I want the total increased cost. If the Minister has not got the figure, it will do later. I merely wish to have on record the precise amount of the increase in the public charge which will be effected by this Bill. My reason in doing so is not to direct the attention of the public to the amount of the charge, but to emphasise how small the amount is. I pass over the temptation of referring to the famous circular of the Fianna Fáil Party in 1932 which paraded throughout the length and breadth of the country the huge amount of the judicial salaries. I believe that judicial salaries were fixed at too small amounts originally. They were paraded for political purposes, and I am glad to see now that the Government has learned its lesson and has appreciated at last the fact that people in judicial positions must be paid salaries adequate to the functions that they have to fulfil and the situations of dignity, honour, integrity and independence which they occupy.
The only other matter that I wish to refer to in connection with the question of salary is the amount of the increase that is being given to district justices. I think it would probably be agreed by all sections of the House that the district justices have not been treated over generously in the increases that they have been granted. I would ask the Minister to reconsider the amount that is being granted to district justices and to take into account the fact that they have arduous duties to perform, particularly those in the country. They have long journeys to travel and in the winter time travelling makes calls upon their health and upon their energies which may eventually affect the length of their lives or the length of their holding of the judicial office. It is a matter that is pretty well known that a number of district justices have been quite unable in recent times to carry on in the conditions in which they are expected to carry on having regard to the office that they hold and that home of them have found themselves in circumstances of financial difficulty. As I have said, I think the Minister would find all Parties in this House supporting him in giving some little addition to all the district justices and more particularly the district justices in the country. It is a little difficult to understand why certain of the justices in the Dublin District Court should have a little more in salary than the justices in the City of Cork or even those in the country. I would like to know from the Minister why it is that some flat rate, say of £1,500 a year, could net be fixed for all district justices throughout the country, whether they are in Dublin or in the country.
The matter of pensions of district justices is one on which I would also like a little further elucidation from the Minister, not so much, on what is contained in the Bill, as on what is not contained in the Bill. As I understand it, a number of these district justices— not many; I think not more than two or, at the outside, three — have already retired and their pension has been fixed on the remuneration which they obtained before the increase which it is proposed to grant under this measure could have been granted. In common fairness and justice, those two or three district justices who have retired should be given an increase in the superannuation allowance commensurate with the increase that it is proposed to give in this measure.
There is another matter, which would apply to all holders of judicial office, which I commend to the Minister for his consideration. It is the matter of pensions for the holders of judicial office. At the present time, as the Minister,, of course, is aware, the pension in respect of a judicial office is fixed at two-thirds of the salary at the date of retirement. That pension has to be earned over a long period of years. Most people who are appointed to judicial office reach that position when they are somewhat elderly. In the ordinary course of human affairs, many of them drop by the way, although the life of judges is well known to be peculiarly long. Nevertheless, some of them die in office and the effect upon their families of their death before they have earned their pensions may be very disastrous indeed. I would ask the Minister to consider whether it would not be possible to have a scheme somewhat analogous to the system under the Superannuation Acts for Civil Servants which would provide for judges who die in harness that there should be given to their dependents a sum equivalent to a year's salary. The Minister will appreciate that I am making these observations on behalf of the judicial personages purely from motives of altruism.
The really important and difficult part of this Bill is that part which deals with the proposals for granting to the president of the Circuit Court new administrative functions. I must confess that I have feelings of great uneasiness about these proposals. I recognise that there should be some system by which the work of the Circuit Court should be harmonised and the public interest secured by seeing that sittings of the Circuit Court take place regularly and take place at the most convenient centres from the point of view of the litigants and witnesses within the ambit of each area covered by a Circuit judge, but I cannot help feeling a certain degree of uneasiness in regard to the somewhat dictatorial in a particular individual, the president of the Circuit Court.
At the outset I said it was difficult to speak of a measure of this kind without somebody reading into some remarks that might be made reference to particular individuals. I want to emphasise that I am speaking as if there were at the present time no Circuit judge yet appointed. There are numbers of the present occupants of the Circuit Court for whom I entertain the highest feelings of respect, and there are some for whom I have the highest feelings of admiration. There are a few who would be competent for the position of a High Court judge. It would be invidious for me to refer to particular individuals whom I have in my mind. I make the remark merely for the purpose of divorcing anything I have to say by way, not of criticism but of comment, on the proposals in this Bill from any particular personality or individual.
I have a grave feeling that some of these proposals, if they do not actually infringe the provisions of the Constitution, go dangerously close to it. I have made it a rule that, so far as I am concerned in this House, I will express no personal opinion upon whether a particular legislative proposal contained in a Bill which comes before the House is or is not constitutional. With that self-imposed duty. I approach this matter and ask the Minister gravely to consider, and to, secure from his advisers an opinion, as to whether some of these proposals are not unconstitutional. While there are some of the Circuit Court judges. who are 61 High Court, or even one or two who are of Supreme Court calibre, I object to the proposal to confer upon the new president of the Circuit Court the status and functions of a High Court judge.
When I read the proposals first, my instinct reacted completely against that proposal. The more I think of it and the more I have thought of it since, the more convinced I am that it is a highly dangerous, not to say, an improper proposal. I did fear that what was really at the back of the proposal was not to enhance the dignity of the Circuit Court but to enable the Department of Finance to do what the Minister himself has said it is proposed to do, namely, to utilise the president of the Circuit Court as an additional High Court judge to do the work. I think that dangerously encroaches upon the constitutional provisions in reference to the judiciary and, even if, it does not, I think it is a bad principal. It is a bad principle that a member of the Circuit Court which, under the Constitution, is a court of local and limited jurisdiction, should have a member who is at the same time a High Court judge with full original jurisdiction, even on matters affecting questions as to whether or not any law infringes the Constitution.
I think it is wrong that this man who, in the ordinary course of his duties will be dealing with cases of local jurisdiction and limited jurisdiction, should sit on appeals from his colleagues in the Circuit Court. It is equally invidious, in my view, and contrary to the dignity both of the Circuit Court and of the High Court, that those persons who may be intermittently his colleagues in the High Court should be hearing appeals from his decisions in his capacity as a Circuit Court judge. I can find no reason for this particular proposal. I do not think it enhances the dignity of the office. On the contrary, it may very well derogate from the dignity both of the High Court and of the Circuit Court. I have no objection to the salary proposed to be given to the holder of the office. Coupled with the newly-created office of president, it should be sufficient to mark him as outstanding and as head of that particular portion of the judicial system which is known as the Circuit Court.
I happened to have some little contact with those who were engaged in planning the composition of the new courts prior to the Courts of Justice Act, 1924, and I do know that the whole idea of the architects of our new judicial system was that each of these compartments to be erected in the new judicial Structure should be separate and self-contained. The Supreme Court should be set apart from the High Court, thereby emphasising that it was the final court of this country. The High Court was set apart from the inferior courts and was given full original jurisdiction, with appeals prescribed by law and by the Constitution, to the Supreme Court. It is to be noted, in passing, that while the President of the High Court was appointed and given that position of pre-eminence among his colleagues in the High Court, there were no provisions of detail such as are contained in the present measure, Part III, providing that he should have powers of a dictatorial kind over his colleagues in the High Court. He has the direction of the business of the High Court, but it is assumed and very properly assumed that those people who fill the high office of High Court judges will be so mindful of their public duties and functions that they will work in harmony together and consult together with the President of the High Court as to the particular allocation of their duties between them and the manner in which they shall severally perform their judicial functions. That has worked well. I would commend to the Minister a similar system for the Circuit Court.
I have interpolated these remarks into the framework of what I was saying in reference to the president of the Circuit Court being a member of the High Court. The judicial system requires, in its concept and in its practice, that these various judicial structures should be separate and self-contained. The High Court should be separate from the Supreme Court and so also it was conceived that the Supreme Court should be separate from the High Court and the District Court separate from the Circuit Court. So insistent on this concept of the judicial architecture was the late Chief Justice Kennedy, that he would not, so far as he could affect the matter, allow that any of the buildings either of the Circuit Court or the District Court should come within the ambit of the buildings which housed the High Court and the Supreme Court. This Part III, in my view, infringes entirely that concept and that principle. If there is to be a president of the Circuit Court with the status of a High Court judge, why not a president of the District Court with the status of a Circuit Court judge, to be carried in from time to time, as occasion may require, as journeyman to do Circuit judges' work and to hear appeals from his colleagues in the District Court?
In my view, the principle is bad. I can see no useful purpose to be attained by it, except possibly what the Minister has said and what I conceive to be the real reason for this provision, that there should be an additional judge who should be asked to work in the High Court and so possibly save the expense of appointing another judge if the work required it. The principle is entirely bad and is wholly unjustifiable. The president of the Circuit Court will bring to the dignity of his office as much honour as he shall, by his conduct in his position, achieve and merit; and the mere fact that he is a High Court judge doing journeyman work — hearing in the High Court, possibly, Circuit Court appeals from his colleagues — will tend to lessen the respect that will be given to him and will derogate from the status and dignity of the position he holds and the court of which he is the titular and the actual head
I ask the Minister very seriously to consider withdrawing this provision. I feel that perhaps I should, even at the risk of being charged with the offence or repetition, reiterate that — I am speaking entirely apart from personalities — there are those in the Circuit Court whom I should like to see as full members, permanent members, of the High Court. I am looking at this problem and these proposals as if they came for the first time when new Circuit Courts were being set up. I think it is worth while keeping apart functions of the High Court, the Circuit Court and District Court. The courts of justice were erected within the framework of this structure enacted in the Constitution of 1922 and the present Constitution. This, in my view, infringes, if not the letter, at least the spirit of the Constitution, and I ask the Minister seriously to consider withdrawing this proposal.
With regard to the powers conferred in the other sections of this part of the Bill, I find myself in somewhat of a difficulty in dealing with them. As I have indicated, I agree that there is a problem to be solved. I should like to know from the Minister whether or not this part of the Bill has been referred to the general body of the Circuit Court judges for their comments and their approval. I am not in touch with any judicial personage in this matter, but I should like to know if the judges have approved specifically and definitely of these proposals, because there can be no doubt whatever that, unless the proposals contained in this Bill are worked with tact and with the goodwill of each individual Circuit Court judge affected by the powers it is proposed to confer upon the president of the Circuit Court, there is a very grave danger of great public scandal ensuing.
Under the proposals contained here at the moment, the president of the Circuit Court is entitled to call upon a judge to leave his own circuit, the circuit to which he was assigned, and to go from district to district in accordance with his direction. There are provisions enabling the president of the Circuit Court to fix the actual places and times of hearing of every circuit judge. I think it does not require any very great eloquence, or any amount of phrasing, to call up for the imagination the chaos which might ensue if these particular provisions were not worked in complete harmony between the president of the Circuit Court and the particular judges involved. There is a grave danger that, human nature being as it is and each circuit judge being given, as he is given, under the legislation enacted by the Oireachtas an independent position, being made free and independent in the exercise of his own functions, a circuit judge may seriously, and possibly correctly, rely upon his independent position and refuse to carry out the order and directions of the president of the Circuit Court.
I direct attention to some of these matters in order that this Bill may not be lightly passed by this House without full consideration. The Minister introduced the Bill in a very short speech, but I think the provisions of this Part require the most serious and careful consideration of all sections of the House. So far as the measures proposed go, they concern every section of the community and they are the concern therefore of every Deputy, to whatsoever Party he belongs. There are no Party politics and there should be no Party divisions upon this measure. It should be considered on its merits, and on its effect on public opinion and on litigants in general. It is true that one of the sections in the Bill provides that, before any order is made by the president of the Circuit Court, he shall consult the circuit judge concerned. That famous device appeared for the first time in the Court Officers Act, 1926. I claim to have been the inventor of it, and I will take such discredit as may come from its futility.
It was a method by which a very grave difficulty was solved at the time. That famous phrase, by which certain things were to be done "after consultation with", got over a very serious difficulty which might have emerged into a public scandal, but the device has been a little overworked since. "After consultation with" means that there may be the purest formality in order to comply with the statutory requirement, and, after the statutory requirement has been fulfilled in the letter, the particular individual concerned may make an order under the section irrespective of the views of his colleagues in the Circuit Court. Everything I have said emphasises again and underlines the necessity for tact, the necessity for wariness, on the part of whoever shall fill the office of president of the Circuit Court. I do think that the loose system which has worked so well in the High Court should be allowed at least a trial in the new system which is being set up in the Circuit Court of a president of the Circuit Court being appointed.
I imagine that where colleagues are working together, little difficulty in resolving problems, where the public interest is concerned, need be anticipated, but again, human nature being as it is and judges being as they become after a short time on the bench — and I need not say any more than that with reference to some of them — judges will not take kindly to a provision whereby they may be ordered about by one of their colleagues, or whereby the business of their courts may be fixed and determined, irrespective of their views and wishes. It is more likely that by goodwill and by working together amongst colleagues greater success can be achieved and a greater measure of direction of the work of the Circuit Court in the public interest and in the interest of litigants can be secured than can be secured by the cast-iron and rigid system contained in this measure.
I do not know what experience has enabled the Minister to come to the conclusion that 70 is old enough for circuit judges. Speaking as a practitioner on behalf of some practitioners who possibly have the peculiar desire to become Circuit judges, I suppose these practitioners would welcome that proposal, but I nevertheless think that, as the age was fixed beforehand at 72, it should not be arbitrarily set aside merely because the Minister thinks 70 is old enough. I have referred to district justices who have already retired. I have made that point and I earnestly recommend it to the Minister for consideration.
With regard to the proposal to appoint a particular individual ad hoc to the Dublin Circuit Court it is regrettable that, in some of the vacancies that occurred for the permanent position of Circuit Court judge, that individual was not appointed, a permanent judge rather than that resort should have had to be had to a particular ad hoc provision in a Bill. As far as we are concerned, there is no objection to it. The real matter of great importance in this Bill concerns the status to be given to the president of the Circuit Court as a High Court judge and to the enumeration of the specific and wide powers which are to be conferred upon him to direct and control the judiciary or his judicial colleagues. In my view these provisions should not be inserted in this Bill. It should be allowed to the good sense and to the goodwill of the occupants of the Circuit Court. I see and foresee nothing but danger, difficulties and, possibly, public scandal emerging from the enumeration of those powers.