Dáil Éireann debate -
Thursday, 27 Jul 1961

Vol. 191 No. 12

Courts (Supplemental Provisions) Bill, 1959—Committee Stage (Resumed).

Question again proposed: "That Section 35 stand part of the Bill."

Mr. McGilligan

I am sure I shall be allowed to discuss the section with Section 36. As between the two of them, I pointed out last night that there seemed to be a tremendous concentration on the district court. You have a situation in which the Chief Justice can interview a justice and can form an opinion that the conduct of the district justice was or was not such as to bring the administration of justice into disrepute. In addition, we have power under the Act of 1946 for the Minister to ask the Chief Justice to appoint a judge to inquire into the conduct of a district justice.

In Section 36 we are appointing a new officer, the President of the District Court who is entitled to inquire into the matter, that is where anything prejudicial to the efficient discharge of the business of the court comes to his notice, the President of the District Court conducts an investigation. In addition, he can convene meetings to discuss matters in relation to the discharge of the business of the court, including, in particular, uniformity of jurisdiction in the general level of fines, and so on. With all that, you have the District Court Rules Committee who are obliged under the Act to meet during the year to consider practical procedure of administration of the court and to advise the Minister as to what changes should be made in the law either in the practice of the administration of the court or in the law as administered by the courts.

Is it necessary to have all this concentration of authority that may be brought to bear on a district justice? Up to date, there are only two methods of investigation in relation to district justices. The whole court system could be brought under review by the Rules Committee established in 1936. In addition to that, the Minister could ask the Chief Justice to appoint a member of the Bench to investigate the conduct or the capacity of a district justice. Those two safeguarded the whole position. When the judge was asked by the Chief Justice to report he made a report eventually to the Minister. That was obviously a preliminary to having a resolution brought in or not brought in to dismiss a district justice for stated misbehaviour or incapacity.

The whole procedure could be regulated by the Rules Committee. It was a very good Committee. It included members of the district court, practising barristers and a certain number of practising solicitors. The chief clerk for the Dublin district was ex officio secretary. Therefore, prior to the proposal in this piece of legislation, one had power to investigate the conduct of a district justice, such conduct as might be thought likely to lead to his dismissal by vote of the two Houses. The whole practice of the administration of the court was brought under review under the 1936 Act by a good committee. It seems to me we are overloading, going to excess of caution with regard to the District Court and the circumstances in which they find themselves cannot but lead to the view that they are being brought more and more under the control of the Executive and that is, of course, a matter that the whole system of administration of justice in this country has sought to avoid.

We should not give these powers to the President of the District Court. Or, if that officer is going to be appointed, build him into the Rules Committee, make him the controller of the Rules Committee, a person who will convene meetings and put upon him the obligation to report to the Minister for Justice from time to time as to what changes in the law are required.

Mr. Haughey

I should like to outline, first of all, exactly what is being done with regard to district justices. In the first instance, there is in existence, and we are not interfering with, the provisions of Section 21 of the 1946 Act by which the Chief Justice can appoint a judge to investigate the conduct of a particular district justice and to report to the Minister. On the basis of that report the Minister would decide whether or not to come to the Oireachtas and move to have the district justice removed from office. That machinery is absolutely necessary. However, it is a procedure that would be invoked only in a very serious case.

Apart from that, it was felt there would be occasions when the Chief Justice, as head of the judiciary, could with advantage send for a district justice, point out to him some particular matter in which he was not acting as people thought he should—no more than that—merely explain to him that he was not exactly misbehaving but, perhaps, indulging in some form of conduct which did not, strictly speaking, amount to misbehaviour but was tending to bring the process of justice into disrepute.

Mr. Dillon

Where does that derive from?

Mr. Haughey

That derives by virtue, in this Bill, of Section 10 as amended by amendment 30. Section 10 subsection (4) set out that the President of the High Court would have this function but on reflection it was decided that it was more appropriate to vest this function in the Chief Justice because he, traditionally, had it and we merely give it a statutory basis in Section 10.

Mr. McGilligan

Why do you say he had it traditionally?

Mr. Haughey

I say it was traditionally implicit in the office of the Chief Justice that he could send for a member of the Judiciary and speak to him about his behaviour.

Mr. McGilligan

That does not arise by a statute, then?

Mr. Haughey

No, not by statute. I said it could be regarded as being inherent in his office. That is the new provision and, I think, a valuable one. It enables the Chief Justice to step in in a case where he might think things were going wrong and probably remedy them without a great deal of trouble or complications of any sort.

The full statutory procedure envisaged under the 1946 Act is a very serious and formidable business and might not always be appropriate. So, we have now provided this new way of dealing with that sort of situation.

Over and above all that, we are creating this office of President of the District Court. The establishment of that office is clearly justified and the need for it can be very easily demonstrated. Indeed, my recollection of the debate on the Second Reading of this Bill is that the House generally welcomed the proposal to establish such an office. The proposal arises from dissatisfaction which has been expressed from time to time regarding the way in which the business of the district court has been discharged in certain areas. We hope the appointment of a President will enable disparties in decisions to be reduced, that, generally speaking, the level of fines and penalties will be co-ordinated and that the efficient running of the courts will be promoted generally.

It is not criticising anybody to say that it is possible for the level of fines and penalties to get out of alignment in different parts of the country and the proposals we have here, which involve, as it were, discussions among district justices as to the circumstances and the sort of penalties which would be appropriate to particular types of offences, cannot, in my opinion, do anything but good.

Numerous complaints have been made both inside this House and outside it that some district justices—I had better speak very carefully and very cautiously here because it is important that I should not ruffle anybody's feelings—but some district justices, unfortunately, are unpunctual in starting their courts, adjourn courts or cancel courts without sufficient reason. This sort of thing inconveniences everybody. It inconveniences people about whom we must mainly be worried, the litigants.

Deputy Dillon was quite adamant here last night that we must do what we can to protect the interests of people coming before the district court in a certain way. Indeed, I think we should do that generally. Solicitors who are busy men and have a very full programme to get through every day and barristers—all these people are seriously inconvenienced by this practice of either last-minute cancellations of sittings of courts or, alternatively, courts being started unpunctually.

Deputy Barrett, who, incidentally, is from Cork and must be assumed to know the situation as it obtains in Cork, made a very reasonable contribution in this regard on the Second Stage when he said:

I am very glad that at last the Minister is taking a strong hand in the matter of the behaviour of district justices. More than one district justice in this country has shown complete disregard and disrespect for the people whom they are obliged to serve. I can honestly say that these men brought the district court which is, generally speaking, of a high standard, into absolute disrepute....

There is no attempt to persecute or to hound district justices in any way. We just want to ensure, so far as we can do so, that courts will be everything they should be and held at the time and in the places they should be held.

Mr. Dillon

May I remind the Parliamentary Secretary that it is customary to give the reference when he quotes?

Mr. Haughey

I will give the reference. I want to say also at this point that there are a number of district justices—and it is only right that this should be said—who have not missed a single court during the last few years. Not one single sitting of their court did they miss, not one was adjourned and not one started unpunctually. The general position is that the district court functions well and satisfactorily but we want to try to eliminate so far as we can discrepancies which arise and to which Deputies generally on both sides of the House have drawn attention.

The Rule Making Committees would not be appropriate to do this job. They have clearly defined functions to perform and they have nothing to do with the times of court sittings or the administration of justice in that way. Deputy McGilligan pointed out that these Rule Making Committees do not do the job that the statute set out for them. Surely it is rather weak to argue that if they did not do the particular job they were given, we should ask them to do this job as well, a job for which they are not fitted at all and for which their very constitution would render them inappropriate? There is no question of cluttering up the situation with unnecessary institutions and provisions.

We have three clear lines of action, all of them necessary and all of them will prove to be valuable. We have the first case as I mentioned, the full scale procedure of removing the district justice, or any other judge for misbehaviour. On a completely different level, we have this new provision of the Chief Justice speaking to a district justice, and then we have this proposal now to establish a President of the District Court on whom we will place the obligation to see that the machinery of the district court works as well as it possibly can, that the business is allocated properly and that the courts sit when they should, at the times and in the places stipulated, and that there will be a minimum of inconvenience for litigants, solicitors, barristers and all others who have access to these district courts.

Mr. Dillon

I think the point made by Deputy McGilligan is a good one. that you can excessively multiply safeguards up to the point where a body of responsible men begin to feel a policy of harassment has been embarked upon. We have at present the rare power of the Chief Justice to appoint a judge to inquire into the conduct of a district justice and, if the report be adverse and sufficiently grave, the Government can through the Oireachtas remove the district justice. We have then what we describe as the procedure whereby the Chief Justice is now given statutory power to admonish a justice on the grounds that he is forgetting himself in court and will have to pull up his socks.

We have agreed to the appointment of a President of the District Court and it is proposed that he will have power to inquire into any case where he feels that the district justice is guilty of conduct prejudicial to the prompt and efficient discharge of the court's business. That covers the case where a district justice is not holding his court regularly and properly. Now we are creating by statute two new proceedings. The Parliamentary Secretary maintains that one of them existed inherently in the office of the Chief Justice all the time. I suppose that is a matter about which there could be argument. In any case, we now give statutory effect to two new procedures and appoint a judicial person for the purpose of administration.

Is it necessary, in addition to that, to take the very grave step of conferring upon the new judicial person, the President of the district court, power to summon all the district justices of the country together twice a year under the conditions set out in paragraph (c) of subsection (2) for the purpose of securing that all the district justices will agree to a standardisation of fines and other penalties to be imposed in their several courts? I think that in that we are probably going too far. We are going to a point of suggesting to the district justices that the Oireachtas looks upon them as an inferior type of judge. I think we are allowing ourselves to be influenced by some analogous procedure that obtains in Great Britain in respect of justices of the peace.

An Ceann Comhairle

I do not want to interrupt the Deputy but are we discussing Section 35 and Section 36 together, because there are amendments to Section 36?

Mr. McGilligan

It was proposed and accepted that we would discuss the framework of the sections before going on to the amendments but reference to the amendments could be brought in.

An Ceann Comhairle

Would anything be lost if we decided on Section 35 and discussed the matter on Section 36?

Mr. McGilligan

I think it was suggested that Section 35 dealt with the appointment of a particular official and and Section 36 dealt with his power and that naturally one would have a different view on the appointment.

An Ceann Comhairle

I want to avoid duplication of discussion on Section 36.

Mr. Haughey

I think it is reasonable to suggest that we pass Section 35 and move on to Section 36.

Mr. McGilligan

My amendment is to bring the President of the District Court into the Rules Committee so that he will become the convener of the meetings but my objection to the President's appointment is weakened to a large extent if that happens. If the President is to have the power in Section 36, I should like to tackle this radically and to object to the appointment of any such person. That is on Section 35. It was understood we were having a debate on Section 35 and Section 36 in order that the matter can be unravelled afterwards.

An Ceann Comhairle

I hope so.

Mr. Dillon

I was making the point in regard to the fourth safeguard, that we are apparently allowing ourselves to be influenced by some kind of parallel in Great Britain in respect of justices of the peace. I think there is a fundamental distinction. We had the system of justices of the peace in this country who were all public-spirited citizens who consented to sit on the bench but who were largely persons with no legal training at all. One can readily understand that a situation could arise that where you had a large number of justices and people administering justice, wide discrepancies might creep in. In Great Britain the fact was notorious that in certain areas where there were game rights——

Mr. Haughey

Might I give the Deputy the reference he was seeking? It is Volume 187, No. 8, column 1100.

Mr. Dillon

I am much obliged. It was notorious that in this situation you might get in a countryside carefully preserved for game, the most extravagant penalties being imposed in insignificant breaches of game laws where, under exactly similar conditions in another area in Great Britain, there might be purely nominal penalties. I am only giving that as one instance of many wide divergencies that arose where you had a lay person administering the law. We have not that system in Ireland.

Every district justice here is a barrister of ten years standing, or a practising solicitor, and in that sense, they are much more truly judges than lay justices of the peace. I think it is inherent in our legal system that you must leave the imposition of the penalty to the discretion of the presiding judge. We provide by statute what the maximum penalty attaching to every offence shall be, and it is open to the judge, whether it be in accord with a summary jurisdiction or in a High Court action, to hear the evidence, and when a factual decision is taken on whether the man is guilty or innocent, then to impose the penalty within the maximum fixed by the Oireachtas.

Every person who is sentenced has the right of appeal. He has the right of appeal against his sentence, apart from his right of appeal on the issue of guilt or innocence. If there is any extravagant abuse, or if there is any grave aberration of judgment, there is the superior court to set that right. That is true not only of the district court, but of the Central Criminal Court and the circuit criminal court. Any man can go to the Court of Criminal Appeal and ask to have his sentence reduced, even if a judge of a superior court has sentenced him.

I do not feel that we have here any problem in regard to this matter, certainly not one of sufficient gravity to require legislative interference. I can fully understand a situation in which the penalties in a case of summary jurisdiction can, with perfect propriety, vary very widely. I can imagine that in one area in Ireland assaults on the Garda might become so serious a problem that severe sentences would be necessary in order to arrest that tendency in an area where it had become a grave abuse.

Down the country there might be a fellow who would get drunk and become so mad that he would misbehave to the extent of hitting a Garda. He would possibly be taken to the Garda station under heavy escort because his judgment was hopelessly deranged by drink. It would be most unsatisfactory if, subsequent to a meeting of the kind envisaged here, a justice felt compelled to provide in such a case a sentence uniform with the kind of sentence imposed for that offence in another area. I can well imagine the Garda superintendent rising to give evidence on his behalf and saying that he was a most respectable person but that he was made so insane by drink that he misbehaved very badly, hit the Garda and had to be charged.

I would not be a bit shocked in that case if he got a suspensory sentence and a fine of £10, but I would be gravely shocked if a Garda were assaulted in the city of Dublin, Cork or Limerick and the district justice did not send him, on conviction, to jail. I feel that in the cities those cases are a serious menace, whereas the case in the country is isolated. Does anyone here feel that disparity of penalty between one district court and another in Ireland constitutes a serious public evil? I use the words "serious public evil" deliberately. I have heard no suggestion that that is so. I have heard on occasion that a certain district justice has an edge on people who do not have lamps on their bicycles and imposes what seem to be unreasonable penalties. That is simply a matter of a fine of £1 or a fine of 1/-.

I was exasperated on occasion when I was Minister in charge of the Fisheries Branch. I would successfully prosecute some fellow and I would find that the district justice fined him a half-crown. You are the Executive at the moment, and you are beginning to think you have the right not only to convict the offender but to prescribe the penalty. That is a traditional temptation of an Executive. My earnest desire was to protect our fisheries——

Mr. Haughey

All power corrupts.

Mr. Dillon

And you have to watch that carefully. As I say, it is very exasperating when the Executive knows how difficult it is to prove a certain offence of that kind, and when you have succeeded in proving it, the courts do not seem to act effectively. If that becomes a sufficiently grave abuse—and it would want to become a terribly grave abuse—you can come to the Oireachtas and seek a mandatory penalty. That is a course from which I recoil with the utmost horror, but I used it myself once. I came to the Oireachtas and got a mandatory penalty in respect of foreign trawlers fishing in our waters. I knew I could satisfy the Oireachtas that the only way of deterring them was to seize their gear. It was a mandatory power which did not involve any interference with the freedom of the subject. It was power simply to seize their catch and their gear. There were district justices who were always prepared to listen to a sad story and give back the catch and the gear to the fishermen who had fished in our territorial waters; whereas it was perfectly clear that you could never stop them at all if you did not take their catch and their gear because the value is so high.

I mention that because I thought it had become so formidable a problem for the Executive in the enforcement of the law that I was justified in coming to the Oireachtas, explaining the difficulty and saying: "I want the mandatory penalty that the gear and the catch will be taken." I do not think it would be suitable for the Executive to approach the President of the District Court and say: "Would you kindly tell all the district justices that they must confiscate the gear and the catch of any trawler owner who is convicted before them."

I suggest to the Parliamentary Secretary that this proposal to convene these meetings bi-annually, which every justice shall attend unless he is unable to do so, owing to illness or other unavoidable cause, might well be dropped. I think it is a provision which is grossly offensive to the district justices who are on the bench. I do not believe in the long run, even after these meetings are held, that it would be possible to secure, through this device, absolute uniformity under this Bill which states that after the meetings have been held, after all the district justices have attended, and after they have consulted, they must conform to the general level of the penalties with which presumably they will be expected to agree.

We are asked to take away the essential discretion which a judge ought to have. Surely the House does not propose to withdraw from a justice his duty and obligations to deal with each case that comes before him on its merits? If we are resolved that the right and duty of a justice should not be abridged, what is the purpose of subsection (3) of Section 36? I think if that proposal were dropped, we are then left with the major procedure of the Chief Justice appointing a judge to inquire, leading up to subsequent action by the Oireachtas; the second in which the Chief Justice can admonish; and the third in which the new officer can admonish a district justice if his conduct is prejudicial to the prompt and efficient discharge of the business of the court. In the last case, the President of the District Court may, if he gets a dusty answer, report the matter to the Minister for future action.

By the same token, I should be glad if the Parliamentary Secretary could tell me what is envisaged consequent to action under subsection (2) paragraph (a). It says that the President of the District Court shall inquire into the matter and may report the result of that inquiry to the Minister. What happens then? Is there any provision for what is supposed to happen? If there is, I cannot find it. I suggest to the Parliamentary Secretary that if we leave these three remedies to the Chief Justice and the President of the High Court, then the annual conference is unnecessary and calculated to affront the body of the district justices and to cause irritation and dissatisfaction amongst the very best of the district justices, whereas it is, in fact, ineffective to secure from the less experienced men that degree of uniformity which it is thought desirable to evoke but which, in my judgment, is not as essential under our system as it could well be argued that it is under a system of summary jurisdiction administered by lay justices such as Justices of the Peace in Great Britain.

Mr. McGilligan

I understood that we might refer to the amendments in discussing the two sections.

An Ceann Comhairle

We could dispose of Section 35 and discuss Section 36?

Mr. McGilligan

If that were the more orderly way, I would agree. I think it would be better to object to the appointment of the President of the District Court.

An Ceann Comhairle

I have nothing to say to that because I would be taking part in the argument.

Mr. Haughey

I think it is important to facilitate Deputy McGilligan.

An Ceann Comhairle

I should like to facilitate all Deputies.

Mr. Haughey

The Deputy gets gets very irascible.

An Ceann Comhairle

If I thought that Deputy McGilligan was losing anything in his argument by adopting Section 35——

Mr. McGilligan

It is only the appointing.

An Ceann Comhairle

Does the Deputy mean appointing the person and giving him——

Mr. McGilligan

My line would be to let Section 35 remain in abeyance.

An Ceann Comhairle

There are amendments to Section 36.

Mr. McGilligan

To Section 36 only.

Mr. T.F. O'Higgins

We will take Section 36 and the amendments as they come.

Mr. McGilligan

Leave Section 35 in abeyance.

Mr. Haughey

All this discussion is not appropriate to Section 35 itself.

An Ceann Comhairle

We may as well continue.

Mr. Haughey

Deputy Dillon asked if we could visualise a situation where there would be a disparity between the level of penalties throughout the country. Of course, we can. I fully agree that in certain circumstances penalties in a particular area at a certain time would be different, and that is exactly why we use the word "undue" in the provision.

Mr. T.F. O'Higgins

There is nothing here about "unduly".

Mr. Haughey

Amendment No. 64 which will be proposed mentions "the avoidance of undue divergences". It is exactly for that reason that we now propose to use that form of wording, for exactly the sort of situation Deputy Dillon envisages. There is nothing inconsistent in what we propose and what Deputy Dillon says in that regard. Indeed, I could visualise a situation being exactly the opposite to what Deputy Dillon suggests.

The present position might lead to difficulties. You might have an area in the south of Ireland, for example, where a particularly serious situation obtained and where a district justice was endeavouring to deal with it in a certain way. A fellow district justice in some other part of the country, reading of the penalties that this district justice was awarding and not knowing the reason why his colleague was consistently imposing these penalties, might say that he would have to follow suit. He would feel inclined to follow suit, whereas the conditions in his part of the country might be completely different.

The conference would do a great deal to improve that situation. The two district justices will be meeting informally. The second district justice will approach his colleague and say: "I notice that in such and such a type of case, you are imposing a certain type of penalty. It seems to me to be a bit unwarranted. Perhaps there is some reason for doing it." They would discuss the situation and find out what the truth of the situation was. Nothing but good could come out of that situation. I do not at all envisage that these proposals would do any more than avoid undue disparities, with a very real emphasis on the word "undue".

Deputy Dillon also asked if any Deputies thought there could be a serious public evil resulting from the disparity of penalties in different parts of the country.

Mr. Dillon

I asked was there a serious disparity justifying legislation?

Mr. Haughey

It might be going a bit too far to say there is, but there could be. We know it is important that not alone should justice be done, but that it should appear to be done. If the general public read and hear that in one part of the country a certain penalty is being consistently imposed for a certain offence and in another part of the country a different penalty is consistently imposed and somewhere else a different penalty again, surely that can have a very serious effect on the respect in which the law should be held in the eyes of the public?

Mr. Dillon

But is it happening?

Mr. Haughey

It is happening in certain instances. I maintain it has happened and we must guard against any increase in that regard. It could tend to bring the whole process of the law into disrespect in the eyes of the public. That is something we must carefully guard against and see to it, as far as we possibly can, that the people have confidence in the courts, have respect for the process of justice and sincerely believe that everybody is equal before the law and that justice is administered in the different parts of the country in the same way.

Mr. Dillon

Does the Parliamentary Secretary not feel there is an obligation on him to give us, without mentioning names, some instances of this widespread disparity that has caused public malaise? I must say I have never heard of it.

Mr. Haughey

I could give a number of examples, but one of the clearest examples in recent times was the situation that arose in respect of the Intoxicating Liquor Act, where you had in certain parts of the country district justices imposing, shall we say, adequate penalties for breaches of the licensing laws and in other parts of the country district justices imposing nominal and ridiculous fines of a shilling, a penny and so on. The one thing everybody in this House agreed on when the Bill was going through the Oireachtas, as far as I remember, was that when it became law, it should be enforced and should become a reality. Then we had that sort of situation developing. However, I do not say that is in any way the basis of what we are doing here, but when the Leader of the Opposition asked me to give an example, that is what came most readily to mind.

There is absolutely no question, suggestion or hint of any sort that we are removing from a district justice or from any judge in this country his capacity to take his individual judicial decision on any case that comes before him. I would be horrified to think that anybody from this side of the House should make such a proposal. No such proposal is intended or contemplated in any way. The whole basis of the courts is that such individual jurisdiction is made mandatory on a district justice. We are only concerned to see that district justices get an opportunity of meeting each other, comparing notes and comparing experiences. We hope there will emerge a general uniformity in the administration of justice throughout the country. That is a laudable objective.

At the same time, it is absolutely and abundantly clear that any district justice, even after participating in a conference, talking to his colleagues and coming to the conclusion that it was appropriate that a certain level of penalty should be imposed in a certain type of case, can go back to his home district, find that the first case to come before him is a case of that sort but that there are very mitigating circumstances. Even though he has more or less come to a decision that in present social circumstances such and such a level of penalty would be appropriate, nevertheless he will exercise his individual jurisdiction and in any particular case may consider reducing the penalty or, indeed, even increasing it, depending on the particular circumstances of the case.

That is not to say that these discussions he will have with his colleagues will not be of the utmost value. A district justice doing his job well, or indeed any justice doing his job well, will be reading text books and law journals and keeping in touch with what is happening throughout the country and, indeed, in other countries. I know they do. This is merely an extension of that same practice. Just as he would read a law journal, where he would get the views of his fellow justices and practitioners on various current topics, in the same way in these conferences he will get the informal views of his fellow district justices on the current situation.

We have been concerned in an earlier part of this Bill with the inconvenience that arises to practitioners and litigants because cases are suddenly and at the last moment transferred from the circuit criminal court to the Central Criminal Court. I think we are all agreed that we should do something about that situation. If that is so, surely the case for doing something in respect of the district court is even more overwhelming.

Mr. Dillon

I cannot remember being concerned at all about the inconvenience of transferring people from the circuit criminal court. My plea was that the right of the defendant to be transferred should be safeguarded.

Mr. Haughey

I felt at one time that there was unanimity on that point. Deputy Dillon may have been absent. I felt that the consensus of opinion was that it was very undesirable to have counsel, solicitors and witnesses brought along to the circuit court for a particular trial and to suddenly find that it was transferred to the Central Criminal Court. I admit Deputy Dillon was concerned with the other aspect. I think we are all agreed that if we could do anything to avoid it, we should do so.

How can we contemplate with equanimity a situation where one particular district justice over a period —and of this we have had an example —failed to hold 32 per cent. of the appointed sittings in his district? We are here concerned with the district court. These are the courts to which our people in the main have recourse.

Mr. Dillon

Who views that situation with equanimity?

Mr. Haughey

Nobody. That is what we are out to prevent.

Mr. Dillon

No.

Mr. Haughey

There was a district justice who behaved in that fashion. Surely, we must attempt to do something about it.

Mr. T.F. O'Higgins

Those are very good grounds for removal.

Mr. Haughey

If it continued we would have to consider that. We hope this procedure may help to eliminate that.

Mr. Dillon

That has got nothing to do with the meeting of the district justices, has it?

Mr. Haughey

No, but it is part of the function of the new President of the District Court to watch that sort of situation and to endeavour to see to it that courts are held when they should be held, that the sittings are on time, and so on. If there is a consistent refusal by a district justice to do that, then we have the appropriate measures to be taken. As I say, the district court is the court of the utmost importance to our people. It is for that reason we are making these provisions, not because we regard district justices to be inferior in any way to anybody. In fact, our view is exactly the opposite.

In this Bill we are clearly defining the members on the bench of the district court as judges—"such number of other judges". That is full recognition of the fact that they are judges in every sense of the word. But because their courts deal with this vast volume of business—25,000 cases a year—we feel that, in the case of their courts, and without any regard to their personalities or individual competence, but purely from the point of view of the machinery of the courts, it is appropriate that we should establish this piece of machinery to ensure that due regard is had to the difficulties that confront a great number of people in the district courts. There is no question, as I say, of reflecting in any way on their competence, but merely a genuine desire to ensure that the courts function efficiently and well and, secondly, that justice, as far as it can be humanly administered, is administered in consistent fashion all over the country.

I was asked under subsection (2) (a) what happens when the President of the District Court reports to the Minister. The following may happen: first of all, the Minister may have had a complaint from somebody. Complaints are all the time coming into the Department of Justice; under this machinery he will now have the facts on which to decide; he may decide to ignore the complaint as having no substance, or he can decide on the basis of the report submitted to him by the President of the District Court that the situation is serious enough for him to ask the Chief Justice to interview the district justice concerned under the admonitory provisions of Section 10. The report may disclose that the case is a serious one calling for the full statutory procedure under the 1946 Act. The foundation for the provision is that the Minister will in future have the facts judicially ascertained and there will be no question of hearsay, no question of vague accusation, or anything of that nature. He will have clear-cut and precise machinery for ascertaining the validity of complaints and he will then be in a position to decide what course of action he should pursue.

Mr. Dillon

May I say one last word on my own behalf? Whatever provisions are brought in to secure the more efficient administration of these courts of summary jurisdiction, I think it is very important to secure the goodwill of the officers of these courts. I think the provisions contained in subsection (3) are gravely offensive to many of the most responsible justices of these courts. I do not think we will get any benefit proportionate to the resentment this subsection will create. I believe the prospects of the office of President of the District Court functioning smoothly would be vastly improved if subsection (3) were dropped. I think subsection (3) is itself inherently unsound and I would urge strongly on the Parliamentary Secretary that subsection (3) be dropped.

If it should prove at any future time that a grave public abuse exists arising from the disparity of sentences, the Minister for Justice can always come back and look for powers to deal with that specific situation. I want to say quite deliberately—I have not been behindhand in informing the Minister for Justice where I thought there was anything amiss—that I have no knowledge of any grave public evil in our society arising from disparity of sentences. I think it is a dangerous thing casually to interfere with the discretion of justices as, I am bound to say, I think subsection (3) undoubtedly does. I am convinced this will create a great deal of difficulty and resentment in quarters for which we ought all of us to have respect, and I urge most strenuously on the Parliamentary Secretary, in the cause of better administration in our courts of summary jurisdiction, to drop subsection (3). If that is done, then I would be prepared to take a chance on the remaining provisions in the Bill.

Mr. Haughey

I would be more convinced by Deputy Dillon's argument if I did not know that at the present moment the district justices meet in this fashion voluntarily.

Mr. Dillon

That is quite another thing.

Mr. Haughey

They meet of their own accord, and they do it at their own expense.

Mr. Dillon

That is all right.

Mr. Haughey

We merely want to provide that they can do this officially and be paid their expenses.

Mr. Dillon

That is quite a different thing.

Mr. Haughey

The very fact they are doing it already shows they appreciate the value of doing it. As Deputy Dillon has raised the point, I want to make it absolutely clear that we are anticipating that this provision will be welcomed by the district justices. Certainly I want to offer it to the district justices in a spirit of goodwill, as something which will be helpful to them, knowing that they are anxious—most of them anyway— to have an opportunity to get together, consult and see in what way they can improve the administration of justice.

Mr. Dillon

Why keep in paragraph (c) then? Paragraph (c) is mandatory.

Mr. Haughey

If we are going to set up the machinery we must ensure that it will operate.

Mr. Booth

It is only if the President of the District Court convenes the meeting.

Mr. McGilligan

That is good.

Mr. Dillon

Look at paragraph (b).

Mr. Haughey

If these meetings are to have any value they must be made to function properly. I am offering this machinery to the district court justices in the hope that it will be of use and value and help to them. If we set it up we must do the job properly and make sure the President of the District Court will have the necessary authority to bring the conference together and see it is as fully attended as possible, giving a right of absence to those district justices who are unable to attend the meeting for some unavoidable reason, such as illness.

Mr. Booth

The point I was making was that the President of the District Court is not directed to convene meetings. We merely give him permission. Subsection (3) says the President may convene meetings, and then subsection (b) says that meetings shall not be convened more frequently than twice a year. It remains open to the President not to convene any meeting if he does not think it is necessary. For that reason I feel the whole provision is not strictly speaking mandatory at all, but simply gives a statutory right to the President of the District Court to convene such a meeting if he feels it necessary to do so. Having given him the right to do so, I think we are right in restricting the number of times at which he may convene meetings.

Further, in the interests of general co-operation, it is right that we should say that, if the President of the District Court does convene such a meeting, every justice shall attend it if he can. We do not want to make these meetings purely voluntary and unofficial and something which would attract no respect amongst the justices of the district court itself. I think we are dealing with it in a very reasonable way and I would hope that the members of the Opposition who have expressed some doubt would re-read subparagraph (3) with particular reference to the first line in which it is very clearly stated that the President of the District Court "may" convene. It is not "shall".

Mr. Dillon

That does not make it any less mandatory on the district justice. It is not mandatory on the President, but it is mandatory on the district justice to come when he is called.

Mr. Booth

Surely it is a reasonable provision. There is no point in giving the right to the President to convene a meeting unless we also say that, if he convenes a meeting, the attendance shall be as near 100 per cent. as possible.

Mr. Dillon

I do not think we ought to give him the right to convene it.

Mr. Booth

Look at subparagraph (a).

Mr. Dillon

I ask the Parliamentary Secretary to drop subsection (3) of this section.

Mr. Booth

I appreciate that, but then we got on to the question as to whether the whole provision is mandatory.

Mr. Dillon

It is on the district justice. He must come when he is called.

Mr. Booth

Yes, the whole initiative still rests with the President of the District Court.

Mr. Dillon

That is what I object to.

Mr. Booth

Subsection (3) is not a mandatory provision.

Mr. Dillon

It is for the district justice but not for the President.

Mr. Booth

Only if the President asks.

Mr. McGilligan

I am talking about the mandatory provision on the district justice.

Mr. Haughey

You must have that, if the provision is to be any use at all.

Mr. Dillon

I do not think we ought to have it.

Mr. McGilligan

We are told the district justices are meeting voluntarily. We are also told there is great disquiet in the country with regard to disparity in the level of fines and penalties.

Mr. Haughey

Who told the Deputy that?

Mr. McGilligan

It is said this probably will not be used. What is the good of putting these sections in unless they are going to be used? I am told they are meeting voluntarily. I do not see why they should not be allowed to continue as they are. We should get away from this school-master approach of saying that if the President requires it each district justice must attend unless he can produce an excuse. That is reducing mature people who have experience of a particular line of work to schoolboy level. As Deputy Dillon pointed out, this is mandatory as far as the district justice is concerned when the President moves in this way.

I wish to refer to the Second Reading speech made by the Minister for Justice. First, he said he was concerned at the failure of some justices to preserve reasonable standards of time-keeping and regularity in holding their courts. Secondly, he referred to the question of uniformity, how to secure uniformity in respect of the practice of justices in the administration of justice and the standards to be adopted in fixing penalties.

At Column 1062 of the Dáil Debates of 22nd March, 1961, the Minister for Justice is reported as having said:

I have confirmed that over the past few years there were particular justices who showed an unusually high proportioon of courts not held. In one case the proportion was as high as 32%. I consider I would be failing in my duty to the public and to all the justices whose conduct in this respect is beyond reproach if I did not bring to the notice of justices my concern at the failure of some of them to observe reasonable standards of timekeeping and regularity in holding their courts.

I have in fact done this.

He approached the justice concerned. He continued:

but I would have preferred to have been able to utilise the machinery now being provided——

Mr. Haughey

Exactly.

Mr. McGilligan

That is to say, he would bring the facts to the notice of the President of the District Court. It would then be a matter for the President to take the necessary action either informally or in the manner provided for in paragraph (a) of subsection (2) of Section 36. The situation is no so rigid as people here represent. I know in my own time there was an approach made to a certain district justice and it had good results. The Minister for Justice says here it was done in a certain case, and what was done once can be done again.

Mr. Haughey

Is it not better that the President of the District Court should do it rather than the Minister?

Mr. McGilligan

According to this the Minister will take the initiative in any event:

I would have preferred to have been able to utilise the machinery now being provided in the Bill, that is to say, to bring the facts to the notice of the President of the District Court...

The Minister would bring the facts to the notice of the President.

Mr. Haughey

Not necessarily.

Mr. McGilligan

That is one way of doing it.

Mr. Haughey

But the person who interviews the district justice would be a fellow judicial person, not an executive.

Mr. McGilligan

At Column 1062 the Minister said:

.... if I did not bring to the notice of justices my concern ...

I have in fact done this but I would have preferred to have been able to utilise the machinery ... to bring the facts...

He would bring the facts.

Mr. Haughey

But others could bring them.

Mr. McGilligan

I am not saying others could not do it.

.... the President of the District Court who is being charged with the duty of ensuring the prompt and efficient discharge of the business of the court. It would be a matter for the President then to take the necessary action, either informally——

or as provided in Section 36. The Minister then goes on to say:

.... it is in relation to only a small minority of justices that complaints about unpunctuality and cancellations of the appointed courts are made, but, of course, the actions of that minority do disproportionate damage to the good reputation of justices as a body.

As regards the small number of people not attending to their duties, there has been established a precedent, lasting over a number of years, that the Minister for Justice has approached the justice and drawn his attention to the fact that he is not holding the courts in the proper manner. That was the single point, as far as my reading of the debates goes, on which Deputy Barrett from this side of the House accepted the provisions of the Bill. The general tenure of the debate on that point seemed to be that the district justices would not bother their heads what the President said or what their colleagues would say.

The next point the Minister made at Column 1062 was:

Equally as important as the President's powers of inquiry will be those for securing as far as practicable general uniformity of practice and procedure in the administration of justice and the standards to be adopted in fixing the amount of penalties. The Bill authorises him to convene meetings of justices periodically to discuss matters of this kind.

The Minister then went on to meet the point put by Deputy Dillon in a question across the House today in regard to serious public disquiet in connection with these matters such as lack of uniformity in regard to fixing the amount of penalties. The answer given today and the example given was the penalties under the Intoxicating Liquor Act. I have some experience of this matter over quite a number of years. I do not remember any cases being brought to my notice in respect of a divergence in the amount of fines in respect of the Intoxicating Liquor Act. There was a general attitude among justices that being found on a licensed premises after hours was not a very serious offence and they did not impose any serious penalties. It was not that there were one or two justices who fined heavily or alternatively, one or two who fined lightly. There is a uniformity of practice that makes these penalties very light. I do not know, and I doubt if any examples can be given, of this great disparity in connection with the provisions of the Intoxicating liquor code. The Minister gave completely different examples. Again, I am quoting from Column 1062:

Some time ago, there was evidence of public disquiet——

that is the height of it——

——at what appeared to be a serious lack of uniformity between district justices in dealing with habitual offenders, notably in what seemed to be the over-use of the Probation of Offenders Act.

That is the precise phrase. That is a point I myself did take up——

Mr. Haughey

The Court of Criminal Appeal also drew attention to it.

Mr. McGilligan

The Minister is referring here entirely to district justices.

Mr. Haughey

The Court of Criminal Appeal drew attention in December, 1959, to the over-use of the Probation Act by district justices.

Mr. McGilligan

If they did, they followed my footsteps a bit earlier. It was in the district court with regard to the Probation of Offenders Act. There was undoubtedly in a particular court an over-use of the Probation of Offenders Act. That, again, was dealt with. It was not a question of making a report to any of the higher judges. The matter cropped up in a rather casual conversational way.

The next thing I knew was that I was advised there would probably be an improvement in the attitude in our district courts in this matter and so there was. The Minister spoke about the over-use of the Probation of Offenders Act. That was the one point on which he said there was evidence of public disquiet at what appeared to be a serious lack of uniformity in dealing with habitual offenders. Why that phrase was brought in, I do not know.

The over-use of the Probation of Offenders Act, to which my notice was drawn, certainly was not in connection with habitual offenders any more than with others. That is the only basis on which it is put. Still at Column 1062, we read:

When I investigated the matter I was made very conscious of the difficulties of bringing to the notice of justices generally the bad effect of the standing of the court brought about by lack of uniformity. I found that there was no machinery available. Now, under the provisions of subsection (3) of Section 36 the justices will be able to discuss these matters among themselves.

Then, at Column 1063, we read:

There is no question of interfering with the freedom of individual justices to award the penalties they consider appropriate to the particular circumstances of each case; but the justices will have the benefit of the views and experience of other justices at these discussions and can, if they wish, take them into account when exercising their jurisdiction subsequently.

The Minister then said he had been advised the section was not in any way contrary to the Constitution.

With regard to "machinery," I do not understand the phrase "machinery to bring to the notice of the justices the bad effect created by lack of uniformity." There is the District Court Rules Committee. It is a committee of seven people. There are two ex officio members. One is a justice of the district court here in Dublin, or else particularly defined, and the other is the district court clerk for the county borough of Dublin. There are two ex officio members here and the President of the District Court could easily take over the chairmanship. With him, there are five other people, two ex officio and seven nominated.

Of the seven nominated people, four are district justices nominated by the Minister. One other nominated member shall be a practising barrister nominated by the Council of the Bar of Saorstát Éireann and two others shall be practising solicitors nominated by the Council of the Incorporated Law Society of Ireland. That is a good committee—five Justices, one district court clerk, two members of the solicitors' profession and one member of the Bar. The Secretary of each of the several committees is told to summon a meeting of such committee once at least in every year on such day as may be fixed by the chairman. The purpose is the general consideration by such committee of the practice, procedure and administration of the court in relation to which such committee is constituted and the law affecting or administered by such court.

Subsection (2) of Section 75 provides that the committee is to report to the Minister whether any, and if so what, amendments or alterations should, in the opinion of such committee, be made in the practice, procedure or administration of the court in relation to which such committee is constituted or in the law affecting or administered by such court with a view to the improvement of the administration of justice. Great power is given there. The Minister, remember, has four nominees on that committee, all members of the district court group. The committee are to meet any time the secretary summons them. He must summon them at least once a year and he is supposed to report at least once a year. There is the suggestion that built into that should be a provision that the President of the District Court, if he is to be appointed, should have the obligation to report.

I have frequently called attention to the fact that these statutory obligations imposed by the Act of 1936 have not been carried out. I think that is a scandal. I first called attention to it in the Estimate for the Department of Justice in 1958 and thereafter in successive years and by questions sought to get some indication of what reports had been made. I have not the replies to my own questions but there are one or two. I think the Local Registration of Title Rules Committee reported once or twice but the rest did not. Now, it is put as an urgent objection against me that I am asking a committee which has not fulfilled its duty to take on other duties. I am. I think the duties should be enforced.

Recently, I asked here whether the attention of the various judges concerned had been drawn to the fact that they were in dereliction of their statutory duties. I asked that either the statute be enforced or else that the provision be removed. The provision is good but it should be enforced. Surely it is possible to ensure that judges, who frequently admonish people who come before them in their various courts for breaches of statutory duties imposed on members of the public, will comply with a statute? They have to enforce statutory obligations upon other people.

I should like to see a revival of these Rules Committees. However, if it is not going to act then we would have to get something else. The President is now given the power to convene meetings. A great picture has been painted here of the district justices meeting, reading law journals, discussing the advances in the administration or the changes or improvements in the administration of law in other countries. The suggestion appears to be that there would be a sort of debating society mood on these people. The discussion will be with regard to the discharge of the business of the court, fines, penalties and the avoidance of undue divergencies in penalties. Just think of 40 district justices to be brought together, save such of them as have a legitimate excuse for not attending.

The President, having convened the 40 of them—he cannot convene them oftener than twice a year—each justice is bound to attend unless he has an excuse. Then they are supposed to discuss not merely this matter of fines and all the rest but scientific law journals and foreign publications. The thing is ludicrous. It would be much better to confine the justices' attention to the general terms of the practice, procedure and administration of their courts and that their attention should be directed to the law of the court and whether or not there is any improvement required in that law.

It should be remembered in all this, of course, that the phrase was used that the district justices are judges in every sense of the term. They are, except in the way they are styled and the way in which they are going to be addressed if the English version is used. It also must be remembered that under the Constitution the district justices have no constitutional protection in their position—none whatever. They have been given by law the protection the Constitution gives to the judges of the Supreme Court and the High Court. That law, of course, is subject to repeal at any moment. Their position is a rather weak, a delicate one.

When the Act of 1946 gave them legally this constitutional tenure given to the High Court and the Supreme Court it went on then to prescribe the method of judicial inquiry. There is a method of judicial inquiry laid down. It is, of course, only to be used in very special circumstances. It is in cases of either misbehaviour or incapacity of a type that possibly might lead to the dismissal or retirement of a judge if the machinery that is there were put into gear. The machinery is there and could be used in the district courts in a lesser way. Apart from that, there is the judicially accepted way of the Minister himself making inquiries and having a chat with a particular justice.

At column 1064 of the Second Reading debate the Minister came to the point of the new kind of jurisdiction over justices which is being vested in the President of the High Court by subsection (4) of Section 10 of the Bill. That has been changed now to the Chief Justice. The situation there was that the President of the High Court was to be empowered—and this is the time the President was first thought of although I am told this morning that it is traditionally the Chief Justice who has control of the whole administration of the courts. The first thought was to give it to the President of the High Court. Anyway, that only changed the personnel. The new jurisdiction was designed for the case where the formal inquiry by a High Court or a Supreme Court Judge provided for in Section 21 of the Courts of Justice (District Court) Act, 1946 would not be called for or would not be the best or most appropriate procedure.

The Minister said:

The view has always been taken— and I think rightly taken—that the elaborate machinery of the 1946 Act should not be set in motion by the Minister for Justice unless the allegations against the justice, if proved, would make it necessary for the Minister to move in the Oireachtas for the justice's removal from office.

The Minister then considered leaving it to the jurisdiction of the President of the High Court and it is now transferred to the Chief Justice.

The Minister continued:

The result has been that there is no redress available to the public or their representatives in less serious cases where, for example, offensive statements are made gratuitously by justices in regard to individuals or organisations or in relation to the legislation passed by the Oireachtas. All that is needed, the Government the necessary standing to advise the feels, is for some judicial person of justice or justices concerned to conform to the standards of behaviour followed by their colleagues in the execution of their office. I have little doubt that the friction which has been created from time to time—fortunately not very often— between justices and the public will be reduced, if not entirely eliminated, by the influence which the President will exercise on the conduct of justices generally.

Instead of the Minister finding it possible to approach an erring justice on his own, to bring about a better position, we have the two types of machinery, one where it is proposed that the President of the High Court should have this power, the second where that is now transferred to the Chief Justice.

What Deputy Barrett said in this connection has been referred to. I want to refer to more of what he said. He was picked out because he is the only person on this side of the House who said anything favourable at all to these proposals with regard to district justices. The Deputies beside me and Deputy Lindsay and myself all objected in very strong terms to the introduction of this officer at all. Deputy Barrett did say that he was glad the Minister was, so to speak, taking a hand in the game. That is not all of what he said.

At column 1100 he said:

I am not at all distressed by the provisions of Section 36 as some of my colleagues in these benches would appear to be. I am very glad that at last the Minister is taking a strong hand in the matter of the behaviour of district justices.

That is behaviour.

He continued:

More than one district justice in this country has shown complete disregard and disrespect for the people whom they are obliged to serve. I can honestly say that these men brought the district court, which is, generally speaking, of a high standard, into absolute disrepute by their contempt through lack of punctuality.

Now it is behaviour and it is mainly lack of punctuality.

He went on to say:

I myself sat for an hour and a quarter waiting for a district justice to arrive to hold a court. I am accordingly glad to see that the Minister has at last become sensitive to such a problem. It is not before time that this is being done; it has been going on for years, and I am glad that justices are being put on notice that they will have to do their job for which they are being well paid.

That is the matter of behaviour and we know that could be dealt with in a completely different way and without this peculiar machinery being thrown in.

Deputy Barrett continued, and this was not quoted:

I do not think there is any need to be apprehensive about subsection (3) (a) of Section 36. It does not mean the justices, when they come to talk with the President of the District Court, have to bow the knee or even pay any attention to what the learned President of that court may say.

Then he quotes the subsection and comments upon that:

It does not impose upon any district justice any obligation to pay the slightest attention to what the President of the District Court says. As far as I can see, the section simply envisages getting the district justices together under the learned President of the District Court in the hope that somebody will say something of use to his colleagues during the course of the meetings. They can go home as they came up.

A later comment was:

I do not think the meetings envisaged in this Bill will be as useful as the Minister seems to hope because any ordinary district justice should be able to keep himself up to date and should be able to know what jurisdiction he has. Apart from the ordinary mistake any judicial personage may make, from the Chief Justice down to a district justice, the ordinary justice of the district court knows the jurisdiction he holds and the administration should not alter very much from district to district.

At the bottom of column 1101 he said:

One thing I feel some anxiety about is the reference to the general level of fines and other penalties. Whilst it is true in practice that district justices need not pay any attention to what the President of the District Court says about the level of fines or other penalties, we should be practical in our approach and we should realise that in any human society the personal outlook of any person who is appointed to any position whatever, be it Minister, district justice, Ceann Comhairle or anything else, is bound to be coloured by the human failings or the human attributes of the person concerned. It is a bad thing to try to effect uniformity in a matter of that nature where it is so pre-eminently a matter for the individual conscience of every district justice.

The rest of his speech was about the use of the Irish terms.

People on this side of the House may have said various things about the appointments being made but when it came to functions and powers, with the exception of Deputy Barrett, there was no commendation of the proposal in the legislation saving only with regard to the matter of behaviour.

Mr. Haughey

The Deputy is wrong, of course.

Mr. McGilligan

Behaviour of the district justices was certainly commented upon. Everybody agrees in regard to the behaviour matter that the complaint could be made only against a few of the district justices. Nobody ever said there was a lot of erring in this way. If there had been, there would be an easy way to attend to it.

The Parliamentary Secretary referred to the district justice who was missing so many of his courts. That position was adverted to some time ago and the Minister for Justice said that he had found it possible to approach the district justice in that matter. If it is still the case, having been approached by the Minister for Justice, that the district justice is failing in that regard, there should be much more serious action taken. It is not a question of getting the President of the District Court to speak to him, or of having the Chief Justice say that in his opinion he is acting in a prejudicial way. If the district justice is still misbehaving after being approached by the Minister for Justice it is not just a matter for casual mention here in this House. There should be an application made under the Act of 1946.

With regard to the various amendments, I have suggested that the President of the District Court, as he is to be called, should be built into the framework of the District Court Rules Committee, and that he should be made chairman of the committee. There are four district justices on the committee nominated by the Minister for Justice. Sections 39, 40 and 41 deal with the number of justices in the Dublin Metropolitan District, the places in which the business of the courts shall be transacted and the days of the week on which the courts shall sit. Section 43 is not too clear to me. Whatever powers the President is given, certainly the committee should be brought into this matter and whatever is done in connection with the number of justices in the Dublin Metropolitan District, the places where business is transacted and the number of sittings, should be arrived at after consultation and agreement with the District Court Rules Committee.

It seems to be foolish when we have a District Court Rules Committee, the chairman at the moment being one of the Dublin justices, and the secretary being one of the district court clerks, to have a move away from it. If ever there was a case for the District Court Rules Committee it was for this type of thing. The President, if we are to have such a person—and one does not object to a person of that title if his powers are rationalised—should be made act in conjunction with the Committee. The alternative is to wipe out the Committee and let the President advise the Minister in every way. There have been individual amendments put down to other points.

Mr. Booth

Are we discussing amendments?

An Leas-Cheann Comhairle

We are discussing Section 35 and references to Section 36 have been permitted.

Mr. Haughey

I take it that when we come to the actual amendments there will not be a discussion on them.

Mr. McGilligan

Very little. Deputy Dillon raised a point in regard to subsection (2) (a) of Section 36. What is going to happen if it appears to the President of the District Court, when he has held an inquiry into the conduct of a district justice——

Mr. Booth

The Parliamentary Secretary has answered that already.

Mr. McGilligan

It is a serious matter.

Mr. Booth

Just by asking the question a second time does not mean that the Deputy should get a reply.

Mr. McGilligan

I often thought we lost a good chairman in the Deputy, but unfortunately we have not elected him yet. The subsection says that the President "may report the result of the inquiry to the Minister." It is important to know what is intended by this. The Minister for Justice said that the President could act informally without any inquiry, or there might be an inquiry, and the rest was left rather in the air. In regard to subsection (3) (a) we are told that this is not mandatory and that the President may convene meetings. The matters to be discussed are the discharge of the business of the court—that is very general—but in particular we are to have uniformity. There is an amendment to delete "uniformity" and substitute "the avoidance of undue divergencies," and then there is the general level of fines and other penalties.

Mr. Booth

On a point of order, it does appear——

Mr. Dillon

Is this a point of order?

An Leas-Cheann Comhairle

Deputy Booth on a point of order.

Mr. Booth

Is there not an instance here of undue repetition? I feel I have heard Deputy McGilligan make this speech several times.

An Leas-Cheann Comhairle

So for as the Chair is concerned I have not heard this submission made before.

Mr. McGilligan

Another rebuff for the future Chairman of the House. I have not mentioned this before, this matter of the general level of fines and penalties. Deputy O'Higgins has an amendment down to take that out. The matter may have been mentioned in some of the material I quoted from the record. It is a very serious matter since it would come under the District Court Rules Committee at the moment.

Mr. Haughey

Did the Deputy say it should be a matter for the Rules Committee?

Mr. McGilligan

It would be a matter for the Rules Committee inquiring into the administration of justice, to make recommendations as to how improvements could be made. They could refer to fines and penalties. They could, for instance, advise minimum penalties, which of course would be a matter of argument here. That has been tried before. There were certain penalties in regard to fisheries. There was the penalty of the forfeiture of the gear, for instance.

Mr. Haughey

Surely the district justices themselves could discuss it?

Mr. McGilligan

Certainly, I think they could but I do not know whether they should be asked, when we have an established committee and a most representative body. If 40 people are brought into a room, at the most twice a year, what headway will be made? They will be just as wise leaving the room as they were going into it. They need not pay any attention. It is merely a matter of listening to a discussion. It would be much better to have five district justices, a district court clerk and perhaps members of the legal profession in its two branches, discussing such things as fines and penalties than the whole body of district justices all coming together. The Rules Committee might put something on their agenda and send recommendations to the Minister—which they are entitled to do under Section 75——

Mr. Haughey

That is daft.

Mr. McGilligan

They can send recommendations to the Minister of course. I shall read it:

As soon as conveniently may be after every meeting of any such committee in pursuance of this section, such committee shall report to the Minister whether any and if so what amendments or alterations should, in the opinion of such committee, be made in the practice, procedure, or administration of the court in relation to which such committee is constituted or in the law affecting or administered by such court with a view to the improvement of the administration of justice...

Is it suggested that there would be no power in the Court Rules Committee to make a recommendation covering the minimum penalty? The functioning of the Rules Committee would be very much disimproved if any impediment were put in their way. They have very full terms of reference.

It does seem to me that to summon 40 justices together to meet not oftener than twice a year to discuss the general level of fines and penalties is ludicrous. There is also Deputy Dillon's objection to the mandatory way in which it is being expressed. Every justice must attend twice a year unless he has some legitimate excuse for not attending.

Again I go back to the old point that there is an excess, so to speak, of administrative control. The administration is now breaking in and encroaching on their office. One would not mind if the district justices were running riot and causing anxiety amongst the public. They are not. There are one or two black sheep and something should be done about certain people if they are still persisting in what has brought them under unfavourable notice.

It is rather alarming to find the Parliamentary Secretary referring to the Intoxicating Liquor Act. I have never heard any mention before of disparity between justices in the matter of the misuse or the over-use of the Probation of Offenders Act. In my experience only one person was informally approached and the matter did not retain any significance.

There is no case to be made for the building up of all this machinery from the point of view of discipline or the teaching of district justices. In connection with sentences and penalties there is quite as much disparity between the members of the circuit court, and indeed even the higher courts, and the district justices. There is a maximum in connection with the penalties but there is no minimum. Of course the maximum is hardly ever imposed but whatever the maximum may be there is a widespread disparity in the sentences imposed by judges.

Mr. Haughey

It is bad enough, and liable to prevent satisfactory discussion on this Bill, for Deputy McGilligan to misrepresent my point of view and those of Deputy Booth on various matters, but when he misrepresents the views of a senior colleague of his own, sitting on the front bench beside him, I think it is very serious and more reprehensible still. I refer of course to what he had to say about the views of his colleagues generally on the proposal to appoint the President of the District Court. Of course he is quite wrong in what he had to say about that and if necessary, I can give the reference.

I feel we have discussed this whole matter fairly fully. I made my case and I advanced sound and cogent reasons for the proposal. I think it is a well-meant proposal, one that will be of value, one that will be welcomed generally. I do not think there is any value at this stage in my following Deputy McGilligan around on the various points he raised. He just persists in refusing to see the value of the proposal. There is nothing I can do about that.

I know Deputy Dillon would be the first man to rise up and tell me I was daft if I were to make the ridiculous suggestion that the Rule Making Committee is a more appropriate body to discuss the general level of fines and penalties than the district justices themselves. That is really farcical. The more we discuss this, the more value emerges from the proposal. Deputy McGilligan said no case has been made for the building up of administrative machinery and then proceeded to outline a number of things which justify the proposal.

Surely the case has been adequately made. We all agree there is scope for increasing the efficiency of district court sittings. There is general agreement that there is disparity in the general level of the fines and penalties and even Deputy McGilligan himself is now prepared to admit there would be some value in someone discussing the general level of fines and penalties. Of course he would not be constructive enough for one moment to agree that the district justices would be the right people, but at least he admits now that someone should discuss the general level of fines and penalties.

As I say, the more the debate has gone on the more I am convinced that this proposal is well-founded and will be of considerable value. I do not think there is any real substance in the various objections put forward. Deputy McGilligan attempts to confuse the issue by saying the Minister will have to take the initiative in the proposed investigations by the President of the District Court. Of course subsection (2) (a) covers that. Subsection (2) (a) states: "Where it appears to the President of the District Court...."

Anyone can approach the President of the District Court. For instance, the Southern Law Association might take the initiative with regard to district court sittings. I could visualise even a member of the public or the Incorporated Law Society doing so— anyone can bring a matter to the attention of the President of the District Court. It is absurd to suggest it is only the Minister who can initiate these proceedings. Again, Deputy McGilligan has pointed out that the Minister on occasion has done this very thing. From what I gather from his remarks he approves of the Minister doing that. Therefore, he admits there is cause for someone to take this sort of action. Surely, the Opposition will be the first to agree that if somebody must do this, it is better that a judicial person should do it.

Deputy McGilligan spoke about the importance of differentiating between the Executive and the judiciary. He talked about keeping them apart so as to avoid any question of the usurpation of functions. That establishes the fact, as Deputy McGilligan admits, that somebody must do this business and it is best somebody vested with judicial office should do it.

To deal with the remainder of what Deputy McGilligan said would be to go over the same ground again. I do not intend to delay the House any further except to say that I feel I have made a very adequate case for these proposals and I feel sure the House will accept them.

Mr. Dillon

I can understand the Parliamentary Secretary resting on the advice he received but it does not add anything to the debate for the Parliamentary Secretary to make impudent references to an ex-Attorney-General and a Deputy whose contributions to the debate are invaluable to any rational person listening to him.

I have said throughout the debate that my primary concern is with subsection (3). I believe that subsection is calculated to arouse bitter resentment—and in my considered judgment, justifiable resentment—in the judges of the district court who are, in my judgment, some of the more important judges in the State because they come into closest contact with the daily lives of the people.

I detect in the contributions made by Deputy Booth and the Parliamentary Secretary the very kind of tendency that I resent. They appear to think that there is nothing untoward in authorising the President of the High Court to issue a command twice a year to district justices to assemble and discuss certain matters. I would ask these Deputies——

Mr. Haughey

Do we not command them to attend the district court at a certain time?

Mr. Dillon

That is for the discharge of their functions as judges. I ask those Deputies to reflect on this. Suppose a proposal were brought forward in Great Britain that the Lord Chief Justice had the right to command the attendance of the Lords of Appeal and the High Court judges of Great Britain not more than twice a year and that the judges and Lords of Appeal failed to answer that summons at their peril. If the purpose of the summons was to discuss the administration of their courts and the penalties and fines they habitually impose, I think every judge of the High Court in Great Britain would indignantly refuse to come and would regard it as a grave infringement of his office to submit his judgment.

Mr. Booth

How does that effect the district court here?

Mr. Dillon

That is exactly what I am coming to. That is the very undesirable—I am using moderate language—mentality which characterises this discussion. Deputy Booth asks how that affects the district court here because instinctively he regards the district court here as something inferior to the High Court. It is true that in the scope of its jurisdiction, it can be technically described as an inferior court because from it there is a right of appeal to the High Court. In my judgment, any court which has in its custody the freedom of persons, especially the right to commit a man to jail, ought to be treated with great respect and everything ought to be done to establish it in the eyes of the people as an honourable and powerful institution.

I myself mentioned in this House how urgently necessary, in my judgment, it was to ensure that the district justices or circuit court judges would not fall by custom into the practice of even speaking to the State solicitor or any officer of the Garda Síochána until the criminal business of the court had been disposed of because you want to create the impression that the judge disposing of criminal business is in an exalted position and as ready to resist the Executive to whatever limits are requisite as he is to impose penalties on the individual.

In the proposal contained in subsection (3) of this section, we are providing for a procedure in respect of district justices which nobody suggests we should provide in respect of circuit court judges or High Court judges. Anyone who has interested himself——

Mr. Booth

There is not the same volume of business.

Mr. Dillon

I think there is probably the same volume of business in the circuit court.

Mr. Haughey

There were 250,000 cases before the district court——

Mr. McGilligan

Bicycle lights.

Mr. Dillon

Nobody suggests that we should compel the circuit court judges to assemble twice a year, if requisitioned to do so, to discuss sentences they impose. Nobody suggests that High Court judges should assemble twice a year to discuss the appropriate penalties they impose in Green Street. Under our system of law, one judge may take a more severe view than another of a particular crime. It is for that reason that 50 or 60 years ago the Court of Criminal Appeal was instituted because situations did arise in which what appeared to the generality to be savage sentences were doled out in the circuit court as compared with the average sentences in other courts.

Mr. Booth

We are not dealing with the criminal side of the district court.

Mr. Dillon

What do fines and penalties refer to? Do you impose a fine or a penalty in the district court in respect of trespass?

Mr. Booth

No. Parking is not a criminal offence.

Mr. Haughey

That is only one of the matters.

Mr. Dillon

Are we to be so refined in our language as to differentiate between statute and criminal law? We are dealing with breaches of the law and not with contracts or torts. We are dealing with issues joined between a citizen and the State.

Mr. Haughey

The subsection says "including, in particular."

Mr. Dillon

I am seeking to make the case that we are providing to make a procedure in respect of district justices which does not apply to circuit court judges or High Court judges. The moment we do that we register the fact that we see a difference between them. I am talking about the procedure in relation to regulating the fines and penalties to be imposed.

Mr. Booth

The difference between the two courts is the volume of business.

Mr. Dillon

If that is the only difference, does that not fortify our argument? We should not prescribe any procedure for district justices that would be inappropriate for circuit court and High Court judges. In so far as we do, do we not emphasise the fact that we regard the district justice as something less than a justice?

Mr. Haughey

No.

Mr. Dillon

I want to emphasise the fact that he is all a justice.

Mr. Haughey

We have said that clearly in the Establishment Bill.

Mr. Dillon

Saying a thing is one thing and acting in accordance with what we say is quite another thing.

Mr. Haughey

I consider that Deputy Dillon is in earnest in trying to get the best Bill we can, as we all are. In all these provisions we are not directing our efforts towards the quality of the justices as such but merely towards the administrative machinery of the courts. We have got a vast volume of business going through the courts and we want to channel that business as quickly and as effectively as possible. There is no reflection on the capacity or quality of the justices.

Mr. Dillon

The point I am pressing on the Parliamentary Secretary is that this procedure of summoning justices to the kind of assembly envisaged in subsection (3) is bitterly resented by certain of the justices as an infringement on their discretion, which they regard themselves as bound by their oath to exercise.

Mr. Booth

They cannot have read the section.

Mr. Dillon

That is the kind of exasperating observation that evokes acrimony. I beg of Deputy Booth to intervene if he wants to, but not to interrupt me. If we want the new departure under Sections 35 and 36 to get a fair chance of success and to work—and I am prepared to say that some authority is necessary to ensure the courts will be regularly and properly held and other matters attended to—we ought to refrain from doing something which I certainly think leaves real ground for complaint. The fact that we drop subsection (3) does not bind us for all time. If it subsequently emerged that a widespread abuse existed, we could legislate ad hoc to meet that abuse, but there must be evidence that there is a widespread abuse in existence. Nobody has alleged that there is a public scandal we have not been able to master without recourse to this procedure. This is put in, apparently, with the desire to ensure that if a widespread scandal should arise, this machinery will operate to stop it.

One of the most offensive things we could do in this Oireachtas in respect of any judicial body is to say: "We apprehend your conduct is going to amount to a public scandal and we are going to take precautions in advance to prevent that public scandal arising, if and when it does." We ought to proceed on the assumption that the men whom we have appointed to the district court bench are of the character and quality which make the possibility of such a public scandal envisaged in subsection (3) arising extremely remote. That does not say that if it did, we should not be quite prepared to replace it and deal with it.

I differentiate between the situation that subsection (2) is designed to deal with and the situation that Section 35 and subsections (1) and (2) of Section 36 are designed to deal with. I am convinced that if you stick to subsection (3), you are going to create a whole lot of difficulties that need not be created; whereas, if you drop it, I think you give a signal that you have respect for the feelings of the judicial persons, that you recognise their quality and that you are prepared to say: "We have come to the conclusion that your voluntary meetings, which have been proceeding and which doubtless will continue, will meet any requirement that exists, and that the fact that you are already meeting voluntarily makes it quite clear you are aware of the desirability of exchanging views amongst men actively engaged in the work with which you are charged and that you are not confining yourselves to reading textbooks and journals and cutting yourselves off from the normal life of the community in which you function. Recognising your judicial dignity, we have full confidence that you will go on having these conferences, in so far as they may be necessary, and that any desirable purpose that can be served by these conferences will be so served."

When you do this the Parliamentary Secretary is wholly mistaken in believing that the body of the district justices will accept subsection (3) as merely official approbation of an unofficial practice which we all applaud. I think their reaction to subsection (3) will be to say: "What was necessary was being done in a dignified and decent way. What is now sought to be done is to turn us into a kind of inferior body with the mark upon us that the Oireachtas do not trust us and feel that our administration of justice has become notorious and that it is necessary to bring us together once or twice a year under the chairmanship of the new officer of the court, the President of the District Court, in order to make sure we are toeing the line."

I think you are doing a very imprudent thing. I think you are going to make the working of this new office unnecessarily difficult. I think you are going to offend excellent public servants, who are, in my judgment, justifiably offended by this proposal. It is for that reason I urge the Parliamentary Secretary to drop it. I am inclined to agree we have argued this as far as we can. We propose to put down an amendment on Report Stage. I would urge the Parliamentary Secretary most strenuously, in the interest of the smooth working of what is a new departure of which not everybody will approve, that we drop subsection (3) and give the remainder a chance of functioning.

Mr. Haughey

I am glad to agree that we have probably discussed this as far as we can. I think it is important to say that the furthest thing from my mind is to attempt to put this through in the spirit Deputy Dillon feels it is being put through and to annoy district justices or upset them in any way. I would hope to make it clear that we recognise the value of these meetings that are being held and doing nothing more than attempting to put them on a proper basis and to facilitate them. I would hope that the district justices would see in this the Oireachtas offering them something which we would hope would be of value and of assistance to them. I do not want to say any more.

Mr. McGilligan

I just want to make one last observation to correct a phrase of the Parliamentary Secretary. I did not say it was desirable that the District Court Rules Committee should deal with the question of penalties. I said it was open to them. I do not think there is any case made for any such inquiry to be made or for any recommendation about them to be made. There is no evidence before me to warrant that. I said it was open to them to make a recommendation. That is far from saying it was desirable they should.

Question put and declared carried.

SECTION 36.

Amendment No. 60 not moved.

Mr. McGilligan

Would you say, Sir, what amendments you thought hinged on that?

An Leas-Cheann Comhairle

Amendments Nos. 66, 68, 69, 70 and 71.

Mr. McGilligan

May I observe that they refer to different sections? They are on particular matters whereas amendments 60 and 61 are general.

An Leas-Cheann Comhairle

They relate to different sections, but they may be discussed together.

Mr. Haughey

We are not going to discuss these now?

Mr. McGilligan

Sections 39, 40, 41 and 43 seem to be matters where the Rules Committee ought at least to be consulted.

Mr. Dillon

I suggest we deal with the amendments arising out of Section 36 and get them out of the way.

An Leas-Cheann Comhairle

Amendments Nos. 61 and 63 could be discussed together. Amendment No. 63 is consequential.

Mr. Haughey

I move amendment No. 61:

In subsection (2), paragraph (a), page 20, lines 29 and 30, to delete "he shall inquire into the matter and may report the result of the inquiry" and substitute "he shall investigate the matter and may report the result of the investigation".

I think the House will agree this is a desirable change. It might be thought that the word "inquire" would connote a full-scale formal inquiry.

Mr. McGilligan

I should have thought "investigate" was a much sterner word than "inquiry".

Mr. Haughey

My only concern is to make it clear that we do not mean that a full-scale formal inquiry, with witnesses and so on, will have to be held on every occasion.

Amendment agreed to.

Amendment No. 62 not moved.

Mr. Haughey

I move amendment No. 63:

In subsection (2), paragraph (b), page 20, line 32, to delete "inquiry" and substitute "investigation".

Amendment agreed to.

Mr. Haughey

I move amendment No. 64:

In subsection (3), paragraph (a), page 20, line 38, to delete "uniformity" and substitute "the avoidance of undue divergences".

In view of the general tenor of the discussion, I think this amendment will be acceptable to the House. Some objection was taken to the use of the word "uniformity" and, in an endeavour to meet the objections raised, I am proposing to substitute "the avoidance of undue divergences"

Mr. McGilligan

To discuss "uniformity" could be very general, but to discuss "the avoidance of undue divergences" is surely leading towards action.

Mr. Haughey

I do not think so. There was a reaction on the part of the House towards any suggestion that there should be uniformity, as meaning something very precise and definite. What we really have in mind is to avoid, as far as possible, any unnecessary disparity or divergence. In the light of the discussion we had, I think these words are certainly more appropriate. I thought they would be much more acceptable to the House.

Mr. McGilligan

There was a general objection to "uniformity" being discussed at all. To substitute "the avoidance of undue divergences" seems to me to be going from bad to worse.

Mr. Haughey

Surely, that cannot be so. The word "undue" is at least an improvement.

Mr. Dillon

I am opposed to the whole principle of subsection (3) and, therefore, this is a battle in which I do not propose to join.

Mr. Booth

Surely it protects the right of district justices to have some divergences, which is a very valuable principle. It is not asking for uniformity at all.

Mr. McGilligan

Within the law, divergences are quite all right. What are "undue divergences"?

Mr. Booth

Unreasonable divergences.

Mr. McGilligan

And who is to be the judge of that?

Mr. Haughey

The man on the Clapham bus. He is traditionally the reasonable man.

Mr. McGilligan

Then Deputy Booth should get off the Clapham bus.

Mr. Booth

I was not on the bus. I would say the district justice himself is the proper person to decide as to what is a proper divergence.

Mr. McGilligan

So district justices would lay down limits outside which they could not go.

Mr. Booth

Not necessarily.

Mr. McGilligan

I still think this amendment makes the position worse, not better.

Amendment agreed to.

Mr. T.F. O'Higgins

I move amendment No. 65:

In subsection (3) (a), lines 39 and 40, to delete "and the general level of fines and other penalties".

Mr. Haughey

I oppose this amendment for the reasons I have already given.

Amendment put and declared lost.

Mr. McGilligan

I move amendment No. 66:

In subsection (4), page 20, lines 48 and 49, to delete "whenever he thinks fit" and substitute "with the agreement of the District Court Rules Committee".

This amendment relates back to amendment No. 60, but there is a difference. This is a very special matter. The President is to make recommendations to the Minister in relation to three matters in the Dublin Metropolitan District. Why should not the District Court Rules Committee be at least associated with this? It says "whenever he thinks fit". I say cut that out and say "with the agreement of the District Court Rules Committee".

Mr. Haughey

As the President of the District Court is to be a member of the District Court Rules Committee——

Mr. McGilligan

Certainly.

Mr. Haughey

——I do not see that any reason exists to justify this amendment. It is in a completely different province.

Mr. McGilligan

The District Court Rules Committee includes two solicitors and one barrister and a district justice from the country as well as from Dublin, but one at least from Dublin.

Mr. Haughey

The President of the District Court would be chairman of the Rules Committee. He would, therefore, be fully aware of their views.

Mr. McGilligan

But he need not consult them.

Mr. Haughey

I do not think that it would be appropriate for the particular functions assigned to him here that he should consult them. What we are dealing with is the number of district justices to preside in Dublin, the places for holding the district courts, the days, and the hours. These are strictly administrative matters and not appropriate to the functions of the Rules Committee.

Mr. McGilligan

The first argument was that the President would be consulted on the Rules Committee. Now it transpires he need not be consulted. This section says "Do not consult them." I think this is something on which the Rules Committee ought to be consulted.

Amendment, by leave, withdrawn.

Mr. Haughey

I move amendment No. 67:

In subsection (4), paragraph (c), page 21, line 4, to delete "or areas."

The reference to areas is intended to have merely geographical or territorial significance and not any technical meaning, such as district court area. We think the deletion of these words is an improvement. It does not make any change of substance.

Amendment agreed to.

Section 36, as amended, put and agreed to.

SECTION 37.

Question proposed: "That Section 37 stand part of the Bill."

Mr. McGilligan

Why have the divisions been abolished?

Mr. Haughey

Because there will be a President of the District Court and he will have to apportion the work as between the various district justices.

Mr. McGilligan

Division is not mentioned in Section 36.

Mr. Haughey

There will not be divisions any more.

Mr. McGilligan

Areas.

Mr. Haughey

The President will allocate the business without reference to the divisions.

Question put and agreed to.

Section 38 agreed to.

SECTION 39.

An Leas-Cheann Comhairle

Amendment 68 is related to amendment 60 as are amendments 69, 70 and 71.

Mr. McGilligan

They are different matters but may I point out in relation to the first of them, if the Minister is now to determine the number of justices of the district court to be permanently assigned to the Dublin Metropolitan District, if he is to appoint the place for the transaction of the business of the district court and if he is to appoint the number of sitting days, surely this is an occasion when the Rules Committee should be consulted.

Mr. Haughey

The President of the District Court will be ex officio chairman of the Rules Committee and therefore he will have the full benefit of the views of that committee when he comes to consult with the Minister. These are, as I said, administrative functions. They deal with places, sittings, times and matters of that sort.

Mr. McGilligan

The District Court Rules Committee has to deal with the administration of justice. The inference is that the President of the District Court will have consulted the District Court Rules Committee seeing that he is a member of it, but he need not. The only person the Minister has to approach is the President of the District Court.

Mr. Haughey

The Rules Committee deals with the practice, procedure and administration of the courts.

Mr. McGilligan

Procedure?

Mr. Haughey

It is not an appropriate committee to deal with places, sittings and the times of sittings. To my mind, procedure in that context means the manner in which the internal business of the court shall be conducted.

Mr. McGilligan

The number of sitting days?

Mr. Haughey

No, I do not think so.

Mr. McGilligan

It is not procedure?

Mr. Haughey

No.

Amendment No. 68 not moved.

Section 39 agreed to.

Amendment 69 not moved.

Section 40 agreed to.

Amendment No. 70 not moved.

Sections 41 and 42 agreed to.

SECTION 43.

Amendment No. 71 not moved.

Question proposed: "That Section 43 stand part of the Bill."

Mr. McGilligan

What is the power under Section 26 of the Act of 1953?

Mr. Haughey

The Minister is empowered by the Act of 1953 to alter the places or vary the days or hours for the time being appointed for holding a district court throughout the country.

Mr. McGilligan

That is in the country?

Mr. Haughey

Yes.

Mr. McGilligan

It seems to me that is clearly a place where the Rules Committee should be consulted for this is now going outside the Dublin areas.

Question put and agreed to.

SECTION 44.

Question proposed: "That Section 44 stand part of the Bill."

Mr. McGilligan

The Minister is to nominate a secretary. How was it done before? It was not the Minister who did it before. It was automatic—whoever was the clerk for the area which comprises the county borough of Dublin. The Minister now can choose between the various district court clerks of the Dublin Metropolitan District.

Mr. Haughey

It is the same as before.

Mr. McGilligan

In the 1936 Act it is provided that ex-officio members shall be, first of all, a justice and secondly, a district court clerk for the districts which comprise the county borough of Dublin who shall be the secretary of the Committee. Now the Minister appoints the secretary.

Mr. Haughey

The 1946 Act amended the 1936 Act which said "such one of the district court clerks in the Dublin Metropolitan District as the Minister shall nominate."

Mr. McGilligan

It is carrying that forward?

Mr. Haughey

Yes.

Question put and agreed to.

NEW SECTION

Mr. Haughey

I move amendment No. 72:

Before section 45, but in Part V, to insert the following new section:

Justice may be administered otherwise than in public in any of the following cases:

(a) applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction;

(b) matrimonial causes and matters;

(c) lunacy and minor matters;

(d) proceedings involving the disclosure of a secret manufacturing process;

(e) any case in which provision to that effect was made by or under any statute, whether of the Parliament of the former United Kingdom or of the Oireachtas of Saorstát Éireann;

(f) any case prescribed by or under an Act of the Oireachtas.

The House will recall that Article 34 (1) of the Constitution provides:

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

I think the House will agree the cases set out in the proposed new section are reasonably comprehensive and represent a satisfactory balance between the desirability of having justice appear to be done and the impossibility or undesirability in the general interest of having hearings in open court.

Mr. McGilligan

The Constitution looks, too, the other way. The Constitution says: "Justice shall be administered in courts established by law" and shall be in public save in certain cases. The exceptions are a minority. There is a very big number of exceptions brought in here. Such matters as those at (c), lunacy and minor matters, are generally conducted in camera, because of the circumstances of the case. As regards (b), matrimonial causes and matters, I do not know if they are ordinarily heard in closed court. As regards separation cases, they are not conducted in private at the moment.

Mr. Haughey

All we want to ensure here is that if the judge thinks, because of the nature of the case——

Mr. McGilligan

Where is that?

Mr. Haughey

He may. It is purely permissive.

Mr. McGilligan

These are all subject to what a judge thinks. It is even for him to say a lunacy or minor matter should be brought into open court?

Mr. Haughey

Yes.

Mr. McGilligan

And proceedings involving the disclosure of secret manufacturing processes?

Mr. Haughey

Yes.

Mr. McGilligan

Or something which is not mentioned here—I do not know whether it arises—income tax cases which are ordinarily held in camera?

Mr. Haughey

It comes under (f).

Mr. McGilligan

At the moment an income tax case, until it gets to the very highest court, is heard in camera.

Mr. Haughey

By an Act of the Oireachtas.

Mr. McGilligan

I am told now where a judge thinks it is appropriate, he may bring these into open court. Surely that is not right? I would question the matrimonial causes, as it seems to me it is provided you need not have any matrimonial causes or matters administered in open court.

Mr. Haughey

Deputy McGilligan is not correct in thinking an income tax case could now be held in open court. This Section is only permissive. It is only giving the necessary constitutional authority to enable a case like that to be held in camera. The Act of the Oireachtas dealing with income tax cases specifically provides they must be heard in camera.

Mr. McGilligan

It must be heard in camera. There is no question of "maybe" there at all. With regard to the others, matrimonial causes and other matters are not so tied. There are certain matters where indecency arises and the court would be cleared but, generally speaking, the ordinary case of a person looking for a separation is not heard in camera at all. This gives the power to hear any such cases in camera, depending on the judge.

Mr. Haughey

This is a new matter. I am open to persuasion. If Deputy McGilligan wants to suggest some restriction on clause (b), I would certainly consider it.

Mr. McGilligan

What I say is that the Article of the Constitution that starts the series of articles dealing with justice is:

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

Now we are going to make the law and the law is that "justice may be administered otherwise than in public in any of the following cases" and then we bring in quite a number of matters.

I asked about income tax matters and I was told that that is covered by clause (f), that is where it is prescribed by an Act of the Oireachtas. I am not sure if that is so but it is either (f) or (b). I am told that as long as the law says the case must be heard in camera then it cannot be moved into open court but when I asked about matrimonial causes I am told the judge will determine that; he will say whether it ought to be heard in camera or not.

Mr. Haughey

Unless there is a prior statute.

Mr. McGilligan

There is not, I suggest, except in the case of some indecent matters coming in. In the ordinary straight type of matrimonial matters, say, of a person looking for a separation on grounds of cruelty, it is heard in open court. I am told that that may be heard in camera. I want to know who is to decide and I am told the judge. I think that is wrong.

Mr. Haughey

What would the Deputy suggest? Let me explain what we are concerned with here. There may be a case where there are some delicate issues involved, such as there may very well be in matrimonial causes, and a judge might feel in that particular case that he would not get the true facts or the full information if the case were heard in open court because of the embarrassment to the parties or something of that nature. We want to ensure that justice will be given full effect to and that if cases arise where the judge thinks the case should be heard in camera, he will have the constitutional permission, as it were, to hold it in camera. If we are being too sweeping, if Deputy McGilligan objects to that as being too wide, I am certainly prepared to consider an alternative.

Mr. T.F. O'Higgins

The position at the moment and, indeed, for as long as one can remember, is that there is no bar or prohibition or practice whereby an ordinary matrimonial cause is not disposed of and heard in public court, the same as any other case or matter. There is a particular provision under the Married Women's Property Act—Section 12—of a few years ago whereby in relation to the settlement of disputes between husband and wife in relation to that particular matter the proceedings must be heard in camera. That was a repetition of the similar provision that had been in the earlier Married Women's Property Act but that is the only cause, that I am aware of, of a matrimonial nature where the practice has been up to this to hold proceedings in camera. The ordinary petition for a divorce a mensa et tora is heard in public court. I do not think it is desirable that that should be changed and I think clause (b) is too general and too sweeping.

Mr. Dillon

Are we not following here, subconsciously, a false precedent? There is a precedent in the British statute law dealing with divorce matters which precludes a newspaper from reporting more than the plea and the decision of the court and which prohibits the detailed reporting of evidence taken in divorce proceedings. That is a restriction on newspapers. So far as I know, there is no restriction on the public hearing of the matter.

The trouble about all this is that I suppose if the truth were told one party to nearly every form of litigation would prefer the proceedings to be in camera but it is generally accepted, and I think rightly accepted, that it is a very necessary protection for the public that all litigation, as a general rule, should be heard in public because usually the man who wants the litigation to proceed in private is hoping to get away with something that he does not want his neighbours to know about. It may be the details of his previous conduct or the form of his demand. The tradition of hearing cases in public is well-founded on the conviction that the law administered in public is the most effective way of getting justice for all. That is a principle we should be very slow to bridge in any particular. The Parliamentary Secretary accepts that general principle, I understand, and concedes that if this is too general it can be amended.

I am not sufficiently familiar with the practice of the courts to say in how far this goes beyond what is the present situation but I think it is a reasonable attitude to say that whatever the position is at the present moment has been ordained for good and sufficient reason. The Oireachtas has been satisfied in respect of the matters referred to by Deputy O'Higgins either to adopt what was the practice in Great Britain or to enact special legislation itself. In so far as this section goes beyond what is the practice, the Parliamentary Secretary has an obligation to argue for it so that we may hear what the arguments are and unless he has a powerful argument for extending the area where litigation in camera can be conducted, our instinct ought to be not to extend the area. I should like to know on what ground is it sought to provide trial in camera for matrimonial causes. Is it related to the practice in England that proceedings in the divorce courts there may not be public, because it is quite different from holding them in camera and restraining the newspapers from publishing them.

Mr. T.F. O'Higgins

The object of the amendment is to deal with the constitutional provision in relation to administering justice in the open court. The Constitution provides that this shall be done "save in such special and limited cases as may be prescribed by law". They have already been prescribed by law, in relation to income tax, patent cases and certain matrimonial issues. They are already laid down in the appropriate statutes and the case for their exception was made when that statue was being passed. Paragraph (a), "applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction" has not been dealt with by statue because, generally speaking, there are sound common law remedies. Obviously it is desirable that the intention of Article 34 should be extended now in this Bill to provide for urgent applications in relation to habeas corpus and so on.

The same position probably arises in relation to paragraph (c) "lunacy and minor matters". There may be no statutory provision for paragraph (c) but I would imagine that if the Minister's amendment dealt merely with paragraphs (a) and (c) the case would be made because the other matters are already prescribed by law and are already envisaged under the appropriate Article of the Constitution.

Mr. Haughey

Let me make the case for paragraph (c) in any event. It has been represented to us from the most responsible possible source that in certain types of matrimonial cases the nature of the case is such, and the intimate details which may have to be disclosed are such, that if the case were held in open court justice would not be done, and the full facts would not be made available to the judge because, human nature being what it is, embarrassment or some reason or motive would prevent one of the parties from disclosing the full facts.

I think the House must recognise that that is a very real danger. I certainly accept and I think the House should accept that view as expressed by an official person who is in the best position to know and whose advice we got on this very serious matter. The Constitution specifically lays an obligation on us to provide by statue that some cases would be held in camera. If we did not write down “matrimonial causes and matters” as we have done and left those matters at large as it were, it would be open to the Court from time to time to have cases held in camera which need not be held in camera, and cases that the general principle of the Bill intends should not be held in camera. I am prepared to leave it to the discretion of the judges and I think we would be perfectly safe in doing that.

Mr. McGilligan

Is it constitutional?

Mr. Haughey

It is.

Mr. McGilligan

The Constitution says "save in such special and limited cases prescribed by law".

Mr. Haughey

This is the prescription.

Mr. McGilligan

The Parliamentary Secretary is making it whatever the judge likes in this Act.

Mr. Haughey

We are prescribing here for such limited and special cases and one is matrimonial cases.

Mr. McGilligan

It does not say that. It says: "... otherwise than in public in any of the following cases".

Mr. Haughey

"... may be administered otherwise than in public in any of the following cases". It is left open and left to the discretion of the judge that in a matrimonial case where it is warranted it may be held in camera but all other cases need not be. I think that is the most effective way of dealing with the situation. Indeed, I think it is the only way. As I say, I am open to argument and if Deputy O'Higgins can think of a better formula I am prepared to consider it.

Mr. T.F. O'Higgins

I would be inclined to say: "Such matrimonial causes and matters as in the opinion of the judge comply with the following conditions" and then lay down (a), (b), (c)—something of that kind. It is only in matrimonial cases where the judge feels that by reason of the issues involved, or because for one reason or another the full evidence is unlikely to come before the court, in order that justice may be done, that it is anticipated the proceedings should not be held in public. If that is the intention it should be so stated, and the judge should be satisfied that those conditions obtain. They should be in the statue and he should be satisfied that they obtain.

Mr. McGilligan

The Constitution is very forthright. It says: "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public". If this amendment read: "Justice may be administered otherwise than in public in such special and limited cases as may be prescribed by law", I suggest that would narrow it a bit more than "in any of the following cases".

Deputy O'Higgins suggested that we should say "where the judge is satisfied that certain things occur". That is getting nearer to the Constitution but at the same time we cannot give this whole matter to a judge and say: Matrimonial causes and matters, lunacy and minor matters may be held in camera under the Constitution. I do not think it would be so held.

Mr. T.F. O'Higgins

Perhaps the Parliamentary Secretary would have another look at the amendment.

Mr. Haughey

Certainly. I also invite Deputy O'Higgins to suggest another form of words.

Mr. McGilligan

I urge that the present form of words should be abandoned. It is far too wide.

Mr. Haughey

Would the Deputy suggest an alternative?

Mr. McGilligan

I suggest taking out paragraphs (b) and (c) entirely. They should be brought inside the Constitution by prescribing them in a special piece of law.

Mr. Haughey

This is the piece of law.

Mr. McGilligan

This is not prescribing the special and limited cases.

Mr. Haughey

This is the piece of law where we must prescribe it.

Mr. McGilligan

The judge may opt, and that is not in the Constitution.

Mr. T.F. O'Higgins

It is not.

Mr. Dillon

We still have not resolved amendment No. 72. I move to report progress.

Progress reported; Committee to sit again.