I move Amendment No. a1.
In page 7, line 5, after "incapacity" to insert "which is such as to render him incapable of vacating his office by resignation in writing under his hand".
Committee on Finance. - Courts (Supplemental Provisions) Bill, 1959—Report Stage.
If the Deputy agrees, it might be possible to discuss Amendments 1e and 4a which are cognate.
Yes.
If separate decisions are required they may be taken.
This matter was discussed twice on an earlier stage. It was discussed first on 22nd June, 1961. At columns 840 and 841 of the Official Report it will be seen that I raised the point of why we should deem a person to be vacating his office owing to infirmity if he is removed from office on account of incapacity. At column 842, Deputy Dillon is reported as saying:
Mr. Dillon: May I seek clarification? Does the word "incapacity" envisage a judge who is mentally unstable and incapable of tendering a valid resignation?
Mr. Haughey: That is the whole point.
Mr. Dillon: ... We should remove him but we should not be prejudiced by the fact that he has become incapable validly to resign on the grounds of incapacity.
Mr. Haughey: That is exactly the point....
There could be the case of infirmity of the nature instanced by Deputy Dillon, insanity. There could also be a case of paralysis or some other form of infirmity by reason of which the judge was physically incapable of resigning. The only alternative is for the Oireachtas to move for his removal on the grounds of incapacity. In those circumstances, it would be completely unfair to deprive him of his pension rights. The provision is intended to deal purely with that situation.
Mr. Dillon: ... I think there would be unanimous agreement on the proposition that we should retain in our hands the power to remove a judge suffering from physical incapacity, if he is not able validly to resign. I should like the Parliamentary Secretary to look into that and see if some clarifying word could be introduced to give a more precise significance to the word "incapacity".
At column 844, I entered into the argument and said:
Mr. McGilligan: ... As the section stands, it can apply to another judge who, in the extreme conditions the Parliamentary Secretary talks about, is incapable of performing his duties. I want to ask the Parliamentary Secretary this question: supposing the section or the subsection is not there and a case occurred——
—this is the limitation—
——of a judge who became so mentally and physically incapable that he could not pen a letter of resignation, is there anything to prevent the Dáil voting him a pension?
Then, at column 845, I said:
I suggest it is not proper to leave this in its present form. Either incapacity should be defined as being incapacity of the extreme type talked about or, alternatively, drop the sub-section with the understanding that if a person gets so ill that he cannot send in a letter of resignation the question of a pension would be considered. In that case the person would not really be dismissed at all.
Eventually, as reported at column 847, I said:
Let us take the circumstances of a man who is gone so bad that he cannot even write a letter of resignation.
I said we had not had any such case in the history of the State.
At a later date, 29th June, 1961, as reported at column 1328 of the Official Report, I said:
I was wondering why should we treat a judge who becomes handicapped in this lenient way? A judge who finds his mental or physical strength weakening can always retire by sending in his resignation. If he has a certain number of years' service he will qualify for pension. It was explained on the last occasion that this provision was put in to meet the exceptional case of a judge who becomes so infirm that he cannot send in a letter of resignation. That is a very special case.
As reported at the end of column 1328, the Parliamentary Secretary said:
Mr. Haughey: ... I think it is a very sensible and a very fair provision. Here, we are dealing with the case of a district court judge who, through no fault of his own, becomes completely incapacitated and incapable of resigning because of paralysis, mental disorder, or something like that. Why should he be victimised?
Is it not only just that we should, as part of the privilege of his office, defend that privilege by statute to ensure, in the event of calamity, that he will be entitled to his pension in the same way as if he vacated his office of his own volition because of permanent incapacity?
It was to be looked at and the whole argument on the section before us was that this was to meet the special case of a man who had become so incapable that he could not send in his resignation due to paralysis, insanity, and so on. Therefore, I move to insert in page 7, line 5, after "incapacity" the phrase "which is such as to render him incapable of vacating his office by resignation in writing under his hand." That meets the case.
As Deputy McGilligan has pointed out, this matter has been discussed fairly fully on the Committee Stage. On that Stage, I expressed the view that the provision was quite satisfactory. On re-examination, I am still of that opinion. I am prepared to admit that we are primarily concerned here with the case of a judge or justice whose incapacity is such that it would actually prevent him from resigning. We are, in those circumstances, concerned to see that such judge would have his pension rights statutorily protected.
I do not think there is anything to be gained by the insertion of the words proposed by Deputy McGilligan. He could argue with some justification that, with the insertion of his words, the subsection would become more specifically directed to the type of case I have in mind. That is true. Even granting that, I still think the subsection as it is framed is preferable.
I am sure the Deputy will bear mind that, no matter what sort of incapacity a judge would suffer from, of its nature, it might impair his judgment in some way. If we narrow it down in the manner suggested by Deputy McGilligan we might render ourselves likely at some future date—I admit the likelihood is pretty remote, but it is there—to cause an injustice to some judge. I am anxious to avoid that at all costs, particularly when it will not matter in any way, because, as I argued on the Committee Stage, no judge is going to deliberately, and as it were frivolously, submit himself to the indignity and humiliation of being brought before the House of the Oireachtas to be dismissed ignominiously when he could avoid that by resigning. The possibility of any judge ever doing that, of being so perverse, is so remote that we need not worry about it. For that reason I do not think it is necessary to narrow down the scope of the subsection in the way Deputy McGilligan's words would do, particularly when the narrowing down might somewhere, some time, interfere with the pension rights of a particular judge.
This is to take the peculiar case of a judge who is being dismissed or removed from office on one of the grounds which the Constitution permits. As far as the sub-section is concerned, we are providing that if we take the course of bringing a judge before the two Houses to be dismissed, we are still deeming him to have vacated his office owing to permanent infirmity. This is to ensure that he will have his general rights preserved. It is all very well to say that we can keep it in a general way and that it will be applied only in special cases. Deputy Dillon raised the point as reported at Column 842, Volume 190, when he said:
If there is a judge ... who is incapable, or on the threshold of incapacity, and cannot tender a valid resignation, and there is no other means open to him, I think the proposal in those circumstances is fair and valid. We should not remove him but we should not be prejudiced by the fact that he has become incapable validly to resign on the grounds of incapacity.
The Parliamentary Secretary's answer was very precise:
That is exactly the point.
It was detailed later:
There could be the case of infirmity of the nature instanced by Deputy Dillon, insanity. There could also be a case of paralysis or some other form of infirmity by reason of which the judge was physically incapable of resigning.
Later Deputy Dillon said:
I think there would be unanimous agreement on the proposition that we should retain in our hands the power to remove a judge suffering from physical incapacity, if he is not able validly to resign. I should like the Parliamentary Secretary to look into that to see if some clarifying word could be introduced to give a more precise significance to the word "incapacity".
Right through those excerpts it is a question of a person who cannot pen a letter of resignation. I am trying to meet the position by saying "Where a judge of the Supreme or High Court is removed from office on account of incapacity which is such as to render him incapable of vacating his office by resignation in writing under his hand". That is the solitary reservation which I want to put on the matter. Now we are leaving the section just generally.
Amendment put and declared lost.
I move amendment No. 1:
In page 7, line 32, after "the Constitution" to insert "or a question of the validity of any law having regard to the provisions of the Constitution."
The object of the amendment is to secure that the Supreme Court will consist of the full court of five judges when dealing with any matter involving a constitutional issue. Under the present law, and as the Bill stands, the Supreme Court need not sit as a court of five on constitutional issues except where the incapacity of the President or the constitutionality of a Bill referred to it by the President is involved.
On Committee Stage I indicated that I was in agreement with the principle of a similar amendment moved by Deputy McGilligan and this amendment is to give effect to that agreement.
The amendment is welcome for the reasons I stated on my amendment. It should be remembered that this now means by law, but only by law and not by the Constitution, that a constitutional case must be heard by five judges. That is only law and can be changed at any time.
Amendment agreed to.
I move amendment No. 1a:
In Page 9, to delete lines 14 to 17.
This is to delete all of subsection (4) which gives the Chief Justice the power to interview justices when he is of the opinion the conduct of a justice has been such as to bring the administration of justice into disrepute. I do not think the power should be given. It is well known that the Chief Justice or other judge can interview justices and I do not think it should be included in this formal way.
I am opposed to this amendment because this is one of the important and valuable changes which the Bill makes in the law. As I pointed out on Committee Stage, this sort of thing has always been inherent in a traditional way in the office of the Chief Justice. As Deputy McGilligan mentions, there have been cases when the Chief Justice has done exactly what is envisaged in subsection (4). What we are proposing now is to give statutory basis to that procedure and I think it can be of very great value in the administration of justice generally.
I am sure we could all visualise a situation where a district justice would possibly be behaving in a certain fashion, either through carelessness or a temporary lack of appreciation of his position, his obligations and his duties, and the Minister for Justice for the time being would not want to invoke the cumbersome procedure laid down by the 1946 Act. We want to have some way of dealing with that situation and to have some machinery whereby a justice could be spoken to and the error of his ways pointed out to him. I think it is infinitely preferable in many cases of this sort that a judicial person should carry out this function, for reasons which have been talked about here in the course of this Bill, and subscribed to by the Leader of the Opposition, that it is important to distinguish between the Executive and the judiciary. This provision here is subscribing to that principle. We want to provide statutory machinery whereby a judicial person, namely, the Chief Justice, and not a member of the Executive, the Minister, would carry out this sort of function.
I could well visualise cases arising where this procedure would be of great value to a district justice. Human nature being what it is, any of us at any time could well fall into the sort of position that we would not be discharging our duties as efficiently, as promptly and as correctly as we should. It is important that there should be some person in authority in a position to advise a person in that situation and, by the very fact of the admonition being administered, the situation would be put to rights. I think it is a valuable power to vest in the Chief Justice and it is desirable to do it by statute so that everybody will know where he stands. The Chief Justice will have expressly conferred upon him by statute this power that, as I say, has always been inherent in his office anyway.
In my amendment to delete this subsection there is no question of any conflict between the Executive and the judiciary—no conflict whatever. In point of fact, the matter does not arise. There has been, it is said, inherent jurisdiction in the Chief Justice to do this. I do not know where that is derived from.
The English situation goes on a system that they lay down and then there are things they call conventions, matters they understand as things that ought to be done to make the machine work. That was here all the time. That is being given legislative form, more or less to throw upon the Chief Justice the duty of keeping an eye on the district court and calling in a district justice when he thinks the administration of justice has been brought into disrepute. I do not want to encourage the Chief Justice or the Minister to do that sort of thing but the power has been exercised; no objection has been taken to it; but it is there and it is one that is exercised very, very seldom indeed and with great reluctance if it is not given legislative form. Giving it legislative form, it seems to me, draws the attention of the Chief Justice to it and it is more or less a direction to him that he has this power now and, therefore, he could be criticised afterwards if he does not call in a district justice when he thinks his conduct would bring the courts into disrepute.
There is a further grave objection to the proposal contained in this statutory provision which I shall try to illustrate quite simply.
I wonder if the Deputy is in order?
I understood Deputy McGilligan was replying.
I would not have replied if I thought Deputy Dillon wanted to speak.
We are on Report.
Am I not free to make an observation?
Yes, if the Deputy had intervened before Deputy McGilligan stood up to reply to his amendment.
I did not advert to that. Perhaps, by arrangement, I could make an observation?
I want to direct the attention of the Parliamentary Secretary to this: If an ordinary citizen of the State comes to the conclusion that a district justice is behaving in an unseemly way, his recourse is to approach Dáil Éireann, directly or indirectly, or the Minister with his complaint but it appears to me now that if you place a statutory duty on the Chief Justice to admonish a district justice there arises the corresponding right by implication of persons who fancy themselves to be aggrieved by the conduct of a district justice to make representations to the Chief Justice. That is manifestly an undesirable situation because it is not impossible that the very matter in respect of which the individual citizen makes his complaint is a matter which may in due course arrive at the Supreme Court and of which the Chief Justice will have to take judicial notice.
It is well established practice to all who have any understanding of the proprieties of our kind of life that you do not discuss with a judge any case before the courts which under any circumstances could reach his court for judicial consideration and even in our ordinary social contacts with judges the average person has to be very circumspect that until a matter which has become before any court has been finally and irrevocably disposed of you do not discuss it with judges.
I can remember a case arising in which I believed myself and still believe myself to have been well advised to have raised a matter here in Dáil Éireann. It was thought that the matter might have been more discreetly remedied by bringing it to the attention of the judiciary. I replied emphatically that nothing would induce me to bring it to the attention of the judiciary as the subject matter of it might subsequently come before them in their capacity as judges and that it would be most improper for me to solicit an opinion from any one of them on the merits of the issue for which I was concerned, that the correct procedure was to raise it with the Dáil and the Executive and then, for the Executive, through the proper channels, to bring it to the attention of the judiciary in so far as that was thought necessary or expedient.
Am I not right in believing that if we put a statutory duty on the Chief Justice as distinguished from the customary right he had by virtue of his office to admonish a district justice, we create a corresponding right in any citizen to turn to that statutory source for his remedy against what he conceives to be inappropriate conduct by a district justice? If I am correct in that inference, then it must be manifest to the Parliamentary Secretary that, far from having improved the existing system based on custom and long practice, which created no corresponding right in a citizen to approach the judiciary direct, we have materially disimproved the situation because we appear to have created a right in the individual citizen by creating a statutory duty on the part of the Chief Justice. I feel that is an aspect of the matter which may not have been present to the Parliamentary Secretary's mind when this proposal was brought before the House and he would be well advised when this Bill is before the Seanad to reconsider this proposal.
We are all agreed that there is available to the Chief Justice this discretionary power by custom, or however you care to describe it, to intervene if he sees something occurring which might reflect on the judiciary as a result of the conduct of a district justice. Nobody wants to take that power away or to question it. But, we raise the doubt: if we create a statutory right, and even duty, in the Chief Justice are we not creating a corresponding statutory right in the individual citizen which clearly he ought not to have?
Question: "That the lines proposed to be deleted stand", put and declared carried.
I move amendment No. 1b:
In page 10, line 28, to delete "liberty of the person" and substitute "life, liberty, fortune or reputation of a citizen".
I should like to discuss amendments 1b, 1c, and 1d together. They do run more or less together. In amendment 1b I want to delete the phrase where it occurs "liberty of the person" and to substitute "life, liberty, fortune or reputation of a citizen". In amendment 1c I want to put in in line 31 before the word "functions" the word "limited" and in amendment 1d I want to take out lines 32 and 33 of the subsection.
What I mean is perfectly clear. This is an attempt to give over jurisdiction to various persons—the Master of the High Court and various officials. They have been given power to do certain things. I want to go back to conditions which involved limited functions and I have already quoted the judgment of Mr. Justice Kingsmill Moore in the Supreme Court in a solicitor's case in which he used the phrase "anything which affects life, liberty, fortune or reputation of such persons". That could be considered to be a limited power or jurisdiction. What I want is to have accepted the phrasing of the Supreme Court and conditions which permit people who are not judges to deal with certain things.
On the Committee Stage, the argument turned on the proposal that because a man was not contesting this proposal it could not be regarded as harmful, and I raised the analogy that the criminal case would have to be considered by district justices, by judges and juries whether persons pleaded guilty or not. Clearly that test could not be taken into the framework of the criminal code. This does not deal with criminal matters, but there are other matters and situations which involve limited powers and functions of a limited nature. I see that harm might be done by handing over certain rulings to court officials since they might go against the matters which I have set out as being exceptions. I think we are going very dangerously towards a breach of the Constitution in this section. Generally speaking, apart from these people not being judges, they will not be as experienced or so very well trained. That is one of the reasons why one keeps separately certain executive powers from judicial powers. Is this a matter purely for administration or is it a judicial matter? I think it goes close enough to being a judicial matter and what I want accepted are the words marked out by the Supreme Court Judge.
At the beginning, I would explain to the House that this sub-section is, of course, devised purely for purposes of facilitating the administration of justice. The object would be to make litigation cheaper. I think we can all agree that is a matter to be desired; anything that would tend to make it easier for people to have recourse to the courts in a less expensive way than would otherwise obtain is, of course, most desirable.
Secondly, I would point out to the House that the sub-section empowers the Superior Courts Rules Committee to make these particular provisions. The sub-section itself does not provide anything but confers the jurisdiction and the power on the Rules Committee. We can assume that the Rules Committee, under the conditions as they stand, will have full regard to the Constitutional implications of this matter. Indeed I think they could be more relied upon to adhere rigidly to the Constitutional necessities than this House because they are a body much closer in contact with these matters and have better trained and more skilled men in Constitutional affairs than we have in the Oireachtas.
I object to and find Deputy McGilligan's amendments unacceptable for a couple of reasons. I would explain that I am dealing with three amendments. The first proposal is to insert the words "life, liberty, fortune and reputation of the citizen." In the first place, I do not like the word "citizen." I prefer the word "person."
Why does the Parliamentary Secretary object to "citizen"?
A person might be having recourse to our courts who would not be a citizen.
Our Constitutional protection is given only to citizens.
It was never envisaged that non-citizens would not have recourse to our courts. This is dealing with the general administration of the courts. Apart altogether from any Constitutional cases, these rules purport to deal with all sorts of ordinary cases coming before the courts. If we were to introduce the word "fortune" we would nullify the whole sub-section. I think the fortune of a citizen could cover every possible case that might ever come before the courts and I think the same would apply to the introduction of the word "life". The introduction of these words would undoubtedly render the whole sub-section completely meaningless because they would embrace in this proviso, in addition to criminal proceedings, every possible type of case so that we would have the ridiculous situation that the sub-section would read "rules of court may, in relation to proceedings and matters not being criminal proceedings or any other matters..." if we were to accept Deputy McGilligan's amendments.
On the question of inserting the word "limited" before "functions" earlier on in the sub-section, I think that is completely unnecessary. The functions are either limited or not limited. I think the way in which we have set them out makes them limited functions within the meaning of the Constitutional provisions and the addition of the word "limited" does not take from or add anything to it. In regard to the third proposal to delete the last two lines, my argument is much the same as it has been with regard to Deputy McGilligan's first proposal—that it would render the sub-section useless. The idea is that there are all sorts of matters which do not really require the exercise of judicial functions—matters such as the taking of accounts or making orders of an interlocutory nature. That sort of thing will certainly not involve the exercise of any judicial capacity.
The idea is that the Superior Court Rules Committee should be in a position to delegate these functions to certain officers. This subsection is not delegating anything; it is merely empowering the Rules Committee to delegate limited functions of this nature. Surely we can rely on them to make sure that the delegation will be fully constitutional? Therefore, I am opposing these three amendments on the grounds, first, that the section as it has been drafted—as I already explained on the Committee Stage it was drafted in close co-operation with the Rules Committee itself—is, in my opinion, completely constitutional. Secondly, I reject Deputy McGilligan's amendments because two of them would have the effect, in my opinion, of rendering the section nugatory and the other one is not necessary.
I think the Parliamentary Secretary is missing the point. We are not in the position of the British House of Commons which can do anything it likes except turn a man into a woman or a woman into a man.
Surely there are some other restrictions?
I am told not. In any case that is the description given to its powers and it is intended to illustrate the fact that they have no written Constitution whereas we have. There is reserved to the Judiciary the function of interpreting the Constitution particularly in relation to legislation passed by the Oireachtas. The Parliamentary Secretary may say that, if we adopt the words of Mr. Justice Kingsmill Moore's judgment in the Solicitors Act case, it may make the section meaningless. That is just too bad. The result of not adopting his words and thoughts on the Solicitors Act was that we left the solicitors profession for many months without any disciplinary machinery—
Until I rescued it.
I shall not go into that question because that is a type of intervention that could elicit a tart reply. At least the Parliamentary Secretary will agree that having drafted a Bill in close consultation with the legal profession we overlooked the principle to which Deputy McGilligan draws our attention as it is now enshrined in the judgment of Mr. Justice Kingsmill Moore in the Supreme Court.
We took the decision to have a written Constitution and whether we like it or not it is there. If we do not like the terms of the Supreme Court's decision in that judgment, the only course open to us, if we want to proceed in a way which is at variance with that decision, is to amend the Constitution. I do not agree with the Parliamentary Secretary that we have any right to legislate and say we can safely leave it to the Rules Committee or somebody else to avoid infringing the Constitution. We should not by statute of the Oireachtas purport to entitle anybody to infringe the Constitution. Our function, as legislators, is so to legislate as to make infringement of the Constitution impossible.
The Leader of the Opposition will pardon me if I point out one little thing, that is that the Kingsmill Moore judgment incorporates the phrase "in a profound way". I think that is the essence of the judgment.
Could not the exercise of the powers here envisaged affect, in a very profound way, the fortunes of an individual whose affairs were being disposed of? Remember it was the fact that the solicitors profession purported to deal with the right of a solicitor to practise—that was his fortune—that the Supreme Court was referring to when they said that it was the exercise of a judicial function in respect of the fortune of a person or a citizen, whichever you like to call him, which was reserved to the judiciary and which could not be delegated.
I think the Parliamentary Secretary, in the light of his own interpretation of the consequences that would follow from the adoption of Deputy McGilligan's amendments, ought to ask himself again whether this perhaps laudable effort to abbreviate litigation does not go beyond what is possible under the Constitution. That is the only issue. Again, I remind the Parliamentary Secretary that he is confronted with a pretty formidable opinion which is rarely wrong on matters relating to constitutional law. Is there any advantage to be gained adequately to compensate us for the possibility that at some future date immensely expensive litigation will be launched in regard to something that is done under the powers here created which will result in a crushing loss to the parties involved and the subsequent obligation upon us to take back our own Act and try to reconstruct it in order to bring it within the terms of the Constitution? I doubt if there is and I think the Parliamentary Secretary should walk warily lest it transpire that the warnings offered now prove to be well-founded. In my considered judgment it is almost certain that they are. The Parliamentary Secretary now finds himself driven back to the position of saying that he depends on the word "profoundly"—at least that is what I understood him to say in regard to the Kingsmill Moore judgment.
I did not at any stage indicate that I was relying on that word. I merely pointed that out because I thought Deputy McGilligan had adopted the Kingsmill Moore judgment holus-bolus.
What Deputy McGilligan adopted was that the Supreme Court spoke of the fortune of a person as being one of the things in respect of which the exercise of judicial functions was requisite. The important thing to remember is that this is purely a question of whether what it is proposed to do is possible under the Constitution. Authority is quoted for a proposition that it is not. Is it worth jeopardising the whole Bill in order to insert this? I think the Parliamentary Secretary would be wise to adopt the amendments if the effect of them is what he says, to make the subsection virtually inoperative. Then probably the truth is that, within the terms of the Constitution as it now stands as interpreted by the Supreme Court judgment in the Solicitors Act case, it just is not possible to do what he seeks to do under Section 14.
Two points have been raised against my amendments. The first is that this is not enacting anything, that it is merely empowering other people to make rules of court in regard to these matters. Then we are told the rules of court will be made by the Superior Courts Rules Committee. That is no protection. I do not know if the Parliamentary Secretary is aware of these two or three points. Many years ago, when the Sinn Féin Funds Act came into this House, it was argued against on the grounds that it was unconstitutional. It was sought under that Act to have dismissed out of court an action then pending on the application of the Attorney-General and to have the funds set aside and given over to another institution. It was later found out that the Chief Justice of the time had so little conception of the Sinn Féin Funds Act as being unconstitutional that he had agreed to act on the other committee and had indeed inter-meddled with the matter. When that was revealed the Chief Justice of the day could not sit on the Supreme Court, which eventually pronounced the Sinn Féin Funds Act to be unconstitutional. The Chief Justice is the chairman of the Superior Courts Rules Committee. There is a case in which his individual judgment with regard to a particular matter was proved by the courts over which he should have ordinarily presided to be wrong.
That is one example. The second example is this. The case upon which this matter of limited powers and functions of a judicial nature was most concretely raised was the case which declared the disciplinary portion of the Solicitors Act to be unconstitutional. That was an appeal from the Chief Justice of the day sitting as a member of the Disciplinary Committee. Apparently, a Chief Justice for a second time had decided that something was properly constitutional which was found out afterwards not to be so.
The Parliamentary Secretary possibly knows enough history to realise I am speaking accurately on those two matters. This may cause him to inquire into this. The Solicitors Act, which was eventually proved to be unconstitutional, was drafted with the consent and approval of the then Attorney-General, who later became a judge and who was a judge of the Supreme Court which had to condemn the law as being unconstitutional. There is a case of two people who by their office would be members of the Superior Courts Rules Committee; yet, in three instances, those two people apparently had not as individuals the view of the Constitution which, as members of the court, they afterwards had to accept. That means you have not any great security by the fact it is the Rules Committee that has to establish these matters.
The second point raised was the use of these four or five words, as suggested in my amendments, that we should include not merely criminal matters, but matters touching on the "life, liberty, fortune or reputation of a citizen". Those are the four words used in the judgment delivered by Mr. Justice Kingsmill Moore. He also used the phrase "effective in a profound or far-reaching way". He used a certain phrase of that kind. In other words, it seemed that there might be matters that touched on the reputation or fortune of a citizen but that might be so trivial as not to matter.
Let us get this into its own particular framework. One of the things mentioned was an assignee in bankruptcy. I could not think of anything more likely to affect an individual in a far-reaching or profound way than a bankruptcy declaration. But if the Rules Committee think proper, that may be handed over to people who are not judges and are not courts established under the Constitution. I think that is wrong. The Parliamentary Secretary goes very far when he takes these words of mine and says they mean that everything is excluded. The peculiar situation we are in is that we are omitting criminal matters which are excepted in the Article of the Constitution. If we omit criminal matters, the judgment of the Supreme Court certainly governs the area marked out by the four words "life, liberty, fortune or reputation". If the Parliamentary Secretary has been advised that accepting these words means you might as well say that everything is excluded, then it means somebody is advising him that the Article of the Constitution which proposed to give powers of an administrative nature to persons not judges is valueless, because the Solicitors Act case has got to be read as an interpretation of that Article of the Constitution.
I agree it was desired when the new Constitution of 1937 was being passed to make provision for certain administrative matters. The position of the Master of the High Court has been a question under inquiry and even under criticism several times. I find it difficult to understand why the easy way out of that difficulty was not taken— to make the Master of the High Court a judge. Then there could be no constitutional objection to his functions. Now we are adding on not merely the Master of the High Court, who is a person of legal standing and reputation, but a host of court officers. I am advised that a number of these are people who do not pretend to have any legal qualifications. If these matters are not limited, powers and functions of a judicial nature could be handed over to a person full of law if he is not a judge or a court established under the Constitution.
I believe these words are required. As far as the insertion of the word "limited" before "functions" is concerned, it is simply to draw the attention of those who come to deal with the matter afterwards to the Article of the Constitution which prohibits work being done by lay people, except limited powers and functions of a judicial nature.
Amendment put and declared lost.
Amendments Nos. 1c, 1d and 1e not moved.
Debate adjourned.