There is just one point I want to make on Section 1. Is there any reason why a specific date should not be fixed in the Bill for the commencement? It is now becoming a usual provision in legislation that the Act will come into force on a day appointed by the Minister.
Committee on Finance. - Coroners Bill, 1961—Committee Stage.
I could not tell the Deputy that offhand.
It does seem to be the kind of Bill for which a date might be fixed. It is generally preferable if that can be done.
Except possibly that there are regulations to be made under the Act when it is passed. That may be the reason.
I move amendment No. 1:
In section 2, page 3, to insert at the end of the section the following definition:
" `registered medical practitioner' means a person who is registered, other than provisionally or temporarily, under the Medical Practitioners Acts, 1927 to 1961, in the Register of Medical Practitioners for Ireland."
The effect of this amendment is to exclude from the definition of registered medical practitioner persons who have been registered provisionally or temporarily in the Irish Medical Register. At present a post-mortem examination for the purposes of a coroner's inquest can be carried out by a doctor who is only provisionally registered, notwithstanding that the manner in which the post-mortem is performed and the inferences to be drawn from it may be of critical importance in subsequent murder or manslaughter proceedings. I think it is desirable that post-mortem examinations should be carried out only by fully registered doctors. The amendment will also have the effect of making it clear that only doctors who are on the Irish medical register can be appointed coroners.
Amendments Nos. 2 and 3 may be discussed together.
I move amendment No. 2:—
In subsection (1), line 10, page 4, before "and section 7" to insert "the provisions of any order under subsection ( ) of this section."
I move amendment No. 3:—
Before subsection (3) to insert the following new subsection:—
"( ) The boundary between two adjoining coroners' districts the coroners for which were appointed by the same local authority may be altered by the Minister by order made after consultation with the Minister for Local Government and with the consent of the coroners for such districts."
The object of this amendment is to enable an adjustment to be made in the boundary between two coroners' districts in the same county where this is desirable in the interests of efficiency or to avoid unnecessary inconvenience. As the Bill stands, coroners' districts may not be altered except on the occurrence of a vacancy.
The amendment was suggested by the Leader of the Labour Party during the Second Reading debate, when he made particular reference to anomalies arising out of the present division of County Wexford between two coroners.
Amendments Nos. 4 and 5 may be discussed together.
I move amendment No. 4:—
In subsection (3) (b), page 4, line 49 and 50, to delete "subsections (1) and (2) of Section 7".
Amendment No. 5 is somewhat different but we can deal with it shortly. The provision is here for the Minister to declare qualifications, to say such qualifications are required. He does that after consulation. First of all, I want to put the Local Appointments Commissioners in the place they were in before and, apart from that, I do not see why the qualifications should not be declared generally. If there is any question then of an amendment being required after the passage of years has shown it is required, it could be brought in. The qualifications should be declared generally. To put the matter in the more obvious form—the matter of local appointments and appointments made otherwise—in the case of local appointments, it was considered a good step to put them outside the reach, so to speak, of political patronage. The way that was done was to have the local Appointments Commissioners deal with certain types of work. It was discovered that one way of taking away the virtue of the local appointments system was that a person was chosen on political grounds and then qualifications for a particular post were prescribed which suited X who was political favourite and did not suit anybody else.
That was all achieved by having power to make the qualifications specially for a particular individual; I mean, to relate the conditions to a particular individual. For instance, there was sometimes a question about the age limits for a certain appointment. In order to crush out a number of competitors the age limit was put down so that only one particular individual would be qualified by it. The only answer to that is to make whatever qualifications that there should be for a particular post general; they should be stated generally. Of course, allowance has to be made for the possibility that a general statement of qualifications is made and time shows either that these were badly stated or that certain people would be ruled out. The answer to that is to give power by regulation which would come before the House to change the general statement of qualifications. That would give room for anybody who knew that any political patronage was being worked to expose it in the Dáil, if a change in qualifications was being made to suit a particular appointment. That is what I mean by amendment No. 5.
As far as amendment No. 4 is concerned, I want to make subsections (1) and (2) of Section 7 apply to the office of coroner. The sections I am referring to are those allowing an appointment by the local authority without the approval of the Commissioners where a person already—these are the circumstances—holds a pensionable allowance or grant from the local authority and some economy can be worked by giving that person another appointment. In such cases the approval of the Local Appointments Commissioners is not necessary. That should not apply in these circumstances. I do not think there is any necessity for making that exception in the case of local appointments.
I have other amendments down and perhaps we could take those together also. Amendment No. 7 is to say that the qualifications should be not merely as to age, health and character but should also include residence. Residence should not come in that particular order but it was the only way I could put it in by suitable amendment. In the local appointments system the question of residence is a matter for regulation of a general type. With regard to a coroner I understand the situation to be that he would be supposed to reside, or have his ordinary permanent residence, inside his area.
That is after his appointment.
There are provisions here for an exception to be made and, of course, special provision would be made without regard to the deputy coroner who need not reside inside the coroner's area. I do not see why, if there is to be a regulation, it should not be of the form it has been, that the coroner shall live in his area, not necessarily within a certain distance of what the coroner's area is. These regulations should be made general with power to alter them. That could be dealt with by a later amendment. The alteration must be done by regulation which will have to come before the House and be approved. There is not sufficient elasticity to enable conditions of qualification which are of a general type to be varied, but notice would be given if there were any political background and that could be exposed. That is what I am at.
I shall take amendment No. 4 first. That amendment is designed to delete the words "subsections (1) and (2) of Section 7" from paragraph (b), subsection (3) of Section 8. The reason those words were inserted in the Bill originally was to bring this matter of the appointment of coroners into line with general local government practice. The effect of including the words in the paragraph is to bring about a situation where the conditions and qualifications laid down for the appointment of coroners would be prescribed and decided upon by the Minister, after consultation with the Local Appointments Commission.
That has been the position with regard to practically all other local government appointments since the passing of the Local Government Act, 1941. Section 21, subsection (4) of the Local Government Act, 1941, provided that subsections (1) and (2) of Section 7 of the Act of 1926—which are the provisions we are dealing with here—"shall cease to have effect in relation to every office under a local authority ..." except the office of coroner and a few others. So, in 1941, this way of doing things was brought into operation for practically all local government appointments except the office of coroner. In other words, the situation was brought about in 1941, in regard to all local government appointments, that qualifications and conditions would be decided upon mainly by the Minister in consultation with the Local Appointments Commission.
The purpose of paragraph (b) is to bring that situation about with regard to the appointment of coroners also. I think that is the correct thing to do. I think that basically it is the Minister for Justice in this case—in the other cases, the Minister for Local Government—who should decide the particular qualifications, in consultation with the Local Appointments Commission, and then leave the selection of the coroner to the Local Appointments Commission in accordance with those conditions. That deals with amendment No. 4.
Amendment No. 5, proposed by Deputy McGilligan, would remove from the appointments a certain amount of flexibility which I think is desirable. I agree that, generally speaking, it should be sufficient to lay down conditions generally, as suggested by Deputy McGilligan, but I think there could arise a case in relation to a particular appointment where the Minister, in consultation with the Local Appointments Commission, would want to prescribe particular conditions. The type of thing I have in mind in that regard is that, because of the size and importance of a particular coroner's district, the Minister for Justice might want to prescribe different and probably more stringent qualifications than would be appropriate generally for coroners' districts throughout the country. I think it is desirable that we should leave that amount of flexibility in Section 8, and for that reason I am opposing amendment No. 5.
Deputy McGilligan, in proposing amendment No. 7, is, if I may say so, a little confused. The Bill provides that, subject to exceptions, the coroner must reside in his district. That proviso comes into operation and takes effect after the coroner has been appointed. The effect of amendment No. 7 would be to lay down a stipulation as to residence of candidates for appointment, and I do not think Deputy McGilligan wants that. In other words, the effect of inserting the word "residence" in paragraph (c), subsection (3) of Section 8 would be that the place in which the candidates resided would become relevant to their appointment. I do not think that is desirable at all. It is not where the candidate lives that would be important from the point of view of his appointment as coroner, but his qualifications generally. The proviso with regard to where he should reside comes into operation only subsequent to his appointment. I do not think there is any need, therefore, to insert the word "residence" in paragraph (c) as suggested by amendment No. 7. The paragraph as it reads is sufficient for our purposes, namely, that the qualifications would be qualifications as to age, health and character, and residence as such would not be relevant from the point of view of qualifications of candidates for appointments.
While dealing with these amendments I might as well explain amendment No. 6 which is an official amendment in my name to correct a drafting error. The amendment proposes to delete "and subject toSection 14 of this Act” because those words are not necessary.
In relation to amendment No. 4 in the name of Deputy McGilligan, the Minister mentioned that the alteration which was brought about in relation to a number of appointments of officials of local authorities by the 1941 Act specifically excluded coroners. I have not looked up the Dáil discussions on the matter but I take it there must have been substantial reasons at the time why the office of coroner should have been excluded.
Simply because the Minister for Local Government was the Minister in relation to all the others and the Minister for Justice was the Minister in relation to the coroners.
I do not know to what extent it was examined but it seems to me that there are reasons why the office of coroner should not be put in precisely the same boat as other local authority offices. While it is true that the coroner will be paid by the local authority, he is not an employee of the local authority in the same sense as are most other officials of the local authority. The coroner will occupy at least a quasi-judicial position and in his official position as coroner it may very well be that he will be charged with the responsibility of investigating in some sense the actions of people who might be his superiors in the local authority's service. It does seem to me that there are reasons why the post of coroner should not be filled in exactly the same way as other local authority posts. While, to some extent, it may be a distinction without a difference, it might be worth preserving the distinction that exists already, that the Appointments Commissioners fix the conditions with the consent of the Minister rather than that we would now make a change that the Minister fixes the conditions in consultation with the Local Appointments Commissioners.
With regard to Deputy McGilligan's amendment No. 5, the Minister mentioned that circumstances might arise in relation to a particular appointment where particular conditions might be necessary. Although it is not the meaning which the Minister gave to it, that is precisely the reason for the nervousness displayed by Deputy McGilligan. If you look on the Minister's words in another way, that particular condition might be fixed to suit a particular appointment in the sense of the particular person being considered for the appointment, it will be clear to the Minister why Deputy McGilligan has moved this amendment and the force behind the argument which he put up for it.
To deal with the question of general and particular qualifications, the reason the office of coroner was left out of the change which was made in the 1941 Act may simply have been that the Minister appropriate to him was the Minister for Justice. Even in Section 7 of the Act of 1926 which Deputy McGilligan is anxious, as it were, to hold on to, there is this power to prescribe particular conditions for a particular office. I quote subsection (1) of Section 7:
Whenever a local authority or the Minister requests the Commissioners to recommend a person for appointment to an office to which this Act applies the Commissioners shall with the consent of the Minister prescribe the qualifications as to age, health, character, education, training, experience and (where in the opinion of the Commissioners the duties of the office so require) sex for such office.
So that subsection (1) of Section 7 is, in effect, making provision for the prescribing of conditions and qualifications for a particular office.
But by the Commissioners.
And the Minister in consultation with them.
Recommended by the Minister.
But the principle is there.
It is a different framework.
And it recognises the necessity that you could have a situation where you would want to prescribe conditions and qualifications for a particular office.
We are quite happy to leave that position if the Minister would meet it by allowing the Commissioners to fix the qualifications.
I think the change I wish to make is desirable. It is the Minister nowadays who should prescribe and it is in keeping with legislation generally of this sort. This would avoid the political jobbery to which Deputy McGilligan referred and it is achieved by leaving the selection to the Appointments Commissioners in accordance with the conditions decided, in the main, by the Minister. I think that is the trend in relation to these things as specifically laid down in the Local Government Act, 1941. I want to achieve the same thing here, that the Minister for Justice will be the person primarily responsible for prescribing the qualifications.
In addition, I think we should retain the principle which is already in the 1926 Act, the principle of flexibility, and that we should have available to the Minister, in consultation all the time with the Local Appointments Commissioners, the right to prescribe particular conditions for a particular office. It is quite clear that a little flexibility is desirable and could be important on certain occasions. You may have a particularly important coroner's office and want to prescribe certain conditions for it.
I do not think Deputy McGilligan need have any fears on this matter. After all, the conditions are prescribed and so long as the selection is made by the Commissioners, any fears Deputy McGilligan might have of political patronage are groundless. The Minister's only power in the matter is to prescribe the qualifications. After that, he is out of it.
Does the Minister not see that it is quite possible for the Minister to prescribe qualifications to fit an individual, so that the choice in fact before the Commissioners is being taken away?
All any Minister could do if he were sufficiently unscrupulous, and I shudder to think that we would have any Minister who would be so unscrupulous, would be to prescribe certain conditions which would rule out individuals, but I do not think he could be so adroit as to prescribe conditions to appoint a pal.
The Minister is not that naive.
The Minister ought to make inquiries from the Department of Local Government where he would find a number of examples of qualifications being made to suit a certain limited number of people in the hope that the Party candidate would get through. In this piece of legislation, we are giving coroners an amazing position. They are almost being equated to judges. Coroners can be appointed here with very little in the way of overriding qualifications because matters regarding professional training do not count for much. We shall discuss that on Section 12 and 14.
The situation now is that coroners can be appointed and hold office up to a certain age limit and can be dismissed only in what I might call the judicial way by an order which says that a coroner is guilty of misbehaviour or incapacity. The two words are covered by a multitude of phrases. I think, in such a position as that, there should be some better guardianship. I think it is desirable to have the Local Appointments Commissioners taking the lead in the matter, having the consent of the Minister. The qualifications should be stated generally. The more definitely that course is followed, the less chance there is for political jobbery. If it is possible to change the qualifications for a particular position without notice being given to the House with regard to that, then of course the field for jobbery is somewhat enlarged. As against that——
It is only age which is involved. The only thing the Minister could do is in relation to age.
What about health and character?
What could he do in regard to health and character?
It was on the age point that it was most definitely worked in the Department of Local Government, to make it suitable for certain people.
When did this happen?
"Subject to Section 14 of this Act——"
Amendment No. 6 takes out those words.
Which seems to allow that Section 14 might be overridden, but I presume the answer is that Section 14 has nothing to do with health, age or character.
It has to do with certain restricted professional qualifications. I do assert that the age point was one that occurred. There is no doubt that the age was changed to suit certain people. In any event, it is said that we require flexibility with regard to what? The age. In regard to health or character that is not to be changed, so the flexibility is to make a change——
You might want to make it in regard to health, in regard to a particular appointment.
If that is so, if age can become a consideration which can be changed for a particular appointment, then it is another way in which certain conditions may be waived to suit a certain person. I agree there ought to be flexibility. I say you might have a proper scheme of qualifications laid down and it might be found to be unworkable or you might not get the proper people. That ought to be brought to the notice of the House. I have said already I would prefer to go back to the system before the 1941 Act and have the initiative in the matter taken by the Local Appointments Commissioners. If it is on that frame-work, I do not mind flexibility with regard to a particular appointment being given. I do not mind, if they are to get a say in the matter.
They still have to be consulted.
What does that mean? It is like consulting the Council of State with regard to the things the President is doing. He hears but he need not pay attention to them. If they were consulted, I would not mind. Even if they were consulted with regard to the change for a particular appointment, I would not mind. While I agree there ought to be some degree of flexibility, I think it is absurd to have this swing over to the Minister instead of the Local Appointments Commissioners, who are being put in the position that they have only to be consulted and no notice is to be given so far as this House is concerned. I think there ought to be a better look at this. If it is agreed on the one hand that we do not want to have political jobbery and that we should have some system where qualifications are openly declared——
Are they not being openly declared by the Local Appointments Commissioners?
When will we hear about it? When the appointments are made?
When they are advertised.
When it is too late to get a change made. This matter of flexibility has been over-worked. It can be done in another way. Say the qualifications are generally declared and, if there is any change to be made for a particular case, that will have to be done with the consent of the Local Appointments Commissioners. That would be a suitable way. They would be already in agreement with the general statement of qualifications. They would have to consent to any changes made. That certainly takes it out of the arena of politics, which is what we want. With regard to residence, I do not understand the argument that, when a coroner is appointed, he will have to reside in his area——
Subject to certain provisions.
Subject to exceptional matters. It is said we should not put in "residence" in our statement of qualifications because that will only apply to a person before appointment. No, the residence is going to be fixed on employment after appointment. The Minister has argued it is wrong to put in the phrase about residence here because it is dealing with the conditions of appointment. Surely that statement will say the coroner must reside inside the area?
That is not involved in the Deputy's amendment. The effect of the amendment would mean that the candidate must reside as a candidate.
Not at all. Where is that?
That is the meaning of putting in the word there.
Not at all. Where? Read it. "The Minister shall ... declare ... the qualifications as to age, health and character for appointment to the office of coroner ..." I put in the word "residence." Does that mean the residence of the man who lives where he is applying?
One of his qualifications for appointment would be where he was residing.
No. One of the considerations would be where he lives when he is appointed.
I do not see how any other meaning could be read into that. It is a qualification as to residence. That has nothing to do with his candidature.
It has. We are dealing with his qualifications as a candidate.
His qualifications for appointment to the office of coroner.
How does he know where he is going to live before he is appointed?
That is what we want to know.
Surely he will not be tempted to live in the area by the salary offered?
If I am going for that appointment. I can only get it if I live within the area.
He knows that.
He ought to be told that. It is in the old Local Government Act. Residence is also attended to. That long section in the 1941 Act deals with it.
I am afraid the Deputy is confused.
The word "residence" as a matter of qualification, is included in the 1941 Act. It is a small matter. I want to stress that it is important, now that the matter has been changed over to the Minister, that he should not be given power to change the conditions of appointment. He should not be allowed to say: "That is all right for certain areas, but here is a different area and I want to change the qualifications." I do not think that should be allowed. If it is going to be allowed in the small matters we are talking of, let it be done with the consent of the Local Appointments Commissioners. Let the Minister settle the general conditions. If he wants changes for particular posts, let him get the consent of the Local Appointments Commissioners.
It seems clear that if one inserts the word "residence" in paragraph (c), one is laying down conditions of residence as a qualification for candidates. The whole question of a coroner being compelled to reside in his district is dealt with in Section 12. There is a straightforward mandatory provision that a coroner must have his ordinary residence in the coroner's district, subject to the Minister giving him permission to reside outside. That is one aspect of the matter that is clear. Here, in paragraph (e) of subsection (3) of Section 8, we are dealing with the qualifications of people entitled to be considered for appointment as coroners. Deputy McGilligan wants to insert the word "residence" in that regard. If that means anything, to my mind it means that the conditions with regard to those eligible for appointment would include conditions as to where the candidates resided. To my mind, that would be ridiculous. You are entitled to prescribe conditions and qualifications as to age, health and character; but surely we would envisage a situation where a person could apply for a position as a coroner in any district, no matter where he resided? It would be nonsensical to prescribe conditions of residence as a qualification for appointment.
I move amendment No. 6:
In subsection (3), paragraph (c), page 5, lines 3 and 4, to delete "and subject to section 14 of this Act".
I move amendment No. 8:
In subsection (3), paragraph (e) page 5, line 10, before "recommended" to insert "to be".
This is a drafting amendment, purely and simply.
I do not know what the grammar of it is. It is said to be a drafting amendment.
I have no doubt this argument will be overwhelming with Deputy McGilligan. These words are being inserted at the suggestion of the Local Appointments Commissioners.
I suppose they have all got Leaving Certificates. I shall leave it at that.
I move amendment No. 9:
In subsection (3), paragraph (e) page 5, lines 13 and 14, to delete all words after "proper".
I propose to delete the words in paragraph (e) "...and need not be selected by means of competitive examination." The position is that these words, in effect, are no longer necessary.
This is the position as it is at present.
I move amendment No. 10:
To add the following new subsection.
(5) The Local Appointments Commissioners shall, before recommending a person for appointment to the office of coroner, satisfy themselves that the person possesses the requisite knowledge and ability for the proper discharge of the duties of that office.
The purpose of this amendment is to make it clear that there will be no obligation on the Local Appointments Commissioners to recommend a candidate for a particular appointment as coroner if all the candidates fail to satisfy the Commissioners as to their standard of knowledge and ability for the appointment. It might be argued, otherwise, that the Commissioners, having announced a vacancy and invited applicants, were bound to recommend a candidate notwithstanding that no candidate was found to be qualified by reference to the minimum standards deemed to be requisite.
A similar provision to this is applied to local authority appointments generally by section 21 (10) of the Local Government Act, 1941.
As the Bill stands, the Local Appointments Commissioners must satisfy themselves that the person they recommend has the prescribed qualifications —section 7 (3) of the Local Authorities (Officers and Employees) Act, 1926, as applied by section 8 (3) (d) of this Bill; this amendment obliges the Commissioners to satisfy themselves, as well, about his knowledge and ability for the job.
Have they to satisfy themselves that the qualifications are there? It seems funny to have them satisfy themselves in respect of the requisite knowledge and ability——
All we want to do is to get out of the situation where they would have to appoint somebody.
Is there not in this the possibility of a conflict with subsection (3) (c) of the section? Could you not, for the purpose arising here, where the Minister fixes qualifications and candidates comply with those qualifications and therefore, in the opinion of the Minister, are people proper to be appointed as coroners, have, at the same time, under subsection (5), which is the new subsection to be added, the Commissioners saying: "We are not satisfied on their showing before us that they have the requisite knowledge and ability"?
The Minister would not enter into that. The Commissioners would be the sole judges.
The only point I want to get clear is that the Commissioners' decision under subsection (5) is to be taken as overriding the question of qualifications fixed by the Minister.
I think there is no question about that.
Did I understand the phrase to be used that the Local Appointments Commissioners would have nothing to do with the question of whether a person was qualified or not?
No. The Minister will have nothing to do with it.
There is an old canon of construction which applies in a different way where, when you call attention to something, you include everything else. The Commissioners are to refuse appointment if they are not satisfied the person has the requisite knowledge and ability, but does the character of the applicant come into it?
Would there be any objection to the Minister expanding that a bit?
I shall have a look at it.
I move amendment No. 11:
In subsection (4), page 5, line 41, to delete "one month" and substitute "three months."
I hope the Minister accepts this amendment, which I think is reasonable. It is in relation to a determination made with regard to the coroner's salary. Subsection (4) says:
Where a coroner is dissatisfied with a provisional determination he may, within one month after being informed of the terms of the determination, appeal against it to the Minister.
The point I want to make to the Minister is that the period of one month does seem to be a little short and, in certain circumstances, would be too short. If a coroner happens to be ill, or if he is on holiday, as happens frequently these days, with transport as it is, when he may take his holidays abroad——
We all know doctors take long holidays.
Doctors frequently do medical courses abroad and circumstances such as that might exist in which a coroner might be out of the country and, as the Bill is framed at the moment, if he is a day beyond the month he is out of the time of appealing to the Minister. My suggestion is that the Minister should either amend that to a period of three months or in the next amendment take a discretion as to the extent of the period beyond the month. If he wants to keep the period of a month in the section, I suggest he should add the words: "or such longer period as the Minister may allow." There should be some discretion.
I will accept the three months.
In connection with the drafting of this section, I would point to subsection (2) which relates to a review of a coroner's salary and says that the local authority shall, subject to the approval of the Minister, make a determination. That determination is referred to as a provisional determination. I have read the section through and find that on six occasions the determination is not referred to as a provisional determination but simply as a determination. The words seem to be interchangeable and I think some clarification is necessary.
We will have another word with the draftsmen on that question.
I move amendment No. 13:
In subsection (2), page 6, line 17, before "his" to insert "and conditions of".
I use this amendment for the purpose of getting enlightenment on the position with regard to coroners in the future. Section 11 looks at the future. It says:
Every coroner appointed after the commencement of the Act shall, unless he sooner dies, resigns or is removed from office, hold office until he reaches the age of 70 years.
Death will determine itself and so will resignation. I see subsection (2) of the section says the section "shall noe apply to a coroner after the commencement of the Act where the qualifications of his appointment were prescribed before such commencement." I take it the purpose of this is to see that existing coroners will remain in office without any age limit and I take it they will be kept on under the old conditions. Are all coroners appointed subject to removal by somebody? In the country you may have a coroner who has been appointed for many years and who is verging on the age of 70. He is to go on. Is he to be faced now with Section 15 where the Minister may say he is of the opinion that the coroner cannot discharge his duties because of physical or mental infirmity? If you are going to say to a present occupant of a post who was appointed before the age limit came in: "Carry on till you die," I do not see why you should not also say: "You were appointed without any possibility of being removed."
There is nothing new in the provisions of subsection (1) of Section 15.
Nothing new in it?
Is there any provision which allows anybody to remove a coroner serving at present because of what is called misconduct or neglect of duty?
Yes. That is provided in the existing law.
Is that the 1846 Act?
Section 16 (2) of the 1927 Act.
Under subsection (1), I think we should also provide that, where his qualifications and conditions of appointment were settled before his appointment, he should continue with those conditions. Why not say "where the qualifications and conditions of his appointment were prescribed before he was appointed to the post"?
I do not think it is necessary to add these words. The aim of subsection (2) is to ensure that this age limit of 70 years will not apply to an appointment made after the commencement of the Act, if the qualifications for appointment were prescribed before such commencement. I think that is only fair. The subsection is effective as it stands without the addition of the words proposed in Deputy McGilligan's amendment. In any event, I do not think the words apply because a coroner does not have conditions of appointment in the sense I think Deputy McGilligan means. His conditions are statutory. The effect of the subsection is to take away from a coroner whose qualifications were prescribed under the old dispensation, as it were, this age limit of 70 years.
Is it right that Section 15 (1) is to be found in the 1927 statute in its present form?
The Minister is satisfied then that a Minister may remove a man by order for various causes.
I will read subsection (2) of Section 16 of the 1927 Act:
The Minister for Justice may, if he thinks fit, remove any coroner from his office for misconduct or if satisfied that, by reason of physical or mental infirmity, he is incapable of the due discharge of his duties.
I notice I am put down as opposing Section 12. I thought I was opposing subsection (2). That was my intention. I am not opposing this section. I should like the coroner to have his official residence in the district but I do not like this casual way of empowering the Minister to permit him to have his official residence elsewhere and to deem ordinary residence elsewhere to be residence inside the area. I intend to oppose that subsection. The coroner ought to have his ordinary residence in the district. I cannot visualise any difficulty which would demand that the Minister should have power to permit a coroner to live outside his district.
Let us take a simple example. Let us consider a coroner's district which consists of a county borough. Let us take Waterford. It is quite conceivable that the coroner would live a mile or two outside the city. With suburban development, the tendency is for people to live a mile, or two, or three, outside the city boundary. It would be unnecessarily harsh to insist that a coroner should live within the county borough of his own particular district.
By and large, coroners will be doctors, solicitors, or possibly barristers. In the case of doctors and solicitors, the Minister's point is a good one, but one will frequently have the position where the doctor or solicitor will live just outside the boundary but will have his place of business inside it. It occurred to me that it might be possible to insert in subsection (1) "his ordinary residence or place of business". That might cut out the necessity for subsection (2).
I think we would get into a great deal of difficulty that way.
I am not pressing it.
I think it is better the way it is.
I should prefer to have it positively—"the coroner shall have his ordinary residence, with the permission of the Minister, in or near..." In subsection (1), it is stated specifically he must live in the district, but he can obtain the permission of the Minister to live elsewhere. The position would be met if it were provided that the coroner shall have his ordinary residence, with the permission of the Minister, near his district.
Subsection (5) (a) provides for the position when a coroner is absent from his duties with the permission of the Minister; the Minister may authorise his deputy to act. What happens if the coroner is absent without permission?
Subsection (3) states that the deputy coroner may act for the coroner by whom he was appointed during the illness or absence of the coroner, etc. I think that covers the difficulty raised by the Deputy.
Then it should be as wide in subsection (5) where the Minister may authorise the deputy coroner to perform the duties of the coroner's office. I cannot understand why the words "with the permission of the Minister" are brought in there. It seems to imply a situation in which the Minister will have no power to authorise the deputy coroner to act, if the coroner is absent without permission.
I do not see the Deputy's difficulty.
Would the Minister tell me why the words "with the permission of the Minister" are in subsection (5) (a)?
You mean that we can do it anyway in subsection (3). Subsection (3) visualises the wilful absence of the coroner.
Is he not then qualified to perform all the duties of the coroner's office?
He is. Subsection (5) (a) goes further and states that he shall be deemed to be the coroner for that district.
If he is acting because of the wilful absence of the coroner he is more entitled to be considered as the coroner in that case than in the other case. The words "with the permission of the Minister" do not seem to be necessary.
Subsection (5) (a) goes this much further. The coroner is appointed with the permission of the Minister and is deemed to be the coroner for the district and he possibly could appoint a deputy coroner in his place. This is not envisaged under subsection (3). Subsection (3) is designed to come into operation in the case of a short or casual absence.
I do not see where you achieve anything by putting in the phrase "with the permission of the Minister".
It does seem to be a little unnecessary. I would like the Minister to have another look at it.
I move amendment No. 14:
In page 7, to delete lines 19, 20 and 21 and substitute "coroner unless he is a barrister, solicitor, or medical practitioner who has been actually and regularly practising as such in a five year period immediately preceding the date of appointment."
I want to discuss amendments Nos. 14 and 15 together as they are really alternatives. This is the old matter of a practising barrister of so many years standing. If they are not practising they are not barristers, except by academic qualification and my first shot at this matter is to cut out the word "practising". That makes it quite clear that the qualifications for the course are to be a barrister of five years' standing or a solicitor of five years' standing. That only means that when you go to look at their qualifications, you find out the year in which they were qualified and that makes them barristers of five years' standing. Putting in the word "practising" in that context means nothing. What counts is the standing.
If a person has not been in practice at all for the reason that he has not been participating actually in practice that does not matter. This type of qualification is attached to the post of district justice and a young man was appointed some years ago to the office of district justice who had never done any practice. He had filled up the intervening years from the time of his qualification by working on the staff of a newspaper. It is not easy to get a phrase to meet the situation but I have groped in certain other Acts and I have got a phrase which I have put down in my second amendment. I assume it is acceptable that for the appointment of a coroner, you want people who not merely have textbook acquaintance with law or medicine but who know what practice is, who have been through the mill and have done a period of time either as a medical or legal practitioner.
My second amendment means that no person shall be appointed a coroner, unless he has been a barrister, solicitor or medical practitioner who has been actually and regularly practising as such for a five year period prior to the date of appointment. That means that a person will have to have been in practice. You cannot say that a person must have been in practice for five years before the date of appointment because he might have been ill for four or five months of that period. The phrase "actually in practice" is used in the Juries Act where certain people are exempted from jury service, one of the grounds being that they are barristers or solicitors actually practising as such. I think we ought to insist that people who are to be appointed as coroners are not merely people who pass their examinations but are people who have been in practice. I have added the word "regularly" which is not in the Juries Act because such a person might have been ill during the period of practice.
Or he might have been on a month's holiday.
He is not merely to be a person who has taken out legal qualifications and gone on to some other occupation but he must have been in practice as an actual matter of practical business regularly for over five years. The word "practising" means nothing because if a person is a barrister or a solicitor of five years' standing, it is the same as saying that he is a practising barrister or solicitor. I hold that these posts ought to be reserved for people who have been active in the practice of these professions and the way to do that is to say that they have been actually and regularly practising.
The Minister has tabled an amendment in which he envisages a person who has been registered under the Medical Practitioners Acts or who has been entitled to be registered for at least five years. I do not understand why the phrase "entitled to be registered" should be put in here at all. A man is entitled to be registered if he takes the qualifying examinations, but are we to appoint a person to be coroner here who has been qualified for five years and has not bothered to register in Ireland? I do not think we should do that. I do not think we should appoint people who have not practised here or who have practised only in England and have not bothered to pay their registration fees here.
I would agree that it is desirable that in so far as possible the requirement which Section 14 lays down should be that the person to be appointed should be a doctor, barrister or solicitor of five years' standing, and in addition, that he should have five years' practice. That is the general meaning of the phrase. Deputies will recall that we had precisely the same discussion on the Courts Bills which went through the Dáil last year. I am reluctant to change from this form of words which is in general use in this regard although I do admit it has the weakness to which Deputy McGilligan refers. The problem is, of course, to find some other form of words which would achieve what we would all like to achieve but I do not think Deputy McGilligan succeeds in achieving what he wants to achieve by the form he sets out in amendment No. 14.
I would say this, however, to the House. Section 14 here is only a stipulation as to who shall not be appointed. We still have the situation that the qualifications will be prescribed and that the Local Appointments Commissioners will make a selection. It is most unlikely, indeed it is hardly conceivable, that if you had the type of person Deputy McGilligan is worried about, namely, a gentleman doctor who qualified but did not practise or who was only in practice for a week before the date of appointment, as against the experienced professional man with five or six years' actual practice, the Local Appointments Commissioners would appoint the type of person to whom Deputy McGilligan refers. On the whole, therefore, I think it is better to adhere to the established form of words we have here, aware of its weakness but relying on the fact that the Local Appointments Commissioners will still have to make a selection, thus obviating the dangers Deputy McGilligan mentions.
My reason for the amendment which I propose, that is, Amendment No. 16, and which involves the concept "or who has been entitled to be so registered, for at least five years" is to enable Irish doctors who are living and practising in England to apply for appointments as coroners here. I think that is fair, desirable and reasonable.
In relation to the medical end I think I am right in saying the section does not require any practice at all.
The section as drafted?
Practice as a barrister or solicitor. The medical end is simply registration.
Deputy McGilligan's question to me was why was I proposing to bring in the words "or who has been entitled to be so registered, for at least five years". My only reason for bringing in those words is to enable an Irish doctor who would have qualified here but who would have gone to England to practise to apply for an appointment as coroner.
No, without practice. That is what Deputy O'Higgins has mentioned.
I visualise a doctor who qualifies here and who goes to England to practise and who at any period of the five years would have been entitled to register on the Irish register.
The word "practitioner" is used in the section, but it is not used in the amendment. It does not tie up with the question of registration in the amendment.
It does refer to a registered medical practitioner.
On the register of medical practitioners, I do not want to be dogmatic but if a person has qualified, even though he is not practising as a doctor, has taken the necessary examinations, and so on, he is entitled to be on the register.
I think Deputy O'Higgins is overlooking the fact that the words "or a registered medical practitioner", in the section as it stands, will still remain and the section as amended would be "or registered medical practitioner who has been registered..."
The first amendment today defines "registered medical practitioner" as "a person who is registered", not "in practice". It does not say anything about practice. It simply says he is registered. He need not have done an hour's practice.
The Minister brought in an amendment to the Definition Section.
The Definition Section applies to "registered medical practitioners"—the phrase as used throughout the Bill—but here we are dealing specifically with qualifications for appointment as coroner.
But surely the purpose of bringing in the definition was——
I agree the definition qualifies this as well.
"Practitioner" has no meaning in that phrase. It only means registered.
That is all. I agree.
It is very much on the same par as practising in regard to a solicitor.
I am sure we are entitled to assume that a person who qualifies and is registered on the Medical Register is a practising doctor. Certainly, if he is not, and he goes before the Local Appointments Commissioners he has not much chance of appointment in competition with a doctor who has been practising.
That is the qualification.
Section 14 is dealing only with those who may not be appointed. We are just ruling out persons who do not qualify and who are not entitled to go on the register. We are not dealing with their qualifications. That is dealt with separately.
Is the whole section not a bit of a sham?
I do not think so. We do lay down minimum qualifications.
In the qualification section the Minister might provide, for example, for age, health and character. Those are the things he has provided for. Supposing he fixes an age limit of 40 or 45. It is possible still under Section 14 to have a person who qualifies under the age provision but who, in fact, has never practised as a doctor, a solicitor or a barrister, yet he is entitled to be considered on the age qualification.
I am not sure. Deputy McGilligan says that the word "practising" has been judicially interpreted——
That phrase has been.
But in other contexts.
No. In regard to qualifications for judicial office, "practising barrister of so many years standing" means how long he is qualified. The signs are on it. The man I am talking about was appointed a district justice from theIrish Press office.
I do not know anything about him. I am not concerned with judicial appointments.
This is a judicial appointment.
This is not.
The position I am talking about was a judicial appointment.
I am not concerned with judicial appointments. I am concerned only with the appointment of coroners. Did the Deputy say it was not a judicial appointment?
It was a judicial appointment, the district justice appointment.
And Deputy McGilligan tells me the phrase was interpreted in that context?
Not for that appointment. This was years ago but the county court judge interpreted it as meaning the date of this qualification.
But we have not got it judicially interpreted in this context. It may be that when this section would come to be judicially interpreted in this context, we might get a different——
That you had to be in practice.
That you had to be in practice.
Why not say so?
I do not want to fall into the trap to which Deputy McGilligan has drawn attention, namely, the case of a man who,bona fide, was in practice for, say, ten years, but who, in the period of five years immediately prior to his appointment, had a six months' illness. If I pin the matter down more exactly, I would possibly exclude such a bona fide person.
Read my amendment.
I have read it very carefully. I still think it is open to the danger I suggest. In Section 14, we are not prescribing qualifications. We are laying down certain minimum standards. We are achieving that the person must be qualified as a doctor, a solicitor or a barrister.
Pass his examination.
In the case of a barrister or solicitor, he must be practising at the date of appointment.
No. The district justice was in theIrish Press on the date of his appointment.
Surely he was practising on the date of his appointment.
I am not prepared to accept the Deputy's statements.
Go and inquire. I shall give the name to the Minister, if he does not know it.
I am not concerned about it. This section stipulates the persons who shall be appointed. We leave it to prescribing the qualifications and the selection by the Local Appointments Commissioners to get us out of any of the dangers envisaged by Deputy McGilligan.
It is a test case.
We seem to be arriving at a ridiculous position. There is no disagreement between us as to what is wanted; there is no disagreement between us that the section, as worded, is not what we want. It is a question now of getting the parliamentary draftsman to redraft the section to meet the Minister's intentions and our intentions and to give us what we want. Surely that is not beyond him? We are agreed that the section does not give us what we want. The Minister says, in effect: "Let us pass it because we cannot give them anything better."
Not quite; I might rule out somebona fide applicant.
Who has not been in practice, ever.
No. I would rule him out if I could.
The Minister said that if the Local Appointments Commissioners find a man who is qualified, who passed his examination five years before, they can choose an active practitioner. That was not the case of the district justice.
That was not a Local Appointments case.
It was a Government appointment. The Minister is saying that it is different from a Government appointment; in other words, they will not be as much inclined to jobbery.
The Deputy made that point himself half an hour ago.
I did. It has not been received yet.
"All Governments are corrupt."
Take my amendment and this talk about a trap. What is the trap? We want to get a person who is in practice. Here is a phrase from the Juries Act which speaks of a person exempt from jury service "who has been actually and regularly practising".
Has "actually" been judicially interpreted?
Has "interpreted" been judically interpreted?
I put in "actually ... practising." I was faced with the difficulty of the five years preceding appointment. Then you have a man, for instance, with bad health or a man with a long drawn out case which may take him to Geneva or Strasbourg, and so on. However, "actually and regularly practising," as in my amendment, covers a man who is away for a bit. That cuts out a gentleman who comes down to the Library on the odd occasion and who cannot be described as in regular practice. As we have it, it is a sham. A practising barrister of so many years' standing means nothing. That was not decided in connection with the district justice appointment I speak of. It was decided in connection with an old County Court appointment. The point was that a certain person was not regularly in practice. The ruling was that it meant a person qualified for the number of years, five years or ten years or whatever it may be. They counted back to the date of his qualifications—ten years' standing—and that was all there was to it.
Was it in the High Court?
It is a wellknown case of a person who became a County Court judge notwithstanding the great opposition that was made to the appointment.
At what judicial level was the issue tested?
I think the case went up to a higher court than the County Court. I am not asking to be believed in this. Ask anybody who knows anything about legal practice. That phrase is well known to be a sham phrase. It does not mean anything, really. However, if you want to have it, then it means that whoever is in charge of this can get jobs for people who are just qualified and in practice and the Local Appointments Commissioners can do what is required of them.
In order to save amendments Nos. 15 and 16, I am putting the question that the words proposed to be deleted, down to and including the word "a" in line 19, stand part of the Bill.
I move amendment No. 16:
In page 7, line 21, to delete "of at least five years' standing" and substitute "who has been registered, other than provisionally or temporarily, under the Medical Practitioners Acts, 1927 to 1961, in the Register of Medical Practitioners for Ireland, or who has been entitled to be so registered, for at least five years."
I have already explained the purpose of the amendment.
I move my amendment to that amendment:
To delete, "or who has been entitled to be so registered," in the fifth and sixth lines.
By agreement, the main amendment and the amendment thereto may be discussed together.
They have been discussed.
In a disorderly manner.
I move amendment No. 17:
To add the following new subsection:
"(2) In reckoning the number of years' standing of a barrister who during a previous period was a solicitor, or of a solicitor who during a previous period was a barrister, such period shall be taken into account."
This amendment is self-explanatory. It provides for the case where a solicitor wishes to become coroner but would not have sufficient years' practice as a solicitor to make him eligible. Such a solicitor, if he had been a barrister and had become disbarred with a view to becoming a solicitor, will now be able to reckon his previous period of practice as a barrister so that it will count in computing his number of years' standing as a solicitor for the purpose of securing appointment as a coroner. The position will be the same for barristers who were at one time in practice as solicitors.
There is no objection to this except, in view of all we have already said about Section 14, this, in fact, means nothing. I think it shows that, when he went to the trouble of putting down this amendment, the Minister himself thought that Section 14 was going to operate in the manner in which all of us wanted it to operate but the Minister tells us it will not operate in that way because he cannot get it drafted in the way we want it.
If the person qualifies as a solicitor in a particular year and two years later he decides to become a barrister, he may have two years' practice as a solicitor and three years' practice as a barrister but that counts five years' standing. That is what the amendment comes to.
I move amendment No. 18:
In subsection (1), page 7, line 22, before "is" to insert the following: "after due investigation and after affording a coroner or deputy coroner a reasonable opportunity of answering an allegation of misconduct, neglect of duty, unfitness for office or incapacity to discharge the duties of his office."
Section 15 deals with the removal of a coroner or a deputy coroner. It provides:
Whenever the Minister is satisfied that any coroner or deputy coroner has been guilty of misconduct or neglect of duty or is unfit for office or incapable of the due discharge of his duties by reason of physical or mental infirmity, the Minister may by order remove such coroner or deputy coroner from office.
I am suggesting in amendment No. 18 that after the word "satisfied" we should insert the words I have suggested so that subsection (1) would read:
Whenever the Minister is satisfied after due investigation and after affording a coroner or deputy coroner a reasonable opportunity of answering an allegation of misconduct, neglect of duty, unfitness for office or incapacity to discharge the duties of his office that any coroner or deputy coroner has been guilty of misconduct...the Minister may remove him.
The section, as it is drafted, does not provide that the coroner will be charged in any way with misconduct, neglect of duty or even that he will be told the reasons which unfit him for the office or make him incapable of the due discharge of his duties. I think in this connection and in connection with the latter portion of subsection (1) referring to incapability of the discharge of his duties by reason of physical or mental infirmity, it is worth remembering that, even in the case of a person alleged to be of unsound mind and found to be of unsound mind and made a ward of court, the proceedings are served on that person and he is given an opportunity of objecting to them. I think I am correct in saying that the section, as drafted by the Minister, is a rehash of the earlier provisions in the 1927 Act. In fact, the coroner who is in the Minister's mind being accused of misconduct or of inability to discharge his duties will be given no opportunity whatever of making a case in answer to the case made against him. In fact, the section, as it stands, does not impose any particular onus on the Minister to carry out an investigation.
If someone tells the Minister that the coroner is unfit for his duties, the Minister need not satisfy himself further than satisfying himself that he believes his informant is reliable. There is no provision in the section for any investigation at all by the Minister. There is no provision in the section that the coroner who is going to be dismissed will be given an opportunity, in advance of his dismissal, of knowing the grounds on which he is being dismissed. There is provision in subsection (2) that, when the Minister makes his order removing the coroner, the order will specify the reason for the removal. That ispost factum. When the Minister has come to his decision and made his order he then notifies the coroner by virtue of the order of what is alleged against him whether it be a question of unfitness by reason of misconduct, neglect of duty or physical or mental infirmity. That does not seem to me to be right.
It is no defence of this section for the Minister to say that this is simply a re-enactment of previous legislation on the subject. I think, as I suggested in my amendment, that there should be an onus on the Minister to carry out an investigation and to give the coroner, who is in jeopardy of being dismissed, an opportunity of answering the charges against him. I also suggest—and I will consider it between this and Report Stage for the purpose of an amendment—that, in addition to that, the coroner should have some opportunity of appealing against an order made by the Minister or, if the coroner has not an opportunity of appealing against it, it seems to me that there should be some machinery in the Bill, whether by way of investigation or by resolution of the Dáil, to remedy a situation which could give rise to a serious injustice.
In saying that, I am not for a moment making an allegation against the present Minister or anyone who may succeed him in his office. I assume that the Minister acts in abona fide manner under the law as it will be enacted by us. It could be that the Minister will make a mistake. If the section is allowed to stand as it is at the moment, the Minister may on insufficient material and on insufficient grounds feel satisfied that he is justified in making an order removing the coroner. It may be that there will be other elements of which the Minister is not aware and which the coroner has no opportunity of presenting and which are not presented to the Minister. There is no machinery in the section for remedying any injustice that may be done in that way.
I would urge very strongly on the Minister that he should accept this amendment. If he feels he can meet me in some way by an alteration of the phrasing or something else, I am quite happy to leave it to the Minister and the Parliamentary draftsman to work it out. The amendment I am suggesting would contain what I believe are the essential safeguards for any person put in jeopardy as a coroner would be under this section.
I am, in principle, in sympathy with the case made by Deputy O'Higgins. In that regard I am not being unmindful of the fact that in the Local Government Act, 1941, to which we have already referred there is a provision of the sort suggested by the Deputy. Subsection (3) of Section 25 of that Act enables the Minister for Local Government in that case to send by post to the holder of the office at the principal office of the authority by which he is employed a notice in writing stating that in his opinion any of the statutory grounds for removal from office exists as regards him and further provides that if the Minister after seven days from the sending of the notice and after consideration of the representations (if any) made to him by the person in question, remains of the said opinion he may by order remove him from office.
Deputies will realise that a provision along the lines suggested by the Deputy is, in fact, in the Local Government Act of 1941. It is also true that in the original Section 16 of the 1927 Act, the forerunner of the present Section 15, there is no such provision as that to which the Deputy refers but I think I would be prepared to accept the suggestion.
If the Deputy withdraws his amendment, I shall go into the matter with the Parliamentary Draftsman to see whether something along the lines of the 1941 Act could be inserted here. I am sure that would meet the Deputy's point. I would not be at all happy about the wording of the amendment as put down but I feel we should probably be able to get something into the section between now and the Report Stage which would meet the Deputy's point. Even though it was not in the 1927 Act, I still think that it would be in accordance with modern thinking in these matters that the coroner should be given, as Deputy O'Higgins suggested, an opportunity at least of answering the allegations made against him. I am quite happy to give an undertaking to endeavour to make some such provision.
I move amendment No. 19:
In subsection (1), page 7, line 22, to delete "is satisfied" and substitute "is of opinion".
I indicated on the Second Stage that I should be moving an amendment of this kind. The proposal is to delete the words "is satisfied" and insert instead "is of opinion". The present law, which is contained in subsection (2) of Section 16 of the 1927 Act uses the phrase that the Minister for Justice may "if he thinks fit" in relation to removal on ground of misconduct. To keep in line with that conception, I propose to make a change from "is satisfied" to "is of opinion".
I would ask the Minister to reconsider this. There is some measure of protection afforded by retaining the expression "is satisfied" because at least it means that a Minister for Justice who is going to discharge his duties conscientiously will have to satisfy himself in some way as to the allegations whereas if the phrase "is satisfied" is to be replaced by "is of opinion" it seems to me to weaken the obligation of the Minister in this matter. All he need do if the phrase is "is of opinion" is simply have a stray thought about it and decide: "That is my opinion anyhow and I need not defend it because no one can question what my opinion is." In the other case, at least if he is challenged, he has to show he is satisfied and presumably give his reasons. This cropped up earlier in a different way——
Do not forget he must give reasons anyway according to subsection (2).
The Minister mentioned the question of the use of the phrase "is of opinion." We know it did crop up in connection with the Road Traffic Act in the last Dáil but the reasoning there was somewhat different. My recollection is that the reason why the Road Traffic Act was changed in a number of places was that there were different sections which went something like this: "If the garda finds or is satisfied..." In all of these cases the Minister in charge of the Bill had that changed to "is of opinion" and the reason given, to the best of my recollection, was that it had been suggested that if a garda had to "find" something he was exercising a judicial function and therefore there was danger that it might be repugnant to the Constitution and the safer wording was "is of opinion". I do not think that reasoning applies to this case and I should prefer the Minister's original phrasing of that part of the section.
My main idea is to make this thing workable and a number of Deputies will be aware of the difficulties in which the phrase "is satisfied" could involve a Minister. I think we would be quite safe in using "is of opinion". If I do bring in the suggested amendment which I have undertaken to consider favourably the situation would come about in which, if the Minister decided that a coroner should be removed from office, he would notify the coroner of that opinion and would be bound to receive from the coroner whatever representations he might like to make, to give weight to them and then form an opinion. I think we might leave the discussion there until we come to the Report Stage and when we see in what way I have been able to meet Deputy O'Higgins on the other point we could discuss it together with this.
Just to be clear—will the Minister in those circumstances recommit on report, if necessary?
Before we pass from this I want to give a warning. The Minister is in a very distinct dilemma. The phrase "is satisfied" has already received judicial interpretation in the Offences Against the State Act. The late Mr. Justice Gavan Duffy held in respect of that Act that the internment part of it was illegal because it was there phrased "where the Minister is satisfied..." Then it went on that somebody ought be put into internment and in a lengthy judgment in a famous case the late Judge said that the use of the phrase "is satisfied" imported, first of all, that the Minister had to act judiciously— that was one thing—but that he also had to act judicially. There is a big difference. "Judiciously" only meant that he had to get certain statements of the case and so on but "judicially" is the word used where a certain person does something affecting the rights or liabilities of other people.
This is certainly going to affect certain rights that coroners will have on their appointment. If the Minister keeps the phrase "is satisfied" he faces a difficulty. Although the case I have mentioned was subsequently overruled by an amending Act, at the same time the points in the decision are still there and in my submission have not been answered at all. To keep "is satisfied" does import a certain determination to look at evidence and come to a conclusion. If that conclusion affects the liberty of any person, it might be found to be a judicial proceeding. The Minister is not a judge. He has not judicial status.
There is an article in the Constitution which permits 13 people who are not judges limited powers and functions of a judicial type. That also has been interpreted in the courts in regard to the Solicitors Act where people were struck off the roll. The machinery that operated and had to be geared to strike a person off the Roll as a professional solicitor was a very important type of machinery. What I might call a penal committee was presided over by the Chief Justice, but notwithstanding that, the Supreme Court held that the Solicitors Act was unconstitutional in so far as it allowed a body of people not judges to interfere. The point on which the decision turned was whether the functions were such that a person's life, liberty, livelihood or reputation was affected. Clearly, some will be affected in this. The Minister may feel that he can get out of that dilemma and remove himself a little from the judicial area by the use of the phrase "is of opinion". The Minister should watch his step and take advice on this matter. The courts may say this is a very slack way of dealing with these things. It is a very casual serious interference with the livelihood of a man appointed and in receipt of a salary.
When the Minister is considering the point put to him by Deputy O'Higgins, I wish he would consider the whole matter of whether this is an encroachment on the judicial office. He may make me the easy answer: "We can do this with regard to a judge." Judges may be removed on the grounds of misbehaviour or incapacity by a vote of the two Houses, because the Constitution says so and gives that power to the two Houses of the Oireachtas which is not given with regard to anything else. Removing a solicitor from acting in a professional capacity is much less serious than removing a judge; yet in that limited area of work the courts decided that the Solicitors Act was unconstitutional. It seems to me that this could fall easily under the same ruling. It gives the Minister certain limited powers and functions of a judicial nature, and he is not a judge. He might take some advice on the ruling on the Solicitors Act the standard of which was the effect on a person's life, liberty, livelihood or reputation. I think that if the Minister does not accept Deputy O'Higgins's phrase or bring in something else, he leaves himself very vulnerable to that decision. If the matters involved in Deputy O'Higgins's amendment are not attended to, the whole thing will be grossly contrary to natural justice, which is of course protected constitutionally.
I want to go on to a couple of points on the section. Subsection (2) says:
Every order removing a coroner or deputy coroner from office shall specify the reason for the removal.
I want to add "and shall be laid before each House of the Oireachtas." I also want to add that no order should come into operation until it has been approved by the House. Whether we go on to the second amendment or not, surely it is right that when the coroner has been appointed, after a whole set of qualifications have been laid down, and the Minister for Justice decides to remove him from office because of certain conditions, the House should be informed of it and publicity should be given to it.
The Minister might reply that when a person is going to be removed, if he realises that he has become physically incapable or that he has been guilty of misconduct, he may not want that revealed, and he can resign and so avoid it. In an interruption, the Minister said that the reason for the removal will have to be specified in the order. That would be taken in the context of Deputy O'Higgins' amendment suggesting that certain things ought to be a matter of knowledge. I do not know whether the Minister contemplates that the order of removal would specify the detailed reason for the removal. That has not been the interpretation.
So far in this Parliament, we have been very lucky: on one occasion only was a resolution tabled to remove a judge from office and that was withdrawn. The judge retired before it appeared on the Order Paper. He retired before the matter was discussed. It was merely stated then that the reason was incapacity, or physical infirmity, I think, was involved. If the Minister feels that he will set out a whole list of the facts that came before him which he investigated and considered, and on which he ruled after consideration that the person should be removed, he will find that he is giving a very wide interpretation to a phrase which merely means that the removal is for misconduct, neglect of duty or physical infirmity.
The coroners are being put into an exalted position by this legislation. I think it is rather ludicrous that they are being put into that position. We are giving them a sort of quasi-judicial position. They are appointed for a term of years and they are retained in office until they are removed or die or resign. The two latter will determine themselves. Otherwise, it is a judicial status.
Any local authority employee is not.
I am saying that this appears to be putting machinery of a judicial nature on top of a very minor type of office, the duties of which in no way rank as important functions in the State.
I could not agree with the Deputy more but surely it is he who is attaching importance to the office by saying that these orders must be laid on the Table of the House.
If you are going to apply judicial machinery, apply itin toto.
I am not applying it.
If we get to the position where the Minister has determined the qualifications, a man is appointed and the Minister decides to remove him, so far as the section is concerned, he can just remove him.
Like any county manager.
He justs gets an order and there is no question of that order coming before the House. He does some secret manoeuvring. I do not think that is right. If he is giving these people some sort of special importance, he should attach a special importance to the machinery of their removal.
The Deputy is attaching it. He has just said they are minor appointments.
I think they are.
The Deputy is castigating me for building them into importance.
All the apparatus and appearance is that they will now have professional qualifications. They will have academic qualifications of a professional type, but when it comes to their removal, the Minister just throws them out. Originally, the phrase was "is satisfied", which at least on the old decision imported something in the way of a judicial inquiry. Now if he is "of opinion" he can remove them. I do not think that is right.
I think Deputy McGilligan is to some extent hoist with his own petard. I have not at any stage argued or indicated that coroners are judicial, semi-judicial or quasi-judicial in any way. Indeed, the whole tenor and trend of the Bill before us is the opposite. There was a time when the office of coroner was, if not judicial, certainly quasi-judicial, but now when this Bill becomes law, the coroner will, in effect, be nothing more or less than an employee of the local authority. Admittedly, he is an important employee and an employee with very important public duties, but to all intents and purposes, he will be appointed by the local authority in the same way as any other local authority employee. He will have roughly the same terms and conditions and it is I who want to make his removal from office comparable with the procedure which would be appropriate to any other local government employee.
Deputy McGilligan, on the other hand, comes along and accuses me of building up this office and says it is ludicrous to say it is a quasi-judicial office but he is the person who wants, by virtue of this amendment, to stipulate that these orders shall be laid before each House of the Oireachtas as if we were removing a judge from office. He is being completely inconsistent there. I think my approach to the matter is consistent. I am treating the coroners throughout the Bill as responsible and important officers of the local authorities and I hope that when we come to recast Section 15, we shall be able to satisfy Deputy O'Higgins at least that the conditions under which they can be removed from office will be fair and just. Certainly I do not want to create an elaborate procedure which would be appropriate only to persons holding judicial office.
Amendment No. 20?
I am not moving it. I want to put it down again.
There is just the one point on Section 16. This provides for the ending of the coroner's office in the boroughs of Kilkenny, Clonmel, and so on. Is the Minister satisfied that there were no deputy coroners in these areas? I simply ask the question because the section has no machinery for winding up the office of deputy coroners, if they exist.
That is in Section 13.
I am asking were there deputy coroners in these areas affected by Section 16, that is, Kilkenny, Clonmel, Drogheda and Sligo?
Deputy coroners have not been appointed there.
There are none?
I move amendment No. 22:
In subsection (1), page 8, lines 19 and 20, to delete "if he is unable to ascertain the cause of death".
This seems to make the possibility of an inquest turn on inability to ascertain the cause of death. I do not see why that should be so. If a man is found suffering from gunshot wounds, he knows the cause of death.
Most of those are covered under Section 17. The Deputy possibly is overlooking subsection (2) which states: "subsection (1) of this section shall not apply to any case to which Section 17 of this Act applies."
Yes—to ascertain the cause of death. The cause of death is gunshot wounds or something like that?
All such cases would be covered under Section 17.
I do not know. It may be that subsection (2) of Section 18 saves this. Certainly subsection (1) of Section 18 can be put into operation only in the circumstances where the coroner is unable to ascertain the cause of death. It seems to me to be a very unnecessary limitation.
If you bear in mind Section 17 and subsection (2) of Section 18, the limitation is not as great as the Deputy imagines. I must say I am not violently attached to the words.
There may be other circumstances where the coroner may be able to ascertain the cause of death and yet think it proper to hold an inquest. I do not know. I am merely calling attention to it.
I move amendment No. 23:
In subsection (3), page 8, lines 24 and 25, to delete "the local Superintendent or other officer of the Garda Síochána" and substitute "a member of the Garda Síochána not below the rank of Inspector".
Subsection (3) of Section 18 says:
It shall be the duty of the local Superintendent or other officer of the Garda Síochána, if he becomes aware of the death within the district of a coroner of any person in whose case a medical certificate of the cause of death is not procurable, to inform the coroner of such death.
I think I am correct in saying that the words "or other officer of the Garda Síochána" can, in effect, apply only to superintendents and chief superintendents?
Upwards, yes, and I am suggesting that it seems that for this relatively simple task of informing the coroner, it is somewhat ridiculous that the duty should be imposed on a superintendent or a person in the Garda Síochána holding higher rank. Later in the various other sections of this Bill, there are considerably more important duties delegated to inspectors who are not officers within the meaning of the section. I suggest that for the sake of uniformity, if nothing else, the Minister should say "a member of the Garda Síochána not below the rank of inspector". In other words an inspector should be capable of discharging the duty of informing the coroner and he should not have, first of all, to tell the superintendent who would go along and inform the coroner.
Of course the phraseology came into subsection (3) in the first instance because normally in this type of thing the obligation is placed on an officer of the Garda Síochána and of course the inspector, the sergeant, and so on, are not officers of the force. They are, if you like, non-commissioned officers. A superintendent is the lowest rank of officer in the Garda Síochána. I would not be particularly opposed to Deputy O'Higgins's amendment, but there is the consideration which will arise when we come to amendment No. 26 which I shall be proposing later. Amendment No. 26 will, if you like, to some extent make the obligation placed in subsection (4) a little easier to discharge.
But will the Garda Síochána, in that event, not have to tell the superintendent? The superintendent cannot allow a guard to inform the coroner himself. He must do it himself, even under the Minister's amendment.
Subsection (5) which I will propose in amendment No. 26 refers to an officer of the Garda Síochána.
Yes. Therefore, to be consistent, there will be a tie-up between subsection (3) and subsection (5). It will be an officer, namely, a superintendent or higher, rank in both cases. For that reason, I would prefer to leave subsection (3) as it is, although if it were not for the fact that I will be putting in this new subsection (5) I would not argue very much against Deputy O'Higgins's proposal.
Would the Minister not consider this? I do not ask him to do it now but, between now and Report Stage, assuming his amendment for the new subsection (5) goes through, would he consider amending that further? Later on in the Bill, if you look at Section 20, it says "A Garda Síochána not below the rank of Inspector." If you look at Section 25, where there is an important function in connection with the adjournment of inquests, there again it is a Garda Síochaná not below the rank of Superintendent. If you look at Section 33, you will see the same phrase. It seems to me that while you are giving in the Bill definite and important functions which can be discharged by inspectors—as, for example, dealing with the request for an adjournment, which could be a matter of serious decision—for the relatively simple task of informing the coroner of a death, it seems strange that it should be essential under the Bill that that task should be performed by a Superintendent.
I have no doubt that the actual physical informing will be done by the Superintendent's clerk, but it is the placing of the administrative obligation and duty we are concerned with. I think it is not a bad principle, from the administration point of view, to place that obligation on an officer.
I am not pressing it, but it does seem necessary to look at it again.
I move amendment No. 24:
In subsection (4), page 8, line 32, after "believe" to insert "from facts and circumstances known to him."
Subsection 4 imposes the obligation of reporting the facts and circumstances relating to the death on a whole variety of people: medical practitioners, registrar of deaths or funeral undertaker and every occupier of a house or mobile dwelling and every person in charge of any institution or premises, in which the deceased person was residing, who has reason to believe that the deceased person died, either directly or indirectly, under certain circumstances. It says at the end that that person must notify the coroner in whose district the body of the deceased person is lying of the facts and circumstances relating to the death. The new amendment says that the obligation can be discharged, if that person notifies an officer of the Garda Síochána of the facts and circumstances.
A man can notify only what he knows. I simply want to say: "if he has reason to believe from the facts and circumstances known to him." That is the effect of the amendment. I do not think it could be interpreted as anything else. The facts and circumstances a man may get to know afterwards may add to his first impression, but he is bound to notify if he gets certain information, if he has reason to believe that the deceased person died, either directly or indirectly, as a result of violence or misadventure or by unfair means, or as a result of negligence or misconduct or malpractice on the part of others, or from any cause other than natural illness or disease—then we have the disputed part—for which he had been seen and treated by a registered medical practitioner within one month before his death, or in such circumstances as may require investigation.
Does that person on whom that obligation has been put have any protection? One knows the way rumours get around about a death in a remote part of the country. Supposing somebody steps into the Civic Guard office and says: "I believe that person died under very peculiar circumstances" and there is an investigation and the circumstances are inquired into, the name of the informer may be given. Is it open to anybody afterwards to take an action against that person of a defamatory type?
It is absolutely privileged.
I should like to be sure it is.
Does the Minister want to open a discussion on absolute privilege?
One sees often in Acts where there is a saving clause put in indemnifying people for any action they may take under whatever the legislation is. There is no such thing here.
I should like to discuss amendment No. 25 also, Sir. That would delete all words from "for which" in line 36 down to and including "death" in line 38. The way it runs at the moment is: if I know that a person has died from any cause other than natural illness and disease, for which the dead person had been seen and treated by a registered medical practitioner within one month before his death, I must notify the coroner. Supposing I know a person is dying. As far as my information goes, that person has died from natural causes. But suppose I know that that person has not been seen by a medical practitioner within a month of his death, I must report the death. It is made an offence not to report it. Surely that is unnecessary? The matter is sufficiently guarded, I suggest, by saying: if I know a person died from all unnatural causes or from any cause other than illness or disease. Why should there be this limitation? I think it is entirely unnecessary.
I want to support Deputy McGilligan's amendment in general in relation to subsection (4). It seems to me if the words which Deputy McGilligan wants to have taken out under amendment 25 were to be left in, it would put people positively on inquiry. They will have to make inquiry as to whether or not the person was seen by a registered medical practitioner within a month of his death. You have odd situations created where people just do not know. They know a person has been ill, for example, and they understand he has been going to a doctor, but they do not know. Have they got to check around until they find the doctor and get confirmation that he has been seen by the doctor within this period of a month of his death?
There is another point not dealt with by way of amendment at the moment. I should like to ask the Minister to look at it. It is that the provision regarding where a person was residing should refer specifically to where he was residing at the time of his death; in other words, it should be made clear that it is residence at the time of death. That is the particular of importance in relation to this function. The section reads:
Every medical practitioner, registrar of deaths or funeral undertaker and every occupier of a house or mobile dwelling, and every person in charge of any institution or premises, in which a deceased person was residing ....
He may have been residing in a number of different places within a year or possibly two years. I think we should limit it.
The Deputy may have a point in that respect.
Am I right in thinking that this section applies whether or not a medical certificate has been given? As it reads, it does seem to apply even though a medical certificate has been given.
Yes. First of all, I agree that what we want to get at in subsection (4) is the house or institution in which the deceased person was residing at the time of death. If that is not exactly what the subsection says at the moment, we will see if we can change it to make it read more precisely. I smiled when Deputy McGilligan proposed Amendment No. 24 because I am quite certain this is a situation in which, if I had put in the Bill the words "from facts and circumstances known to him", Deputy McGilligan would have an amendment to delete them on the grounds that they added nothing to the sense of the section. That is, in fact, the position. I do not think they add anything to the sense of the subsection at all; in fact, the subsection achieves exactly what we want from it.
I do, however, feel more strongly about Amendment No. 25 and I would not like to see the deletion Deputy McGilligan proposes because the subsection is framed as it is for two reasons which I indicated on the Second Stage. The first is that we want to ensure that all questionable deaths of any sort are notified to the coroner—from the point of view of the coroner's duty to hold inquests. There is no doubt that we want here to step up the number of deaths notified, particularly in rural Ireland.
It is eminently desirable that we have a higher number of deaths notified than we have at the moment. We have a very high proportion of uncertified deaths. If the subsection achieves that, it is a considerable advantage. It is also important from the point of view that it will tend over the years to have doctors called in more regularly and more often in cases of persons who are in danger of death. I think that socially that is also desirable.
Accordingly, generally speaking, I think the objectives which subsection (4) attempts to achieve are very desirable and that, if at all possible, we should do what we can to achieve them. The only objection there might be is that we are placing an onerous responsibility on the people concerned. I do not think we are. I do not think anybody could object seriously to this obligation we are putting on such people as medical practitioners, occupiers of houses or persons in charge of institutions where people die. They are a limited class of people and I think it is no more than their social duty to do what subsection (4) proposes to make them do.
I feel on very safe ground in asking Deputy McGilligan not to press the amendment because I think a great deal of good will come from leaving these words in the subsection and thereby achieving this greater degree of notification of deaths and achieving a position where doctors will be called in more often in these cases.
I move amendment No. 25:
In subsection (4), page 8, lines 36 to 38, to delete all words from and including "for which" in line 36 down to and including "death" in line 38.
I move amendment No. 26:
Before subsection (5), to insert the following new subsection:
"(5) The obligation imposed on a person by subsection (4) of this section shall be deemed to be discharged if he immediately notifies an officer of the Garda Síochána of the facts and circumstances required to be notified under that subsection."
As I have already said, this amendment is designed to facilitate persons on whom an obligation of notifying the coroner is being imposed in discharging that obligation. As was mentioned by, I think, Deputy Tully on the Second Stage, it might be difficult for a person to seek out the coroner where it would be more convenient for them to communicate the particular notification to the police. The new subsection (5) which Amendment No. 26 proposes to insert will bring about the situation whereby the obligation which subsection (4) places on this category of persons can be discharged by notification to a superintendent of the Garda Síochána. By virtue of subsection (3) of Section 18, there is an obligation on the superintendent to notify the coroner.
How many superintendents are there in the country?
I was about to ask the same question. In rural areas in particular, it might not be very easy to report to the superintendent—in fact, it might be easier for the person to inform the coroner——
He can do both.
—— than to notify the superintendent, but it would seem to me that a person should be regarded as discharging his duty in this respect, if he informs any member of the Garda, but certainly if he informs an inspector, as to the position. I feel sure the Minister can think as I can of a number of areas where it means a very considerable trek for a person to find the superintendent or coroner or, in some cases, even an inspector.
After all, we are dealing with dead bodies.
In relation to dead bodies, I should point out that in this amendment we are dealing with the Garda Síochána who were set up by the State here to carry out this kind of function and I think that if a person finds a dead body or if someone dies in his house, the normal reaction would be to telephone the local Garda station and mention to the station sergeant that somebody has died and then to give the full information. I think that should be regarded as discharging the function.
I should like to suggest, too, that the Minister might consider incorporating this new subsection in subsection (4). It is a simple question of drafting. I think it would be preferable to say: "Every person shall immediately notify the coroner or an official of the Garda Síochána," rather than that you should say: "He shall notify the coroner and even though he does not, he is taken as notifying the coroner if he notifies someone else." Why not simply put in the words "notify the coroner or an office, of the Garda Síochána" into subsection (4)? Again, what is the purpose of specifically including the words in brackets in subsection (4) "including death as the result of the administration of an anaesthetic?" Is there any particular reason for calling special attention to that? Whether it is or is not included, it is one of the matters about which, I assume, information would be given.
I asked how many superintendents there are in the Garda Síochána.
How many coroners are there?
Fifty-two at present.
That is 180 people. There is a choice of notification of 180 people. That has to cover a great many districts. The Minister says we are dealing with a dead body, the dead body of a person who dies from natural causes 32 days after a doctor has seen him.
In some cases. We are not living in the Wild West. We are living in a comparatively civilised country with telephones and post offices and, if the worst comes to the worst, may be small boys on bikes.
How does a small boy on a bicycle come into it?
Remember, amendment No. 26 makes the obligation less onerous.
I may be wrong but, if one takes some of the mountainy areas in Wicklow and Connemara, I doubt very much if one will find either a coroner or a superintendent——
If Deputies do their job, they will have a telephone kiosk at every crossroads in the country.
The Minister should mention that to his colleague, the Minister for Posts and Telegraphs.
If the Minister would undertake to sit in for the Minister for Posts and Telegraphs and reply to some of the Parliamentary Questions, we might be able to have that done.
I agree with the contention put forward by Deputy O'Higgins that it should be sufficient to notify any member of the Garda Síochána, irrespective of rank. I cannot see any difficulty on the part of the Minister's Department in making it obligatory on any member of the Garda Síochána, so notified, to make a report either to the coroner or to the superintendent. One can visualise the difficulties that confront relatives if a man dies suddenly in an isolated area. According to the Minister, the obligation will be on them to get in touch with either the coroner or the superintendent. I think it should meet the obligation if they were to ask a neighbour to ring the local Garda station and make a report to whatever officer is available there. There is nothing to preclude the Minister making a regulation stipulating that it is the duty of that station to report the matter either to the coroner or the superintendent. Would that not be a simple way of getting over the difficulty?
First of all, the Deputy said we could notify any member of the Garda Síochána. Later, he went further and said a neighbour could be asked to notify.
Yes. Visualise the position in isolated areas.
I suppose we will ultimately get to the position where the dead person will himself notify.
The Minister did say one could send a small boy on a bicycle.
With a note.
Then sending a note is all right. I am glad to hear that.
Consider the position of a husband and wife residing in an isolated area. The wife dies suddenly. Is it the Minister's contention that the husband should take no steps to summon the priest or the doctor but should, rather, try to meet the superintendent or the coroner? Surely he would be within his rights in asking a neighbour—neighbours are helpful in times of emergency—to notify the Garda Síochána. That should be sufficient. We have too many of these "ifs" and "ands" and "buts" in legislation. We have too many impositions on people. What the Minister seeks to do is to make the position more difficult still for those confronted with sudden death in the family. I cannot see any reason for making a report other than to any member of the Garda Síochána in the local station.
I think the title of this Bill is wrong. It is entitled the "Coroners Bill". I think it should be called the "Extra Remuneration for Doctors and Lawyers Bill." That would be a much better name for it. I come from an area where most people are older than I am, and I am not young. If the policy pursued in this country over the past 40 years continues, in a very short time, these people will be much older still. There are many people who are chronic invalids. They have not seen a doctor for years. There is no point in calling the doctor because even the most modern drugs will be ineffective.
How does the Deputy know they have not seen a doctor?
I know because of experience. I speak from experience. We have people there of 90 and 100. We have some of 102 and 103. There is not much point in calling a doctor to these people. According to this Bill, if these people die, the coroner or the superintendent will have to be notified. The cause of death will be perfectly obvious—senile decay. Indeed, senile decay will be the main cause of death in most parts of this country in a very short time because there are scarcely any young people left. It is futile to insist that people living in isolated areas in the west should get a doctor to sit by the bedside of some aged man or woman in order to certify the cause of death.
This section deals only with notification.
I know. The undertaker will see the dead person. He should be the man to deal with this. The Garda have enough silly duties to perform without imposing this one on them. They have to go around signing forms for dole applicants. Now we want them brought to the house to notify that people have died. A doctor will not come for nothing. It is no use trying to ram it down our necks that he will. A doctor wants to make money like everyone else. Coroners and lawyers will make a fortune if this Bill goes through. It is no use trying to hoodwink us about that. If this measure went to the people it would be turned down straightaway. The Opposition is not very strong. Even the Romans had a triumvirate but the Fine Gael Party have only a duet. That shows their attitude to this measure.
There was no one on the Deputy's benches for the last couple of hours.
We are the smallest Party in the House, but we are well able to defend ourselves.
The numbers on the benches do not arise on this amendment.
Undertakers are reputable men. Insisting upon a doctor in the case of very old people is unfair. The undertaker has to provide the coffin and I think he should provide the Department of Justice with the proper information. I think that would be the correct attitude to adopt.
I want to find out about the small boy on the bicycle: notification by another person will do?
Then how does the small boy on the bicycle come into it?
I was allowing myself poetic licence.
I took it that, when the Minister said he notifies, the person must do it himself.
May he do it by telephone?
Or by letter?
Posting a letter is notifying?
Yes. My reference to the small boy and the bicycle was to the small boy taking a letter down to the post office.
Does the Minister not appreciate that if a person notified the local garda sergeant immediately, the information is then being given into the hands of the authorities probably at least 12 hours earlier than if a person is put to the trouble of writing a letter and posting it? There might not be a postal collection in his district.
Would the Minister be prepared to recast the section for the Report Stage and use the word "member", instead of "officer".
I have a lot of sympathy with that point of view and I did consider making it "any member of the Garda Síochána" but that would leave a lot of looseness in it. Where you have a station of any size, you would have six or seven Gardaí and the undertaker might say that he had notified one of them but then you would be put to the problem of endeavouring to establish which one was notified. I do not visualise any difficulty at all about this in practice. The person involved goes to the Garda station, indicates that he wants to notify the Superintendent and the Garda there will notify the Superintendent for him.
That will not be sufficient. In what the Minister has been discussing, it will not be sufficient to go to the station and tell a member of the Garda and leave it to him to notify the Superintendent.
If he is satisfied that the local Garda has notified the Superintendent, the person can be satisfied that the law is fulfilled.
If a person acts in the way the Minister is recommending, he is making himself liable to a fine of at least £20.
I do not think so. I do not think that would arise in practice or that any of the difficulties which Deputies are imagining would arise. If the person concerned goes along to the Garda station and is satisfied that the Garda notifies the Superintendent, that is sufficient. There is no element of urgency.
"Immediately" is the word used in subsection (4) and in the Minister's new subsection (5).
I do not regard "immediately" in that context as being a matter of hours. If they go to the local Garda station and ask the Garda to notify the Superintendent, I would regard that as fulfilling the obligation.
The Act would not.
In a previous statement, the Minister would not accept my contention that it would be sufficient for a person to ask a neighbour to go.
I think it would lead to looseness.
If a person dies suddenly in a home where there are only two residents, the survivor must leave all other considerations aside and make it his business to contact either the coroner or the Superintendent. Surely he would be meeting his obligations if he asked a neighbour to do that for him? Will he not have something more important to contend with in preparing for a wake and a funeral rather than rushing to the town or to the Garda station? This is nonsense. It is not going to be done and I think what you should do is to substitute the word "member" for the word "officer" in the section. I think that if he asks a neighbour to do this job for him it should meet the requirements of the Act.
If the Minister would use the phrase "cause to be notified", it would meet Deputy Murphy's point.
How many Garda inspectors are there?
At the moment, about 90.
Will the Minister make a further examination of the matter.
I shall consider it.
In subsection (2), it is stated that nothing in the section shall authorise a coroner to dispense with holding an inquest in relation to a death if he is of opinion that the death may have occurred in a violent or unnatural manner. In effect, that subsection is taken from Section 17 but there is one important phrase omitted. The phrase, "or suddenly and from unknown causes" has been dropped. I understand that there is a close relationship between Sections 17 and 19, but Section 19, subsection (2), does not contain the reference to sudden death that is contained in Section 17.
There must be an inquest where there is a violent death.
This deals with the case of a death which may have occurred suddenly from unknown causes.
Section 19 visualises the instance where a post-mortem has taken place and therefore you are aware of the "unknown causes". The post-mortem decides the cause of death but you still need to have an inquest where there is a violent or an unnatural death.
I still think it would be advisable to keep the actual phrase.
There is peculiar phrasing in the drafting of this section which deals with cases where there are several deaths. It says that the coroner "shall hold an inquest in relation to all of the deaths" and it goes on to say "as if all of the bodies were lying within his district". Why is the preposition inserted there? Why not "all the bodies"?
The section is a reenactment of the 1927 Act, Section 8.
It would seem to imply that you must have the entire of all the bodies.
If only a torso were recovered in the case of a dismembered body, this would not operate.
We shall have the grammar and syntax subjected to the most careful examination between now and the Report Stage.
I move amendment No. 27:
In page 9, line 40, to delete "it is known to" and after "coroner" to insert "is satisfied".
This amendment suggests better conformity as between the clauses. Section 18 speaks of a person "who has reason to believe"; here we have the phrase: "It is known to the coroner"; in Section 24, there is a phrase "where the Attorney General has reason to believe." Why do we change the phrases? Why not sanction one and let it rest at that?
I am inclined to agree there should be consistency. I do not think there is any sinister significance in the use of the phrase "It is known". The origin of Section 22 is the corresponding section in the Coroners Act of Northern Ireland. That is the phraseology used there.
It is a question of exhuming a body, a horrible business. We should trust the coroner in this—"unless the coroner is satisfied". It is a matter of language again.
We have this "reason to believe" again here.
I should like the Minister to explain this section because I do not understand the purpose of it. The section provides that
(1) Where the Attorney General has reason to believe that a person has died in circumstances which in his opinion make the holding of an inquest advisable he may direct any coroner (whether or not he is a coroner who would ordinarily hold the inquest) to hold an inquest in relation to the death ...
I can appreciate that circumstances may arise by reason of urgency, shortage of time or something else in which it would be desirable that the Attorney General would not necessarily be pinned to having an inquest held by the coroner who ordinarily should hold it. However, that is a far cry from giving the Attorney General discretion to pick and choose any coroner he likes throughout the State in any of these circumstances to which Section 24 applies. The Minister will probably say to me that normally the Attorney General will request the coroner who ordinarily would be responsible for the particular inquest to hold it and that that is the practice which it is intended to follow. I should like some explanation as to why the Minister for Justice himself is not given this extraordinary discretion which the Attorney General is being given. Why should the Attorney General be allowed to nominate any coroner he likes?
That is not the purpose of the section. The only thing involved is that the particular coroner in the district might refuse or might be disqualified for some of the reasons set out in the Bill from holding the particular inquest. The Attorney General would then pick another coroner——
Would the Minister agree it would be desirable to say in the Act that the Attorney General may direct the coroner who would ordinarily hold the inquest to do so or, in his absence, any other coroner. It is worded in the reverse way here. We say he may pick any coroner, whether or not it is the coroner who would ordinarily hold the inquest.
I shall consider that. It is not just in his absence, but if for any reason——
Perhaps the Minister would consider it.
I have referred to the fact that in connection with Section 18 certain obligations were put upon various people who had "reason to believe" that death had occurred under certain circumstances. I just want to call attention to the terms used in relation to the Attorney General: "if he has reason to believe" that a person has died in circumstances which in his opinion make the holding of an inquest advisable.
I assume that at the end of paragraph (b) of subsection (2) the reference to that practitioner is to the other practitioner?
In connection with subsection (2) (a), is there any way in which the Minister can be sure that the power given to the jury would be brought to their attention. I think there should be some provision written into the Act which would oblige the coroner to make jurors aware of the fact that if a majority of them, by a requisition in writing, call on him to do this, he will have to comply with it. The power is given there but normally jurors at an inquest are not going to be aware of the contents of the Coroners Act. It is nearly certain that unless they are told of this power by the coroner, they will be quite unaware of it. It would not be going too far to impose some obligation on the coroner so to inform the jurors.
I move amendment No. 28:
In page 11, line 42, to delete all words from and including "and accordingly" to the end of the section.
I want to have this section in a simple form in regard to the question of civil or criminal liability being investigated at an inquest. The principle of the section is all right and the House generally accepted that on the Second Reading. However, I have to take this section and read it with the next one, Section 31 which says:
(1) Neither the verdict nor any rider to the verdict at an inquest shall contain a censure or exoneration of any person.
I want to suggest that Section 30 in the abbreviated form I propose is all that is required.
I think it is wrong to go on to say that every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how, when, and where the death occurred. Take a case as an example. A person is found dead with a revolver beside him and wounds in his head and such marks on the revolver and marks on the part of the body where the bullets entered to indicate that the wounds were self-inflicted. Surely the coroner's jury ought to be able to say he died from wounds self-inflicted?
Take another case where, say, there are people who are part of the armed forces of the State. In certain conditions, they are ordered by a superior officer to fire and kill somebody. The ordinary verdict that would be looked for there would be "shot by a member of the Defence Forces in the execution of his duty". If the limitation is that the only things to be determined are who is dead and how, when and where the death occurred, the "how" there would be "gunshot wounds" or "revolver shots in the head". If it is a clear case of a person having taken his own life, why should the jury not be entitled to say that? Under Section 31, that might be regarded as a censure of a person but I do not think it could be a censure of a person who has killed himself.
It seems to me that the object of this clause is to prevent a coroner's jury from intermeddling with what will be dealt with afterwards either by the civil or criminal courts. I think that can be achieved if you say that a question of civil or criminal liability shall not be considered. What the coroner's jury says is not evidence at other proceedings. What may be made evidence in other proceedings is if witnesses come before another court and make depositions or statements. Such depositions or statements may be evidence but the findings of a coroner's jury are completely irrelevant in civil or criminal proceedings.
In the clear case of a suicide, a person who has shot himself and everything is there to prove it, I think a coroner should be entitled to say he died of gunshot wounds self-inflicted. A tragic case which occurred recently comes to my mind. It involved a man in a shooting accident with a friend. He had a gun, obviously with a defective trigger, in the back of the car and, on getting out of the car, it discharged and he got the contents somewhere about his chest and was killed. Surely a coroner's jury might easily find that as a verdict? To allow the coroner's jury to say how death occurred would meet these two examples. I suggest we should not limit them merely to saying who the dead person in and how, when and where the death occurred.
I have set out only two or three circumstances. I do not see why a coroner's jury, which is composed of sensible men, should not say "self-inflicted" or "accidentally discharged". To say "gun accidentally discharged" might be regarded as exoneration. The friend was with him and it went off. There was no suspicion of foul play. It seems to me that the coroner's jury ought to be able to clear up the matter. That is why I say a question of civil or criminal liability would not be considered.
Most coroner's juries are like Paul Singer's juries.
Despite Deputy McGilligan's arguments, I still think it is desirable to retain these words. Unlike the 1927 Act, this Bill does not give us any power to prescribe by regulation the procedure to be followed at inquests. It is necessary to go further than merely stating that questions of civil or criminal liability shall not be considered and to take the positive step of telling the coroner's court exactly what it shall determine.
Deputy McGilligan went into some details. I am not sure that a lot of what he had to say would not be covered by the "how, when and where the death occurred." Surely, though, the question of suicide would involve some element of criminal liability? Suicide in itself is a crime. Therefore, it would be covered by the reference to criminal liability.
I also think that a number of examples given by Deputy McGilligan and the verdicts which he propounded would bring him in conflict with the principles set out in subsection (1) of Section 31 which states that there should not be any element of censure or exoneration in the verdict. It is obvious that we must give a positive indication to the coroner and the jury as to what exactly the findings should cover.
That means, then, in the case I am thinking of, that the statement would be "X died on such and such a day at such and such a place from gunshot wounds".
I think they should go further than that on a clear case.
I move amendment No. 29:
To delete subsection (6).
This is really a drafting re-arrangement. The subsection is being deleted but it is being restored in Section 52. When we come to Section 52, Deputies will notice that it governs all matters dealing with post-mortems. It is considered more appropriate to have subsection (6) dealt with in Section 52, so that it will apply to post-mortems done under Section 19.
What the Minister is providing in the Bill, whether it be in Section 33 or in Section 52, is that a doctor who attended a person within a month of death shall not carry out a post mortem examination. There is something to be said from the point of view that a superficial examination—that is, where the special examination which the Minister may require is not being carried out—should be made by a doctor who is conversant with the medical history and the facts of the case. It may be of considerable assistance to the coroner to have such a doctor to carry out an examination of that type. The Minister seems to be precluding that under the subsection which he now seeks to translate from Section 33 to Section 52. I suggest he might consider that point of view and also that he might consider providing in the case of examination by way of autopsy or dissection, that such examination should be carried out by an experienced pathologist.
I think the Deputy is quite safe in letting the amendment go.