This is the interpretation section and I would ask the Minister whether or not it should have included a reference to the Minister who is referred to later on in the Bill as being, in fact, the Minister for Local Government. It is a drafting point and it is also a technical point.
Return to Writ: North-East Cork. - Local Government (Planning and Development) Bill, 1973: Committee Stage.
Question proposed: "That section I stand part of the Bill."
I do not think it is necessary.
Why not? In section 2 reference is made to the Minister but in the previous section there is no indication as to who the Minister is. I thought such a reference would be normal.
There is a reference in the 1963 Act and that Act and this Bill go together so the Minister is implied.
I want to ask the Minister about the position in regard to the appropriate day, which is defined in this section. As I read it, the appropriate day is related to the coming into operation of section 13. As I read it also, section 13 will be brought into operation by order under section 36, subsection (3). That subsection provides:
This Act shall come into operation on such day or days as may be fixed therefor by any order or orders of the Minister, either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions...
The subsection gives the Minister power to bring all or different portions of the Bill into operation by order. We have the position that the appropriate day means the day on which section 13 will come into operation, presumably by virtue of an order made under subsection (3) of section 36. That, to me, seems to be a bit convoluted because section 13 is possibly the most important section in the Bill. It is a section under which the functions are taken from the Minister and transferred to the new board. That is really the basic purpose of this piece of legislation and it, therefore, seems to me that the appropriate day should be made by order of the Minister direct.
If it is sufficiently important to have the establishment day defined specifically by order, surely in relation to the appropriate day on which section 13— the very important fundamental section 13—comes into operation, the right thing would have been to appoint the appropriate day by order.
I am reinforced in that opinion when I read in subsection (5) of section 13 the following words:
The functions of the Minister under section 29 of the Principal Act are hereby transferred to the Board and without prejudice to the generality of subsection (8) of this section the references in the said section 29 to the Minister shall each be construed as referring to the Board.
It would seem to me that the day section 13 is passed, the day it becomes law, it will carry with it, by virtue of subsection (5), this transfer of power. If that is so, why do we need to have an appropriate day made by order under section 36? Perhaps the Minister would clear my mind on these various aspects.
Deputy Haughey is correct about the day on which it is passed, but I am quite sure he understands that the board will be in operation for a period before they will take up their duties. You cannot appoint a board today and expect them to start off immediately tomorrow dealing with different matters. They must familiarise themselves with the matters which they will be considering. While I see the point Deputy Haughey has been making— I know the Bill is long—if he reads all the sections together he will understand that legally the phraseology used is correct. He need have no fear that any mistake has been made.
I am a very suspicious person.
I know the Deputy is.
I have two points here. One is concerned with the drafting. It would have been much better and neater if the Minister had said: "I will appoint the establishment day by order and I will appoint the appropriate day by order." Then we would be much more clear on where we stood. Apart from that, there is the additional difficulty that subsection (5) of section 13 would seem to say that the moment section 13 comes into operation subsection (5) will in itself transfer to the board certain powers, the powers of the Minister under section 29 of the Principal Act. Is there not room for discrepancy there? The board might not have been brought into being. The establishment day might not have been appointed to bring the board into being under the Act when subsection (5) of section 13 would purport to transfer powers to the board.
I do not know why Deputy Haughey should imagine that any Minister would do what he has suggested because it would be a very foolish thing to do. Naturally the order must be made before it would be possible to transfer powers to the board.
In other words, the Minister is quite clear that he must make an order under section 2, I think it is, appointing the establishment day for the board and bringing the board into being before subsection (5) of section 13 will operate to transfer powers to the board.
I should like to clarify it for Deputy Haughey because apparently he has misunderstood something. I am not quite sure what it is.
I always like to know what I am misunderstanding.
I should like to know what the Deputy is misunderstanding, too, but I am afraid he has not explained it to me. I will try to explain it and perhaps Deputy Haughey will then tell me where exactly the lines are crossed. The appropriate day is the day on which section 13 of this Bill comes into operation. This will be the day on which the board, as provided for in section 3, take over the decisions function in relation to the appeals. Section 13, in common with the other sections, will be brought into operation by a commencement order of the Minister under section 36. The appropriate day is referred to in section 13 (7), section 19 (1), (2), (2) (b) and section 21 (3) (a). The establishment day is the day so appointed by order of the Minister under section 2, as Deputy Haughey says, and the board will be legally established from that day but it will take over responsibility for the appellate functions only from the day on which section 13 is brought into force. Does that clarify the position?
I want the Minister to be clear on this in case he is not. It means that the order must be made appointing the establishment day for the board before the rest of the Act can be brought into operation.
That is not unusual, as Deputy Haughey knows perhaps better than anybody else, in Bills before this House.
It is somewhat complicated and convoluted, I suggest, to have subsection (5) of section 13 operating the moment section 13 comes into operation to transfer certain powers to the board and that board can only be established by order appointing an establishment day under the same Bill. It would be much better all round if it had been left quite clearly and striaghtforwardly establishing the establishment day by order and establishing the appropriate day by order and leaving it clearcut like that.
There is a difference of opinion. I think it is all right as it is. If Deputy Haughey thinks differently, maybe he has a point but I cannot see it and I cannot accept that it is there.
The position will be that we will have a board but they will not have the power to carry out their functions under the Act.
The board will have to get an opportunity to familiarise themselves with policies and procedures and to organise themselves for a smooth taking over of the functions. Surely Deputy Molloy will agree that that must be so.
Would the Minister agree that it might be reasonable to suggest that the order appointing the appropriate day shall be made within not less than some reasonable time, say two months?
No; I do not think it is necessary. That is putting additional words into the Bill which quite honestly I think are not necessary.
We are all anxious to see the main provisions of the Bill in operation as soon as possible.
I accept that.
The last time we debated the Committee Stage of this Bill here was in March. Many months have passed since then. From our experience to date, we could have a long delay between the establishment day and the appropriate day which would be the day upon which they would begin to carry out their functions in deciding planning appeals.
I am sure Deputy Molloy will agree that the responsibility for holding up the Bill for so long is not entirely mine. If we had finished with it long ago, some of the amendments which were put down last night and this morning would not have been introduced. I am sure Deputy Haughey will appreciate the humour of this because of section 42 (b) of the last Land Act which was passed here and the fact that if it had been passed through the House when it should have been, a very important section would have been left out. I do not think we should complain too much about the fact that the Bill was not passed before now.
Before we leave section 2 I want to——
Seven months.
The Deputy put in amendments last night and this morning, so apparently he did not have enough time.
I want to prevent the Minister, for whom I have a certain neighbourly affection—and I mean that personally and not politically——
I was beginning to examine my conscience.
——from falling into any legislative traps. It is quite clear that before he can make an order under this Bill establishing the day to bring the board into being, the Act must be in operation. Correct? You cannot make an order under this Bill until the Act is in operation. You have got to bring the Act into operation by virtue of an order under section 36 and, if your order under section 36 brings the whole Act into operation, then you will have the anomalous position of subsection (5) of section 13 transferring powers to a board which does not exist because you have not been able to make the establishment order bringing it into being. It seems to me that the inevitable logic of this situation is that, by virtue of this convoluted draftsmanship, you will have to make an order bringing the Act into operation only in so far as it would enable you to make an order to have an establishment day and only then will you be able to make another order bringing into operation the portion of the Act which includes section 13. I think I am absolutely correct in that.
Deputy Haughey is not correct. I would refer him to the Interpretation Act, 1937. Section 10 (1) says:
Where an Act of the Oireachtas or any particular enactment contained in any such Act is expressed to come into operation on a day subsequent to the date of the passing of such Act, the following provisions shall have effect, that is to say:—
(a) if the day on which such Act or such enactment (as the case may be) comes into operation is to be fixed or ascertained in any particular manner, the instrument, act, or thing whereby such day is fixed or ascertained may, subject to any restrictions imposed by such Act, be made or done at any time after the passing of such Act;
(b) if such Act confers a power to make or do, for the purposes of such Act or such enactment (as the case may be), any instrument, act, or thing the making or doing of which is necessary or expedient to enable such Act or enactment to have full force and effect immediately upon its coming into operation, such power may, subject to any restrictions imposed by such Act, be exercised at any time after the passing of such Act.
That is correct.
This is in effect what Deputy Haughey and I have been talking about and covers the points to which he referred. He may not have been aware of the enactment to which I have referred.
I have been aware of that. To make an order establishing the board, the Minister will have to have that portion of the Act which enables him to make the order establishing the board in operation. Therefore, to make that order he must bring that portion of the Act into operation. When making that, he must exclude section 13 at least from that first order, otherwise there will be the absurd position of subsection (5) of section 13 conferring powers on a board which does not exist.
This is the way in which it can be done. This was envisaged as far back as 1937. Deputy Haughey is suggesting one way it can be done.
It is the only way.
It is not the only way. I have put it in the Bill another way. It is as simple as that.
It is the only way it can be done. I do not want the Minister to be brought into the Supreme Court within a week of this Bill becoming law. I want to protect him from himself.
I am very good at protecting myself. Deputy Haughey will admit that.
The Minister needs a little help now and again.
I know where I would not go for that help.
Question put and agreed to.
SECTION 2.
I move amendment No. 1:
In line 29, after "Act" to insert "which shall be not later than 31st December, 1974.".
Is the amendment being pursued?
I cannot pursue the amendment in its present form but I want to have a word with the Minister about it.
Perhaps the Deputy would prefer to discuss the amendment on the section?
I want to discuss it. I suggest that we substitute "31st March, 1975", for "31st December, 1974" in my amendment. This amendment was put down in March, 1974. At that time it seemed perfectly reasonable to suggest that the Minister appoint the board and make an order establishing it before 31st December of this year. As Deputy Molloy pointed out frequently, we on this side of the House are very anxious that this legislation be enacted. We acknowledge that the legislation in Government planning needs to be amended and improved in certain respects. Therefore, on the whole, we welcome the Minister's proposals.
We are anxious that this new board be brought into being as quickly as possible and the powers be transferred from the Minister to the board. I put down this amendment so that the House would enjoin on the Minister the necessity of establishing this board before the end of the year. In March that seemed a perfectly reasonable proposition. This Government have been dilatory in bringing in legislation. I excuse this Minister in this regard because he brought in some legislation. In fact, if it were not for him, there would not have been anything before us. Admittedly his major legislation was——
Very welcome.
What is the word I am looking for?
Gerrymandering.
——gerrymandering the constituencies. He has been active to some extent in bringing in legislation and giving us something to do. I cannot say the same for his colleagues.
This very important legislation has been on the books since the beginning of the year. The Minister, I know, wants it passed as much as we do. It is only now in November that we are getting around to dealing with it. This is a very serious reflection on the efficiency of the legislative machinery of this Government. Whatever other criticisms may or may not be levelled against them, that criticism can. They have not used this House this year to anything like its capacity. They have been dilatory and negligent in bringing new legislation before us.
That was the Arabs' fault.
Would the Deputy repeat what he said?
That was the Arabs' fault.
I thought the Deputy said it was the arms' fault.
We can talk about that too, if the Minister wants.
This Bill should have been in operation long ago. As I said, when I put down my amendment in March and proposed that the Minister should be compelled to establish a board before the end of the year, that was reasonable. I recognise that at this stage it would be completely unreasonable to ask the House to place on the Minister a compulsion to establish the board before 31st December, 1974. Accordingly, I do not want to press the amendment in its exact terms. In my view the Minister should accept some limitation on himself in this regard. I think the 31st March, 1975, would be reasonable.
We all know there is a temptation when a Minister has got legislation on the statute books for himself or his Department to recognise that that is the end of that job. Of course, it is not. The detailed work must then be done —the selection of people and the appointing of a competent board. That is very important. It is not as easy as some people might think if a Minister is conscientious and serious about the kind of board he wants to establish. It is important that he start work on that immediately the Bill is passed. In my opinion we are not unreasonable in asking the Minister to give us an undertaking in this section that he will do this within a reasonable period. I suggest 31st March next. If the Minister is prepared to accept that, I would be prepared to withdraw my amendment on the basis that he would bring in such an amendment on Report Stage.
The trouble about this is that Deputy Haughey is asking me to name a date. While I have no objection to picking any date, let it be 31st December or 31st March, the Deputy knows what happens when matters of this kind are being debated here. Deputy Haughey, when discussing another Bill, helped to make it better. I hope when this Bill is going through, he will help to make it a better one too. I will accept reasonable amendments. He also knows that there is no guarantee from his side of the House that the Bill will be allowed to go through before 31st March. To get the Bill through this House, and the Seanad, I hope will be easy, but I have my doubts. Deputy Haughey has almost 100 amendments down. There are 129 amendments, five of which arrived in the last 24 hours. I have no idea whether somebody is looking up another dozen amendments to be put in inside the next couple of weeks.
Does the Minister disagree with amendments?
I neither agree or disagree with amendments before we debate them in the House. At present they are simply amendments and until they are debated in the House I will not know what the people who have tabled them mean. I want this debate to go on on a reasonable basis, but it is not reasonable for Deputy Haughey to suggest that I must pick a date because we have not been bringing in legislation. We have brought in, and dealt with, more legislation in the last 12 months than was dealt with in the 12 months prior to Fianna Fáil's departure from office.
The first Planning Bill was passed by the Dáil in 1963. In 1968 a Private Members' Bill was introduced in this House, dealing with this matter, but this was withdrawn on a promise by a Fianna Fáil Minister for Local Government that he would introduce a Planning Bill. Deputy Haughey has blamed me because this Bill has been knocking around for five or six months, but the Deputy will agree that if there had not been a change of Government such a Planning Bill would not have seen the light of day for the next ten or 12 years I make that statement having judged the record of the last Government. I want to be reasonable about this.
The Minister is not being reasonable.
Deputy Haughey stated he appreciated that I was anxious to have this Bill passed. I am very anxious because there are certain things happening which should not happen and will not happen when this Bill becomes law. The only way we can have those things dealt with is by having a smooth passage of the Bill in this House. I do not mean that I am objecting to points being criticised by the Opposition because that is their job if they feel something is wrong. If they feel something can be improved, it is their duty to say so but there should not be criticism for the sake of criticising.
On Second Stage I announced that I was prepared to accept reasonable amendments which would improve the Bill and that offer is still open. As far as I am concerned it is not the Government, or I, as Minister, who will make this a good Bill. This House will make this a good Bill, and that is the way I want it. We can only do that if we do not try to cod each other. There is a danger that a certain amount of acrimony will creep into this with the result that the Bill will be long drawn out and would not have the desired effect.
The Minister should desist immediately from that practice.
If Deputy Crowley did not come into the House we might be able to progress a lot faster with the Bill.
I want to be of assistance to the Minister. It is important that we put into this section a restriction on the time which can elapse before the Minister establishes this board. This House, and the Seanad, will pass this legislation which will eventually be signed by the President, whoever that may be, but nothing of significance will happen until the Minister makes an order establishing the board. This Bill is all about establishing this board. I want the House to put a restriction on the Minister as to the time we will allow him to establish this board. If we do not put in this amendment, then the Minister need not establish the board or he could take up to 12 months to do so. The Minister could nullify the legislation we will pass by not making the order appointing the establishment day.
The House will give the Minister this legislation, and there is no doubt about that, because we want to see this Bill introduced just as much as the Minister does. We will give him this Bill as expeditiously as we can, but we are going to discuss it in detail because it is a very important piece of legislation. We will bring all the intelligence and skill we have to bear on this in order to help the Minister to have a first class piece of legislation passed by this House, not like the Finance Act which we never had a chance to examine properly. We have an opportunity to examine this legislation properly.
When this Bill is passed the Minister will have to approach the Government to establish this board. I want him to be in a position to say to the Government that his proposal must be agreed because he is statutorily bound to establish the board by 31st March. In my view this amendment will strengthen the Minister's hand and help him achieve the primary purpose of this legislation, the establishing of this board. If this restrictive clause is inserted in the section, the Government will not be able to fob the Minister off by saying that there are more urgent things to be done. The Minister will be in a strong position to inform the Government that he is statutorily compelled to form this board by 31st March.
I do not think the Minister should resist my suggestion because otherwise we, and the Minister, will have no guarantee that the primary purpose of this legislation will be achieved in any sort of reasonable time.
Although I have no strong feelings about the point of view put forward by Deputy Haughey—in a sense I agree with him that it would be quite wrong if a Minister were to abuse the power given him by an Act by failing to bring it into force—I thought I heard the Deputy agreeing that the Minister was anxious to have the Act in force. While there is no guarantee of permanence in the tenure of any particular individual of any particular office, I am sure the same is true of any Minister for Local Government who will find himself with this Act. However, I cannot accept the points of view advanced by the Deputy in support of what he said when he appeared to use his amendment as a peg on which to hang a criticism of the Government for their failure to bring forward legislation. I should like to give the House an explanation of the time schedule into which the Bill fell.
The Second Stage was completed— I am speaking from memory—in June. Around that time a flood of Bills arrived here and I can remember Deputy Brennan being inclined to scoff at the idea that these Bills would be finished by the summer. This House has had experience of what happened in battles between the Minister and the Opposition spokesman for Local Government, Deputy Molloy, and it was evident that where there were nine or ten other Bills waiting for passage, some of them fairly important and urgent, there was no point in launching on to the trackless ocean of Committee Stage of the Planning Bill. Had we done this it would have meant that no other Bills would have been handled.
Quite deliberately the Planning Bill was taken out of the immediate programme and the other legislation was dealt with expeditiously. This House, in the period October, 1973 to July, 1974, passed 36 or 37 Bills, which is not far off a record in recent decades.
Minor enabling Bills.
The Deputy can say what he likes about the contents of the Bills and he may make what allegations he likes about them but the fact is that this Government put through this House almost a record number of Bills. It should not be said that these were all non-contentious items which Fianna Fáil had got ready before leaving office.
If there was anything contentious the Government used the guillotine.
We had vote after vote on Second Stage, and on the sections on Committee Stage in a large number of these Bills, which were not pure Fianna Fáil productions. I want to kill the untruth that this Government have been lackadaisical or slack in bringing forward legislation. So far from that being the case, almost a record was achieved last year in regard to the passage of legislation sponsored by Ministers or Parliamentary Secretaries who had no previous experience of sponsoring legislation in either House. That parliamentary period of October, 1973, to July, 1974, included, among the Bills, the marathon debate on the Bill on constituency revision——
On a point of order, surely this has absolutely nothing to do with the amendment to section 2 that we are discussing?
That point of order would have been more apposite if it had been made when the Deputy beside Deputy Crowley was speaking.
I think I am entitled to a ruling on this.
The Deputy is aware that this matter was raised and the Chair is allowing a reply to be made to the matter raised and will then ask the Parliamentary Secretary to come back to the matter before the House. He is now replying to the point that was raised.
So we can all discuss the matter the Parliamentary Secretary is now discussing?
The Deputy need not take that implication. Deputy Haughey raised the point to which the Parliamentary Secretary is referring.
He referred to it just in passing while making his case for the amendment but you are allowing the Parliamentary Secretary to come in and give a diatribe on the non-achievements of the Government——
May I make an appeal to the House that we do not have this chair-baiting which, unfortunately, could make this Bill extremely difficult to pass through the House? I think the Chair is doing his job and we should try to get the Bill through without having a major row on it.
The Deputy behind the Minister was as much responsible as anybody.
I am trying to make a point which I never would have dreamt of making had Deputy Haughey not raised the matter. The session also included several debates on Northern Ireland, including one on Sunningdale——
The Parliamentary Secretary has come in ex parte to discuss this matter at length, and we will have it.
The Deputy asked for it.
If the Parliamentary Secretary wants it we will have it.
The Parliamentary Secretary will now come to the amendment.
I did not interrupt anybody so far.
He is showing absolute contempt for the Chair.
Will Deputy Crowley allow the Parliamentary Secretary to come to the amendment?
The only thing Deputy Haughey said about his amendment, apart from the general idea in regard to the date, which he now regards as unrealistic, is that the Bill has been unfairly delayed.
No, that was not my point.
I am trying to explain that had we not had displays in the House of the way legislation is to be treated, and other matters, by Deputy Molloy, had we not had more than 120 amendments, this Bill might have been passed before the summer recess. There was no reason, no ulterior motive——
Will the Parliamentary Secretary now come to the amendment?
I just want to say that the Parliamentary Secretary has come in here tendentiously to try to side-track us into an acrimonious debate on the non-event of the parliamentary legislative programme of this Government and I am strongly tempted to debate that issue with him. However, in deference to the Minister, who wants to get on with this legislation, I will refrain from doing so. I should like the Minister to understand that we on this side are exercising restraint in the face of gross provocation by the Parliamentary Secretary who succeeds time and again in turning this House into a shambles by his ex parte interventions.
He has misinterpreted the case I have been making for my amendment. I have a perfectly valid case which I want to hear the Minister himself deal with—he is the competent person to deal with it. My case is that it would be desirable for the House to put into this legislation a limitation on the Minister on the bringing into being of the new board, because it will help him to get his new board through the machinery of the Government. I know enough about the mechanics of government to know it is not always an easy matter to get a new board like this approved, to get the personnel approved by the Government and the machinery operative. It is my belief that the Minister's hand will be strengthened if we put into this Bill an obligation on him to have the board established by 31st March next. That is a perfectly reasonable proposal. Apart from anything else, it is good legislative practice, when we are giving the Minister this power, to say to the Minister: "You have this power to establish this board but we want you to do it in a reasonable period of time."
If the Minister thinks 31st March is too soon—it might be, allowing for the fact that it has to get through this House, which may be a long procedure, particularly if the Parliamentary Secretary comes in; it has to get through the Seanad and perhaps come back to us—perhaps he might like to suggest some other date. I am prepared to accept that, but we should put some date into this section compelling the Minister to get the board into operation by that date. Just one final point I would make in reply to the tendentious intervention of the Parliamentary Secretary, whose job as Chief Whip should be to expedite the business of the House and not to be coming in here interrupting the business——
The Deputy is in a weak position to lecture anyone on his job.
In regard to his tendentious intervention, he may be able to itemise the 36 pieces of legislation which came before this House. If he can, most of them were simple, non-contentious, merely amending pieces of legislation, like increasing the capital of the Agricultural Credit Company from £6 million to £12 million——
We are again moving away from the amendment.
That number, 36, does not impress anybody. No legislation of any substance has come before this House except what the Minister for Local Government has brought in.
I have put a number of pieces of legislation before the House. Some of them took a long time even though they were matters which I thought could be quite simply passed through the House. They were held up for long periods over very simple matters.
Did we not do a good job on the Motorways Bill?
If Deputy Haughey were in charge of all the Bills on that side, possibly we might have done a good job on all of them. Unfortunately, he was not, and the people on the other side did not seem to see eye to eye with him. I do not want to follow that into a blind alley. Possibly Deputy Haughey has overlooked something in regard to this amendment. It would be the easiest thing in the world for me to say we will make 31st March the date, but it would be necessary to change that again because the Christmas recess is coming and, believe it or not, the Easter recess will also come before 31st March.
Make it 30th June.
I have no objection to making it any date. It is simply a question of wanting to be sure that we will not be coming here again, for reasons which might bring red faces to the far side, and saying: "We still have not the darn thing through."
We can change it across the House to 30th June, 1975.
We can deal with it on Report Stage. I think 30th June is all right.
Amendment, by leave, withdrawn.
Question proposed: "That section 2 stand part of the Bill."
I resent very much a description of an intervention, on a point raised by a Deputy opposite, specifically to rebut a point he made as being tendentious or as an attempt to turn the House into a shambles, and I resent the lordly way in which the Deputy appeared to imply that we have to have his approval, a pat on the head from him, before we can open our beaks over here. I will not take that from Deputy Haughey or anybody else.
The Parliamentary Secretary has taken it.
It may be that he would do a more sober job as an Opposition spokesman on Local Government than the Deputy whom apparently he is in the course of replacing temporarily or otherwise. But he is making a very bad start if, having raised a hare himself, he uses language like that when I——
What has that got to do with the section?
Sir, I have been interrupted by each of the three Deputies over there in the two short interventions I have made. And I am accused of being a man who turns this House into a shambles.
The Chair will be the judge of that.
What the Parliamentary Secretary is saying is a farce.
The Parliamentary Secretary on section 2.
The date on which this Bill might reasonably come into operation is something which I think could be well left to the Minister's discretion.
The Minister has accepted it. The Parliamentary Secretary should run along out of here and let us get on with the business.
Provided the Chair does not rule me out of order, I am not going to sit down until I have answered the stuff which came from the far side.
On a point of order, the Minister has accepted the principle of 30th June. He has undertaken to bring in an amendment on Report Stage and this is entirely out of order.
I am speaking on the section, not on the withdrawn amendment.
The Parliamentary Secretary on the section under discussion.
Do I understand the Parliamentary Secretary is now refusing to accept his Minister's decision on this?
The Deputy should not be so childish. He is going very fast now on the Molloy trail; he will be a little Molloy in no time.
The Parliamentary Secretary on the section.
I think the Minister is probably safe in accepting the 30th June, as suggested.
Probably safe. Very condescending. Does the Minister rap the Parliamentary Secretary on the knuckles occasionally?
I shall not go any further than that. I have had comparatively short experience in this House but I can remember—to take an instance which Deputy Haughey produced a moment ago—the Finance Bill during the summer when it was fairly and squarely agreed between the Opposition spokesmen on Finance, the Opposition Whip and myself, that the Committee Stage would be completed in three days. The early sections and amendments to that Bill were made into such a horse's collar that we had to sit all night in the end, which made this House into a real shambles. Anybody who spent the night here will know that that is exactly how to describe it. The fault for that lies entirely on an Opposition which is unable to make up its mind how long it is going to take to deal with or process a particular piece of legislation and which changes its mind to suit what it thinks to be its humour or convenience from moment to moment.
If we get that kind of behaviour with regard to the Planning Bill, we will be making a very bad start, and I refuse to carry the blame for that. If we get that kind of treatment on the Planning Bill it may very well be that it will not have passed both Houses, or have come back to this House with whatever amendments the Seanad may make, by 30th June. The Minister will then be in the position to which he adverted, of perhaps being obliged to ask for an amendment on account of the fact that it has been unreasonably held up.
The Parliamentary Secretary ought to run along and let us get on with the Bill.
Question put and agreed to.
Section 3 agreed to.
NEW SECTION.
I move amendment No. 2:
In page 3, between lines 34 and 35, to insert the following section before section 4:
"4.—(1) The chairman of the Board shall be either—
(a) such judge of the High Court as is for the time being nominated with his consent by the Government, or
(b) a person who is a former judge of the High Court and is appointed by the Government.
(2) If immediately before the exercise by the Government of a power under subsection (1) of this section there is in force a nomination under that subsection, then on the exercise the nomination shall cease to have effect.
(3) A judge of the High Court who is chairman of the Board shall on ceasing to be a judge of the High Court also cease to be chairman of the Board.
(4) A person who ceases to be chairman of the Board by virtue of subsection (3) of this section may be appointed under subsection (1) of this section".
It is proposed to insert a new section before section 4. The functions of the board are important and the Government, having given careful consideration to the question of the chairmanship felt there were various considerations both in favour of and against the appointment of a judge. But the guiding principle is that justice must not only be done but must also be seen to be done. Accordingly, the new section provides for the appointment of a judge, or former judge, of the High Court as chairman.
We welcome the Minister's amendment in this regard. The House will notice that, on this side of the House, we put down an amendment in my name which would have enacted that the chairman of the board would be a judge of the Supreme Court, the High Court or Circuit Court to be nominated by the Chief Justice. May I ask are both amendments being discussed together?
Yes, Nos. 2 and 3 together; No. 3 is an alternative.
In principle my amendment is the same as that of the Minister. Whatever the malicious promptings that might come from behind him, I think the Minister would not deny that in putting down his amendment, he has adopted the principle enshrined in mine.
Considered.
Considered the principle. I would have thought that I would be using proper parliamentary phraseology if I said the Minister is meeting me with his amendment. In my amendment I wanted to have a judge appointed as chairman of this board. Mind you, I could quote a very good precedent for that proposal because, in a measure which I think the Fine Gael Party put forward when in Opposition, they enshrined that principle, that of a judge being chairman of a board. The case for appointing a judge can be very strongly argued because this board will certainly be exercising judicial functions. It will be taking decisions very closely related to the sort of decisions the courts must take. It is very important that somebody with judicial experience and knowledge should preside over this new board.
Of course, there is a very fundamental difference between my proposal and that of the Minister, in that I wanted the person to be nominated by the Chief Justice. In making that proposal I was influenced by the fact that the Chief Justice is responsible for the efficient operation of our courts. He has to allocate judges to the different branches of the work of the courts; he has to apportion the work between the judges at his disposal and he has a very serious responsibility in that regard. Therefore, it seemed to me that it would be only fair—if we were going to call on a judge to do this work—that the Chief Justice would be the person to decide which judge should be appointed because he would know better than anybody else, perhaps, what judge would be most suited to this type of work, from the point of view of training, temperament and experience. Also, with his knowledge of the workings of the courts and the manner in which the work of the courts is allocated between the different judges, he would be best fitted to know what judge could most easily be allocated to this function. All in all, it seemed to me there was a very strong case to be made for asking the Chief Justice to make this nomination on the one hand, from the point of view of the courts themselves and on the other with a view to ensuring that the best type of judge be appointed to take over the running of this new board.
It is no harm to point out at this stage that this will be a vitally important board. This board will take decisions of fundamental importance and significance. These decisions will be important from the point of view of our environment, surroundings, the growth and development of our towns and cities and, from the conservation point of view, this will be a vital institution.
The board will be taking decisions of vital commercial significance; some of them will mean the gain or loss of hundreds of thousands or even millions of pounds in certain circumstances. It is necessary that I should point out now the fundamental importance of the board and, therefore, how legitimate it is for Members on both sides to insist that the new chairman be a person of the highest standing, competence and qualifications. I am very glad the Minister has met us in this regard. In fairness I must say that we were probably pushing an open door with regard to this matter. Even though the Bill as put forward originally did not envisage a judicial person to be appointed as chairman, once we drew attention to the matter the Minister immediately accepted our viewpoint. We welcome that and acknowledge he has met us in that way.
I should like to hear the Minister's views on the fact that the Chief Justice will not now be the person to nominate the judge to be chairman. I wonder if there is some case in the Minister's amendment for putting in a provision to the effect that the Chief Justice would have to be consulted? I notice that the person will be appointed by the Government, not by the Minister. While welcoming in principle the Minister's amendment, I should like to hear his thinking on the matter and how he sees it in operation.
Another question that arises in connection with the new proposal is how it will affect the workings of the courts. I understand that the judges are pretty fully occupied at the moment. Is it the intention to appoint another judge to the High Court to enable this additional task to be fitted into their work schedules without any dislocation of these schedules? I should like to hear the Minister's comments on this matter.
Of course the Deputy is correct in saying that the President of the High Court or the Chief Justice must be consulted. The question of appointing a judge was suggested in a Private Member's Bill and, therefore, it is not something new. Although it was proposed by the Opposition, it is generally agreed we had it in mind but we wanted to see the general attitude. In fact, it was suggested by a member of the Opposition that a judge should be the last person to be appointed; someone suggested it should be a person with normal associations who would be closer to the position than a judge. This was suggested by a fairly high-ranking member of the Opposition but perhaps Deputy Haughey was not present when this happened. In any event, we agree that the person should be a judge or a former judge and I think this is the proper way to deal with the matter. Incidentally, the appointment will be made by the Government, not by the Minister for Local Government. Again, this is the correct thing to do.
The question was raised whether somebody would be appointed to replace the judge. This would be a matter for the Department of Justice but, as Deputy Haughey is aware, an additional judge was appointed last year and I am sure if a vacancy occurs there will be an appointment. This is my personal opinion and, naturally, I cannot give a decision on what the Government would do on the matter. However, if we take someone for this job, a person who will be working full-time, a vacancy will exist and that will have to be filled. I thank Deputy Haughey for the reasonable way he dealt with the matter.
The Minister has indicated that naturally the President of the High Court or the Chief Justice, or both, will have to be consulted by the Government before a judge is asked to take this task. I gather from the wording that a serving judge will be appointed and that the provision about a person who is a former judge of the High Court is primarily there to enable a judge to carry on as chairman——
I should not like the Deputy to take that interpretation because it may not happen. As the amendment suggests, it is one or the other. I should not like to tie myself or future Ministers to do something not spelled out in the section.
Subsection (4) states:
A person who ceases to be chairman of the Board by virtue of subsection (3) of this section——
that means a person who ceases to be chairman because he has been disqualified by ceasing to be a judge of the High Court——
may be appointed under subsection (1) of this section.
That seems to indicate that the thinking behind paragraph (b), subsection (1) of the new section is that as a matter of practice the chairman will be a serving judge but that this protection is put into the new section; if he ceases to be a serving judge he automatically ceases to be chairman of the board but we reserve the right to appoint a person who is a retired judge to be chairman. That appears to be inserted to ensure that if a judge is acting as chairman and if he ceases to be a judge on age grounds or for some other reason, even though he is automatically disqualified from being chairman he may be reappointed.
I should like the Minister to confirm that the main emphasis will be on appointing a sitting judge. All of us are anxious to get that assurance from the Minister. If I remember correctly the age limit for judges is pretty high; I think it is 72 years for a Supreme Court judge and 70 years for a High Court judge. I do not wish to cast any aspersions on their competence after they retire but I should not like to think that as a matter of practice we would appoint a retired judge. I should like to hear from the Minister that basically he is thinking in terms of appointing a serving judge and that the proviso in paragraph (b) subsection (1) is largely intended to enable a person to continue as chairman in the event of his retiring as a judge.
Perhaps the Minister will elaborate more fully on the situation regarding the availability of judges for this appointment. Is he satisfied that the situation at the moment is such that he could take a judge out of the existing complement and appoint him to this extra work? Does he think it will be necessary to enlarge the number of judges? We would like to know a little more about that because it is important. The Minister knows better than anybody else that this board will be occupied full-time if they are to take away a great deal of work from the Minister personally.
Perhaps the Minister will be made redundant.
It is absolutely necessary that a great deal of the work be undertaken by this board because the task is impossible for a Minister and a Parliamentary Secretary only. I remember the former Deputy Kevin Boland telling us, during his term of office as Minister for Local Government, that he was at work to a late hour one Christmas Eve in an effort to keep up with the workload.
He should have worked the day before.
The Chairman of the board will be occupied full-time in the discharge of his duties in that capacity. Therefore, we shall have to consider the appointment to the High Court of an additional judge who would be allocated fully to this task. Perhaps the Minister would give us his views on these aspects.
Deputy Haughey is as aware as anybody else that we are hardly likely in the foreseeable future to be faced with a situation in which there would not be people available for appointment as judges. Therefore, we can be assured that if it is found necessary to appoint extra judges, these appointments will be made.
On a non-party basis.
Deputy Haughey will appreciate that we have had long experience of the appointment of judges and that we always do the right thing. The reason for the provision here for the nomination of an existing judge is that Article 35.3. of the Constitution provides that no judge shall hold any other office or position of emolument. Subsection (1) of the section before us provides for a judge being nominated and for a former judge being appointed. Judges continue to work to a fairly advanced age and while I cannot say definitely to Deputy Haughey that under no circumstances would a former judge be appointed, my personal opinion is that if we are to have somebody to do the job, it would be a serving judge. Incidentally, last year the Government introduced a regulation which was considered to have been rather good, that was, that people appointed to various types of boards and who were receiving emoluments of any kind would not be entitled to continue after the age of 70.
It is my personal opinion that that was a foolish regulation.
It was introduced for a specific reason.
Deputy Haughey is endeavouring to have it both ways. He was objecting to the appointment of a former judge because of the question of age but says, at the same time, that it would be all right to have people of more than 70 years of age on boards. However, so far as the situation before us is concerned it is not likely that the chairman would be somebody who would be more than 70. Therefore, if it is decided to appoint a judge or former judge, my personal opinion would be that the appointee would be a serving judge. I am sorry that I cannot be more specific on this. The amendment here provides for the appointment of either a judge or a former judge.
But the Minister's personal view is that the person appointed should be a serving judge.
Yes, but that is not what is in the amendment.
I thought the amendment was put in only to provide for the retention as chairman of a person who had been acting in that capacity but who had retired from being a judge.
The amendment is inserted in case an occasion might arise on which this provision would be necessary.
Would the Minister visualise an additional judge being appointed to the High Court?
I would not be responsible for that appointment but I would imagine that as has been the practice in the past, when a judge was required he was appointed without delay. I have no reason to think that this would not continue to be the case. All Governments must do this.
I do not wish to appear supercritical but I would have thought it wise for the Minister for Justice, acting on behalf of the Government and of the Minister for Local Government, to have had talks with the President of the High Court for the purpose of ascertaining what is involved here—whether the President would be able to make a judge available readily or whether the appointment of a new judge would be necessary.
I am surprised that Deputy Haughey should dwell on this point. We all know that if a judge dies somebody else is appointed to fill the vacancy so created. In the case of a judge being taken away to act as chairman of the board we are discussing, the likely course would be that somebody else would be appointed to take his place. We need have no doubt as to this matter being dealt with in the normal way.
It is not a normal matter. It is an entirely new departure. Here we are going to take a judge of the High Court who, up to now we must accept is fully occupied in dealing with the volume of business coming before him, and appoint him to a rather full-time job elsewhere. It seems to me that the nature of this new job is such that the judge who will be appointed chairman will be practically unavailable for normal judicial duties in the High Court. Is that also the Minister's view? Has the President of the High Court been consulted and, if so, is he of the opinion that the situation is such that he can spare readily a High Court judge for this task or will he say to the Government that if they want one of his judges for this board, he will have to have an additional judge to do the work of the High Court? We are entitled to have answers to these questions.
Further, is it the opinion of the Minister that the judge who will be appointed to the new board will be able to undertake normal judicial duties in the High Court? Will he be available to the President of the High Court for any work or will he spend half of his time acting as chairman of the board and the other half on normal judicial duties?
There are so many hypothetical questions there that it would be impossible for anyone to attempt to answer them. The Deputy knows that I cannot decide here as to whether an additional judge should be appointed. Until such time as we find out how this new provision will work nobody can say whether an additional judge will be required. So far as we know it should be possible for the chairman to carry out some other duties also, if not at the beginning, perhaps after a while. An additional judge was appointed last year. That required legislation and legislation would be required again if we were to appoint yet another judge. If the person appointed to chairmanship of the board were still a High Court judge, there would not be a vacancy as such but if it should be found that an additional judge is required the necessary legislation will be enacted.
So far as consulting the President of the High Court is concerned, we must remember that we are dealing here with an amendment to a Bill that has not been passed by this House yet. Would we not seem rather foolish going to the President of the High Court and asking him whether if this amendment is accepted, and if this Bill is passed, he would be able to provide from his present establishment a judge to act as chairman?
I would have thought that to be a normal precaution to take before putting down the amendment.
Things which are normal——
With us are not normal with you.
Thank God for that. In the normal way, if we require an additional judge the House can be assured that provision to that effect will be made. As matters stand, there is provision for an extra judge and we believe it may be possible to use that additional judge as chairman of the board. The point we are debating is not what would happen when the judge is appointed. All that is before the House in this regard is whether the person appointed should be a serving judge or a former judge. Any vacancies in the High Court afterwards is not a matter which is before us and I prefer not to pursue it at present.
I think it is very much a matter before the House and a very important matter. I regret to have to accuse the Minister of some dereliction of duty in this regard. I certainly assumed, when I saw the Minister's amendment, that he would have had discussions either personally or perhaps for protocol reasons, through his colleague, the Minister for Justice, with the Chief Justice and the President of the High Court because I do not think it is right and proper in the case of legislation like this to do what amounts to commandeering one of the High Court judges for a new job without any reference to the President of the High Court whose job it is to keep the High Court functioning and in a position to deal with the business coming before it.
If a new judge was appointed by this Government in the recent past for reasons other than political patronage—and I am prepared to accept this—and if an additional judgeship was created, presumably it was done because of pressure of business in the High Court and because the President of the High Court, the Chief Justice and the Minister for Justice, who would be the Government advisers in this matter, had persuaded the Government that the volume of business in the High Court was such that a new judge was needed to cope with it. The Minister cannot come along now and say that there is no problem, that we have a new High Court judge and that everything will be all right and that they will be able to absorb this monumental task without difficulty.
I assume that the present High Court judges are fully occupied discharging the amount of business coming before them and dealing with it as adequately as they can. This would be an enormous new imposition on a number of judges in the High Court. I was not too clear about it but I thought the Minister's view was that an existing judge would be able to take on this job and also be able to carry out some of his existing functions as a member of the High Court. I think I understood the Minister correctly. I think that is a rather rash assumption and that we should proceed here on the basis that whatever judge is appointed chairman of this new board will, to all intents and purposes, be unavailable to the President of the High Court for normal judicial duties. This is something we should clear up at this point.
Is it the Government's intention immediately to seek the necessary legislation to appoint an additional judge so that the President of the High Court will be able to allocate a judge for this new task without interfering in any way with the functioning of the court which is his responsibility? This is a very important matter and if the Minister and the Government have not adverted to it and have not had consultation about it with the President of the High Court and or the Chief Justice, I think they have been remiss and they are asking the House to take a step in the dark by passing this amendment and inserting this new section, placing this new responsibility on the High Court judges without any reference to their capacity to undertake this new work load.
I say all that in the context of welcoming this amendment. We welcome the Minister's approach and we are prepared to abandon the stand we had taken up that the new judge should be nominated by the Chief Justice. But if we do that, if we agree with the Minister that this new judge can be appointed by the Government, at least there is a heavy obligation on the Government then to consult with the President of the High Court. I should have thought it would be good legislation to put such a mandatory consultation process into this section. If that is not so I think the Minister must confess that he was remiss in not having had those discussions on this new responsibility to see what the position would be. It is no good for him to say: "I am not the Minister for Justice and whether a new judge will be appointed is a matter for that Minister and the Government". We are facing a new situation and we are entitled to know where we stand in this regard.
I am sorry Deputy Haughey has introduced a note which I suggest tends to depart completely from the spirit in which this Bill was being discussed.
Gentle chiding is not acrimony.
No, but let us stick to the facts which are that there is a proposal to appoint a judge or former judge. On that basis Deputy Haughey wants to get the Government to make a declaration that they will appoint another High Court judge. The amendment has not yet been accepted by the House.
It will be.
Let us be reasonable. The amendment suggests that a High Court judge or a former High Court judge be appointed. Again and again I have said that if a serving judge were appointed and it was necessary to appoint another judge, this would be done as it was done in 1973 when it was found necessary to do so. The House will accept that. To suggest that because an amendment is proposed here that a judge or former judge be appointed as chairman would mean that we should immediately rush off and consult the President of the High Court as to whether he could spare somebody is not reasonable. It is not at this stage a matter for the President of the High Court; it is a matter first for this House to accept the amendment and, having accepted it, Article 22 of the Schedule to the Bill says:
Subject to the provisions of this Act and to any regulations made by the Minister under the Principal Act or under section 18 of this Act and to the provisions of this Schedule, the board shall regulate its procedure and business.
We have not even yet decided what the chairman of the board or the board will be doing. All these matters have yet to be dealt with.
Deputy Haughey asked if I had said that a judge could act as chairman and also do other duties. What I said was that a serving judge might find that possible. I do not know; I cannot judge what is likely to happen. I said a serving judge might find that he could deal with the matters which come up as chairman of the board and with other matters. I cannot judge, but my personal opinion is that it should be a serving judge. That is not the amendment, which says a judge or a former judge. I believe this amendment should be accepted as it is. It is perfectly straightforward and, as Deputy Haughey said earlier, it goes a long way towards the amendment which he himself had put down earlier.
Let me say, without upsetting Deputy Haughey again, that although I see the sense in what he is saying, and I think it would be wrong if the Government were to throw judges into work other than the work of the courts without regard to the capacity of the existing court structure to bear the strain, I should point out that it has almost never been the case in any recent year that at least one judge, and sometimes more than one judge of the High Court or of the Supreme Court, or sometimes several courts together, has not been employed, and often heavily employed, in some work other than court work. Whether this is right or not is a question on which there is no need for me to enter but if the House considers, for example, the Special Criminal Court, that has constantly been taking up, for the last couple of years, the attention of a judge of the High Court, a judge of the Circuit Court and a justice of the District Court. Quite apart from that activity, which is special enough and employs three judicial figures, thus reducing the manpower in the courts they belong to, judges have been pressed into service for things which they are thought very well qualified to do. One instance is the Commission on Company Law Reform which was headed by a judge. The same judge headed the inquiry into the price of building land. Another judge, admittedly of the Circuit Court, presided over the commission which inquired into the conditions of the police service. Those were things which had no connection with the work of the court at all and probably, although the Minister for Justice would be in a better position to speak with authority on this, the president of any of the four courts takes into account, in making up his mind on how many judges are needed and making representations to the Government on the subject, the extent to which members of his court are commonly engaged on outside work.
While I accept that it would be wrong for the Government to assume that without the creation of further judges the courts can simply take up this burden and carry it, along with all the rest of the work they have to do, it is worth pointing out that it is very common indeed for judges to be employed sometimes for long periods on work which is other than the work of their own courts. I may have missed some discussion on this but I think clause (b) of subsection (1) goes a long way to meet this difficulty because it permits the appointment of a former judge of the High Court. A former judge of the High Court is, I think, at this moment or was very lately, sitting in the Special Criminal Court because the Offences Against the State Act permits a large range of people to sit there apart from judges. A former judge is eligible. I imagine that if the President of the High Court said to the Government: “I simply cannot spare any more judges”, the Government's reaction would be either to appoint an extra judge, as the Minister hinted, or else to look for a retired judge who might still be well capable of doing this job and might welcome it.
The only thing I will say about the reasonable contribution by the Parliamentary Secretary is that he was absent from the House when we were discussing this question and both the Minister and myself were agreed that it would be much more desirable to have a serving judge appointed if possible.
The Minister and the Parliamentary Secretary may be under a serious misapprehension about the work involved in this task. The Parliamentary Secretary has been talking about judges presiding over other bodies but those have all been commissions of inquiry —fairly leisurely types of operations. I know because I appointed quite a number of them in my time. As a rule there is no particular time limit set to their task. That is an entirely different type of operation from what we are talking about here. We are talking here about the inexorable pressure of day-to-day appeals. I think the Parliamentary Secretary at least is under a serious misapprehension if he is comparing what is involved here with a judge presiding over a commission of inquiry of some kind.
It is fairly well established practice now that a judge can take on the additional work involved in presiding over one of those inquiries or commissions without interfering unduly with his work in the courts but there is something fundamentally and radically different involved here. This will be a very hard-working, grinding job and there will be a very considerable volume of business coming before this new board, day in day out. The volume of business will be of very great pressure and of very great commercial importance in many cases. It is in no way to be compared with presiding over a commission of inquiry.
I want to repeat that more thought should have been given to the situation which this will bring about. My amendment suggests that the nomination would be made by the Chief Justice. If that is not to be done, at least there should be consultation and consultation at an early stage, even while this Bill is wending its way through the House. The matter should be discussed with the President of the High Court or the Chief Justice to see what the situation is and whether a new judge will be needed, and that would take legislation. Let us get the legislation under way.
This comes back to the very thing we were talking about under section 3. It might be that the board could not be established because there was no judge available to act as chairman. I would see that, in the normal way, the judge who is going to take over this job, if he is a serving judge, as I hope he will be, will be pretty fully occupied and to all intents and purposes will be unavailable for ordinary judicial duties. That being so, we should know now where we stand because if a new judge has to be appointed that will be a process of some length and it would be as well to be getting on with it now.
I think Deputy Haughey is under a misapprehension and perhaps I should have noticed this earlier on. He is talking as if he envisages this chairman taking oral hearings and——
Not at all. I am talking about his carrying out his normal job as chairman of this board.
Then he would be doing what Deputy Cunningham was doing and what Deputy Begley is doing at present, along with other duties. I believe this will not be the time consuming job which Deputy Haughey seems to think it will be. I agree the job must be done properly and if necessary, an extra judge will have to be appointed. It was only a one section Bill the last time it went through here. I am not quite sure whether legislation would be needed for another one. There may have been some provision made in the last Bill to cover that.
But it is a relatively simple matter which could be dealt with. I think Deputy Haughey, in his efforts to ensure the thing is perfect may be going to an extreme which is not necessary. I believe the section as proposed will do the job properly, and, particularly in view of the fact that it is what he himself appeared to want and what was agreed on here by most Deputies anyway, there is no point in discussing it very much further.
While I compliment the Minister on the amendment which meets the suggestion of a judge, which was one of the main points made in most of the speeches made on Second Stage, there is one point in section 6 of the Schedule, which reads:
The Government may remove from office a chairman——
We are on amendment No. 4.
I think it is relevant:
The Government may remove from office a chairman... whose removal appears to the Government to be necessary for the effective performance——
The removal of the chairman is dealt with in a separate amendment which will come up at a later stage.
We are talking about the appointment of a chairman. Surely it is relevant to discuss also the removal of a chairman. It is all in the one section.
No. The removal is dealt with by a separate amendment.
As I understand it, a judge can be removed from office only by decision of two-thirds of this Chamber. In this legislation the Government are taking unto themselves the power of removing him from his position as chairman of this board. I feel there is a contradiction there.
The Deputy is going on to discuss the removal of the chairman, and that is dealt with in two separate amendments, Nos. 106 and 107.
Let me make this point, because I am sure it will help Deputy Burke. He was not here when I mentioned it. If a judge is appointed as chairman, he will still be a judge, and it will be a duty to which he will be nominated. The fact that he ceases to be chairman of the board does not mean he also ceases to be a judge. It has nothing to do with his appointment as a judge.
The provision I quoted says the Government may remove from office a chairman "whose removal appears to the Government to be necessary for the effective performance by the Board of its functions." If he is to be removed in that manner from the position of chairman, surely the same thing would apply to his removal from his position as a judge. If he is not performing his functions as designated he should not be there in the first place. Therefore, instead of laying a notice to that effect before the House, there should be a vote of the House on this issue the same as there would if he were being removed from a judgeship.
They are two different issues.
This is a vital board.
The Deputy is going completely outside the scope of the amendment.
Deputies
No.
The removal is dealt with in two separate amendments.
Which amendments are they?
Amendments Nos. 106 and 107 deal with the procedure in regard to the removal of a chairman.
Amendment No. 107 being the better of the two.
That can be argued when we come to the amendments.
Surely it is relevant. If you are talking about appointing somebody, you are also talking about the consequences of a decision to remove him.
It does not follow at all. We cannot have duplication in the debate.
I am not anxious to have duplication in the debate. I just wanted to clarify that section of the Schedule, and I shall come to it later on.
I take it that the chairman of the board, who, under this amendment, will be a judge, will be taking over the work of planning now entrusted to the Minister and delegated to the Parliamentary Secretary. It will be a full-time job for one man if he wishes to do it properly, and I believe that the Minister or Parliamentary Secretary concerned regarded it as a very onerous job because each application had eventually to be signed by the Minister or the Parliamentary Secretary to whom the Minister delegated the powers under the planning Act.
Planning appeals run to over 3,000 per year and each planning appeal is a very important item for the planners and, indeed, for the applicant. Sometimes it is necessary for the Minister who is responsible for planning appeal decisions, in order to satisfy himself to go and see what he is about to sign for and to make himself familiar with the advice given to him by the officials of his Department. He has to have the best information possible on the matter before him. If the Minister has in mind the appointment of a person who will have other duties as well, then I think he is mistaken. I agree with what Deputy Haughey has said, that it is important to have somebody who will be engaged full-time on this work as chairman of the board.
The amendment says "a judge or former judge". It does not follow that it will be a judge.
It is in the Bill that it must be a judge.
No.
In the amendment.
I thought Deputy Haughey accepted that it would be a judge or former judge. Deputy Haughey wishes to have it provided that:
The chairman shall be a judge of the Supreme Court, the High Court or the Circuit Court nominated by the Chief Justice.
My amendment was that he should be:
(a) Such judge of the High Court as is for the time being nominated with his consent by the Government, or
(b) a person who is a former judge of the High Court and is appointed by the Government.
Therefore, do not let us get confused about it.
We are not confused at all.
I am not a bit confused.
Somebody appears to be.
I am just wondering about this. A judge is a professional man fully trained in law, but as regards planning permission, rather than have a man from Dublin, who had never been down the country, being brought to my county to decide a planning application, I would prefer to have Deputy Molloy or Deputy Tully as the Minister or Deputy Begley or Deputy Cunningham as Parliamentary Secretary making the decision, because they have to go back to the people. But if some faceless man makes a decision we must take it or leave it. I would like to know what qualification this board of faceless men will have. A least if the Minister or Parliamentary Secretary makes a wrong decision, he will have to answer for it in this House or down the country.
The Deputy is going very wide of the amendment.
It may not be relevant, but I have reservations about the whole idea.
Deputy Callanan is delivering a reserved judgment.
While there is something valid in what Deputy Callanan says, on balance I think we are inclined to agree to having a judge as chairman of this board. In the light of all the facts and all the personalities and personages that can be considered for such a position, I think the person most acceptable to both sides of the House eventually, in spite of our reservations as expressed by Deputy Callanan, would be a judge. I am not sure of the exact number of High Court judges that are appointed at any particular time, but I understand the number would be about six.
Seven. We added one last year.
Assuming there are three or four of them still alive who are retired and who were former High Court judges, you are talking about a group of persons who may not number more than 12. Therefore, the chairman of this board has to be selected from this group of 12 persons. I wonder if the Minister has considered the position that might arise should none of those people accept the position of chairman of this board. It may not be an attractive type of post for them. It is very tedious work. There is a heavy work load at times and, if it is to be done conscientiously, can involve them in work which to one man may be of interest, but which other judges would feel it was not their cup of tea. It may be a bit extreme, but I wonder if the Minister has considered the possibility, seeing that there are only a small number of High Court judges, that none of them accept the position. Has the Minister made any soundings with the judiciary whether or not there are persons there willing to accept this position?
There may be a certain amount in what Deputy Molloy says; possibly the judges might not like the appointment. I am quite sure a number of them do not like the appointments they have at present, but they are servants of the State, and I am quite sure that if they were asked to do the job by the State—I have not the appointment of them; the appointment will be made by the Government— they will do it. While Deputy Molloy's point may be valid——
Have they been consulted?
No, you could not possibly, because as I pointed out on a number of occasions, this is only an amendment. Incidentally, it is only fair to point out that the Fianna Fáil amendment suggests a judge of the Supreme Court, the High Court or the Circuit Court. All of us can suddenly, out of the blue, produce wonderful ideas which have not been worked out.
I am quite sure the Fianna Fáil Party considered Deputy Haughey's amendment. They certainly considered ours. Both sides came up with a judge and, therefore, what Deputy Molloy says is possibly true: it may be that neither a serving judge or a former judge will be anxious to be appointed chairman. I can sympathise with him and so, I am sure, would he if that were the attitude taken but, at the same time, I do not think we would have a situation where a judge would be asked to take on this job and would say he would not accept it.
The Minister has no ground on which to base the assumption there would not be a refusal to accept this onerous position from the small number of High Court judges available. The logic of the Minister's argument defeats me. Acceptance of the Opposition amendment depends on the goodwill of the Government. If the Government have not a similar amendment down and were prepared to accept our amendment involving the appointment of a judge we would assume that the Government, charged with the implementation of the Bill when it becomes law, would have the necessary consultations with the Judiciary to ascertain in advance whether this onerous responsibility would be acceptable to the Judiciary. It is quite a reasonable point.
Deputy Molloy is begging the question. Some time ago a Special Court was set up here. Does the Deputy suggest that the Government consulted with the judges to know if they would accept office in this court? We are trying here to improve the Bill through the medium of discussion. Red herrings make no difference at all; we have the proposal before us that a serving judge or a former judge be appointed and that is what we are discussing.
It is not unreasonable for us, while agreeing with the Minister and the Government on the appointment of a judge to this important new post, to ask what provision has been made for this appointment. The Minister knows we agree with him on the desirability of appointing a judge, pace Deputy John Callanan from Galway.
And a few more judging by the Second Stage debate.
We are a democratic party and we try to abide by majority decision. The majority of us are in favour of a judge and Deputy Callanan will go along with that decision, though he is free to voice some doubts about the validity of it. We are generally agreed we want a judge and we are grateful to the Minister for meeting our point of view, but it is not unreasonable for us to ask him in this context if he has considered all the implications and made appropriate provision. Will a judge be available and does the Minister know he will be able to appoint a judge without seriously interfering with the work of the courts? These are reasonable questions.
I hesitate to talk about a "spare" judge in relation to their awful majesties but, if there is not an available judge, would it not be judicious of the Minister to put a simple one line section into the Bill providing for the appointment of a judge? That is a valid proposition.
I do not think it is a valid question.
It most certainly is valid because the appointment of a judge to this new post is not on all-fours with any other appointment any judge has ever taken on before. That is the fact. This is a totally new and onerous type of position which no judge has ever before been asked to accept. I believe, though Deputy Molloy does not agree with me, that any judge taking on this task will have to be full-time on it and will not be available for ordinary judicial duties. That will almost certainly mean the appointment of a new judge and the Minister should face up to that situation.
Deputy Haughey can be assured that I will face up to anything.
Good man.
As it stands, the position is quite simple; either a serving judge or a former judge will be appointed. I have a preference for a serving judge but, if it is not found possible to provide a serving judge, the House can be assured that it will have before it a simple Bill such as was introduced last year when we found another judge was required. We introduced a Bill and he was appointed. We will have no objection to doing it again. As Deputy Molloy said, a person could be appointed as a High Court judge especially to do the job if necessary.
We are talking around a hypothetical situation. I honestly believe that is not the spirit in which this Bill should be debated.
It is not a hypothetical situation.
Debate adjourned.