Is that amendment agreed?
Committee on Finance. - Courts (Supplemental Provisions) Bill, 1959—Committee Stage (Resumed).
In the sense that it will be looked into further.
In connection with this amendment, it will be borne in mind that there is grave doubt as to its constitutionality if it does not eliminate the discretion of the judge. Weighty information is now available that this is a matter which cannot in the statute be left to the discretion of the judge. It must be stipulated in the statute in order to conform with the terms of the Constitution. That was one point. The other is as to whether it is desirable generally to include matrimonial cases.
I am satisfied it is in order but, in view of the case made by the Opposition, I am prepared to have it re-examined.
I move amendment No. 73;
In subsection (1), line 23, to delete "shall" and substitute "may".
Perhaps by agreement 75 and 76 could be discussed with 73.
I move these amendments to Section 45 of the Bill. Section 45 as it appeared in the Bill is a section which in my view gives great offence to the legal profession, I think, and to a large number of people. I do not know how the section appeared but since it is there it has got to be dealt with. I made the case on the Second Reading of the Bill that this was an unwarrantable interference with the courts in the manner in which the courts conducted their affairs and I suggested that the mode of address of judges should be a matter which should be controlled and regulated by the Rules of Court and that, in fact, that has always been the way in which these things are done.
Obviously the section is designed to prohibit the accustomed mode of address utilised at the Bar in relation to the presiding judge. That mode of address is one which is used only in court and used only at the Bar. I do not understand why, if members of the Bar and the courts themselves feel that that is the way things should be done, there should be any interference in that respect. It was suggested here on the Second Reading that to address a judge as "my Lord" or to refer to him in the third person as "Your Lordship" was in some way a remnant of some alien view and in some way servile and servient. Of course, it has nothing to do whatever with the practice in the British courts and it is well that that should be said.
It is part of the tradition which arises from the fact that the forms in our courts are associated exclusively with Canon Law and with the Ecclesiastical Courts and the title "my Lord" has come to us from the fact that in the years gone by it was the practice in the Ecclesiastical Courts that applied. As frequently the presiding person in the old Ecclesiastical Court was a bishop, the title and style of address—"my Lord"—was associated with these courts. Although our conventions and relations between citizens are no longer based on the Canon Law, it has survived into the ordinary law of the land. That is history and those who have taken part in the Second Reading, thinking that they were having a tilt at something British, should re-examine the way they are aiming their lances because they are not tilting at anything British; they are tilting at something which is part of our Christian heritage in this country. I do not think that any Christian in this country of any denomination who recognises bishops in his religion would regard it as being in any way wrong or servile or in any way improper to address a bishop as "my Lord". That is the recognised mode of address.
I was interested to learn that some exponents of this section as it stands apparently understood that when one met a judge or referred to a judge outside court he was still called "my Lord" or "your Lordship". Of course, that is not so. He is called "judge" if one does not know him sufficiently intimately to refer to him by his Christian name. This form of address is purely a form of address existing at the Bar and it is essentially a court matter to be governed and ruled, in my view, by whatever the court itself and the appropriate rule-making committee thinks expedient. The purpose of this amendment which I move at this stage is to substitute in the section for the word "shall" the word "may" in each of the subsections so that the first sub-section would read: "The Chief Justice may be addressed in court as ‘A Phríomh-Bhreithimh"'. Similarly, each other judge may be addressed as "A Bhreithimh".
It is felt that if any interference should take place at all it should be merely in providing an alternative mode of address to what there is at the moment and giving permission to address the Chief Justice or any other judge in the Irish form of the title. I do not think that even that should be done. However, if something has to be done, it should not be more than that.
The proposal is that the Chief Justice "shall"—in other words we must call him by the Irish term. If we call him by any other term we will be corrected by the judge I assume. But in the district court 99 people out of a hundred do not know a word of Irish. In fact, I doubt if they have a good knowledge of English. They are probably well used to slang and probably bad language.
But to ask those people to address the District Justice in the Irish form is ridiculous. I do not believe they would be able to pronounce it and it makes fun of the Justice to give the wrong pronunciation. I am not a good man at Irish, I could never get down to it. How those people, the average pickpocket, street walker or some person there for assault, is going to get around the Irish term is beyond me.
They would never be in the Supreme Court.
Have they not to use the Irish term for District Justice too?
I assure you they will be getting corrected all over the place by the District Justice. They should have the option of using the Irish term or "sir" or "justice" or "judge".
That would arise on the next amendment.
They "shall" and you may bet that half the time they are going to be corrected by the Justice. There should be no objection to calling a judge or justice something else. It is time we got rid of the lordships and the worships.
That does not arise on the amendment, which is to delete "shall" and substitute "may". There is no question about the terms used in the section.
Deputy T.F. O'Higgins dealt with the question and surely I should be allowed to do so.
Deputy O'Higgins spoke to his amendment.
All I want to do is register my objection to using the old terms of address of "lordship" and "worship" and surely I should be allowed to make the case that they should be done away with. I deplore hearing people falling over themselves, worshipping judges and justices. It all reminds me of the past. I am very fond of reading history and I have just finished Serjeant Sullivan's book on the courts in Ireland. Apart from the fact that we are now a Republic I do not think that we should persist in this servile form of address. If they addressed people by titles like that in France during the Revolution they would be sent to the guillotine immediately.
How does the Deputy think they address judges in France?
They use the word "judge," not "lordship" and "worship." I object to those titles which may be all right in a monarchy but not in a republic.
I think I can persuade Deputy T.F. O'Higgins to withdraw the amendments because in the new circumstances they will not be really necessary. Since the Second Reading debate we have been giving consideration to the views expressed by Deputies and by representatives of the various professional interests concerned, and in fact the Superior Court Rules Committee and the Circuit Court Rules Committee have made rules proscribing revised modes of address and these have had the concurrence of the Minister for Justice.
The Superior Court Rules Committee have laid down that in the Superior Courts—the Supreme Court, the High Court, the Court of Criminal Appeal— the mode of address shall be in Irish and English. The judges shall be called by their respective titles and in Irish the court will be referred to as "An Cuirt" and in English "The Court." The Circuit Court Rules Committee have provided that a Circuit Court judge shall be addressed in court by his title and that the court shall be addressed in Irish as "An Cuirt" and in English "The Court". This is acceptable both to the Minister and to the Government which was anxious to see the expressions "lord" and "lordship" discontinued. I propose on the Report Stage to move the deletion of Section 45 from the Bill. The only reason I am not doing it at this stage is because there are some consequential amendments which have not been prepared at the moment.
In that connection I should like to express appreciation at the manner in which the Superior Court Rules Committee and the Circuit Court Rules Committee have approached this problem. I think we have met very fairly the objections they made. The main objection was that we were taking away from the Rules Committees a proper function of theirs and doing the thing by statute. We are now prepared to hand the job back to the Rules Committees.
I am very glad to hear from the Parliamentary Secretary that Section 45 is to be removed from the Bill and that the Bill, when it comes to its Final Stage, will not contain this section. Having got that, I think progress has been made, but may I say in relation to the obsequies of Section 45 that it should never have appeared in a Bill of this kind. It was unwarranted interference with the courts of this country and if anyone felt any anxiety in relation to the mode of address which has operated here for over 40 years since the State was established, I have no doubt that a simple, reasonable, polite approach to the Rules Committees would have been sufficient to result in a change. I am glad that this section is now disappearing and I hope this will be the end of this kind of interference with the purely domestic concerns of our courts.
I move amendment No. 75:
In subsection (2), line 26, to delete "shall" and substitute "may".
I move amendment No. 76:
In subsection (3), line 27, to delete "shall" and substitute "may".
I should like to point out that those three amendments have not been moved because the Deputies who tabled them are not present in the House. These amendments, in my view, were tabled as a publicity stunt and I hope equal publicity will be given to the fact that neither Deputy McQuillan nor Deputy Browne have been present at any of the debates on this Bill and that their motive in introducing these amendments was to rate a few lines in the newspapers. I hope the newspapers will give equal publicity to the fact that the amendments were never moved.
In subsection (8) what is the meaning of "ten years' standing" and "six years' standing"?
It concerns the qualification for appointment as a temporary justice of the District Court and merely brings that qualification into line with that in force for permanent appointments. Up to 1953 the qualification for both permanent and temporary appointments was the same, namely, that a person had to be a practising barrister or solicitor of six years' standing at least on the date of appointment. In 1953 the qualification for permanent appointment was increased to ten years and we are now making the same qualification obligatory for temporary appointments. Question put and agreed to.
What is the difficulty that it is intended to remove by this section?
It is fairly well settled in decided cases that an appeal from a District Court involves complete re-hearing in the Circuit Court of the proceedings in the District Court. This is warranted where the appeal is against conviction and not so where the appeal is against sentence only. It is being provided in the latter case that the Circuit Court shall not re-hear the case but adjudicate only on the question of sentence. This will save the court time and the expense of witnesses who would otherwise have to attend the appeal hearing.
Where the appellant makes it clear that he is only appealing against sentence, then the re-hearing is only as respects sentence?
Is it wise to say "the Circuit Court shall not, on the hearing of the appeal, re-hear the case"? It may be necessary for the appellant in order to state his case in relation to sentence to go into the facts of the case to some extent. Is there any danger that under that section the judge might say, "I am precluded from in any way considering the facts of the case"?
That is the very question we asked ourselves in relation to this matter but we feel that if we do not have the subsection as it is, it would defeat the whole object of the subsection.
There was an appeal in the Court of Criminal Appeal the other day where the appeal was only against sentence and the court asked counsel to state the facts of the case, that they could not possibly think of the sentence except in the framework of the case.
I think that is different from having the whole case reopened, with witnesses and so on.
The subsection says "shall not re-hear the case"
That means re-hear in the full sense. There would be no objection to counsel stating the facts of the case.
Supposing they are contested? There was a case against conviction for driving dangerously or while drunk and the facts certainly had to be stated and then the court said they could not interfere with the sentence, but only after hearing the facts of the case.
Witnesses would not have to be re-examined.
It was not a full re-hearing, I agree.
I can think of cases where it might be necessary to call evidence—a driving case or, perhaps, an assault case where the nature of the assault itself might be the grounds on which the appellant is appealing against sentence imposed upon him. I just do not care for the words "the Circuit Court shall not re-hear the case". "Need not" would be better or some words similar to that. The purpose is that the Circuit Court shall not be obliged to re-hear the whole case.
I think we want to go a bit further than that. Certainly there is at the moment no objection to statements of the facts of the case or any particular net issue being explained to the court but we are concerned to prevent a full re-hearing.
Would the Parliamentary Secretary consider a form of words like, "shall not on the hearing of the appeal re-hear the case except to such extent as shall be necessary to adjudicate on the question of sentence"?
Yes. I will consider that.
Something of that kind.
Is there a difference between re-hearing and re-trial?
I would not think so.
In any event, it is to adjudicate only on the question of sentence. The case the other day was on the submission of counsel for appellant. The court used some phrase like: "It is impossible to disturb this sentence", supposing counsel had made his case on the facts.
Deputy O'Higgins suggestion is, "shall not re-hear the case except to the extent necessary".
"—to adjudicate on the question of sentence".
Some words which would enable them to adjudicate on sentence.
Naturally, I will have to take advice on that.
I move amendment No. 81:
Before Section 53, to insert the following new section:
"Section 26 of the Hire-Purchase (Amendment) Act, 1960, shall apply to any action pending in the High Court which is founded on a credit-sale agreement (within the meaning of the Hire-Purchase Acts, 1946 and 1960)."
Amendment No. 81 has been discussed with amendment No. 58.
This is a new section.
It relates to creditsale agreements.
I move amendment No. 82:
To add the following subsection:
"(7) The business to be transacted in the Circuit Court office for the circuit consisting of the county and county borough of Cork, pursuant to section 37 of the Act of 1926, shall include the business of the Cork Local Admiralty Court and the Cork Local Bankruptcy Court, and section 65 of the Act of 1936 (which relates to the prescribing of court fees) shall have effect accordingly."
This is a drafting amendment merely for the purpose of making it clear that the Minister for Justice will have power to prescribe court fees for the business transacted in the Cork Local Admiralty Court and the Cork Local Bankruptcy Court.
I move amendment No. 82a:
Before section 55, to insert the following new section:
(1) (a) In this section "the Committee" means a committee consisting of—
(i) the Chief Justice,
(ii) The President of the High Court, and
(iii) The Attorney General.
(b) The Committee may act by a majority of its members and a warrant under this section shall be sufficiently authenticated if signed by two members of the Committee.
(a) a county registrar is about to reach the age of sixty-five years, and
(b) he satisfies the Committee that he is not suffering from any disability which would render him unfit to discharge efficiently the duties of his office,
the Committee may, if they so think proper after consultation with the Minister, by warrant made before such country registrar attains the said age, continue him in office for one year commencing on the date on which he will attain the said age.
(a) a county registrar to whom a warrant under subsection (2) of this section or under this subsection relates, or to whom a warrant under this subsection is deemed to relate, is about to reach the age of (as the case may be) sixty-six, sixty-seven, sixty-eight or sixty nine years, and
(b) he satisfies the Committee that he is not suffering from any disability which would render him unfit to continue to discharge efficiently the duties of his office,
the Committee may, if they so think proper after consultation with the Minister, by warrant made before such county registrar attains the said age, continue him in office for one year commencing on the date on which he will attain the said age.
(4) Where, immediately before the operative date, there is a county registrar whose age of retirement was extended under subsection (6) of Section 35 of the Act of 1926, such county registrar shall be deemed to have been continued in office by warrant under subsection (3) of this section and to be a county registrar to whom that subsection relates.
(5) The provisions of this section shall have effect notwithstanding anything contained in subsection (6) of Section 35 of the Act of 1926.
The object of this amendment is to transfer to a committee consisting of the Chief Justice, the President of the High Court and the Attorney General, the function of deciding whether a county registrar's age of retirement shall be extended beyond the age of 65 years. At present, the law provides that every county registrar shall retire on attaining the age of 65 years but that the age of retirement may be extended by the Minister for Justice with the concurrence of the Minister for Finance to any age not exceeding 70 years.
It has been represented that it would be more satisfactory to apply to county registrars the same provisions in this regard as apply to extending the service of district justices beyond the age of 65, that is, to leave the question to be decided by a judicial-type committee. As in the case of district justices the committee will be obliged to consult with the Minister for Justice before authorising an extension of the age of retirement, and this will give the Minister an opportunity of bringing to the notice of the committee any information he may have regarding any disability that may exist which might in his view, render the county registrar in question unfit to discharge efficiently the duties of his office for a further year.
Subsection (4) deals with county registrars who have already been extended beyond the age of 65 under the existing law. At present there are two county registrars in this position. One of them will reach the age of 70 in November. The other has already received two extensions of one year beyond the age of 65 and subsection (4) deems him to have been continued in office by warrant of the Committee under subsection (3). This county registrar may, therefore, when his present extension expires, apply to the Committee for a further extension. It is a fairly straightforward proposal.
I move amendment No. 82b:
Before Section 55, to insert the following new section:
(1) Section 4 (which relates to the pensions of Master of the High Court, Taxing Masters and county registrars) of the Act of 1945 (as applied by Section 48 of this Act) shall have effect as if, in subsection (1)—
I the reference in paragraph
(a) to sixty were a reference to sixty-five,
II the references in paragraph
(b) and in subparagraph (ii) to ten were references to five,
III the references in subparagraphs (i) and (ii) to thirty were references to twenty, and
IV the reference in subparagraph (ii) to one-fortieth were a reference to one-thirtieth.
(2) References in any enactment to Section 4 of the Act of 1945 shall be construed as references to that section as amended by subsection (1) of this section.
This amendment is being tabled as a result of representations made in the course of the debate on the Courts of Justice and Court Officers (Superannuation) Bill that, in general, county registrars should be placed in the same position, as regards pension terms, as district justices were placed by the Courts of Justice Act, 1953. It was not possible to accede to these representations on that Bill because it had been introduced on the basis that no additional charge would be involved to the Exchequer. The case made for improving the terms of county registrars was that these officers were normally recruited late in life and would normally not qualify for full pension on retirement under the existing pension provisions, which entitled them to full pension only on the completion of 30 years' service. The Government are satisfied that the qualifying period for full pension should be reduced for these officers and this involves making a similar change in the pension terms of the Master of the High Court and the two taxing masters whose terms have already been related to those of county registrars.
Placing county registrars and the other officers mentioned in the same position as district justices involves increasing the minimum age at which they may retire from 60 years to 65 years. Another change of a consequential character which is being made as a result of the shortening of the minimum qualifying period from 30 years to 20 years is that these officers are being permitted to retire after completion of five years' service instead of ten, on medical grounds. Consequential changes are also necessary in the amount of pension a county registrar or other officer will get on retiring before age 65 on medical grounds: this involves changing the fraction of one-fortieth of remuneration for each completed year of service in excess of ten to one-thirtieth for each completed year in excess of five.
As I have said, this amendment is on the lines of the representations made by Deputies from all sides of the House during the passing of the Courts of Justice and Court Officers (Superannuation) Bill and I am sure it will recommend itself to the House.
There is an amendment to amendment No. 82b on the Order Paper in the name of Deputy Cosgrave.
We do not propose to move it at this stage.
We can move it on Report Stage.
I do not mind because I will have to change these amendments on Report Stage. We can discuss Deputy Cosgrave's amendment at that point.
I think we would all like to express our satisfaction with the proposals contained in the amendment.
I move amendment No. 83:
Before section 56, to insert the following new section:
A solicitor who is acting generally for a party in an action, suit, matter or criminal proceedings in the Circuit Court, the Cork Local Admiralty Court or the Cork Local Bankruptcy Court and a solicitor qualified to practise (within the meaning of the Solicitors Act, 1954) who is acting as his assistant shall have a right of audience in such Court.
The purpose of this new section will be clear to the House. It is being inserted to remove doubts which have been expressed in regard to solicitors' right of audience in the Circuit Court. Under the existing law, solicitors and their assistants who are qualified to practise have a right of audience in the Circuit Court so that the amendment does not make any change in the present law. However, as doubts were expressed as to whether this existing right is being carried over to the new Courts it has been thought better to insert a specific provision to make the position perfectly clear.
On a previous occasion I indicated that the Incorporated Law Society had been in touch with me on a number of points. Unfortunately, I was not able to meet them on some of their requests, much as I should have liked to. I did see the justice of what they were looking for in this regard. They wanted to have these rights as statutory rights and I am sure the House will agree that should be afforded to them.
I move amendment No. 84:
In page 29, before "No. 10 of 1924" to insert the following:
43 & 44 Vic. c. 39.
Lunacy (Ireland) Act, 1880.
The whole Act.
This amendment was discussed with amendments Nos. 44 and 89.
I move amendment No. 85:
In page 29, before "No. 10 of 1924" to insert the following:
6 Edw. 7, c. 37.
Labourers (Ireland) Act, 1906.
In subsection (1) of section 31, all words from “and the Local Government Board” to the end of the subsection.
This amendment will be discussed with amendment No. 94 by agreement. The position with regard to amendment No. 94 is that the object of subparagraph (e) of paragraph 19 is to transfer to the Taxing Masters of the High Court the powers of the special Taxing Officer appointed by the Minister for Local Government under the provisions of the Labourers Acts. This special Taxing Officer died in 1957 and it was then decided by the then Minister for Local Government to abandon the system of having a special Taxing Officer to tax those costs and to leave these costs to be taxed in the ordinary way by the Taxing Masters of the High Court. An order was made in 1957 under the Labourers Acts providing accordingly, as respects business commenced on or after the 1st October, 1957. As regards business undertaken before that date, the arrangement was that it would be taxed by a special Taxing Officer whose functions would be limited to taxing such business.
In the meantime doubts have been expressed as to whether the Taxing Masters of the High Court have the requisite power to tax post-1957 particular costs and paragraph (e) purports to authorise them to do so.
The amendment makes it clear that the Taxing Masters will deal with the taxation of these costs in the ordinary way and without reference to any special scales. As a consequence, the provisions in the Labourers Act of 1906 authorising the Minister for Local Government to provide for the special taxation of costs are being repealed. Amendment No. 85 is to that effect.
A consequence of paragraph (e) of paragraph 19 is that solicitors in Labourers Act cases will receive ordinary professional remuneration instead of the specially reduced rates allowed to them by the special taxing officer. We are not taking any substantative decision at this stage. The decision was, in fact, taken in 1957.
Amendment No. 86 is an alternative to amendment No. 73.
Amendment No. 86 is one way and a short way of achieving what I gather is proposed, namely to delete from the 1924 Act the phrase "shall be addressed in the manner to be determined by the rules to be made under this part of this Act." If those words are not deleted, the whole matter is thrown back for the rules to be made. The restoration of the procedure under the 1924 Act would leave the method of address and other things to be done by rules.
This is only one of the consequential amendments which will arise.
I understand the suggestion is to leave these things like the mode of address to the Rules Committee?
It has been left to them.
Very good. That is the way it has been done up to date.
We are now proposing to delete Section 45 out of the Bill altogether. As a result of that deletion, we will have to make consequential amendments. This will be one of them.
If you delete the section and do nothing more and keep in what I have moved to delete in page 29—if you delete the phrase "to be determined by the rules to be made" and if you delete the section, you are nowhere and nobody knows how the judges are to be addressed.
We are proposing to delete Section 45 and leave it to the Rules Committee.
By merely deleting Section 45 you do not leave it to the Rules Committee.
I know. We have to make consequential amendments.
You do leave it to them if you take out these words in page 29.
That is one of the things we must do. There are others.
There may be.
We propose to do them on Report.
Is amendment No. 86 withdrawn?
Not moved. I believe there is a difference between not moved and withdrawn.
The amendment has been more or less discussed.
But I did not move it, Sir.
If the Deputy withdraws it, it can be moved later.
Then I shall formally move amendment No. 86:
In page 29, in the third column of the entry relating to No. 10 of 1924 to delete "in Section 10, the words ‘shall be addressed in the manner to be determined by the rules to be made under this part of this Act, and'."
I move amendment No. 86 (a):
In page 30, opposite "No. 27 of 1926", in column 3, before "in subsection (1) of Section 38" to insert "in subsection (6) of Section 35, from the words ‘but such age' to the end of the subsection:"
This amendment is consequential on amendment No. 82 (a). Amendment No. 82 (a) proposes that the functions of the Minister for Justice and the Minister for Finance will now be handled by a judicial committee. This is consequential on that.
I move amendment No. 87:
In page 34, at Ref. Nos. 1 and 2, column (2), to delete "3 or 4" and substitute "3, 4 or 5".
This amendment is consequential on amendment No. 88, which inserted a new Reference No. 5, in the Third Schedule.
I move amendment No. 88:
In page 35, before Ref. No. 5, to insert the following:
5. An action commenced after the commencement of the Act founded on a credit-sale agreement (within the meaning of the Hire-Purchase Acts, 1946 and 1960).
Where the amount of the claim exceeds £1,000.
In case the defendant or one of the defendants ordinarily resides or carries on business in the State—the judge of the circuit where the defendant or one of the defendants resides or carries on business.
In any other case—the judge of the circuit within which the credit-sale agreement was made.
This is merely inserting the necessary provisions for the Circuit Court jurisdiction in credit-sale agreement cases.
I move amendment No. 89:
In page 39, to delete all matter at Ref. No. 28.
This is the matter of lunacy jurisdiction. The amendment is consequential on amendment No. 44.
I move amendment No. 90:
In page 41, before Ref. No. 15, to insert the following:
Civil Bill Courts (Ireland) Act, 1851 (14 & 15 Vic. c. 57)—proviso to section 35.
The judge of the Circuit Court before whom the case is heard and determined.
This provision was omitted from the Fourth Schedule. It confers on the Circuit Court power to award interest in all cases where inequity interest ought to be decreed.
I move amendment No. 91:
In paragraph 3, subparagraph (1), page 49, line 25, before "to another district" to insert "by the Minister".
This is a drafting amendment. It makes it clear that the permanent assignment of a district justice referred to in the section is to be made by the Minister for Justice.
I move amendment No. 92:
In paragraph 6 (1), line 20, after "Central Office" to add "who are barristers or solicitors of ten years' standing".
Perhaps amendments 93 and 97 might be discussed with this.
I agree that what I have to say in support of this amendment is applicable to amendments Nos. 93 and 97. It is, I think, worth noting that the only positions in the whole court establishment which require any legal professional qualifications are the offices of the Master of the High Court, the Taxing Master and the Registrar of Wards of Court, but for some reason neither the Registrars of the High Court, the Examiner nor the Official Assignee need have any legal qualifications whatever. It is a matter which should be noted that these officials are sometimes acting in a limited judicial capacity, or possibly I should say in a quasi-judicial capacity.
I feel that it is undesirable that people without legal qualifications, professional qualifications, should be acting in that way. I do not wish for a moment that these remarks should be regarded as detracting in any way from my high opinion of the officials who at present hold these offices. We are all quite happy that the officials holding these offices at present are very able men. But not being qualified in a legal or professional sense, I think it is inevitable that they must concentrate rather largely on following precedents which have been set up in past years. They do that very well. But there is a danger that, in carrying out their duties, they may quite unwittingly be creating precedents themselves.
For people to be creating precedents without legal qualifications is, I think, dangerous. In addition, while they are well able to keep matters ticking over, as it were, they are not well qualified to keep in view reforms which might be advisable from time to time.
Either now or possibly at some later stage it would be well to consider some amendment along the lines which I have suggested that, examiners, the official assignee and the registrar should be either barristers or solicitors of a certain number of years standing. In my amendment I have suggested 10 years' standing. The Parliamentary Secretary or other Deputies may think that period is too long. I merely inserted 10 years because that period was laid down in other provisions. I would hope that on this Bill this amendment would be accepted because I believe it will not affect the present office holders in any way but will be of benefit in the future in ensuring that the holders of these very important offices will be fully qualified in a professional sense.
I cannot accept the amendment for a couple of reasons. In the first place I would point out to Deputy Booth that his amendment only has reference to the existing staff but there is a broader aspect of this matter to be considered. This type of amendment is not suitable for this Bill. The purpose of this Bill is to give effect to any supplemental provisions which may become necessary as a result of the establishment of the courts. In other words it is subsidiary and related to the Establishment Bill.
These proposals by Deputy Booth are of a far-reaching nature and would effect pretty fundamental changes in the make-up of the staff of these court offices. I would like to have them very carefully examined by the appropriate section of the Department, the Establishment Section. I think Deputy Booth himself will realise that a lot of subsidiary things would arise if we were to accept these proposals. We would have to bear in mind the position of the existing staff at lower levels and how their rights would be affected. They may at present have certain avenues of promotion available to them which this might close. All that would necessitate careful examination in its own context and I undertake to have that done in the Department of Justice and if necessary separate legislation in the nature of a court officers Bill will be introduced if we decide to make any changes of that kind.
Deputy Booth's amendments light up a certain matter. I was not here during the discussion on Section 14 but seeing that it is proposed to leave this over until perhaps the introduction of the Court Officers Bill I wish to draw attention to subsection (3) of Section 14:
(3) Rules of court may, in relation to proceedings and matters (not being criminal proceedings or matters or matters relating to the liberty of the person) in the High Court and Supreme Court, authorise the Master of the High Court and other principal officers, within the meaning of the Court Officers Acts, 1926 to 1951, to exercise functions, powers and jurisdiction in uncontested cases and to take accounts, conduct inquiries and make orders of an interlocutory nature.
In the Solicitors Act where a matter of limited powers and functions of a judicial nature were to be exercised by people who were not judges was contested the judgment of the court used this phrase:
"If the exercise of the powers and functions was calculated ordinarily to affect in the most profound and far-reaching way the lives, liberty, fortunes or reputation of those with whom they are concerned they cannot properly be deemed limited."
On that phrase of the judgment read by a Judge of the Supreme Court the Solicitors Act fell: at least the penal clause of it did. Deputy Booth's amendment lights up this. Here are definitely things that affect the fortunes of people, for instance, adjudication of bankruptcy. That affects in the most profound way the fortunes of individuals and it is clear we are handing this over to a person or persons who not only are not judges but who have no legal training.
That is a deplorable situation. I did not speak on this Section 14 because I did not happen to be here when it was going through but I did intend to raise that matter. I did put down an amendment which drew attention to this because I wanted to call attention to the fact that the liberty of the subject is not constitutionally protected at all. It is not protected against the legislative body. The Article of the Constitution that deals with personal liberty says no person shall be deprived of his personal liberty save in accordance with law. My amendment drew attention to the illusion that there was any constitutional protection for personal liberty of the individual in this country. There is of course protection against an unauthorised act of the Executive but there is no protection against the legislative body.
It is a rather odd way the Deputy took of doing it.
I wanted to draw attention to the fact that personal liberty is put down here in a reservation with criminal matters, the reason being that the criminal matters cannot be handed over to anybody except a judge or a court under the constitution. Deputy Booth has said and it is not to be contradicted that quite a number of the court officers have no legal training and yet they are given the duties set out in Section 14 (3). These functions certainly deal with people's fortunes that is to say, proprietary rights.
It is only in uncontested cases.
It does not matter. A person may not have the means to contest a case and if it affects his fortunes his case ought to be heard by a judge and in a court established under the Constitution. It is certainly outrageous to have people with no legal training whatever performing these duties. The Parliamentary Secretary will find a certain number of the court officers do not like this jurisdiction being given to them and I do not think it is proper to be handed over to them.
This section was drafted by the Rules Committee.
It may have been. Were what are here described as court officers consulted?
There is one of them a member of the Committee.
There is certainly a great deal of anxiety amongst certain of the court officers in respect of this and more particularly in regard to the bankruptcy matter. Some of the other matters may not affect a person's fortunes in a profound way but certainly a person's fortunes to some extent are prejudiced or affected by what is going to be done here, if this is going to be handed over to court officers who do not appear to have any training.
They have legal training of a very definite kind.
They have an administrative training. That is what makes them dangerous. What is the good of all this protection in regard to the functions and powers of Government? What was the good of establishing administrative bodies, having a balance between the different groups as laid down by the Constitution for judicial matters while powers and functions of a judicial nature are handed over to laymen?
Section 14 could not be clearer or more in keeping with the Constitution. It specifies that the officers shall be entitled to exercise powers in uncontested cases and to take accounts, conduct enquiries and make orders of an interlocutory nature. These are the mechanics of the courts. Unless we are to be practical about this thing the law courts would have to come to a stop. There is no question of these officers exercising the sort of functions of which Mr. Justice Kingsmill Moore spoke in his judgment. They are specific functions which would be given to them in uncontested cases only. It is illusory to speak of these officers as having no legal training of any sort.
With all due respect I suggest ten years' practice at the Bar would not qualify a practitioner in this sort of work, this specialised work which goes on in the court offices. However, as I said, I want to leave over Deputy Booth's proposal to be examined on its own. I want to rebut entirely any suggestion by Deputy McGilligan that there is anything involved in Section 14 or in this part of the Schedule other than the practical, day-to-day administration of the office work of the courts.
Would the Parliamentary Secretary be prepared to go a little further than that? This is a matter of some urgency. It may not be a matter of vital urgency and I do not want to press it at this stage or delay the passage of this Bill but I would be much happier if I felt the Parliamentary Secretary could give some undertaking that it would be regarded as a matter of urgency and not be put off indefinitely, for the reason that Deputy McGilligan and I have given. If the Parliamentary Secretary could give the assurance that the matter will be kept under review for early action I would be much happier and I would be prepared to withdraw this amendment at this stage.
I am not clear from the drafting what is the position in relation to subsection (3) of Section 14 which says that these officers in uncontested cases will take accounts, conduct enquiries and make orders of an interlocutory nature. I think that phraseology shows up the non-acceptance of the constitutional position. Supposing a criminal is going to plead guilty and does not contest the case that man would be sent for trial before a judge.
Surely the Deputy cannot suggest there is any comparison between a criminal pleading guilty and an uncontested civil action.
I do. Why do people fail to contest cases? It is not only because they agree with what is being charged against them. It may be they have not the money to go on.
That is not the same.
To use the phrase "in uncontested cases" is wrong. It would not solve the difficulty about the criminal. He must still go before a judge or a court or else a special court. Let us come down to the things that are not criminal. In regard to bankruptcy, it is not contested but it may affect the fortunes of the individual, the inquiry that is to be made into his means, what he will pay in composition. Surely that is a judicial matter.
If the individual does not bother about it himself or cannot contest it we can put him before anybody. Supposing the phrase "in uncontested cases" were not there, would it be regarded as constitutional to hand over to officials of the courts functions and powers such as are given in Section 14 (3)?
It would be completely constitutional.
That is the sort of answer I got in relation to the Electoral Bill which was found not to be so. Everybody was satisfied. The Attorney General was consulted, his advice was proper and reliable and it broke down.
We are on much firmer ground here.
That may be but the phrases that are being used are the same as were used in regard to the electoral matter. It is wrong to hand over to people who are not judges matters of a judicial nature.
Surely the Parliamentary Secretary would be well advised to pause when weighty opinion is brought to his attention that a provision which is manifestly incorporated in the Bill for the purpose of securing expedition or even of facilitating the taking of a short cut in uncontested matters, when challenged on the grounds that with a written Constitution such a short cut is not open to us. It is quite relevant that the Supreme Court has given a jealous interpretation to the Constitution in regard to matters where the Constitution calls for their judicial powers.
Deputy Dillon would probably regard me as being rude if I pointed out that this was on Section 14, not on the Schedule.
I fully appreciate that. I fully appreciate that the amendment that Deputy Booth moved relates to the Schedule of the Bill, speaking of the qualifications of the officers in whom the Parliamentary Secretary desires to vest these powers. I think he ought to be grateful to Deputy McGilligan for directing his attention to the fact that the safeguards suggested by Deputy Booth may not be adequate. Even if you meet Deputy Booth in his effort to repair what seems to him a flaw rooted in Section 14 you are not going far enough. Section 14 may bring down the Constitution on top of your whole Bill. The Parliamentary Secretary does not remember that we have had a great deal of experience of this type of Bill. I remember the Sinn Féin Funds Bill before this House which was most angrily contested and I can assure the Parliamentary Secretary that the Ministers then occupying those seats were passionate, including the then Taoiseach, who regarded himself as the beginning and the end of the Constitution, in their assertions that the Sinn Féin Funds Bill did not infringe the Constitution.
We were equally emphatic in informing them that it most undoubtedly did. The Parliamentary Secretary will recall that the late Mr. Justice Gavan Duffy delivered a most classical judgment which was subsequently appealed to the Supreme Court who endorsed all he had said. It is highly inconvenient, to state the least of the evils, to have a long piece of legislation such as this Bill is, disqualified by the Supreme Court as being in conflict with the Constitution but quite apart from inconvenience that arises it is an undesirable thing from the point of view of the domestic atmosphere that the Oireachtas should be coming into constant conflict with the Supreme Court in respect of matters referring to the Constitution as it does create the impression in the country that the Constitution receives scant attention in this House.
I am not a constitutional lawyer but I am qualified to take that much intelligent interest in the activities of the Courts to be quite clear in my mind that the Supreme Court is very jealous of the exercise of judicial functions and I am quite sure that the Parliamentary Secretary deceives himself if he says that because proceedings before a court are uncontested, all orders made in such proceedings cannot be described as judicial functions when he concedes that if these matters were contested the orders made would be judicial functions. Is that not the Parliamentary Secretary's contention?
I do not think so.
I think he was making the case that he would not be prepared to maintain that, if these matters were contested, that they were not judicial functions.
I said in reply to Deputy McGilligan that even if a case were contested I think that the delegation to these officials would be held to be completely constitutional.
Would the Parliamentary Secretary say they were judicial functions in respect of contested matters of this kind?
Yes, but of a limited nature.
Would the Parliamentary Secretary agree that if these matters were contested they would be in some sense judicial functions? He deceives himself when he says that because they are not contested it ceases to be a judicial function.
I never said that.
You say in both cases, but of a strictly limited kind, which are capable of delegation. An ex-Attorney General and an authority on constitutional law has spoken on this and I think that the Parliamentary Secretary would be well advised to say that he will make a note of it and will have the matter scrupulously examined and if necessary make an appropriate amendment on the Report Stage. But it is quite clear to my mind, and I have a certain sympathy with the Parliamentary Secretary's desire to introduce into the Bill a short circuit in the proceedings. I am a grandson of the man who established the commercial court in the High Courts in London for the purpose of shortening the proceedings.
And cheapening them.
Yes. But conscious of that I am also conscious of the fact that in England they have no written constitution and what he was authorised to do under statute and by the rules of court, there was no appeal against it. That is not so here. We have got to keep in mind the terms of the Constitution when we are legislating and I am strongly inclined to the view that Deputy McGilligan is right and if that is so the amendment proposed by Deputy Booth is not sufficient. Not only should officers who have ten years either as barristers or solicitors be appointed for this task, he ought to have gone the whole way and put this within the prerogative of judges under the Constitution. Nobody who is not a judicial person should have this work delegated to him.
I think Deputy Dillon goes too far. You cannot visualise the courts' operations without some form of delegation of judicial functions, and the Constitution clearly envisages that there must be a delegation of certain limited functions to officials.
Of limited functions.
Of limited functions.
Do they say limited judicial functions?
Yes, that is envisaged in the Constitution. That is all we have done in Section 14. This section was drafted in careful consultation with the Rules Committee.
So was the Solicitors Bill. It was drafted in careful consultation with the Incorporated Law Society.
This was the Rules Committee which is responsible for practice and procedure in the superior courts. It is not the last word, of course. The Supreme Court could still decide otherwise. It is a very effective insurance to have this subsection approved by the Rules Committee. The whole point is to endeavour to ensure that litigation is made as cheap as possible and that anything that tends to reduce the length of time it takes to take an action through the courts is, of course, beneficial.
Think well of the Coggs and Bernard case. I understand it cost over a quarter million pounds to complete the proceedings in a case over a wine cask. Picture the fate of some unfortunate who, despite his advice, ends up in the Supreme Court in a 14-day hearing and is presented with a bill for £7,000 costs. We have a great obligation to make it as certain as is humanly possible that nobody will be brought to the Supreme Court to establish the constitutionality of a matter which collapses under him. Bills have been drafted here with the advice of people who have attained the dignity of the Bench and have collapsed under the strain of the Constitution. I suggest that Section 14 be examined very carefully again.
I move amendment No. 94:
94. In paragraph 19, page 55, to delete subparagraph (e) and substitute the following subparagraph:
"(e) the duty of taxing any costs to be received, allowed or paid to a solicitor as respects business undertaken on or after the 1st day of October, 1957, in relation to the exercise by a local authority of their powers under the Labourers (Ireland) Acts, 1883 to 1958."
I move amendment No. 95:
In paragraph 21 (a), line 46, after "barrister" to add "or solicitor".
This is a very small point and in view of the fact that the Parliamentary Secretary has ruled me out in every amendment so far, I hope he will accept this one. There is no great principle involved or any breach of precedence. The amendment simply proposes that the words "or solicitor" should be put in after the word "barrister" in reference to the qualifications for Registrars of Wards of Court. The paragraph says that no person shall be appointed to be Registrar of Wards of Court unless at the time of appointment he is either a barrister of not less than ten years' standing or is a barrister who is then employed in an office as set out under paragraph 2 of the Schedule. I feel it is unjust that the solicitors' profession should be the victim of discrimination to some extent.
I am strongly tempted to accept this amendment here and now. There is a lot of merit in it and I have such a high regard for the solicitors' profession that I am always very reluctant to deny them anything they ask. However, I should like to crave the Deputy's indulgence. The matter is being examined Departmentally in connection with the whole question of staffing of court offices and I would prefer to wait until that examination is completed. However, if the amendment is withdrawn now I shall consider it sympathetically between now and Report Stage.
I move amendment No. 98:
In page 4, line 5 and 6, to delete "to be".
No. 1 Bill is the Bill which establishes the courts. Why, when you come to the second Bill, do you say the Bill has been established?
It will be established at a future date.
It may come into operation at a future date and then it will be established. It is a small point and it does not matter.
There are some amendments for the Report Stage of the Bill. Some of these are ready and will be circulated immediately. The others could be in Deputies' hands on Monday or earlier if possible.
If the Bill is to be taken on Tuesday I shall have to look at the amendments and perhaps think out new ones I may want inserted. Surely that would not be possible if the amendments only come to hand by Monday.
Put the Final Stage down for Wednesday at the earliest.
On the assumption that the official amendments are in Deputies' hands by Monday, we should be able to take the Bill on Tuesday. Deputies would have a clear day to think over the amendments. I am hopeful that nearly all the amendments will be circulated by the week-end and they will be in Deputies' hands by Monday morning. It may be that Deputy McGilligan will not have any amendments and then why not take it on Tuesday?
I do not mind if the Parliamentary Secretary puts it in for Tuesday provided that it will be put back to Wednesday should that become necessary.
I think I can give that guarantee.