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Dáil Éireann debate -
Wednesday, 2 Aug 1961

Vol. 191 No. 14

Courts (Supplemental Provisions) Bill, 1959—Report Stage (Resumed) and Final Stage.

I move amendment No. 2:

In page 13, line 16, after "Act" to insert "or any other enactment".

On Committee Stage I indicated that paragraphs (c) and (d) of subsection (3) of Section 22 would probably need to be redrafted as they merely allowed for variations on the exercise by the circuit judges of the jurisdiction conferred on the Court by paragraph (a) of the subsection and did not, also, as was the intention, provide for adding to the list of enactments in the Fourth Schedule any other pre-1924 enactments which conferred jurisdiction on chairmen, recorders, county court judges or quarter sessions and which might inadvertently have been overlooked.

The Fourth Schedule was drafted with the greatest care and is intended to be exhaustive but it would be unwise not to recognise the possibility that some enactment may have been overlooked. The addition of the words the amendment proposes to insert in subsection (a), namely, "or any other enactment" is a better way of getting over the difficulty than amending paragraphs (c) and (d).

Amendment agreed to.

I move amendment No. 3:

In page 16, to delete lines 50 to 52.

I think amendments Nos. 3, 4, 5 and 16 go together.

These amendments deal with the question of the right to transfer cases.

What amendments are said to be analogous?

Amendments Nos. 4, 5 and 16 are related to No. 3.

The House will recall that this matter was discussed on Committee Stage. I have been considering the matters which were raised in this regard on Committee Stage. The proposal was that we would put certain restrictions on the right of accused persons to apply for transfer of their trials. The proposal was that at the district court when the case was being returned for trial, provided the case was one which could incur a sentence of more than five years penal servitude, the accused would have an absolute right — and of course the Attorney General would have the same — to apply to have the case transferred to the Central Criminal Court. Then we went on to propose that if for any reason the accused neglected to make an application at the district court or if the case was one which did not carry a sentence of more than five years, either the accused or the Attorney General would have the right in the circuit court to apply to have the case transferred. The difference was that in the circuit court the matter would be at the discretion of the circuit court judge whether or not he would grant a transfer. I felt that these were reasonable amendments to make because there is no doubt that a lot of the time of the Central Criminal Court is taken up with cases which are transferred there for what I may call unworthy motives and that a lot of cases are transferred to the Central Criminal Court which should properly be dealt with in the circuit criminal court.

However, I have taken serious cognisance of the views of the House on this matter and particularly of the view which was very strongly urged by the Leader of the Opposition, namely, that we should not interfere with the rights of accused persons in this way. While I think my proposals would have had a very great deal to recommend them, nevertheless, I am prepared, in view of the discussion and the arguments put forward, to give way on this matter, to withdraw my proposals and to revert to the position as it is at the moment, namely, that any accused person will have an absolute right, provided the case would involve more than one year's imprisonment as a sentence. That is the effect of amendments Nos. 3, 4, 5 and 16.

We gladly accept these amendments.

Amendment agreed to.

I move amendment No. 4:

In page 17, line 5, to delete "or subsection (2)".

These subsections will have to be renumbered. Amendment No. 4 is to delete "or subsection (2)". Is not that right?

It leaves then "an order of a judge" under subsection (1) but it is gone.

The whole thing will have to be put in proper form.

They have to be renumbered. What is it intended to mean? Is it that what is now (2) will become (1)?

Could we clarify that? In fact, as a result of the conversion of subsection (2) into subsection (1) consequent on the deletion of subsection (1), no further alteration will be required in subsection (3)?

It will become (2).

But will refer to sub-section (1) as it appears subsequent to the insertion of amendment No. 3?

I think that is right.

That is correct, yes.

Amendment agreed to.
Amendment No. 4a not moved.

I move amendment No. 5:

In page 19, to delete lines 36 to 43.

In amendment No. 5 we are going to delete all of Section 34.

Section 34 contained what was to me a valuable point, that the accused shall be entitled to have the case sent forward for trial to the Central Criminal Court. Is that still preserved somewhere?

Yes. We are going completely back to the old position.

It is still the accused's right to have the case sent forward for trial to the Central Criminal Court?

Amendment agreed to.

I move amendment No. 6:

In page 19, between lines 55 and 56, to insert the following paragraph:

"(b) A person who is qualified for appointment as a justice of the District Court shall be qualified for appointment as President of the District Court, other than as first President thereof."

What does this amendment add?

On the Committee Stage I indicated that the first President of the District Court should be appointed from among the existing district court justices. As the Bill is framed at the moment all Presidents of the District Court would have to be appointed from the ranks of the district court. Deputy T.F. O'Higgins, in particular, raised the point, with which I agreed, that the first President should be appointed from the ranks of the district court but that all other appointments could be made either from within the ranks of the district court or from outside from appropriately qualified barristers and solicitors

Does not that depend on who makes the appointment?

It can be a job for someone.

Not for the Deputy or me.

That is what it is intended to be. If another Government came in they could change the organisation of the thing.

This is fact means that for the time being the first President must be a district justice at the time of his appointment but thereafter the President of the District Court can be a person who, at the time of his appointment, was either a district justice or a person qualified to be a district justice.


And if another Government did not want to appoint a person who was the holder of an office as district justice they need not.

What is the Deputy attempting to say?

Supposing you leave out the last six words it means that for the appointment of the President of the District Court you could have an existing justice or somebody qualified.

That is what we are proposing.

But if you leave out the last six words——

We are not leaving them out. We are putting them in.

Because you want to preclude anybody except a present district justice from being the first President. Why should you restrain anybody's freedom of action in that way? If you are not in Government when the appointment comes along——

We will be.

Supposing you are not.

We will have to be.

That was the arrogance that was flaunted here at the time of the proportional representation business and you were beaten.

This will be done long before there is any question of a new Government.

Does the Parliamentary Secretary think he is going to get this through the Seanad without any amendments?

I am only concerned that the Deputy would not mislead Deputy Sherwin as he is attempting to do.

I am against anyone bringing in a pal and appointing him to a job.

This limits the number to whom the job may be given.

Amendment agreed to.

I move amendment No. 6a:

In page 20, to delete lines 17 to 30.

Amendment 6b is an alternative to this amendment. Amendment 6a, which I am now moving, proposes to get rid of sub-section 3 which means that we would not give the President of the District Court power to impose meetings on district justices and that we did not confine the number of meetings to two a year. It proposes that we do not impose the obligation on justices to attend these meetings. The other amendment is an alternative to that. I do not think we should give the President power to convene meetings of the district justices. Let them meet as they want to as they do now. Do not give this person the authority to say they must meet without legitimate excuse.

This was argued on the Committee Stage when I endeavoured to point out that these meetings can be of very considerable value to the district justices themselves and indeed it is in that spirit that we are bringing in this provision. It is in that spirit that I want to offer this proposal to the justices—something of value and of use to them as well as something that will contribute to the most satisfactory administration of justice generally. Deputy McGilligan now admits there is value in these discussions between district justices.

If they want them let them have them.

Either these discussions can be of value or they cannot. If Deputy McGilligan is prepared to say: "Let them have those discussions", he must mean he thinks they are of some value. I think they can be of very great value. The idea of district justices meeting, discussing a situation in their various districts, the types of crimes they are coming up against and the standard of penalties, can be of immense value. If that is admitted then the necessary provisions about making these meetings compulsory cannot be objected to. We are making it statutory to enable these meetings to be properly convened and we are enabling the district justices to get travelling expenses for attending them. I am quite certain that, when the situation is fully understood by the district justices themselves, they will realise that we are giving them something of value and which will be of assistance to them, something that will be widely welcome.

I think the Parliamentary Secretary is falling into a grave error and failing to distinguish between the advantages that accrue to a voluntary activity and the grave disadvantages that may result from attempting to convert a commendable voluntary activity into a mandatory duty. I have pointed out on more than one occasion here that the court with which the bulk of our people come most often in contact is the district court. Inevitably associated with its procedure is an atmosphere of informality which is calculated to give rise to an incorrect attitude in the minds of the people. Our concern ought to be to emphasise at every stage that despite the frequency of the district court and the informality of its procedure, the presiding officer is a judge and that he has all the dignity and power and all the independence to resist the executive where that is necessary just as the judges of the circuit or the High Court or the Supreme Court have.

I have often heard Deputies on the Independent benches proclaim what seemed to me the obscurantist doctrine that the attendance of the judge of the circuit court or the attendance of the High Court Judge on assize should be stripped of its panoply and that the attendance of guards of honour and the ceremonial associated with the arrival of the judge should be done away with.

Swift dealt with that. I think that is on record.

Yes, Swift dealt with a lot of things but he was not always right. Do not forget that he ended up in what was the 18th century equivalent of Grangegorman.

He did not write Gulliver's Travels in Grangegorman.

No, but it is a significant factor, when you place excessive confidence in the beliefs of anybody, to inquire where did he end up. Many a good man was misled by listening to specious advice and if he could track down the ultimate destiny of his adviser he might recognise more readily the wisdom or otherwise of the advice. Let us accept that Dr. Browne took this from Swift. I hope that Deputy Dr. Browne will not end up as Dean Swift did. I should be long sorry to see it happen but I say that excessive desire to abolish the panoply associated with the administration of justice can derive from a complete misconception of the purpose it was designed to serve.

Deputy Dr. Browne did not even bother to come in to move that amendment.

That happens even in the solid ranks of Fianna Fáil. Sometimes they do not attend to ask questions that they have put down, never mind move their amendments. Chesterton said something deserving of attention and in many ways he was a wiser man than Swift. He died in his bed in his own home. Chesterton said when you come upon a practice, be careful not to abolish it until you find why those who established it created it, because the very evil it was established to abate may manifest itself again and you have no guarantee that in this generation you will have the wisdom of those who went before to provide so effective a remedy for the evil which may not only have disappeared but disappeared also from human memory.

I do not think we have to seek so far to justify the panoply which we associate with the judiciary because what we are always concerned to do is to remind the humblest creature that there is one arena where he or she is equal to the most powerful, even to the State itself, and that is in the court of any judge of competent jurisdiction in this country. There is no law here that empowers anybody to summon the Supreme Court to assemble and discuss their sentences; there is no law on our Statute Book authorising anybody to summon High Court judges to assemble and discuss their sentences and procedure; there is no law authorising anybody to summon circuit court judges to such a periodic conference and I do not think there should be a law authorising a newly-appointed officer under this Act to summon district justices under penalty to attend and engage in such discussions.

We are marking out district justices as a different kind of judges and I think that is a mistake. I know, and I speak with full deliberation, that it is bitterly resented by some of the more experienced justices who strenuously object to being put in the position that they are summoned under penalty to attend once or twice a year for such a discussion. I imagine the same justices would gladly sit in conference with their colleagues provided they did so voluntarily. I think their instinct is sound. They are right to feel that we should not put on them a statutory obligation of this kind because it makes them a different kind of judge. They are right in believing that their utility to our society is largely rooted in the theory— which ought to be the fact—that, as judges, they are all the same and that the only distinction is the limit of the jurisdiction delegated to their care.

Do we not stipulate by statute where and when they should sit in court?

I do not think we stipulate them. We stipulate that they should hold courts on regular days—

We stipulate that the High Court shall sit——

We do not. We stipulate that the High Court will be there, that the High Court Judges will go on circuit. We stipulate times for certain purposes. That is merely making provision in regard to the administration of justice. That is not the administering of justice.

That is what it is.

No. That is not the administering of justice. Where we stipulate that a judge must hold a court on a certain day, we have a duty to ensure that the public shall have justice brought to them. That is why we appoint judges. That is why we give them their dignity—so that what will be brought to the people is justice. This has nothing to do with the public. This is a summons to district justices to consult amongst themselves, and the implication is so that they will not do an injustice.

It is the same in principle.

No, it is not. That is where the Parliamentary Secretary is making the mistake. He is now creating or seeking to create by this sub-section a category of judge different from any other judge. In that he is making a grave mistake. He is making it because he is adding to the burden which the district justice bears. The district justice bears the burden of adequately maintaining the dignity and integrity of his own court. The district justice has to contend with the relative frequency of his appearance at the same venue. Familiarity breeds contempt. The arrival of the circuit court judge is a relatively rare occurrence. The arrival of the High Court judge is a very rare occurrence. But the district justice arrives every month. The natural instinct of the contempt born of familiarity has to be contended with by the district justice.

Secondly, of its very nature, the atmosphere of his court is much more informal. As we all know, it may lead to a recognition in practice of conversations taking place between the State solicitor and the superintendent of the Garda and the district justice, which, I think, on reflection all of us are agreed now should not take place until the criminal business of the justice's venue is disposed of. But that is one of the difficulties of informality. That is one thing the district justice has to resist in order to maintain not only the integrity of his court but the confidence of the people in the integrity of his court.

Now, if it is to be known that, in addition to these two differences that exist between him and a judge of a higher court, he is also notoriously summoned by the President of the District Court to biennial conferences designed to secure that the judgments of the district court shall be more uniform, we add to the general impression that this is a court of lower degree, judicially speaking, as opposed to jurisdictionally speaking.

That is wrong. We are not going to get any corresponding advantage. If the Parliamentary Secretary thinks this is going to be accepted gratefully and appreciatively by the body of the district justices, he is quite mistaken. It may be accepted silently by those who do not much care. But I know that some of the most distinguished members of this body resent it bitterly and feel it prejudices their position in the eyes of the public and shakes their confidence in themselves. These are things difficult to measure. I suppose one could conceive of a circumstance in which a judge could become too confident of his own capabilities, but it is a tendency to be encouraged because, no matter how confident he may become, if he be in error, we have provided the machinery whereby the litigant or the prisoner at the bar can go further to have his error corrected.

May I ask the Leader of the Opposition would not one of these district justices to which he refers, read law books, reports of cases and so on?

For what purpose?

To refresh their minds.

Is that not all that is involved here?

I would venture to swear that if these men were commanded to read them——

You do not put into your law that they should read so many volumes a year.

It is not that they have any inherent objection to the conferences. It is that they should be singled out by the statute law of this Oireachtas as being different from any other judges. We do not tell judges of the Supreme Court or the High Court that they must read so many journals every year or that they must read so much case law from parallel legal systems. Doubtless they do. If they did not, they would deteriorate very rapidly as judges. But we do tell the district justices "You must assemble and take common counsel."

I would urge the Parliamentary Secretary to drop this provision. I believe any advantage that can be got by such consultation will be got on a voluntary basis. Make it mandatory and you are going to create a very disagreeable situation in which certain justices may go to the length of standing on what they conceive to be a matter of principle and saying "We are not prepared to discuss the exercise of our judicial functions with anybody. We are discharging them in accordance with what we consider to be our duty. If anyone believes us to be a scandal or to have acted contrary to our oath, let the appropriate constitutional machinery be put in motion to remove us. But we will not be directed to enter into discussions of this character, whether we think them wise or foolish. Those who appointed us ought to assume that work is necessary to maintain our efficiency as judges in the district court. That we will do. If by our conduct it ever appears we do not, there is machinery under the Constitution for removing us. The Oireachtas should not mark us out as a different kind of judge by providing an intermediate sanction under which no other member of the judiciary labours."

Deputy Dillon is stressing the point that the proposal that the justices should meet should be made voluntary. Probably they would object to meeting at all.

Because judges have so much power in their own courts, after a while they become like little tin gods. It might not be a bad idea if they did get together and realised their limitations. We think we are little tin gods in our own constituencies, but when we get together here we realise our limitations.

Judges are merely ordinary human beings and they have something to learn, too. I have been in court now and again and I have seen how one district justice differs from another. It would be good to have some sort of uniformity.

Deputy Sherwin put his finger on a point. Judges may find themselves getting into the belief that they are little tin gods. But that does not apply only to the district court. It may apply elsewhere. I do not know how, if that feeling develops in the district justices or any other group of justices, you are going to meet it by making one a bigger tin god than the rest and telling him to summon them together and ask them to discuss various matters. We believe the people appointed to most of our courts, although the routes by which they get there are devious, get responsible at the end and behave. We are told they are in the habit of meeting. Let that go on. That is all right. But one is to be picked out as the Government's choice and given power to convene meetings for the purpose of discussing various matters. Of course, if that is done in a piece of legislation it means that somebody who is aggrieved can say to the President of the District Court: "Look, you were given power under the law to summon these people together and you did not do it. Why?"

Once you write something into a piece of legislation you impose a duty on the people affected by that writing-in to exercise certain powers in certain circumstances. I think it is wrong to do that. The district justices meet at the moment. I say let them continue to meet. We do not ask them to read so many law reports per year. We do not ask them to pass examinations at a certain time. We do not impose on them different individual obligations of a certain kind. If they are responsible people, and they are responsible people, they will meet and resolve between them any little difficulties they may have found in the administration of their courts. Here it is specifically provided "such matters as the avoidance of undue divergences in the exercise by the justices of the jurisdiction of that Court and the general level of fines and other penalties." What does that mean?

It means that the President of the District Court—whoever he may be—will say: "I think there is a serious divagation in the exercise of the administration of the district courts and I will call you all together and lecture you on that. I think there is a very big discrepancy in the general level of fines and in the penalties imposed and I am going to call you together to tell you where I think the divergence is too great." The Parliamentary Secretary is going to give somebody the right to say to these people: "Look, you are going wrong." We have appointed all these people and each man makes a declaration that he will do justice, without favour and all the rest of it and obey the Constitution and the law. Now we will give one man the power to say: "I want to impose upon all of you my standards."

Why do we give him that power?

"I am telling you now that you do not come up to the standard I think you should come up to." We are asking them to discuss divagation between penalties and in the administration of justice.

"Divergences" is the word used.

Very well. That is the word used but this is to be applied to everything else. Up to this a district justice could be dismissed under the law for stated misbehaviour and incapacity, and there is machinery laid down to provide for that. The Minister can request the Chief Justice to appoint a judge to inquire into the conduct of a district justice in circumstances which are likely to lead to a resolution being tabled here and in the Seanad to have a person dismissed for either misbehaviour or incapacity. That is one bridle on. It is the same as for every judge. The district justice is on the same footing as every other judge in that respect.

Secondly, he is subject to the rules of a Rules Committee, a committee established for a specific purpose, consisting of a member of the district court bench in Dublin, a district court clerk, and four others appointed by the Government—three members of the profession, two solicitors and one barrister—to examine the practice, procedure and administration of the courts and report as to whether they think further amendment should be made. That is a very good proceedure. It is not observed, but it is a very good procedure. It is wrong, first of all, that it is not observed and very wrong that its non-observance was allowed to pass without criticism.

And that is an argument in favour of compulsion.

No. It is simply an argument saying there is a very good procedure and suggesting an improvement on the present position: "Look, get together and advise the Minister for Justice at least once a year"——

And that procedure has failed.

"——as to what change you think should be made in the practice, procedure, and administration of your court." And nil return could be sent in every year.

The machinery was there and they never did that.

They never did it.

Major de Valera

Is it not desirable that there should be uniformity?

If we wanted uniformity, all we have to do is to say "The sentence shall be such and such." We do not say that legislatively. We say "The maximum penalty shall be——". Sometimes you have minimum sentences for minor penalties. That is the first objective. You must allow for the different circumstances and the different circumstances are, at first, observed by the man who is living in those circumstances and who knows what the circumstances are. If someone makes an analysis and says: "It is a peculiar thing that down in the west the penalties are such-and-such for such an offence and here in the east they are different" that can be explained by the circumstances of the people in whose area the offence is committed.

And that is the purpose of the meeting.

Let them meet, but do not say they must meet to get rid of these divagations.

The Deputy admits it is desirable they should meet.

I would not impose the obligation that they must meet for this purpose. If there is public agitation, if there is an outcry, if the Press get on to something, then a good district justice will say at once: "I must have some consultation with my colleagues. Why are they imposing such-and-such a penalty in that area when I am imposing such-and-such a penalty in my area?" There is a tremendous difference as between what you can do and what you must do.

Suppose the district justice refused to come to the conference?

I am putting the circumstances in which he would come because he thought there was some discrepancy he should investigate.

Suppose his colleague does not come.

Then he can get in touch with——

If the man he particularly wants to talk to does not come, is not the conference of no value?

Very good. Impose on them more than the personal obligation to come, and suppose a justice comes in to the conference feeling that this is a wrong thing to have imposed on him——

He will not be there ten minutes when he will realise the value of the conference.

——and he will not listen. It is delightful to hear a layman resolving these difficulties.

Let the Deputy not flaunt his legal experience in my face at this stage.

These people are sensible folk and they will meet if they think there is any value to be got out of meeting. Like the schoolboy, unless they can send in an excuse for absence —unavoidable sickness, or some other cause—they must attend.

Major de Valera

The meeting will not come unless there is machinery to bring it.

They must come under this. Suppose I could impose on Deputy de Valera an obligation to come, and suppose his soul revolts against coming——

The latter assumption is just the Deputy's assumption. No reasonable man will refuse to come to a conference like that.

I know Deputy Dillon is in touch with certain people and I know there are members of the district court who object very strongly to this imposition on them. If you coerce a man against his will he is going to be unwilling still. He will come to the conference and simply sit there, not paying any attention to the proceedings, revolting against the whole thing.

He should be removed then.

He cannot be removed. The Deputy means removed from the conference. Or does he mean removed from the court?

From functioning as a justice.

There is the way we are going. This will be called misbehaviour, warranting removal from the Bench. If a justice does not attend a meeting, or, attending, takes no part in it, he can be removed.

If he is the type who would adopt the attitude the Deputy suggests he would, then he should be removed.

It is a perfectly reasonable attitude. A man is legitimately entitled to say: "I will not be coerced into obeying. I am here under obligation imposed by statute, but you cannot make me bend my will to that of other people."

He will soon realise the value of the conference.

If there is an odd recalcitrant who will not come in then he must be made come in. If there is an odd justice on whom pressure must be brought to bear, then the pressure will be there in the law.

Let us take the odd fellow, or the odd half dozen fellows, if they will not bow to this sort of control, will they get any value out of their meeting?

Ultimately, yes.

Put the whip on and they will begin to like it after a bit. If the Parliamentary Secretary really believes in what he is saying, then leave it as it is—voluntary association. That kind of association is a great thing. These are free men, able to utilise their mental capabilities. A district justice will know if there is something wrong. He will know what others may be saying about him and he will ask himself why there should be these discrepancies. He will not be made any better by being forced to come along to this conference. He can be summoned to the conference, but it will not do him a bit of good unless he is anxious freely to associate with the other people belonging to the district court.

This should not be put in legislation. The President has power to summon the district justice. If he does not summon him on certain occasions he will be criticised. This is an obligation, giving him the right to summon him. Cut out subparagraph (c) which says that every justice must attend. Let the President call them. The good people will come and the people, who think themselves better than those who come, will stay away. The bad people will stay away. It is better that they should stay away because there is the danger that if people come who think they are better than the majority they will coerce others into the wrong point of view. Let the President summon them but let us not have this nonsense of mature men being treated like schoolboys having to bring an excuse from their parents.

I wish to speak on 6b in a minute.

Are we not discussing both together?

I shall put 6a first.

Question—"That the words down to and including line 25 stand part of the Bill"—put and declared carried.

I move amendment No. 6b:

In page 20, to delete lines 26 to 30.

I think Deputy Sherwin exquisitely illustrates the point I made. Deputy Sherwin's view is: If they do not come sack them.

No. I did not say that, but if they think that, they are not fit to be judges and ought to be sacked.

No matter what the Deputy says they will misinterpret him.

The Parliamentary Secretary finds himself almost inclined to assent to that view.

I never said that.

I thought he said this was sound common sense, striking the desk with a placatory hand. That is the very point I am making. You are creating a different type of judge. You are creating a sackable judge.

The Deputy knows that is nonsense.

The Parliamentary Secretary may be doing it unconsciously but that is what he is doing. He is creating a different grade of judge. Of course there must be grades of judges in relation to their jurisdiction but there should not be grades of judges in relation to the judicial respect in which they are held or the independent discharge of their judicial functions. The very essence of that integrity is rooted in the fact that we cannot sack them. The only way you can get rid of a judge is by an extremely elaborate procedure involving the Oireachtas itself. Deputy Sherwin should remember the only judges that ever got sacked under the system he loves are the judges who went out on a limb to defend him against the Government.

The reason Deputy Sherwin and I should be solicitous to see that a judge cannot be sacked is that we might find ourselves hauled up before a judge by the Government and that nothing could stand between us and jail but that judge. We should be solicitous to ensure that, if that judge effectively interposes himself between us and the Government's effort to put us in jail, it would not be in the power of this Government or any other Government to sack him.

The Parliamentary Secretary should listen closely to Deputy Sherwin's interruption. He has already created in the mind of Deputy Sherwin the impression that this is an inferior type of judge: call him and if he does not come let him produce his excuse, and if he does not conform to the terms of that, sack him. That is not the impression this Oireachtas should seek to spread in regard to the justices of the district court. I would much sooner have Deputy Sherwin interpose to say: "What shall we do if he does not come? We cannot sack him. He is a judge." That was not his interruption. If it were, this proposal would be relatively harmless. Deputy Sherwin's suggestion is: if he does not conform, sack him.

I did not say that. I said that if he adopted that attitude that he knows too much and does not want to learn anything then he is not fit to be a judge and he ought to be sacked.

That is exactly the attitude.

Not because he did not come.

You can see at once that Deputy Sherwin is already beginning to think of district justices as being in an entirely different position from judges.

I think he said they should be removed for misbehaviour.

The Parliamentary Secretary is trying to shore up the position as best he can but Deputy Sherwin's contribution is an exquisite illustration of the impact of this proposal on the public mind in regard to district justices, that they are an inferior breed. That is all wrong. They are judges with a peculiarly difficult job to do——

And we want to help them.

——who stand most urgently in need of the uniform support of the Oireachtas in maintaining their dignity, their independence and their prestige. Paragraph (c) of this subsection is well calculated to undermine all three. If the Parliamentary Secretary is not prepared to meet us on 6a, why not drop paragraph (c) and leave it open to the President of the District Court to invite the justices to meet him not more than twice a year, leaving them free to come or not to come. If paragraph (c) is dropped you will have men coming to such gatherings who will absent themselves if commanded to come. I believe it is not impossible for the President of the District Court to get pretty regular and full meetings on the basis of invitation. He might get informed, friendly and helpful discussions amongst district justices who felt they were there out of courtesy to the man who invited them.

I am as certain as I am standing here these discussions will bear no valuable fruit if they are held on the basis of a command. Probably the best informed of the justices will absent themselves or will attend under duress and react accordingly. Drop paragraph (c) and you will have rid this provision of much of the evil inherent in it.

Major de Valera

Deputy Dillon and his colleagues were very eloquent on some of the principles they have been brandishing. In regard to principles we will agree with them but I do not think they are in issue here at all.

What is in issue is this, that quite apart from the intervention of a Government, and it is just to avoid undue specific intervention of a Government, it is desirable that the district justices themselves seek out means of getting uniformity. I shall try to be specific with a couple of examples. When we were putting through a Bill here dealing with road traffic, there was a great deal of regard to compulsory sentences and many people were strong on the point that maximum sentences should be provided by Parliament but that the actual sentence should be a matter for the judge. That is a good principle and I think the Parliamentary Secretary after consultation—particularly in cases of drunk in charge—accepted that.

However that does not dispose of other problems. You have both social and police problems arising out of district court decisions. I take it as an axiom that the district justice does his best to decide every case squarely on the facts before him and what I have to say is not to be taken as a criticism of the district justice. A discrepancy such as this can occur. Take a case of an assault on a Garda where a dangerous weapon is used, and, for some reason or other, the accused gets a suspended sentence. Perhaps within weeks of that a man is sent to jail because he did not open the door of a public house quickly enough for a Garda——

Why do they not appeal?

Is there a case of a man sent to jail for not opening the door of a public house?

Major de Valera

I have given some examples. The point I want to make is that these seem to be discrepancies. They have a reaction on the morale of the police and on the public and at the same time they are matters in which it would be better if the Government did not directly intervene— questions of uniformity and general policy in regard to crime—because again the question of punishment in regard to crime can be a matter of policy. It has been so traditionally in England where the Bench has always reacted to public opinion.

Does Deputy de Valera say that a man was sent to jail for not opening a public house door?

Major de Valera

What I have said I have said. What I am saying is that these matters of uniformity are being worked out among the district justices themselves and that is in principle a very good idea. If you can get the district justices together to discuss the needs of the country from the point of view of crime, the policy in regard to a particular crime and to establish a standard of uniformity, it is better than bringing in the Executive.

Quite so; agreed.

Major de Valera

All right. What is all the talk about making the one meeting for that purpose statutory? Do we not know that if provision like that is made, these things end in failure because people do not turn up?

They are not statutory; they need never be called.

Major de Valera


There is no statutory obligation to call them.

Major de Valera

Then what is the Deputy arguing about?

If they are called they should not——

Major de Valera

If they are called, it is surely for a good and sound reason and if they are called I cannot see for the life of me why they should not attend.

Be made to attend.

Major de Valera

Be made to attend. They have to attend their courts and if they do not attend the courts they could be removed. I think frankly Deputies are making a lot of talk about a rather tenuous matter because there is no principle involved.

If the Deputy were compelled to attend Dáil Éireann every day would he not find it——

Major de Valera

It might be a good idea, but I would say if that was the provision, then that was what I was there for.

It would be a good thing if they were compelled.

Oh, no. When you are a long time here——

Major de Valera

I think the Deputies attend the House fairly regularly.

I do not say they should be compelled to sit here.

Major de Valera

What objection can Deputy Dillon have to this?

Paragraph (c). Drop paragraph (c).

As I see it, the President may call a meeting. In other words he may not and he probably will not call a meeting unless he thinks there is need for it. I do not see what the objection is. If some justices are so touchy that they object to meet to discuss matters—it has been said they are going to be lectured. There is nothing here to say that the President can lecture them. The justices themselves can argue as much as the President.

All right; then what is the objection?

They have to come.

I used to attend an international housing conference every two years. I learned plenty and we all admitted that it was of great value to the Corporation. For every pound they spent, they earned more. The district justices could learn from these meetings. There are some little Caesars who know too much, but nobody knows too much. There is nothing objectionable in the proposal.

It is my amendment: Am I allowed to finish?

Deputy Dillon moved it.

I did. Anyway, if I am called on I understand I am concluding. I want to speak but I do not want to cut anybody out.

If the Deputy speaks that will be the closure.

Does anyone else want to speak? I do not order Deputies to speak.

I presume Deputy McGilligan is addressing the Chair in his usual orderly fashion. I merely want to rise in order to defend Deputy Sherwin and to ensure that what he said will not be twisted unduly. Deputy Sherwin was envisaging a situation where these meetings are called. A district justice, as outlined by Deputy McGilligan, attends one of these meetings and deliberately refuses, out of malice as it were, to take part in the discussion no matter how valuable or helpful it might be. Deputy Sherwin interjected to say that a district justice who behaved in that fashion would be guilty of misbehaviour in his opinion. I think that is a valid comment. I think it has emerged clearly from this discussion, that Deputy McGilligan is now prepared to accept that these meetings, if they are held, could be of very considerable value. That is my opinion. It is the hope of the Government in providing this machinery that these meetings will be of very great assistance to district justices. It is in that spirit they are asking the district justices to attend.

There is only one net issue to be decided in relation to the amendment and that is; should attendance at these meetings become compulsory unless a district justice has some valid and sound reason which prevents him from attending? I think the argument that they should is unanswerable. Deputy Dillon gave the considered opinions of certain important and much respected district justices of his acquaintance. The compulsory provision would not be aimed at this type of people at all and they should realise that. We are all conscious of the fact that the great majority of district justices would be scrupulous in their desire to avail of anything like this which would be offered to them and which would enable them to do their job better.

I am quite certain that once the district justices that Deputy Dillon has in mind come to realise the value that these discussions can be to them and come to know the spirit in which the Government are offering this machinery to them, they will gladly accept it and there will not be the slightest difficulty arising from them. But, there will be in this regard as there already is in regard to court sittings, the odd recalcitrant, the odd district justice who will not be fully conscious of his duty. It is to make sure that the meetings are properly representative of all the district justices that we have this proviso with regard to compulsory attendance. If we are going to do the thing and if it is going to be of value, we might as well do it well and this is the way to do it well.

I want to make this point: we stipulate by statute and by Ministerial order that district justices shall attend at certain times and places for court hearings. There is no difference in principle in making this further stipulation that they shall attend at a certain time and a certain place for these discussions, if they are requested. If objection is taken on some constitutional ground to our directing justices or judges of any sort by statute to attend at any particular place, then that applies to the sittings of the district courts just as much as it applies to this particular provision here.

I think, as Deputy de Valera says, the Opposition are seeing in this and reading into it far more that is, in fact, involved. After the machinery has been set up and has operated for a short time it will be quite clear to the district justices themselves the value that this machinery can be to them and I would hope that they would accept the machinery in that spirit and avail of it because it is offered to them for their own assistance.

The way this is now put is that this is a most valuable thing for the district justices. It is offered by the Government and with the approval of the House as something that is of great good to them, something which, after they have experience of it for a while, they will realise how valuable it is. Then, the final thing is, "If you do not come to the meetings, we will sack you. We are going to make this a test of misbehaviour or incapacity."

Who said that?

The Parliamentary Secretary said it.

He did. My interpretation of what he said is so. I have not heard the Deputy speaking on this.

It is a wrong interpretation.

I cannot understand this confusion of thought. The Parliamentary Secretary has said here that he agrees with Deputy Sherwin that if a man has the mentality that he would not come to this valuable and good thing offered to him then he ought to be sacked.

He ought to be, yes.

There it is and the Parliamentary Secretary agrees with it. There you are. That is what is to be made of this confused situation. I do not think a man ought to be sacked for not attending a meeting which is called for the purpose of discussing certain divagations in penalties. I do not think there is any misbehaviour or incapacity involved in his not being there. He is entitled to stay away. He is a free man. If he is coerced into this sort of thing he will come there and not pay any attention. Of course, that can be done. The background is that if he comes there in a sort of unco-operative mood, something that might lead to somebody thinking it is misbehaviour and incapacity, then we take serious notice of it. In the mean-time we are offering it as something very valuable to the district court.

They are reasonable men, mature men, experienced in law, experienced in procedure, meeting already from time to time. Let that go on. We are going to say to them, "The President of the District Court is going to tell you to come together once or twice during the year and if you do not come without producing an excuse we will take serious notice of it."

It is very difficult to fathom the reasons why people do things or do not do things. There is a famous phrase quoted from a very famous headmaster of one of the English public schools. Aaland of Rugby said at one time to a group of pupils, "I will flog you if you are not pure of heart." It is very difficult to know whom he was going to flog on that basis.

I know whom I would flog.

I am sure you do. That is the mentality of the abolition of P.R. and all that sort of thing. We are used to pinchbeck dictators. We got rid of them over and over again and the population has always reacted against them. That sort of business: "I know what I would do with my weight of intellect, the weight of what I say", is not the test. The test here is argument.

Keep your good humour.

The test here is argument, not preferment for odd reasons.

Keep your good humour.

A man who gets into a position on preferment for odd reasons just does not immediately impress himself on this House. It is what he says and what he can do.

Keep your good humour. Do not be personal.

I know what he would do but, luckily, he is not in a position to do all he would like to do and we are trying to prevent him doing something here which we think is wrong and which we have argued as being wrong. We do it again on the basis that if you want proper association with the District Court, that they are reasonable, mature people and let them behave in that way. They are behaving in that way.

I feel that this is another example of Parkinson's Law. There is an appointment in the offing and having made up one's mind to appoint somebody to be President of the District Court one must give him work to do and this is part of the work and then you say to the good corps of district justices, "If you do not come we will take serious note of it. It may be a matter of misbehaviour and then you can be fired for it."

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

I move amendment No. 6c:

In page 21, line 49, after "cases" to insert "where it is provided by statute of the Oireachtas that in the special and limited circumstances set out in such statute such administration is prescribed".

This amendment gets on to Section 46 and I am not too clear at the moment as to what the amendments that are put down from the Government side mean. I take it there will be a readjustment of the subsections. There is no subsection at the moment but the new amendment put down is to the effect that "a case prescribed by subsection (1)". I suppose something will become subsection (1) when the amendment is inserted. At the moment I am putting down an amendment to the preamble to what I presume will be subsection (1) afterwards, that is, after the word "cases" I want to insert a phrase so that the preamble will read:

Justice may be administered otherwise than in public in any of the following cases where it is provided by statute of the Oireachtas that in the special and limited circumstances set out in such statute such administration—

—that is, administration otherwise than in public—

—is prescribed.

Has the Deputy read the amendment?

I have read the Government amendment.

Have you read your own amendment now?

That is what I have just read.

You have inserted words in it which are not in it as we got it.

I am taking the typescript that was sent round to me.

The Deputy is reading in after the word "administration" additional words which are not there.

I explained what "such administration" means.

Will the Deputy read his amendment correctly?

I have read "such administration" and I interpret that to apply to hearings otherwise than in public.

The Deputy is inserting into his amendment words which are not there.

I will not be interrupted in this way.

Anyway it does not mean anything. It is all nonsense.

The section says that justice may be administered otherwise than in public in certain cases and I read in the words "such justice shall be administered by judges appointed and courts established" and add "save in such limited cases as may be prescribed by law, justice shall be administered in public." We are making provision for the administration of justice otherwise than in public and are then setting out the cases in paragraphs (a) to (f). The section says:

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.

My first objection to what is proposed in this Bill is that this is not prescribed by law. I was told that the interpretation of this was that whenever in these cases the judge thought there should be hearings in camera such hearings should be held. I cannot see how that is in accordance with the Constitution. I do not see these as limited cases prescribed by law.

This is proposed as a piece of law and if this becomes law it should be in compliance with the Constitution. I say it will not, because a compliance with the Constitution demands that the limited cases should be as prescribed by law. Saying that in any case where a judge thinks that an in camera hearing was desirable such a hearing should be held is far too wide. A judge may say that certain things should be heard in public and certain things in camera. That is not right. The cases in which in camera hearings should be prescribed ought to be laid down by a piece of statute law which should set them down in detail. It is to get that done that I have put down this amendment.

I want to see that in these cases, if provided by Statute of the Oireachtas, there should be a limit and that the limit should be in accordance with the Constitution in regard to cases heard other than in public. I have pointed out that the great majority of cases of the matrimonial type are held in public. I do not know so much about the lunacy or minor matters. I am not at all clear that all lunacy or minor matters are held in camera. I know that habeas corpus applications, bail, prohibitions and injunctions are more ordinarily held in public than in camera and I want set out by way of statute what are the special limiting circumstances in which hearings of such cases are in camera.

I do not propose to accept this amendment because it is in fact nonsensical, an example of the type of thing which we have begun to associate with Deputy McGilligan. The section proposes to prescribe the types of cases which can be heard in camera. The Constitution lays down the requirement that, generally speaking, the administration of justice must be in public except where the law prescribes certain limited exceptions. That is what the section purports to do. If the Deputy's amendment means anything at all, which is doubtful, the section itself would lay down only types of cases in which other statutes might be permitted to prescribe that other cases would be held in camera.

My amendment seeks to limit the types of cases that would be held in camera. There are six categories of matters set out in the section and the last two of them, (e) and (f) deal with cases in which provision was made by any Statute of the former United Kingdom or of the Oireachtas of Saorstát Éireann or any cases involving Acts of the Oireachtas. I want to put the other four paragraphs in the section on the same footing. We should have statutory functions inside the other four paragraphs on the possibility of an in camera hearing and the conditions under which the in camera hearing could take place.

It means any or all — so that justice may be administered otherwise than in public in any or all of the following cases: applications of habeas corpus, bail, prohibition or injunction, matrimonial causes and matters, lunacy and minor matters and proceedings involving the disclosure of a secret manufacturing process. There is full power given in this section to a judge to hold closed hearings. I think it is far too wide and I do not think it comes inside the Constitution under the heading of special and limited matters.

Amendment put and declared lost.

I move amendment No. 7:

In page 22, to delete lines 5 to 9 and insert the following subsections:

"(2) The cases prescribed by subsection (1) of this section shall be in addition to any other cases prescribed by any Act of the Oireachtas.

(3) Any provision contained in any statute of the Parliament of the former United Kingdom or of the Oireachtas of Saorstát Éireann which provided for the administration of justice otherwise than in public and which is not in force solely by reason of its being inconsistent with the provisions of the Constitution of Saorstát Éireann or the Constitution, as the case may be, shall have full force and effect."

On the Committee Stage debate doubts were expressed as to whether the provisions of the 1946 Act were constitutional. These cases which we set out were cases where justice could be administered other than in public. I am as reasonably certain as I can be that the provisions in the section comply fully with requirements of the Constitution. On the Committee Stage further doubt was expressed that the section as it was framed might in certain circumstances give discretion to a judge where we did not want him to have discretion and where, in fact, we would want it to be mandatory to have the cases in question held in camera. We have gone carefully into the matter and have come to the decision that there are amendments that should be made in respect of categories (e) and (f).

We feel, in regard to paragraph (a), that is, applications of an urgent nature for relief by way of habeas corpus, bail, prohibition of injunction, that these applications could be left to the discretion of the judge. The same would apply to (b) matrimonial causes and matters, and to paragraph (c), lunacy and minor matters and also to (d), proceedings involving the disclosure of a secret manufacturing process, but there were cases under (e) and (f) where the Acts in question actually make it mandatory that the particular cases should be held in camera. A typical example, of course, is the hearing of income tax cases. The effect of this amendment, then, is to make it absolutely certain that in mandatory cases covered by former paragraphs (e) and (f), there will be no discretion for the judge and, in fact, it will be mandatory to hear the cases in camera.

How will this section be arranged?

Paragraphs (e) and (f) will go and (a) to (d) will become subsection (1) and the remainder subsections (2) and (3).

That is not in the amendment but I presume that can be done?

That is the effect of the amendment.

There is no amendment to make these paragraphs (a), (b), (c) and (d) into subsections (1) and (2).

The mechanics of parliamentary procedure take care of that.

I am asking the Chair.

That is the usual procedure.

Amendment put and agreed to.

Amendments No. 14 and 15 may be taken with amendment No. 8 since they are cognate.

I move amendment No. 8:

In page 22, to delete lines 10 to 15.

I indicated on Committee Stage that I proposed to move on Report to delete Section 47. The House will recall that I then gave the history of the matter. The Rules Committees have now made rules governing this matter which are acceptable to the Government and therefore there is no longer any necessity for Section 47. This amendment proposes to delete it.

The amendment meets with our approval. The real principle here at stake is the utter impropriety of the Oireachtas interfering in a domestic matter of this kind. I think it is a poor service to the language that it should be invoked for the purpose of disrupting a long-established professional practice. It becomes all the more ludicrous when the terms "A Bhreithimh" and "A Phríomh-Bhreithimh" are offered as substitutes for the customary form of address of "my lord" because it is quite clear that here we have a double fraud. One is the pretence that we are introducing Irish into our procedure whereas, in fact, the constitutional procedure is that anyone can address the court in Irish to the exclusion of English altogether if he wishes or in English to the exclusion of Irish.

The second fraud attempted was to suggest that "my lord" involved some obsequious adherence to a feudal practice inherited from the British administration here. In fact, so far as the historic root of this custom arises, it derives from the fact of the close association between the courts and the Church prior to the so-called Reformation. It is highly likely that in our courts the practice of using this form of address survived for no other reason than habit but for us, particularly, it should have a sort of pious value in that it recalled happier days.

The necessity to refer to this would never have arisen and, in fact, it would have been of interest only to those concerned in a scholarly study of legal history but for the absurd demarche of suggesting Section 47 and its adoption by the House. I have repeatedly directed the attention of the House to the fact that we do no service to the cause of the language by making it a kind of political football and making demonstrations from time to time of our readiness to ram the language down our neighbour's throat.

I gladly testify to the fact that the Parliamentary Secretary himself speaks and uses Irish but he should have the common sense to realise that he became fluent in it, not because he was taken by the ear and told that he had better become fluent, but because he was allowed to absorb it, because he liked it and wished to become proficient in it. Perhaps he is human enough to admit that if it were thrust upon him he might have reacted vigorously against it.

I am sorry to say that I detect the hand of the Parliamentary Secretary on this section. He will agree that all these Bills were drafted prior to his entry into the Department of Justice. In respect of some of them he thought he would put in some frills and furs and this was the most unfortunate frill of all that he saw fit to fashion. However, let justice be done though the heavens fall. He has had the common sense to drop it, although there has been some rather undignified scrambling with the Rules Committee to get them to make some facesaving gesture in order to enable him to get out of his dilemma. I have even heard it rumoured that one suggestion was that he would beat a strategic retreat provided his nose would not be rubbed too vigorously in it in Dáil Éireann. These pacts have no validity. Dáil Éireann is a place for open discussion of legislative proposals and other matters of common interest. The proposal in Section 47 reflected seriously not only on the discretion but also on the wisdom of the Parliamentary Secretary. His rather laboured withdrawal from the dilemma into which he had got——

Do not give credit either way — abuse for putting it in and abuse for withdrawing it.

If a man sets fire to a house, he must not expect to be applauded by the witnesses if he throws a bucket of water on it. Let me not seek other similes. Suffice it to say it is right attention should be directed to the fact that this, like other efforts to ram Irish down other people's throats, is ill-advised. It does no service to the language. On the contrary, it creates unnecessary antipathy for it. It makes the Legislature look foolish, and I hope this is the last occasion upon which attempts of this character will be made. Let the Parliamentary Secretary learn from his own distressing experience or, even more important, let those who come after him learn from his discomfiture that excursions of this kind are ill-advised.

The amendment is a simple one—to withdraw the whole of Section 47. So disappears this effort to put modes of address into the mouths of the members of the Bar. I understand that the Rules Committee met and passed some resolution with regard to this matter of modes of address. If it did, I should like to point out that the Rules Committee, on replies to questions I put to the Minister for Justice, have been in breach of their statutory duty under the Act of 1936 since that Act was passed. If they have met and sent the Minister for Justice any recommendation with regard to the modes of address, it is the first time they have carried out their statutory duty in all those years. I think it is a rather shameful occasion they choose to have a meeting about a shameful matter. I personally take no great pride in the resolution they passed.

First, I want to rebut emphatically any suggestion that I made any sort of deal with anybody with regard to the debate that would take place here on this matter. That is, of course, completely false. I may say I would have expected a more responsible approach to this matter from the Opposition. I think I have already given evidence on the earlier amendments with regard to the transfer of trials that when Opposition Deputies are prepared to put up a genuine case they do not find me unreceptive. However, I suppose it is too much to expect that that sort of action on my part would in any way be reciprocated.

I have already explained the circumstances in which this matter arose. There was widespread objection to the use of the terms "My Lord", etc., in the courts. The Government took note of that objection and sought to do something about it. It was not an attempt to ram the Irish language down anybody's throat. I explained in the debate on the Second Stage that that was a completely wrong interpretation of the Government's action. It was merely an attempt by the Government to take cognisance of and have regard to the objections made to the use of these terms in our courts.

The solution proposed by the Government did not meet with general acceptance. Fortunately, because there were on all sides people of goodwill and very responsible people, a compromise solution was possible, and a rule perfectly satisfactory to the Government was made without fear or favour or compulsion by the Rules Committee. It is in those circumstances that the Government have pleasure in deleting this particular section.

I think Deputy Dillon has been wrong and irresponsible. I think he might have accepted this and commended all sides on arriving at this acceptable compromise rather than to be speciously trying to gain some temporary advantage over me or anybody else. I have nothing but contempt for Deputy McGilligan's attack on the Rules Committee in this regard.

A rules committee can be said to have acted without fear, favour or compulsion——

The Deputy's only trouble is that he is never on it and never will be.

I say it was a shameful thing to do.

Amendment agreed to.

I move amendment No. 9:

In page 23, line 50, to delete "1959" and substitute "1961".

Amendments Nos. 9 and 10 may be taken together. They are purely drafting amendments. They refer to the citation of the Courts of Justice Act and the Court Officers Act and are consequential on the passing of the Courts of Justice and Court Officers (Superannuation) Act, 1961.

Amendment agreed to.

I move amendment No. 10:

In page 23, line 51, to delete "1951" and substitute "1961".

Amendment agreed to.

I move amendment No. 11:

In page 25, after line 9, to insert the following subsection:—

"(10) (a) Paragraph (a) of subsection (1) of section 2 of the Act of 1961 shall not be taken to refer to a person who, immediately before the passing of the Act of 1961, was a judge of the existing Supreme Court, High Court or Circuit Court or a justice of the existing District Court and is appointed a judge on the operative date.

(b) The reference in subsections (2), (4) and (5) of section 4 of the Act of 1961 to the Court Officers Acts, 1926 to 1951, shall be deemed to include a reference to this Act.

(c) Section 5 of the Act of 1961 shall have effect as if there were inserted at the end of subsection (2) ‘or under section —* of the Courts (Supplemental Provisions) Act, 1961'.

(d) in this subsection ‘the Act of 1961' means the Courts of Justice and Court Officers (Superannuation) Act, 1961."

This is an amendment of a drafting nature and is consequential partly on the passing of the Courts of Justice and Court Officers (Superannuation) Act, 1961, and partly on the provisions inserted on Committee Stage relating to the pensions of county registrars and other court officers.

Paragraph (a) of the new subsection is necessary to ensure that the appointment of existing judges or justices to the new courts will not have the effect of applying to them the new superannuation provisions of Section 2 of the 1961 Act in the same way as they are applied to any judge appointed for the first time after the passing of the Act of 1961. Under the Act existing judges and justices are free to decide whether they will adopt these provisions and thereby obtain a lump sum on retirement with reduced pension or retain their present rights to receive a pension only. Paragraph (a) will ensure that this position will not be disturbed by the Bill. Paragraphs (b) and (c) are necessary to enable county registrars and certain other court officers who cease to be pensionable under the Court Officers Acts 1926-1951 and become pensionable under the first section being inserted in the Bill by amendment 13 to convert to the terms of Section 4 of the Courts of Justice and Court Officers (Superannuation) Act, 1961.

What does that mean?

I have explained what it means.

The Parliamentary Secretary has read what somebody else told him it means.

The text of this amendment contains a blank at paragraph (c). There is a note that it refers to the second of the sections proposed to be inserted by amendment No. 13. I can only take one section, although the subsections are numbered 1, 2, 3 and 4 and then at the top of page 3 of the amendment paper there begins again 1, 2, and 3. Does that indicate there are two separate sections?

How far does paragraph (c) relate to the other subsection? In paragraph (c) of the section set out in amendment No. 11 there is a note referring to the second of the sections proposed to be inserted by amendment No. 13, which I take it to be the section which appears at the head of page 3.

Does the explanation the Parliamentary Secretary offered in regard to amendment No. 11 also cover amendment No. 13?

Then how are we to know the meaning of paragraph (c)?

When all the amendments are inserted the proper number for that amendment will also be inserted.

This will become Section 50?

It is only when all the amendments have been incorporated that we will see exactly what number this will be. It is perfectly normal procedure.

It is a new section to go in before Section 51.

It will be Section 57 or 58. It will probably be Section 58.

Amendment agreed to.

I move amendment No. 12:

In page 25, lines 59 and 60, to delete "but adjudicate only on the question of sentence" and substitute "except to such extent as shall be necessary to enable the court to adjudicate on the question of sentence."

This amendment is being inserted to meet the point raised by Deputy O'Higgins. It will enable the circuit court, on the hearing of an appeal against sentence only, to re-hear the case to whatever extent may be necessary to enable it to adjudicate on the question of sentence.

Amendment agreed to.

Amendment No. 17 might, perhaps, be discussed with amendment No. 13.

Why do you want to take them together? One refers to the Schedule.

I understand No. 17 is consequential.

No. 13 seems to be quite a mouthful on its own.

We shall take No. 13.

I move amendment No. 13:

In page 28, to delete lines 25 to 39 and substitute the following sections:

(1) Where—

(a) a person who holds the office of Master of the High Court, Taxing-Master or county registrar ceases to hold that office (otherwise than on being removed from that office by the Government on the ground of misconduct or inefficiency) either after attaining the age of sixty-five years or upon medical certificate that he is incapable, from infirmity of mind or body, of discharging the duties of that office and that the infirmity is likely to be permanent, and

(b) he has completed five or more years of continuous service in one or more of the said offices

he shall, subject to the provisions of this section, be eligible for a pension consisting of—

(i) if he has completed twenty or more years of such service, two-thirds of the annual remuneration in respect of the office which he ceases to hold, or

(ii) if he has not completed twenty years of such service, one-sixth of the annual remuneration in respect of the office which he ceases to hold together with one-thirtieth of that remuneration for each (if any) completed year of such service in excess of five.

(2) Where a person in receipt of a pension under this section is employed in a situation remunerated out of moneys provided by the Oireachtas, then

(a) the pension shall not be payable in respect of any period during which his remuneration in respect of such situation is equal to or greater than the remuneration by reference to which the pension was computed, and

(b) so much only of the pension shall be payable in respect of any period during which his remuneration by reference to which the pension was computed as with his remuneration in respect of such situation will amount to the remuneration by reference to which the pension was computed.

(3) A reference in this section to service of any person shall be construed as a reference to service of such person in respect of which he was remunerated, exclusive of any period during which he was absent on account of illness and was remunerated at a rate determined by reference to the rate which would be appropriate if he were on pension.

(4) Pensions under this section may be granted by the Minister for Finance.

(1) Notwithstanding the terms of section —* of this Act, that section shall not apply in relation to a person who, on the operative date, holds the office of Master of the High Court, Taxing-Master or county registrar unless and until he elects under this section to accept the provisions of the said section —*.

(2) A person who, on the operative date, holds the office of Master of the High Court, Taxing-Master or county registrar may, by notice in writing sent to the Minister before the expiration of three months after the operative date, elect to accept the provisions of section —* of this Act.

(3) Notwithstanding the repeal by this Act of sections 4 and 5 of the Act of 1945—

(a) those sections shall continue to have effect in relation to a person who, at the passing of the Act of 1945, held the office of Taxing-Master or county registrar and holds such office on the operative date, unless and until such person elects under this section to accept the terms of section —* of this Act;

(b) section 4 shall continue to have effect in relation to a person who was appointed to the office of Master of the High Court, Taxing-Master or county registrar after the passing of the Act of 1945 and holds such office on the operative date, unless and until such person elects under this section to accept the terms of section —* of this Act.

It will be recalled that on Committee Stage the Bill was amended so as to give the Master of the High Court, Taxing-Masters and county registrars the same pension terms as district justices were given by the Courts of Justice Act, 1953. These terms represent a considerable improvement in that they permit full pension after 20 years' service, as compared with 30 years' service at present but, as against that, the new terms involve a raising of the minimum retiring age from 60 to 65 years.

There may be some of these officers now serving who would prefer to retire between the ages of 60 and 65 under their existing pension terms rather than wait until 65 and take advantage of the improved terms provided for in the Bill. It is only fair that the present rights of these officers should be preserved and, accordingly, in the second of the sections being inserted by this amendment, it is proposed that serving officers will retain their present pension terms unless they elect to accept the new terms within three months after the Bill comes into operation. A similar right of election was given to district justices in 1953.

Arising out of the provision of a right of election it has become desirable, purely from the drafting point of view, to repeal and re-enact, with the amendments inserted on Committee Stage, the provisions of Sections 4 and 5 of the Court Officers Act, 1945, which deal with the pension terms of these officers. Section 59 of the Bill is, therefore, being replaced by the first of the sections now being inserted and Sections 4 and 5 of the 1945 Act are being repealed by amendment No. 17; but, as I have said, this repeal and re-enactment make no change of substance in the Bill.

Will the Parliamentary Secretary ensure that the officers affected will be notified of the position so that they can make their election?

I think they are fully aware of the position.

I think it is necessary in these cases that people should be notified of their rights.

There is a three-months' limitation. It might be no harm to see they are notified within the three months that election must be made.

We will do that.

Amendment agreed to.

I move amendment No. 14:

In page 30, opposite "No. 10 of 1924", in column (3), to delete from "7 and 8" to "sections 11" and substitute "7, 8, 11".

Amendment agreed to.

I move amendment No. 15:

In pages 30 and 31, opposite "No. 10 of 1924", in column (3), to delete from "section 30" to "sections 41" and substitute "sections 30, 37, 41".

Amendment agreed to.

I move amendment No. 16:

In page 31, opposite "No. 10 of 1924", in column (3), to delete "54".

Are we to take it this amendment is consequential on amendments Nos. 3, 4 and 5?

Mainly No. 3. This is where I graciously accepted the Deputy's amendment about the transfer of trial.

The parliamentary Secretary acted very wisely.

Amendment agreed to.

I move amendment No. 17:

In page 32, opposite "No. 25 of 1945,", in column (3), before "7" to insert "4, 5,".

This amendment is consequential on amendment No. 13. It proposes to repeal Sections 4 and 5 of the Court Officers Act, 1945, which are being replaced, with amendments, by the two sections which are being inserted in the Bill by that amendment.

Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

I am glad the Parliamentary Secretary's bland equanimity returned before the end of the proceedings because, in those circumstances, we are prepared to take the motion "That the Bill do now pass".

For this relief, much thanks.

Question put and agreed to.