Prosecution of Offences Bill, 1974: Report and Final Stages.

Question proposed: "That the Bill be received for final consideration."
Deputy Andrews rose.

If Deputy Andrews wishes to refer to what is in the Bill, he might wait until we reach the Fifth Stage.

Question put and agreed to.
Question proposed: "That the Bill do now pass."

My arguments when the Bill was introduced were dealt with by the Parliamentary Secretary to the Taoiseach and the Minister for Defence and on Second and Committee Stages by the Attorney General. Now we have a third person from the Government, the Minister for Justice, dealing with the Bill.

The Deputy should be flattered to have three such people dealing with the Bill.

That depends on one's political prejudice. I understand that the Attorney General cannot be present today. I am sure the Minister has read and studied in detail my Second Stage speech and, indeed, the whole record of the debate in addition to the prolonged contributions on the various amendments on Committee Stage.

We had the benefit of a former practising barrister, the Parliamentary Secretary to the Taoiseach and of a former senior council, the Attorney General. Now we have the other spectrum of the profession, the Minister for Justice, who was a respected solicitor.

And will be again shortly.

The sooner the better.

I look forward to briefing Deputy Andrews.

Here we have this spectrum of the legal profession lined up against the Opposition's very reasonable proposition that the Director of Public Prosecutions should not be a civil servant. My amendments on Committee Stage were rejected with one exception in a very civilised fashion. One amendment was accepted much to my surprise and pleasure. Since then I have conducted a poll of my own throughout the legal profession. With one exception from a non-practising member of the legal profession who holds a position in the local authority, I received nothing but support for the views I put before the House in relation to the type of experience a Director of Public Prosecutions should have.

Again, I make the point that effectively the Attorney General is handing over the functions of the criminal law with which he deals to the Director of Public Prosecutions. Effectively, the Director will take on the administration of the office and practice of the Attorney General. Section 2 of the Bill sets out clearly the type of person needed to fill this office. We expressed our disagreement on the grounds that the person appointed should be a senior counsel of not less than five years' standing or a practising barrister of not less than 15 years' standing.

This is not a line up against the Civil Service or the person who will be taken from the Civil Service to hold the office. We are expressing our point of view on the grounds of principle. The Attorney General said the Director of Public Prosecutions would have absolute independence in the exercise of his functions. We agree with that principle, but we do not accept that it will be so if the person taken from the Civil Service becomes the Director of Public Prosecutions. The Civil Service by definition is dependent on the Government Minister for decisions on policy-making matters. This is right and proper. This is not meant as a criticism of the Civil Service because they have never been found wanting in the service of the country.

Now we have the Director of Public Prosecutions taking over the functions of the Attorney General who is a constitutional person and he is to be a civil servant. A civil servant is a dependent person within the structure of politics and the whole front of Governmental endeavour. It is in the nature of things that he backs up the Government of the day for, by definition, the Government leads. I do not necessarily accept that the Director of Public Prosecutions will be absolutely independent in the exercise of this function if he is a civil servant. As I said, this is in no way meant to criticise the person who will hold the office. It is a fact that throughout history the Civil Service have been dependent in the final analysis on the thinking of the Government of the day. Consequently, I do not think the Attorney General realised what he said when he stated that the Director of Public Prosecutions would be independent in the exercise of his functions. If the Director of Public Prosecutions were the person we suggested there could be no doubt that he would be absolutely independent in the discharge of his duties.

The Attorney General said that a solicitor, barrister or servant of a local authority could become a Director of Public Prosecutions and I pointed out that here was the making of my case. The Director of Public Prosecutions so appointed from a local authority would not have the necessary practice from the Supreme Court to the High Court and the various courts under its jurisdiction, to the Circuit Court and the District Courts. That was the distinction I was drawing.

The Attorney General made the point that in some way we must have an advocate as Director of Public Prosecutions. I can only say it is quite the contrary. When a person is appointed Director of Public Prosecutions I imagine he would cease to engage in the profession of advocacy but he would have the experience of practising in the profession, more particularly in the practice of criminal law.

There is very little we can do at this stage to change the Government's mind on the matter. The Parliamentary Secretary quite clearly set the ground-work, the Attorney General dealt with the various amendments and now we have the Minister for Justice to give the Bill the kiss of death from the point of view of the Opposition. We do not have the personnel to challenge a division that would be successful, to beat back the Government's views on the Bill. Nevertheless, it will be interesting to hear the views of the Minister for Justice and I am sure they will be consistent with those expressed by his two colleagues.

We have been consistent in our attitudes to the Bill. We have said that the person to be Director of Public prosecutions should have the knowledge of a practising lawyer, preferably a senior counsel or a practising junior counsel. As we understand it, the director will be taking over the whole area of administration of the criminal law from the Attorney General, in addition to election and referendum petitions. That being so, our case is made even stronger. The person appointed may not have been practising at the Irish Bar for more than ten years or he may not have been practising as a solicitor for more than ten years. This seems extraordinary to this side of the House and I am sure the Minister will agree that it is unusual that a person who has not practised in the criminal law and who has not a comprehensive knowledge of that law should be appointed to this post.

These observations are pessimistic but they must be so. We have put forward a clear, concise case, one that is supported, with one or two exceptions, by people outside this House who are more competent in the law than myself. People have come to me and expressed support. At the same time, I wonder if those people went to the Attorney General expressing their views on the Bill before it was dealt with on Committee Stage? I placed my amendments and there was a wide acceptance of them. Before a Bill is introduced into the House members of the public who are interested in the subject are entitled to give their views to the Minister concerned or to the Opposition spokesman. If the Minister and the Opposition spokesman agree, amendments may be placed and this is the way it should be dealt with. I do not know how many people went to the Minister for Justice or the Attorney General but, in view of the response after my amendments were dealt with on Committee Stage, it surprises me that somebody did not put forward their views to the Government.

Apart from the expressions of support for my proposals after Committee Stage and even before these views were expressed to me, I had made up my mind and I have no reason to change my views on the matter. There should be a clear division between the Executive, the Legislature and the judiciary. In a fashion, the concept expressed in this Bill is in some way eroding that important distinction. There should be fresh air between each of those levels. When the air becomes somewhat polluted, when the Executive and the Legislature come together and merge in some indefinable fashion, we are in trouble.

That should not cause pollution.

It is legislative pollution and that is the point we are dealing with here. It may be a strange analogy but it is a fact. We must keep that distinction between the three arms—otherwise we are in danger. I think we are in danger on this Bill.

The burden of Deputy Andrew's views are that the qualifications for appointment to this important post should be confined to permit only persons at practice, thus excluding persons in the public service. The Deputy considers it wrong that the new officer should be a civil servant as such.

I do not agree that the officer should be a civil servant.

Then it is only in relation to the qualifications?

I do not understand the Minister.

The Deputy's objections to the qualifications as proposed in the Bill are that they permit a person to be appointed who might not be at practice at the Bar.

Basically, that is it.

Again, this is not something that I can accept.

I did not think the Minister would accept it.

The Deputy wasted a lot of time propounding it. However, that is democracy.

The Minister is not going to waste any time in answering it.

It is not something that requires a lot of time in which to be answered.

It depends what one considers to be wasting time. There is a lot of time wasted in this House on less important things.

The Minister, without interruption, please.

The argument advanced by Deputy Andrews to support this case at this stage was based mainly on the fact that people had come to him and said how right he was when he proposed this by way of amendment on Committee Stage. Having regard to the legal circles within which Deputy Andrews moves, the rather rare and precious atmosphere of the Bar Library——

I actually associate with the Minister's colleagues from time to time.

I would be very surprised if he got any advice other than that which he said he had received.

To suggest that only people who are at practice at the Bar know what the criminal law is about is to take a very narrow view of the whole idea of knowledge. There can be most skilled and eminent criminal lawyers who do not practice law for a living but whose knowledge of the law and practice could far exceed that of those who do practice law for a living. I do not for a moment accept that the quality of the person holding this post would be in any way diminished by reason of the fact that he might not have been, for some time before his appointment, a practising lawyer. I think there are numerous cases of academic or non-practising lawyers whose knowledge of a particular branch of the law in which they would be specialists would far exceed the knowledge which a practitioner—who, by and large, would be a general practitioner—would have accumulated in the course of his practical experience. Certainly, I would have no doubt but that what is proposed in the Bill is correct and is not going to lead to a person of inferior knowledge being appointed to this post.

Also, it will not take from the independence of the post that the person in question might have been in the public service because the post itself is going to be a very high status one in the area of the public service. As we know from experience, such posts put the occupants of them in a position where they are completely protected from interference and where the modus operandi is such that they are operating in an area where there are very strong conventions controlling and prescribing the standards of conduct which are, invariably, of the highest. Such a person holding this post will be in that general area of public service which has given so much satisfaction and satisfactory service in the history of this State. I do not think that this will in any way take from the principle of the separation of powers because it is not a post that is of the Executive completely; neither is it part of the judicial arm completely; nor has it anything to do with the Legislature at all. It has a rather unusual standing as between the Judiciary and the Executive.

A little misty.

Not misty, because the functions are well recognised and anybody who practices at the Bar will know exactly what are the functions.

He will know if he has got enough briefs from the right side.

Again, the Deputy should have welcomed this Bill with open arms because it will rectify the unjust position which was perpetuated for the past 16 years. We have had that. We shall leave that alone. An injustice has been removed. I was talking about the standing of this person constitutionally. I think it is desirable that he be apart from the Executive. This is one of the main objectives of the Bill so that this quasi-judicial function of initiating criminal proceedings would be totally divorced from the Executive or from any influence by the Executive, and this is what is intended. It cannot be totally divorced from the Executive because the initiation of these things is part of the State in action and this, essentially, is the Executive working. Likewise, it is not part of the judicial function but, nevertheless, the initiation of proceedings does impinge into the judicial area of the State. I think the fact that the person who is now going to perform these important functions will be an independent civil servant of the highest rank is an excellent thing and a most desirable reform. I think the qualifications of that person will be enhanced by the fact that his experience in law and his general experience will not be confined to the narrow world of the Bar Library—a mixture of the Bar Library plus some experience of administration, or either or both, depending on the wisdom of the people who will advise on the selection of that person. It would be wrong to confine it to people in practice at the Bar.

I think the Bill is right. It leaves it open to the appointment to be made of a person exclusively with that experience, or with a mixture of that experience and administrative experience. I think the Bill is correct in permitting both disciplines to be represented in this person. I think the Bill is right in its general objective in taking the initiation of criminal proceedings out of the political arena and is correct also in endeavouring to be seen to do this because this is what justice is all about.

I am putting the question that the Bill do now pass. Agreed?

Question put and declared carried.