Courts (Establishment and Constitution) Bill, 1959—Committee Stage (Resumed).

TITLE.

Mr. McGilligan

I move amendment No. 43:

In page 2, to delete all words after "Court" in line 8 to the end of line 11 and substitute "The High Court and other Courts of First Instance."

The amendment is designed to change the Title and to make it more consistent with the constitutional position. Article 34 of the Constitution is referred to in the Title as it stands:

An Act to establish, in pursuance of Article 34 of the Constitution, the Supreme Court and the High Court and Courts to be called respectively the Court of Criminal Appeal, the Circuit Court and the District Court,...

Article 34 of the Constitution does not refer to these courts by these titles. It refers merely to Courts of First Instance and Courts of Final Appeal. The Court of Final Appeal is described as the Supreme Court and it is to be called that.

I suggest it is more in consonance with the wording of the Constitution to establish the Supreme Court, High Court and other Courts of First Instance. I have a particular objection to saying the Court of Criminal Appeal is established in accordance with Article 34 of the Constitution. The argument I used last night was at least accepted to the point of having further consideration given to the matter. The Court of Criminal Appeal is a hybrid court. It is not a Court of First Instance; it is not a High Court because members of the Supreme Court are compulsorily in it; and it is not a Court of Final Appeal.

Parliamentary Secretary to the Minister for Justice (Mr. Haughey)

I am inclined to agree that it would be desirable to amend the Long Title in some fashion, particularly in view of the fact that we have undertaken to have another look at the idea of the Court of Criminal Appeal. If the Deputy would be prepared to withdraw his amendment, I shall undertake to have the matter re-examined in consultation with the Parliamentary draftsman with a view to introducing an amendment on Report Stage. I imagine it will not be exactly in the form Deputy McGilligan has suggested but possibly it will be along those lines.

Amendment, by leave, withdrawn.

Mr. McGilligan

I move amendment No. 44:

In page 2, line 12, after "Courts" to insert "and, in pursuance of Article 58 of the Constitution" and to delete the said words where they occur in lines 15 and 16.

This amendment has a different purpose. I have argued that in this piece of legislation a dangerous precedent is being established. A judge can, so to speak, disappear from the court system by retiring, by reaching a certain age limit, whatever it may be, or by being dismissed and that can take place only on grounds of stated misbehaviour or incapacity.

This legislation at least indicates another way in which anybody who wants to interfere with the courts hereafter may use this as a precedent, namely, that one can abolish offices and can disestablish courts. I want to avoid any chance of this being taken as a precedent for that.

The second part of the Long Title reads:

...to specify the constitution of those Courts, to provide for the vacation of judicial offices and the filling of vacancies therein, and, in pursuance of Article 58 of the Constitution, to disestablish the several Courts...

I suggest that the words "and, in pursuance of Article 58 of the Constitution" should be moved so that they would take their place after line 12 and read:

. . . to specify the constitution of those Courts, and, in pursuance of Article 58 of the Constitution, to provide for the vacation of judicial offices and the filling of vacancies therein, . . . .

It would bring the matter of vacating all offices under the one way determined here, namely, that when a person who holds an office of judge vacates that office, the court will cease to be abolished. I think it is better to put that inside the framework of Article 58 of the Constitution. Apart altogether from Article 58, we are not establishing a new way of getting rid of judges.

Mr. Haughey

I think the Deputy may be under some misapprehension. In lines 13 and 14, the Long Title speaks about providing for the vacation of judicial offices and the filling of vacancies therein, and refers entirely to the future. The judicial offices in that context are the judicial offices to be created under this Bill and not the present judicial offices. Therefore, Article 58 of the Constitution has nothing whatever to do with this. In fact, Article 58 deals only with disestablishing the various courts of justices as they exist at present, whereas the preceding lines refer entirely to new judicial offices.

Mr. McGilligan

That is not fully an answer. Section 7 of the proposed legislation deals with the existing courts and by an amendment accepted yesterday subsection (3) reads:

When a person who immediately before the commencement of this Act held the office of judge or justice of any of the existing courts . . . .

That is not the future—"any of the existing courts." When he has vacated that office certain things happen. The vacation of an office under Section 7 clearly relates to the existing courts and I want to have the whole matter tucked in under Article 58 which deals with the courts which were in existence which are now being carried forward and being determined otherwise in accordance with law.

Mr. Haughey

I believe the whole matter of disestablishment of the existing courts and the abolition of these offices should, as Deputy McGilligan says, be tucked in under Article 58. In fact it is, because the long title goes on to say:

in pursuance of Article 58 of the Constitution, to disestablish the several courts of justice mentioned in that Article and to abolish the offices of the judges and justices thereof.

That clearly encompasses the whole procedure of disestablishment and abolition of the offices and is all within the ambit of Article 58 of the Constitution. But the other part of the long title which is not expressed here as being in pursuance of Article 58 of the Constitution, namely, providing for the "vacation of judicial offices and the filling of vacancies therein" is correctly removed from the ambit of Article 58 because it has nothing to do with Article 58. It is the new courts only that are involved in that.

Mr. McGilligan

The vacation of the existing judicial offices is being done under Article 58. I shall read Section 7 again if necessary. It refers to the existing courts, to a person "who immediately before the commencement of this Act held the office of judge or justice of any of the existing courts" and continues with the amendment carried last night: "has vacated that office..." Therefore it is completely wrong to say the vacation of a judicial office looks entirely into the future.

Mr. Haughey

The term "judicial office" is expressly defined to mean the new offices.

Mr. McGilligan

An existing office surely is being covered. The word "vacating" applies, in accordance with Section 7, to an existing office. I think that is right.

Mr. Haughey

That is correct.

Mr. McGilligan

Very good. Therefore it is wrong to say that the use of the phrase in regard to the vacation of judicial office applies only to the future. It certainly applies to the vacating of the existing offices.

Mr. Haughey

No. Because "judicial office" is exclusively confined to the new offices, so when you speak of vacating "judicial office" you are referring only to the new offices.

Mr. McGilligan

Under Section 7 does a person vacate an office ?

Mr. Haughey

He does not vacate a judicial office for the purpose of the Bill.

Mr. McGilligan

He vacates an office.

Mr. Haughey

The office of judge or justice of any of the existing courts, not a judicial office.

Mr. McGilligan

The words are "has vacated that office". That office is certainly a judicial office.

Mr. Haughey

No, not as defined in this Bill.

Mr. McGilligan

Maybe not as defined in Section 6 which we understood last night was supposed to refer exclusively to the new office, but, by an amendment introduced by the Parliamentary Secretary himself, we have brought in a reference to the existing offices.

Mr. Haughey

Existing offices but not a judicial office.

Mr. McGilligan

It ties Section 6 in, or at least it prevents its being regarded as exclusively connected with the new offices. Certainly that subsection deals with existing offices and these are what are to be vacated. It would save a lot of argument hereafter if this were cleared up. One could have judicial offices of the new type vacated by disestablishment of the courts. It is another way out. If anyone wants to look for a means of getting rid of judges it seems to open another door though it is not very necessary to open such a door. While judges may be dismissed only for certain reasons all judges may be retired in accordance with law.

Mr. Haughey

Let me make this as clear as I can. The long title can only refer to this Bill and "judicial office" in this Bill has a very distinct and specific meaning. It refers exclusively to the new offices to be created under the Bill. For that reason, as "the vacation of judicial offices and the filling of vacancies therein" are not even contemplated under Article 58, it would be quite wrong to have this part of the long title within the ambit of Article 58. Sections 6 and 7 are quite clear, either as they stand or as amended, that "a judicial office" means one thing, a new office, whereas when we want to refer to the existing courts we speak of "the office of judge or justice of any of the existing courts." The vacation of those existing offices is provided for, in pursuance of Article 58, in the long title under the phrase: "to disestablish the several courts of justice mentioned in that Article and to abolish the offices of the judges and justices thereof."

Question: "That the words proposed to be deleted stand" put and declared carried.

Title agreed to.

Bill reported with amendments.

Dáil Éireann debate -
Thursday, 22 Jun 1961