theory for us here to-day—that this House will command the Chief Justice——
I did not say so.
——to undertake any public duty outside those he undertook by his oath as Chief Justice to discharge.
I did not say that, of course.
What does the Taoiseach say? The Taoiseach said: "It is common form to ask——
I did not say that.
The Taoiseach said:—
"It is common form in Bills passed by this House to impose a duty upon the Chief Justice or members of the judiciary to undertake public duties outside the actual duties attached to their judicial office."
There is no use in trying to correct the Deputy.
Let him speak without interruption.
But this House has no power. The Constitution guarantees that a judge appointed under the Constitution shall not have put upon him any other duty or obligation than those he is required to discharge by his oath of office and refusal to undertake any other function shall not be a ground for removing him from his judicial office. That goes to the very root and essence of the independence of the judiciary. No Act of this House once a judge has been appointed, and in a special sense a Chief Justice, can add to his duties, detract from his emoluments, or impose upon him any obligation in addition to those he has under-taken on oath in his judicial office without his express consent. Therefore, before we could effectively impose upon the Chief Justice the obligation to preside over a tribunal set up by this House we must have his prior consent, and in this case, according to the Taoiseach, we have his prior consent.
The Taoiseach says very glibly that in a number of other Bills the Chief Justice is to preside over a tribunal. I would like to get the titles of those Bills. Where are they? I challenge the Taoiseach to say to this House, has any Bill been passed by Oireachtas Éireann since the founding of the State in which the Chief Justice is to preside over a tribunal appointed ad hoc and take seisin of a matter at trial before the courts after the courts had been estopped from hearing that which they themselves had declared to be a fit subject for hearing.
The Chief Justice is not asked in this Bill to do that. Will the Deputy read the Bill?
Every trick out of the bag is being produced to conceal the true nature of this issue from the country and the House. We are told to be calm, to lower our voices, that this is not a matter to get excited about. Deputy Donnellan is shocked that anybody should get moved by the circumstances in which we find ourselves. His mind is open. I am not a bit ashamed to admit——
That you are terrorised.
——before anyone concerned with the proceedings of this House that I am as deeply moved in this matter as any Deputy in the House has been, and that I can sympathise with any man who loves freedom in allowing his emotions to overcome him in the contemplation of this transaction.
This is the most serious section of any Bill that I have heard discussed in my 16 years' membership of Dáil Éireann. This section puts in issue the whole status, dignity and integrity of the office of Chief Justice of Ireland. No graver matter at any time has ever occupied the attention of this House, and we are asked to do this thing on the representation that the Chief Justice has been dragged into this business, and the Fianna Fáil Party has been whipped up to march into the Lobbies for its achievement and to save what? £8,000. In the course of the earlier discussion of this section it has emerged that, of the £28,000 in court, probably £12,000 has already been appropriated towards the expenses of the plaintiffs and defendants, and that, in the event of an appeal being taken to the Supreme Court by the parties, it is quite likely that another £8,000 might go. We are left to conclude that all this is being done for the preservation of £8,000. Is there any Deputy in the House who would have objected if the Taoiseach had come to the House and said: "I feel this money is being dissipated away but, rather than lay my finger on the sacred principle that the Legislature shall not interfere with the independence of the judiciary, I give notice that I am going to ask the House to provide money from the public purse to replace whatever is dissipated in this litigation, and I do that rather than call in question the independence of the judiciary by legislating to terminate judicial proceedings that are going on." Would any of us object to that? Would we not have said: "There is a man who understands the sanctity of law, there is a man who realises that rather than call in question the independence of the Courts and their power, their absolute power to protect the individual against the Executive, however insignificant the individual is or powerful the Executive may be, he comes frankly to the House and says that he is going to ask it ex gratia to provide trustees of the £28,000 to choose a committee to prepare a scheme just as if this had been the £28,000 that the Sinn Féin Party had lying in their account when the march of events caused other organisations to bulk largest in the life of this community.” How simple that would have been, how sane and how prudent!
As my friend, Deputy Coburn, was saying when it was sought to shout him down there is a strange analogy between it and the trade union whose membership was being sapped slowly by a break-away union: it finally awakes to the fact that the break-away union has taken ten members, leaving 1,000 in the parent union. The stage was later reached when the break-away union had 1,000 members and the parent union only ten, and they go to law, the break-away union now being the big one claiming the right to the funds that had been acquired by the parent union over the years. The break-away union provides the personnel of the Government of that day and, having gone into court to protect its rights, the old union, hated by the Executive of the day, wakes up one day to read in the paper that its proceedings in the court have been stopped, that a Bill is before the Dáil to set up a tribunal, that the Government will not see these painfully accumulated funds frittered away in useless litigation and that, in any case, the courts are not the body best suited to give a judgment in this matter, because it is not dry legal principles but the living, breathing, history of a trade union that should really determine the merits of the case. Some indignant soul rises in this House and says: "How can you take from these people their right to go to the courts and get justice under the law?" And out of the Statute Book of Ireland is drawn that Bill. If we did it once, why should we not do it again and, in 1947, the Chief Justice of the day was consulted and not only approved the course proposed but——
He did not approve the course proposed. That is completely false. He was not asked to approve and he did not, impliedly or otherwise, approve of any course.
Did he disapprove?
He did not either approve or disapprove.
This is the very thing I wanted to get the Taoiseach to say. The Chief Justice himself undertook to preside over the tribunal provided for in the Bill.
Over the board which would only be set up when the Bill had been legally passed.
The Chief Justice himself undertook to preside over the tribunal envisaged by the Bill, and I can hear the demagogue thunder, "Will anyone in this House suggest that the Chief Justice of 1947 undertook to preside over a tribunal the purpose and functions of which he did not approve?"
That is also a misrepresentation. The Deputy knows it.
Well, now, either the Chief Justice approved of the thing or he did not approve—or maybe he was neutral. Would that be the explanation?
He was informed.
This much is certain— and I am going to nail it down—we had no power to compel him. I think all will agree with that. Before, then, we could put in the section, after consulting him, we must have got his consent. There is no escape from that. We are all agreed that it is unthinkable that he gave his consent without seeing the Bill and we know from the Taoiseach's telling that he did see the Bill. If he saw the Bill, he read the Bill and, if he is the Chief Justice of Ireland, he understood the Bill. These facts being granted, are we not entitled to ask, when his mind came to operate on the question will I say "yes" or will I say "no" to the request for permission to put my name in Section 4, is it conceivable that he decided for "yes" or for "no" without first asking himself: "In the event of this tribunal being constituted, do I approve of the nature of the task which it is asked to undertake?"
What is the task, precisely?
We have got this far— the Taoiseach agrees that doubtless he asked himself that question. Now, what is the task? The task is this—Mrs. Buckley and others, wisely or unwisely, in poverty or in riches, with diligence or sloth, approached the judiciary of this country and in proper form in the courts of law they made a claim. That matter came before a judge who heard the preliminary stages and directed that it should be placed upon the record of the court.
What is the task?
Wait a moment. There it lay for four years and, according to the Taoiseach himself, as a result of their insignificance and their inability to raise money to prosecute their cause, they were on the verge of having proceedings successfully brought against them. They were on the verge, were they not, of having proceedings brought against them for want of prosecution of their suit?
I am waiting to hear the task, if the Deputy will give it to us.
These plaintiffs, who were poor and insignificant, and possibly silly and improvident, set about as best they could, marshalling their resources to resume their representations before the court, and note that at that stage they said that one of the most important parts of those proceedings would be to summon the Taoiseach and cross-examine him on oath.
We are still waiting for the task.
That would be a task for you.
And then the Bill is brought in and what is the task of the tribunal envisaged in the Bill? It is to take up the consideration of the right disposal——
No; the Deputy has not read the Bill.
——of the funds which remain.
No, that is not the task. That is misrepresentation of the task.
The principal task is to take the case out of the jurisdiction of the courts.
That is not the task either, and the Deputy knows it.
It is the principal task.
That is not the task.
In order to enable that to be done, the judiciary are informed that, albeit they have seisin of Mrs. Buckley's cause, the Attorney-General is going to be given statutory authority to move in court and by that motion to coerce the court to dismiss the pending action without costs. What the Chief Justice must have asked himself was: "May I with propriety under Section 4 be chairman of the board or nominate a Supreme Court judge or a High Court judge to act as chairman of the board?"
Or a judge of the Circuit Court. The Deputy is reading the Bill for the first time. Of course, he can always talk more freely when he does not know what he is talking about.
If he has not read it, he is getting very near the heart of it.
He has not told us definitely yet what is the task the Chief Justice is to perform under this Bill.
To dispose of the business which Mrs. Buckley asked the High Court to attend to. Did the Chief Justice consider that that was a suitable rôle for him to play? Do Deputies in this House consider that that is a suitable rôle for the Chief Justice of Ireland to play? Remember that in the meantime, he will have occupied that strange employment which to the Taoiseach, not surprisingly, seems as easy as rolling off a wall, of presiding over the Supreme Court while it determines whether the Act, the implementation of which depends on the Chief Justice's undertaking to play a part, is a trespass of the Constitution. In the meantime he may well have had to declare or find himself in the position that two at least of his colleagues know that he has done entirely wrong or he may find himself in the position that having given an undertaking to do this job his four brethren of the Supreme Court bench will tell him that he cannot do so without violating the Constitution. The least we can say is that the Chief Justice has been reduced by the Taoiseach in this matter to act with reckless indiscretion.
Mr. Burke
That is uncharitable to the Chief Justice.
It is always the same.
Deputy Dillon put him on the spot.
Uncharitable! I would not wish to be that to the Chief Justice. The Deputy will learn, as his experience of public life extends, as a good many people on this side of the House have had to learn, that their duty very frequently imposes upon Deputies the necessity of doing things which are not in the least agreeable. I blame the Taoiseach.
That is better, anyhow.
He is a devious, dangerous and resolute man. He wanted to use the Chief Justice for the shameful purpose of deceiving our people. He wanted to deceive the people down the country. As he said himself he was only moving this matter from one judge's hands into the hands of a bigger judge. In fact his purpose was to avoid the embarrassing experience of being called to testify on oath by Mrs. Buckley. The Chief Justice has permitted himself to be used for that unworthy end. I say again with full deliberation—shame on the Chief Justice for having been a party to this transaction. Shame and double shame on the Taoiseach who tricked him into it.
Mr. Burke
I just want to say that I never heard Deputy Dillon going so far with misrepresentation as he has done here. He compared what was before this House to a trade union. A trade union is an organisation made up of members who subscribe so much a week or a month as laid down by the trade union organisation. This Sinn Féin Fund we are discussing here at the moment has been subscribed by the people of Ireland towards the fight for freedom. I cannot accept the analogy from the Deputy and I am sure the Deputy does not believe in it himself. The Taoiseach came into the House and in a very few words he told the House the position. He stated that this money was collected by the people of Ireland for a certain purpose and that no other organisation had more authority or power to distribute that money than the Oireachtas. He made the points very clear about the money. That was explained and accepted. Yet we hear talk about interfering with the courts. This is a very simple matter and I am definitely convinced that the attitude adopted by the Taoiseach on this matter is the correct one.
The Taoiseach said he wanted to see this job done fairly, impartially, and with a sense of high integrity. To achieve that end he nominated the Chief Justice of the Supreme Court in order to show and to convince the people of this country that these funds would be disbursed in a most conscientious and honest-to-goodness manner. I have listened to Deputy Dillon. Of course he is a very fine man and he has had longer experience at speaking than I have had but I really cannot understand why he is so nervous and why he is so uneasy and why he drew so many analogies regarding this matter. Surely there are Parties on both sides of this House who were all together at one time and who subscribed towards that fund, and is not it only just and human that there should be a spirit of co-operation to pass an Act that would disburse these funds as the great majority of the members think they should be disbursed? To do that a Bill has been brought in in a most judicious and honourable manner by the Taoiseach and I fail to see how any man should come along and misrepresent it. I thoroughly disagree with the points made by the last speaker.
I welcome the sound of Deputy Burke's voice from the Government Benches.
Mr. Burke
That is very nice of you.
Speaking earlier about the present attitude to the will of the Oireachtas, I said that I challenged any Fianna Fáil Deputy to discuss with us the reasons why it was thought fit that the Chief Justice should be put into this particular position. Apparently, "challenged" was not exactly the right word to use and I want to put the right word into its place. I want to appeal to members of the Fianna Fáil Party to discuss this matter with us here—Tá Béarla agus Gaeilge aca chuige. Deputy Burke is wrong in saying that any analogy was drawn between the body that created these funds and a trade union. What was pointed out was that if you do this in connection with these funds, somebody else on some other day may do it in connection with trade union funds. The funds were collected by the nation as a whole and, as Deputy Burke says, people on both sides of the House had something to do with the collection of them. It is because we hold to the spirit in which these funds were collected and the purpose for which they were collected that we object to what is being done with them and particularly to the Chief Justice being made a party to it.
It is not without a certain amount of significance that in our old literature we are reminded of the people who got the grace of the Christian faith before the coming of St. Patrick; that out of three so recorded one was Conor Mac Nessa who got the grace of the Christian faith because of his deep humanity manifested when he heard the story of the Crucifixion; another was Cormac Mac Airt who got it because of the justice of his ruling as a king; the other was Iodh Mac Morrainn, who got it because of the justice of his judgment as a judge. In the building up of these funds and the work we did for them there was one particular writer amongst others whose writings inspired us very much. Many Deputies will remember the story by Standish O'Grady of the veiled player, describing Ireland's position at that particular time as a chess player playing against a veiled player. There always came a time when Ireland, by the moving of its pieces on the board, was in the position of winning the game, but the veiled player swept the pieces off the board so that there could not be a termination to the game.
In my opinion, it would be tragic if the remnants of a few thousand pounds of the funds so collected to establish the State here and to give us an Irish judiciary and Irish courts, sovereign completely in their own domain, made part of the Constitution here, and absolutely independent of the Executive, could be the instrument and the cause of subverting our courts here to the Executive in power. That is what this Bill proposes to do. In spite of the fact that a case before the courts has been running on for four years now, because of the possibility of inconvenience to the Government Party, a Bill is being brought in here to take the case out of the courts, and, by the will of the Oireachtas, to give us a precedent that by a Party majority operating through this Oireachtas a case brought by an Irish plaintiff before a sovereign and independent Irish court, whatever be the merits of that case, can be withdrawn from the court and a decision refused.
It would be a very tragic thing if those who were inspired by the desire to sweep away for ever the veil of the veiled player who was playing against Ireland in the old chess game and to sweep away the trickery in our international relations should live to see the day when some people who were a party to these funds and who ought to remember the past motives and ideals would be so careless, simply because there may be political inconvenience as to the fundamental things that we worked and fought for and set up here, as to risk the destruction of these things sooner than have this political inconvenience.
Deputy Burke did not address himself to the real merits of the case. The Taoiseach asks: "What is the task of the Chief Justice?" The principal task of the Chief Justice in this matter is to lend his name and his patronage, by sitting on this tribunal, to taking a case out of the Irish courts that should never be taken out of them. The courts should be allowed to judge the case that is before them and then, when the courts have been allowed to judge the case, the position with regard to the courts and the possibility of the courts settling or doing anything about these funds will be thrown into a particular perspective. But, so long as there is a plaintiff before the courts who has spent thousands of pounds on a case, which is so far recognised to be a case by the defendant that £5,000 has already been spent upon it, then those who have any of the spirit of Sinn Féin, any recollection of the Sinn Féin tradition, should not allow this Parliament to trample on the courts set up to be independent of this Parliament and to have complete and independent responsibility for interpreting the Acts of this Parliament.
I say that the introduction of the Chief Justice into this section is not only degrading to himself and the courts and prejudicing the rights of the people in relation to the courts in the future, but as has been said already, it prejudices the constitutional rights of the people to appeal through the President to the Supreme Court against an Act passed through this Oireachtas. That is contrary to our Constitution. I should like to hear some other Deputies of the Fianna Fáil Party on this matter. I should like them to put the problem we are discussing here in its proper perspective. As planned in this section, the Chief Justice is asked to trample on the sovereignty and independence of the courts in order to save a bit of political inconvenience to the ruling Party.
I appreciate Deputy Burke's intervention because I know it is made in good faith. The Leader of the Opposition has replied to him as an old member of Sinn Féin who knew all the past. I never belonged to Sinn Féin. I belonged to the Nationalist movement. I had no part in the collection of this money. I had no part in the work that Sinn Féin did. Deputy Burke says that the Taoiseach has explained that the funds were collected for Sinn Féin and its work in the national cause.
I wish to report progress, to deal with a certain matter.