Dáil Éireann debate -
Thursday, 22 Jun 1961

Vol. 190 No. 6

Committee on Finance. - Courts (Supplemental Provisions) Bill, 1959—Committee Stage.

Section 1 agreed to.

SECTION 2.

Mr. McGilligan

I move amendment No. 1:

In page 5, line 8, after "Court" to add "and in the said Act thereafter called ‘the Chief Justice'."

This is merely a matter of names again. In the definition section the phrase occurs "the existing Chief Justice". We are saying he is the judge of the existing Supreme Court who was, immediately before the operative date, President of that Court. I just want to say that his title under the 1924 Act was "the Chief Justice". This is merely carrying forward that definition and providing that the President of the Supreme Court shall be called "the Chief Justice".

Mr. Haughey

I have had this matter examined in consultation with the draftsman and I am satisfied that the addition of these words is not necessary and that the definition is quite satisfactory as it stands.

Amendment, by leave, withdrawn.

Question proposed: "That Section 2 stand part of the Bill."

Mr. McGilligan

In line 28 we have a definition of the words "justice of the District Court." It says:

"justice of the District Court" includes, except where the context otherwise requires, the President of the District Court;

Last night it was quite clear from the other Act that we are appointing a judge to the district court and that no person other than a judge may be appointed to the district court. Now we come to how they are to be addressed in court. The people miscalled justices of the district court are to be addressed as "Breitheamh". That is the word which is used for a judge of the Supreme Court, a judge of the High Court and a judge of the Circuit Court. The only place in which "justice" occurs is in a translation of the title of judge of the district court, which is put inside brackets in a certain part of the legislation just dealt with.

Clearly, this is looking forward, not looking back. It seems to me to be odd that we are going to determine that the word "justice" means the President of the district court when in fact the court is to be composed of judges and that the method of addressing these people in the district court is to be the same as the Irish version of the word "judge." What we are defining here is the word "justice" and that certainly is not a post to which I hope these people will be appointed. It is only a translation of the description of these officers.

Mr. Haughey

I do not think there is anything inconsistent here with what I was arguing yesterday. Section 5 of the Establishment Bill appoints judges and goes on to say that, from that moment onwards, they should be styled and referred to as "justices." Here we have that system of nomenclature carried forward. The styling here is in accordance with what is laid down in Section 5 of the Establishment Bill, namely, that these judges are styled "justices of the district court."

Mr. McGilligan

The reference to Section 5 is the reference I was making myself. Section 5, as it has gone through Committee Stage, says:

On the commencement of this Act, a Court of First Instance, which shall be called An Chúirt Dúiche... shall stand established.

It goes on to say that the district court "shall be constituted of the following judges." The first is a judge who shall be styled in a particular way and "such number of other judges." Let me leave out the President for a moment. It will be composed entirely of judges. The Irish title of those, other than the President, is "Breitheamh." That is the word used earlier in the first Bill as the translation of "judge." The only place in that Bill where the word "justice" occurs is in the bracketed translation put after "Breitheamh den Chúirt Dúiche."

We come back to the Supplemental Bill and define the type of person, not the office to which a person has been appointed and not even the Irish version of that office. We define by reference to a phrase which is merely an English translation and a bad translation—certainly a translation inconsistent with all that has gone before— of the word "Breitheamh."

Mr. Dillon

Is it not queer in this Bill to go to all these lengths to enjoin upon us that the judges are to be known as "Breitheamh den Chúirt Dúiche" and, five minutes afterwards, to ask us to deal with a fundamental Bill, the Courts (Supplemental Provisions) Bill, in which the Parliamentary Secretary himself enjoins upon us:

"the High Court" means the Court established by section 2 of the Principal Act; “justice of the District Court” includes, except where the context otherwise requires, the President of the District Court;

Are we going daft?

Mr. Haughey

No.

Mr. Dillon

I want to direct the attention of the House to the history of this matter. It shows how the proceedings of this House can be made ludicrous by foolish publicity. It is notorious to all of us who have any information about these matters that these two Bills were drafted several years ago, sometime in 1955 or 1956. What happened is that they have been plucked out——

Mr. McGilligan

They were there in 1953, I think.

Mr. Dillon

Were they? At any rate, they were there in our time. They were plucked out by this Government and, having plucked them out, in order to give a demonstration of his energy and his exertion, the Parliamentary Secretary has introduced into the Courts (Establishment and Constitution) Bill a whole lot of fraudulent trimmings. Everyone has apparently been too lazy to go through the Courts (Establishment and Constitution) Bill and the consequential measure, the Courts (Supplemental Provisions) Bill and make the proper adjustments that should have been made if the trimmings were to extend to the whole corpus of the legislation. The result has been that on several occassions, to which we have already directed the Parliamentary Secretary's attention, we are in the ludicrous position that we enjoin on all loyal citizens of the State that the Supreme Court is to be known hereafter as An Chúirt Uachtarach ; and, in the next subsection of the Bill where that is laid down, we ourselves describe it as the Supreme Court.

It is now enjoined upon us to describe a district justice as Breitheamh den Chúirt Dúiche and in the next paragraph almost, we ourselves describe him as a district justice. I have a very deep instinct that this is a demoralising kind of activity. We all know it to be so fraudulent, so specious, so shamelessly vote-catching and such a prostitution of something that we ought to respect, and for which I have a deep regard—the Irish language—that I feel we are all made cheap by this Bill, and anyone reading our legislation will deride us for our own manifest incompetence.

If the Parliamentary Secretary has been directed by the Government to institute all these Irish titles and to enjoin upon us, when speaking English, to use the Irish words, as if no one could be persuaded to utter a word of Irish in this country unless required by statute to do so, and that in itself is a most offensive proposition, if that is to be the law, then let the law be consistently and properly drafted and enacted. Let us not have law propounded to us in this House that is self-contradictory and which bears on its face all the marks of fraud. There is something humiliating and demoralising in that. We ought not to be so lazy in our enactments in this House that we cannot bother to present our legislation in correct form because, after we have put in the trimmings, they have served their purpose and the consequential adjustments requisite to make the legislation seemly is too much trouble. Let us have it one way or the other, but do not let us have a slapdash performance.

I do not want to take from the Parliamentary Secretary any credit he may wish to claim for producing this legislation, legislation he has taken out of the files of the Department. I do put it to him, however, that in so far as his influence has been brought to bear upon it, the result has been pretty slapdash. The corpus of these Bills is good and carefully done. The Parliamentary Secretary's handiwork upon them has not improved them. It is not a good start for any person first brought into contact with the responsibilities of office to acquire the reputation of being slapdash. It is not a good reputation to build.

Worst of all, where careful work has been done and a proper instrument prepared for submission to the legislature, it is most regrettable that political considerations should impose upon the House the ludicrous frauds that are manifesting themselves in these two Bills. I suggest to the Parliamentary Secretary that he should take early measures either to drop all the fraudulent cod which he has sought to associate with this necessary legislation or, else, to burn sufficient midnight oil to ensure that the fraudulent cod, although it must remain fraudulent and although it must remain cod, shall at least be consistent and not introduce an atmosphere of farce into that aspect of the legislation with which his activities must be associated.

Mr. Haughey

I am getting fairly well used to the Opposition tactic of making it absolutely clear that the credit for anything that is good in these Bills should be attributed to somebody else and that the blame for anything that is bad or derogatory should be firmly placed on my shoulders. We will let that pass, however, and deal with the particular proposition put forward here.

First of all, there was the suggestion that even if I were, to use a Northern expression, a through-other, slapdash sort of character, my officials would allow into this House a measure which was not carefully examined and gone through in every detail. That suggestion is, of course, absurd. There is no question of our having interpolated these titles in the first instance and then of not bothering or forgetting to carry them right through the Bill. I have already explained that there is a very clear and precise pattern and, indeed, an inescapable logic in what has been done.

When dealing with the establishment of offices as such, and with the fundamental process of bringing these offices into being, we have, in an earnest and sincere desire to carry out the spirit of the Constitution, used the Irish and the English form side by side in an endeavour to emphasise the Irish form of the name. Having done that in the basic establishment sections, from there on throughout the Bill, in the English text of the Bill, we use the English form only. Nothing could be simpler, more straightforward or logical than that. I think that should be sufficient to deal with the argument that the Bills are self-contradictory in some way. They are not.

There is the other point with regard to styling justices here. I have already dealt with that. The Opposition are picking on this one particular point of styling. Surely they can see that when we go on throughout the Bills to refer, for instance, to the President of the High Court, we do not use the word "judge" there. If Deputy McGilligan were to be consistent in his criticism, he should insist that anywhere in the Bills we use the title of the President of the High Court, we should say "the judge who for the time being is President of the High Court", if he wants to have this insistence on "judges" throughout the Bill. I maintain that that is not necessary and I think it is quite clear from the whole construction of the Bills that it is not necessary. When we are establishing these people, we establish them as judges and we go on in parenthesis to say that they shall thenceforward be styled justices. That clears the way from then on for the use of the styling "justice" wherever it occurs.

Mr. McGilligan

On this question about who is responsible or who gets credit or lack of credit for anything, I want to make the position, as far as I understand it, clear. This body of legislation was drafted by the late Mr. Gerald McCarthy who had been put into a special office which he filled in a way that everybody who knew his reputation would expect him to fill it until the date of his untimely death. When all this legislation was drafted, the first version I saw of it was one that bore the date—I am not absolutely certain of this—of 1953. I saw it in 1954 and certainly there was a date on it which indicated that it had reached a second draft earlier than the year in which I got it taken out of a safe in a particular office in Government Buildings. I have a feeling that the first version went back as far as 1950. There is no doubt the bulk of this work, all this amazing repeal of statutes and all that, was peculiarly the type of work the late Mr. Gerald McCarthy was efficient at and it is his hallmark that is on all this.

What Deputy Dillon and I complain of is that that very good piece of work was taken hold of and rather messed up by this pretence of favouring the Irish language. It is to that that we take exception. I say "pretence" and I have used the word "pretence" and I have used the words that a substantially good draft of legislation has been somewhat spoiled by this effort at pretence of favouring the Irish language.

What do we do with regard to the Irish language? The Parliamentary Secretary says now that we have established the courts and have given them Irish names. We do not give them Irish names. We give them a double name. The Irish name comes, as far as the first piece of legislation is concerned, in the first place, and there is a translation in English, but the English part is put in brackets and that is the translation. The Parliamentary Secretary's enthusiasm for the Irish language is at fever heat in the Courts (Establishment and Constitution) Bill, so that he takes the Irish phrase out of brackets and gives it precedence and puts the English phrase into them. That glow vanishes when you come to this legislation. We then forget all about the Irish language. We have done our duty, so to speak, by the Irish language in using Irish phrases in the titles of certain courts, in respect of certain personnel, and then forget all about it, put it aside and come back here and say: "Now, we know where we are. We are going to speak of `justices'."

Look at line 41 on page 5:

"the Supreme Court" means the Court established by section 1 of the Principal Act.

I turn to Section 1 of the Principal Act. We have established the Court of Final Appeal and "in pursuance of Article 34 of the Constitution it is to be called An Chúirt Uachtarach (The Supreme Court)." Of course, as was pointed out yesterday, it is not in pursuance of Article 34 that the title "An Chúirt Uachtarach" has been put upon the Court of Final Appeal. That is completely wrong but still we have accepted it and in the first Bill, we have then established An Chúirt Uachtarach translated in brackets (The Supreme Court). But then, on that matter, having done our duty by the Irish language, let us forget all about it when we come to the Courts (Supplemental Provisions) Bill, 1959 and say:

"the Supreme Court" means the Court established by section 1 of the Principal Act.

I think that is a pretence. I would not mind if the pretence had been carried forward and if it said "An Chúirt Uachtarach (The Supreme Court) is the court established by Section 1 of the Principal Act". We drop the whole folly once we come into this particular piece of legislation and we simply say: "justice of the District Court" may include the President of the District Court and "the Supreme Court" means the Court established by section 1 of the Principal Act.

The only other point that has been raised is in regard to the President of the High Court, that if I want to insist on calling him a judge, I should say "the judge known as the President of the High Court", which would be better probably, but, in any event, there is no disparaging effect in the use of the words "President of the High Court". There is when you have established people as judges of the district court and then you suddenly turn around and say all the way that the phrase "justice of the district court" means or includes some individual. There is something derogatory in the use of the word "justice" as opposed to the word "judge". It is taking away from his status. Saying that a person is a judge of the Supreme Court or the High Court does not take away from his status; it is an addition to it.

Question put and declared carried.

SECTION 3.

Mr. McGilligan

I move amendment No. 2:

In page 5, to delete all words after "but" in line 49 down to and including the figures "1937" in line 50.

I put this amendment down for the purpose of inquiry. This section deals with certain pension rights. It carries forward certain enactments relating to pensions of judges and they are to continue to apply. There is then put in a saving clause:

But, without prejudice to subsection (1) of Section 21 of the Interpretation Act, 1937.

What has subsection (1) of Section 21 of the Interpretation Act, 1937 to do with this matter and for what reason is it necessary to save it unprejudiced?

Mr. Haughey

The section proposes to carry forward certain rights. Subsection (1) of Section 21 of the 1937 Act deals with the carry forward of rights and obligations where statutes are repealed. The idea of the draftsman in putting it in this fashion was that he feared, if you like, that when he stipulated particular rights that were to be carried forward, the very fact that he was doing so might be read to infer that no others were to be carried forward, so, he decided it was safer to save the general operation of subsection (1) of Section 21 of the Interpretation Act. It is, if you like, excess of caution but it is deemed wiser to do it. Is that clear?

Mr. McGilligan

Did you say "Is that clear?"

Mr. Haughey

Yes, that is what I said.

Mr. McGilligan

I am afraid I am a bit fogged still. I have moved to take away certain words. The phrase I want to remove is "without prejudice to subsection (1) of Section 21 of the Interpretation Act, 1937." If that is left out, the section would read that the enactments mentioned in a certain schedule are hereby repealed to the extent mentioned in certain columns of the schedule, but such of those enactments as relate to the pensions of the judges and justices of the courts established by the Act of 1934 shall continue to apply. What is the difference in the section as it is now and leaving out that phrase?

Mr. Haughey

There is this difference. Let me read subsection (1) of Section 21 of the 1937 Act:

Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal shall not——

(a) revive anything not in force or not existing immediately before such repeal takes effect, or

(b) affect the previous operation of the statute or portion of a statute so repealed or anything duly done or suffered thereunder, or

(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the statute or portion of a statute so repealed.

That last one is the operative one.

Mr. McGilligan

Which is the part that is operative?

Mr. Haughey

It is all operative but this is the particularly important part "any right, privilege, obligation, or liability acquired, accrued or incurred under the statute or portion of a statute so repealed." That is the general provision of the Interpretation Act with regard to repealed statutes. Now we are providing in Section 3 specifically for the carry-forward of certain rights related to pensions. It might be construed or inferred from that specific provision that when we provide that these shall be carried forward, by implication, nothing else is carried forward, and we want to preserve the position under Section 21 of the Interpretation Act. We do so by making it clear that, even though it is stipulated that certain rights shall be carried forward, that is not to say that the general carry-forward provision of the Interpretation Act shall be negatived.

Mr. McGilligan

Surely, if we said we repealed certain enactments but notwithstanding that, such enactments relating to pensions are carried forward, it would be sufficient? Nothing could be simpler.

Mr. Haughey

That would not achieve what we want.

Mr. McGilligan

Let us get it done by degrees. It is protecting the pensions of judges. The section could read that the enactments mentioned are being repealed but notwithstanding their repeal, such of these enactments as relate to pensions of judges shall continue to apply.

Mr. Haughey

That looks after the pensions for the judges.

Mr. McGilligan

What else is to be looked after?

Mr. Haughey

Any other right, privilege, obligation or liability incurred under the statutes which are being repealed, the general omnibus provision with regard to repealed statutes. The fact that we mentioned some specific carry-forward might carry a corresponding implication that it was the only thing being carried forward. It is not and we want to preserve——

Mr. McGilligan

If you did not mention the Interpretation Act, would it continue to apply? It would, of course.

Mr. Haughey

It might be——

Mr. McGilligan

Would it not?

Mr. Haughey

It would not necessarily. The section could be left open to the interpretation——

Mr. McGilligan

Does the Interpretation Act not say "unless there is evidence to the contrary?"

Mr. Haughey

If you fail to mention the Interpretation Act, it might be held that you are carrying forward only what is specifically mentioned. I have the authority of none less than Gerald McCarthy.

Mr. McGilligan

It would seem to me then——

Mr. Haughey

The Deputy cannot have it both ways. Either Gerald McCarthy is the draftsman or he is not.

Mr. Dillon

It is not customary to quote members of the Civil Service in defence of propositions advanced.

Mr. Haughey

But the name of the late Gerald McCarthy had already been mentioned by Deputy McGilligan and I am just saying that this is his draft.

Mr. McGilligan

Let us get to the late Gerald McCarthy's draft on everything. I would be willing to accept that, but not on one thing.

Mr. Haughey

Just accept this for the moment.

Mr. McGilligan

I take it that unless the Interpretation Act is specifically mentioned, where there is any repeal, it might not apply. The Interpretation Act does apply, unless the contrary be shown.

An Ceann Comhairle

Amendment No. 2?

Mr. McGilligan

I would like it put.

Amendment put and declared negatived.

Mr. McGilligan

I move amendment No. 3:

In page 5, line 56, to insert "has" before "retired."

I think it should be "has retired" instead of "retired."

Mr. Haughey

I have had this matter examined and the present draft is absolutely correct.

Mr. McGilligan

I wonder who pronounces on that?

Mr. Haughey

I do.

Mr. McGilligan

A legal expert and an English expert. Why "retired" instead of "has retired?" It applies to a person who retires from office before the operative date.

Mr. Haughey

The position is that there are two different periods involved. First of all, we will have the date on which the Act becomes law, the date the Bill is passed. Then we have the period between that and the operative date. "Retired" refers to somebody who retires up to the date the Bill becomes law and then the second part "or retires before the operative date" refers to the period between the Bill becoming law and the operative date. As I said before, it is absolutely correct.

Mr. Dillon

I do not mean to be in any way acrimonious but if the Parliamentary Secretary says that he thinks that this is absolutely correct, then of course his opinion is not worth a bundle of straw. If the Parliamentary Secretary says: "I am advised by the draftsman that that is the correct form," I think he should have respect for Deputy McGilligan's observations. We can get on if we do not get vexed with one another, but we will get stuck if we do.

Mr. Haughey

That is a very nice sentiment but already on these Bills I have explained that I have received advice and consulted the draftsman and was satisfied that the draft was the best, but that is not acceptable. Deputy Dillon would not accept it.

Mr. Dillon

We can argue about it without getting vexed.

Mr. Haughey

If we are to have the objective test of the draftsman, it is one thing, but if Deputy Dillon wants to argue subjectively, I am going to give my point of view.

Mr. McGilligan

This opens up an important point. I am not bound by what the draftsman says. I do not know whether the Parliamentary Secretary has now discovered that the Parliamentary draftsman is not the draftsman to this House. The Parliamentary draftsman is part of the Attorney General's office and he drafts legislation which is coming into this House from the Government side but he has his own point of view. It seems to me to be audacious when I am told this is the thing to do. It might be a good argument but it is something which I will not accept.

How many statutes have we had to amend because it was found the draftsmanship was inadequate and the courts took a completely different view from the intention of the Oireachtas, from what the draftsman intended to ascribe as their wishes? I certainly will not be told that the draftsman says that this is the way to do it. If, on a very technical matter, a very technical point, a confused point or a confusing section, we were told that there are alternatives and this is the one the Parliamentary draftsman thinks is best, I could understand it, but to be told that just because this is what the Parliamentary draftsman has decided, we have to accept it——

Mr. Haughey

I never said anything of the sort. That is typical of the Deputy. He is attributing something to me that I did not say.

Mr. McGilligan

The Parliamentary Secretary should not try to do the bully. That will not work, particularly from a young member of the House.

Mr. Booth

Should we not get back to the amendment?

Mr. McGilligan

I am dealing with the amendment.

An Ceann Comhairle

It is the House decides.

Mr. McGilligan

The House will decide on the amendment put to the House and not on the authorities quoted.

An Ceann Comhairle

The House decides.

Mr. Haughey

I want to make it clear that I never attempted to suggest that just because the draftsman said something, the House must accept it. I was merely replying to Deputy Dillon who put to me what he regarded as a reasonable proposition, namely, that if I say to Deputy McGilligan: "I have consulted the draftsman and he feels this is the best way to do it," the Opposition might accept it. Deputy Dillon put that to me in so many words. I replied to the effect that I consulted the Parliamentary draftsman on this amendment and that he is satisfied this is the best way. Deputy McGilligan then ignores that and proceeds to argue on the merits of the thing. If Deputy McGilligan or any other Deputy does not accept the proposition that I have consulted the draftsman and that he is satisfied that technically this is the best way to do it, and proceeds to argue on its merits, surely I am entitled to give my views on the merits of the situation?

Mr. Dillon

Always provided the Parliamentary Secretary does not get into the position of declaring that is conclusive and ends the matter.

Mr. Haughey

I beg the Deputy's pardon?

Mr. Dillon

Always provided the Parliamentary Secretary does not get into the position of saying that that is final and that it ends the matter.

Mr. Haughey

I never said that.

Mr. Dillon

Certainly there are many occasions upon which it is necessary to divide the House if we cannot reconcile our differences. My personal opinion is that the form of the words suggested is right but if there are arguments against it, the matter should be re-examined and then on the next Stage, if we cannot reconcile our differences we can always divide the House. It is perfectly simple. I do not think anyone on this side wants to coerce the Parliamentary Secretary or the Government to accept anything.

An Ceann Comhairle

This is becoming too general.

Mr. Dillon

I am talking about the drafting of the amendment and I am entitled to debate it.

An Ceann Comhairle

I am not disputing the Deputy's right to make that point. The House ultimately decides on what is before it.

Mr. Dillon

We are discussing how to dispose of Deputy McGilligan's amendment and we are entitled to discuss it. We have to dispose of it. There may be different views on the best form of words. Obviously, there can be two views about it and both sides have been stated. The Parliamentary Secretary advanced his views and Deputy McGilligan gave the other view. I suggest the way to dispose of it is to say that the matter will be examined again.

Mr. Haughey

I have said that I consulted the Parliamentary draftsman. I said that at the start.

Mr. Dillon

Perhaps the Parliamentary Secretary overlooks the fact that after arguements have been made on amendments, some other factors may emerge which require at least to be examined? I have no doubt that the amendment could be withdrawn, put down again on Report Stage and disposed of finally. That is the way to do it, but it is not right, after an amendment has been examined and put down on the Order Paper, simply to say: "I have consulted someone else and he suggests that is the best available."

Mr. Haughey

I never said that.

Mr. Dillon

An argument has been made on this amendment. I suggest that it should be examined and put down again on Report Stage and if the Government adhere to their present view, it can be either withdrawn or defeated on a voice vote or by dividing the House.

Mr. McGilligan

Will you put the amendment, Sir?

Amendment put and declared lost.

Section 3 agreed to.

SECTION 4.

Mr. McGilligan

I move amendment No. 4:

In page 6, line 7, to delete "ordinary."

The section as is stands provides that the number of ordinary judges of the Supreme Court shall be four. I have two amendments down to delete the word "ordinary" and the word "four."

I have already made objection to the distinction between one judge and another. This is a matter of referring to the Chief Justice and four ordinary judges. They are all judges and it should be said that the number of judges of the Supreme Court shall be five. In the fundamental Bill, we set up what is called the Court of Final Appeal, "An Chúirt Uachtarach (the Supreme Court)." Here again we are forgetting what we did in our efforts to sustain the Irish language and simply going back to the good old English and referring to the Supreme Court. I object to this changing backwards and forwards in two pieces of legislation.

My amendments are to delete the word "ordinary" and say that the number of judges shall be five.

Mr. Sherwin

Just for fun, what does the Parliamentary Secretary mean by "ordinary"? It does seem funny. I think myself an ordinary guy but there are others who think themselves extraordinary. Would the Parliamentary Secretary say what is meant by "ordinary"?

Mr. Haughey

I do not want to delay the House unduly by going over the same matters again and again. I have already explained in relation to the No. 1 Bill that this is a matter of drafting technique and a matter of facilitating the construction of the Bill. There are in the Supreme Court five judges, one of whom is the President or Chief Justice and four ordinary judges. From time to time, it is necessary to refer to the Chief Justice as such and at other times, it is necessary to refer to judges other than the Chief Justice, We say therefore that the Supreme Court shall consist of the President or Chief Justice and four ordinary judges. From then on, when we want to distinguish between them, we use the phrase Chief Justice or ordinary judge.

Mr. Sherwin

They are not just different words? I am an ordinary guy. I think I am as good as the fellows who are extraordinary.

Mr. Haughey

You must realise that a Bishop is known as the Ordinary of the diocese and he does not regard it as being derogatory to be so known.

Mr. McGilligan

Good Heavens, the Ordinary of the diocese! Is the Parliamentary Secretary saying that the word "ordinary" as used in relation to the Bishop of the diocese is the same as the word "ordinary" used here?

Mr. Haughey

I do not. The Deputy is attributing to me things I did not say.

Mr. McGilligan

Deputy Sherwin asked the meaning of the word "ordinary" and he has not yet been told it.

Mr. T.F. O'Higgins

This is a drafting device. It is not beyond our capacity in this House to recognise that there are many ways of achieving the same thing in a set of words, some 12 or 14, in this subsection. What we suggest and what Deputy McGilligan suggests in his amendment is that the same object and purpose is achieved by providing that the judges of the Supreme Court shall be known as judges of the Supreme Court, without making a distinction between them, which is strange and may be misunderstood. It is quite unnecessary to distinguish between the Chief Justice and other judges of the Supreme Court by using in relation to the judges the term "ordinary."

Mr. Haughey

Of course it is necessary to distinguish between them.

Mr. T.F. O'Higgins

I said it is quite unnecessary to distinguish between the Chief Justice and the other judges of the Supreme Court by using in relation to the others the term "ordinary." The same purpose is achieved by referring to the other judges as being judges other than the Chief Justice.

Mr. Haughey

That is more cumbersome.

Mr. T.F. O'Higgins

It may be but it is more polite and more usual.

Mr. McGilligan

The phrase "The Chief Justice and other judges" is quite clear and simple.

Mr. Haughey

The whole construction of the Bill is set up along certain lines, the House will agree. Deputies have argued that we must use the phrase in regard to judges in a certain definite connotation because of the Constitution. When we come along to establish the offices, we say the word "judges" which is important in that section, if we are to be fair to the Constitution, includes Chief Justice and everybody else. It is the proper constitutional description. Therefore, the word "judges" as such is no good to us as a phrase to describe the Chief Justice as distinct from the other judges. It must, of necessity, include both.

Mr. Sherwin

Would not the words "chief judge" do?

Mr. T.F. O'Higgins

That is the constitutional position.

Mr. Haughey

The suggestion is now put to me by the Opposition that it is sufficient to use the word "judges" for everybody. The term "judges" must be the one from a constitutional point of view. That is so, but from time to time there are things which will apply to the Chief Justice which will not apply to the others and it is therefore necessary to refer to them in a different context. For that reason, if "judge" is common to the two, it must be common to the two by virtue of the Constitution and we have to distinguish between them in the way we do. When we refer to the Chief Justice and four ordinary judges, what is the objection to it? There is nothing derogatory about it. It is just that the person is an ordinary judge of the Supreme Court, if he is not Chief Justice.

Mr. Sherwin

Could the Parliamentary Secretary describe a T.D. as an ordinary T.D.?

Mr. Haughey

Certainly. I should be delighted to be called an ordinary T.D. A person is either ordinary or extraordinary.

Mr. T.F. O'Higgins

Is it not true that the number of judges in the Supreme Court will be five? Is it not true that there are to be five judges of the Supreme Court?

Mr. Haughey

Nothing is more certain.

Mr. T.F. O'Higgins

We are clear on that. Their position, status, jurisdiction, power and all the rest of it are defined by the court to which they are appointed. They are judges of the Supreme Court—the five of them. Of that number, one is Chief Justice. That is perfectly clear. Each of the others is a judge of the Supreme Court who is not Chief Justice.

Mr. Haughey

The Chief Justice is also a judge.

Mr. T.F. O'Higgins

The intention of the section, as it is at the moment, is to draw a distinction which, to my mind and to the mind of Deputy McGilligan and others, is quite unnecessary.

Mr. Haughey

It is necessary.

Mr. T.F. O'Higgins

Why should it be necessary? Of the five, one is Chief Justice and nobody else. One of those judges is Chief Justice. The others are judges of the Supreme Court but not one of them is Chief Justice. It is perfectly easy, proper, right and mannerly to refer to the other four judges of the Supreme Court as being judges of the Supreme Court other than the Chief Justice, if it is necessary to distinguish between them but here we use a new term, a new adjective— an ordinary judge of the Supreme Court. While we accept that that may be a drafting device, we urge that there are other ways of doing it which are far better and more regular.

Mr. Haughey

Deputy O'Higgins has put the whole thing very well. He put his finger on it when he says that it will be necessary from time to time throughout the Bill to refer to the Chief Justice as doing something and that it is necessary to refer to a judge of the Supreme Court who is not Chief Justice. The simple way of doing that is to speak of an "ordinary judge". Deputy O'Higgins admits that we would have to use some such phrase as "a judge of the Supreme Court other than the Chief Justice". That is a cumbersome phrase. The same effect is achieved very simply by this procedure.

Deputy O'Higgins is quite incorrect in his suggestion that the term "ordinary judge" is new. It is contained in the 1924 Act. There is nothing new about it. It is there, known and recognised as a term.

Mr. T.F. O'Higgins

Where is the reference in the 1924 Act?

Mr. Haughey

I will get the reference in a moment. It is in Section 7 where it says "the Chief Justice may request any ordinary judge or judges of the High Court to sit on the hearing of any appeal in the Supreme Court".

Mr. Dillon

That is not a reference to a judge of the Supreme Court.

Mr. Haughey

It is a reference to the use of the term "ordinary".

Mr. Dillon

The emphasis has been that there can be only five judges. In fact, there are more. The Courts (Establishment and Constitution) Bill says that: "The President of the High Court shall be ex officio an additional judge of the Supreme Court.” Is that not a fact? There are six judges. “The President of the High Court shall be ex officio an additional judge of the Supreme Court.”

Mr. McGilligan

You have the Chief Justice, four ordinary judges and an additional judge.

Mr. Dillon

According to subsection (4) of Section 1 of the Courts (Establishment and Constitution) Bill, any High Court judge may be requested by the Chief Justice to sit on the hearing of any appeal cognisable by the Supreme Court. In fact, there are six judges of the Supreme Court and according to the Bill, there can be as many more if the Chief Justice invites judges of the High Court. I think the Parliamentary Secretary could with advantage consider Deputy Sherwin's reaction. Deputy Sherwin's reaction to this proposal is—why do you call him an ordinary judge?

Mr. Booth

We had all that before.

Mr. T.F. O'Higgins

You are going to have it again.

Mr. Booth

The House has decided that they shall be called ordinary judges.

Mr. McGilligan

The House has decided on another Bill in respect of a particular matter.

Mr. Haughey

Leave it to your leader. He is a much more reasonable man.

Mr. McGilligan

I do not know whether the Parliamentary Secretary has a reasonable substitute. I wish he would send him in.

Mr. Haughey

Deputy McGilligan always succeeds in introducing vitriol into everything.

Mr. Dillon

If Deputy Booth wishes to make a contribution, he can do so without interrupting me. He can get up and say all he has to say. I am directing attention to the action of Deputy Sherwin who asks: "Why do you call them `ordinary judges'?" I think there is a certain importance in that reaction which highlights the case we have made against the employment of this term.

The more the judges can be elevated in the eyes of the people, the more conviction can be brought home to the people that the judges are extraordinary people, far removed from the litigants who come before them, whether they be the Executive or a humble criminal defending his personal liberty. Once they appear before a judge and he is in that extraordinary position that, before him, they are all equal, the more useful the work we in the Legislature do.

Everything we can do to persuade the public that judges are not ordinary people, the better. The idea is that judges, in the discharge of their duty, should not be ordinary people. They should have that extreme detachment which the rest of us find it so difficult to have. Deputy Sherwin's intervention is extremely illuminating. This is an unfortunate turn of phrase. It is carefully avoided elsewhere.

Judges of the Supreme Court in England are called Lords of Appeal. Judges of the Appeal Court are called Lords Justice of Appeal.

Mr. Haughey

What about Scotland?

Mr. Dillon

I do not know.

Mr. Haughey

The Deputy cannot wipe out Scotland just like that.

Mr. Dillon

I do not know.

Mr. Haughey

"Ordinary".

Mr. Dillon

I am not familar with the terminology in the Scottish courts but I do not think——

Mr. Haughey

No doubt, the Deputy will accept my word for it?

Mr. Dillon

I know the Parliamentary Secretary's comment is adequate. They have a long series of strange titles such as Lord Advocate General——

Mr. Haughey

The Deputy will accept my word for it that the judge of the Court of Sessions in Scotland is known as an ordinary——

Mr. Dillon

That would be one of an archaic series of titles with which the Scottish people are familiar. There is force in the point I am urging, in relation to Deputy Sherwin, that the one thing we do not want in the public mind is an ordinary judge. The more extraordinary we can make it, the better it is for the administration of justice. That concept belongs to the battle which has gone on in this House ever since the State was founded.

One always found elements in this House who said, in effect: "All panoply associated with the judiciary should be abolished — wigs, gowns, guards of honour, and so on. They are just ordinary people. They should do their job and have done with it"; but there has always been the prevailing opinion here that that is all a mistake and that the more panoply that surrounds a judge the better for the humblest creature who has to appear before him. I take that view and it is in that general context that one demurs at the adjective "ordinary."

I think it is most illuminating that Deputy Sherwin, who has no professional association with the courts, who looks upon judges as ordinary citizens and is not concerned with the day-to-day life of the courts, instinctively reacts against describing a judge of the Supreme Court as an "ordinary" judge.

Mr. Booth

The reason I intervened was to point out that we have already dealt with the Committee Stage of the Courts (Establishment and Constitution) Bill, 1959, which sets out in Section 1 (2) (b) that the Supreme Court shall be constituted of four ordinary judges. We have had an unduly long discussion on that point already. We cannot upset the Courts (Establishment and Constitution) Bill, 1959, by an amendment of the Courts (Supplemental Provisions) Bill, 1959. I think all the arguments about whether judges should be regarded or styled as "ordinary" have been given and fairly met and that the House has made a decision.

I wanted to see if we could expedite the handling of this Bill. I think we are going back over the same points with a great amount of repetition which is getting us nowhere. I should hope we would try to keep in mind, as we discuss this Bill, the Committee Stage of which we have already disposed——

Mr. Dillon

I sincerely hope so.

Mr. Booth

If we can avoid useless repetition and a lot of irrelevancies, we will do a good day's work.

Mr. T.F. O'Higgins

I can only assume that Deputy Booth, who is anxious to prevent unnecessary repetition, was not in for the debate on the Courts (Establishment and Constitution) Bill, 1959——

Mr. Booth

I was.

Mr. T.F. O'Higgins

Then his recollection is not serving him well because he should remember, in relation to the section to which he refers, Section 3, that the Parliamentary Secretary has undertaken to reconsider the points urged on that section before Report Stage.

Mr. Booth

I was referring to Section 1.

Mr. T.F. O'Higgins

Section 3 refers to ordinary judges.

Mr. Booth

So does Section 1.

Mr. Haughey

In reply to Deputy Sherwin as to the use of the word "ordinary", it is a word which is well known in the context. In this context, it means not I think what Deputy Sherwin would normally regard as ordinary. By definition, it means "by permanent appointment, not temporary or extraordinary." When you speak of an extraordinary appointment, it is an ad hoc temporary appointment whereas “ordinary” means a permanent appointment. It has a further meaning of “immediate or ex officio or not deputed”. So it is absolutely à propos in this context.

Mr. T.F. O'Higgins

Is there another rash of dictionaries in the Fianna Fáil Party?

Mr. Haughey

I did not say a word about a dictionary.

Mr. Sherwin

If someone described me as an ordinary Teachta Dála, I would not mind, though other Deputies might object to being called "ordinary". If I am only ordinary, who is extraordinary?

Mr. Haughey

The Deputy is a permanent Teachta Dála—ordinary.

Mr. Sherwin

Why is there need for the word? I am a Teachta Dála, and that ends it. Then there are Ministers. "The Minister": there is no point in any other designation, is there?

Mr. Dillon

I want to comment on Deputy Booth's intervention. He told us to bear carefully in mind the fact that a discussion had taken place on the Courts (Establishment and Constitution) Bill, 1959, yesterday which, in his judgement, had been exhaustive——

Mr. Booth

And exhausting.

Mr. McGilligan

The Deputy can always resort to a remedy and he does. He can clear out.

Mr. Dillon

——and that we should be bound by the decisions then taken. I am sorry for Deputy Booth's delicate constitution. He does not very often try it by his intervention here. If he found yesterday exhausting, he should take a little exercise or do something in order to strengthen him for his ordeal.

Mr. Booth

The listening was exhausting.

Mr. Dillon

I know. But Section 1 of the Bill, of which we disposed yesterday, enjoined upon us that the Court of Final Appeal which, in pursuance of Article 34 of the Constitution is to be called An Chúirt Uachtarach (The Supreme Court), shall stand established. The Bill we are now discussing, the Courts (Supplemental Provisions) Bill, 1959, is divided into several parts and Section 4 constitutes the first part of Part II. Part II is headed: "Supreme Court, High Court, Chief Justice, President of the High Court, Central Criminal Court, and Court of Criminal Appeal." The very thing we were enjoined to do in the Bill we had before we do not do in this Bill.

Mr. Booth

That is not relevant to the amendment.

Mr. McGilligan

There is a new chairman.

Mr. Dillon

I understood Deputy Booth's argument to be that in as much as we were directed to describe ordinary judges as ordinary judges in accordance with yesterday's Bill, it was not open to further discussion today. Is that not so?

Mr. Booth

No. I did not say it was not open to further discussion but I thought further discussion was useless because we had already discussed it at length.

Mr. Dillon

That is very illuminating. I am pointing out to Deputy Booth, through the Leas-Cheann Comhairle, that he is quite mistaken, because some of the decisions taken yesterday as to the nomenclature to be employed had been disregarded by the Government themselves. We take the view that if nomenclature enjoined upon us yesterday is to be abandoned, it ought to be abandoned deliberately and by intent. The Government take the view that if you put in the trimmings, you can forget all about that.

Mr. Haughey

The Deputy's pronunciation of "nomenclature" has offended Deputy O'Malley.

Mr. Dillon

I will not comment on that because if I did, my comment might be too pungent, even for Deputy O'Malley. However, I do not think the Deputy will take it amiss if I say to him it utterly astonishes me that he is able to pronounce the word.

Mr. McGilligan

If I heard Deputy Booth aright, he said this was an important piece of legislation which it was necessary or desirable to have in force speedily.

Mr. Booth

I did not use the words "in force"; I said it was something we should get through.

Mr. McGilligan

Get through quickly. This piece of legislation is absolutely unnecessary. We have done without it since 1937. There was legislation in draft as far back as 1950 and nobody bothered about it.

Mr. Booth

On a point of order, are we dealing with the amendment or just a stupid argument?

Mr. Haughey

This is his apologia pro vita sua.

Mr. McGilligan

I thought the argument being put forward by Deputy Booth was that this was an important piece of legislation which should be passed speedily. I am merely pointing out we have done without it since 1937. It is not necessary. The courts are getting on all right with the old nomenclature. There is not much change and there is no necessity for any rush. It has lain there, even though it was in draft, for at least 11 years.

On the amendment itself, the last day we did say the Supreme Court was to be constituted of certain judges. Then we made a distinction. There is the Chief Justice, the President, who is to be called Chief Justice under an Irish title; and such number, not less than four, ordinary judges as the Dáil may decide. I had amendments down yesterday against the "ordinary" judges and they were beaten. The fact that they were beaten does not at all destroy the amendment put down now which is to the effect that the number of judges of the Supreme Court shall be five. That is not in any way contrary to what was passed this morning in Section 1. I am avoiding discrimination between the Chief Justice and other judges; I am not describing any of them. I am simply saying the number of judges shall be five. That is what Section 1 determined yesterday; they are all judges, five in number, with the possibility of a judge being brought up ex officio in the person of the President of the High Court. My amendment is quite in order notwithstanding what happened yesterday. Notwithstanding yesterday, we are still entitled to say the number of judges of the Supreme Court shall be five. That is what I am arguing should be done.

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

Mr. McGilligan

I move amendment No. 5:

In page 6, line 8, to delete "four" and substitute "five".

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

Mr. McGilligan

I move amendment No. 6:

In page 6, line 9, to delete "ordinary".

An Leas-Cheann Comhairle

This is cognate with amendment No. 4.

Mr. McGilligan

It refers to a different court.

Mr. Haughey

It is the same principle.

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

An Leas-Cheann Comhairle

Amendment No. 7 is out of order. The Deputy has been so informed.

Mr. T.F. O'Higgins

Is this out of order?

An Leas-Cheann Comhairle

Yes, being a potential charge on State funds.

Mr. T.F. O'Higgins

I wonder is that the one that was ruled out of order. It seems strange that it should be.

An Leas-Cheann Comhairle

As the Deputy was informed, under the Bill as drafted, it is permissible to have less than the number of judges. If the Deputies' amendment were carried, it would mean an extra charge on the Central Fund.

Mr. T.F. O'Higgins

I shall say what I have to say on the section.

Amendment No. 7 not moved.

Mr. McGilligan

I move amendment No. 8:

In page 6, line 10, to delete "six" and substitute "seven".

Mr. T.F. O'Higgins

I suppose that is the same?

An Leas-Cheann Comhairle

It is related to amendment No. 6.

Mr. McGilligan

No. My amendment is to have the number of judges seven and there are to be seven in the courts.

Mr. Haughey

It is the same principle as is involved in the amendment in relation to the Supreme Court.

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

Question proposed: "That Section 4 stand part of the Bill."

Mr. T.F. O'Higgins

I want to point out to the Parliamentary Secretary and the House that there is in this section quite a wrong distinction drawn between the judges of the Supreme Court and the judges of the High Court. We are providing in subsection (1) that the number of ordinary judges of the Supreme Court shall be four. In subsection (2), we provide that the number of ordinary judges of the High Court shall be not more than six. That means that the High Court can be depopulated of judges as a result of vacancies occurring and these vacancies not being filled. We did have that situation obtaining in the courts not so long ago and it led to quite a considerable dislocation so far as litigants, persons desiring to have their cases heard, were concerned.

As I understand the staffing of the courts and the number of judges felt to be adequate and proper, all that has been carefully considered in relation to the volume of business and so on. If it is, as it is, the view that there should be five judges in the Supreme Court and a High Court Bench of seven judges—six ordinary judges and the President—in my view, the section should provide that that will be the norm. One should not permit a situation to arise where one authority of the State, or persons with no particular knowledge, may succeed in having a decision adopted not to fill a particular vacancy. It is undesirable and I feel the section as it stands should be reconsidered by the Parliamentary Secretary in order to provide the same basis for both the Supreme Court and the High Court.

When vacancies occur, they should be filled. The courts should be facilitated and enabled by the prompt filling of vacancies to function normally. I should like to point out that particularly in the High Court, the division and distribution of business, which is the responsibility of the President of the High Court, is done in the knowledge, first, of the volume of business available and, second, in relation to the cadre of judges, which is a total of seven. If, in fact, one of these judges retires or dies, then there is a gap and somebody has to fill in. The filling in means that for a period there is a dis-organisation in the way business is done, a dislocation and so on.

If, in those circumstances, the President of the High Court were told that permanently the number of judges available to him would be a reduced number, presumably he could devise some new plan for the organisation and distribution of business. There is nothing worse than a vacancy continuing to exist with nobody knowing when and how it is to be filled. Certainly the business of the courts is not facilitated if that situation is allowed to continue.

Mr. Sherwin

I want to make only this comment. I am a layman, but I hear the views of the public. I am most dissatisfied at the long delays there are in the courts. Vacancies should not be allowed to cause delays and hold decisions in abeyance. I know of one case where a person who was anxious to have a case come to court had to wait seven or eight months. It was appealed and he was told that that might take another nine months. The public want to see the business done. They do not want vacancies and delays. There is too much delay in the courts.

Mr. Haughey

There is a very great difference between the Supreme Court and the High Court in this regard. The essential difference is that the Supreme Court sit as a composite court—they sit together. For that reason, we decide differently the constitution of the Supreme Court. It is the aim and desire of the Government, as I think it is of the majority of the House, that the Supreme Court should always sit with five, if at all possible. We do give discretion to the Chief Justice to have courts of three. But, generally speaking, we want a composite court of five sitting together. Therefore, we stipulate that the Supreme Court shall consist of five judges.

A really different set of circumstances operates in regard to the High Court. There you have different judges sitting separately. Each judge sits and conducts his business as an individual judge as a general rule. From that point of view, therefore, it is wrong to suggest that the same provisions should apply to both. In the High Court, we try to provide by law from time to time what number of judges are adequate to deal with the business coming before it. In present circumstances, the decision is that the number should be seven. It is possible that from time to time there may be a falling off in the volume of litigation and that six, or even five, might do. It would then be open to the Government simply not to appoint a judge. But if we stipulate that there shall be a fixed number, then the Government have no option but to keep the High Court up to that number, even though that full number might not be required.

On the whole, I think it is much better to leave the section as it is and merely state that there shall not be more than six ordinary judges, that is, a court of seven, including the President. Then, so long as the volume of business requires seven judges to deal with it, the figure will remain at that, but it will be open to the Government, if the volume falls off, to reduce the number of judges, without further legislation. But if the situation envisaged by Deputy Sherwin arose, where the volume of business was such that seven judges were unable to deal with it, then it would be necessary to increase the number by legislation. The way we are proceeding in this Bill leaves it open to the Government to achieve an economy if it offers, without having recourse to further legislation.

Mr. McGilligan

This section ought not to be let go without somebody answering Deputy Sherwin on the particular matter to which he made reference.

Mr. Haughey

It is a pity Deputy McGilligan is not over here.

Mr. McGilligan

The Parliamentary Secretary's anxieties may be relieved quite soon.

Mr. Haughey

Ah, no.

Mr. McGilligan

Deputy Sherwin asked a question about the business in the courts and about delays. I do not think it is proper to let that go without some countering observation. I do not know that there is any tremendous hold-up of the business in the courts at the moment, or at least any that cannot be explained by very special circumstances. There was considerable delay many years ago——

Mr. Haughey

It is not a patch on the delaying in this House.

Mr. T.F. O'Higgins

If more time had been taken about the legislation in this House, you would not have delay in the courts now.

Mr. McGilligan

The judges are fairly reasonable and they do not annoy counsel appearing before them.

Deputy Sherwin talked about the delay and congestion in the courts. That was the case some years ago. I understood the back-log of arrears had been cleared off but then an unfortunate circumstance happened. That was a very notable criminal trial which has occupied a very big number of judges over a very long time and is not yet settled. It took a whole term in the Court of Criminal Appeal, with one judge of the Supreme Court and two judges of the High Court, who had to devote their whole attention to this one case over an entire term. It is not to be expected that that type of case will occur often or will, even if that type of alleged criminality goes on, take so long to examine. If there is any congestion at the moment, it is due entirely to a completely exceptional matter not likely to recur.

Mr. T.F. O'Higgins

I think I should say, the Parliamentary Secretary having said what he did, that I appreciate his point of view and that I am satisfied in relation to subsection (2).

Question put and agreed to.

SECTION 5.

Mr. McGilligan

I move amendment No. 9:

In subsection (1) (c), page 6, lines 23 and 27, to delete "an ordinary" where those words occur and substitute "a".

An Leas-Cheann Comhairle

This amendment seems to be cognate with No. 4?

Mr. McGilligan

It is somewhat different. I was there trying to get rid of the word "ordinary" and just leave the word "judges". Here, I say that, if you get rid of the word "ordinary", you would have to say "a judge". It is the same argument in principle for amendments Nos. 9, 10 and 13.

An Leas-Cheann Comhairle

Is it withdrawn?

Mr. McGilligan

No.

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

Amendment No. 10 not moved.

An Leas-Cheann Comhairle

Would Deputy O'Higgins agree that amendments Nos. 42 and 56 might be discussed with No. 11? Separate decisions will, of course, be required.

Mr. Haughey

Let us take them separately.

An Leas-Cheann Comhairle

Very well.

Mr. T.F. O'Higgins

I move amendment No. 11:

In subsection (2) (a), line 48, after "Court" to add "or as Chief Justice or President of the High Court".

Subsection (2) (a) sets out the qualification for appointment as a judge of the Supreme Court or the High Court as being 12 years standing at the Bar. It appears to me—I may be wrong in this—that, as the subsection stands, since there has been care to distinguish up to this in the Bill between the Chief Justice and the President of the High Court and ordinary judges of the Supreme and High Court, it may be questioned whether the qualification in subsection (2) (a) applies to the Chief Justice or to the President of the High Court. The purpose of the amendment is to make it clear that it does so apply. That qualification should be expressly inserted not only in relation to ordinary judges but also in relation to presidents.

Mr. Haughey

I hope to set the Deputy's mind at rest on that. There is no question that it does apply. The amendment is not necessary. The No. 1 Bill makes it quite clear that the term "judge" covers, in the case of the Supreme Court, both the Chief Justice and the ordinary judges, and, in the case of the High Court, the President of the High Court and the ordinary judges. That is quite clear from the terms of the No. 1 Bill.

Mr. T.F. O'Higgins

Where does the Parliamentary Secretary get that in the No. 1 Bill? I can see that judicial office comes in all right.

Mr. Haughey

Take subsection (2) of Section 1: "the Supreme Court shall be constituted of the following judges ... the President thereof, namely, An Priomh Breithimh." It is crystal clear from that.

Mr. McGilligan

It is anything but crystal clear.

Mr. Haughey

It is crystal clear from that that a judge of the Supreme Court includes the Chief Justice and other judges. The same applies in the case of the High Court under subsection (2) of Section 2.

Mr. T.F. O'Higgins

Could I get the intention clearly? I take it it would not be the intention, judging by what the Parliamentary Secretary has said, and neither would it be desirable, that the law should be such that the Chief Justice could be appointed only from the existing number of judges of the Supreme Court or that the President of the High Court could be appointed only from the existing number of judges of that Court. That would not be desirable. It has certainly not been the position up to this. It may be the usual thing to appoint as Chief Justice a person who had been President of the High Court, and so on, but it would obviously not be desirable that the law should restrict appointment to these two important judicial offices. With that in mind I examined the subsection with particular care and I found the omission in relation to the Chief Justice and the President of the High Court which I have mentioned.

The Parliamentary Secretary referred to subsection (2) of the first Bill which defines the Supreme Court as being constituted of the following judges: the President thereof, namely the Chief Justice, and such number not being less than four ordinary judges, and so on. Then there is the provision that the President of the High Court shall be an ex officio judge of the Supreme Court. From a strict interpretation point of view I wonder if that is satisfactory. There is a distinction drawn there between ordinary judges—we are discussing the Supreme Court now—and the President of the Court. The same distinction is carried later in relation to the High Court. I am not happy that the subsection as it stands is clear and will include not only ordinary judges but these two particularly designated judges of each court.

Mr. Haughey

I suppose it would be as well if I made clear that it is the intention of the Government that a person who is, for the time being, a practising barrister of not less than 12 years standing should be qualified for appointment as Chief Justice or an ordinary judge of the Supreme Court or as President of the High Court or an ordinary judge of that Court. That is the clear intention of the Government. I am quite happy—I have had the matter examined carefully—that what I say is the correct position ; the intention of the Government is given full effect to in Section 4 of the Supplemental Provisions Bill because the provisions of the No. 1 Bill, the Establishment Bill, are quite clear. A judge of the Supreme Court includes both the President and the ordinary members. It is absolutely clear in the context that a judge of the Supreme Court includes the President, who is the Chief Justice, and the ordinary judges. The same position applies with regard to the High Court.

Mr. Sherwin

There is one interesting little point there. The qualification is a person who, for the time being, is a practising barrister. That would mean that, through he may not have practised, or only commenced to practise, he will be eligible for all these high positions.

Mr. Haughey

Of not less than 12 years standing.

Mr. Sherwin

What is the meaning of the word "practising?"

Mr. Haughey

The phrase is well known to mean a person with 12 years practice at the bar.

Mr. McGilligan

Oh, no.

Mr. Sherwin

Is the Parliamentary Secretary sure? It says "for the time being". If he is practising, does that not suffice?

Mr. McGilligan

I thought this was a change designed to bring that about. The old rule was that "standing" meant one counted from call. "Standing" would be a person called to the bar for 12 years and, if he were practising for a particular time, that would suffice. I thought this was making a change.

Mr. Haughey

That is the position.

Mr. McGilligan

If you get a person who was in practice for six months before he is offered an appointment, but who had 12 years standing at the Bar—namely, called more than 12 years before that—does that qualify him? That is certainly the situation.

Mr. Haughey

That is so.

Mr. McGilligan

Then Deputy Sherwin ought to be advised on it. It does not mean a person has 12 years practice. He might be 12 years called but only six months practising.

Mr. Sherwin

That is not desirable. The question of patronage can come in there. Some person who had not practised could be made a High Court Judge.

Mr. Haughey

I admit the section is open to the strict interpretation.

Mr. T.F. O'Higgins

Could some other form of words be found?

Mr. Haughey

This is a legal matter, as Deputies know. It is a matter of appointment to the judiciary. This phrase has a certain traditional connotation. I would not like to define it more closely than that.

Mr. T.F. O'Higgins

The Parliamentary Secretary should have a look at it. We know of two instances, one rather remote in point of time, and another perhaps more recent. In relation to each instance there was considerable concern that an appointment should be made where in fact the person appointed possibly might not have had—I am not saying did not show it later—but possibly might not have had the experience and knowledge gained from practice.

Certainly, I should imagine that everybody on both sides of the House would regard it as very wrong indeed if a person were appointed to a high judicial office who had only a few weeks or a few months practising experience at the Bar. It certainly would be wrong. While the Parliamentary Secretary is correct in saying that, strictly speaking, under the form of words here used that might happen, it should not be beyond the wit and genius of the draftsman to find a form of words which would ensure that that will not happen because, obviously, it should not.

Mr. Haughey

I do not like to interfere with the settled form of words here and, as I say, words which have a certain traditional connotation. This is exactly the same concept as is enshrined in the 1924 Courts of Justice Act and I would be loath to interfere with them.

Mr. T.F. O'Higgins

In the 1924 Act are there the words "for the time being"?

Mr. Haughey

The section reads:

No person shall be appointed a judge of the High Court or the Suppreme Court who is not at the date of his appointment a practising barrister of 12 years standing at least.

Mr. T.F. O'Higgins

Does not this make a change?

Mr. McGilligan

What section is this?

Mr. Haughey

Section 16 of the Courts of Justice Act, 1924. We must be realistic about this. We are dealing here with a Government advising on the appointment of judges of the High Court and the Supreme Court. We must assume that they will act responsibly in the matter.

Mr. McGilligan

We do not want to bring examples but there is an example, clear to anybody in practice at the moment, of a person who was appointed, not having practised, and who was a journalist for the greater part of his years. There was no great responsibility shown in that appointment.

Mr. Sherwin

Could a man who had not practised, who had forgotten all he learned, a greenhorn, start to practise and then be appointed?

Mr. Haughey

If Deputy McGilligan wants to enter into a discussion on Government responsibility and irresponsibility, I am prepared to do so. He should be the last man in this House to embark on or initiate such a discussion. I will just say in reply that this phrase is well known and well recognised and the general inference in the phrase is that the barrister should have practised for 12 years at the Bar. It might happen that a barrister who had practised for 12 years at the Bar, who was a very busy and very experienced barrister, had been sick for a year out of those 12 years and if we were to attempt to delineate the thing to any degree of exactitude, we would get into that sort of difficulty.

Mr. Sherwin

In law, "the time being" means five minutes.

Mr. Haughey

As this is an exercise of a very important function by a Government, I am prepared, at any rate, to leave it as it is and to expect and assume that Governments will act responsibly in the matter.

Mr. McGilligan

That is the phrase I object to.

Mr. Haughey

I know the Deputy objects to responsibility of any shape or form.

Mr. McGilligan

The Courts of Justice Act, 1924 laid down that nobody was to be appointed a justice of the district court who was not a practising barrister of six years standing. A person was appointed who had no practice, was not in practice, who was a journalist and he is now a district justice.

Mr. Haughey

This section is dealing with the Supreme Court and the High Court.

Mr. McGilligan

It is the same phrase—so many years standing. I do want to say that, apart from that individual who has been a not very remote appointment, Deputy O'Higgins was talking of a very remote appointment. It was in his case that I understood that the courts gave an interpretation of the type I have mentioned, namely, if a person is in practice at a particular moment and has been called 12 years, that counts. There was a person who was known in the Library many years ago as the banshee because he never came to the Library except when there had been a vacation of judicial office by a death and he appeared to be in practice, put himself in practice. He had the standing in the sense that he was called for many years. He eventually succeeded to a judgeship and an effort was made to say he was disqualified and it did not succeed.

Mr. Haughey

There is hope for myself yet, so.

Mr. McGilligan

That great translation might have an effect on that and, certainly, this side of the House would promise the Parliamentary Secretary great support. The phrase is there. I thought the introduction of the words Deputy Sherwin had lit on "for the time being" had made some difference but apparently it does not. Section 16 says:

a person who is not at the date of his appointment a practising barrister of 12 years standing.

There may be some difference. I have not compared the phrases but, certainly, at a time when the qualification was being a practising barrister and having so many years standing, a person fitted in under that and was sanctioned by the court because he had been called longer than the period and he was in practice at the particular moment and the appointment was operative.

If it is not intended, then this phrase ought to be changed but there will be difficulty in changing the phrase. If the phrase is "in active practice" or "in practice for so many years", then you might have the case where a person had, say, through influenza or a couple of bouts of influenza, lost a year. It would be quite wrong to have that person disqualified on account of health. At the same time the phrase as it is at the moment does not require any real practice. It means that the date of call shall give a person standing and if a person shows himself in the Library so as to be available to get briefs he is in practice no matter what work he has done.

Mr. Sherwin

It leaves the whole thing open to abuse at any time, may be not now but in the future.

Mr. Haughey

You must realise that these are Government appointments.

Mr. T.F. O'Higgins

A Government might abuse it, the day they were going out of office.

Mr. Haughey

You may look forward to a long regime of Fianna Fáil. I would imagine 20 years.

Mr. Sherwin

We are not supposed to think in terms of Fianna Fáil. We should think in terms of time.

Mr. McGilligan

Remember, in the 20 years that Fianna Fáil may have they could do more of the appointments to which I have referred— wrong appointments—a person who was a journalist given a justiciary. It was done.

Amendment, by leave, withdrawn.

Mr. T.F. O'Higgins

I move amendment No. 12:

To delete subsection (2) (b).

I should like to hear the Parliamentary Secretary on this amendment. I hope anything I say will not be misunderstood. Certainly, it is not intended to refer to two exceptional cases. The fact that they were exceptional cases does not interfere with the principle I have in mind. Certainly in the past 25 years there were two particularly outstanding men who adorned not only the Circuit Court but subsequently other courts, but that is apart from the principle I have in mind. It is a principle which we should adopt, that there should not be from court to court a procedure facilitating judicial promotion. In my view when a judge is appointed as a judge of the Circuit Court he should be facilitated to operate, realising that that is going to be his court for as long as he continues to be a judge. I do not think it is desirable that we should facilitate an elevation or a promotion from the Circuit Court to the High Court.

I am well aware that, in the instances in which it has occured in the past, the two persons concerned were exceptional judges and the promotions were very satisfactory, but the appointments of these two men initially to the Circuit Court bench was done at a formative period in the life of the State. Perhaps under ordinary and more normal circumstances their initial appointment would have been to the courts to which they were eventually appointed. I do not like the idea of judicial promotion and it is for that purpose that I suggest subsection (2) (b) as it stands is a means of facilitating a Circuit Court judge's appointment to the High Court. He can be appointed a Circuit Court judge if he has ten years standing at the Bar on the terms we have already discussed. He can be appointed a High Court judge only if he has 12 years' standing. The purpose of subsection (2) (b) is to deem his service as a Circuit Court judge sufficient to fill up the two years he may require. That facilitates promotion and I do not like it.

Mr. Haughey

The manner in which Deputy O'Higgins argues against himself supplies me with the justification for the retention of this subsection (2) (b). It is true that there is an undesirable content in the idea of promotion of the judiciary but, after all, we are dealing with the higher echelon of the judiciary and we have recognised and accepted promotion from the High Court to the Supreme Court.

Mr. T.F. O'Higgins

That is different.

Mr. Haughey

It is a very valuable thing and something nobody would complain about. All that is involved here is the idea of taking a Circuit Court judge and putting him into the High Court. Deputy O'Higgins admits there were two particularly outstanding successful instances of that sort of promotion. That in itself is the very justification for what we are doing. Such promotions have not been made for a long time and might very well be regarded as a dead letter. On the other hand, we should envisage the situation arising where some particularly outstanding judge in the Circuit Court would be ideally suited for a vacancy in the High Court. In such a case, the Government should not be debarred from selecting that judge and putting him into the High Court.

This type of promotion has not been made for a long time, as I say, and it is not likely to be made in future. Indeed, the proposition generally accepted by most Governments of this country would be that such promotions should be very rarely made. On the other hand, I do not think we should legislate that it should not be possible at all in any circumstances. We should leave the door just that little bit open. In this regard we must have some regard to tradition. Admittedly we have a written Constitution but tradition and precedent will also, more and more, play an important part in our institutional affairs. There is the tradition that such promotion would not lightly be made, and that is the best way to leave it. Leave the door open and in a case, such as Deputy O'Higgins mentioned, of a particular individual being available for promotion to the High Court, the door would be open that little bit.

Amendment, by leave, withdrawn.

Amendment No. 13 not moved.

Question proposed: "That Section 5 stand part of the Bill."

Mr. McGilligan

On the section, I want to refer to subsection (1) (c) and (d), the text of both of which are very much the same and refer to people who are judges who shall be qualified for appointment as "an ordinary judge." It continues on to say that no other person shall be qualified for appointment as "an ordinary judge." The phrase used is "ordinary judge." They are not ordinary judges. I presume they will be appointed judges. Is that the case? It is the case?

Mr. Haughey

I do not follow the exact point the Deputy is making.

Mr. McGilligan

They are being appointed as judges and not as ordinary judges I presume. It says that they are to be qualified for appointment as an ordinary judge.

Mr. Haughey

That is the practice. That is what is intended. We want to make it clear that as long as any one of the existing judges is prepared to accept office nobody else will be qualified for appointment. That is all that is involved.

Mr. McGilligan

How will a judge who is not a Chief Justice be styled?

Mr. Haughey

A judge.

Mr. McGilligan

That is what I want, not an "ordinary judge."

Question put and agreed to.

SECTION 6.

Mr. McGilligan

I move amendment No. 14:

To delete subsection (2).

I have amendments 14 and 15 down but I have been told that amendment 15 is out of order on the ground that it could possibly increase charges on the State. There is that remote possibility that it might involve a charge. I have protected myself by moving to delete subsection (2). On that, judges once appointed, subsequent to the provision about retiring, are protected in their office. If it comes to dismissal they can be dismissed for stated misbehaviour or stated incapacity and a judge may vacate his office by sending in a letter of resignation. There are special pension terms arranged in such circumstances. If a judge retires through infirmity, not having five years service, he gets no pension. The position is that if a judge serves five years or more and then goes out, vacates his office on the grounds of infirmity, he gets a pension. The distinction is that if he is dismissed—and there are only two reasons for dismissing a judge, misbehaviour or incapacity— he should go without a pension, and if he becomes infirm and resigns after five years service or more, he should get a pension.

It is proposed here to give exceptional treatment to a judge who is dismissed or removed from office. If he is removed from office on the grounds of incapacity, he is deemed to have vacated his office owing to permanent infirmity. I do not think a person dismissed because of incapacity or stated misconduct should get a pension. If he is dismissed for either misbehaviour or infirmity, he should get no pension. If he is dismissed on the grounds of incapacity, it should have the same effect as if he were dismissed on the grounds of misbehaviour.

I am confining myself to the amendment, which, if accepted, would leave the position as it was before. If a judge is dismissed from judicial office, and if the Dáil joins with the Seanad in saying that a person has been guilty of misbehaviour or incapacity and dismisses that person, I do not think he should be given a pension. In a case of real infirmity or incapacity, he has the option that he can vacate his office by resigning, but I do not think he should be paid a pension if he just will not resign, even if he is completely infirm and incapable. If he is suffering from complete incapacity and will not send in a letter of resignation, we should say: "Out you go," and he should get no pension.

Mr. Dillon

May I seek clarification? Does the word "incapacity" envisage a judge who is mentally unstable and incapable of tendering a valid resignation?

Mr. Haughey

That is the whole point.

Mr. Dillon

If that is the interpretation, then it seems to me there are grounds for the proposal in the Bill. I agree with Deputy McGilligan one hundred per cent. with regard to individuals who have to be dealth with by the Oireachtas, and we have to move their dismissal because of stated misconduct. Such a case has never arisen and we hope it never will arise but if that sanction is invoked by the Oireachtas, it should be of the utmost severity with regard to his emoluments and pension.

If there is a judge—and I think this has happened in the past—who is incapable, or on the threshold of incapacity, and cannot tender a valid resignation, and there is no other means open to him, I think the proposal in those circumstances is fair and valid. We should remove him but we should not be prejudiced by the fact that he has become incapable validly to resign on the grounds of incapacity.

Mr. Haughey

That is exactly the point. First of all let me point out that this provision has applied to district justices since 1946, and we are now merely extending it to the Supreme Court and the High Court. The idea behind the proposal is to deal with exactly the sort of case the Leader of the Opposition has mentioned.

There could be the case of infirmity of the nature instanced by Deputy Dillon, insanity. There could also be a case of paralysis or some other form of infirmity by reason of which the judge was physically incapable of resigning. The only alternative is for the Oireachtas to move for his removal on the ground of incapacity. In those circumstances, it would be completely unfair to deprive him of his pension rights. The provision is intended to deal purely with that situation.

Mr. Dillon

Would it not be better in those circumstances to insert the word "physical" before "incapacity"? It would seem to me to indicate clearly that we were concerned with that category of people who were incapable of resigning validly. I apprehend that the word "incapacity" without qualification could in extreme circumstances justify the Executive in approaching the Oireachtas where it had a dominant position and saying: "The judgements of the judge suggest incapacity and the judgements are so outrageous that we are asking the House to remove him on the ground of incapacity." The Oireachtas might not understand that that does not deprive him of his pension or emoluments. I think the Government of the day should be called upon to justify before the Oireachtas, when they seek to remove a judge for misconduct, whether by reason of aberration or evil intent their resolution to remove him with all the sanctions that are employed, so that the Oireachtas would be brought smack up against the proposition they are called on to pass involving onerous strictures on a judicial person.

I think there would be unanimous agreement on the proposition that we should retain in our hands the power to remove a judge suffering from physical incapacity, if he is not able validly to resign. I should like the Parliamentary Secretary to look into that and see if some clarifying word could be introduced to give a more precise significance to the word "incapacity".

Mr. Haughey

Yes. I shall be glad to do that, though I must say the Constitution merely speaks of "incapacity".

Mr. McGilligan

What does? The Constitution speaks of "misbehaviour and incapacity".

Mr. Haughey

I shall certainly have the matter looked into.

Mr. McGilligan

There is reference to that matter in the Courts of Justice Act, 1936, with regard to district justices. May I follow what Deputy Dillon has said? As the section stands at the moment, it means that a judge removed on the grounds of incapacity shall be deemed to have vacated his office owing to permanent infirmity. That applies to such incapacity as brings a resolution for his removal before the Dáil and Seanad, if a judge is incapable, and if he is not able to resign because he has reached such a state of infirmity of body or mind that he cannot send in his resignation and puts us to the trouble of dismissing him.

As the section stands, it can apply to another judge who, in the extreme conditions the Parliamentary Secretary talks about, is incapable of performing his duties. I want to ask the Parliamentary Secretary this question: supposing the section or the subsection were not there and a case occurred of a judge who became so mentally and physically incapable that he could not pen a letter of resignation, is there anything to prevent the Dáil voting him a pension? I do not think there is. If a resolution for his dismissal has been brought in on the grounds of incapacity, there could then be another resolution giving him a pension.

Mr. Haughey

Certainly.

Mr. McGilligan

Surely the possibility of this is so remote that we ought not to open wide the doors to give pensions to people who are in some way infirm but not so infirm as to be in the extreme position the Parliamentary Secretary talked about?

Reference was made to the district court. In connection with the district court the position was that a district justice, removed on account of mental or physical incapacity, was deemed for the purpose of pension to have vacated his office, owing to permanent infirmity. Let us not forget the circumstances in which that occurred. The first situation with regard to the district justices was that they had no permanent status whatever. They were not given, like judges of the Circuit Court, the status of judges of the Supreme Court and the High Court in regard to removal from office on account of misbehaviour.

A tribunal was established consisting of the Chief Justice, the President of the High Court and the Attorney General. Those three—originally it was two—had the control of the district justices. It was then thought that they were rather weakly safeguarded and it was thought that it was better to have the provision that if a justice under those circumstances was dismissed he should be deemed to have vacated his office owing to infirmity. Those were entirely different circumstances.

A later Act gave district justices the status of High Court and Supreme Court Judges in this regard but the corresponding matter to this occurred at a time when the district justices were under the control of a committee of three. In any event the district justice is in an entirely different position.

I suggest it is not proper to leave this in its present form. Either incapacity should be defined as being incapacity of the extreme type talked about or, alternatively, drop the subsection with the understanding that if a person gets so ill that he cannot send in a letter of resignation the question of a pension would be considered. In that case the person would not really be dismissed at all.

Mr. Sherwin

The subsection says:

(2) Where a judge of the Supreme Court or High Court is removed from office on account of incapacity, he shall be deemed for the purpose of pension to have vacated his office owing to permanent infirmity.

Suppose a judge became a "drunk", is he entitled to a pension if he is removed from office because of his incapacity?

Mr. McGilligan

Ordinarily, he is not.

Mr. Haughey

The analysis of the situation with regard to district justices is not quite right. The district justices got this right in the Courts of Justice (District Court) Act, 1946. It was in that same Act that they got the same tenure as judges of the Supreme Court and the High Court, so that at the time of giving them the status the Act also gave them this provision.

Let us look at it in this way. A judge is either incapable or he is not. Either he suffers from incapacity or he does not. If he is incapable, then he is removed from office and if he is not incapable, he is not. I do not think there can be any question of defining degrees of incapacity.

Mr. Sherwin

A man could be an habitual drunkard. The case of a drunken judge is not unknown. Suppose a judge could not carry out his business and he is removed from office, is he entitled to a pension?

Mr. Haughey

If his alcoholism reaches the stage where he was mentally incapacitated, it would be for this House to decide whether he should be removed from office on the grounds of incapacity. Neither I nor the Deputy can decide that now. The House will decide it in any particular case.

Mr. McGilligan

Such a judge would be removed from office for misbehaviour.

Mr. Haughey

Who would suggest it is misbehaviour?

Mr. McGilligan

Drunkenness on the Bench is certainly misbehaviour.

Mr. Haughey

Deputy McGilligan's suggestion now is that we should remove the subsection altogether. A man is or is not incapable. I find it very difficult to visualise a situation in which a person would become so incapable that he would not be prepared to protect his personal rights. I do not want that situation to arise. We are providing here the conditions and the circumstances of the tenure of judges. This is a further provision in that regard and we want to write that into an Act of Parliament. If a judge is to be removed for incapacity —and it is impossible to visualise the sort of incapacity which would be the judge's own fault—we want to ensure that in such circumstances the law would provide that his pension would be safeguarded.

Deputy McGilligan says that when such a case came before the House, the House would award the judge a pension. It would require legislation to do so. Is it not far simpler to make provision in this piece of legislation so that the matter would be looked after for evermore?

Mr. McGilligan

The fact that legislation would have to be brought in would be a minor matter having regard to the rare occasion on which a judge would have to be dismissed for incapacity of such a nature that he was not able to sign a letter of resignation. That is a very exceptional case. This opens the door wide to giving a pension to a judge who is incapable but who will not resign on account of his health and he forces this House and the Seanad to take action against him. I think that man should be provided for.

Let us take the circumstances of a man who is gone so bad that he cannot even write a letter of resignation. Since the State was established there was a Resolution tabled once in regard to a judge. It was not preserved in because the judge resigned. He was reluctant up to that particular point. A Resolution appeared on the Order Paper in this House but was never gone on with. The occasion did not arise.

With regard to incapacity, the Courts of Justice (District Court) Act, 1946, refers to incapacity in a certain way. The two reasons for removing a judge are either stated misbehaviour or incapacity. In capacity is not defined. A person can get so drunk as to be incapable. A person could still be drunk and pull himself together again, so to speak, for the occasion of a sitting of a court. I think that is misbehaviour and I would argue that in this House if the matter came up.

As far as the district court is concerned, the matter has been defined by law. Under Section 21 of the Courts of Justice (District Court) Act, 1946, there is power for the Minister to request the Chief Justice to investigate certain conditions in regard to a district justice—"either to investigate the condition of health, either physical or mental, of a justice or (b)"—and this swings over to the misbehaviour—"to enquire into the conduct (whether in the execution of his office or otherwise) of a justice, either generally or on a particular occasion".

As far as the district justice is concerned, that will cover the case of a person who indulges so much as to be a chronic drunk. I cannot consider that to be on the grounds of incapacity. Certainly, it has relation to health, either physical or mental. It seems to me that where a person who goes round notoriously drunk on every occasion and pulling himself together for a case it is misbehaviour. I do not think there would be much difficulty in getting the House to agree to that. I think this is too wide as it stands. The alternative is to drop it or else to determine or define the incapacity to meet the extreme circumstances of a person so incapable by reason of mental or bodily infirmity that he is unable to consider the question of his resignation. Then it would be all right.

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

An Ceann Comhairle

Amendment No. 15 is out of order.

Question: "That Section 6 stand part of the Bill" put and declared carried.

SECTION 7.

Mr. McGilligan

I move amendment No. 16:

In subsection (2) (a) and (b), page 7, lines 17, 21 and 22, to delete "or capable of being exercised by" where those words occur.

I am putting this down again for the purpose of inquiry. Several times in this legislation there occurs the phrase in respect of jurisdiction, either a jurisdiction which was vested in some court or capable of being exercised by it. I just want to know what is the necessity at this stage of our proceedings for talking about jurisdiction which is capable of being exercised if it is not already vested in the Court. Is any area of ground really covered by the retention of the phrase "capable of being exercised by"? One agrees on handing over jurisdiction that is already vested in some court but are there arms waving around to grasp some jurisdiction not vested in but "capable of being exercised by?" What does it cover?

Mr. Haughey

The phrase is taken from Section 18 of the 1924 Act:

. . . , there shall be transferred to the Supreme Court the jurisdiction which at the commencement of this Act was vested in or capable of being exercised by the existing Court of Appeal of the Supreme Court of Judicature in Ireland or any judges or judge thereof.

An Ceann Comhairle

May I intervene? Amendments Nos. 16, 22, 31 and 35 seem to be——

Mr. McGilligan

Yes. They are all treating of this one phrase. I saw the phrase several times.

An Ceann Comhairle

They may be discussed together?

Mr. McGilligan

Yes.

Mr. Haughey

The draftsman has been consulted and feels that the wording as it stands is in order. He would not want to disturb the existing wording. My position was that I wanted to hear if Deputy McGilligan had some particular argument to advance in favour of their deletion and then, in view of that argument, I would have been prepared to consult again with the draftsman. As I understand the position now, Deputy McGilligan does not advance any particular argument.

Mr. McGilligan

Only this. It is quite easy to think of, say, 1924 when four new Courts were being established: then, one thought in terms of jurisdiction. Then, one went back to the Court of Appeal for Ireland and said: "such jurisdiction as was vested in a Court and capable of being exercised by." One could think of matters that were vested in the Court and other matters not vested in the Court but capable of being exercised by it. That is all right in 1924. We are now in the year 1961 and we are again speaking of jurisdiction that was vested in the Court or capable of being exercised by it.

I would have thought that by this time we would have the ground well enough surveyed to realise whether there was anything of value in this phrase "capable of being exercised by." Is it possible that since 1924 up to the present date there were jurisdictions that were incapable of being exercised by the Court which had not been vested? The vesting would have had time to take place and I imagine would have taken place in important matters. I do not know what is preserved in this phrase.

Mr. Haughey

It is a case of not wishing to disturb the phraseology which has been used. I think there is a principle in the construction of all Acts of Parliament that without some good reason one should not discard well-known and well-accepted phraseology. It may be that this section can achieve all we want it to achieve with regard to the Supreme Court without the use of these words but the phrase is in existence and unless some particularly overwhelming reason could be advanced as to why it should be dropped I would not be in favour of dropping it.

Mr. McGilligan

Before the Report Stage, would the Parliamentary Secretary find out a single example of something capable of being exercised by the existing Supreme Court which is not pulled in by the phrase "vested in"?

Mr. Haughey

I will have research made into that.

An Ceann Comhairle

Is the amendment withdrawn?

Mr. McGilligan

I am using the phrase "not moved" because I think there is a point in it.

An Ceann Comhairle

When it is actually not moved and discussed. This has been moved and discussed.

Mr. McGilligan

Must we put it?

An Ceann Comhairle

No, not necessarily.

Mr. McGilligan

I do not want to withdraw it.

An Ceann Comhairle

If the Deputy wishes, I will put it.

Mr. McGilligan

What happens if it is put and negatived?

Mr. T.F. O'Higgins

If it is put, can it be raised on the Report Stage?

An Ceann Comhairle

If it is put and negatived, no.

Mr. McGilligan

I want a direction on that. If withdrawing it means it can emerge again——

An Ceann Comhairle

It may be raised again on the Report Stage.

Mr. McGilligan

Very well, I withdraw it.

Amendment, by leave, withdrawn.

Mr. McGilligan

May I withdraw Amendment No. 17 even if I have not moved it?

An Ceann Comhairle

The Deputy cannot withdraw something he has not moved.

Mr. McGilligan

May I withdraw it? I want to preserve the position of being able to put it down again on the Report Stage. I gather the operative word is "withdrawn".

An Ceann Comhairle

If the Deputy does not move it, he may move it on the Report Stage if it is in order.

Mr. McGilligan

Then I do not move it.

Amendment No. 17 not moved.

Mr. Haughey

I move amendment No. 18:

In subsection (4), paragraph (a), page 7, line 29, before "may determine" to insert "for the time being available".

I think this amendment is self-explanatory. Subsection (4) (a) at present reads: "The Chief Justice or, in his absence, the senior ordinary judge of the Supreme Court may determine . . . " We wish to insert after "Court" the words "for the time being available."

Mr. McGilligan

Why?

Mr. Haughey

You might have the Chief Justice and senior ordinary judge both not available and not being able to make this determination.

Mr. McGilligan

That would be bad.

Amendment agreed to.

Mr. McGilligan

I move amendment No. 19:

In subsection (4) (a), page 7, line 32, to insert after "Constitution""and not being a question as to the validity of a law having regard to the provisions of the Constitution".

I regard this as a matter of substance. The run of this section is that from subsection (3) onwards appeals to the Supreme Court are to be heard by a full court of five people but then, to get the five, one may either have the President of the High Court brought up or one may have any judge of the High Court brought up at the request of the Chief Justice.

From that enlarged group the suggestion here is that appeals or any matter to come before the Supreme Court should be heard by a court of five. That is all subject to subsection (4). Subsection (4) gives leave to the Chief Justice or to the senior ordinary judge available to determine that a matter can be heard and determined by three judges. Therefore, although there is a sort of hint, there is nothing in the way of a firm suggestion to the court that there should be five sitting all the time. It is left entirely to the discretion of the Chief Justice or a senior colleague available: "...the appeal or matter to which the determination relates shall be heard and determined by three judges ..."

To that there are two reservations. One is: "not being a matter so cognisable under Article 12 of the Constitution". That is the very remote matter of declaring the President to be permanently incapacitated. In that situation there must be a full court of five. The second reservation is "not being a matter so cognisable under Article 26 of the Constitution ..." That is where a Bill is referred to the Supreme Court by the President. There again the Constitution lays down that there must be five judges.

The surprising thing to me is that constitutional cases may be determined by three judges. My amendment seeks to remedy that by inserting the words: "and not being a question as to the validity of a law having regard to the provisions of the Constitution". There may be what I call rather minor constitutional points made and it would be wrong to have a Supreme Court of five sitting for that. Generally speaking when a constitutional matter comes before the Supreme Court there would be five but there are quite a number of instances where there would not be. There was a case tried about five or six years ago where the question was raised as to whether a particular Circuit Court judge had been properly appointed under the Constitution. As far as the courts were concerned, they felt the present courts were properly functioning under the relevant article of the Constitution, that new appointments had been regularly made and would continue to be made. In fact it was a decision which said the courts are in existence and are carrying on satisfactorily and there is no necessity for legislation such as we have before us now. That case was heard by a court of three, I think. It may have been four but certainly not five. In regard to the recent case which Senator O'Donovan won, if that case had gone to appeal, as the law stood, it could have been heard by a court of three because the five are required only in two special instances.

It is wrong that we cannot make it a constitutional obligation to have five judges to hear a case in relation to the Constitution. We should make it mandatory that, if a constitutional case comes before the Supreme Court, it should be heard by five judges. I am not referring to the type of legislation under Article 26 of the Constitution. This brings in all constitutional matters, if there is a question brought up as to the validity of any law having regard to the provisions of the Constitution. If the Constitution is to be given any importance at all, anything that tends to question the constitutionality of laws passed in this House should be determined by a full court.

Mr. Haughey

I am disposed to accept this amendment but I would like to consider it more fully. I feel I should consult the Chief Justice in this matter as it is a particularly important constitutional one. My own feeling is that it is something we should do. If Deputy McGilligan would withdraw the amendment I undertake to bring the matter up again in one form or another on Report Stage.

Mr. McGilligan

Very good.

Amendment, by leave, withdrawn.

Amendment No. 20 not moved.

Mr. Haughey

I move amendment No. 21:

In subsection (4), to delete paragraph (b).

The net effect of this would be that the Supreme Court would have to sit as a court of five or three. It could not sit as a court of four.

Mr. McGilligan

Why did the subsection appear at all?

Mr. Haughey

The suggestion was originally put forward that we should envisage the Supreme Court sitting as a court of four provided the parties agreed. Then it was pointed out that counsel for the appellant would feel bound always to object and the provision would be a dead letter.

Mr. McGilligan

I am glad it is being withdrawn. It was a shocking suggestion that the parties should be asked to agree to a certain number of judges in the court. I was wondering was there any real point behind it.

Amendment agreed to.

Question proposed: "That Section 7, as amended, stand part of the Bill."

Mr. McGilligan

The point I raised is to be considered.

Mr. Haughey

Yes, there is the understanding that Deputy McGilligan's amendment is to be considered.

Question put and agreed to.

Amendment No. 22 not moved.

Section 8 agreed to.

SECTION 9.

Amendment No. 23 not moved.

Mr. T.F. O'Higgins

I move amendment No. 24:

In subsection (4) (a), line 25, before "may" to insert "or such other Judge of the High Court as may be assigned by him under subsection (2) of this section".

As I see the position, in Section 9 a particular jurisdication in lunacy of mind matters is given to the President of the High Court. He is given power to delegate that function, and in fact it may be that the President of the High Court may make a more or less permanent delegation of that function. If he decided to do so it would seem wrong that the rule-making power in subsection (4) (a) would continue to be exercised by him.

Mr. Haughey

I fully agree with what Deputy O'Higgins says and I am accepting the amendment.

Amendment agreed to.

Question proposed: "That Section 9, as amended, stand part of the Bill".

Mr. McGilligan

There are a number of questions I want to ask in regard to the section.

Progress reported; Committee to sit again.