Dáil Éireann debate -
Tuesday, 13 Nov 1973

Vol. 268 No. 12

Committee on Finance. - Courts Bill, 1973: Committee and Final Stages.

Section 1 agreed to.

SECTION 2.

Question proposed: "That section 2 stand part of the Bill."

Mr. O'Malley

I am surprised to learn that any doubt arose about the validity of the appointments of temporary Circuit Court judges. I never heard any such doubt expressed at any time. I wonder if this section is necessary because I think appointment as a temporary judge is clearly on a par with permanent appointment. I do not see why, if a man were temporarily appointed for, say, 12 months and at the end of that time a vacancy had arisen in the Circuit Court to enable him to be permanently appointed and he was so appointed, any doubt about the validity of that appointment could arise. Assuming that he was practising at the time he was originally appointed, the fact that he acted temporarily for 12 months would not, I think, on any reasonable reading of the section, invalidate his subsequent permanent appointment if there was no break between the period of temporary appointment and the commencement of the permanent one.

It seems a bit drastic now to have to go back and supposedly validate all temporary appointments as far back as 1924. I assume the period of temporary appointment is not a period that is taken into account for pension purposes. If it is, there possibly could be some difficulties; I assume it is not. If this provision is genuinely necessary in the Circuit Court, should it not also be necessary in the District Court? I have not compared the wording in the respective sections but one would imagine it would probably be either the same or very similar. There have always been one or more temporary District Justices at any given time and invariably, as in the case of Circuit Court judges, they have been permanently appointed when vacancies arose during the currency of their temporary appointments.

Perhaps the Minister could explain why it is necessary in the Circuit Court and not in the District Court, if that is believed to be the case. I feel the section is curing a doubt which could hardly arise reasonably and the fact that somebody had some doubts about it does not make it necessary to legislate about it. There must be hundreds of doubts about legal situations of one kind or another but the courts are able to make these clear from time to time. One must have some reservations about the necessity for this section.

Mr. Cooney

It is an anomaly in regard to Circuit Court judges. I shall explain what exactly the doubt is. Under section 43 of the Courts of Justice Act, 1924, now repealed, and section 17 (2) of the Courts (Supplemental Provisions) Act, 1961 the qualifications are laid down for appointment to the Circuit Court bench. These are that a person be at the date of his appointment—this is the important thing—a practising barrister of ten years' standing at least, and, for this purpose service in the case of a barrister as a District Justice is deemed at the Bar. So the qualification is "practising barrister at the date of appointment." The situation arises that a barrister might be appointed under section 14 of the Courts of Justice Act, 1936 as a temporary Circuit Court judge and later comes to be appointed to a permanent post. At the date of appointment to the permanent post he is a temporary Circuit Court judge; he is not a practising barrister. This is where the doubt has arisen.

I take the Deputy's point that it may seem a fine point of law, a lawyer's point, but that does not take from its validity if it came to be challenged. One might say: surely a temporary judge is a judge and it is merely changing his judicial nature rather than appointing him again as a judge; but I am advised that, because of the wording of the Acts in regard to the qualification of permanent judges of the Circuit Court, that argument is faulty and does not serve to solve the difficulty. In essence, the difficulty is the requirement in the 1924 Act and the 1961 Act that at the date of appointment the person should be a practising barrister. This is why it was found necessary to introduce this saving section. The saving has to go back to the pre-1961 position when the present Circuit Court was constituted. It is necessary to deal with pre-1961 court in one part of the section and in the other part of the section to deal with post-1961 court. Each court was in the same difficulty because of the requirement that at the time of appointment the person in question should be a practising barrister. It is an anomaly in relation to the Circuit Court only. It does not arise in regard to the District Court or in the case of the Special Criminal Court because the qualification to sit on the Special Criminal Courts is that the person be a barrister—not a practising barrister— or a judge of the other courts.

The position in the District Courts is that a temporary District Justice may be given a permanent appointment. This is covered by section 29 (3) of the Courts (Supplemental Provisions) Act, 1961, which says that a barrister or solicitor who actually practised his profession for not less than ten years shall be qualified for appointment as a District Justice if for the time being he holds an office in respect of which it is required that every person appointed should have been a practising barrister or solicitor. A temporary District Justiceship is such an office and so a temporary justice is qualified for appointment to a permanent post in the District Court. That is why it is necessary to introduce the change. It could be argued as to whether it is a real doubt or a petty legal point. I think it has some substance and rather than have a position in which there is a question mark over it, it is as well to remove the question mark.

Mr. O'Malley

I wonder is the Minister wise to highlight this?

Mr. Cooney

The Deputy asked me a question.

Mr. O'Malley

Unless he gets this Bill through in a very short time, anyone who has been sentenced in the past month or so by Judge Roe, or in the past 12 months, approximately, by Judge O'Malley, might well profitably go to the High Court either on certiorari, or on a little used writ quo warranto, to question the validity of his conviction or of his sentence. The High Court would presumably have to take the view that at the time the position was that those men were not validly appointed. Sorry, that would not apply to Judge Roe at the moment. It would apply to Judge O'Malley who was permanently appointed after temporary service.

Mr. Cooney

Not yet.

Mr. O'Malley

It would certainly apply to a considerable number of judges back over the years. One would wonder whether the High Court would have any option at the moment but to declare that their subsequent appointment must be in doubt. I notice that this section does not contain words which are usually contained in sections of this kind, the words, "for the removal of any doubts". Rather curiously it just states by implication that the appointment of permanent Circuit Court judges subsequent to temporary service in the past must have been bad. In order to keep everyone right, the section would have been better expressed if it had commenced with the words: "For the removal of doubts which may exist". Those words should have appeared in each of the two subsections in the section.

I am not encouraging anyone to take any action of this kind. On the other hand, as I see it, because of the way the section is worded, it is an open invitation to people who may have been affected by it to make some application, perhaps, to the High Court between now and the time the President signs the Bill. In order to keep himself clear in that respect the Minister should consider inserting the words I have suggested.

Mr. Esmonde

I do not think these words were used in the 1961 Act dealing with the position of High Court judges when the question was raised.

Mr. Cooney

I do not think the absence of the words would affect the position one way or the other. Possibly the reason why they are not there is that this section sets out to provide for qualification not merely of those in the past, where there may be some doubts, but also for future qualifications. The important thing is that the section provides "temporarily as a judge of that Court shall be deemed to be, and always to have been, practice at the Bar". That is the important sub-clause in section 2 to deal with anything which has gone before and which might be affected by this doubt.

The chances of anyone having litigation to try to exploit this doubt are small, but that is not to say they do not exist. If a person feels that the doubt is real and that he has been affected by it, it is his privilege and his right to go to court on it. As I have already indicated, there are arguments for and against whether or not the doubt exists. In order to be cautious about the matter we decided to remove it from argument and bring in the change. I do not think that the insertion of the words: "For the purpose of removing doubts" would alter the reality of the situation. It would not prevent somebody from going to the High Court if he feels he has a right to go there. The position is safeguarded by the clause deeming the service always to have been practice at the Bar. They are the important words in dealing with the problem raised by the Deputy.

Question put and agreed to.

Section 3 agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.