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Dáil Éireann debate -
Tuesday, 11 Jun 1974

Vol. 273 No. 6

Prosecution of Offences Bill, 1974: Second Stage.

I move: "That the Bill now be read a Second Time."

The Bill provides for certain changes in the administration of our criminal law which the Government believe are necessary. It has two aims. The first is to ensure, as will be generally agreed to be desirable, that our system for the prosecution of offences should not only be impartial but should be seen to be so and that it should not only be free from outside influence but should be manifestly so. The second is to enable the Attorney General more effectively to discharge his primary function of giving legal advice to the Government and Government Departments on matters of law and legal opinion.

The ever-widening field of Government activity, both in domestic and international affairs, requires legal advice and assistance on matters of a breadth and complexity not envisaged until recently. Our accession to the EEC, as Deputies will certainly appreciate, has given rise to a large volume of time-consuming work, involving new responsibilities for the Attorney General's office. It will be appreciated that a considerable amount of the legal advice which the Attorney General is called upon to provide must be furnished urgently. The burden of increased responsibility which has been imposed on the office makes it a matter of practical necessity to relieve the office of its present responsibility for directing and supervising criminal prosecutions.

The division of the present responsibilities of the Attorney General, which the Bill proposes, should also remove any grounds for thinking that political considerations influence the Attorney General in carrying out his functions as regards criminal prosecutions. I do not accept that such considerations have, in practice, exercised any such influence. However, the fact that the office of Attorney General has a political aspect gives rise to a danger that members of the public may harbour suspicions, however misconceived, on this score.

The Bill's main provisions, designed to achieve these two aims, are for the creation of an office of Director of Public Prosecutions and for the conferring on the Director of the powers, duties and functions of the Attorney General in relation to criminal and certain other matters.

The Government's objective of a clearly impartial system for the prosecution of criminal offences will, I believe, be achieved by the provision, expressly written into the Bill in subsection (5) of section 2, that the Director of Public Prosecutions is to be independent in the exercise of his functions. In addition, however, the Bill provides that the appointment of the Director is only to follow a report of a highly qualified and experienced impartial committee. The Director will have the same security of tenure enjoyed by civil servants and, in addition, can only be removed from office by the Government after consideration of a report received from a committee consisting of the Chief Justice, a judge of the High Court, whom the Chief Justice shall nominate, and the Attorney General. Furthermore, the Director will not be accountable to or in any way subject to the direction of the Attorney General in relation to the performance of his functions. This differs from the legislation establishing similar offices in England and Wales and in Northern Ireland. The English Act provides for the carrying out of the Director's duty under the superintendence of the Attorney General. Under the provision applying to Northern Ireland, the Director is responsible to the Attorney General for the due performance of his function. Neither of these concepts has been adopted in the Bill before the House. Instead, subsection (6) of section 2 provides merely for "consultation" between the Attorney General and the Director in relation to matters pertaining to the functions of the Director.

While it is hoped that such consulation will occur on a regular basis, the provisions of the section make it clear that the status envisaged for the Directio tor in this country is different from that of his counterparts in neighbouring jurisdictions. I am confident that these provisions will do much to increase public confidence in the fair and impartial administration of the law. I may mention here that Article 30.3 of the Constitution provides authority for — and indeed could be thought to foreshadow — enactment of legislation on the lines of the Bill.

Section 3 provides that the Director will perform all the functions capable of being performed by the Attorney General in relation to criminal matters and election and referendum petitions. The section expressly provides, however, for the retention of the function of the Attorney General in relation to any questions as to the validity of any law having regard to the provisions of the Constitution. It is clear, therefore, that the Attorney General will continue to be a necessary party in proceedings in which the constitutional validity of any Act of the Oireachtas may be in question. It is also proposed that the provisions of section 29 of the Courts of Justice Act of 1924 will continue to apply so that the Attorney General, as well as the Director, will have power to certify that a decision of the Court of Criminal Appeal involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. The provisions of section 34 of the Criminal Procedure Act, 1967, are being similarly treated by the Bill. Thus, in relation to courts other than the Court of Criminal Appeal, both the Attorney General and the Director will have power when, on a question of law a verdict in favour of an accused person is found by direction of the trial judge, to refer the question of law to the Supreme Court for determination without prejudice to the verdict in favour of the accused. The Bill moreover recognises that there are certain exceptional cases or types of cases involving considerations of national policy, national security or the public interest, in which responsibility must necessarily be retained at political level. Accordingly, provision is made that in the very restricted area mentioned in subsection (5) of section 3 of the Bill the consent of the Attorney General will be required for the maintenance of a prosecution after a person is charged in respect of offences under the enactments referred to in the subsection.

Section 3 of the Bill should be read in conjunction with section 5. Provision is made in this latter section for the performance by the Attorney General, in certain circumstances and in relation to specified kinds of criminal matters, of functions conferred by the Bill on the Director. The Government will only make an order specifying such matters when they are of the opinion that the interests of national security so require. Any such order that is made will be subject to review by the Oireachtas under section 12 of the Bill. It will, I know, be appreciated by Deputies that the Government must bear ultimate responsibility in matters of national security. As the Government may have access to information not available to the Director, and as they might arrive at an appreciation of security matter different from that of the Director, it is clearly necessary that the Attorney General be empowered to act in the way envisaged. I would anticipate that the power granted by the section would be invoked, if at all, only in very serious and exceptional circumstances. It is also to be noted that the operation of this section would not interfere in any way with the independence of the Director, or the Attorney General, in the exercise by him of his function in criminal matters.

The Government seek to attain the objective of manifestly impartial administration of the criminal law by a further important provision contained in section 6. Here it is proposed to make it unlawful for anybody other than those persons specifically mentioned in subsection (2) to communicate with those involved in the administration of the criminal law, including members of the Garda Síochána, so as to influence decisions to withdraw or not to initiate criminal proceedings. I draw particular attention to two aspects of this proposal.

The first is that, while the act of communication for the purpose set out in the section is to be unlawful, it is not proposed to create a punishable offence in this legislation. It is the Government's belief that in practice a penal sanction will not be necessary as it is anticipated that the provisions of this Bill should become quickly known and observed. If however in the light of experience it becomes necessary to impose some sanction then amending legislation will be introduced.

There is a second aspect of this section to which I should like to refer. It relates to persons who have a legitimate interest in criminal proceedings. Thus, accused persons who believe themselves likely to be defendants in criminal proceedings, as well as persons involved in a capacity of legal or medical adviser or as a witness or as a social worker or a member of the family of a person involved in the matter, will not be prohibited from making communications to the prosecuting authorities. Experience over the years has shown that proper administration of the law may well require that information from these persons should be made available to the prosecuting authorities.

The Government are aware of criticisms made over the years by members of the public, in the media, and amongst members of the legal profession of the method which has operated in the retention of counsel on behalf of the State both in criminal and civil matters. Allegations of lack of impartiality and of undue preference to the political supporters of the Government in office have been made. Whether true or false these allegations are not conducive to confidence in the administration of our legal system. The assignment of counsel in relation to criminal prosecution will be one of the responsibilities of the Director of Public Prosecutions and, undoubtedly, the independence which will be afforded to the Director will ensure his impartiality in the retention of counsel.

It has however been considered desirable to give a statutory effect to the principle on which these functions will be carried out. This is done in section 7, which is designed to ensure that the distribution of all State work will take place in a fair and equitable manner. There is provision for consultation with the Bar Council in relation to the implementation of the section. Regulations may be made, after consultation with the Council, for the establishment of a complaints procedure to deal with any complaint which an individual barrister might have in relation to the operation of the section. It is also made clear in the section that the same principles and procedures are to apply to the Attorney General in the exercise by him of his functions in relation to the retention of counsel in matters other than those to be transferred to the Director.

The Bill also provides, in section 4, that functions which the Director or the Attorney General may be required to perform by statute or otherwise can by his direction be performed on his behalf by a professional officer in his office in accordance with particular or general instructions. Section 8 makes provision for the proof in court of documents issued by the Attorney General or the Director or by a professional officer of the Attorney General or of the Director. These sections will assist in the more efficient administration of justice without in any way derogating from the rights of accused persons.

The remaining sections contain provisions ancillary to the main purposes of the Bill. I recommend this measure to the House as one containing important improvements in the administration of the legal system of our country.

The Fianna Fáil Party favour the appointment of a Director of Public Prosecutions. Basically the Parliamentary Secretary's last sentence was a "lift" from the explanatory memorandum. He said:

I recommend this measure to the House as one containing important improvements in the administration of the legal system of our country.

While we accept that there is a need for the creation of the office of Director of Public Prosecutions, we must question the mechanics of the structure under which it is intended that this Director should operate.

On this side of the House we might ask at the beginning what now will be the functions of the Attorney General. He is handing over almost all of his functions in criminal matters, and a number of other related areas, to the proposed Director of Public Prosecutions. The suggestion is that, due to the ever-widening field of Government activity, both in domestic and international affairs, the Government require legal advice and assistance on matters of a breadth and complexity not envisaged until recently. The Parliamentary Secretary goes on to make reference to our accession to the EEC and the part which the Attorney General's office will play where the advice of the Attorney General is sought. This advice must be forthcoming urgently and this may be another reason for taking the burdens of the related matters off his shoulders and transferring them to the office of the Director of Public Prosecutions.

This may well be, but the Parliamentary Secretary's opening statement would appear to me to be a mere statement of intent. Will the Attorney General, in fact, involve himself to the extent set out in the second paragraph of the Parliamentary Secretary's speech? We are in favour of the principle of the appointment of a Director of Public Prosecutions to engage in some of the areas outlined in the Bill.

However, we will be dealing with this point at some considerable length during the discussion on the Bill itself. What will be the immediate workload of the Attorney General now that he is being put out of the legal business of his present functions? Will the Parliamentary Secretary tell the House the functions he envisages will now be taken on by the Attorney General? We should like to have a clarification of that particular point. Does the Attorney General effectively become redundant now that he is being taken out of the field of criminal law?

For sheer hypocrisy and legislative whitewash the Bill being introduced has few equals. We do not cavil with the principles of the Bill. Its intentions are worthy of the support of everyone —that is everyone who believes that the system of political patronage should be abandoned. I should like to refer to the statement of the Parliamentary Secretary in introducing this Bill. On page 5 he said:

The Government are aware of criticisms made over the years by members of the public, in the media, and amongst members of the legal profession of the method which has operated in the retention of counsel on behalf of the State both in criminal and civil matters. Allegations of lack of impartiality and of undue preference to the political supporters of the Government in office have been made.

This is the crunch sentence:

Whether true or false these allegations are not conductive to confidence in the administration of our legal system.

Even up to 4.20 p.m. on 11th June the Government still wish to preserve the fiction that they were not engaging in political patronage in the distribution of State briefs. Will the Parliamentary Secretary admit once and for all that since the Government took over the distribution of State briefs they have exercised the political patronage system in a ruthless fashion.

The lie is held on to the very end. Effectively, the Government are introducing a Bill to prevent their doing wrong; to prevent their continuing to do wrong. That is, effectively, one of the main reasons for the introduction of the Bill and to preserve the lie or the fiction that in some fashion they have not been exercising political patronage in a crude as well as a ruthless fashion is nothing short of a scandal.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

The Government are trying to preserve the fiction in a rather ham-fisted fashion that political patronage does not operate or would appear not to operate in the distribution of State briefs. This is an opportune time to examine the Government's record in the context of what the Bill seeks to achieve: the end of political patronage in the distribution of State briefs only, and that is an extremely important qualification. The Bill does not seek to end the deplorable record of the Government in relation to the distribution of political patronage in other fields, from the bench to State and semi-State bodies right across the spectrum of the economic and political life of this country. They have placed their men, their followers and their supporters, and can we now expect similar Bills to this in the future?

Even on the question of the appointment of peace commissioners the record of the present Government has exceeded that of any other Government since the foundation of the State. May I also point to the Government's record on the matter of patronage? Throughout the Public Service there have been placed well known supporters of both the Fine Gael and Labour parties. Indeed, I am indebted to a copy of the Donegal Democrat in so far as that paper set out some months ago a long list of political appointees in the Public Service and it showed that people were plucked out of constituency organisations and placed in offices where they would do the bidding of their political masters. It is on that record that we intend to deal with this Bill, lest there be any illusion or misapprehension on the matter of political patronage in the distribution of State briefs since the present Government's coming into office. It is interesting to note the absence of the Attorney General while a Bill of this kind is being dealt with. However, he may be engaged in State business.

The Attorney General is abroad dealing with the torture case.

Now, we know where the Attorney General is but that should have been made clear at the beginning of the Parliamentary Secretary's speech. We know now that the Attorney General is abroad performing an extremely important and serious function on behalf of the State and he must receive the support of all right-thinking members of the community in that regard. At the same time, that does not let him off. Perhaps when he returns he shall express his views on this Bill, either inside or outside this House.

I have before me a document from which I intend to quote. I have prepared extensive notes and in dealing with this Bill it is of the utmost importance that we be very acurate because what is before us is legislation which involves the setting up of an extremely important functionary. Consequently, my quoting from notes is in the interest of this accuracy.

However, to get back to the question of political patronage, a question that is relative to the context of this Bill, the evidence of events shows convincingly that immediately on assuming office in March, 1973, the present Attorney General must have prepared a number of lists. I have endeavoured to set out what we believe these lists to have been and they are documented in the notes before me.

In the first place, the Attorney General must have prepared a list of junior counsel which selected a Fine Gael supporter to do criminal prosecutions and State civil work in every town and in every division of every county or city, for example, Cork in which there is more than one State solicitor. The evidence would indicate that that list had a back up list which consisted also of Fine Gael supporters only. In that regard may I say that this was a complete break with the practice established by the previous Attorney General, Mr. Colm Condon, SC. At this point I take the opportunity of paying tribute to the standards achieved by the former Attorney General in the distribution of State briefs. I pay tribute also to his integrity but lest there be any misunderstanding in this regard I pay tribute also to the integrity of the present holder of that office. Mr. Condon enjoyed the highest respect and esteem of his colleagues for his achievements in the courts of law, for his achievements as a brother barrister and as a colleague. He still enjoys that esteem and respect.

I acknowledge that.

The previous Attorney General nominated and briefed counsel who were Fianna Fáil, Fine Gael or Labour supporters and also persons who were not supporters of any political party. Almost all of the counsel doing work in this regard in each county were dropped immediately on the coming into office of the present Attorney General and, obviously, they were not even included in a back up list although they were people who were highly experienced in such work. In only two instances was there retained a junior counsel who had been briefed by the previous Attorney General. One of these was a Fine Gael Dáil candidate. He was one of the many Fine Gael supporters briefed regularly by the former Attorney General. The other was a Fianna Fáil supporter.

The present Attorney General, too, must have prepared a list of junior counsel for the work in the Dublin Circuit Court, a list which consisted wholly of active Fine Gael or Labour supporters. Not one person who had been briefed by the former Attorney General for this work was included in this list. In his zeal to dispose of such persons the present Attorney General dismissed two committed Fine Gael supporters who had been briefed regularly in these courts by the previous Attorney General. Of course, later, when a bitter protest was made either to the Attorney General, to the Taoiseach or to some other member of the Government on behalf of these two individuals, the error was realised and the persons concerned were added immediately to the list.

In addition, the present Attorney General must have prepared a list of junior counsel to do State civil work. This work involves highly specialised cases such as certiorari, mandamus and habeas corpus. Each person on this list was proven supporter of Fine Gael. Those engaged in the law generally will appreciate that this type of work is the cream of State work. Not a single counsel who had been briefed by the previous Attorney General was included in the list, notwithstanding their experience and expertise in this complex work.

The Attorney General must have prepared also a list of senior counsel to do special criminal work. Only one counsel who had been briefed by the former Attorney General has been retained. He would be regarded politically as being neutral. Every other person on that list is a proven Coalition supporter.

There must have been prepared also by the present Attorney General a list of junior counsel to do special criminal work but not one counsel employed by the former Attorney General for this work is included in this list, a list on which every name is that of a proven Coalition supporter.

The present Attorney General must have prepared also a list of senior counsel to prosecute in the Central Criminal Court and the Dublin Circuit Criminal Court. Two counsel briefed by the former Attorney General appear on this list, one being the person already mentioned and the other a committed and long-time Fine Gael supporter regularly briefed by the former Attorney General in this and other courts. The number of persons on this list is substantial and each one is a proven Coalition supporter.

The present Attorney General must have prepared a list of junior counsel to prosecute in the Central Criminal Court on which every person is a proven Coalition supporter. He must have prepared a list of senior counsel to prosecute outside Dublin. The evidence seems to indicate that two people briefed by the former Attorney General are included in this list. One would be regarded as neutral politically and the other is a well-known Fine Gael supporter. Each other person on this list is a proven Coalition supporter. Those facts arose from research. The list may be subject to correction here and there but basically it is correct. It points out the hypocrisy of the Government in introducing a Bill of this nature, a Bill to put right what they have done wrong, and are not prepared to admit they have done wrong since they came into Government.

Every practising barrister knows what I have said is true. He also knows that the former Attorney General, Mr. Colm Condon, SC, briefed many Fine Gael supporters in a substantial way. Not a brief here or there to salve his conscience, quite the contrary. He also briefed persons who could be regarded as supporters of the present Government or as neutrals politically.

What we find most offensive—and this makes our hackles rise — is that the Parliamentary Secretary's speech which was only a lift from the explanatory memorandum introduced with the Bill when it was circulated, was cleared by the Government. He had the temerity to say that allegations of lack of impartiality and of undue preference to the political supporters of the Government have been made. Whether true or false — and this is the essence—these allegations are not conducive to confidence in the administration of our legal system. We agree. He said at the beginning "whether true or false". Of course the allegations that since March, 1973, when the Government took office, they ruthlessly applied the political patronage system in the distribution of State briefs are true. I am not singling out the Parliamentary Secretary; he is merely doing the bidding of the Government. I know his job inside out because I had the honour in the previous Government to serve in the same capacity. I am not personalising this debate, quite the contrary. We are exposing the humbug, the cant and the hypocrisy of this Government when compared with what happened in the past. We are entitled to, and we must, do that.

"Whether true or false, these allegations are not conducive to confidence in the administration of our legal system." Of course the allegations are true. When the Attorney General took office, I either heard him on RTE radio or saw him on RTE television making a statement to the effect that he would brief counsel without having regard to their political affiliations. That statement was made in the first flush of office. When that first flush of office left him, somebody must have got to him.

I have demonstrated, by the evidence I have outlined, that of the number of persons on his lists, approximately 100 barristers in all, at the time we made this research, only one person was a Fianna Fáil supporter. There may have been one, two, three, four, or five more since this research was completed. How magnanimous of the Government to have, if they have done so, added to the one known Fianna Fáil supporter those few names to their list of 100. "The 100" would make a nice title for a play.

As the Parliamentary Secretary points out, the Attorney General is on important business abroad. We wish him well on that business. Nevertheless, we would like the Attorney General, or in his absence the Parliamentary Secretary, to deny that this is not the position.

The Parliamentary Secretary said in this House that no barrister who had supported the Coalition had been briefed for 16 years before they took office. We say he knew that that was patently false or else he was so much out of touch with the situation that he did not know what he was speaking about.

The Parliamentary Secretary could not have said that.

He said it. He is an honest man and I know that he will admit he said it and that he was wrong.

I find that unbelievable. I cannot imagine how he could have said that with the knowledge which he and every practising barrister has. It was totally and utterly untrue.

If the Deputies want a quiet debate the responsibility will lie more heavily on the Fianna Fáil side.

The Parliamentary Secretary made statements in this House which have been proved to be untrue. I really mean this: I do not think the Parliamentary Secretary intended deliberately to mislead the House because I do not think he is capable of that. On reflection and on the facts as produced by me, he must admit that the system I have outlined has operated since they took office in 1973.

This Bill is designed to put an end to the system of political patronage in the matter of State briefs and we welcome that. As I understand it, the Taoiseach and again his Parliamentary Secretary, in reply to a parliamentary question posed by Deputy Paddy Power, said that they were satisfied with the way in which State Counsel were being briefed. In fairness to Deputy John Esmonde—in his own right a respected Senior Counsel — he expressed himself as being against the system.

Having suffered.

There is a pair of us in it. I never had a State brief from Fianna Fáil during the time I was in Dáil Éireann; Deputy Esmonde probably did have at some stage.

I had State briefs. I was taken off the list on the change of Government and far more junior and inexperienced men were put in my place.

Deputy Esmonde has had the same experience — is he talking about his own Government taking him off the list?

No, your Government.

Just for the record, our Government never had me on the list.

Deputies may speak in their turn. Deputy Andrews.

I was saying that the Taoiseach and his Parliamentary Secretary, in reply to a parliamentary question by Deputy Power, said they were satisfied with the manner in which State Counsel were being briefed. How well the Taoiseach and his Parliamentary Secretary might give that reply knowing the people who were being briefed by the present Attorney General. I have already paid the highest of accolades to the previous Attorney General. His successor, the man who produced the "Just Society" policy, has a reckless regard for the welfare of persons, individuals — I was almost going to say families who might well find their only income at the Bar from State work—ruthlessly dismissed from the State panel. At no time did any person so dismissed from the panel ask to be retained by the present Attorney General; at no time did they make any point about it on their own behalf. It is to their credit that they adopted that attitude. They would not go, cap in hand, to any member of the present Government, least of all the Attorney General. Undoubtedly those people so dismissed gave excellent service to the State when they were taking State briefs. It is one of the other features of the patronage system — which again the Government will not admit they have been exercising since March, 1973—that, with a change of Government, one finds people highly qualified in the complexities of criminal law cut off suddenly at the height of their experience.

One cannot overemphasise this feature and, no doubt, the Parliamentary Secretary will base his reply on the experiences of the 16 years prior to the present Government taking office in March of last year. But undoubtedly the Parliamentary Secretary, or any other person who may speak on this debate, will have to admit that the previous Attorney General was generous—in the good sense of that word—in the distribution of State briefs. He cut across political barriers and affiliations. In addition to that, let me point out the previous Government's record in regard to appointments to the Judiciary, the appointment of people, people with the highest respect of their colleagues at the Bar, to the High Court and elsewhere. These were known supporters of the then Opposition party, Fine Gael. Let me in no way underrate the personal suitability or qualifications of those persons who have been appointed to the Bench since the present Government took office. But the simple truth of the matter is that a number of them were known Fine Gael candidates; a number of them were known supporters of the Fine Gael Party and one, in particular, a known supporter of the Labour Party. This is in no way meant to underrate their qualities or capabilities to act in the respected positions they now hold.

No, but those facts would have virtually disqualified them from appointment under the previous Government.

The Parliamentary Secretary knows the record to be true.

With two very honourable exceptions.

With two very honourable exceptions and there were a number of other exceptions which the Parliamentary Secretary does not believe to be honourable. As I have said, I do not wish in any way to underrate the qualities of those individuals or their capabilities to do the jobs they now hold. They enjoy the respect and esteem of the Bar and are worthy people in every respect.

But, again, the Parliamentary Secretary will not admit — and this is why we had to come back to this sordid little line in the Parliamentary Secretary's "lift" from the explanatory memorandum—although, thank goodness, that is excluded from the explanatory memorandum because had we seen this sentence in time we would have had a greater opportunity to analyse it, parse it and do all sorts of other things with it, which the sentence, in its dishonesty, demands.

I think it is intended to be specific.

Let me read it: "Whether true or false, these allegations are not conducive to confidence in the administration of our legal system." That is what the sentence says.

The Deputy knows my views about it very well. That phrase may strike him the way he tells the House but that phrase was intended to be specific.

If the Parliamentary Secretary wants exoneration I am exonerating him. The truth of the matter is that the Parliamentary Secretary came in here, to carry the can, as it were, for the Government in respect of this piece of legislative whitewash now before us and, as a result of the introduction of the Bill, to try to convince the public that what has been happening has not been happening. This is why we describe their present intentions as hypocritical.

Anyone would swear from the Deputy's tone that the Bill was introduced to promote political patronage instead of doing away with it.

I have already made the point on a number of occasions and shall continue to do so until the Deputy understands what I mean. The present Attorney General went on radio or television and stated categorically that he would brief counsel without having regard to political affiliations and, in some way, that message stuck in the public mind. As far as the public are concerned the political patronage system does not operate under the present Government.

Is that not exactly what he is now getting around to doing? Is he not now fulfilling that pledge?

Legislation is being introduced to prevent the Government from engaging in any further wrongdoing.

Are the Government not fulfilling the pledge given by the Attorney General 14 or 15 months ago?

Will the Deputy admit that a ruthless political patronage system has operated since March, 1973?

I shall deal with it when I come to reply.

The Parliamentary Secretary in his academic way will somehow twist out of that and try to convince us once more that what I said is false and untrue.

I was sent here by people who went short of food because they would not support Fianna Fáil.

The Parliamentary Secretary is missing the point——

No. I am not.

Yes, he is, and he is not prepared to meet the argument——

This type of discussion does not lead to rational debate. Deputy Andrews should make his statement and other Deputies may then speak in turn. Deputies should be allowed to speak without interruption. Answers may be given at a later stage.

At no time did any member of the outgoing panel of barristers complain or seek to be retained by the present Administration agent at the bar, the present Attorney General. That is a mark of merit.

The Bill proposes to create the office of Director of Public Prosecutions. I think it is fair for me to do as the Government did in the introduction of their explanatory memorandum to this Bill and quote again the provision of the Constitution concerning the Attorney General contained in Article 30.3, which reads as follows:

All crimes and offences prosecuted in any courts constituted under article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose.

It is to be noted that it is possible under the Constitution to provide that a person other than the Attorney General shall prosecute all crimes and offences. It is important to note that this is disjunctive; the word "or" is used. We say that, if some other person is authorised in accordance with law for that purpose, the Attorney General no longer has any function in regard to this matter when it is looked at from the constitutional point of view. That being the position it becomes evident immediately that if a Director of Public Prosecutions takes over this function from the Attorney General he should be a lawyer of status comparable to that required for the office of Attorney General. He should have that status but in a more specialist way because the portion of the Attorney General's function that he will carry out relates to the prosecution of crimes and offences. Therefore, we say that he should be a person of the stature of the Attorney General but with special knowledge in relation to criminal law.

It should be considered a gravely retrograde step if a person of lower standard or lesser qualifications and experience were to take over a function that has been carried out for some 50 years by persons of the stature appropriate to their appointment as Attorney General. These are points we make on the Second Stage by way of observation and points that we may deal with in the usual manner on the Committee Stage. It should also be noted that the Attorney General, who at present carries out these functions—the functions that will now be performed by the Director of Public Prosecutions — is appointed by the President on the nomination of the Taoiseach, that he may at any time resign from office by placing his resignation in the hands of the Taoiseach for submission to the President and the Taoiseach may, for reasons which to him seem sufficient, request the resignation of the Attorney General and if the Attorney General fails to comply with that request his appointment will be terminated by the President if the Taoiseach so advises.

This is a completely different procedure to that now proposed in relation to the Director of Public Prosecutions under section 2 of the Bill. We believe and accept that a Director of Public Prosecutions with the continuity that office implies is a desirable type of appointment, but we believe that the person appointed to that office should have the highest possible professional knowledge and integrity. If the Government have anybody in mind under the present Bill I do not wish in any way to reflect on that person's integrity. These are observations I am entitled to make at this stage.

Could I get this clear? Is the Deputy saying that the procedure for removing the Director is unsatisfactory?

As I have already said, we believe that the status of the DPP should be the equivalent of that of the Attorney General. That is a fair and reasonable suggestion. He must have the highest professional knowledge and integrity and should be an extremely capable and able criminal lawyer. What is proposed in section 2 of the Bill as qualifications are, in my view, quite inappropriate to such a post. Section 2 (3) (a) provides:

A person shall not be appointed to be the Director unless at the date of his appointment he is a practising barrister or a practising solicitor and has practised as a barrister or as a solicitor for at least ten years.

Then it goes on to provide in subsection (b):

For the purposes of this subsection, service for any period in a position in the Civil Service for appointment to which practice as a barrister or a solicitor was a necessary qualification shall be deemed to be practice as a barrister or a solicitor, as the case may be, for that period and a person, while holding such a position, shall be deemed to be a practising barrister or a practising solicitor, as the case may be.

With regard to the latter provision in section 2 (3) (b), I could not accept that a person who went into the Civil Service in a position where the necessary qualification was to be a barrister or a solicitor, could have the necessary knowledge and experience of the criminal law in its practice in the courts. This would be vital to the person holding the position of Director of Public Prosecutions. I must return to the analogy of the qualifications being the same as those required for selection by the Taoiseach as Attorney General and this may answer the Parliamentary Secretary's question to me. It is inconceivable that a person who came into the Civil Service after three or four years qualification at the Bar with no practice, as a solicitor, who entered the Civil Service after a few years' practice as a solicitor, should be suitable for appointment as Attorney General in any circumstances.

I have outlined the reason for what we consider to be the kind of qualifications required by the Director of Public Prosecutions and I will now deal with the functions of the Director, as set out in section 3. Here there is a conflict between the Attorney General and the Director of Public Prosecutions. What is proposed to be put into the hands of the Director is set out in section 3. These are criminal matters, election and referenda petitions. It proposes to transfer all the functions of the Attorney General in relation to criminal proceedings to the Director of Public Prosecutions, but it excepts the functions of the Attorney General in regard to any question concerning validity of any law having regard to the provisions of the Constitution. Presumably this is meant in so far as such a point might arise out of a criminal case because the Director could not be given any function of the Attorney General in relation to constitutional matters.

Section 3 (4) states:

Notwithstanding anything in this section, the Attorney General may, in addition to the Director, exercise the functions conferred on the Attorney General by section 29 of the Courts of Justice Act, 1924, and section 34 of the Criminal Procedure Act, 1967.

It is as well to point out exactly what these two sections contain.

Section 29 of the Courts of Justice Act, 1924, allows the Attorney General to certify that a matter arising in the Court of Criminal Appeal is of such exceptional public importance that it is desirable in the public interest that it be decided by the Supreme Court.

Section 34 of the Criminal Procedure Act, 1967, sets out that, on a question of law and where there is a verdict in favour of the accused by a direction of the trial judge, the Attorney General, without prejudice to the verdict in favour of the accused, may refer the question of law to the Supreme Court for determination. In our opinion it is undesirable and quite possibly unconstitutional. The Parliamentary Secretary is a qualified academic constitutional lawyer and he might answer that aspect. He must have regard to the disjunctive provision in Article 30 of the Constitution that both the Attorney General and the Director should exercise these functions.

Why might it be unconstitutional if the Director of Public Prosecutions exercises either of these functions?

I will develop the point if the Parliamentary Secretary will allow me. There is a provision in section 2 (b) that the Attorney General and the Director shall consult together from time to time in relation to matters pertaining to the functions of the Director. I do not know what that means and perhaps the Parliamentary Secretary will help me. It appears to be in conflict with the disjunctive provision in the Constitution that I have outlined. The situation could arise where there could be a conflict between the Attorney General and the Director as to whether a point of law was of public importance or whether a verdict by direction should be considered by the Supreme Court. There should not be a base for a conflict of that nature. I ask the Parliamentary Secretary specifically to deal with that point in his reply.

The conflict can be resolved. The co-joint functions — for want of a better expression—should be retained by the Attorney General or given to the Director of Public Prosecutions. It should be one or the other, but not both.

Section 4 contains provisions about which we have some doubts. It provides:

A law officer may direct any of his professional officers to perform on his behalf and in accordance with his instructions any particular functions of the law officer in relation to a particular case or cases or in all cases in which that function falls to be performed.

We say this is the kind of delegation that Article 30.3 of the Constitution was designed to prevent. There is no basis on which a function of the Attorney General, a function now carried out by the Attorney General which in future will be carried out by the Director of Public Prosecutions, should be referred in all cases in which that function falls to be performed to someone in perhaps the most minor position in the professional side of that office. We say it is a dangerous and undesirable precedent and should be looked at again on behalf of the Government. Section 5 provides:

Whenever the Government are of opinion that it is expedient in the interests of national security to do so, they may from time to time declare by order that, in relation to criminal matters of such kind or kinds as are specified in the order, the functions conferred on the Director by this Act may be performed only by the Attorney General, and where any criminal matters stand for the time being so specified, the functions conferred on the Director by this Act in relation thereto shall be performed by the Attorney General and not by the Director.

Again we ask the Parliamentary Secretary to comment on the constitutional validity of that section.

I have dealt at length with the matter of the performance of the functions of the Attorney General and of the delegation of his functions to others less qualified. Section 6 we regard as an insult to future office holders. It is an insult to the integrity of people whom it is intended will hold the various offices under the Director of Public Prosecutions. There is the prohibition in relation to certain communications in the matter of criminal proceedings. At this point I should like to refer the House to portion of the opening speech of the Parliamentary Secretary. He said:

The Government seek to attain the objective of manifestly impartial administration of the criminal law by a further important provision contained in section 6. Here it is proposed to make it unlawful for anybody, other than those persons specifically mentioned in subsection (2), to communicate with those involved in the administration of the criminal law, including members of the Garda Síochána, so as to influence decisions to withdraw or not to initiate criminal proceedings. I draw particular attention to two aspects of this proposal.

The first is that while the act of communication for the purpose set out in the section is to be unlawful it is not proposed to create a punishable offence in this legislation. It is the Government's belief that in practice a penal sanction will not be necessary as it is anticipated that the provisions of this Bill should become quickly known and observed. If however, in the light of experience it becomes necessary to impose some sanction then amending legislation will be introduced.

There is a second aspect of this section to which I would like to refer. It relates to persons who have a legitimate interest in criminal proceedings. Thus, an accused person or persons who believe themselves likely to be a defendant in criminal proceedings, as well as persons involved in a capacity of legal or medical advisor or as a witness or as a social worker or a member of the family of a person involved in the matter, will not be prohibited from making communications to the prosecuting authorities. Experience over the years has shown that proper administration of the law may well require that information from these persons should be made available to the prosecuting authorities.

I respectfully submit that experience over the years has shown that the Civil Service is staffed by people of the highest integrity, and to place a section of this nature in this legislation is an insult to their integrity.

I should like to——

Every time one is attempting to develop a point one is interrupted by the Parliamentary Secretary. My very fair submission is that the Civil Service have not been found wanting over the years. They have been seen to be of the highest integrity; they have served each and every Government in a dedicated fashion, without demur, as a civil service should do. Section 6 states that

...it shall not be lawful to communicate with the Attorney General or an officer of the Attorney General, the Director or an officer of the Director, the Acting Director, a member of the Garda Siochána or a solicitor who acts on behalf of the Attorney General in his official capacity, for the purpose of influencing the making of a decision to withdraw or not to initiate criminal proceedings or any particular charge in criminal proceedings.

The language is that by which offences punishable by law are created, but no punishment is created. Why then come into the House and in a cloud of hypocrisy condemn men who over the years have performed excellent service? Why insult them in this fashion? I know the Minister for Lands, Deputy Fitzpatrick, is getting ready to do a flak job. The Minister is a lawyer and he may be able to answer our questions in regard to this. If a section of this kind is required, it is a very low tribute to the intended Director of Public Prosecutions. If a person is fit to be a Director of Public Prosecutions—I would not mind if this were effective legislation, but it is ineffective because it does not provide sanctions— then why is section 6 introduced? Any person, be he Attorney General or Director of Public Prosecutions, or any civil servant high up or low down within the structure of the Civil Service, if he is fit to be in the position he is in, then he can resist the type of communication, the type of humbug, cant and hypocrisy which the Government tried to bring into this legislation to show themselves to be pure beings. I have said before, and I shall not labour the point: it is an insult to the person who is to be Director of Public Prosecutions. It is an insult to the Attorney General. It is an insult to the Acting Director of Public Prosecutions. It is an insult to the Garda Síochána. It is an insult to a solicitor who acts on behalf of the Attorney General in his official capacity. It is an insult to the intelligence of this House that this legislation should be introduced on any ground, but more particularly on the grounds that it is introduced into this House without sanctions. That is what this legislation clearly indicates, that there are no sanctions.

That is not strictly true.

Would the Parliamentary Secretary point out the sanctions?

What about (b) in subsection (1)? Surely if any of the people mentioned in (a) do entertain any communication they are in breach of duty, which is a very serious thing for a public servant.

That is right; they are in breach of duty. But what about the person who communicates from the other side? Where are the sanctions there?

The Deputy heard what I said about that.

What did the Parliamentary Secretary say about it?

That there were no sanctions at the moment, but if the provision was ignored by the public or if it did not sink in, sanctions would be introduced in due course.

The Parliamentary Secretary will admit there is a provision in this Bill which provides for no sanctions?

If the Deputy looks at section 6 as a whole, it is true it does not propose to make——

I cannot follow——

The Deputy asked me a question and now he does not want to hear the answer.

The Parliamentary Secretary is trying to mislead the House again. The Parliamentary Secretary says in his own script:

Here it is proposed to make it unlawful for anybody, other than those persons specifically mentioned in subsection (2) to communicate ...It is the Government's belief that in practice a penal sanction will not be necessary as it is anticipated the provisions of this Bill should become quickly known and observed.

It is quite true there is no penal sanction at present envisaged, but it is not true to say the section is completely powerless. Subclause (b) implicitly contains the possibility of very severe sanctions within the service against people who entertain communications.

Then we say it is discrimination against the Civil Service. If there should be sanctions for the Civil Service why should there not be sanctions for others? Is that not the reality of the position? The Parliamentary Secretary is now making the case that the law should be applied to some and not to others. This is a very serious matter, and I hope that other speakers will deal with this in more detail. I have been speaking now for an hour and a quarter and I feel that others should have an opportunity of contributing. I do not believe it is necessarily a good practice to make long contributions, but there are some occasions when one has an obligation to make a longer than usual contribution. It is not my intention to apologise to anyone for doing so, but my practice generally is to be as brief and pithy as possible on matters of this nature. This Bill is so rife with anomalies that one has to deal with it section by section and almost word by word, if one takes what I have already said in relation to the Constitution at the beginning of my contribution. We say that this section should be dropped. We have more confidence than the Government have in our public servants. Now we discover that there are sanctions for some and not for others, and we accuse the Government of discrimination.

Do not be silly.

The Parliamentary Secretary has said there are sanctions in this Bill for civil servants the moment this Bill is passed. I did not say it. I am merely quoting the Parliamentary Secretary. He said that the sanctions will be immediately available for those in the Civil Service who transgress the provisions of this section, that there will be no sanctions against these people outside the Civil Service who try to influence those people within the Civil Service, that in some way the provisions of this Bill should become quickly known and observed.

Surely the Deputy realises there is a distinction between discipline within a service and the application of penal sanctions to people outside. That exists all over the country. There is no question of discrimination.

The Parliamentary Secretary has outlined that immediately this Bill becomes law there are sanctions for the Civil Service. Does that mean that if a civil servant, for example, transgresses the provisions of this section he is immediately dismissed from the Civil Service?

Of course it does not mean that.

What does it mean? Does it mean he is reduced to a lower grade?

The Deputy told the House he had studied every word of this.

Every single word of it, every last sentence of it.

That cannot be true if the Deputy really means that question.

I do mean the question.

I do not propose to answer it now.

The Parliamentary Secretary has already answered it loudly and clearly. It is a discriminatory and insulting section and he would be well advised to tell the Government to drop it as a vote of confidence in the Civil Service and in the proposed Director of Public Prosecutions.

I cannot believe the Deputy is sincere in this part of his speech.

Do not give me that piety. This academic form of piety the Parliamentary Secretary talks across the floor of the House——

If the Deputy forces me to speak harshly I shall do it just as quickly.

The Parliamentary Secretary is just as capable of speaking harshly——

Interruptions should not be either made or invited. The Deputy should make his own speech.

I am trying to make my own speech without being interrupted by the Parliamentary Secretary, who intends replying somewhat on the lines that the Opposition have not studied the Bill or have not met the arguments he propounds to any great degree. That is the form of arrogant reply we expect from the Parliamentary Secretary, as I can see he is working himself up into that frame of mind.

I would make one last appeal to the Parliamentary Secretary in view of what he has said about the discriminatory nature of section 6. However, perhaps I am wasting the time of the House. We shall have the opportunity again of a lengthy debate on Committee Stage. We shall show the Parliamentary Secretary how much we have studied this Bill and how much we have come to grips with each section, each line and each word. The Parliamentary Secretary will spend a considerable amount of time — let me put him on notice — on Committee Stage explaining the minds that produced the type of thinking that is reflected in some of the sections, but more particularly the type of meanness which appears in section 6. It is a mean and insulting section.

We make a final appeal to the Parliamentary Secretary. At no time did we make a personal attack on the Parliamentary Secretary. We are entitled to make our points and if the Parliamentary Secretary does not like them he is entitled to reply to each point separately. He will have an opportunity of doing so. This is a Bill the Committee Stage of which will not have an easy passage particularly in view of what he has now said in relation to section 6.

Section 7 deals with the retaining of barristers on behalf of the State. I have dealt at considerable length with the humbug and cant the present Government have been going on with since they came to office. The Government have a record of cynical political distribution of briefs and for them to produce this section makes one marvel at the depth of the hypocrisy to which a certain section of the Fine Gael Party is prepared to go. This section has been included to give the Bill an aura of responsibility.

It must be a new experience for you to see a Bill like that.

The Parliamentary Secretary interrupts. He castigated me rudely for doing so last week.

Rudely or brutally?

When the Parliamentary Secretary is replying to the Second Stage he will have to admit that since the Government's accession to office at the beginning of 1973 a number of people—I will be as easy as possible—committed to the Fine Gael Party have received State briefs on account of that affiliation. Would the Parliamentary Secretary even admit that much? Is he about to admit something?

Yes, I will admit that a lot of men who were done a severe injustice for 16 years got something in the end which they were entitled to all along.

What the Parliamentary Secretary is saying is that he approves of political patronage in relation to the distribution of State briefs and that this Bill, which is in some way going to validate the Government in their wrongdoing, is anathema to him.

I approve of this Bill. It should have been here generations ago.

The Parliamentary Secretary has just said that he is in favour of those people who, he has suggested, have been out of State briefs for so long coming into them and still he is in favour of this Bill. What a piece of intellectual inconsistency. The Parliamentary Secretary, when he is replying, must stand up and say that he is in favour of this Bill. That is the reality of his position.

I have referred briefly to the Director of Public Prosecutions. This concept is altogether wrong in my opinion and we may be contesting the matter with considerable vigour. The Temporary Director as we understand it, can have even lesser qualifications than the Director. He can be a practising barrister or solicitor of only seven years' standing or a civil servant called to the Bar or admitted as a solicitor seven years before. This is unusual for a person who might hold office for years on end while the Director is mentally or physically ill and drawing his salary. The Taoiseach may also appoint a temporary director between Directors. This, again, we question. A Director should be replaced by a Director and the Government should be ready to do so as would be the case with an Attorney General. We cannot over-emphasise the necessary qualifications for the position of the Director of Public Prosecutions. Article 30.3 of the Constitution states as already quoted:

...or some other person authorised in accordance with law to act for that purpose.

Effectively this "some other person authorised in accordance with law to act for that purpose" is now being given the bulk of the existing functions of the Attorney General with the exception of his Constitutional functions. We have some grave doubts about the manner of such appointments. We would ask the Parliamentary Secretary, in his wisdom, to have another look at the qualifications section of the Bill.

I expect it is fair to make the point that the office of Chief State Solicitor is undoubtedly in urgent need of overhaul. We believe there is some case for pooling the functions of the office of the Director of Public Prosecutions and the office of Chief State Solicitor. I am sure others will join with me in paying tribute to the wonderful work done by holders of the office of the Chief State Solicitor over the years. They have given dedicated and loyal service to this State. I understand there have been only three Chief State Solicitors—Mr. Corrigan, Mr. O'Donovan and Mr. Liam Lysaght. These men have distinguished themselves in the office of Chief State Solicitor. That office always drew the cream of the solicitors' profession. It was seen as a prestigious position. Now, however, the rewards of private practice appear to offer more to the young man entering the solicitors' profession.

It would be well if the Government could in some fashion revive the old spirit which brought so many distinguished people into the Chief State Solicitor's office. A number of these people went on to other posts. Those distinguished individuals had a grounding in the Chief State Solicitor's office. We say that service through the State should be seen as an honour rather than a duty. Recruitment to the office of the Chief State Solicitor is difficult enough and the salary scales are tied to other grades in the Civil Service. Apparently it is difficult to adjust the scales without throwing the whole matter out of kilter. Nevertheless we ask the Parliamentary Secretary to urge the Government to give the Chief State Solicitor's office greater assistance by the method I have suggested.

I again appeal to the Parliamentary Secretary to admit that since the present Government came into office in March of last year they have applied the political patronage system in regard to the appointment of judges and the handing over of State briefs to counsel. The Parliamentary Secretary would distinguish himself by making those admissions. He says that for 16 years his people were out of the range of political patronage and he sees no reason why they should not operate the same system, why they should not get the spoils when they come into office. If he is to be consistent he must agree that the Bill which he has now presented to the House will create some sort of mental block for him. He must find it very undesirable because the Bill intends to prevent political patronage so that his people will have to take their turn with everybody else, according to their potential as barristers, for State briefs, as set out in section 7 of the Bill.

There is another point which might be worth making. Section 2 (7) (a) (i) states:

There shall be a committee consisting of—

(I) the Chief Justice,

(II) the Chairman of the General Council of the Bar of Ireland,

(III) the President of the Incorporated Law Society,

(IV) the Secretary to the Government, and

(V) the Senior Legal Assistant in the Office of the Attorney General.

Paragraph (b) of section 2 (7) states:

The committee established by this subsection shall, whenever so requested by the Government, select candidates for appointment to the office of Director and shall inform the Government of the candidates selected and of their suitability for such appointment.

This assumes there will be more than one candidate placed before the Government for appointment because paragraph (c) states:

The Government shall not appoint a person to be the Director unless the person was selected or amongst those selected by the committee aforesaid pursuant to a request under paragraph (b) of this subsection in relation to that appointment,

The Chairman of the General Council of the Bar of Ireland is a barrister and so also is the Chief Justice; the President of the Incorporated Law Society, the Secretary of the Government and the Senior Legal Assistant in the Office of the Attorney General. We take the view that if the Government at this late stage accepts the proposal that the status of the Director of Public Prosecutions should be on a par with that of the Attorney General then that Director of Public Prosecutions might be a Senior Counsel of known worth in matters of criminal procedure, matters of criminal practice and so on. If we can convince them that the Director of Public Prosecutions should be such a person then we believe the committee should be extended to include two additional members of the Bar. However these are matters we will deal with in more depth on the Committee Stage. The Director of Public Prosecutions is taking over, in the domestic legal scene, from the Attorney General and we believe this person should be of comparable status.

Cavan): This Bill has three main objectives. It proposes, firstly, to create the office of Director of Public Prosecutions and to hand over to that officer direction of public prosecutions. It proposes, secondly, to introduce, for the first time since the foundation of the State, a statutory method of selecting counsel to conduct prosecution on behalf of the State and to act in civil matters on behalf of the State. Thirdly, it sets out to discourage or make unlawful certain communications to the Attorney General and the Director of Public Prosecutions, members of the Garda, counsel employed by the State or solicitors employed by the State, which communications are commonly regarded as representations.

I should like to ask the Opposition do they seriously disagree with any of those three main objects? Do they seriously suggest there is something undesirable about handing the conduct of public prosecutions over to an officer who shall be regarded as a civil servant, who shall be independent in the exercise of his duties and who shall not be subject to political pressure of any kind? I do not see anything undesirable in writing into an Act of Parliament that counsel in future shall be retained on behalf of the State on a basis that shall be fair to the Bar in general and on a basis that shall secure the best available counsel. To see anything improper in discouraging and making it unlawful for people to make representations to those charged with the direction of public prosecutions is to me quite extraordinary. I think the Opposition cannot be serious when they seek to oppose or criticise adversely these provisions.

The first object, as I said, is the creation of the position of Director of Public Prosecutions. It is highly desirable that the function of the Director of Public Prosecutions should be above, and independent of, politics and above, and independent of, the Government of the day. I say that because these particular prosecutions affect the liberty of the individual, his character, his reputation and his very living. It is desirable that the conduct of such prosecutions should be scrupulously impartial. That does not mean that I am suggesting for one moment prosecutions in the past have been anything but impartial. However, not alone is it necessary that they should be impartial, and above and beyond pressure of any sort, but it is very necessary that they should be seen to be so and that the public should regard the Director of Public Prosecutions as the custodian of public rights, as the man charged with the institution of prosecutions for the protection of the State, for the protection of its citizens and for the protection of the rights of those citizens.

Up to now the functions it is now sought to hand over to a permanent member of the Civil Service have been exercised by the Attorney General, an officer who, in accordance with tradition and procedure, came and went with the Government of the day. He was a political appointee. He was appointed by the Taoiseach of the day and, if he were not elevated to the Bench during the lifetime of the particular Government, he departed with that Government. Not infrequently he was a Member of this House, as is the present holder of the office and as were many of his predecessors in the office of Attorney General. As a Member of this House it was necessary for him to go before his constituents and seek re-election. He was subject to contact with his constituents and, in order to secure election at the next election, it was necessary for him to keep in touch with his constituents and, human nature being what it is, he would naturally be subject to approaches — I shall not put it any stronger than that — from political supporters.

We have been fortunate in that we have had here the highest standard of Attorney General. We have had here at all times men who held the respect of this House and of the country. But there are still people who believe that if you know somebody, or know enough, or have enough contact, you can influence anything. One of the objects of this Bill is to create a situation in which you will have, as we have had in the past, the strictest impartiality but, from now on, that impartiality will be seen to exist. That is the important thing. It is important that the office of Director of Public Prosecutions should be seen to be outside of and above politics. That is what this particular section of the Bill is trying to achieve.

There is another reason for it. The position of Attorney General is becoming daily more onerous. He has to advise the Government on many matters. He has to be available to the Taoiseach and the Government at short notice and he is expected to give legal advice on highly complicated and intricate legal problems. It is, therefore, very difficult for one individual to discharge the functions of adviserin-chief to the Government of the day and, at the same time, deal personally with each prosecution taken in the name of the people. The creation of the post of Director of Public Prosecutions will relieve the Attorney General of a very considerable volume of work and will give him a great deal more time to devote to his functions as adviser to the Government.

I find it difficult, if not impossible, to understand Deputy Andrews' approach to this appointment. It was not very clear from his speech whether he was against the appointment in toto or whether he was not. I believe he will find it very, very difficult to convince the public that the appointment is not desirable. The method of appointment is laid down in section 2. It ensures that the person who is appointed will be well qualified and suited to the position. The person who is appointed is to be selected or certified as qualified for the position by a committee consisting of the Chief Justice, the Chairman of the General Council of the Bar of Ireland, the President of the Incorporated Law Society, the Secretary to the Government, and the Senior Legal Assistant in the Office of the Attorney General.

I put it to the House that that is a highly qualified and impartial tribunal set up to advise the Government on the selection or the appointment of the Director of Public Prosecutions. The Chief Justice is usually, not invariably, a barrister of many years standing who has risen to the highest position in the Judiciary. The Chairman of the General Council of the Bar of Ireland is invariably a barrister of many years standing who enjoys the respect and confidence of his brethren at the Bar. The same can be said for the President of the Incorporated Law Society. The two remaining members of the committee are the Secretary to the Government, again a highly respected and highly experienced civil servant of long standing, and the Senior Legal Assistant in the Office of the Attorney General. This is the committee which advises the Government on the appointment. It can be trusted to give the best advice.

Deputy Andrews seemed to find fault with the qualifications of the Director. It is laid down that he shall be a solicitor or a barrister of ten years' standing or, if he is a civil servant, that he shall hold a post the qualification for which shall be that he is a barrister or solicitor. Deputy Andrews seemed to find fault with the part of the Bill which accept a civil servant, a professional civil servant, who is either a barrister or a solicitor. He seemed to think there was something less meritorious about such a person, or that such a person would be less qualified. It struck me that, not only is such a barrister or a solicitor qualified in his professional capacity, but he has also the further qualification of having had to secure a position in the Civil Service against competition. I find it difficult to see how any objection can be taken to such a person. He will have the added merit of having had training as a civil servant if such an appointment is made.

When the Director is appointed he becomes a permanent civil servant with all the independence which goes with that, and all the status and standing that go with the permanency of his office. It is a highly desirable provision and a highly desirable change. I invite other speakers from the Opposition to say specifically whether or not they are against the appointment in principle. I regret to say that, listening to Deputy Andrews, I was unable to find out whether he was for or against the appointment. He seemed to speak with a certain amount of indignation. He talked about patronage with which I will deal before I conclude. It would have been more appropriate if he had said he was for or against the appointment of a Director of Public Prosecutions.

I will deal later with section 6. I will deal with section 7 first. It proposes to give directions for the retaining of counsel on behalf of the State. Section 7 (1) provides:

The Attorney General shall ensure that barristers retained by him in his official capacity to act or advise on his behalf or on behalf of any other person are chosen, from amongst those barristers who have indicated their willingness to so act or advise, in such manner as to effect a distribution of such retainers amongst them that, in the opinion of the Attorney General, is fair and equitable, taking one year with another, having regard to their suitability in relation to any particular retainer, to the public interest and to the distribution of retainers under subsection (2) of this section.

I want to pose a question to Deputy Andrews and any other member of the Fianna Fáil party who intend to speak: Do they see anything objectionable in that direction? Do they think it is undesirable that it should be laid down in black and white that the Attorney General shall retain counsel on a basis that is fair and equitable, taking one year with another, and having regard to their suitability in relation to any particular retainer to the public interest? I think no reasonable Deputy could object to that provision. I believe members of the Opposition will find great difficulty in arguing against it in this House or in the country.

Subsection (2) of the same section creates the same regulations for retaining barristers to act for the Director of Public Prosecutions. Again, I invite the Opposition to say whether they object to it and, if so, on what grounds. I do not think anything could be fairer. I believe, and I think the public believe, that it is considerably overdue. Subsection (3) (a) provides:

Whenever the Attorney General and the Director so request or the General Council of the Bar of Ireland so requests, the Attorney General, the Director and representatives of that Council shall consult together in relation to the administration and implementation of this section.

There you have a provision which brings into the discussion for the first time the professional association which regulates and controls the Bar in Ireland. In my view that is a good thing. It will create confidence in the profession and it will satisfy them that they are getting a fair crack of the whip. I will go the whole hog and say that it will relieve the members of the Bar from the necessity of jumping on bandwagons, interesting themselves in political parties and taking part in election campaigns up and down the country.

For the last number of years, mainly since Fianna Fáil got into office in the 30's, many young barristers thought there was no future for them if they did not nail themselves to the mast of a political party, take an active part in the running of that particular party or associate themselves as supporters. The fact that members of the Bar who were active politicians invariably cropped up as prosecuting counsel or counsel acting for the State in civil matters did not lead to the public having confidence in the administration of justice. The public began to associate the administration of justice with politics and, from time to time, one had the humiliating experience of seeing barristers of a particular political party being brought off their circuit to conduct a case in a certain court. That was bad for the administration of justice and it did not lead to confidence in it. The Opposition cannot be serious in opposing this provision.

The third object of the Bill, as contained in section 6, is to discourage the making of representations to the Attorney General, the Director of Public Prosecutions and the others named in the section who are charged with the function of directing public prosecutions. Deputy Andrews seemed to think that there is something there calculated to insult the holder of the office of Director of Public Prosecutions, the Attorney General or the others mentioned in the section. I do not see any such insult contained in the section. I do not see that that section can direct any reflection on the integrity of the Director of Public Prosecutions, the Attorney General or the other officers named.

I regard section 6 as the serving of notice on all and sundry, save the members of the family and social workers, that they should not approach the Director of Public Prosecutions and that he is not permitted to listen to them. As from the enacting of this Bill everybody will know, and particularly the politicians will know, that the Director of Public Prosecutions, the Attorney General and the other officers mentioned, are out of bounds as far as representations are concerned.

Let us not try to act the innocent in this business. Everybody knows that people who find themselves in trouble try, by whatever method possible, to get out of it. If any Member of this House pretends that he has not been asked to make representations in connection with public prosecutions he is simply being dishonest. I am not saying that such Members made representations or that they tried to make representations but I challenge any Member of the House to deny that he has been approached at some time to make representations in case of people who are charged or are about to be charged.

Is it not a great thing that from now on a Deputy will be able to say that he is sorry but that it is illegal to make such representations? A Deputy will now be in a position to say that not alone is he not permitted to make such representations but that it is outlawed under an Act of Parliament. That will introduce a bit of honesty into public life and it will be an ease to Members of this House and of the Seanad who are approached to make representations. I cannot see anything in this section which could be regarded as being in any way insulting or casting any reflection on the holders of the office concerned. On the contrary, it puts them on a pedestal and above approach and representation. If the Opposition try to argue anything sinister into this section they will find that they are fighting a lost cause.

I do not wish to be personal when referring to the contribution of Deputy Andrews. I was present for most of his contribution and the word "hypocrisy" was used several times. He was accusing this Government of engaging in political patronage in regard to the retaining of barristers and at the same time he seemed to be opposing the provisions contained in section 7 which proposes to create a statutory method of retaining barristers and to create a position where the Taoiseach will have to answer in this House for the administration of this section when the Bill becomes law.

At present there is no obligation on the Taoiseach or on anybody else to justify the selection of counsel; but when this Bill becomes law the Taoiseach, who is responsible for the Attorney General's office and who, presumably, will be responsible for the office of Director of Public Prosecutions, will have to defend in this House, if he is called on to do so, the method of selecting barristers and he will have to satisfy the House that they are selected in accordance with the terms of section 6 of this Bill.

During his speech Deputy Andrews used the word "hypocrisy" on several occasions. He used that term in the context that this Government have indulged in political patronage in regard to the retention of barristers during the past 15 months. Many barristers who are known to support the Government have been retained since we came into office but a number of barristers who were on the panel of the former administration have been retained also and have been briefed.

They have been retained because they were Fine Gael supporters.

(Cavan): Some of them are well known Fianna Fáil supporters.

Can the Minister name them?

(Cavan): I shall not become involved in names.

It would not be in order for the Minister to name persons.

(Cavan): All I will say is that they are well-known Fianna Fáil names.

Will the Minister tell me privately the names of these people?

(Cavan): Yes. The hypocrisy of which I wish to accuse Deputy Andrews is that of criticising this Government for indulging in patronage in regard to the retention of barristers or any other persons. Deputy Andrews is a member of a party who created patronage in this country at all levels from the highest post in the land down to the lowest occupation.

I knew a man who was nominated to Seanad Éireann by a former Fianna Fáil Taoiseach. This man as a county councillor was used by Fianna Fáil to appoint as rate collectors Fianna Fáil nominees and to appoint also anybody else whom Fianna Fáil wished to have appointed.

We abolished the system whereby rate collectors were appointed by county councillors.

(Cavan): Fianna Fáil had not abolished that system at the time they appointed seven rate collectors in one county on one day. On that occasion the appointments were carried by the casting vote of the Fianna Fáil chairman.

Up to the time that we abolished that system what does the Minister think happened in any county council on which there was a Coalition majority? What did they do in Limerick when they got a majority?

Order, the Minister, without interruption.

(Cavan): I can tell the Deputy in which county seven rate collectors were appointed by Fianna Fáil on the one day on the casting vote of the chairman. Fianna Fáil should be the last party in this country to talk of political patronage.

Is that how the Minister justifies political patronage?

(Cavan): I am not justifying it. I am abolishing it. Fianna Fáil's record in this regard is disgraceful in the extreme. They come here and boast about having appointed to the Bench two persons who were not their supporters. I suppose those were the only two such appointees in 30 years. I shall not indulge in personalities but perhaps those two appointees are the shining exceptions. On every occassion on which Fianna Fáil were in office they behaved ruthlessly in the matter of patronage. I make no apology if we have appointed or retained some people who are well entitled to State work and who had been so entitled for, perhaps, more than 30 years but who never got any of this work before. However, this Bill proposes to change the rules.

Is Deputy O'Malley or Deputy Andrews objecting to the Bill? What is their attitude? The whole substance of Deputy Andrew's speech was based on accusing us of having practised patronage for 15 months. That is an odd accusation from a party who practised patronage for more than 30 years. If we tried to make amends to some people who were treated unjustly for many years, we are now bringing in a Bill, after 15 months in office, that will create a just method of handing out briefs; and we are establishing an office of Director of Public Prosecutions, an office that will be above politics and, more important, will be seen to be above politics. We are setting out in this piece of legislation to discourage the making of representations. I am not saying that representations made to the Attorney General or to people charged in the past with prosecutions were effective or carried any weight but I shall welcome the day when I am in a position to say to my constituents—indeed, when it will not be necessary to say to them—that I cannot make representations in regard to a prosecution, that it would be illegal for me to do so and that if I were to do so I might find myself disqualified from sitting in Dáil Éireann. It would be improper for me to make representation in regard to prosecutions after this Bill has been enacted. That is another reason I welcome the Bill.

Deputy Andrews opened this debate on behalf of Fianna Fáil but after he had sat down I was still not aware whether he was for the Bill or against it. He made an extraordinary statement when he said that he found many things wrong in the Bill and that, and I quote, "We may decide to deal with them on Committee". Does that mean that Deputy Andrews came in here without giving full consideration to the Bill, that he came in for the purpose of making a political statement and that he was talking off the top of his head? Apparently it is not his intention to oppose the Second Reading and he has not said that he intends opposing tooth and nail any aspect of the Bill on Committee Stage. Fianna Fáil will not be taken seriously if they say they are against this Bill. So far we have had a neutral contribution from them with the emphasis on allegations against us of patronage. That comes bad from a member of the party opposite.

Normally when a Government introduces legislation, it is legislation which is in pursuance of the policy which the party professes and follows. We have here, possibly for the first time in the history of this House, a classic example of a Government composed of two parties introducing a Bill, the effect of which is the direct opposite to what they have been doing for 15 months.

Let me set the Minister for Land's mind at ease straightaway. I have no objection to the principles contained in this Bill, but I nearly got sick when I read it, admirable as its principles are, and realised what the authors had been doing for the past 15 months. I am surprised that anybody came in here, apart from the Parliamentary Secretary who read out a synopsis of the explanatory memorandum which had been prepared in some Department, and tried to justify what happened over the past 15 months. Admittedly, in a fairly small circle, a couple of thousand people who are involved in the daily practice of the law, the activities and happenings of the last 15 months have now become a sick joke. Any question of merit or ability so far as law is concerned has gone by the board. No effort is made to take any proper matters into consideration in the making of appointments or appointing prosecutors. It is simply and solely a matter of "we will look after our own".

Everyone who has or will speak will acknowledge that there has always been an element of patronage, unfortunately, connected with the law here. That is not solely since Fianna Fáil's time. It was very much so in 1922-23. That in itself was a legacy from the years before. It was one of the unfortunate things which tagged on to the law. Some effort is now being made on a statutory basis to get rid of some aspects of it as and from the time this Bill is passed. It would have been far more important to have got rid of it in practice without the necessity of legislation. To some extent at least I can fairly claim that in the time I held office there was very little, if any at all, of the things which have been complained of in the past 15 months.

The situation when the present Attorney General was appointed, as Deputy Andrews outlined at some length, was that some sort of directive went around that anyone who had done work for the previous Attorney General was immediately and summarily dismissed. It was presumed by him in his innocence that his predecessor would have appointed fanatical supporters of the Fianna Fáil Party to prosecute and do work for the State and nobody else. Within a few days the funny side of all this began to appear. A series of well-known Fine Gael supporters came whining with the complaint that they had been dismissed on the grounds that they were on, as it was put, Colm Condon's prosecution team.

The Deputy must not refer to names.

The previous Attorney General's prosecuting team.

It is not in order to refer by name to persons outside this House or to refer to them in such a way that they may be identifiable.

I had to talk about the Attorney General and there was only one at the time.

The Deputy may talk of an office but he may not mention names.

These people came along and complained bitterly that they had been swept out of their positions because they had been appointed by the previous Attorney General. These were prominent members of Fine Gael. Indeed, one of them was actually employed in their head office. He took it very badly. It caused no little amusement among those who worried themselves about this sort of thing. He was not the only example but, perhaps, he was the prime example.

He was not employed in the Fine Gael front office.

He was appointed as the PRO in the party. The Ceann Comhairle will not allow me to be more specific but I am sure the Parliamentary Secretary knows who I mean.

We must not reflect on people who cannot defend themselves against the privileges of this House.

He was a bona fide member of Fine Gael and of good standing with them, notwithstanding the taint which must have attached to his character by virtue of the fact that he got work from the previous Attorney General. There were a number of other examples of the same kind where the people concerned were at pains to establish that they were, in fact, supporters of the Fine Gael Party and got their jobs back. I do not know if they got apologies or not.

Since the middle of March, 1973, nobody connected with the Fianna Fáil Party received any form of employment from the present Attorney General. It is not a matter of great importance other than to those involved because it affects them personally and their pockets. If it were simply a matter of their own pockets, I would not bother to refer to it but it is somewhat more important than that. One of the consequences of the actions of the present Attorney General, who holds himself out as the author of the Just Society among other things, was that experienced prosecutors were out of office over night.

In some counties as many as four barristers have been tried in the intervening months as prosecutors. Either because of their incompetence or indifference or both they have not been presevered with. After about one week some of them refused point blank to do any more prosecuting. They said they were not able for it. At least they were honest. A number of others who are not able for it have, nonetheless, continued to prosecute to the deteriment of the public interest. Enormous difficulties have been created for the gardaí in certain counties. Very young and inexperienced people have been brought in because there is no one else and the outgoing prosecutors are ineligible, even though they are highly experienced. This is a very sorry state of affairs. I emphasise this because I am not so much concerned about the effects on the pockets of certain individuals as I am with regard to the public interest. This is one of the by-products of the brutal patronage which came in with such an enormous sweep that it swept a lot of their own supporters out of their positions until they were subsequently reinstated on establishing their bona fides as members and active supporters of the Fine Gael Party.

If we look also at the even more important question of judicial appointments in the period since then, it makes one ask immediately why they are not included in this Bill. The importance of the Judiciary is even greater than that of a prosecutor. The fact that you may have from time at the moment in several counties incompetent people prosecuting may be a serious matter but, in the long run, it is a much more serious matter if you have improper people on the Bench. Unfortunately, this Bill does not deal at all with the question of judicial appointments. If ever there was one in which we have had some notorious examples of blatant, naked patronage in the last 15 months, the question of judicial appointment is certainly that.

Deputy Andrews was very careful to make it clear that the appointments made were not of improper people but the Deputy has just described them as that.

I did not interrupt the Parliamentary Secretary when he made his speech. I do not propose to interrupt him later on. I should be obliged if he would not interrupt me now as he interrupted Deputy Andrews on, perhaps, 50 occasions during his speech.

Deputy Andrews invited interruptions. In fact, he asked me a question.

I am not inviting it. I wish to make my speech without interruption. I spoke here on the Estimate for the Taoiseach's Department last December. I mentioned the fact that, at that time, a number of judicial appointments had been made which gave rise to some uneasiness among many people. The number made at that time was four. Two were ex-Fine Gael TDs. Two were defeated candidates for Fine Gael at general elections. I think I made it clear at the time that, as it happened, the four of them were probably reasonably competent but, certainly, because of their background and the reasons for which they were appointed—which was not their competence but their party affiliations— their appointment did not do anything to engender public confidence in the Judiciary as a whole.

Since then, I am informed—I have not been able to add them all up myself because I am not certain I have seen all the appointments made; there were so many judicial appointments made since then—that the current figure of appointments by this Government is 14, which includes a large flood of district justices and quite a number of Circuit Court judges. Of those that I have seen and known anything about, they all fit into, broadly speaking at least, the category into which the first four fell. They may not be ex-TDs but a number of them are ex-candidates. They are almost all, so far as I can see, ex-directors of elections, ex-election agents, ex-active supporters, in any event, on a fairly active scale. I do not know most of these men. They may well be competent. They probably are but it does not engender any confidence in the judicial system in this country to see men appointed not because they are competent but because they have rendered service to the two parties now in Government. Anybody who is interested in doing it can contrast the appointments made in the four or five years prior to this Government coming into office. Anyone who honestly wants to do so will have a very interesting time making comparisons.

I want to make it clear again—as I did to the Minister for Lands before he left—that this party has no objection to the principle of this Bill but is greatly suspicious that a Government should, after 15 months in office, bring in a Bill which would outlaw, as it were, the very things they have almost broken their own necks trying to do. It seems eminently suspicious that this should happen at this time. Indeed, we are almost led to believe, by what the Minister for Lands had to say, that having had 15 months or so in which to appoint a clatter of boys all over the place, they are now going back on that, are changing their policy 100 per cent and are going to make all of what they themselves did in the past 15 months illegal. Many people from abroad — if they saw the situation and realised what was going on here — would probably say it could happen only in Ireland and one could get away with it only in Ireland. If a British, French or German government took a certain line in policy for 15 months and then declared illegal the things they had almost fallen over themselves trying to do in the previous 15 months, they would be laughed at.

Where is the declaration of illegality? The Deputy is mixing up two sections.

I want to come to section 2 of the Bill which establishes this office of Director of Public Prosecutions to which I have no objection whatsoever. It then continues at some considerable length—in fact, two full pages — to set out the manner of appointment of the Director. It seems to me to be slightly jocose that there should be two pages here, meaning nothing, but there to whitewash the situation, that this Government will appoint some other friend of theirs. But, because there are two pages of alleged regulations to be complied with it will be believed by the general public that the appointment was done fairly and above board.

There is a very high-powered committee set up to advise the Government as to the appointment but there is nothing whatever to compel the Government to appoint whoever the committee select. Indeed, it is envisaged that the committee would not send just one name to the Government but a number of names and that that Government could, if they wished, appoint one of those or, if they did not wish, need not appoint any at all. The matter then goes back to the committee who are asked to interview more people, send up more names and none of those names need ever be accepted. Of course, it will end up that the Government will appoint whoever they want, and, if one is to judge by their activities over the past 15 months, one fears greatly the sort of appointment likely to be made.

Like Deputy Andrews, I find it difficult to agree to subsection (3) (b) of section 2 for the reason that I cannot see a civil servant who has acted as such for some years, and accordingly has not acted in court for some years at least, having the necessary experience to carry out the functions of this office in the way in which they should be carried out. Only a lawyer of a long number of years practising should be considered for this post. I think also it should be made clear in this Bill that the fact that he may have a wide practice in equity or, indeed, even at common law is of no value whatever as qualification for this post. This post deals with criminal prosecutions, with criminal prosecutions only, and the fact that somebody may be an expert on Roman law, constitutional law, equity, tort, contract or anything else— no matter how eminent he be — does not in any way determine his suitability for this post. It is only if he has long years of practical experience of criminal law that he will be suitable. When I say practical experience of criminal law, I mean, for the most part, on the prosecution side because the approach is very different, indeed, on the prosecution side to that on the defence side. If there was any one civil servant who, by virtue of his office, one would have thought might approach the necessary qualifications, it would be the senior legal assistant in the office of the Attorney General but, strangely enough, it seems to be envisaged straightaway that he would not be appointed because he is put on the committee who are supposed to select these names for submission to the Government even thought the Government may ignore all of them. It seems strange therefore to rule out the most senior and ostensibly the most suitable civil servant for appointment.

Like Deputy Andrews, I should like to draw attention to the fact that Article 30.3 of the Constitution allows for the prosecution of offences by some person authorised in accordance with law other than the Attorney General; but in giving that power or allowing it to be given it is disjunctive in its application and clearly envisages that either the Attorney General has the power or that somebody else has it, but the Attorney General and someone else cannot have it simultaneously. This Bill envisages that both the Attorney General and the Director would, in certain things and at certain times, simultaneously have the same power. I believe such a provision, therefore, is contrary to Article 30.3 and it is only right that the House should be put on notice of likelihood of this before we are asked to enact this Bill in its present from.

If I appear to skip sections it is not because I have not a good deal to say on them but what I have to say is fairly detailed and technical and more suitable for the Committee Stage. At this stage I am trying to deal mostly with general principles in the Bill and for that reason I am skipping to section 6, which is the strange, rather unique section which purports to make the making of representations, as they are called, to a long list of people an unlawful act—"it shall not be lawful...". But then it ends in mid-air and provides no sanction or penalty of any kind; it does not even make it an offence. At no stage does it say: "It shall be an offence...". Do the Government seriously think this House will achieve anything other than stultifying itself by writing in pious hopes such as this without providing some means of enforcing them? A pious hope is all this is. Anybody who has any knowledge of dealing with constituents is well aware that the pressure on Deputies and others will in no way be lessened by this. Most people will regard a section such as this as a joke. No matter how commendable the intentions of the section, there is no point in having it unless you make some effort at least to enforce it.

I thought it very significant that in subsection (1) (a), which deals with a long list of people to whom you may no longer make representations, the one who, perhaps, above all others should be included, is not included, that is the Minister for Justice for the time being. The office of the Minister for Justice is plagued with representations from all kinds of people about all sorts of prosecutions, petty and otherwise, almost daily. I can recall that about half of one's post on some days would consist of representations of this kind which one simply had to ignore. One threw them to one side and one's private secretary sent some short note in reply to the effect that the Minister could not, and did not intervene in matters of this kind. It is strange that while the Attorney General and the Director and their staffs and every member of the Garda Síochána and every state solicitor and their staffs are included, the Minister for Justice, who is perhaps most vulnerable in this respect, is not included.

However, it does not matter much because whether or not his name is included it seems to me the section will not work. Therefore, it is only half-heartedly that I suggest that, for appearance sake at least, the Minister for Justice should be included in this list. I know it is perfectly valid to make representations to the Minister for Justice regarding the result of prosecutions by way of petition but section 6 does not deal with results of prosecutions: It deals with prosecutions that have been instituted but not yet heard and matters arising out of which there might be prosecutions.

But the people in section 6 are all people with a function in regard to prosecutions and the Minister for Justice has no function.

Having been there for three years I am well aware that the Minister for Justice has not such a function, but unfortunately one could never convince the public of that or indeed Members of the House.

As regards section 7 and the question of retaining barristers on behalf of the State and giving them briefs, I do not think I have anything to add to what I already said except to say once again that it seems to be a remarkable situation that, having spent 15 consecutive months trying as hard as they could to give as much as possible to as many of their own as possible, suddenly in June, 1974, they stop in their tracks, turn tail and drive off with all flags flying in the opposite direction and say it would be a wrong thing not to give out briefs fairly and that in order to ensure this can never happen again they are putting a statutory obligation on the Attorney General and the Director of Public Prosecutions to ensure it never does.

If the Government were genuine about that they would not have carried on the practices they have carried on in the past 15 months. Deputy Andrews was more than justified in his constant use of the word "hypocrisy" in relation to the provisions of this Bill now in contrast with the activities of the past 15 months. Most people do not know a great deal about the question of briefing barristers and all the rest of it—it is generally regarded as something between lawyers and not important— but the few thousand who do know what has been going on in the past 15 months are as revolted as I am at the sheet naked, blatant hypocrisy and cynicism of this Bill.

Before I spoke we had the Minister for Lands standing up with the explanatory memorandum in his hands, reading out bits of it telling what the Bill was all about and asking how could anyone in the Opposition say they were against this measure. None of us in the Opposition says we are against the broad principles of what is in the Bill but every one of us say that, like the members of the public who are aware of it, we are revolted by what has gone for the past 15 months and we are doubly revolted by the hypocrisy now of bringing in a Bill to ban their own sordid activities.

After all that sound and fury by the second spokesman for the Opposition, a person might well wonder whether he was a member of the Irish Bar 16 or 18 months ago or before that. This measure we are discussing was clearly contemplated by Articles 30.3 of the Constitution of 1937 and it was an obvious provision for the Constitution to contain. As society progresses, the tentacles and responsibilities of the State in the everyday life of a nation and its citizens are bound to increase. I am certain the draftsmen of the Constitution bore that in mind when dealing with this paragraph.

In those days it was not foreseen that the Attorney General would have the function of advising the Government not only on domestic legislation but also with regard to the implications of European law, particularly that emanating from the EEC in relation to regulations and directives. So far as the increased statutory functions of the various Departments are concerned, it has become increasingly obvious that every step and procedure, whether taken by the Minister, the secretary or the various officers of the Department, are closely related to the powers set out in a statute or a statutory rule or order.

On many occasions the ordinary day-to-day work of the Department gives rise to technical legal aspects in the administration of the powers given to the Minister and his officials. As a Deputy I was fortunate, or unfortunate, to stumble on a section that was interpreted and used in a certain way for upwards of 20 years. A set of circumstances arose which rather made the law look a bit of an ass and a lot of technical work had to be done and it was necessary to go back to the history of the section to ascertain the object and purpose of the provision. This was a legal matter which had to be dealt with by the law officers attached to the Attorney General's office, or it may have been the office of the Chief State Solicitor.

This is just an instance of how these things can arise. With the increasing volume of work in relation to criminal law and the prosecution of criminal offences, it is high time that the day-to-day work in this regard should be taken from the Attorney General; in other words, he should be given time and facilities to do his other work. I know that in the past the volume of work going through the Attorney General's office was such that he had not a chance of really getting to grips with all of that work and daily he had to delegate it. There is no doubt that for a lengthy period of time the actual day-to-day work in the Attorney General's office in relation to prosecutions had to be delegated. If one might use a phrase of the Bar, possibly it devilled to a member of his staff. If that had not been done there was no hope of getting through the work. We know there have been delays in the administration of criminal law. This kind of situation can arise sporadically because one cannot foretell the flow of criminal work going to the Attorney General's office.

One point that has puzzled me, as well as many other lawyers, is the fact that there has been such a long delay before we got down to the question of creating the office of Director of Public Prosecutions. I think I am right when I say that so that as far as England is concerned the office of Director of Public Prosecutions was created by a statute of 3rd July, 1879, commonly called the Prosecution of Offences Act, 1879.

Possibly history played a part in our tradiness in creating the office of Director of Public Prosecutions. We were occupied by a foreign power and the law was not held in much repute, if in any at all, by the vast majority of the citizens of this island. The law was being administered by a foreigner and by the minions of a foreigner, and to describe a person as the Director of Public Prosecutions was probably the quickest way of attracting a piece of lead or a knife to such an official of the occupying British power at the time. The matter has always been in the hands of the Attorney General.

One matter I should like to bring the attention of the Parliamentary Secretary to is this. There is provisions in our law for private individuals to institute prosecutions. In England, under an Act of 1908, there is a specific preservation of the rights of individuals to prosecute for offences. I do not know whether that Act applied to Ireland. Its title is "An Act to amend the Prosecution of Offences Acts, 1979 and 1884". This obviously followed on the 1879 Act which created the office of Director of Public Prosecutions. Section 2 (3) of that Act provided:

Nothing in the Prosecution of Offences Acts, 1879 and 1884, or in this Act shall preclude any person from instituting or carrying on any criminal proceedings, but the Director of Public Prosecutions may undertake at any stage the conduct of those proceedings if he thinks fit.

There may be some other section, but I have not had time to track it down, which would of itself reserve the right of private individuals to initiate proceedings which would not be affected by the Bill now before us, but it seems to me there must have been some reason for the section I have cited. It is for that reason that I have brought it to the attention of the Parliamentary Secretary and the Attorney General and his office in regard to that aspect of prosecutions. I think it is the right of any private individual, if he thinks a crime has been done, to institute a prosecution, and that right should not be taken from him. It may be covered in some other way, but generally speaking there is a great reluctance on the part of the Legislature to legislate — indeed the tendency has been to underlegislate rather than to overlegislate in this respect. Therefore, if that is relevant, if my comment is to any point, possibly this could be dealt with on Committee Stage. It occurred to me to bring it to the attention of those whose duty it was to father this Bill.

The Bill sets out in section 1 what the territory or the jurisdiction of the Director of Public Prosecutions is to be. It refers just to criminal matters and states:

"criminal matters" includes criminal proceedings and applications for any order of certiorari, mandamus, prohibition or other State side order or injunction with respect to criminal proceedings or any matter arising thereout and also includes cases stated, certifications by the Attorney General under section 29 of the Courts of Justice Act, 1924, references under section 34 of the Criminal Procedure Act, 1967, and applications and other proceedings arising out of criminal proceedings;

I take it the jurisdiction of the Director of Public Prosecutions will be purely related to matters of a criminal nature and that in so far as injunctions, cartiorari, mandamus or other such proceedings are concerned they would have to be of the same kind.

This gives me an opportunity as a Deputy to raise what I think is a very important matter in relation to criminal proceedings. There are all sorts of people who find themselves at the wrong end of the arm of the law. The law, the Government for the time being and their officers—the Garda, the Army and so forth— do not take any particular pleasure in having to take proceedings against people who have made a possible mistake or blunder or who have contravened the law; but, bearing in mind the tremendous spectrum of variance one comes across in the criminal courts, I should like to see the probation office service somehow linked with the Director of Public Prosecutions. I understand this has herefore been dealt with by the Department of Justice.

As I see this Bill, the function of the Director of Public Prosecutions will be the making of a decision not alone on the charges to be preferred, which counsel is to be retained or what is to be the nature of the proceedings, but I would also imagine it would be a matter for the decision of the Director of Public Prosecutions to decide as to whether proceedings were to be taken at all. There might be circumstances in which the Director might have to make a decision in which he would say: "Now, hold our hand and let us investigate not alone the complaint but the circumstances and the character of the person involved".

With my number of years in the legal profession, I do not want to appear as a fellow going soft just because there is a certain school of thought that one must turn the surroundings of an alleged criminal into that of a nice psychiatric nursing home with nice sympathetic phrases and understanding of his situation and of the circumstances in which he would find himself, but I feel that the probation service should have a close relationship with the Office of the Director of Public Prosecutions.

I was recently in a court of law where it appeared that the probation officer was only brought in at the last moment. On this assessment of the situation and on the time that he had available to give to the case, he was in somewhat too late. In effect, he could not fully or properly assist the court. I do not think one can pigeonhole any particular part of criminal proceedings. If a person has the responsibility of directing prosecutions— and I include directing prosecutions, maybe, not to be taken—that person should have the fullest and widest authority and powers to call on any facilities that are available in relation to delinquents. If the person holding that position had not got these facilities, in many cases he would have no option but, prima facie, to direct a prosecution which, if circumstances were known better and more fully would not be directed.

I imagine there are many people who would disagree with me on that, but I believe that this office of Director of Public Prosecutions is now giving us an opportunity to have a fresh look at and a rethink on the conduct and control of prosecutions. When I myself had the honour of acting as a prosecutor for a short and limited time, there were many occasions on which, when I saw the depositions and the papers, I wondered to myself what was the reason for bringing in a prosecution. Time out of number—I could say in all cases— a recommendation came up from the local area to prosecute. As prosecutor, I was limited to the evidence in those depositions in subsequently conducting the trial, and I wondered why on earth money was being spent on such a prosecution, because there was no hope of convicting on the charge or on the evidence I held in my hand. Despite that fact, I had to get up in court and make the best case I could on the evidence available to me. I know my colleagues at the bar, more or less from time immemorial, have been in the same position.

Therefore, I might be using that as a weak and, possibly, an irrelevant argument in urging that any facilities that are available to the Director of Public Prosecutions by way of advice or information should be made freely available to him so that the best possible decision can be made in relation to whether a prosecution is brought or not brought, or whether a prosecution already initiated should be stopped at some stage, or whether different or other charges should be preferred, or other courses should be taken.

I am coming to a matter which I regard as of enormous seriousness. It is possibly not so serious nowadays, but it is the position of counsel and a solicitor defending a person on a charge of murder. Prior to the introduction of legal aid, the person was brought forward and charged, and subsequently depositions were taken in the District Court. It was very often a lengthy and slow proceeding. There were often very many adjournments before the depositions were actually taken. Where the person had no means, that alleged murderer, whose life was was then possibly at stake, appeared in the District Court without legal representation. Usually the local bar of solicitors did something about it, and somebody came in and just watched the proceedings at deposition stage.

However, if the person charged was in the position of having to avail of the McNaghten rules, namely, that he was going to rely on insanity, very often that person would not be brought to trial for six or nine months, maybe longer, after the date of the alleged murder. It was only when that person was returned for trial to the Central Criminal Court that an application would be made by a solicitor, with his counsel in attendance, that he and the counsel be assigned to look after the accused person. It was only at that stage that the solicitor and counsel were officially recognised. It was only then that they could call upon the State to give them the facilities, on behalf of the accused, to have the accused person medically examined. Admittedly, the accused would have been examined on being taken into custody by the State, in the first instance, but it seemed to be completely contrary to the principle that a man is innocent until he is proved guilty, that that accused person would have to wait for nine months before his lawyer could bring in a psychiatrist. That unfortunate psychiatrist would have to try to give evidence in aid of that accused man about a matter that had occurred six or nine months before.

The situation is now considerably improved since legal aid has been brought in, and the situation, I suppose, is not as serious from the defence counsel's and solicitor's point of view, in so far as there is no execution penalty. However, I do feel that in the definition of criminal matters that are covered by the functions of the Director of Public Prosecutions there should be some reference to providing facilities for the defence at the expense of the State in major criminal offences such as murder, and particularly where there is a likelihood of the McNaghten rules being relied on.

It always puzzled me that that matter was never raised or debated in the House. It seemed to me that the way the criminal law in major trials was dealt with was quite contrary to the rights of the individual under the Constitution. In order that there may be no slip-up and no unfairness where the defence of insanity may have to be relied on or may be even considered at a later stage that should be written in as one of the matters to be dealt with by the Director of Public Prosecutions.

I want to undeline a matter that may be lost sight of. In relation to a prosecution it is not necessary and only the function of a prosecutor to obtain a conviction. It is the duty of a good prosecutor to present all the evidence in a fair and proper manner in relation to the accused person and the charge that is levelled against him. Therefore, I suggest that "criminal matters" should include the provision of facilities for defence as well as prosecution specifically mentioning defence to ensure that it would be attended to and that a defendant or an accused person would have a statutory right to call for these facilities. I have had personal experience in the past, before legal aid came in, when it was just a question of being assigned to a murder case defence, of having quite stormy interviews with the various officers in control of accused people to obtain the necessary and proper facilities. That did occur I am afraid in the case of a murder trial. I know it is no function of a barrister to have to personally and directly interview officialdom when the barrister is appearing for a client. It is a matter to be dealt with by the solicitor but I am afraid the situation got so out of hand and became so serious that I had to take it upon myself to do it. It was a very unpleasant experience but in those days one did not think twice about plunging into the breach when one knew that the penalty for one's client was to be sent into the next world if he was convicted. It was a serious matter.

I am not quite certain whether this is relevant but as the Director of Public Prosecutions is responsible for matters appertaining to crime I would be of the opinion, personally, that the sentence that would follow from the initiation of criminal proceedings in the event of the accused being convicted would also be a matter that would possibly be within the realm of interest, if not some sort of control, of the Director of Public Prosecutions. There is a view abroad of the office of the Director of Public Prosecutions as being somewhat of a mini-Minister of State with more independence than the average Minister of State and that a Director of Public Prosecutions must not only be a legal animal in the legal cog that pushes prosecutions or stops them or changes them or varies their method of presentation, the overall picture of the administration of crime control in the sense that if crime is controlled when crime is being committed it comes into the courts, that the matter of sentences and the policy of sentences would be a matter that would possibly be within the purview of the Director of Public Prosecutions. The public have in the past quite frankly expressed a certain amount of shock at the variance in the sentences that have been imposed.

I know there is a system which operates in Dublin—it may operate in the provinces or it may be that it is done in Dublin for the benefit of all the country—where district justices meet in a sort of informal committee to discuss the situations occurring in their courts. The purpose probably is to share and exchange information and to try to show a certain evenness in the administration of the courts as to penalties both civil and criminal. There might be some provision whereby the Director of Public Prosecutions would be somehow consulted in this matter of sentences because I know, as a practising lawyer, that it makes a vast difference, from the point of view of the client in what court, before what judge, one's client is dealt with when it comes to a sentence. If your client is convicted in one court the sentence is one that, perhaps, the client would not complain too badly about but if he is in before another man there is a fair chance he will regard himself as getting a right clobbering. In fact, this is a matter that has given rise to last minute adjournments of trials of accused people — not jury trials but trials before district justices. It is a matter that might possibly be brought within the purview of the Director of Public Prosecutions to show that there is a certain evenness or control kept on the sentences.

It does not appear from the Bill that the matter of public inquiries falls within the purview of the Director of Public Prosecutions. I have an idea that something of that nature can occur in England but it may be that it can only be done with the consent of some State Department. I do not want to bring the office of the Director of Public Prosecutions down to the local district attorney level we see depicted on television and American films but I would feel that the word "investigations" and matters concerned with investigations might be included under the heading "criminal matters" in section 1. The relevance of that might be more apparent when I come to deal with section 6.

I am glad to see that the spokesmen on the Opposition side favour this Bill and that they see no objection to its principles. Deputy Andrews says he must question the mechanics of the structure. I take it he is reserving his objections to the detailed examination of the Bill on Committee Stage and that he is only dealing now with the matter of principle. He, like Deputy O'Malley, appears to agree with that but having said those nice things both of them seemed to run amok. They became very worked up in regard to political patronage. I do not think they are the people to talk about that. I have been the victim of this for 16 years and for many years before that. I have seen men with literally no experience being handed State prosecutions. Human nature being what it is, young inexperienced men did not do the job properly. There was one stage in the history of this State when you were regarded as a very bad criminal defender if you did not get your man off. There was a very low water mark in criminal prosecutions and the presentation of criminal cases. I do not like to be specific about the period of time it occurred. All I will say is that it happened in my time at the Bar. The only thing you were worried about then was if by any accident you would be convicted.

Deputy O'Malley said it did not seem to be necessary to have a Bill to cut out political patronage. His speech remained me of the first time I attended a first year students' debate in UCD. I expected better from a former Minister for Justice. The Deputy seemed to regard the serious office of judge and the serious responsibilities of a prosecutor with unforgivable flippancy. There seemed to be no balance. I was quite amazed when I listened to him. I do not look on judges as if they have haloes around their heads but I think there is a starting and a stopping place when you refer to the office of a judge. The manner in which judicial appointments were spoken of in the House can give terrible scandal. When a person comes into a court of law and gives evidence he takes oath before God to tell the truth. He relies on the judge to be impartial and to do his job with a proper sense of justice. One would wonder, listening to some of the things that were said here today, whether we should have a judicial system in this country, whether we should have judges deciding or whether we should even let the accused person or the litigants know the name of the judge trying the particular case. If we were to take seriously what was said about judges and appointments by members of the Opposition today we would be far better off putting the judge trying a case behind a screen so that the public will not know who is trying it. The Opposition pointed fingers at various members of the Bench in this House. They are not in a position to defend themselves and it is not right that the debate should have descended to the degree of squalid oratory we had to listen to.

Deputy Andrews mentioned the pooling of the functions of Director of Public Prosecutions and those of the Chief State Solicitor. In a lot of instances there would be a certain common knowledge, procedure and office work but from my own experience of dealing with State matters, and having been on the other side because of my politics for the last 16 years, I say you could not, with any degree of efficiency, merge the functions of Director of Public Prosecutions and that of Chief State Solicitor. It is not a practical way of carrying on the office. The Director of Public Prosecutions is concerned with criminal work alone and the Chief State Solicitor has to act for Departments and deal with public matters, a lot of which is civil work.

I do not understand the Deputy's criticism of the second paragraph of the Parliamentary Secretary's opening statement. He referred to it as only a statement of intent. He asked: "Will the Attorney General actually get involved?" and "Will he become redundant?""There is no question of him becoming redundant. We want to use the resources of the Attorney General as far as they are available and to relieve some of the strain of the work that is falling on him. We know that the Attorney General is out of the country today as he is appearing in a tribunal in Europe. Who makes the decision if something urgent occurs in a criminal case here? Up to date somebody in the Attorney General's office made the decision. It is only right that things should be a regularised and that there should be a proper officer given the standing to control this work. I do not agree with the suggestion that the person who is Director of Public Prosecutions should be on an equal status, so far as qualifications are concerned, with the Attorney General.

The Director of Public Prosecutions will not appear in court. It is clearly stated in the Bill that he will be a civil servant and administrator with specialised know-how. I think this is the proper person to have in a position such as this. I would not be that happy about having a member of the Bar who had experience of either criminal prosecutions or criminal defences as a Director of Public Prosecutions. I shall probably be shot by the other members of my profession for saying that. I believe that a person with administrative experience and a knowledge of prosecutions is the ideal person for this position. He will want to know how various Departments work, how the administration of the Garda is carried out, how information is translated from one section of the Garda Síochána to another, how decisions are made, who makes them and at what stage. I cannot see any member of the Bar practising outside a Department of State having all the requisite qualifications. If he were a member of the Bar, he would have to be brought into the Civil Service to have a familiarisation course to equip him to carry out this work.

I have been 16 years practising at the Bar and the only criminal work I could do in those 16 years was to defend. With a Fianna Fáil Government in office I never saw the inside of a prosecution. That sort of thing is bound to have an influence. If a man does only one side of a case consistently, he is bound to have certain bias. I should hate to see a Director of Public Prosecutions who might have legal scars, if I may so describe them, because he saw only one side of the criminal law and its effect.

Is the Deputy suggesting that it is necessary to prosecute? Like the Deputy, I never had a State brief in my life. I never prosecuted. I defended several cases and I never felt I was at any disadvantage. That was when a Fianna Fáil Government was in office.

I am glad the Deputy has raised that point. I have had experience of certain members of the Bench who quite clearly showed a bias—if I may put it that way; I am certain it was quite unintentional—when it came down to an even breaking point; it could be one way or the other. In such circumstances I have had the experience of having a second prosecutor sitting on the Bench.

I am inclined to agree with the Deputy but I think defence experience is very important. I do not think it matters whether or not one has prosecuting experience.

Defence experience has this to be said for it: one very often has to build bricks out of straw. One sees the very human side of the case and the background to it. In many cases one tried to avoid knowing very much about the case because one might get onself into an embarassing position in the placing of questions to witnesses. One does, however, get an experience which is removed from officialdom and one comes up against the purely human element. That about sums it up. A very famous silk in England made it a rule, when defending in a major criminal case, not to see the accused. We all know that one question everybody asks every barrister is: "How can you defend a man when you know he is guilty?" This is trotted out ad nauseam. May I put it on the record of the House that a defence counsel is not concerned with the moral law or the rights or wrongs of a case. The simple issue is that a charge is preferred against an accused and the accused has the option of pleading either guilty or not guilty; when he pleads not guilty he is saying to the State and the prosecution that the onus is on them to prove him guilty. That is all.

You agree that where a lawyer knows a man is guilty he cannot proceed to act for him.

I had the good fortune of listening to a radio programme on which the late Mr. Justice Birkett was speaking and he raised this very point. He said it happened to him only once or twice. He also said it was a very unusual thing to happen. He added that in such circumstances, when one knows positively that the accused is guilty, one gets out of the case and hands over the brief. A rather awkward problem arises in rural Ireland when you go down to defend an accused. You get an extra statement in which the accused admits he committed the offence. It is known you are available to defend the accused and, if you do not defend him, it is known immediately that something is wrong with the defence and you are in a right jam. It has nothing to do with money and you just cannot pull out that easily in rural Ireland because, if you do, you ruin you client. You have to go into court and suffer on. You are, of course, limited in your defence.

This point about the Attorney General or some other person is to me a little bit of a legal nicety. It is quite obvious that those who drafted the Constitution appreciated there was such as office as Director of Public Prosecutions. In had been there since 1879. It came somewhat later in Scotland where they may have another title for it.

It is quite obvious that this was drafted to provide for that. It was never intended to do away with the office of Attorney General. This was drafted in such a way as to provide for the Attorney General and to retain the office of Attorney General, and to provide for the other office if it should be provided by law. When you see the words "in accordance with the law" it is quite obvious that it is making provision for legislation to follow on that clause.

I regard section 6 as being an important section. I must be quite frank about my attitude to some of the things that have been said about it. I regret to say that I find myself in complete and absolute disagreement with the views of the Minister for Lands, who is also a lawyer like myself but who comes from the sister profession. Section 6 deals with the prohibition of certain communications in relation to criminal proceedings. My own view is that it is very badly drafted. It makes provision for certain people being allowed to communicate with the DPP. Section 6(1) (a) provides:

Subject to the provisions of this section it shall not be lawful to communicate with the Attorney General, the Director or an officer of the Director, the Acting Director, a member of the Garda Síochána or a solicitor who acts on behalf of the Attorney General in his official capacity or the Director in his official capacity, for the purpose of influencing the making of a decision to withdraw or not to initiate criminal proceedings or any particular charge in criminal proceedings.

That is a very bad section because it is only one way. It is negative. It presupposes that proceedings have been started and, by virtue of that fact, it is a disincentive, to my mind, for people to go to the Director of Public Prosecutions and the Attorney General and their various officers if they have information. There are very many instances——

Would the Deputy not agree that the whole concept of putting a bar there is wrong?

There is no harm in having somewhat of a flak section, if I may put it that way, as some sort of a barrier. I appreciate that when the tear is in the eye, and when people are concerned that little Johnny is likely to be prosecuted, they will do anything to keep little Johnny out of trouble. Little Johnny might be the greatest little blackguard ever born, but his mother thinks he is like a lump of sugar and that he is a sweet little fellow. We Deputies, Members of the Oireachtas, have people coming to us in that sort of situation who cannot see the wood for the trees and who cannot see that they are, possible, responsible for little Johnny being in that situation.

There should be provision that a Member of the Oireachtas can go to these officers, not necessarily to make the Director of Public Prosecutions do anything, but to make him fully aware of the facts and the circumstances. My own experience in this House, short as it is, is that there could be a possible area of trouble arising in one's constituency and very often one could go along to the Superintendent and give him information, and possibly a little bit of advice about the situation, while leaving it to the Superintendent to make the decision. In other words, it must be his decision and he must be untrammelled in it.

If it is to be suggested that once it goes into the criminal sphere nothing can be touched, quite frankly I think that there might be interference with the constitutional rights of a Deputy to make representations on behalf of his constituents. On another plane, I know personally that, in dealing with malicious injuries claims for county councils, in many instances the county council got tremendous assistance from the public through the local representative. Many times I have held a brief for a local authority when there was a lot of crime of a certain nature in an area, perhaps interfering with cattle, or burning or damaging property. The Garda were absolutely unable to get to the bottom of it and the actual information came through the local political representatives. The people would go to them when they would not go to the local law officers. This is not a reflection on the Garda or anything of that nature. Something makes them stop from going as far as talking to a member of the Garda. This is a fact of life and we have to face it.

Anything that could be interpreted as blocking off the way of a member of the public from getting to authority with any view must be decried and must be stopped. We should make it as open as possible. If it is fair the public will co-operate in the administration of justice. One could go on talking about this aspect forever. I am a bit puzzled that in section 6(1) the difficulty only arises where the communication is for the purpose of influencing the making of a decision to withdraw or not to initiate criminal proceedings or any particular charge in criminal proceedings. You might as well ask why not cut out the person who comes in and looks for criminal proceedings to be instituted. He could be a trouble maker in the same circumstances. Paragraph (b) provides:

If a person referred to in paragraph (a) of this subsection becomes of opinion that a communication is in breach of that paragraph, it shall be the duty of the person not to entertain the communication further.

Somebody said that is discriminating and insulting. In actual fact, basically speaking, they are the only few lines in the entire Bill that are any sort of a guideline in relation to the office of the Director of Public Prosecutions. It is not insulting to the office of the Director of Public Prosecutions and it is not discriminatory. It gives the actual holder of the office statutory power. It gives him something to stand on. He can use it to say: "I do not have to listen to you".

We have seen cases of heads of State being in trouble over small things and tumbling. Please God it will never occur here but we could have a bent Taoiseach who might put a lot of pressure on a Director of Public Prosecutions. This is the sort of sections which gives a Director of Public Prosecutions the right to stand up and tell the Taoiseach to go about his own business and let him to his duty. It is being completely misread by the learned Members on the other side of the House.

I am also critical of this section because certain people have been excluded in subsection (2). A member of the family is included but I notice that uncles, aunts, nephews or nieces are excluded. I can see no reason for not putting them in because it often happens that they are close to the accused person. They are the type of people that lawyers and judges have to rely on in court when it comes to the question of giving evidence as to the character of a person or of the person's background. If these people are regarded as being the type of people who will be listened to by a court of law—maybe sometimes they are listened to with a grain of salt because of their relationship—why are they not included in that section? People who are within the Adoption Acts are included. This may be an oversight but I hope it will at a later before the Bill is dealt with at a later stage.

Members of the Oireachtas should also be included. We are all asked at times to make representations, very often in impossible circumstances. When people come to us and make fair representation it is known to the recipient of that representation why we are making it. Very often by accident a line in a representation can open up a line of inquiry in a case. I have had that experience in dealing with what I could call non-political matters and it should be remembered that 99 per cent of the work a Deputy gets is non-political. I have had the experience of accident-have touching on something that has changed the face of a case. It was not a touch of genius but I was fortunate in making a certain remark.

I adhere to the view that I will not touch anything dealing with criminal law, no matter what the fee in my professional capacity in my constituency. I have done that deliberately on the basis that if people come to me with a problem, be it the Garda authorities or a member of the public, I can take a free and unbiased stand in the matter. If it is a district justice or a judge who is giving trouble and representations are made to me or something has to be done, I can say I am not tied or committed and that no client of mine is going to suffer if I have to attack or make a statement about something. It leaves me completely independent and that is why I do not like this section. I regard it as a very serious reflection on the Members of this House. We should be included in the category of those entitled to make representations provided we do not use undue pressure to try and make the Director of Public Prosecutions change his mind. We are entitled to make fair and reasonable representation.

Very often it happens when a Deputy makes representations on behalf of a constituent that the official in the Department will ask that Deputy if he knows anything about that person. It is the job of all Deputies to co-operate with Departments and not to play the cute boy by getting something one is not entitled to.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

In relation to section 8 of the Bill I am not too happy with the wording in relation to the documents signed by the officer. That could give rise to legal difficulties. The Department should have another look at it. For example, what about the date of the document? Would it be the Attorney General for the time being on the date of the document? Does this section give sufficient authority to the certificate that is given by the replacement person to be accepted as evidence? Would it have the same force as the one signed by the Director of Public Prosecutions himself?

As Deputy O'Malley is back with us and as I do not wish to be regarded as a person who says anything in the absence of a Deputy, I take the opportunity now of telling him that I did not think very much of his contribution, particularly of his attitude to the Judiciary. That will have a very bad effect.

I am really very worried about that.

I know because the Deputy spoke with a certain flippancy. I would describe it as being rather like a green university student in his first debate in college.

A matter came up in the last speaker's contribution which I think is basic to the whole approach to this problem. Deputy Esmonde mentioned that the public do not often understand what is the basis of our legal system—what is the function of a judge, a prosecution and a defence. I cannot go the whole way with Deputy Esmonde's interpretation because I would be a little more rigid. It is so many years since I took part in these matters that perhaps I should not comment on it in too great detail.

Nevertheless, the principle is that a prosecutor represents the community and it is his duty to lay a charge before a court, to produce evidence and to prove that the accused is guilty of the crime concerned. It is the job of the defending counsel, to put the other side of the case, if the accused pleads not guilty to bring forward everything to support the plea of the accused and it is the duty of the court—that is the judge and the jury—to decide the issue. It is important to be clear on what are the functions of these three parties which are designed to ensure that justice will be done in the community. It is accepted generally that the prosecutor will not hound the prisoner, so to speak. It is a basic principle both of English and of Irish law that an accused person is entitled to the benefit of any reasonable doubt. As a corollary to that it is the accepted professional and legal practice that the prosecutor while, not pulling any punches and presenting his case fairly and squarely, must act with scrupulous fairness and must resist the temptation, if such there be, to hound the accused. On the other hand, because the accused being in jeopardy is at a disadvantage, the defence is accepted to have more latitude and is expected to fight as hard as possible to establish the innocence of his client.

To digress slightly for a moment— it might be as well from the point of view of the public to answer the question formulated by Deputy Esmonde, a question that is asked very often, that is, how can one defend a man who is guilty? The answer to that is that one does not defend a man who is guilty. One may have suspicious but one should not take a case where one would be called on to prove to be true something that he knew to be untrue. However, although one may have suspicious and be of the opinion that an accused has not a very good case, it is one's job to do the best possible when the accused pleads not guilty. There would be no breach of morality involved.

Deputy Esmonde has told us that he never instituted a prosecution under a Fianna Fáil Government. I have never instituted a prosecution during any administration although I have defended many accused in my time. It is the function of the court to judge. This is not a task either for counsel for the community, that is, the prosecutor, or for the counsel for the defence. The theory is that the wrestle between the two—the prosecution and the defence—will bring out the truth in full perspective and will enable the court to reach true judgment. We are concerned here with one party only but as the matter was raised by Deputy Esmonde it is no harm to restate the situation and, in particular, to answer the questions regarding the function of the defence.

Therefore, a public prosecutor is some body who has been commissioned on behalf of the community to bring an accused person before the court, where his delinquency will be dealt with according to the law and the interests of the community. In order to do that a prosecutor is motivated by two factors. In the first place there is the person who commissions and authorises him to prosecute and secondly, there is the organisation that provides him with the evidence and the material with which to prosecute. This means that there must be a person such as the Attorney General or a Director of Public Prosecutions who would assess the case initially and advise whether the community would take action. That person would be responsible ultimately for a prosecuting counsel or solicitor appearing in court to take a case.

On the other side there is the organisation—the local State solicitor or maybe, the chief State solicitor, the gardaí and the other people involved in the mechanics of the case. Therefore, it is clear that there must be somebody in the State to control the bringing of prosecutions and who, in the ultimate analysis, makes the decision as to when or when not to prosecute. Up to now this function has been carried out in this country by the Attorney General. I have no objection in principle to having a Director of Public Prosecutions as well as an Attorney General. The case for this situation can be defended and has been defended on the grounds that in modern times the burden falling on an Attorney General is such as to preclude him from being anything more than a rubber stamp where routine prosecutions are concerned. It is clear that another officer is needed. That case is substantiated by the fact that since our joining the EEC, there is a great deal more work for the Attorney General. Of course, there is always a great deal of work for an Attorney General as the Government's confidential legal adviser. Also, the Attorney General and his Department have an interest, of necessity, in every Bill passed by the Oireachtas.

It is agreed on this side of the House that a case can be made for the appointment of a Director of Public Prosecutions but naturally, there are differences of opinion as between a Government and an Opposition. Apart from an Opposition's duty to say everything that can be said against any measure before this House, there is room for legitimate arguments among ourselves. Should a Director of Public Prosecutions be a permanent civil servant? I know under the Bill a barrister of ten years' standing will be accepted. But will ten years' standing include any time spent practising in any legal function in the Civil Service before the date of appointment? If it does not, it would not quite mean ten years' practice.

Is this a good principle? It has been accepted that an Attorney General changes with the Government, and that is right. The Attorney General, apart from his function in Government as an administrator of justice, is also the Government's confidential legal adviser. It is patently clear therefore that the Attorney General should come and go with the Government.

Is it not desirable that the Public Prosecutor shall be in the same position? Like the Attorney General, the Public Prosecutor will be dealing with matters of policy with regard to prosecutions and Government administration of law. He should be in a position to take that responsibility. If democracy is to function, it is desirable that at the pinnacle of every point, that the representative elected by this Dáil to carry the ultimate responsibility should be responsible in the same way as a Minister is ultimately responsible to the electorate. These are policy matters. It is a principle of democracy which we should adhere to. It is getting away from democratic principles to appoint permanent officials at the top.

I regret that, when speaking on such matters I sometimes give the impression that I and the House are antagonistic to civil servants and public servants. I disclaim all such intention. The permanent Public Service is vitally important. It has been the solid framework of this State for 50 years with an integrity and reputation which is very fine. That is needed. My point is that we must not undermine this by putting on the permanent public servant a type of responsibility not properly designed for him and which, in a way, could be an eroding influence on the permanent structure.

The Director of Public Prosecutions may be in the category which, like the Attorney General, should be political. The position should carry responsibility and change with the Government. I am talking now not about any particular principle but generally. If anyone is permanent, irremovable and not subject to the democratic process then, by nature he becomes subject to tensions of what I might call paternalism. A permanent civil servant must see things differently from the rest of us. His balance is as important as ours. Democracy works by the interplay of the two. Very often it is the head of a Department who keeps his Minister on the rails. I have had experience in the service of the State. I experienced irritation at the inefficiency of democracy, the desire to get a job done and the certainty that my own point of view was right. This is how undemocratic processes develop. The most dangerous thing is this paternalistic approach operating through the mind and personality of someone who is able, honest and of unquestionable integrity. By these very virtues he is turned into the "I know best" paternalistic channel. Is it advisable that the Director of Public Prosecutions should be a permanent civil servant? There will be too many other factors at work here.

I have laboured this point from the point of view of the dangers of his being a civil servant. To my mind, that should be the least worry. This is a symptom of a decline in the accepted standards of public morality and responsibility in public life. It also reflects—I am not accusing the Government of this because I am speaking in general terms—the less worthy motive: that it is a way of getting over a difficulty and an embarrassment.

With regard to public responsibility and the integrity of men in public life, nobody, as far as I know, since the foundation of the State, has questioned the integrity of any Attorney General. I see no reason why anyone should question the integrity of a Director of Public Prosecutions appointed politically in the same way.

With respect to the Deputy, one of his colleagues has just accused the Attorney General of gross patronage in the exercise of his office which surely is a reflection on the present Attorney General.

I did not hear it; I was not present. In this case, the Minister will pardon me if I ask time to check the record. I do not want— and I hope the Minister will join me in this—to treat this point with anything but the deepest seriousness.

I appreciate that.

One should try to avoid casting aspersions of any sort on any party with whom one is dealing. This was my embarrassment when talking about the public service lest, in making that point, it should be thought I was casting a slur on it. I was not but, in the same way, I am saying that there is a case, I believe, for appointing a public prosecutor on the same terms — a man of integrity. If one looks at this the other way round, there is an implication that a man who is elected—and this is a slur on every Member of this House —is in some way not to be trusted. I am sorry to say that the cut and thrust of politics too often brings in this unworthy suggestion about Ministers, of whatever Government, or anybody else.

I had made the point before the Minister intervened that, up to this, Attorneys General have been accepted as men of integrity. So, too, a public prosecutor, duly appointed for the term of office of a Government, should be in the same position and accept the responsibility. It is unfair to put the responsibility on a public servant and unfair to the service. In an analogous way we had an example today in the news and the doings of this House which may serve to illustrate my point. After declarations made by members of the Government and so on, it has been necessary for the Minister for Justice to make certain explanations, both in the House and also on the radio in regard to why certain things happened and why certain action was or was not taken. Surely it is correct that the responsibility for making that statement lie with the Minister. But it is equally apparent that problems of that nature are not solved by opening a book, finding the rule and quoting it. In other words, there is a political function. Just as Deputy Cooney, the Minister for Justice, today had to assume and carry responsibility and exercise his judgment to the best of his ability—and thereafter everybody else down along the line would conform—so too a public prosecutor will find himself frequently in that position. In fact, he will be a truncated Attorney General, an Attorney General without the other duties of an Attorney General.

My view is that this House should consider very carefully the whole principle involved. To my mind this belongs to the Second Reading; the rest of the talk on the Bill is Committee work—whether it is wise to have a public prosecutor who is a permanent servant; whether it is fair to the Civil Service, because you are going to ask of a permanent public servant what in effect is political responsibility; whether it is the right thing for the community; whether it is not better to insist on the integrity of the public representative and to acknowledge it is there because I believe that, by and large, the integrity of public representatives in this country measures up to the standard of integrity anywhere else in the community. Naturally, that is so; it is representative of the community. For instance, I believe there is as high a standard of personal integrity in this House as anywhere else. So much for what I might call the case on abstract argument.

I come now to what I call the less worthy side. I rather fear that the genesis of this Bill in this regard emanates from two things which I do not think do us great credit. In this country, from former days, the traditional method of selecting prosecutors or, shall I say, the political parallelism between legal process and legal appointments and political life, was too close. When I say that I am not contradicting what I have said about a public prosecutor. There is an infinite difference between a public prosecutor, the man at the top, and the people down along the line doing the job. Therefore, let us have no confusion there. That is one of the reasons why this Bill is being introduced. Frankly, I am inclined to agree with the people on this side of the House who say that this Bill is, or may be, in practical effect, window dressing, though I do sympathise with the Attorney General in his efforts in this matter. I believe that the Attorney General has the best intentions at heart in this approach but that is not enough to justify this radical step which could have greater disadvantages, as I have tried to indicate.

The other and less worthy side would, and does, amount to an attempted dereliction of duty in the sense of, for a lot of us, throw the thing away, get rid of the awkward problem. Everybody knows that people, at some stage or another, will bring influence to bear on such a matter of public prosecution, as Deputy Esmonde says, and sometimes approaches are quite justified. It would be much more convenient for an Attorney General or a Director of Prosecutions to have a black and white law and say: "out", just as the Civil Service Commission have a rule—a desperately convenient one for public representatives—"canvassing will disqualify". There that rule is valid, desirable and, from the point of view of the person who may be asked to make representations, very convenient. But, on the question of criminal prosecution and all that area, that does not hold; it is too dangerous an area. I think the public representative will have to carry his responsibility. Whether it be the Attorney General, the Director of Public Prosecutions, or the Minister himself, there will be many occasions when the problem will crop up for judgment and the person who has to make the decision and/or be pestered —if one likes to use the word—with representations may often wish there was a rule like the no canvassing rule that would relieve him of the burden. But it is not right from the community's point of view: he should not be relieved of the burden.

Hear, hear.

This is the way I look at it: it is a slur on public integrity. I think it is not sufficient justification to say that you must have a permanent man, to hedge him round, to make him permanent so that he can thumb his nose at everybody from this House downward—and this House as well for that matter—to protect him in that way, and then let him do what he likes. The real answer is that you must have a man to do this important job who is a highlyhonoured and important person in the community. It may be a worrying job but he is there to use his judgment. On that approach again I query the soundness of the fundamental point in this Bill that the Director of Prosecutions is to be a civil servant. I do not mean that in any slighting way. I have the greatest admiration and regard for our Civil Service. Please God, it will continue to maintain the standard as it has done in the past. There is no reflection on the Civil Service when I say this; they have their own important job to do. Those who have been a long time in the House find that the longer they are in contact with the Civil Service the better we know the high standard of that service. It is no reflection on them to say that this is not their job. It is another kind of job and it is not right to hedge that job at their expense because there are difficult problems of judgment involved or because one is subjected to the nuisance of importunate representations.

Will be not know what to do with them?

Yes, but I suggest he should be like previous Attorneys General who, as far as I know, have never been guilty of dereliction of duty of that sort. I was in the House quite a number of years ago when it was common for people to hound the Minister for Justice— the Minister's predecessor, I think— about prosecutions or endorsements or matters related to motoring offences, particularly cases of being drunk in charge. This was—if I may use the term—a hell of a problem for the incumbent of that office because, as Deputy Esmonde rightly said, this could be a political problem and people did not understand that Johnny-So-and-So, who had such a record, could not be treated as a special case. The particular Minister —I forget to which Government he belonged—with a great song and dance said: "No intervention; I will not function. What the court says is there and that is that." That was a very convenient decision and there was much to commend it but, unfortunately, a Minister has functions in these matters to deal with the odd case where something has either genuinely gone wrong or where there is a genuine mitigating circumstance.

Or the case we do not like admitting, a very badly conducted defence. I have known in such a case a person to be wrongly convicted or being convicted and given a double sentence——

There have been cases of wrong decisions. I am leaving out for the moment the making of representations. I do not want to delay the House but in all earnestness I appeal to the sponsors to reconsider the matter. I am not clear whether it is the Minister for Justice, the Attorney General or the Taoiseach who is sponsoring this Bill. The Parliamentary Secretary is here and is an expert in jurisprudence and I appeal to him to consider this point: whether there is not confusion here and whether it would not be better, while admitting the desirability of having this office, to have either a Director of Prosecutions' Office which would go in parallel with the Attorney General's Office, with the Government and accept fully the case made that the Attorney General cannot carry this burden and that the office should be there or have some other rotatory arrangement. I fear that although you may make the bed very comfortable you may bring a rigidity into this matter that will completely defeat the basic equity of law and that further by asking the permanent service to adopt an office which is not properly adaptable to it, you are introducing something which is not for the benefit of that service.

Suppose the Director is a practising barrister who has not yet been in the Civil Service, once he gets this job will he not effectively be a civil servant?

Under this Bill, yes. That is what I am arguing here.

Is the Deputy against the Bill in principle?

I am not. I accept the case for a public prosecutor on the grounds that the Attorney General cannot carry the whole burden. I also think that by setting up the office matters can be tidied up but I think it is more in the nature of a political appointment that should go with the Government as the Attorney General goes, and that it should not be a permanent office in the State. I support that view on the grounds that the present proposal is prejudical to the State service, that it is conducive to paternalism, that is a convenient method of evading responsibility, analagous to the little addiction of modern democratic governments when they meet a problem to handing it over to a commission. It also represents a dereliction of our own responsibility. You cannot cut the life of the community—particularly its legal life—into nice, tidy sections; there are things in between, as Deputy Esmonde said, and he is a very experienced practising barrister.

I had a little experience as a practising barrister but I think we would all bow to you, Sir, in your professional capacity as a lawyer. I am making this case to you confidently believing that you will understand it. You will put me in a difficult position if you ask me: "Are you going to oppose the Second Reading on that point?" Left to myself I probably would, but I am not sure the rest of the House completely share my views. Yet, I want to press them home and the very fact that I am in a minority in my views is all the more reason for pressing them home as strongly as I can. I have not practised for many years but Deputy Esmonde is in practice.

Does the Deputy not fear that shutting out representation is a serious matter and might have constitutional implications?

I am coming to that on another section. Two separate things are involved here. One is the question of the public prosecutor who must make the type of decision and look at the problem in very much the same way as the Minister for Justice looked at the matters today.

The Minister has since come into the House and perhaps I should repeat what I said. Today the Minister for Justice was in the position, in this House and on the radio, of having to accept responsibility for judgment and guidance as a Minister. That was his job but it was quite clear that the matter with which he was dealing could not be divided neatly in two, saying one was black and the other white. In the proper sense, he was functioning as the political head. A Director of Public Prosecutions will be in that kind of position quite frequently. It will not be all cut and dried. It is not a question of looking through the book of rules, saying a person is guilty or is not guilty and of making a decision whether to prosecute.

Today the Minister had to go into explanations why the law could not be applied just in black and white. Since the foundation of the State this has been the function of the Attorney General. For anything outside petty, individual crime, the Attorney General had that kind of problem with which to deal, and often it was the problem of the Government of the day, although the public did not know it. This has been a fact and reality of our life for 50 years. In this Bill we are effecting a much greater change and revolution than we realise by the mere fact of converting this function, which was the democratic function of the Attorney General, into what will be the bureaucratic function of a permanent civil servant. The Parliamentary Secretary need not react too fast; I do not mean my remarks in a slighting sense——

They do not make sense to me.

I used the word "democratic" to reflect the political and elective nature of the Attorney General and I use the word "bureaucratic" not in a pejorative sense but in the sense of official administration.

There is nothing in the Constitution which declares that the Attorney General should be democratically elected. The majority of them have not been.

I did not say anything about the Constitution. Every Attorney General since the foundation of the State came in with the Government. Admittedly he need not have been a Member of this House but he was appointed by the Government and he kept office on the same terms as the elected Government. The Parliamentary Secretary should not try to fog the matter with technical details. I think Deputy Esmonde will agree that the grandest thing about our law is that it is not all that technical——

It has to be accurate.

The layman's idea is that it is all tied up with technicalities. In the words of Gilbert and Sullivan, may I say to the Parliamentary Secretary:

In a contemplative fashion, And a tranquil frame of mind Free from every kind of passion, Some solution let us find.

I would ask the Parliamentary Secretary to accept my bona fides in this matter.

Of course I do.

If I make a mistake perhaps he will correct me. When I used the phrase I weighed my words. It is the civil servant's job to be bureaucratic in the proper sense of the term; the words I used were merely an accurate description in this case. This is the revolution envisaged in this Bill. I do not think the point I am making has been raised by anyone else. I am raising the question whether it is desirable that the public prosecutor, this chip off the old block of Attorney General, should be translated into the Civil Service. I do not think it is for the good of the Civil Service and I do not think it will be for the good of the community where the direction and control of prosecutions are concerned.

I now come to a matter which concerns the functioning of the democratic process and the responsibility of this House and the elected Government who have to govern in the name of the community. It touches on the question of law enforcement. I do not think I can avoid talking in some general terms about law enforcement because the person directing prosecutions, whether it be the Attorney General or a Director of Public Prosecutions as I have advocated or as envisaged in the Bill, will have to take congnisance of the state of the community and the facility for law enforcement. His judgments must be conditioned accordingly, even as the judgment of the Minister for Justice was conditioned by these same factors in what he had to say today.

It is a question whether there is a law there or not. The function of the Attorney General is to prosecute within the law.

I am talking about conditions of judgment. An interesting question arises on this, as the Minister has more or less put it into my mind. In order to get us into a more detached atmosphere, I will cross to the other side of the water and will not deal with this Minister. I do not want to cloud the issue by bringing him into this particular case. In Britain at the moment a question is being debated whether certain people are to be prosecuted and a consideration will be the public environment and the effect on the public. It is clear it will be a political decision in the long run, and this is right. The word "political" is not something to be avoided or something of which we should be ashamed; I mean "political" in the best sense. A Director of Public Prosecutions will have to take these factors into account before he decides on prosecution. If a large number of people are involved in the same type of offence, clearly it is going to be a horrible dereliction of responsibility if it is worked out that only one or two will suffer while the rest get off scotfree. Already there is too much of that in modern democracy. A public prosecutor will have to look to the equity of the whole lot, and in looking at the equity of the whole lot he will have to look at his facilities——

At the practicality of each case.

It is highly undesirable that I should be prosecuted for a particular offence and somebody beside me, equally guilty, is not prosecuted. Take the enforcement of the Road Traffic Acts, as the system that has been developing here. Take speed traps. Everybody knows that owing to the strains being imposed on the gardaí, at the utter impossibility for them to cope, also knows of the fatuity of the Department of Local Government—I should not say the Department, perhaps, but at those in it who are responsible—when they make regulations by the dozen. Local authorities make regulations by the dozen and neither of the two bodies shows any regard to the possibility of enforcement. I have posed the question of speed limits. About 90 per cent of the population break them every day of the week. Then there is a speed trap and a few people are caught. Is that not obviously inequitable, damaging to community morale and bringing the law into contempt?

Would the Deputy tell the House in which respect the appointment of a public prosecutor——

He will have to weigh up this——

So do the gardaí and the Attorney General.

Will the Parliamentary Secretary let me finish the argument I was about to make? Then he may learn what I am about to say. For argument's sake, supposing that for some particular reason in one particular place there was a sudden burst of the 30 miles per hour limit. Such operations have occurred. A public prosecutor will be a State servant governed by the mechanical law and he may say: "Prosecute, prosecute." Surely that is an occasion which in practice is handled by a chief superintendent as a matter of policy. He will use common sense. What I am trying to say is that a public prosecutor will have to have regard to the facilities for enforcement, to the uniformity of the law, to the practicality of enforcing it and even to the question of whether the penalties can be enforced afterwards. Do we not all know that one of the reasons why the Garda are in such difficulties at the moment is that it is often felt they are not backed up sufficiently by way of sentences and the enforcement of penalties?

The facilities are not there. The justices know they are not there—that the facilities for enforcement are not there. The Minister knows that for cost reasons the facilities are not there. Surely these are all factors that a public prosecutor must take into account. They are political factors, not proper factors to be dealt with by a public official.

What I am arguing for is that this public prosecutor will be in one category rather than another. He has to take all these factors into account which means in the end that political judgments will have to be exercised. Such judgments should be exercised by people who are politically responsible to the people through elections. To evade it would, as I say, be a dereliction of our democratic responsibility.

The Taoiseach will be accessible——

That raises a more interesting point still. If you are going to make that case then you are making a very dangerous one altogether. Heretofore, the Attorney General, though he is the law officer and confidante of the Government, is the head of the Bar, a law officer recognised by the Constitution, a man who has and is expected to have a high personal responsibility and integrity. If you are about to mix that with the political responsibility of the head of the Government, you are getting into very shaky grounds.

I cannot make out whether the Deputy wants it to be political responsibility or not.

I want political responsibility but I want it to be carried by somebody who is seen to be carrying it.

The Taoiseach is responsible, as everybody knows.

If the Attorney General has too much to do to carry the job of Director of Public Prosecutions, and the Deputy tells me the Taoiseach has more on his hands——

The Deputy knows quite well I am not saying anything of the sort.

I had hoped the Parliamentary Secretary would let me develop my point. I should rather do it in a quiet way. The implications of that are horrifying. I will leave it at that.

The Deputy is very wise.

The standard of integrity of heads of Government is not in question here. It is a question of how democracy should function. Before I leave the question of status I should mention the point that elected representatives and their representatives, like the Attorney General, have as high a standard of responsibility and integrity as anybody else in the community, and what is more, they are expected to have the highest standard in the community and the community should insist on it. The remedy is not to hedge around because that standard is not maintained: the remedy is to have that standard maintained by fixing responsibility.

With those remarks I will come to the point of view that there is much in this Bill that I accept. I accept the case made for the appointment of such an official but I believe he should be analogous to and concomitant with the Attorney General, that he should change with the Government because he will have to carry political responsibility in the sense of having to participate in the making as well as the implementation of policy affecting his administration. For these reasons I would set him up as a Department.

I have been a little longer on this than I might have been had I been allowed by the Parliamentary Secretary to continue in my own way so he must share the blame for delaying me. I most earnestly commend my point of view to the Parliamentary Secretary who is without peer in his professional position. I would like him to consider what Deputy Andrews and myself have said. There is at least this to be said, that we have both spoken from practical experience of the matter elsewhere, and also from experience in this House and experience in politics.

Now I want to come to the question of the section which prohibits approaches to the public prosecutor. This is something I feel very nervous about. Of course if you admit the view that there are people coming along who with threats, blandishments or bribes are getting at people who have to make decisions, then I suppose I cannot say very much about the section. I know that unworthy things are said, and it is time for somebody to stand up in this House and ask: Is that the position? I believe it is not. I have been in public life a long time and I have yet to find substance for such a charge. I know it causes a great deal of embarrassment; I know that approaches are made. There have been instances where all sorts of things, from blandishment to bribery, have been tried, but I am not aware of any case in which this has had a significant effect on the functioning of democracy. Nor do I know of any Member of this House who is open to any charge or suspicion. It is always some vague somebody else. This kind of slur, this kind of repeated slander, can be very harmful. It is time to assert that in political life, as in our public service, there is the highest standard of morality and integrity, that, in spite of our vehemence towards each other at times, when it comes to standards, there is as high a standard here as you will get in any other country.

Therefore, I fail to see why there should be an implied admission that there is substance in the slur by writing a section such as this into a Bill to be passed by this Parliament. I am certain, of course, that is not the reason why the section is in. I am afraid, as I said earlier, that the reason the section is in is more to save trouble, embarrassment, and things of that nature, than anything else. I shall also go so far as to say that possibly—and I hope the Parliamentary Secretary is listening to me now—if the Taoiseach, and the Parliamentary Secretary, who is in his stead here, insist on going through with the Bill as it stands, then I suppose there is a strong case for hedging your civil servant public prosecutor around with these defences. But I will say then: the very fact that you have to do that brings you back a long way to establish my first point, that that is not where he should be.

However, leaving that out for the moment, again there will be cases where it is very proper that anyone should make a representation. Suppose that A is to be prosecuted by the Attorney General, what is wrong in principle with my approaching him and saying: "I would like to lay before you reasons why he should not be prosecuted." What is wrong with that? It is a totally different matter if I go up to the prosecutor and say: "If you prosecute him I will get you." If I say that to you what you should do is get me right at the moment.

It is a question of: "If you prosecute him I will lose my seat." That is what we are talking about.

If it is a TD, he would deserve to lose his seat if he put it that way.

I do not dissent from what the Deputy is saying, but that is the reality of it.

I am less academic in dealing with these matters than perhaps the Parliamentary Secretary, and I have yet to find a TD stupid enough to do that. Give us credit for a little common sense.

Would the Deputy consider that the two questions he has asked were really the same question asked differently?

If the Minister would allow me to come back to the points I was making. Suppose the Minister was the prosecutor, is there any reason why I should not come along and tell him why I think the prosecution should be brought, if it is bona fide? In all fairness, it is only bringing another facet to the prosecutor's mind. He has to make the judgment. It is a totally different matter if I try to bribe or threaten him. He is the public prosecutor and the proper answer for him is to prosecute me. If I try blandishments on him and say he is the grandest fellow that ever lived and I will vote for him in the next election, he should invite me to inspect the flies on him; he should just laugh at me and pay no attention to me. I am merely making a fool of myself. If I went to the present Attorney General and either threatended or tried to bribe him, how far would I get? He would prosecute me straight away and he would be perfectly right. If I tried to talk soft, he would probably smile politely and pay absolutely no attention. Is that not the straightforward thing to do instead of headging it around with a whole lot of complications? It does not make sense.

To come back to the positive dangers of a prohibition of this nature, as Deputy Esmonde pointed out, there have been cases—I am afraid it is inevitable but thank God they are very rare—of a miscarriage of justice. It is highly undesirable that courts be interfered with. It is most important that the whole legal process, the prosecution in court and so on, should be as it is traditionally. Who are the representations to be made to? Before whom are the facts to be brought? Deputy Esmonde also pointed out that there are different types of representations. I may know, for instance, that the accused was with me in perfectly innocent circumstances at the time. Suppose that down the line this has been brushed aside.

It is highly desirable that every bit of information should be put to a prosecutor—can I not go and tell the prosecutor that? By hedging in a prosecutor like this you are removing part of the general democratic control of the enforcement services down the line. It is bad enough to have them not supported but now they are isolated. Most Deputies will refuse to make representations unless they are convinced that there is substance and reason for making representations.

I think the Deputy is the man in the ivory tower, not me.

I have a lot more practical experience than the Parliamentary Secretary has.

I am inclined to doubt it when I hear that.

I mean in political life. Here is a case I came across. I was not personally involved. A girl was found at a drug party. It is questionable whether she took drugs or not but because she was there she was to be prosecuted. There was a certain history there. The impact on her was such that the TD concerned was convinced that a suicide was inevitable if it went on. Was that not a factor to be taken into account? Was he wrong to be instrumental in leaving that at the door step, so to speak, of the person who had to make the decision? Was that wrong? Was that corrupt?

Has the Deputy looked at the categories of people who are allowed to make representations?

This legalistic——

Listen, Deputy, we are making law. Do not use the word "legalistic" as if it were a bad word. We are making law and we have got to be legalistic. Do not use the word "legalistic" as if it were a bad word. What we are doing here is making law.

Of course we are making law and by putting in legal, technical details we are making a hames of the law. It is the type of law academic lawyers, who never were in a court, revel in.

I think I was longer at the Bar than the Deputy was.

Will the Parliamentary Secretary just let me finish? I will not interrupt the Parliamentary Secretary. When I said "legalistic" what I meant was legal, technical detail.

What is law but technical detail?

There is a lot of principle and historical background in law and the courts are more guided by that or were up to this than——

(Interruptions.)

The very fact that you have to go on with words and exceptions and specifications in an Act is a sure indication of defects in the Act, not of virtue. The ideal Act is a simple, straightforward document like the ideal will.

Or the 1922 Constitution.

The 1922 Constitution had its points. So has the present Constitution.

I drew the Deputy's attention to the fact——

The Parliamentary Secretary can make his own speech. I will make mine.

I think the judge will have to be called in here.

The very fact that you have to go into that kind of legalistic detail——

Is it legalistic detail to cite the Bill to the Deputy?

The longer and more complex a Bill is the worse it is.

It is about six pages long.

I think the Minister will agree with me that the ideal Bill, like the ideal will, is short and direct.

Not necessarily.

This section is highly undesirable. It is just an evasion of responsibility, an attempt to shut out the necessity for making a decision or dealing with a problem, to cover a thing globally, to hedge something around. It is highly dangerous and wrong. Here again there is confusion, there is the implication that the person concerned has neither the integrity nor the guts to stand up and make a right decision. This section implies that the person who has to make the decision is lacking either in moral fibre, integrity or other necessary quality to make the decision.

I have already mentioned the difficulties that are found when prison accommodation and the facilities for enforcing penalties are not adequate. We know those administrative factors come into it. We know that even people who commit the greatest crimes are freed very quickly. A man may commit murder nowadays and serve much less than ten years. The factor in these cases is not always the do good of penal philosophy; it is very often the hard fact of accommodation and the difficulties of the administration of the penal code. This goes for all countries.

That is not a criterion for mitigation in that sort of crime.

I will accept what the Minister says but the Minister will agree it can be a factor in the case of trivial crime. There is the question of the resources of the police. The Garda are under-strength, under-supported by this House, by the Government. It has been so for a while. The Garda are in a very difficult position in the role they are being asked to play. These are all factors that a public prosecutor should take into account. I am a little bit inhibited from going into the matter for two reasons. The first is that I do not want to stretch the relevancy of the debate too far and the second is that I think sometimes I make comments that might not be helpful. I have no desire to indulge in that. I have said everything I wish to say and I would like to make peace with the Parliamentary Secretary before I sit down.

I am sorry for being disorderly.

He is a man I have great regard for. I bow to his expertise as a lawyer. If I have said anything I should not have said, I take it back.

So do I.

I think we should discuss a matter of this nature without passion. I would like the Government and the Parliamentary Secretary to consider if there is substance in my point that the Director of Public Prosecutions should not be a permanent official, a member of the Civil Service, in the interests of both the Civil Service and the office concerned. I think I am alone in the House in making this point as I do not think anybody else made this case. Deputy Esmonde and myself found ourselves on common ground perhaps from a common origin in legal practice. I wonder if the no canvassing rule is wise. These are my two comments on the Bill. The first goes to the roots of it and must be decided at this stage. The second can be adequately dealt with on Committee Stage.

I welcome this Bill because it attempts to deal with two things which have been part of our legal system up to now and which are capable of being criticised. Firstly, the Bill removes the taking up of prosecutions from the political arena in that the decision to take them can be seen henceforth as being divorced from political consideration. I know Deputy de Valera argues that this consideration should be a very live one in the decision of whether or not to prosecute. I disagree with him rather strongly on this.

The second objective is to remove the distribution of State work from the area of political patronage. This is something to be commended. It has been tolerated for far too long as part of our legal system. The fact that it has been tolerated and operated by both sides of the House does not validate it and I think the proposed change is good. There is, of course, the third effect of the Bill but it is tied up with the principle of the separate office of Director of Public Prosecutions, that is the positive provisions of section 6, making it unlawful for anyone save a limited category of people to make what we euphemistically call representations to those who might yield to influence whether or not there would be a prosecution.

I will take the question of patronage as regards State work first. I heard most of what Deputy Andrews and Deputy O'Malley had to say with regard to this. I took the burden of their complaints to be that they were glad to see the system ending although neither of them, so far as I can recall, said so in definite and unequivocal terms. They criticised the Government for having operated the old system up to now. They conveniently forgot that our predecessors, and all the Governments preceding them, operated the present system. It was by and large a system where State work was distributed on a patronage and a politically motivated basis. It was hypocritical of Deputy Andrews and, to a lesser extent, Deputy O'Malley to come into the House and criticise the Government for continuing for the first year of their office the practice they found operating when they took office.

It was perverse of Deputy Andrews, in particular, to say that it was hypocritical of the present Attorney General to seek to change a system which he had operated. What could he do but operate the system which existed? The burden of Deputy Andrew's criticism was not the principle of political patronage in this area but rather a question of degree. He was saying to us: "You fellows are being more political than we were. Our Attorney General gave some briefs to you fellows when you were in Opposition but your Attorney General is giving no briefs to our fellows." To me that was like a child being deprived of his sweets. I would have preferred to see an honest acknowledgement that the system we have had since we came into office existed in the State since it was founded and an honest welcome given to this Bill.

There was something distasteful about Deputy Andrew's speech when he talked about research into this area and the intimate and rather gossipy world that is the Bar Library. One can imagine the gossip that lead to Deputy Andrews make up his list of who got what brief on what circuit. It is pitiable beyond words. He could have left well enough alone. He should have been big enough to come in and welcome the radical change that is proposed in this Bill but he did not do so. His complaint was merely a question of the degree of patronage being exercised now as opposed to what he alleges was exercised in the time of the previous Government.

The Deputy knows as well as I do that State work was distributed by and large on the basis of political patronage by the previous Attorney General. There is no use coming in here and trying to could that fact or say that the present Attorney General is doing the same thing on a wider scale. I do not know enough about the inner workings of the Bar Library to say if that is true or not but what I have heard leads me to believe that it is not true in the way suggested by Deputy Andrews and that the present Attorney General has operated the system as he found it when he came into office. No blame to him for doing that. It is important if this change is to be made that it be made in the context of legislation to mark the serious departure that is involved and that it be made in the context of this Bill which proposes this radical new appointment. All credit to the Attorney General for grasping both of these nettles and coming to this House with legislation designed to remove their sting.

Deputy Andrews made great play on the difference of degree in exercising the present system. He sought to give the impression that there was something very wrong about this exercise now but something very credible and creditable about it as exercised by the previous Attorney General. He talked about his research into his lists. I can imagine the gossip and the backbiting that went on in the compilation of those lists, lists about which Deputy Andrews made great play and which formed the basis of his argument but which he confessed might be subject to correction. I believe they would be subject to correction and the point I am making is that the system operating now is no different from the system operated by our predecessors but that system is now going to be changed. That fact, if Deputy Andrews welcomes the change, should be welcomed by him without equivocation and with positive pleasure.

He said he had seen or heard the present Attorney General either on television or radio saying he would do away with the present system and would not operate the spoil system. Again, if Deputy Andrews is to be accurate in making a serious charge, and it was a serious charge as it went to the honour of the Attorney General, he should know whether it was on radio or television this statement was made. A change is now proposed and I wonder do I sense in the criticism offered by Deputy Andrews and Deputy O'Malley an underlying regret that the spoil system is on the way out from the Bar Library. Have they a hankering after the day when Fianna Fáil may return to power for another 16 uninterrupted years, thinking back on the last fat 16 years? It was, I think, slightly disturbing that the measure before the House, which will end once and for all in a very firm and fair way the spoil system, was not welcomed with more enthusiasm by the other side. It was a muted welcome hedged about by rather petty criticisms.

It is a good thing that the change is coming and I certainly welcome it. The provisions in the Bill are sensible. It is over now to the profession itself to see that State work is distributed fairly to people of competence, people capable of doing the State's work efficiently and well. Again, there is provision in the Bill for the venting of any dissatisfaction that may be felt in regard to the operation of the system. This is sound common sense and a good practical proposition. I have no doubt it will be welcomed in the legal world without equivocation. I have no doubt, too, it will end the situation complained of by Deputy Andrews where he alleges that, on the change of Government, some barristers found themselves without any work, the implication being they had been so dependent on the State for their living they had no other practice built up.

This is an unsatisfactory state of affairs. It makes for a very narrow lawyer, a specialist in one field only. A lawyer should be a whole man in the professional sense. It also highlights something which, I believe, happened. Some young barristers, due to a shortage of solicitors in the Chief State Solicitor's Office, from the moment they arrived at the Bar had more work than they could do almost in conducting prosecutions in the District Court and they became completely dependent on this type of work. When the staff of the Chief State Solicitor's Office was increased, coupled with the change of Government and a very equitable distribution of briefs, these people found themselves in a difficult position. One can have some sympathy for them, but they knew the consequences of what they were doing when they opted for all their work coming on the spoil system. I think they believed, like many on the opposite side of the House, that a change of Government could never happen. It did happen and now it is bringing with it, and this can be a consolation for those people, a change in the spoil system and any loss they may have suffered in this area must surely be only temporary and can be partly made up when the new system is in operation and they can be considered under the new system for their fair share of State work. All that is intended is that there will be equity in this field. Nobody can complain about that. Everyone should positively welcome it.

Deputy de Valera took issue with the post of Director of Public Prosecutions being filled by a permanent civil servant. He was of the opinion that the holder of the post should be a political person analogous to the Attorney General and that he would change with a change of Government and that it was unfair to expect a public servant to have to make decisions on prosecutions where some of those decisions would have to take into account political considerations. He mentioned as an instance of what he had in mind road traffic prosecutions, quite a simple example. Because of the presence or non-presence of gardaí in a particular area, the availability of equipment to them and so on, the Director of Public Prosecutions should have discretion to decide whether prosecutions might not be taken in order to preserve equity. That is a dangerous argument. Brought to its logical conclusion no person would be prosecuted for a breach of the law unless there was certainty that everyone who broke the law was going to be prosecuted; in other words, everyone who parked a car wrongly would have to be prosecuted before anyone could be prosecuted. That is the fallacy in that particular argument. It just does not stand up.

Again, to suggest the Director of Public Prosecutions would live in an ivory tower, completely unaffected by the ordinary strains of everyday living and his prosecutions would, therefore, be unrealistic, is to do less than justice to the post and to the status of the person who will come to fill it. The decision to take a prosecution will be based on the file which comes from the Garda to the Director of Public Prosecutions. That file will reveal all the facts of the case and will enable the Director to make a fair and equitable decision on the facts before him. To that extent, if you like, the outside world will come into what Deputy de Valera thinks will be a rather rarefied atmosphere. I do not anticipate that as being a difficulty at all. The advantage of having a Director of Public Prosecutions divorced from the politics of Government are many and very important. What this will do will be to ensure that the decisions are taken on legal grounds and on grounds of fact as disclosed in the Garda files and that no other considerations, no other what I might call political—and I use the word in a pejorative sense—considerations can came into the reckoning.

Deputy de Valera spoke of the necessity of making a judgment on when to prosecute. That is a simple statement but it encompasses a lot. I should like to give an example of why there might not be a question of political judgment with regard to enforcing the law. If the law is to be respected, it must always be enforced. The public must know it will always be enforced, and the public must be confident that it will always be enforced impartially, and that it will be enforced whether or not it causes political embarrassment to the Executive of the day. To achieve that state of affairs, this position of Director of Public Prosecutions, a permanent public servant of the highest status divorced from the politics of the day, is necessary.

Last weekend shots were fired in Ballina. They were not fired at the graveside, and they were not fired over the remains at the cathedral. They were fired in a furtive hidden way, around the corner towards the back of the cathedral. They were fired in the middle of a crowd of sympathisers, the majority of whom had travelled from Northern Ireland for—I hesitate to call it a funeral— the ceremony. There was no evidence available to the Garda as to who fired the shots. I want to assure the House that, if that evidence had been available, the culprits would have been prosecuted. Everyone in this House will agree with me that prosecution would be the proper way in which to deal with that flagrant breach of the law. It is a matter for regret that the evidence is not available.

Some years ago a similar incident took place in Mullingar, but those who fired the shots on that occasion stood at the graveside in full view of Press and television cameras, and in full view of members of the Garda, and without disguise but because, at that stage, political considerations were involved those people, although there was ample evidence of identification and of commission of a crime, were not prosecuted. That is an example of what I mean by political considerations or some considerations——

Who is the Minister making a charge against? Is it the Garda or the former Minister? I think we should have some clarification of this.

Very well. I will clarify it even further. The Garda gave a full report of the incident, with ample evidence to support a prosecution, and recommended a prosecution. The Attorney General of the day decided that there would be no prosecution. They are the facts. The House can make what deduction it likes. The incident was at the buríal of the Barnes and McCormack remains in Mullingar about four years ago.

That is an example of why the theory or the case put forward by Deputy de Valera must fall. It is an example of how considerations other than legal considerations entered into the field. This is why it is so important that we should create a system or a structure to ensure that the like will never happen again and that the law will be enforced, whether or not it embarrasses the Executive of the day, whether it be this Government or any other Government. We want a situation in which every citizen will know that the law will be enforced impartially and that expediency will never enter into the reckoning.

I disagree fundamentally with Deputy de Valera when he says that the Director of Public Prosecutions should be a political person holding office for the life of a Government, and then replaced by a political successor. The principle sought to be achieved in this Bill is the correct one. The Director of Public Prosecutions should be a public servant of the highest status, and independent in his job, as independent as any higher civil servant. Everybody in this House knows that is real independence. That is what is required so that public confidence in the enforcement of the law will be carried through from the Garda to the prosecution in the courts. There is every confidence in the enforcement of the law in the courts, in the operation of the courts. It is accepted and recognised that the courts are legally and in practice independent in the carrying out of their duties. What we have now to achieve —and this Bill is a first step toward achieving it—is a similar situation with regard to the prosecution of offences.

As I say, I think it is an answer to Deputy de Valera's suggestion that there would be considerations of policy, difficulties of enforcement on a uniform basis which a political person could regard but which a public servant in the office of Director of Public Prosecutions would have to disregard. I think he should disregard them because, as I pointed out, if that argument were to be pursued to its logical conclusion, no man would be prosecuted unless every offence was certain of prosecution.

Tied up with this question of having the office above and beyond politics, and seen to be above and beyond politics, is this question of what I referred to as representations and that is a euphemism for an attempt to influence the course of prosecutions. The prohibition on this contained in section 6 is very desirable and is an important part and parcel of the spirit of the Bill which is meant to take prosecution out of the realm of party politics and make it independent, and seen to be independent, and accepted as independent in the same way as the courts and the judiciary are at present.

Deputy de Valera mentioned that this attempt could prevent worthwhile representations being made by somebody with bona fide knowledge in relation to an impending prosecution which could possibly prevent a tragedy or a miscarriage of justice. As the Parliamentary Secretary pointed out to him, section 6 is so worded that there is no reason at all why any such information could not be passed to the prosecuting authorities validly and legally within the terms of the section by some of the people who are exempted by the section, that is, members of the family of the defendant, a legal or medical adviser, or a social worker. “Social worker” is an imprecise legal term in that context. He could be a court welfare officer or what used to be called an almoner in a hospital. I think they are called social workers now. The term in the Bill means more than that narrow description. That is quite a wide range of people who would be competent and for whom it would be legal to pass to the prosecuting authorities the type of information which Deputy de Valera mentioned in the example he quoted.

It is only right that that sort of information should be brought to the attention of the prosecuting authorities and the section does not prohibit its being brought. What the section gets away from is representations to politicians to have a word in somebody's ear to drop such-and-such a prosecution because so-and-so is a good supporter, and so-and-so has just made this slip, and he should get preferential treatment.

I agree with Deputy de Valera that these representations are made, that they fall on stony ground and do not produce any results, but the point is that the public think they produce results and it is important to disabuse the public of that notion once and for all. This section is a real attempt to do so.

Deputy de Valera instanced two types of approach, two types of representation, the bona fide one where the person wants to draw the attention of the prosecuting authorities to some unseen facet of the case and the other one where the person makes representation either by cajolery or by threat or by blandishments. The Deputy said that was a bad one. The point I made when I interjected was that they could both be essentially the same depending on the tone of voice and on the choice of words. When there is that risk the Bill takes the proper course in declaring all representations designed to affect the course of prosecution to be unlawful.

Deputy Andrews and Deputy O'Malley criticised the section because it does not have a sanction built in but it does not take from the rectitude of the principle involved merely to state that the making of these representations is unlawful. In his opening remarks the Parliamentary Secretary said that if practice shows that a sanction is needed a sanction can be introduced but as a matter of jurisprudence it is well settled and accepted that a law can be valuable though not backed up with a sanction because ultimately all laws are obeyed because the people want to obey them and not because there is a threat in the background. If people want to obey this desirable provision it will be obeyed notwithstanding the lack of sanction.

Deputy O'Malley said that the Minister for Justice should be included among the persons named in this section to whom it would be unlawful to make representations. I think he misread the meaning of the section because the section is directed only at those personages involved in the bringing of prosecutions. The Minister for Justice is not so involved and that Minister would be under exactly the same constraints as any other member of the public. It would be unlawful for the Minister to proceed to make representations to any of the persons named in the section. It would be of immense benefit to a Minister for Justice to be able to point to this section and tell the public that it would be unlawful for him as much as for any other citizen to make these representations. Deputy O'Malley stated that it was the experience that Ministers for Justice receive many representations in this area calling for political intervention in prosecutions. I have had the same experience and I have dealt with them in the same way as he dealt with them; they have been rejected.

I say that not in any tribute to myself but I say it in tribute to him and to try to disabuse the public of this idea that representations in this area could bear fruit. They never have but the public thought they did and it is important to make it clear that they never did and never will and the best way to do that is by a positive prohibition in the Act of the Oireachtas. That requirement is a good one and it ties into the general spirit of the Bill. I welcome the Bill because it seeks to take prosecutions out of the realm of party politics. The prosecutions will now be seen to be above and beyond the influence of party politics and the prosecutor will be an independent public servant. In my view he has to be such in order to meet the spirit of the Bill.

This prohibition on representations will ease the lot of Deputies and will take them out of embarrassing situations. They can now tell people who come to them with this sort of case that it is unlawful for them to make representations to a guard, a superintendent, the Attorney General, the Director of Public Prosecutions, or any other person concerned with the bringing of charges. I have no doubt that every Deputy will welcome the change this proposes.

The ending of the spoil system for distribution of State work at the Bar is to be welcomed and it ties in with the spirit of this Bill. I welcome the Bill and I have no doubt it will lead to much more public confidence. I look forward to the day when the area of prosecution has the same public confidence that our courts and judiciary have at the moment.

I should like to recognise at the outset that what I thought would be a short debate has turned out to be a long and very important one. Serious points of view have been put forward. Some of the points were coloured by political prejudice and, I suppose, by political animosity, but many others were serious, well intended, and constructive points which I promise the House to draw to the attention of the Attorney General who may conduct the Committee Stage debate on this Bill. I should like to deal with the large number of points raised, constructive or otherwise, and it will take me some time to do so. The best way to do it is to take the Deputies in the order they spoke, isolate the individual points which they raised and were not raised by other speakers and at the end to deal with the general themes which ran through the entire debate.

Deputy Andrews made the point that he could not see what now would be the function of the Attorney General after the passage of this Bill. He was afraid that the Attorney General might become redundant. I made a note of the word, it is a word with a legal meaning but even before it developed that legal meaning its sense was perfectly clear. His implication was that on the passage of this Bill there was some danger that this constitutional officer would have nothing to do. About ten minutes after he had made that point Deputy Andrews, in something less than sunny humour, asked why the Attorney General himself was not here to pilot this Bill through the House. When I replied to him, in defiance of the rules of order of the House by interrupting his speech which he repeatedly asked me to do, by telling him that the Attorney General was abroad in pursuance of Ireland's claim in regard to the allegations of torture against members of the British forces in the North he said that was a very important thing for the Attorney General to be doing and that it was a pity he had not been told that before.

In a very neat way, and possibly without Deputy Andrews having noticed it, the very fact that he had made this observation about the absence of the Attorney General, and the fact that I had been able to answer him by telling him where the Attorney General was disposes, and devastatingly so, of the point he was making. The kind of world we are living in now where an Attorney General has to go to the far reaches of Norway, as is the case with the present Attorney General, to deal with a case raised by this State on behalf of people who had nowhere else but this State to look to for support and for justice illustrates as nothing else would illustrate the difficulty, the complexity and the weight of the burden lying on the office of Attorney General.

Debate adjourned.
The Dáil adjourned at 10.30 p.m. until 3 p.m. on Wednesday, 12th June, 1974.
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