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Dáil Éireann debate -
Wednesday, 3 Jul 1974

Vol. 274 No. 2

Prosecution of Offences Bill, 1974: Committee Stage.

Section 1 agreed to.
SECTION 2.

I move amendment No. 1:

In page 2, subsection (3) (a), lines 40 and 41, to delete "or a practising solicitor and has practised as a barrister or as a solicitor for at least ten years" and to substitute "who has practised as a senior counsel for not less than five years".

The whole tenor of my argument on the Second Stage of this Bill was that we were in favour of the creation of the post of Director of Public Prosecutions but that the person who would hold such an office should be a person of professional qualifications and experience. Here I propose the substitution of a senior counsel who has practised for not less than five years, but it would be my intention maybe on the Report Stage to add to that amendment "a practising barrister of not less than 15 years' standing." That just occurs to me now while I am on my feet. Section 2 reads:

(1) There is hereby established the office of Director of Public Prosecutions and the holder of the office shall be known as the Director of Public Prosecutions and is referred to subsequently in this Act as the Director.

(2) The Director shall be appointed by the Government.

(3) (a) 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.

The next subparagraph, (3) (b), is the one we find difficult to accept and difficult to comprehend in relation to the posts we are creating. We consider the office of the Director of Public Prosecutions to be on almost all fours with the Office of the Attorney General. If the Office of Attorney General is to be held by a person who enjoys the esteem of the legal world and of his colleagues generally throughout the whole profession, be it a barrister or a solicitor, then legally the person enjoying the status of Director of Public Prosecutions should be a person eminent in the law and having the highest possible status both as regards respect and experience. What this Bill proposes to do is to appoint a civil servant to the Office of Director of Public Prosecutions who need not necessarily have ten years' experience at the Bar or indeed as a solicitor. That is why I consider the amendment to be the most important element in the whole series of amendments I have placed. This Bill stands or falls, as we understand it and as we want it, on the appointment of a senior counsel who has been practising for not less than five years, or we will concede that a barrister practising for not less than 15 years should be the person appointed as Director of Public Prosecutions.

This is no way to under-rate the contribution of solicitors to the practice of the law. Some people may ask: "Why not a solicitor in the Office of Director of Public Prosecutions?" The whole area of criminal law opens here. Criminal law is practised throughout the whole spectrum of the courts and requires a deep knowledge of the criminal law. The criminal law is practised in the Supreme Court, the High Court, the Circuit Court and, in some instances, in the District Court but there must be a wide experience of that whole spectrum. If there is not that wide experience—and I think this would be conceded by the solicitors among us in the House—then, if we are to be consistent with the amendment, I do not think we can appoint a solicitor to be Director of Public Prosecutions. However, others may argue differently.

The person we regard as having this wide experience is a barrister who shares the respect and esteem of his colleagues, who has experience in the practice of the criminal law, who knows every nook and cranny, if you will forgive the crudity, of the whole structure of the courts system. That is the person we seek to have appointed as Director of Public Prosecutions. The Government or the Attorney General may have in mind a civil servant to appoint as Director of Public Prosecutions. What I am about to say now is in no way intended to under-rate the Civil Service: we believe that within the Civil Service there are men of the highest quality, integrity and so on, but we do not believe and we do not accept—we cannot accept—that there is a person practised in the craft of the criminal law sufficiently well qualified to take on effectively the criminal law functions of the Attorney General. We understand that the Attorney General will hand over his criminal law functions to a Director of Public Prosecutions, plus referenda and election petitions. If that is so, surely it becomes even clearer that the situation demands the equivalent of a person enjoying the esteem and status of the Attorney General. We would urge the Attorney General, therefore, to accept that this amendment is tabled purely in a spirit of construction and help and not in any spirit of acrimony. We did not table this amendment merely for the sake of tabling an amendment. I discussed this with various individuals interested in this and we arrived at a responsible decision, but the tabling of the amendment was my responsibility. If we are to have a Director of Public Prosecutions the appointee must be a person with a wide criminal practice, a wide knowledge of the criminal law and a wide experience in that law. We believe this is a reasonable proposition. I shall await the contributions of other members who may possibly wish to say something on this amendment.

I support Deputy Andrews, with some reservations with regard to the disqualifying of solicitors. On the whole, I think there must be very few solicitors who would have sufficient experience of criminal law at the level required for this particular job but, with that reservation, agree with what Deputy Andrews ha said.

We should, first of all, look at the position of Director of Public Prosecutions as proposed in this Bill. The title is the same as that appertaining to a similar or analogous position in Britain and one might, because of that, come to the conclusion that the standing of the office and the duties of the office would be precisely the same. That is not the case. The office proposed in this Bill will, in fact, be of greater significance than is the office in Britain because the Director of Public Prosecutions here will be quite independent of the Attorney General and will be, as is provided in subsections (4) and (5), in the Civil Service of the State and independent in the performance of his functions.

As I understand it, the Director of Public Prosecutions in Britain is neither of these things. Ultimately he is subject to the direction of the Attorney General and he does not, therefore, have the total discretion apparently envisaged here for the Director of Public Prosecutions. Since the establishment of the State, the bulk of the Attorney General's work here has consisted of the prosecution of criminal offences and the person who would hold the office of Director of Public Prosecutions, with responsibility for such prosecutions, should be, in my view, of a status not less than that of the Attorney General.

I do not think there is anything to stop the Government appointing anyone at all as Attorney General but, since the establishment of the State, the practice has been invariably to appoint a senior counsel of considerable standing. That practice has been a good one. If men of standing had not been appointed, the office of Attorney General would have suffered considerably. Difficulties that might have arisen had lesser people been appointed have been avoided. For the reasons I have given I believe that the office of Director of Public Prosecutions should be held by someone no less eminent than an Attorney General, in fact someone as qualified to be an Attorney General as is the Attorney General himself.

The qualifications set out in subsection (3) (a) of section 2 do not at all require that any potential holder to the office of DPP should be of the standing I suggest or anything like it. All that is required is that he be a practising barrister or solicitor of at least ten years' standing. The first thing that strikes me most forcibly about this is the fact that I could be a practising solicitor for ten years or Deputy Andrews could be a practising barrister for ten years and neither of us need ever have set foot inside, a court; in particular, neither of us need ever have set foot inside a criminal court. One could be pre-eminent among common law lawyers or chancery lawyers and know nothing of the basic tenets of the criminal law.

Nevertheless, one would be qualified to hold an office not less important, in my opinion, than is the office of Attorney General itself. That is quite wrong. So far as the appointment of an Attorney General is concerned the Taoiseach has considerable discretion. He can appoint anyone he wishes within reason and no Taoiseach has ever failed, I think, to appoint people of the highest eminence to this particular office. But this is a very different matter. This is a position of tremendous importance, the appointee to which will become a civil servant and virtually "unfireable" under subsequent subsections. If a man who is not of the greatest eminence is appointed he may be there for 20 or 30 years and, if he is not of the proper status and someone who will inspire confidence in the administration of the criminal law and, particularly in the prosecution of offences and offenders, the whole administration will suffer. I repeat that the appointee should be as eminent as the Attorney General.

Deputy Andrews' amendment leaves it open to appoint a man who, if he happens to have been a senior counsel for five years, will be eligible for appointment but may have only a limited knowledge, to say the least of it, of criminal law.

Ideally something should be spelled out in this section which would require, not alone that he would be of eminence within his profession, but that he would also have a particular and detailed knowledge of criminal law. The greatest of eminence in respect of other branches of the law is of no use to him or to this country if he becomes the chief prosecutor. I readily admit that there is not as great a degree of specialisation in this country as one would wish to see and, in particular, there is not a great degree of specialisation in criminal matters. That undoubtedly gives rise to a difficulty. Nonetheless there are competent senior counsel of standing and experience who have a good deal of experience of criminal matters, apart from the experience they might have in other matters also. In so far as we can, without laying down a kind of examination standard, we should seek in this section to have people with the equivalent respect as the present and previous holders of the office of Attorney General have had.

I intend to say something about the proposal in the Bill to allow non-practising lawyers in the Civil Service to be appointed to this position. Perhaps I might hold that over until the next amendment. The only point I will make about it now is the general one that I do not know very much criminal law, but I know enough about it to know that the only place you will learn it is in the criminal courts, and that you will not learn it anywhere else.

Therefore, any civil servant who by virtue of his position is precluded from appearing in court, no matter what his academic qualifications are, will not have the practical knowledge and experience which are necessary for a position of this kind. That is why I think that, while Deputy Andrews' amendment could, perhaps, be even more precise than it is, at least it is on the correct lines, and at least it is a genuine effort to ensure that the eminence of the individual who will ultimately be appointed to this post will be such as the importance of the post calls for.

I do not know whether the Attorney General wants to speak. I assume that he will speak on the amendment and we look forward to his remarks. I want to clear up some misunderstanding in relation to the amendment. My amendment seeks to ensure that a senior counsel of not less than five years' standing will be appointed as Director of Public Prosecutions. Deputy O'Malley has suggested that in some way I should be more precise on that matter and that I should refer to practice in the criminal law in addition to his being a senior counsel of not less than five years' standing. That matter is taken care of in the third amendment. The committee which would be set up under my amendment would be the very type of committee which would take care of the appointment of a senior counsel of not less than five years' standing, who would be experienced and practised in criminal law, and who would have that status, and enjoy the esteem of his colleagues on that practice.

I do not wish to sound as if I am quibbling over this matter. As Deputy O'Malley has pointed out, we consider that a civil servant who may be a barrister, called to the Bar, and so on, may not have seen the inside of a criminal court. What we are now asking this civil servant to do is to take on the functions of the Attorney General, almost totally the criminal functions of the Attorney General. That is how serious it is.

I should like to remind the Attorney General and the Government he represents that the criminal law is no longer the Cinderella of the common law. Criminal law goes to the very heart of the community in which we live. We consider that the person appointed to be Director of Public Prosecutions should be a person with expertise, experience and knowledge of the criminal law. Criminal law is part of the very fabric of the society in which we live. That is why we consider that the Director of Public Prosecutions who, in effect, will become the Attorney General under another name, should be a person of the eminence of the Attorney General.

I suggest that we are dealing with a constitutional personage. The Attorney General is a constitutional personage. Article 30.3 of the Constitution provides:

All crimes and offences prosecuted in any court 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.

This "other person" authorised in accordance with the law that we are enacting now to act for that purpose is the Director of Public Prosecutions. The Constitution provides for and authorises the appointment of the Director of Public Prosecutions. What we are now asked to do by the Attorney General and the Government is to tinker with the Constitution, to appoint to the position of Director of Public Prosecutions a person who has less than a reasoned and reasonable knowledge of criminal law.

I and other Members of the House who will be contributing would wish to keep this debate on a reasonably high plane. The more one reflects on it, the more one speaks about it and, I am sure, the longer this debate goes on, the more one sees that the Government's proposals become more offensive to the concept of the whole area of the criminal law. The Director of Public Prosecutions will be deciding who will be prosecuted and who will not. That will be a function of his; a man who has no knowledge of the criminal law will be deciding who should be prosecuted under the criminal law. The thing does not make sense.

We will be getting into the philosophy of the criminal law later on in the debate, I have no doubt, but there we have the ground set for a reasonable discussion. The Attorney General has offered us this Bill. It was presented to the House by the Parliamentary Secretary to the Taoiseach for Second Reading and we had an opportunity of expressing a general opinion on how we would deal with the Bill on Committee Stage. What did we get from the Taoiseach's Department? Mere drafting amendments in the name of the Taoiseach. I genuinely do not think they are taking this matter seriously enough.

The Attorney General was at the height of his profession in every respect at the Bar when he decided to become Attorney General. I have been in consultation with many members of the legal profession, barristers and solicitors, and, to put it at its very crudest, they are all appalled at the proposal in relation to the personage who will take on the position of Director of Public Prosecutions as provided in this Bill. We will let the matter rest there and see if we can get any reaction from the Attorney General.

I fully accept that the amendments to this and other sections have been put down in a spirit of constructive Government. I also accept, as I am sure the Deputies opposite will accept, that there is room for legitimate differences of opinion in regard to what must be recognised as a difficult problem, namely, the qualifications for what is generally recognised as the very important new office which it is proposed to establish in this legislation. I fully accept that the members of the Opposition are concerned to see that the office is filled by the person with the highest qualifications. I should like them to accept that this is our concern, too. Perhaps I could briefly outline the thinking of the Government on this particular section.

I should like to draw attention to the fact that the next amendment to be moved relates to the deletion of the subsection which would permit a person in the Public Service to be appointed. Unless it is desired that these two amendments be taken together, I will leave over discussion of that aspect of the proposals until we come to that amendment. I will now deal with Deputy Andrews' amendment which would delete from the Bill the provision by which a solicitor who had at least ten years' experience could be appointed to this post.

What I have to say now will apply to the debate on the next amendment. It is important for Deputies to make up their minds and reach conclusions as to what type of qualifications will be required for this office. Obviously, they are varied. Knowledge and experience of the criminal law and its operations will be important. Knowledge of the law of evidence will also be important. It seems to me, and I speak from limited experience, that probably the most important qualifications will be basic common sense and sound judgement. This is one of the reasons why it is particularly important that the proposed selection committee be established. We may have differences as to the format of this committee but we will discuss these later. An effective selection committee would advise the Government on the different candidates seeking the position. One of the important tasks of this committee would be not merely to examine the academic credentials of an applicant, not merely to examine his ability to pass examinations or even his years of experience, but to judge him in the policies of judgment to which I have referred.

Where perhaps we part company on this important matter is in relation to the necessity, which Deputy Andrews would appear to feel, that he should have experience as an advocate. The barrister who is a senior counsel of five years' standing would have that experience over any other possible candidate for the post.

I am not suggesting it would not be desirable that an experienced senior counsel should be appointed to the position. I am, however, saying this: in theory, it does not follow that the qualifications of an experienced senior counsel are such as to exclude anybody else from being a suitable person for this post. What an experienced senior counsel has above anybody else, be it a solicitor or a professional person in the public service, is, of course, his skill of advocacy and experience in court. As I said, this seems to be the point where we differ. While it may be that the proper person to appoint to this position is an experienced advocate, we should not rule out the possibility that other persons might be better qualified. This could be because of their knowledge of the criminal law and the law of evidence and because of the personal qualities to which I have already referred.

It is true that if a solicitor is appointed he might not have the eminence in the eyes of one branch of the legal profession which one of their own colleagues would have. Again, I would not regard this as decisive. It is obviously desirable that a person who fills this post would be of very high standing and so regarded by the members of the legal profession. I would not be in favour of excluding solicitors to this position.

It has been thought desirable in the United Kingdom legislation since 1889 to allow a solicitor to be an applicant for this position. In fact, one of the most distinguished persons to hold this position was a solicitor. Under the recent legislation in Northern Ireland a solicitor as well as a barrister is also qualified to act as Director of Public Prosecutions. This is not a decisive factor but it should be borne in mind.

I appreciate that there may be members of the legal profession who would disagree with the suggestion that solicitors should be eligible for this appointment. I would not agree that this is an overwhelming attitude among, say, members of the Bar. I doubt if it is an attitude which members of the solicitors' profession hold. The contacts I have had in relation to the suggestion that solicitors should be eligible for appointment would not indicate that there is the widespread opposition which Deputy Andrews indicates. This is a matter about which Members of this House must make up their minds. As I have already indicated, it is a matter on which there can be legitimate difference of opinion. The Government, having given the matter very careful consideration, felt that it would be limiting the field too much to allow merely barristers to be eligible.

I apreciate the point which Deputy O'Malley made and I agree that there is a great number of members of the solicitors' profession who do not specialise in criminal law and would not have experience of criminal law. There are, to my knowledge, and to his I am sure also, members of the solicitors' profession who have a great deal of knowledge and experience of criminal work. The field from which a choice to this important position is made should be as wide as possible consonant with getting the most qualified person for the position. Perhaps it may not be found desirable to appoint a solicitor, perhaps solicitors may not apply, but I do not think we should exclude such a person from eligibility.

There are important safeguards built into this legislation to ensure that the best qualified person is appointed. In particular, a committee will be established to select names for nomination to the Government. It will be the task of that committee, and ultimately of the Government, to weigh up the qualifications of the different applicants. Obviously a person with little or no experience of criminal law may not find favour either with the selection committee or the Government, and it is equally obvious that a solicitor who has had little or no experience in the criminal field may be slow in coming forward to apply for the position. It seems to me that experience and knowledge of the law and the standing of the applicant in his profession will be matters which the selection committee will be very careful to judge. A person who is not eminent in his profession or who has not great experience or knowledge, to my mind is unlikely to be appointed because of the safeguards built into this proposed legislation.

While accepting that there can be differences in this area, all I can say to the House is that the matter has been given very careful consideration by the Government. It is a matter of considerable importance and the Government consider it would be limiting it too much if the amendment suggested by Deputy Andrews were accepted. In fact, the amendment goes even further than the present qualifications required by law for the position of a High Court judge. I realise that is a matter of detail and I can see that the principle behind the amendment is that the post should be restricted to a person who is eminent as a barrister or on that side of the legal profession, but nevertheless I do not think the House should limit it in the way suggested.

The Attorney General has referred to the principle behind the amendment. If we consider that the experience required should be greater than that of a High Court judge, this shows how important we consider the qualifications necessary for the Director of Public Prosecutions. The person appointed must be of the highest standard and have the necessary knowledge of the law. The Attorney General said there is room for opinion here; that is what this debate is about. There will be room for opinion on every section we discuss because that is what a Committee Stage discussion means.

The Attorney General said that the civil servant appointed under section 2 (3) (a) and (b) would have common sense and sound judgement and he said that is where he and I parted. I am glad to say that is so. The person whom we would propose to be the Director of Public Prosecutions would have common sense and sound judgment but in addition he would have the experience of a practised and practising criminal lawyer. That is an important addition to the qualities of common sense and sound judgment. The qualification that is missing, about which we are arguing, is that of experience.

Do we have to go over the ground again, to say that the Bill as proposed envisages that the person appointed will be a man whose function it will be to take on the duties of the Attorney General in accordance with the provisions of Article 30.3. of the Constitution? The law we are enacting now is to give effect to that part of the Constitution which refers to such a personage. Is that person to be a civil servant who has not seen the inside of a criminal court? That is what the House is being asked to accept but we are asking the House to reject the proposition, as proposed in this Bill, providing for a civil servant with the qualifications as set out but with no experience in criminal law. I would ask that the principle of the amendment we propose be accepted; we can revise or adjust it. We are asking for a person who has seen the inside of a criminal court, who has practised in such a court, who has been from the Supreme Court to the High Court, to the Court of Criminal Appeal, the Central Criminal Court, the Special Criminal Court, the Circuit Criminal Court, the Circuit Court and the District Courts. This Bill is proposing that a person will conduct the criminal law on behalf of the State in those courts in which he has not had any experience. The House is being asked to do this.

I think this is a horrifying proposal, that the criminal law should be in the hands of a person who has not got an elemental knowledge of it. When I say "an elemental knowledge of it", I mean particularly in the experience and practice of that law. I describe criminal law as it was described by a very eminent legal luminary—I think it was Lord Chief Justice Goddard—as the Cinderella of the common law. That is no longer the position. Criminal law goes to the very basis of the fabric of the society in which we live; it is part of that fabric, part of the make-up of the society. The person we are being asked to take over to administer that is a person who has had no practice in that aspect of the common law.

The Attorney General then goes on to make a fair enough point—he may have misinterpreted what I said—in relation to the appointment of solicitors to the post. I do not wish to under-rate the contribution of solicitors to the legal profession generally. But I come back to the basic premise of my argument—I do not think that there is a solicitor with the practice, the high qualifications, the high criminal law qualifications considered necessary for this post of Director of Public Prosecutions. That is the only point I make there. I know many solicitors who support me in this argument. Many solicitors have come to me and expressed their points of view on this section. They are people whose opinion I value and who feel just as strongly as I do about it. The point I am making—to be absolutely consistent—in relation to the qualifications necessary is that the person to be appointed must be a person of the highest available qualifications. The person who would hold those qualifications would be a man—and I cannot over-stress this point—who has had practice of the criminal law.

To ensure that the House knows exactly what we are at, I shall quote subsection (3) (a) of section 2 which reads:

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 the Government watered that down in the next subsection which reads:

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.

Therefore, the reality of the position is that he need not be a practising barrister or a practising solicitor of ten years' standing at all. If he has spent a certain amount of time in the Civil Service that is added to his practice as a barrister or solicitor, say, of three or four years. Seven years in the Civil Service, added to three or four years as a practising barrister would be sufficient to qualify this person for the position of Director of Public Prosecutions. A Cheann Chomhairle, are we being serious here —to qualify this person for the position of Director of Public Prosecutions? That is how serious the matter is and that, as I understand the reading of the Bill, would be one of the qualifications necessary.

I accept that the committee will be there. Let us describe it as a watchdog committee but I shall have a lot to say about that when I come to it. That is why the whole tenor of my amendments is consistent, one related to the other, with one or two small discrepancies which I shall point out as I proceed. I accept that there may be one or two small amendments to my amendments which may be necessary if we are being offered the qualifications outlined in subsections (3) (a) and (b) of section 2. But I do not think we are serious about the proper workings of the office of the Director of Public Prosecutions. As we understand it, the person who will be appointed to that position will be an independent personage. He will have to undertake responsibilities and make decisions which will affect the whole structure of the working of criminal law in this country. He is now being offered, effectively, the position of Attorney General, not as Attorney General, but as Director of Public Prosecutions who will take over the functions of the Attorney General. That is why we consider our amendment to be correct in principle. It may need a little rejigging in relation to its drafting but the spirit of the amendment is there. The principles enshrined in the amendment are also there and will be apparent to the Attorney General who has indicated quite clearly that he is satisfied. He recognises the principle enshrined in the amendment but he is not prepared to accept the practice of the principle by accepting the amendment.

I wonder could we agree to take these two amendments together. In practice, this is what we have been doing.

Certainly.

The Chair had hoped that both amendments would be taken separately. It was proposed to take amendment No. 1, put down by Deputy Andrews, and dispense with that before proceeding to amendment No. 2. If there is agreement on it, the Chair would have no objection to both being taken simultaneously.

I think we should take them simultaneously, as the Attorney General has suggested. When it comes to voting, I assume that we can vote separately.

Acting Chairman

Yes.

May I say a few words then, on subsection (2) (b) of section 2 and the proposed deletion? As I indicated earlier, it is desired to have the widest choice possible for a person for this position. Therefore, it was thought desirable not to exclude a member of the Civil Service who might not have had ten years' practice as a barrister or a solicitor before entering the Civil Service. It is important for the House to appreciate that the area of choice for this proposed appointment is not a very wide one, for the reasons which have been touched on earlier. The number of persons specialising in criminal law are not very great for a variety of reasons. In particular, in relation to the barristers' profession, whilst the number of junior counsel who have had considerable practicable experience in criminal courts, are many, the number of senior counsel who have had experience, as senior counsel, are not many. It is true that, as juniors, they may have got this experience but the number of senior counsel who actually specialise to any great degree in criminal work is not very great. Undoubtedly, people who would prosecute considerably would have a great deal of experience, but it is quite possible that a person who has done a great deal of prosecuting might not be the most suitable person to be Director of Public Prosecutions.

The point I wish to make is that if the eligibility proposals made by the Opposition are accepted, the number of people who would be eligible for this important position would be very limited indeed. Therefore we seek to make eligible solicitors of the standing I have indicated and also make eligible people who have been in the Public Service in the way suggested in the subsection under discussion.

I should like to say, and I think it has been the experience of other people, that I can think of several people in Public Service who would have made excellent Directors of Public Prosecutions. I know several solicitors, several barristers, some of whom have been or are junior counsel, who would make excellent holders of this position. This must be the experience of others also.

The fact that this legislation creates categories of eligibility does not mean that the Government will, on the recommendation of the selection committee, appoint any particular one. The concept behind this section, and the reason why it is not possible to accede to the limitation that is now being suggested by the Opposition, is that we should make eligible for selection to this important position people whom, experience would show, should be eligible for appointment. Again, to make the point I made earlier, a point which seems to be the area in which the disagreement arises, the Opposition would appear to put much greater weight on actual experience in court work as an important qualification for this post than the Government does. The Opposition appear to consider that actual experience as an advocate in the criminal court is the most important qualification and without it this person could not adequately fulfil his functions. This is where we disagree.

It does not require the art of an advocate or experience in criminal procedure to act as Director of Public Prosecutions. A Director of Public Prosecutions has to have a knowledge of the criminal law and a knowledge of the law of evidence. His task basically is assessment, and that task basically is considering the evidence on documents which are made available to him, weighing it up and considering from his legal knowledge the effect of a statement presented to him. He is not an advocate; he is a person who has obviously to know the criminal law and the law of evidence, but, above all, he has to have judgment and sound common sense. These, I would hope, would be qualities which a distinguished member of the solicitors' profession or an experienced person in the Public Service would also have.

What we wish to achieve here is that we do not limit the choice to members of the Bar, particularly that we do not limit the choice to members of the senior Bar but that the choice be open for appointment from solicitors and from suitable persons also in the Public Service. It will be a matter for this distinguished and eminent committee formed in the way suggested by the Government or in the way contemplated by the Opposition, the adjectives which I have used will still apply to it, to assess the qualifications of the applicants. Obviously, the fact that somebody has had a great deal of experience in the courts will be a factor which will be taken into account but I would have thought that it is equally obvious that this would not be a decisive factor.

As we all know, and some of us know from personal experience, a very successful advocate may not make the best judge. Similarily, a very successful advocate may not make the best Director of Public Prosecutions. In saying that I am not for a moment saying that successful advocates should not be eligible for high judicial posts nor am I suggesting that they should not be eligible for this post. I am drawing attention to the important factors which have to be borne in mind in addition to those of experience in the practical field of the law.

As I said earlier, these are areas for legitimate differences. I have to confess, it is not uncommon in this House, that the Opposition have failed to impress me with their arguments just as I anticipate that I have probably failed to impress the Opposition with mine. Be that as it may, this is what these debates are about. We put our point of view forward in this Assembly for consideration. I appreciate that the Opposition are as desirous as we are to have this post filled by the best person possible. This is an aim we both have but we differ, unfortunately, as to the eligibility tests which we are laying down.

The eligibility tests which are suggested in this legislation are tests which will produce in time, I hope, a very suitable person for this position.

I should like to say a word about amendment No. 2 which we are now discussing, the question of the eligibility of someone in the Civil Service. It is only fair to point out that most barristers or solicitors in the public service are in it for most of the time that has elapsed since they qualified. I know that is not universally true but it is true of most. Very few of them have practised for more than three or four years at the outside. The Attorney General on the one hand lays little store by practice and Deputy Andrews and I on the other hand lay considerable store by it. The Attorney General says that it is legitimate for us to differ on this and that that difference will prevail assuming that the House divides in its usual lines.

That is not a very constructive answer to the argument put up. I agree with the Attorney General that judgment and common sense are extremely important qualities in this and in an enormous number of other offices but what the Attorney General has completely failed to deal with is the question of public confidence in this office which will not be enhanced by the appointment of a person that nobody ever heard of. There may be a very suitable public servant and the Government may decide that because he is very suitable, as he might well be, to appoint him. However, by virtue of the fact that he has been a public servant for most of his working life the public, of necessity, will not have heard of him. Perhaps, even the profession will not have heard of him. He will go through, therefore, a trial period. His office, rather than himself, will seek to establish themselves in the public mind and to build up confidence in the office of Director of Public Prosecutions. That is a period it might not be necessary to go through if somebody whose eminence is already acknowledged generally is appointed.

I do not think it is enough simply to pick a man of sound judgement and common sense. I think the public would expect more and be entitled to more than just that, even though, as the Attorney General says, they may be the most important individual qualifications of any man for any such job. I am aware that there are in the Public Service, particularly in the Attorney General's office and to a lesser extent in the Department of Justice, people who have qualified either as barristers or as solicitors and who have dealt with criminal law matters on and off or, perhaps, even constantly since they entered the Public Service. They may, therefore, have acquired a considerable knowledge of the criminal law as a result of that work but, like Deputy Andrews, I find it very difficult to accept that a man whose knowledge is only academic or theoretical in the sense that he has never practised to any considerable extent in the actual courts, in the heat of battle, will have the type of experience that would be desirable in this position.

If we were talking about a medical appointment, for example, a surgical appointment as the senior consultant surgeon of some large hospital in Dublin, I doubt if we would consider anybody or be expected to consider anybody that had not long practical experience of surgery. It may be argued that those who are working in the Attorney General's office have practical experience, of a kind, of the criminal law but it is only of a kind. It is not the real experience of the real thing. It is totally different to deal with a problem on paper and to deal with it in front of a jury with a defendant in the dock and a judge on the bench and with witnesses coming in a series to the witness box. One is then faced with human problems and human difficulties and situations that do not arise when one's experience is limited to dealing with problems of criminal law on paper only.

It may well be that some members of the public service are suitable for this position but, nonetheless, I have reservations, to say the least of it, about the advisability, from the point of view of the eminence of the office which it is proposed to create, of appointing somebody who may be suitable but who is not known or recognised among either the public or the profession as being a man of standing in relation to the criminal law. There would, I suppose, be the advantage in the appointment of a civil servant that at least it would be seen that the appointment to the office was not one which arose as a result of patronage because great emphasis is being laid by the Attorney General on this committee but a careful reading of this long section indicates that the Government do not have to accept the recommendations of the committee and I am inclined to wonder, as many other people are, what is the need for the establishment, in rather elaborate and lengthy terms in this section, of this committee, if the Government are free to disregard it as apparently they are. They can keep, it appears, sending back the nominations to the committee and asking for further nominations until they get someone that suits or satisfies them.

I would hope that even at this stage the Attorney General would, in the interests of a new and important office now about to be established, reconsider this question of qualification for it. While I accept his view that the question of judgment and common sense are, perhaps, in the last analysis the most important qualities, let us have judgment and common sense from someone who has more than just judgment and common sense.

Obviously, the Government after considering the report of the selection committee will not appoint someone of common sense and judgment and nothing else and, obviously, the committee and the Government will have to consider the professional qualifications, experience and knowledge of the different applicants.

The point of divergence between us appears to arise in relation to the attitudes of the public to the future appointment under this legislation because it is admitted by Deputy O'Malley that there may well be somebody in the public service who is qualified but he suggests that, notwithstanding this, the appointment should not be made, because of public attitudes and, as I understand the point, that the question of public confidence would arise because public confidence would be enhanced by the appointment of someone who is well-known, eminent in the profession. I think we must draw a distinction between the rather narrow world of the legal profession and the public in general.

In the legal profession the eminent members of the legal profession will be well-known but outside it, apart from certain people who become prominent through constant appearances in court in cases which get widely reported, members of the legal profession by and large are not known. There are many members of the legal profession who might well be suitable for appointment to this position of whom the public would have little or no knowledge. Obviously, there are many solicitors about whom the public would know little. This is not a reflection on the members of the solicitors' profession concerned. On the contrary, the fact that members of the solicitors' profession may not be known to the public is something which may be more to their credit than otherwise. Apart from the consideration, which I am not for one moment minimising, of eminence in the legal profession on itself, the public generally are not likely to be greatly exercised by the actual name of the person who obtains this appointment. It is, of course, possible that some very prominent person whose name is used a great deal in newspapers may be appointed but it is equally possible that a highly qualified member of the legal profession whose name does not appear very often in the papers and who is not known to the public may be appointed. While I agree with the importance of public confidence in this position. I suggest that this public confidence is obtained not so much by appointing a person who is well known to the public through constant court procedure and court appearances being reported in the newspapers but by the fact that it will be known that the person appointed has been appointed in the way that has been suggested in this legislation and, also, and perhaps more important, by the actual way in which the office is carried out. If the Director of Public Prosecutions, whose title appears a great deal in the newspapers but whose actual personality may well be of little interest to members of the public, does his job properly this will be seen. It will be seen in the administration of justice and in the administration of the criminal law. This will be obtained by the procedures which we think should be in this legislation and also by the manner in which the person whom we hope will be appointed as being a qualified person, will carry out his functions.

I do not wish the Members opposite to think I am just adopting a take it or leave it attitude. I am not doing that. I put forward arguments which I believe are valid ones. I put forward further ones now. All I was saying in my earlier remarks was that it did not appear to me that I had succeeded in persuading Deputies opposite of the validity of those arguments. I feel that the proposals which we are making will produce a good result and that is why I do not want to limit in any way the area of choice, which limitation would be involved in accepting either of these amendments.

As a layman, I want to ask a question. If the Attorney General is anxious to widen the scope of eligibility, would he indicate whether or not, in reference to the Civil Service, he is excluding solicitors or barristers who might be employed by local authorities or semi-State bodies? It is possible that you would have a solicitor or barrister, who, after successfully discharging his duties in the Civil Service, would have migrated to a higher position with a local authority or a semi-State body thereby adding to the experience which he had in the Civil Service proper. Is a gentleman of that type being excluded under paragraph (b)?

No. The position will be that any solicitor who is practising as a solicitor in a local authority will be eligible provided he is practising for ten years. If he has ceased to practise as a solicitor, if he is in a local authority but not practising as a solicitor then, he would not be eligible. The reason for the way in which paragraph (b) is drafted is that when a person applies for entry to the Civil Service he may or may not have qualifications as a barrister or solicitor. If he applies to the Civil Service, having those qualifications, it will be because he is seeking a post where those qualifications are necessary and, accordingly, he will be involved in legal work in the public service. If, however, a person has worked for, say, ten years, in the Civil Service and left he will qualify under this, if his years of service are in the legal service. If a solicitor is acting as a member of a local authority and practising as a solicitor, he will qualify but if a person has not had the ten years' experience and does not practise as a solicitor, then his actual work, other than work as a solicitor, will not be taken into account.

This is an extraordinary position we are in then. I am grateful to Deputy Tunney for raising this matter with the Attorney General who was more than frank in his reply to the question. The Attorney General has suggested that the amendment I have tabled is narrow. It is narrow for a particular purpose. We want to ensure that the best and most highly qualified person is available for the position of Director of Public Procecutions. Now, according to the information the Attorney General has given to Deputy Tunney, a solicitor or barrister employed in a local authority, who has no practice of criminal law whatsoever, is eligible now to apply for the post of Director of Public Prosecutions, as I understand it.

I should like to ask another question in addition to the one posed by Deputy Tunney. How many people within the public service, solicitor or barrister, apart from what we consider so necessary, namely, experience in practice, and so on, of the criminal law, would be entitled to apply for the position of Director of Public Prosecutions? That is a very fundamental question.

Now we are being told by the Attorney General that a solicitor or barrister, a member of a local authority using his legal knowledge for the benefit of the local authority for whom he is employed can apply for this post. What experience or expertise in the law has a solicitor or barrister employed by a local authority? He is engaged in the interpretation, as I understand it, of Acts which relate to the operation of local authorities, which, in many instances, are totally unrelated to the criminal law. This makes our case even stronger. The person we seek is a person with a high knowledge of the practice of criminal law and a knowledge of criminal law, of the administration of criminal law and of the whole structure of the courts. We accept that common sense and sound judgment should be possessed by this person. Of course, a civil servant, either a barrister or solicitor, may have sound common sense and judgment but the person we suggest is a highly qualified barrister of sound judgment and common sense who, in addition, has the professional qualifications.

I ask the Attorney General to elaborate on the very extraordinary reply—he knows what I mean—he gave to Deputy Tunney and tell us how many people within the public service, barristers or solicitors, with the necessary qualifications set out in section 2 (3) (b), are qualified to apply for the position of Director of Public Prosecutions when this Bill becomes an Act?

I am not quite certain if Deputy Tunney is in agreement with Deputy Andrews, and, perhaps, the position might be clarified. I may have misunderstood the implication of Deputy Tunney's remarks, but I understood Deputy Tunney to desire that solicitors who were in the employment of the local authorities would not be excluded. That, of course, is the very opposite to what Deputy Andrews would want. Deputy Andrews would want them excluded.

The position under the Bill is clear. Under section 2 (3) (a) the person must be a practising barrister or practising solicitor subject to the provisions of paragraph (3) (b). Therefore if a solicitor has been practising for ten years in the employment of a local authority, he is eligible but a barrister would not be a practising barrister if he is in full-time employment of the local authority and he would not be eligible. There is nothing extraordinary in this once we admit, as I think we should admit, a solicitor to be eligible for this position. It may well be that a person in the employment of the local authority may have been involved in no work at all connected with the criminal law and so I would imagine his chances of appointment would not be very high. On the other hand, every member of the legal profession would know of solicitors in the employment of local authorities who would have a great deal of experience of the administration of the criminal law. While I am not suggesting that such a person would be automatically appointed if he applied, I am suggesting it is not extraordinary to have the net wide enough to allow such a person to apply.

In relation to the number of people in the public service who might be eligible under (3) (b), I think there would be three persons quaified for the position in the Attorney General's Office and possibly eight in the Chief State Solicitor's Office. I think they are accurate figures, but if the Deputy wants them more accurately I can get them for him. There are not very many people who would come under (3) (b) who would have the necessary qualifications. However, as I have indicated to the House already, if the House accepts the principle that a practising solicitor should be eligible for appointment, and I think he should, then I do not think the House should exclude somebody who is practising as a solicitor in the employment of the local authority.

The Attorney General has been more than frank and I accept his figures unreservedly. It would apparently limit the applications for appointment to the position of Attorney General to an even greater extent than we had anticipated on this side of the House. As the Attorney General has properly pointed out, solicitors or barristers— and I am not making a case against solicitors, as the Attorney General would appear to indicate—in the employment of the local authorities would effectively not have the qualifications, so they would not be appointed.

No, I did not say that.

It would appear, by implication, that solicitors within the local authorities would not be appointed. What practice of the criminal law, so necessary to be consistent with our amendment, would such solicitors have to take on in the performance of the functions of the Attorney General? That is what our amendment is all about. We are trying to point out to the House that the Director of Public Prosecutions is taking on the criminal law functions of the Attorney General. We are now discussing the appointment to that position of a person who engages in the criminal law at the lowest level of that practice in the local authorities. The Attorney General has implied it would be unlikely that such a person would be appointed, but the position is now that there are some ten or 12 people who would have the really necessary qualifications according to the standards of this Bill, standards which we consider to be very low and not necessary to the appointment in question, namely, the Office of Public Prosecutions.

Again, I make the point I made before, that the person we want to be Director of Public Prosecutions and the person most suitable to fill that office is the person with the same status, the same experience and the same qualifications as the Attorney General himself. I shall not refer back to my argument in relation to Article 30.3 of the Constitution in accordance with which provision is made for the appointment of a person who will now be known as the Director of Public Prosecutions. Then we are handing over the office of Director of Public Prosecutions to a barrister who may not have practised more than two or three years.

Section 2 (3) (b) says that in addition to his practice, he may take into consideration his employment as a barrister in the public service, and this will add to his experience, so called. The thing is becoming farcical. Here is a Director of Public Prosecutions who will deal with the whole practice of the criminal law in the various courts. He will distribute State briefs, and will decide who will be prosecuted on and who will not be prosecuted on evidence presented to him; in other words, he is taking over the whole paraphernalia of the Attorney General, and we are being offered this in the Bill, which we reject.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 61; Níl 54.

  • Barry, Peter.
  • Barry, Richard.
  • Begley, Michael.
  • Belton, Luke.
  • Belton, Paddy.
  • Bermingham, Joseph.
  • Bruton, John.
  • Burke, Dick.
  • Burke, Joan T.
  • Burke, Liam.
  • Byrne, Hugh.
  • Clinton, Mark A.
  • Cluskey, Frank.
  • Conlan, John F.
  • Coogan, Fintan.
  • Cooney, Patrick M.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Costello, Declan.
  • Coughlan, Stephen.
  • Creed, Donal.
  • Crotty, Kieran.
  • Desmond, Eileen.
  • Dockrell, Maurice.
  • Donegan, Patrick S.
  • Pattison, Séamus.
  • Reynolds, Patrick J.
  • Ryan, John J.
  • Ryan, Richie.
  • Spring, Dan.
  • Staunton, Myles.
  • Donnellan, John.
  • Enright, Thomas.
  • Esmonde, John G.
  • Finn, Martin.
  • Fitzpatrick, Tom (Cavan)
  • Gilhawley, Eugene.
  • Governey, Desmond.
  • Griffin, Brendan.
  • Hegarty, Patrick.
  • Hogan O'Higgins, Brigid.
  • Kavanagh, Liam.
  • Keating, Justin.
  • Kelly, John.
  • Kyne, Thomas A.
  • L'Estrange, Gerald.
  • Lynch, Gerard.
  • McLaughlin, Joseph.
  • McMahon, Larry.
  • Malone, Patrick.
  • Murphy, Michael P.
  • O'Brien, Fergus.
  • O'Connell, John.
  • O'Donnell, Tom.
  • O'Leary, Michael.
  • O'Sullivan, John L.
  • Taylor, Frank.
  • Timmins, Godfrey.
  • Toal, Brendan.
  • Tully, James.
  • White, James.

Níl

  • Ahern, Liam.
  • Allen, Lorcan.
  • Andrews, David.
  • Barrett, Sylvester.
  • Brady, Philip A.
  • Briscoe, Ben.
  • Browne, Seán.
  • Burke, Raphael P.
  • Callanan, John.
  • Callery, Seán.
  • Carter, Frank.
  • Colley, George.
  • Connolly, Gerard.
  • Crinion, Brendan.
  • Cronin, Jerry.
  • Crowley, Flor.
  • Cunningham, Liam.
  • Daly, Brendan.
  • Dowling, Joe.
  • Fahey, Jackie.
  • Farrell, Joseph.
  • Faulkner, Pádraig.
  • Fitzgerald, Gene.
  • Fitzpatrick, Tom (Dublin Central).
  • Flanagan, Seán.
  • French, Seán.
  • Gallagher, Denis.
  • Geoghegan, John.
  • Gibbons, Hugh.
  • Gibbons, James.
  • Gogan, Richard P.
  • Healy, Augustine A.
  • Herbert, Michael.
  • Hussey, Thomas.
  • Kenneally, William.
  • Lemass, Noel T.
  • Leonard, James.
  • Loughnane, William.
  • Lynch, Celia.
  • Lynch, Jack.
  • McEllistrim, Thomas.
  • MacSharry, Ray.
  • Meaney, Tom.
  • Molloy, Robert.
  • Moore, Seán.
  • Murphy, Ciarán.
  • Noonan, Michael.
  • O'Connor, Timothy.
  • O'Leary, John.
  • O'Malley, Desmond.
  • Timmons, Eugene.
  • Tunney, Jim.
  • Wilson, John P.
  • Wyse, Pearse.
Tellers:—Tá: Deputies Kelly and Bermingham: Níl: Deputies Browne and Healy.
Question declared carried.
Amendment declared lost.

I move amendment No. 2:

In page 3, to delete subsection 3 (b).

Amendment put and declared lost.

I move amendment No. 3:

In page 3, subsection 7 (a) (i), to delete lines 17 to 23 and to substitute the following:

"(I) the President of the High Court,

(II) the President of the Circuit Court,

(III) two persons designated by the General Council of the Bar of Ireland,

(IV) two persons designated by the Incorporated Law Society, and

(V) the Secretary to the Government."

This amendment goes to the very kernel of the proposition we are making in relation to the Bill itself, namely, the importance of the qualifications of the person who will take on the office of Director of Public Prosecutions. We say—unfortunately the amendment has been defeated— that a person who has practised as a senior counsel for not less than five years should be appointed to hold that office. On Report Stage we may consider putting down another amendment to the effect that a practising barrister of not less than 15 years' standing should be considered for the Office of Director of Public Prosecutions. To be so consistent a person so appointed should be highly qualified in criminal law.

The person making the nominations for consideration by the Government for the Office of Director of Public Prosecutions should be highly qualified in the administration of the law and the courts system. The persons envisaged in the Bill as it stands are 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.

The Chief Justice is responsible for the despatch of the business in the Supreme Court and the Court of Criminal Appeal. They are his basic responsibilities. He is also responsible for the appointment of notaries and commissioners for oaths. Effectively, the only matters on the criminal side in which the Chief Justice is engaged would be points of law arising from criminal matters.

We suggest that the obvious person who should be appointed in place of the Chief Justice—and I am sure the Attorney General will agree with me here—is the President of the High Court. The President of the High Court is responsible for the despatch of business in the High Court. This includes the Central Criminal Court. He is responsible for the Central Office, Wards of Court, and other such matters. He is also responsible in a supervisory role for district justices. The President of the High Court appoints the various judges to take on various cases, be they in the Central Criminal Court, or in the Special Court. On the civil side, of course, he allots the various judges to their own courts. He decides effectively what their duties will be in relation to the functions they are discharging.

On the criminal side the President of the High Court is clearly the person who should be on this committee instead of the Chief Justice. I do not think there is any gainsaying that. If subsections (2) to (6) are to remain, as they must remain by reason of the last division which went to the Government, the proper person to appoint to position one on the committee is the President of the High Court. His functions are quite clear. His functions in criminal matters are quite clear. We would urge the Attorney General to take note of our suggestion for the substitution of the President of the High Court for the Chief Justice.

I am not talking about the person or persons. I am talking about the offices and the functions deriving from those offices. I should not like to make it in any way a personal matter or, in current parlance, to personalise the matter. Quite the contrary. I put it forward as a reasonable proposition. I put it forward arising out of the functions of the President of the High Court in relation to the disposal of criminal matters. This is a reasonable proposal which the Attorney-General will accept.

The chairman of the General Council of the Bar of Ireland might not necessarily have wide experience in the realms of criminal law. We suggest that the Bar Council nominate two persons to this committee with experience of criminal law. Persons sitting on this committee should have a wide knowledge of the practice and experience of criminal law.

We believe that the President of the High Court and the President of the Circuit Court have that function. We believe also that the two persons designated by the General Council would have the qualifications necessary in knowledge and practice of the criminal law. Again, we do not wish to differentiate between the numbers appointed by the Bar Council and those appointed from the Incorporated Law Society. The president of the Incorporated Law Society may not have any knowledge or practice of criminal law. He may be a conveyancing lawyer or a lawyer with a specialised knowledge of another field outside the realms of criminal law. It may be coincidental that the president of the Incorporated Law Society for 1974 may have a vast knowledge of criminal law but that will not necessarily follow year in year out.

We ask that the Incorporated Law Society appoint two solicitors knowledgeable in criminal law to this committee. We are being consistent that the persons involved have knowledge and practice of criminal law. They must have sound knowledge and judgment. Consequently, our amendment proposes that the Incorporated Law Society appoint such persons. We agree in the fifth part of our proposed amendment that the Secretary to the Government be involved as a liaison between the Government and the committee. I can envisage him acting as secretary to the committee. This would be right and proper. He would not need to have a specialised knowledge of any aspect of criminal law. He would be there in his capacity as a link between the Government and the committee.

Is the senior legal assistant in the Office of the Attorney General in a position to apply for the job of Director of Public Prosecutions? If so, we should exclude him. It is well-known to the members of this Dáil who are legal men that the gentleman holding the position of senior legal assistant in the Office of the Attorney General is of the highest integrity. He is highly knowledgeable in the law.

Our reasons for excluding him are in no way a reflection on his qualities as senior legal assistant. He served as a civil servant under the last Government. The Attorney General has knowledge of him and I am sure he will join with me in paying him a very fair tribute. In our amendment to the Government proposal the people we propose for the committee would be the President of the High Court, the President of the Circuit Court, two persons designated by the General Council of the Bar of Ireland, two persons designated by the Incorporated Law Society and the Secretary to the Government. This is a reasonable amendment. The function of the President of the High Court and the President of the Circuit Court is the administration of criminal law in their respective courts. The High Court includes the Central Criminal Court, special courts and so on. The President of the Circuit Criminal Court assigns judges to that court. The persons nominated to the committee by the General Council of the Bar of Ireland would be knowledgeable in criminal law and in addition would need to be well informed when interviewing people before the appointment to the office of Director of Public Prosecutions. The people nominated by the Incorporated Law Society would have a knowledge of criminal law within the solicitor's profession.

The Government are anxious that this important committee would not be too unwieldy. As Deputies know, it is always very difficult in any walk of life to get a committee of the right size to undertake any task. We wanted a committee which would be representative, eminent and not too large. The committee proposed by the Government would comprise seven people. The committee proposed by the Government would comprise five. I appreciate that this would mean that the Bar Council and the Incorporated Law Society would only have one representative each. While this is a drawback which must be accepted, the balance of advantage lies in keeping the committee small.

The Government concept was that this committee should be representative of areas of activities which could make a very important contribution to the process of selection, not just by experience but by their eminence in the eyes of the public. There should be a representative from the judiciary, the Bar, the solicitors' profession, the permanent public service and the administrators of criminal law. The committee proposed by the Government is to have a judge as one of its members. The Government felt that the judiciary should be represented by the highest judge in the land and this is what has happened. The Chief Justice acknowledged his willingness to act on this committee. We are very grateful. Like Deputy Andrews. I am not concerned with personalities. I suggest that when we are setting up a committee composed of the most eminent people we can get, it is by far the best thing to get the head of the division. That is why the Chief Justice was suggested.

I can see the logic of the argument put forward by Deputy Andrews in relation to his suggestion that the President of the High Court and the President of the Circuit Court should be appointed rather than the Chief Justice. There is no question of personalities being involved but the argument put forward by the Opposition was that these members of the judiciary would have experience of criminal trials while it is suggested the Chief Justice would not have this experience. As I understand it, the argument is that because of this experience they would be in a better position and be better qualified to judge the prowess of counsel in criminal matters.

I can see the logic of this but I do not accept the basic premise which was that the DPP should be appointed from the Bar solely. Once it has been decided he should not, it seems to me the important thing is to have the Chief Justice. While pointing out the logic of the argument made by Deputy Andrews, I do not accept its complete validity for this reason: it appears to indicate that while the President of the High Court and the President of the Circuit Court would have more experience of criminal trials than the Chief Justice, therefore, they would be in a better position to make the most appropriate choice.

I do not accept that argument for the reason that the Chief Justice is pre-eminent in the judicial and the legal world in this country. He is a man of great experience and knowledge and, above all, he knows the members of the legal profession. He presides in the Court of Criminal Appeal and, apart from his knowledge of counsel gained in the Supreme Court and that gained otherwise than in court, he will have experience of the abilities of the people concerned as practitioners of the criminal law in the Court of Criminal Appeal.

The basic reason I cannot accept the line of argument being developed by the Opposition again comes back to the functions of the post to be filled and the functions of the selection committee. The members of the committee will not be concerned primarily with the applicant's ability as an advocate. They will weigh up many considerations but the art of advocacy is not the primary qualification. What the members of the committee will have to do is to judge the applicants and their judgment will be based on all kinds of considerations.

Somebody like the Chief Justice is obviously a highly-qualified person to judge the qualifications of an applicant for the important post of DPP. He will know the standing of the applicant if he comes from the Bar and he is likely to know his standing if he comes from the solicitors' branch of the legal profession. He may not have the same knowledge of the applicant if the latter comes from the public service. It seems to me that because of his pre-eminence in the country and in the judicial field, because of his wide experience and suitability to judge applicants, because of the intimate knowledge he will have of many of those likely to apply for the post, the Chief Justice is a most suitable person to be on the committee. I do not think the arguments in favour of the two other members of the judiciary suggested outweigh the arguments in favour of the Chief Justice.

The Government wished to have representatives of the Bar of Ireland and representatives of the solicitors profession on the committee. The Opposition agreed with this but suggested that rather than having the president for the time being of the relevant professional associations two members be appointed by the associations themselves. I should like to make the following points with regard to this argument. First, it would make the committee too big if there were two members of the Bar Council and two members of the Incorporated Law Society. One member from each branch would be sufficient.

I accept the force of the argument put forward by Deputy Andrews, namely, that the president for the time being of the Bar Council or the president for the time being of the the Incorporated Law Society may have little or no knowledge of criminal law. However, I do not accept that as a necessary disqualification for the position. The fact that the person on the committee does not know the criminal law and has little experience in practising that law is not a relevant consideration. I do not see the committee carrying out an examination; I do not see the applicant sitting for an examination with his knowledge of the criminal law being tested by the committee. Of course, they may feel they should operate in that way but that is a matter entirely for them. Rather I would anticipate that the committee will examine the applicants and their qualifications and, from this examination, will be in a good position to assess the degree of knowledge of the applicants. I fully concede that the president for the time being of the Bar Council may have little knowledge of criminal law but he will have a great deal of knowledge of members of the Bar who are applying. He will know them intimately and will be in a position to assess their standing and qualifications.

Apart from any lack of knowledge which he may have of the field, exactly the same considerations apply in relation to the president of the Incorporated Law Society for the time being. It may well be that, when the appointment comes to be made, the president for the time being will have little or no knowledge of the criminal law but, by virtue of his years of experience, the knowledge he will have gained and because he is President of the Incorporated Law Society, he will have a great deal of knowledge of the various applicants from the solicitors branch of the profession who may apply. He would be well placed indeed to judge the qualities and qualifications of the applicant. Therefore, the lack of knowledge—if in fact it does exist— of the president for the time being of these two professional associations is not, to my mind, a drawback to their appointment. However, I accept that the presidents for the time being of the Bar Council and of the Incorporated Law Society might prefer not to act and provision is made for this eventuality. Provision is made in the next sub-paragraph of this subsection for the appointment of another person to be a member of the committee in place of somebody who may be unwilling to act.

Regulations are to be made under this legislation. I would anticipate that the regulations would provide for a situation where, for example, if the president of the Incorporated Law Society was unwilling to act, somebody nominated by him would be appointed by the Taoiseach, under this section; or somebody nominated by him, after consultation with the Bar Council, or somebody nominated by the Bar Council could be appointed.

The question of the regulations has to be considered later. I can assure the House that the regulations will be considered with the Bar Council and with the Incorporated Law Society. We would welcome their views on drafts which will be prepared. But I would anticipate that we would make provision in regulations for a situation where if the president for the time being of the Bar Council or of the Incorporated Law Society did not wish to act, there could be somebody appointed on the lines I have indicated.

It is true that the senior legal assistant in the Attorney General's office might wish to apply for this position and, in view of the position of the Bill now, he would be eligible to do so. For reasons of very long precedents in this House, I am not going to follow Deputy Andrews in making any remarks about a public servant. Even when favourable remarks are made about a public servant it is not usual to follow this line.

The Attorney General could bend a bit.

I would be delighted to but I do not think it would be a very good precedent.

Precedent or pretence, which?

I merely want to say that there is no significance in my silence on this matter. I draw attention to the fact that the point which is being made by the Opposition is covered by sub-paragraph (2) to which I have referred. If, in fact, the senior legal assistant of the Attorney General for the time being wished to apply for the job he would declare his unwillingness to act on the committee and so a person would be appointed in his place. Bearing in mind the concepts which, as I indicated earlier, are behind the Government's thinking, I would hope that the person to be appointed in his place would be somebody in the public service who would have knowledge of the administration of the criminal law. I can see immediately that criticism can be made of this, in that, if, legislatively, it is provided that the senior legal assistant is a member of the committee and he is not appointed then it would be known that he had been an applicant. I accept this as a criticism but I think it is criticism which must be accepted because of the undoubted advantages of having the senior legal assistant in the Attorney General's office on the committee. Usually this person has very great qualifications and experience. It is very desirable to have such a person on the committee because of the desirability of having the committee composed of people as pre-eminent as possible. Therefore, I think we should leave the committee as it has been comprised for the reasons I have given, bearing in mind the fact that the points in relation to persons who do not feel qualified to act or who do not wish to act can be covered by regulations.

The Attorney General has let slip, I think — intentionally or otherwise — that the person who will be appointed, he hopes, will have a knowledge of the criminal law. That sums up our whole argument. That is the very basis of our argument. The reason why we want a person so appointed to have a knowledge of the criminal law is not based on an aspiration or a hope that that will be the case. We would make it mandatory. Indeed, we may well make it mandatory when we are returned to office, that the person appointed to be Director of Public Prosecutions will have to be a man with a high knowledge of the criminal law. The position in which we find ourselves is astonishing—that the person to be appointed Director of Public Prosecutions does not have the qualifications that we urge, and this brings us back to the amendment.

This amendment is a clear followon of the principles we have been expounding, namely, that there is a great looseness of attitude and mind in this whole Bill relative to the criminal law. I do not suggest that the Attorney General does not take the criminal law seriously, but certainly the legislation proposed is not indicative of a serious application of the criminal law and what the criminal law means to this country, or what the criminal law means in the context of the common law. That is why we urge the Attorney General to take another look at the committee we propose should be set up to advise him on the appointment of the Director of Public Prosecutions.

Now we discover that it is hoped that the person so appointed — it is hoped — will have a knowledge of the criminal law. The Director of Public Prosecutions will have the administration of the criminal law of this country in his hands. As I have said already, he will decide who will be prosecuted and who will not and he will decide who is going to prosecute. That is the reality of his position. He is now taking on the full functions of the Attorney General relating to the criminal law. Might we ask the Attorney General, when he was being appointed — or in relation, possibly, to the next Attorney General — would it have been, or would it be, acceptable that such a person hold the qualifications outlined in this Bill, that the Attorney General would not have the eminence and status of the present holder of the office and, indeed, of his predecessors? That is the basis of our argument, that we are handing over the functions of the Attorney General in relation to criminal matters, electoral petitions and referendum petitions to the Director of Public Prosecutions and it is hoped now that the person so appointed will have a knowledge of the criminal law. With that attitude prevalent in the House, I do not know whether it is necessary for me to pursue the amendments I have tabled to this Bill. This is a matter to which I will give consideration in the next half hour. We will have to consider whether we in the Opposition should be associated, in any fashion, with the loose type of drafting which this Bill has produced and the loose type of thinking which has found its way, not in any deliberate fashion, to the floor of this House. This is a Bill distinguished for its looseness.

I do not think it is any tribute to those people, the Government in the final analysis, to produce subsections 3 (a) and (b) and subsection 7 (a). There is no great distinguishing feature in their thought if they are to take their criminal law seriously. This is not to under-rate the personalities who hold the positions here. We always have to punctuate our remarks in some statutory fashion in case the people who hold office for the time being are sensitive. I am not referring to personalities. I am referring to the offices which they hold for the time being, the President of the High Court, the two persons nominated by the General Council of the Bar of Ireland, the two persons nominated by the Incorporated Law Society and the Secretary to the Government as a liaison.

The Attorney General very fairly acknowledged the logic of my exposition in the first instance when I spoke on this aspect of the Bill and he dismissed it for reasons which he is entitled to consider proper. I do not deny him that right and it would be an impertinence of me to attempt to do so but I disagree with his reasons just as he disagrees with mine. In the meantime this committee has undoubtedly an Alice in Wonderland function. This committee selects candidates to be appointed to the office of Director of Public Prosecutions whenever so requested by the Government. How is the committee supposed to discover who the candidates are to be? Who is to approach suitable candidates or personages? Are there to be letters of application? These matters are not clear in this Bill.

The Attorney General, when replying, may inform me that he can introduce regulations to set out clearly how this is to be done but I should like to know if there is to be a public advertisement in the newspapers seeking applicants for this post. This is the extension of the logic propounded in this section. To whom does an applicant for this post apply? The Attorney General should also address himself to the question of emoluments for this post because they are not mentioned in the Bill. I accept that section 13 refers to the fact that the expenses incurred in the administration of this Act shall, to such an extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas. I do not know whether that covers my point or not.

The Deputy should confine himself to the amendment under discussion.

I am talking about the functions of the committee. How will this committee select the candidates for this post? Are candidates to apply by letter or reply to a public advertisement? I am entitled to ask such questions. I feel sure that the committee would like answers to these questions also and be given information as to what type of emoluments the holder of this office can expect. This is information to which the House is entitled. The House is also entitled to know the emoluments of the person appointed, prior to his appointment, and if these emoluments are comparable with those of the Attorney General because the Director of Public Prosecutions will, effectively, be taking over the functions of the Attorney General.

I am aware that section 2 (8) states that the director shall hold office upon such terms and conditions as may be determined by the Taoiseach after consultation with the Minister for the Public Service. That is all very nice and fine but it does not reveal the figure. It sets out the machinery but we should be told exactly what this individual is to be paid.

The amendment deals with the composition of the committee.

The person applying for this post, and the committee who will make the selection, should be told what is to be paid to the Director of Public Prosecutions.

The Deputy is going outside the scope of his amendment. We can deal with those matters as we reach them on the various sections. I would prefer that the Deputy would deal directly with his amendment.

The Attorney General, when replying, might also deal with the question of emoluments.

The method of application is a matter which is left for the regulations. I hope that the members of the committee-designate would give their views on these regulations which, of course, will be presented to the Dáil in the normal way. All these points are points for regulations rather than for details of the Bill.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 65; Níl, 57.

  • Barry, Peter.
  • Barry, Richard.
  • Begley, Michael.
  • Belton, Luke.
  • Belton, Paddy.
  • Bermingham, Joseph.
  • Bruton, John.
  • Burke, Dick.
  • Burke, Joan T.
  • Burke, Liam.
  • Clinton, Mark A.
  • Cluskey, Frank.
  • Conlan, John F.
  • Coogan, Fintan.
  • Cooney, Patrick M.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Costello, Declan.
  • Coughlan, Stephen.
  • Creed, Donal.
  • Crotty, Kieran.
  • Cruise-O'Brien, Conor.
  • Desmond, Barry.
  • Desmond, Eileen.
  • Dockrell, Maurice.
  • Donegan, Patrick S.
  • Donnellan, John.
  • Dunne, Thomas.
  • Enright, Thomas.
  • Esmonde, John G.
  • Finn, Martin.
  • FitzGerald, Garret.
  • Fitzpatrick, Tom (Cavan).
  • Gilhawley, Eugene.
  • Governey, Desmond.
  • Griffin, Brendan.
  • Harte, Patrick D.
  • Hegarty, Patrick.
  • Hogan O'Higgins, Brigid.
  • Kavanagh, Liam.
  • Keating, Justin.
  • Kelly, John.
  • Kyne, Thomas A.
  • L'Estrange, Gerald.
  • Lynch, Gerard.
  • McLaughlin, Joseph.
  • McMahon, Larry.
  • Malone, Patrick.
  • Murphy, Michael P.
  • O'Brien, Fergus.
  • O'Connell, John.
  • O'Donnell, Tom.
  • O'Leary, Michael.
  • O'Sullivan, John L.
  • Pattison, Seamus.
  • Reynolds, Patrick J.
  • Ryan, John J.
  • Ryan, Richie.
  • Spring, Dan.
  • Staunton, Myles.
  • Taylor, Frank.
  • Timmins, Godfrey.
  • Toal, Brendan.
  • Tully, James.
  • White, James.

Níl

  • Ahern, Liam.
  • Allen, Lorcan.
  • Andrews, David.
  • Barrett, Sylvester.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Briscoe, Ben.
  • Browne, Seán.
  • Brugha, Ruairí.
  • Burke, Raphael P.
  • Callanan, John.
  • Farrell, Joseph.
  • Faulkner, Pádraig.
  • Fitzgerald, Gene.
  • Flanagan, Seán.
  • Gallagher, Denis.
  • Geoghegan, John.
  • Gibbons, Hugh.
  • Gibbons, James.
  • Gogan, Richard P.
  • Healy, Augustine A.
  • Herbert, Michael.
  • Hussey, Thomas.
  • Kitt, Michael F.
  • Lemass, Noel T.
  • Leonard, James.
  • Loughnane, William.
  • Lynch, Celia.
  • Lynch, Jack.
  • Calleary, Seán.
  • Carter, Frank.
  • Colley, George.
  • Connolly, Gerard.
  • Crinion, Brendan.
  • Cronin, Jerry.
  • Crowley, Flor.
  • Daly, Brendan.
  • de Valera, Vivion.
  • Dowling, Joe.
  • Fahey, Jackie.
  • McEllistrim, Thomas.
  • MacSharry, Ray.
  • Meaney, Tom.
  • Molloy, Robert.
  • Moore, Seán.
  • Murphy, Ciarán.
  • Noonan, Michael.
  • O'Connor, Timothy.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Malley, Desmond.
  • Smith, Patrick.
  • Timmons, Eugene.
  • Tunney, Jim.
  • Walsh, Seán.
  • Wilson, John P.
  • Wyse, Pearse.
Tellers: Tá, Deputies Kelly and B. Desmond; Níl, Deputies Healy and Browne.
Question declared carried.
Amendment declared lost.

I suggest that we take amendments Nos. 4 and 5 together. Amendment No. 5 is consequential on amendment No. 4.

I move amendment No. 4:

In page 3, subsection (7) (b), lines 31 and 33, to delete "Government" and to substitute "Taoiseach" in both places where it occurs.

The Bill as circulated provided that the Government would request the committee to select candidates for appointment to the office of Director and that the committee would inform the Government of the candidates selected for their suitability for appointment. This would have meant that the Government would have to take a formal decision at one of their meetings to request the committee to act. On reconsideration, it was felt it would be more appropriate that the request to the committee should come from the Taoiseach and that is the reason for amendment No. 4.

Amendment No. 5 is consequential on amendment No. 4. I should point out that, in addition, the opportunity is taken, in drafting amendment No. 5, to make a minor drafting change in sub-paragraph (7) (II) of the Bill as circulated. The phrase "pursuant to that or another request" has been amended to "pursuant to that request or pursuant to another request".

Amendment agreed to.

I move amendment No. 5:

In page 3, subsection (7) (c), to delete lines 47 to 58 and to substitute the following—

——"then either—

(I) the Government shall appoint a person to be the Director who was selected or amongst those selected by the committee pursuant to a previous request (if any) under that paragraph in relation to that appointment, or

(II) the Taoiseach shall make a further request to the committee under that paragraph and the Government shall appoint a person to be the Director who was selected or amongst those selected by the committee pursuant to that request or pursuant to another request under that paragraph in relation to that appointment".

Amendment agreed to.

I suggest that we take amendments Nos. 6 and 7 together since amendment No. 7 is consequential on amendment No. 6.

I move amendment No. 6:

In page 4, subsection 9 (a), lines 25, 26 and 27, to delete all words after "Government" and to substitute "for stated reasons".

This is what we consider to be a tidying up amendment. The Bill has already provided for a committee relevant to the appointment of the Director of Public Prosecutions. Now we have another committee being set up relative to the removal of the Director of Public Prosecutions so appointed. This is a cumbersome and unnecessary process. We say that the director may be removed by the Government for stated reasons but why do we have to go through a report of a committee under paragraph (b)? The committee under paragraph (b) will consist of the Chief Justice, a Judge of the High Court nominated by the Chief Justice and the Attorney General. We strongly recommend that the Director of Public Prosecutions appointed by the Government may be removed by the Government for stated reasons. There will be no suggestion then that the Government can remove the Director of Public Prosecutions without publishing the reasons. They would have to make public their stated reasons.

This is a safeguard in relation to the Director of Public Prosecutions which we believe he is entitled to. Why do we have to go through a committee system? Surely when the stated reasons are published they will be backed up by an ad hoc reference to the Chief Justice or the judge nominated by the High Court. The Attorney General can then act on the advice of the people who are aware of a situation whereby the Director of Public Prosecutions is no longer in a position to carry out his office.

The section proposed by the Government states that the Chief Justice and the High Court Judge nominated by him will investigate the condition of health, be it physical or mental, of the Director of Public Prosecutions and inquire into the conduct of the execution of his office by the director either generally or on a particular occasion. Why we have to enshrine in our legislation this type of situation is beyond me. Surely the answer to it is that the director may be removed from office by the Government for stated reasons. We should exclude all that follows "for stated reasons". It would mean that section 2 (9) (b) would go by default if the Attorney General accepts that my amendment is a reasonable one. I respectfully urge him to consider that my amendment is a reasonable one. It would be the proper method whereby a Director of Public Prosecutions would be removed from office. If I could have his views on that in the first instance, then it would be my intention to pursue the matter in a gentle fashion a little bit further.

I should explain what the thinking behind this procedure is. The whole object of this subsection is to strengthen the independence of the Director of Public Prosecutions. It is desired to make it as clear as possible and as far as legislation can do that that the Director of Public Prosecutions is to be absolutely independent in the exercise of his functions. That is spelt out in the legislation. In addition, it was felt highly desirable to have this further safeguard built into this position. The Director of Public Prosecutions will have the safeguard that every public servant has, namely, that he cannot be removed from office except by order of the Government. It was thought desirable to give an added safeguard that before the Government would make such an order the conduct of the Director would be investigated in the manner that has been suggested. I think we are legislating for a situation which everybody would hope would never arise, but, nevertheless, it is prudent to consider a situation where a difference of opinion might arise in relation to the administration of the criminal law.

It has to be borne in mind that the Director must feel himself to be absolutely independent in the way in which he carries out his office. It is important that he be seen to be independent. We think this has been achieved not only by writing his independence clearly into the statute but also by giving him an independence over and above that which an ordinary civil servant would have, namely, that this committee would consider any complaints, any disabilities, which might be a cause for his dismissal. I would very much hope it would never be necessary to operate this section, but I think it is desirable to have it there, and that it is the sort of safeguard which is very useful to have.

May I take it then that the Director of Public Prosecutions cannot be removed from office except under this subsection?

That is right. The Government would do the removing.

I accept the Government would do the removing, but when the committee report to the Government the result of their investigations, then the Government will, having studied the report and if the report is adverse, act on that report and remove the Director of Public Prosecutions. They will then, I assume, have to publish the reasons for so removing the Director of Public Prosecutions. Therefore, their reasons then become reasons publicly stated. Like the Attorney General, I hope the position will never arise where any individual, be he the Director of Public Prosecutions or anybody else would have to have his conduct inquired into or be examined on account of his health either physically or mentally.

Can the Attorney General give us examples of exactly what he means by that provision? While we accept that the Director of Public Prosecutions should be independent, of course, under this Bill we do not think he can be by virtue of the fact that he is going to be plucked from the Civil Service; this again, is no reflection on the Civil Service but is being consistent with our proposition that the director should be a man highly qualified in the area of criminal law. However, if, as I say my amendment is accepted, namely, that he can only be removed for stated reasons, it is clearly cleaner legislation than this form of legislation as proposed. I think this is unnecessary legislation, unnecessary to the extent that you need not legislate to bring about a situation which emerges from the legislation. I believe a report can be obtained from the Chief Justice or from a High Court judge appointed by him without having to legislate for it. When that report is received, that person, for stated reasons, is removed from office. I think it is a totally reasonable proposition, and I do not think the provision in the Bill has anything to do with the independence of the director so appointed. On the contrary, he has to go through a situation in which the Chief Justice, who may have no medical knowledge at all, or a High Court judge appointed by him, has to sit in judgment on the director's health and physical well-being. This is a very dangerous precedent. Then the Chief Justice has to inquire into his conduct either generally or on a particular occasion. The provision says the inquiry is to be carried out "in such a manner as he thinks proper". After all, we are dealing with a human being. The Government themselves would be well able to manage the removal of the Director of Public Prosecutions without having to go through the formula proposed here. I do not think it is good legislation or that it brings about what the Attorney General undoubtedly wishes to bring about, namely, the independence of the Director of Public Prosecutions. It does nothing of the kind. Why should we have a committee set up to inquire into the mental and physical wellbeing of the director when, by observation, without any particular medical knowledge, one could see the physical and mental deterioration of an individual.

I would strongly urge again that the Director of Public Prosecutions be removed for stated reasons, because, in the final analysis, the Government will have to state their reasons, even after the investigation and the report by the committee proposed in section 2 (9) (b) of the Bill we are discussing. I do not want to take up too much time on this matter, but the Attorney General might say whether the reasons for the removal of the director will have to be published. I would also like to ask whether the director's appointment will be permanent, and as I have already asked, except for stated reasons, whether the Government can remove the director.

I just ask this question for my own personal information. Does this Bill envisage that the Director of Public Prosecutions be a permanent office and continues regardless of what Government is in power? Does it further mean that a new Government coming into power, who for one reason or another, stated reasons, might not wish to continue with the services of the incoming Director of Public Prosecutions, could remove him?

I can assure the Deputy the provision is designed to give the director more independence. The idea is that if he can easily be removed from office there is the danger that he might consider his independence undermined, perhaps, by indications of disapproval by the Government on certain policy aspects of his office that he might adopt. Secondly, there is the importance from the public point of view that the office would be seen to be absolutely independent and so it will be seen by this legislation that the Government cannot just dismiss the director. Whether or not this section is there, the Government has the legal power to dismiss any civil servant, but the protection, of course, that civil servants have is that Governments in practice do not do this unless for very grave reasons indeed. Superimposed on his independence, which he has as a member of the public service, there is the added concept of a requirement for a committee to investigate and report on any matter which would justify his removal from office. To my mind this is a considerable safeguard. Indeed, there are precedents, not in this sphere but in another sphere; an individual was considered to be acting improperly and investigatory machinery was set in motion. The investigation indicated that he had been acting improperly and the individual concerned resigned rather than be dismissed from office. That seems to me to be a humanitarian approach and a very considerable safeguard. If a situation should arise—we would hope it would not arise—in which it became necessary to investigate the health or conduct of a director he would be given an opportunity of considering the suggestions made against him and, presumably, he would want to put his case before this committee; if an adverse view were propounded by the committee he would be given an opportunity of resigning. I sincerely hope this will never arise, but I think it is most important to maintain independence from the Government and this is one of the ways in which it is hoped to achieve that. He will be a permanent member of the Civil Service and he cannot be removed from office except by the procedure indicated.

In the matter of reasons, would it be necessary for the Government to publish these reasons?

I do not think it would be necessary. I would be surprised if they were published. Publication might be undesirable in certain circumstances in the interests of the person concerned, but this would be a matter for the Government of the day to decide.

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

Amendment No. 7 is consequential and it, therefore, also falls. That brings us to the end of the amendments on section 2.

Amendment No. 7 not moved.
Question proposed: "That section 2, as amended, stand part of the Bill."

We shall have to have a vote on the section because it is the very kernel of the whole argument.

Question put.
The Committee divided: Tá, 65; Níl, 59.

  • Barry, Peter.
  • Barry, Richard.
  • Begley, Michael.
  • Belton, Luke.
  • Belton, Paddy.
  • Bermingham, Joseph.
  • Bruton, John.
  • Burke, Dick.
  • Burke, Joan T.
  • Burke, Liam.
  • Clinton, Mark A.
  • Cluskey, Frank.
  • Conlan, John F.
  • Coogan, Fintan.
  • Cooney, Patrick M.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Costello, Declan.
  • Coughlan, Stephen.
  • Creed, Donal.
  • Crotty, Kieran.
  • Cruise-O'Brien, Conor.
  • Desmond, Barry.
  • Desmond, Eileen.
  • Dockrell, Maurice.
  • Donegan, Patrick S.
  • Donnellan, John.
  • Dunne, Thomas.
  • Enright, Thomas.
  • Esmonde, John G.
  • Finn, Martin.
  • FitzGerald, Garret.
  • Fitzpatrick, Tom (Cavan).
  • Gilhawley, Eugene.
  • Governey, Desmond.
  • Griffin, Brendan.
  • Harte, Patrick D.
  • Hegarty, Patrick.
  • Hogan O'Higgins, Brigid.
  • Kavanagh, Liam.
  • Keating, Justin.
  • Kelly, John.
  • Kyne, Thomas A.
  • L'Estrange, Gerald.
  • Lynch, Gerard.
  • McLaughlin, Joseph.
  • McMahon, Larry.
  • Malone, Patrick.
  • Murphy, Michael P.
  • O'Brien, Fergus.
  • O'Connell, John.
  • O'Donnell, Tom.
  • O'Leary, Michael.
  • O'Sullivan, John L.
  • Pattison, Seamus.
  • Reynolds, Patrick J.
  • Ryan, John J.
  • Ryan, Richie.
  • Spring, Dan.
  • Staunton, Myles.
  • Taylor, Frank.
  • Timmins, Godfrey.
  • Toal, Brendan.
  • Tully, James.
  • White, James.

Níl

  • Allen, Lorcan.
  • Andrews, David.
  • Barrett, Sylvester.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Briscoe, Ben.
  • Browne, Seán.
  • Brugha, Ruairí.
  • Burke, Raphael P.
  • Callanan, John.
  • Calleary, Seán.
  • Carter, Frank.
  • Colley, George.
  • Connolly, Gerard.
  • Crinion, Brendan.
  • Cronin, Jerry.
  • Crowley, Flor.
  • Cunningham, Liam.
  • Daly, Brendan.
  • Davern, Noel.
  • de Valera, Vivion.
  • Dowling, Joe.
  • Fahey, Jackie.
  • Farrell, Joseph.
  • Faulkner, Pádraig.
  • Fitzgerald, Gene.
  • Flanagan, Seán.
  • French, Seán.
  • Gallagher, Denis.
  • Geoghegan, John.
  • Gibbons, Hugh.
  • Gibbons, James.
  • Gogan, Richard P.
  • Healy, Augustine A.
  • Herbert, Michael.
  • Hussey, Thomas.
  • Kenneally, William.
  • Kitt, Michael F.
  • Lemass, Noel T.
  • Leonard, James.
  • Loughnane, William.
  • Lynch, Celia.
  • Lynch, Jack.
  • McEllistrim, Thomas.
  • MacSharry, Ray.
  • Meaney, Tom.
  • Molloy, Robert.
  • Moore, Seán.
  • Murphy, Ciarán.
  • Noonan, Michael.
  • O'Connor, Timothy.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Malley, Desmond.
  • Timmons, Eugene.
  • Tunney, Jim.
  • Walsh, Seán.
  • Wilson, John P.
  • Wyse, Pearse.
Tellers: Tá, Deputies Kelly and B. Desmond; Níl, Deputies Healy and Browne.
Question declared carried.
SECTION 3.

Amendments Nos. 10 and 11 are related to amendment No. 8. I suggest, therefore, that we debate them together.

I move amendment No. 8:

In page 5, subsection (2), lines 8 and 9, to delete "proceedings, or other proceedings with respect to or connected with criminal proceedings," and to substitute "matters, or to election petitions or referendum petitions,"

These are purely drafting amendments. It is desirable to bring the sections referred to in line with the definition section.

Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."

We have certainly some doubts about this section. It provides that a law officer, and this is defined as the Attorney General, the Director of Prosecutions or the acting Director of Prosecutions, may direct any of his professional officers, and this means an officer who is a barrister or a solicitor, to perform on his behalf and in accordance with his instructions any particular function of the law officer in relation to a particular case or cases or in all cases in which that function falls to be so performed. This is the type of delegation which Article 30.3 of the Constitution was designed to prevent, as we understand it. That article was quoted at the beginning of the explanatory memorandum to this Bill.

We have some doubts—and I am sure the Attorney General will disabuse us in this respect—about the constitutionality of this section. We say that there is no basis on which a function of the Attorney General, or a function now carried out by the Attorney General which is to be carried out in future 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 on the professional side of that office. We believe this an undesirable and even dangerous precedent. When this party returns to office we will take a very serious look at section 4 in the light of what I have stated. Will the Attorney General indicate that this section does not run contrary to the Constitution and that it has the merit of constitutionality about it?

There is nothing unconstitutional in this section. The concept is not one of delegation. In certain circumstances, as provided in the section, an officer in the Attorney General's office or the director's office may carry out, on behalf of the Attorney General or the director, as the case may be, some of these functions. This is not an unusual provision. There is an analogous provision already in existence in section 20 of the Criminal Procedure Act, 1967. It provides:

The consent of the Attorney General under any provision of this Part may be conveyed in writing signed by the Attorney General or orally by a person prosecuting at the suit of the Attorney General or appearing on his behalf.

The Attorney General post was created in accordance with the Constitution. It cannot be suggested that every criminal case must be prosecuted personally by him. It does not mean that every act which the Attorney General is required to do by virtue of his office must be done personally by him. Such an interpretation of the Constitution would lead to complete absurdity.

There are provisions for conveying orally to the court the attitude of the Attorney General by someone acting on his behalf. The concept in this section is that there may well be circumstances depending on the particular matters which may arise in the administration of the office where the director or the Attorney General, as the case may be, may direct in the manner indicated in this section, how the provisions are to be carried out. It is not a delegation; the officers conabus cerned will be acting for and by direction of the Attorney General.

The Attorney General said "it is not a delegation". Does he mean that they will be carrying it out on behalf of the Attorney General? Did he say that these matters will be delegated to him?

No, I did not use that expression "delegated to him". The concept in law would be that the officer will be acting on behalf of the Attorney General or the director, as the case may be. This will be a concept in law as a result of the statute. As I have indicated, this is not a novel provision and is not in any way prohibited by the Constitution. The Constitution created a constitutional organ of State and a constitutional office. It cannot be read as meaning that every act appertaining to that office must be undertaken by the Attorney General. While we are avoiding the concept of a form of delegation we are, in fact, indicating that the professional officer will be acting on behalf of and by direction of the Attorney General.

I should like to put on record my doubts about this section in the context of its constitutionality.

Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

This section provides that:

(1) 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.

(2) The Government may, by order, amend or revoke an order under this section including an order under this subsection.

Again we express our reservations about the constitutionality of this section as it now stands. I am sorry to be repetitious in my reference to Article 30.3 of the Constitution which the Government provided in the explanatory memorandum. This Article reads:

All crimes and offences...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 the law to act for that purpose.

I explained the disjunctiveness of the matter when I contributed on the Second Reading of this Bill. My view has not changed. The Government cannot by a mere order suddenly switch from the Director of Public Prosecutions to the Attorney General or vice versa. Consequently, we have doubts about the constitutionality of the section. Of course, we can only express doubts about the constitutionality of any matter which comes before us. The only place it can be tested is in the courts. Until the matter is tested those doubts remain. In the meantime we would be failing in the discharge of our functions if we did not express them and perhaps the Attorney General would place on the record his reply to the doubts raised.

The position is that the Constitution does not prohibit the establishment of a Director of Public Prosecutions, on the contrary, it contemplates the creation of such an office. In my opinion, the Constitution does not prohibit in any way the operation of the section now under discussion in that there may be circumstances—I hope they never arise—where the Government of the day might consider it desirable that certain prosecution functions which had until then been carried on by the director should be carried out by the Attorney General. I do not see how it can be suggested this is prohibited by the Constitution.

Once an order is made under the section, the director is no longer a person authorised in accordance with law to act in cases which are the subject matter of the order and the Attorney General becomes that person. It appears to me this is permitted by the Constitution and is a necessary provision.

Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."

The Attorney General was not here on the last occasion when we vigorously pointed out the doubts we had about the efficacy of this section. The section itself is praiseworthy and nobody denies that. We agree that anyone who interferes with the due process of the law should be subject to the law. There are a number of sanctions clearly available whereby if a person attempts to interfere with the due process of the law he is liable to proceedings. Section 6 (1) (a) states:

Subject to the provisions of this section 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...

We are dealing with a person whom we consider to be responsible, namely the Director of Public Prosecutions. When we consider persons sufficiently qualified and responsible and appoint them to the eminent positions of Attorney General and Director of Public Prosecutions—although we may have some doubts about the qualifications for the latter post as set out in this Bill—such people should not have their responsibilities outlined in legislation of this nature.

As section 6 (1) (a) stands, there is no sanction, good, bad or indifferent for a person who contravenes it. It states that it will not be lawful to communicate with the Attorney General or the Director of Public Prosecutions 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, but there are no special penalties for attempting to influence the individuals named in the section. We agree with the principle that the process of the law should not be influenced in any fashion but we do not accept that this is the right kind of section to be in a Bill of this nature on the grounds that the individuals named are responsible people, that they will take action on their own account anyway, and that they will discharge their functions responsibly.

It is difficult to comment on the matter having regard to what we consider to be a rather fatuous section in the way in which it is set out, not in its principle. I would point out that no punishment is provided in the section. The Attorney General must agree with me when I say that if an offence is set out it must be punishable in law and there must be a sanction or penalty available if a person commits the offence. If a section of this kind is set out, the person appointed as Attorney General would not be a suitable person in his own right and I would ask the Attorney General to comment on that. The language is the language by which offences punishable in law are created but no punishment is provided.

The reasons for this section can be stated briefly. It is not for one moment being suggested that any past or future holder of the office of Attorney General or of Director of Public Prosecutions has been, or will be, influenced by improper communications. The concern of the Government was with public attitudes. It was considered desirable that the reality of the situation be made abundantly clear and this is the reason the section was so drafted.

I agree fully that no punishable offence is created and this was deliberate. It was decided that it would not be necessary to have a punishable offence in this Act. This view may well not prove correct in practice and if it does not the legislation will have to be amended. But I would hope—and I think it is a reasonable hope—that no amendment would be called for because in a very short time, it seems to us, this legislation will become Known. Of course, it will be known to Members of Parliament. It will be known to members of the public who follow affairs in Parliament. It will also be quickly known to a wider public.

Therefore, rather than create an offence and have it punishable in relation to persons who may be completely ignorant of a situation and are merely carrying on a practice that has been carried on for many years and so find themselves up against the criminal law through no fault of their own, it seemed to us preferable not to create a criminal offence in the first instance. I am hopeful that the view the Government have taken of the operation of this section will work out in practice so that it will be unnecessary to create a punishable offence. But I would hope that, if it became necessary to do so, the Oireachtas would pass amending legislation. However, I am fairly confident that this necessity will not arise and that in a comparatively short time, when this Bill is in operation, the effect of this section will be realised and accepted by the public.

Then what we are doing is legislating for public attitudes. I do not think we can do that here. It becomes even more reprehensible when the Attorney General makes the point: right, if public attitudes do not attach themselves to the intention of this section, and, in fact, they do contravene the section, then we shall have to come back here and amend the section. Surely that is bad law in itself?

Indeed, I made the point, at column 828, Volume 273 of the Official Report for Tuesday, 11th June, 1974, when we were discussing the Second Stage of this Bill, when I said:

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.

I then went on to quote the section we are now discussing. I asked: why do we, in this section, effectively condemn men who have been in the public service over the years and who have not been found wanting in the discharge of their duties? Why do we have to humiliate these people, people in whom we have resided our confidence over the years; who have discharged the functions they were appointed to perform? I think it is a wrong section and the Attorney General—while not directly admitting it because it would not be his function so to do—has said it does not provide sanctions, that we are effectively legislating for public attitudes, that it is designed to prevent people communicating with the persons there. Would the Attorney General answer me and say is it not a fact that there are sanctions available in instances where it is tried to bring undue influence, relative to criminal matters, on the individuals concerned here? There are sanctions available.

Why do we introduce into our legal system now a piece of window dressing—no more, no less—which does not provide a penalty at all? I think it is probably one of the most unusual pieces of legislation this House has ever had to discuss, having regard to its ineffectuality. I do not think this House has been set up to legislate for public attitudes and, hopefully, expect that by putting in a piece of window dressing the public will accept its intention. I do not underestimate the intelligence of the public, quite the contrary, but there are a number of people within the society in which we live who will not accept the good intentions of the section we are now discussing. Consequently, I would say it is bad law. The principles enshrined in it are praiseworthy but I believe we are legislating badly and, if we are legislating badly, then I think we have to decide that we should not include it in the legislation with which we are dealing.

As we are dealing with section 6, might I point to subsection (2) (b) where reference is made to "member of the family"? From my reading of that subsection, there are certain obvious omissions; I know it from professional practice. Knowing family circles, as we all do in this House, I think the words "niece, nephew, uncle, aunt and in loco parentis” should be included in that paragraph.

I appreciate the point Deputy Esmonde makes. However, the way I would see this operating would be that if a person did not come within the scope of the words "member of the family" and so was not entitled to make the communications which would be permitted under the section, that person would not be without remedy and in fact could make certain that the points he wished to bring to the notice of the director or of the Attorney General, as the case may be, would be brought to such notice properly. I should like to stress that, in this connection, communications to the director and to the Attorney General, as the case may be, can be of considerable assistance in the administration of justice. It is not desired to stop people who have the interest in the matter, which is permitted in the section, making these communications. If the people in the category referred to by Deputy Esmonde find that they have information which would be material for the administration of justice, I think it should be possible for them to see that this is conveyed without any infringement of section 6. It was necessary to indicate who were the people who were fully entitled to make communications under the section.

The concept is that members of the family should be entitled to do so. The idea is that we should permit people who know very well the circumstances which give rise to the necessity to make communications, make those communications. It was for this reason that the definition clause was drafted in accordance with a similar clause in the 1961 Civil Liability Act, in wide terms. I fully appreciate that there might technically be members of a family who, in ordinary parlance, might not be included in that phrase, but I think it would not be desirable to make it too broad. I think the situation envisaged by Deputy Esmonde can be met by the person with the information seeing that it is got to the director or to the Attorney General through some of the people included in the section entitled to give it.

I would also stress in answer to the other point raised that I do not think any public official would consider this to be in any way a slur on his integrity. It is not so intended and I do not think it would be so taken. The concept is the one of public attitudes to the manner in which communications are made at the present time. I wish to differentiate between that concept and what I said earlier in this discussion, namely, the way in which the Bill would operate in practice. How we would see it operating in practice is that people who make communications contrary to the section will be informed that the communications cannot be entertained. This fact will become widely known. Persons who might be innocently tendering these communications will not be in breach of the criminal law if they so do. It will become known pretty quickly that this law exists. It will certainly be known to legislators and persons interested in Parliamentary affairs and in the administration of justice. It will also become known to the general public, and the sort of public attitudes to the present situation will be changed fairly quickly. In my view this will assist in the general attitudes to the administration of law in the country.

We consider the intention of this section to be worthwhile and of consequence but I am afraid it indicates the folly of over-legislation. To introduce this type of legislation is a slight on the integrity of this Government's staff. It spells out an offence without providing any mode of trial or penalty.

Does the Deputy not agree that this is a rather in terrorem section to try to obviate the abuse that has been experienced to date?

I agree that it is an in terrorem section but it is an in terrorem section, full stop. It has no teeth and that is the reason why I feel it is bad.

The Deputy should look at subsection (5) of section 2 which states:

The Director shall be independent in the performance of his functions.

In my view that is a clear declaration of where we all stand in the matter.

I am pleased that the Deputy read that subsection because it was one of the lines I intended to follow.

Does it not solve the problem?

It solves the problem but why have section 6 in the Bill? If we agree that the director shall be independent in the performance of his duties, why does the Government have to have any doubts about his independence?

Because we need to spell it out to the public. It is very hard for the Deputy and I, as lawyers, to explain it but when we have a written document it is different.

We cannot legislate for public attitudes. It is desirable that we should inform the public that if they communicate with the individuals named they are doing wrong but to say that without providing some sort of sanction if they commit that wrong has no merit. Leaflets could be sent out to the public rather than have this thing enshrined in legislation. I repeat that we cannot legislate for public attitudes. If we accept that the Director of Public Prosecutions shall be independent in the performance of his functions why, in section 6, insult him? If we are going to have a Director of Public Prosecutions who will be a responsible person in every respect and will be independent in the discharge of his functions—we do not accept that the qualifications under this Bill are high enough— why insult him with this sort of backhand and unnecessary legislation?

In fact, this is not legislation. It is a pious platitude. It is no more than a piece of piety and if there is a piece of piety enshrined in legislation God save us from that type of piety.

It makes the Deputy's life, and my life, much easier.

This section is not agreed for the reasons I have announced. We accept the principles enshrined and we agree that there should be a prohibition of certain communications in relation to criminal proceedings but this is impracticable and unenforceable and existing law already provides for the obstruction of justice. We feel it is unenforceable law and is impracticable having regard to the fact that there are no sanctions. It is bad law and this side of the House cannot support bad law. We do support the principle.

That is very important.

Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."

This section gave rise to a considerable amount of controversy on the last occasion. Now that the Attorney General is here it is only fair to point out to him that in the euphoria of having become Attorney General he did state publicly that he would distribute State briefs on a fair and equitable basis. When that statement was made everybody felt that he would follow in the footsteps of his predecessor, Mr. Colm Condon, S.C., a man who discharged his function with integrity and in a fair and equitable fashion. However, the hopes of the Bar were shattered when gradually we saw the elimination of individuals who could be described as supporters of one side of the political spectrum as against the other. We saw their replacement with individuals who could be described as supporters of the present Government.

I should like to make it quite clear, in fairness to the individuals who were deprived of what I would consider to be their entitlement having regard to their undoubted ability and proven competence when they received State briefs from the former Attorney General regardless of political affiliations, that they did not complain of the fact that they were being deprived of State briefs because they believed in a particular political party. I have always expressed the view that members of the Law Library, regardless of political affiliation, men of proven worth and competence, should be given the work.

If we decide, through a public undertaking in this House, that the Director of Public Prosecutions will probably discharge one of his functions, namely, the transmission of State briefs to individuals of proven worth and competence in the Law Library regardless of their political background. If we could have that statement here, why do we have to have this section in the Bill? The Director of Public Prosecutions according to the Bill and according to what the Attorney General and Deputy Esmonde have said, is independent and can exercise his functions in relation to the distribution of State briefs. What happens then in a case where an individual in the Law Library feels aggrieved because he is not getting a State brief? Can he take a declaratory action asking that it be declared that because of his political affiliations he is not getting a State brief? What happens if the declaratory action fails or if it succeeds? Why do we have to go through this? Has all honour failed us? One of the main functions of a Director of Public Prosecutions will be to ensure that political patronage at Law Library level in the distribution of State briefs is brought to an end quickly. Why can we not trust him to do that job without having to set up this tortuous procedure? I can see individuals in the Law Library being offended by this type of procedure. I do not have to spell out the reasons. People can be sensitive. I will leave it at that. I am a barrister myself and I am proud to be associated with the legal profession and the Bar in particular. I would like to declare my interests as far as my association with the Bar is concerned. It is difficult for me to stand up here and be critical but I have to discharge two functions and my main function, as I understand it, is that of a public representative. If I fail to criticise because I am associated with another group, then I am not discharging my functions as a public representative.

Having thought about this section quite a lot, I believe it will be unenforceable. As a statement of intent it is very worthy but can the Attorney General not say to the House that the Director of Public Prosecutions, who will be the right man for the job according to the Attorney General, will, without having recourse to this type of legislation, discharge his function in relation to the distribution of State briefs? It is very difficult for me, having regard to the record of the Government since they have come to office, to accept the statement of intent outlined here. I dealt with this at considerable length on Second Stage and it is not my intention to go into it again but certainly since the present Government have come to office they have distinguished themselves by their ruthless exploitation of patronage, in the law at any rate. If I thought this section was operable I would support it. I support the intention of the section. I think everybody in the Law Library and everybody outside it, although there are not that many people outside the Law Library interested in the internal "goings-on" of the Law Library, would be glad to see the system of political patronage on State briefs and, indeed, political patronage generally brought to an end. I would say "hear, hear" to that attitude. It can give rise and it may give rise to dissension among people with a very proud tradition and anything that might erode that proud tradition should be brought to an end.

This section is clearly unenforceable. I would suggest that the person who will be appointed as Director of Public Prosecutions will be well able to manage the situation. The appeals system is quite extraordinary. There may be declaratory action after declaratory action when people do not receive what they consider to be their dues in the matter of State briefs. I would ask the Attorney General to comment on what I have said. I have no doubt he will refer to the statement he made about the fair and equitable distribution of State briefs on his accession to the respected position he holds. He has been in office now for almost a year-and-a-half and there is certainly no evidence of a wind of change relative to the distribution of State briefs. Why we have to wait for a Bill of this nature to bring an end to an insidious system, to say the very least of it, beats me. The Attorney General will admit that the previous Attorney General did give State briefs to individuals, regardless of their political affiliations, and that the previous Attorney General did enjoy the highest esteem of the Bar in his capacity as Attorney General and as a colleague, as he does now.

I do not agree with the criticism that this section is inoperable. I would anticipate that discussions between the Attorney General, the Director of Public Prosecutions and the Bar Council would take place from time to time, that there would be a clear understanding as to how this section is to be operated by members of the legal profession, that in accordance with the understanding that would be arrived at the section would be operated and I think it can achieve the end which we are all agreed should be achieved. I do not anticipate the danger of declaratory actions which Deputy Andrews has referred to.

Subsection (4) provides for the making of regulations which would deal with the investigation of allegations that the section has not been complied with by the Director or the Attorney General as the case may be. Again I look forward to the co-operation of the Bar Council in drafting these regulations but I would visualise a complaints procedure set up by regulation by which anybody who felt aggrieved at the operation of the section could utilise this complaints procedure.

I would not accept that this section is an inoperable one. I think it will achieve the ends which we all seek to achieve. I am well aware of the criticisms which have been made against me personally in this matter. I feel they are, however, in reality directed against the system which has been operating in this country for the last 50 years. It is that system we want to change. I do not propose to deal in any detail with the individual matters raised against me personally because it would be very invidious to do so as it would involve dealing with particular people and this is highly undesirable.

I expressed the view, however, that the record of the last 16 months can be compared easily with the record of the previous 16 years and people will be able to judge from the record if the criticisms are justified. As I say, I think these criticisms stem from the system which has been operating for a long time in this country and it is a very good thing that this legislation is now bringing it to an end.

I have indicated our opposition to this section and we will leave it at that. I would like to make it clear, once again, that our opposition to this section, so that there will be no doubt about it, is based on the fact that we accept as a statement of intent it is an extremely worthy section. We believe if the person appointed to be Director of Public Prosecutions is to have responsibility, amongst others, for the dispensation of State briefs, he should be well able to do so without having to have legislation to do it for him.

Question put and agreed to.
Section 8 agreed to.
SECTION 9.

I move amendment No. 9:

In page 7, between lines 48 and 49, to insert the following new paragraph:

( ) No Acting Director shall be appointed to hold office for a term in excess of 12 months.

This is an amendment which would ensure that the Office of the Director of Public Prosecutions, when vacated, should not be left vacant for more than 12 months and that no acting director shall be appointed to hold that office for a term in excess of 12 months. This would ensure that if for various reasons under this Bill a Director of Public Prosecutions was removed from office or died in harness the office of Director of Public Prosecutions would not remain vacant for more than 12 months.

It is a reasonable amendment and is a very important one. No acting director should be appointed to hold office for a term in excess of 12 months. I would appreciate the Attorney General's views on this. The amendment is self-explanatory and I do not think it needs any more explanation from me.

It would be a useful addition to the Bill and I think it should be accepted.

I appreciate that.

Amendment agreed to.

I move amendment No. 10.

In page 8, subsection (6) (a), lines 23 to 25, to delete "proceedings, or other proceedings with respect to or connected with criminal proceedings", and to substitute "matters".

Amendment agreed to.

I move amendment No. 11:

In page 8, subsection (6) (b), lines 37 to 39, to delete "proceedings, or other proceedings with respect to or connected with criminal proceedings", and to substitute "matters".

Amendment agreed to.
Section 9, as amended, agreed to.
Sections 10 and 11 agreed to.
SECTION 12.

I move amendment No. 12:

In page 9, line 3, to delete "the regulation" and to substitute "the order or regulation".

This is a drafting amendment.

Amendment agreed to.
Section 12, as amended, agreed to.
Sections 13 and 14 agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 10th July, 1974.
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