Dáil Éireann debate -
Wednesday, 26 Feb 1986

Vol. 364 No. 2

Courts (No. 2) Bill 1986: Committee and Final Stages.

Question proposed: "That section 1 stand part of the Bill."

Dr. Woods

I join with other members in congratulating Galway on the status which it has achieved in becoming a county borough. This has been recognised in the legislation in relation to the administration of justice.

The Minister said he did not receive advice about this until quite recently. Section 1 adds Galway County Borough to the list which is in the schedule of the 1936 Act. Indeed, Deputy Wilson pointed to some of the other possible changes in this schedule which could occur as a result of later sections in this Bill. I recognise that the Minister has not got any intention to do anything like that at the moment. Could the Minister say when this lacuna was brought to the Miniter's attention and by whom? The Minister said in general terms that it was not brought to his attention until quite recently.

Minister for Justice (Mr. Dukes)

It was brought to the attention of my Department about a month ago by the Attorney General's Office.

Mrs. Geoghegan-Quinn

Is it not normal practice in Government, when new legislation is coming before the Cabinet, that the memo regarding the legislation is sent to each Government Department who might have an interest in it and that therefore the onus is on the Government Department involved to look at the legislation and make sure that it has no implications for them? Did that not happen in the case of the county borough memo?

Mr. Dukes

Normal procedure in relation to that measure was followed in that the draft memorandum was circulated to the appropriate Departments for their comments and observations. That does not necessarily include all Departments.

Mrs. Geoghegan-Quinn

The Minister is neither confirming nor denying that it was sent to his Department. Was the original draft memo sent to the Minister's Department? If it was it would have been obvious that there was a necessity for this amendment, and we would have got it sooner.

Mr. Dukes

The original draft memo would have been sent to the Department of Finance, to the Department of Justice and to the Office of the Attorney General.

Dr. Woods

Who drafted the Bill? When the Local Government (Reorganisation) Act, 1985, was first drafted, was it drafted by the Attorney General and his office or within the Department of the Environment? I understand that the Department of the Environment have a legal department.

Mr. Dukes

My answer will not lead to the points which the Deputy expects because, as he knows, the normal procedure for the drafting of Bills includes draft documents from the sponsoring Department which have to go through the Parliamentary Draftsman's office. That procedure was followed in this case.

Dr. Woods

From what the Minister has said we can take it that the implications of that Bill must have been seen initially presumably in the Minister's Department at that time and that for some reason no further action was taken until approximately a month ago the Attorney General brought it to the attention, of the Minister and his Department. That is basically the position?

Mr. Dukes

Yes.

Dr. Woods

Section 1 (1)(a) contains the intention to insert in the Second Schedule of the 1936 Act, the Galway County Borough. Section 1 (1)(b) inserts in section 33 of the main Act the following section:

"(aa) alter the composition of a High Court Circuit by adding to or removing from the Circuit a county or counties, a county borough or county boroughs or a county or counties and a county borough or county boroughs, or".

This must be seen in the context of section 33 to see exactly what is happening here. Section 33(2) says:

At any time after the commencement of this Part of this Act, the Minister for Justice may by order, made after consultation with the President of the High Court, either—

(a) alter the number of High Court Circuits and make such redistribution of the several counties and county boroughs (other than the county of Dublin and the county borough of Dublin) amongst the several High Court Circuits as he shall think proper having regard to such alteration of the number of such circuits,

That gives power to alter the number of High Court circuits and to redistribute counties or county boroughs among those High Court circuits. It appears from that that the Minister already has power to alter the number and make a redistribution. Paragraph (b) reads:

Without altering the number of the High Court Circuits, make such variation as he thinks proper of the distribution of the several counties and county boroughs (other than the county of Dublin and the county borough of Dublin) amongst such circuits.

He already has power to alter the number and, without altering the number, to make under section 33 (2) (b) such variations as he thinks proper in the distribution of several counties and county boroughs. He has those two powers at present and he is seeking in this subsection to alter the composition of existing circuits by adding or removing a county or county borough.

Perhaps the Minister will tell us why he feels it is necessary to have this amendment here. First, he said that at the moment he had no further additions or deletions in mind other than this, and we take that to be a fact, although going back a week or a month, obviously the Minister had no intention then of making even this change. Within the next few weeks he could have another intention. Secondly, what about adding non-contiguous counties? I presume that under the power that is there at the moment, and certainly with the added power which the Minister has here, the Minister could add in non-contiguous counties.

This is getting back to what Deputy Wilson was concerned about, that Cavan would lose its status and position, but where might it be added to if it was added somewhere else? I presume that, under the Act as it is and as it will be when amended, we are dependent on the Minister and his consultations with the President of the High Court in relation to any changes he will propose to make and there is nothing in the Act to ensure that the contiguous nature of these areas will be borne in mind. There appears to be no control other than the kind of control which arises from the common sense of the Minister and the President of the High Court in coming to these decisions.

The other point that strikes me about this section is that Dublin is an exception under section 33 (2) (a) and (b) of the 1936 Act. It is not an exception under section 1 (1) (b) (aa) of the Bill, the new one the Minister is putting in. Does this in effect mean that the exceptional position of Dublin is wiped out by the change being made by the Minister? Section 1 (1) (b) (aa) seems to be fairly comprehensive in that it allows the Minister to alter the composition of existing circuits by adding or removing a county or county borough. He could do this in certain respects already as the 1936 Act stands but always in both of those cases, under section 33 (2) (a) and (b) of that Act he was restricted in relation to the county of Dublin. Those paragraphs state: "(other than the county of Dublin and the county borough of Dublin)". Does the effect of section 1 (1) (b) (aa) remove that restriction? Can the Minister tell us his views on that?

Mr. Dukes

I will take the issues Deputy Woods has spoken of in order. Section 33 of the 1936 Act enables the Minister for Justice, after consultation with the President of the High Court — we should not forget the role of the President of the High Court in the matter — to make an order altering or varying High Court circuits other than Dublin, by reference to counties and county boroughs which existed at the time of the passing of the 1936 Act. Dublin is not included in any one of the four circuits either in the 1936 Act or by the measure that we are discussing today. Therefore, without changing the 1936 Act it would not be possible to make a change that had any connection with or reference to the County Borough of Galway because that did not exist at the time of the passing of the 1936 Act.

The amendment proposed here in this section 1 (1) (b) (aa) of this Bill ensures that the power originally set out in the 1936 Act will extend to any new county or county borough that might be set up after the passing of this measure. Of course, the measure we are taking today is designed to deal with the situation that arises from the setting up of a new County Borough in Galway. The effect of this addition to section 33 (2) of the 1936 Act is to ensure that the power already provided for in the Act can apply to any new county or county borough that might be set up. On the passage of this Bill an order will be made, again after consultation with the President of the High Court, to include the new County Borough of Galway in the western circuit of the High Court.

The next question was raised first by Deputy Wilson on Second Stage and it is about Cavan. I must emphasise that this is purely a hypothetical question. I think Deputy Woods raised it now purely for the purposes of illustration. The House can take it that, if it were proposed to put the county of Cavan into a different circuit from that in which it finds itself now, we would not, for example, think for a moment of including it in the southern circuit. The Minister for Justice of the day and the President of the High Court of the day certainly would have regard to the practicality of any arrangement that they would propose. Therefore, my contention is that the passage of this measure and the amendments we are speaking about here should be seen in the context of the dictates of normal, common sense application of administrative arrangements. There is no danger in the provisions of this Bill that we will see the bizarre results Deputy Woods seems to fear.

A change or variation in a circuit is not a matter that is subject to no control. Under the provisions of the 1936 Act continued by this measure, any variation would be carried out by the Minister for Justice, after consultation with the President of the High Court, and the matter would have to be the subject of an order laid before both Houses of the Oireachtas and confirmed by the two Houses of the Oireachtas. Therefore, it is not a matter that would be capable of variation at the irrational whim of a Minister for Justice.

As far as the present incumbent is concerned the House can take it that he is not subject to irrational whims of that kind. There is a controlled procedure there. The Minister must propose and must consult with the President of the High Court and the matter must be the subject of an order of the two Houses of the Oireachtas. Therefore, an adequate system of control and inspection by the Legislature of what might be proposed is provided in any case.

Dublin is an exception, as Deputy Woods has pointed out. It was made an exception by the 1936 Act. It is not included in any one of the four circuits and the provisions of this Bill will not in any was affect the exceptional position of Dublin.

Dr. Woods

In relation to the question of Dublin, I take it that the last point the Minister made clarifies the situation and that he has taken advice on that and is quite certain of it. Subsection (2) (a) will read as it has, that the number of High Court circuits can be redistributed and such redistribution can be made by the Minister, excluding the county of Dublin and paragraph (b) will still say that, without altering the number of High Court circuits he may make such variations as he thinks proper. That again excludes Dublin. In between, will come paragraph (aa) which makes no reference to this exclusion of Dublin but will allow the Minister power to alter the composition of a High Court circuit by adding to or removing from the circuit a county or counties, a county borough or county boroughs, etc. I take it that the Minister has been advised correctly and that this will not affect the position of Dublin.

As far as Cavan is concerned, the Minister says we are talking about hypothetical situations. In a debate on this or any other Bill one does not normally have any option but to look for the hypothetical situation which might occur if certain things happen. The practical examples come out subsequently. As far as Cavan was concerned, I raised that general question on Second Stage. Deputy Wilson came in of his own accord, being concerned about Cavan because he knows the circumstances there very well. I accept that I was dealing with the matter hypothetically, but I had no other option. Much of the legislation, in justice, will have to be teased out in that way.

The Minister said that Cavan would not be inserted, for example, in the southern circuit and I accept that, but according to the schedules which we are discussing here, Cavan is mentioned as the appeal town for Cavan county. Could the Minister tell us what is happening in Cavan at the moment? Where are the appeals for Cavan county being held at present? I know that the main building is in a bad way, from what we have heard Deputy Wilson say. It seems that some alternative place is being used as a stopgap measure. I take it that under the schedule Cavan would still have to be the appeal town as stated in the Act. The onus presumably would be on the local authority in that case to find a suitable alternative venue within Cavan town and that the appeal town aspect of this schedule would assure this. Am I right in thinking that?

Mr. Dukes

Yes, the Deputy is correct in drawing that conclusion. From the information here, the appeals in Cavan are being held in Cavan town at an alternative venue. As long as the 1936 Act, as amended, keeps its present form, appeals in Cavan will have to be heard in Cavan town.

Dr. Woods

To alter that composition would require altering the schedule, I take it. In effect, Deputy Wilson need not be worried about that, while he is naturally concerned about the condition of the courthouse, its improvement and refurbishment. Cavan will remain the appeal town for Cavan County. Paragraph (aa) gives the Minister power to add or subtract particular counties but the Minister cannot change the fact that Cavan is still the appeal town, I take it, while that is in the schedule.

Mr. Dukes

I just want to make the point clear. The Minister is not taking powers here. The Minister is extending the power that already is given to him by the 1936 Act, which must be exercised in consultation with the President of the High Court and subject to the procedure of making orders in both Houses of the Oireachtas. Any action that the Minister would take under subsection (2) (a) or now subsection (2) (aa) or subsection (2) (b) of the 1936 Act would have to eventuate in the laying of an order before the Houses of the Oireachtas. There is no means by which, without reference to the President of the High Court or the Houses of the Oireachtas, the Minister could vary either the position of Cavan or any other appeal town as envisaged by Deputy Woods.

Dr. Woods

I take it the Minister appreciates that it is the wording of the extension of the powers that is under discussion. Taken on their own, they do not mention the Dublin exception and they give the Minister additional powers, of course in consultation, because that is what the whole of the section is about. The Minister has clarified the position well enough to leave people's minds at rest in that area. I am relying on what he says in relation to the question of the exclusion of Dublin referring also to paragraphs (aa) and (b). I take the Minister's word for that for the present.

The other aspect is that under section 33 (3) of the 1936 Courts of Justice Act, "Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and if either such House shall, within the next twenty-one days on which such House sits after such order is laid before it, pass a resolution annulling such an order, such order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder."

In that respect, as I pointed out on Second Stage, that section covers this new paragraph (aa) so that Members of the House who read this section should recognise that the regulations will still have to be placed on the table and can be annulled after 21 days if Members are dissatisfied with what is planned. The control, as the Minister says, is there. Notice of such regulation would be circulated to each Member of the House, I take it. There is some difficulty with those regulations and with orders made in that quite often they do not say what is happening, except in technical terms. They say that the Minister has made an order under a certain subsection of a certain Act. As the Minister knows, Deputies receive a great deal of post of all sorts all the time. Unless one is fairly assiduous, such information will not advise one properly on what is happening. If you have the time and the opportunity you will look for further explanations, but I suggest that when such regulations are being circulated, in all cases, not just a few, the Minister should consider issuing an accompanying note which would explain briefly the implications of the order being made by the Minister at the time. The 21 days limit is tight enough even if the Oireachtas is sitting. A note setting out the principal implications of the order would be helpful. Otherwise there is a danger that Members of the Oireachtas would not realise what is happening because of the technical nature of such orders.

Mr. Dukes

I appreciate the force of the points being made. I do not want to be offensive, but the points are a little blunted because of the fact that the Deputy has the 1936 Act in front of him. Notice of the order is usually circulated and the order is accompanied by an explanation that the note does not form part of the order. In some cases the extra information given in the note is ambiguous, just a paraphrase of what the parliamentary draftsman has put into the order. I undertake to ensure that when I am laying such orders I will consider whether the accompanying explanation is of sufficient use to Members.

The 21 days referred to in this and other legislation are 21 sitting days. That would be a period of seven weeks in the lifetime of the Dáil, except when we have extended sittings, when it would be between five and seven weeks. This gives Members sufficient opportunity to find out what is going on and, if they are moved to do so, they could put down a motion to allow the order to be discussed.

Dr. Woods

In other words, there is a sort of flagging system. My concern is that Members would be made aware clearly in layman's terms of what is happening. Of course, we can go back and read the Act and see what is being done. For instance, Deputy Wilson is not involved in this matter but he has to discover what the effects of such an order would be on his constituency. The same applies to other Members on both sides. Therefore, the notes should make the position crystal clear to Members on a continuing basis. Systems elsewhere give more detailed information than is given here at the moment. Subsection (2) (a) provides:

Galway is hereby deemed to be the appeal town, within the meaning of Part IV of the Courts of Justice Act, 1936, for the purposes of appeals from judgments or order of the Circuit Court given or made in actions or matters heard and determined before the passing of this Act in the County Borough of Galway or before the 1st day of January, 1986, in the area that, upon the date, constituted the said County Borough.

The Minister did not say how many appeals or judgments are involved and what will be the effect on them. Does he have this information available and can he tell us about possible delays in those judgments or orders?

Mr. Dukes

I said I did not know how many. I made the point that there will be no undue delays in hearing appeals. The Hight Court sits in each appeal town twice in a year and that seems to ensure the necessary expedition of business. The insertion which section 1 makes in the Second Schedule of the 1936 Act designates Galway as the appeal town for the County Borough of Galway. That clarifies the position from 1 January 1986. Subsection (2) (a) designates Galway as the appeal town for decisions of the Circuit Court made in the County Borough of Galway before the passing of this Act and for decisions of the Circuit Court made before 1 January 1986 in that area. This is to ensure that none of the business arising before 1 January 1986 will fall into a limbo.

Dr. Woods

Subsection (2) (b) states:

A notice of appeal served before such passing in respect of a judgment or order referred to in paragraph (a) of this subsection shall not be invalid by reason only of the fact that an appeal town, within the meaning aforesaid, for the County Borough of Galway did not stand specified, or that paragraph (a) of this subsection was not in force, at the time of such service.

Is this not inserted particularly to cover those cases in which appeals might be regarded as invalid by reason of the delay from 1 January to the date of the passing of this Act? Is the Minister aware of cases in which people saw no way to appeal since January 1 and therefore did not appeal and had run out of time? Notice of appeal must be within 14 days of the making of an order by Circuit Court. Such people do not appear to be covered in the Bill and the Minister presumably would not be aware of them.

The Minister says he does not know how many appeals there are and therefore it is unlikely that he would know the nature of those appeals or if people refrained from appealing because there was no process available. If these people now decide to appeal, will another Bill be needed? What advice has the Minister been given on this point? What will he do if people come forward now and say they did not appeal for the reasons I have given?

Mr. Dukes

The situation Deputy Woods envisages could not arise because the High Court is sitting on circuit in Galway in March for the first time this year. We have covered the eventualities by the measures in this Bill, assuming we pass it, which I hope will be the case.

Dr. Woods

As I see it, a person has to give notice at the time of the making of the order by the Circuit Court, but that has nothing to do with when the High Court sits. Let us look at the practicalities. An order is made by the Circuit Court on 1 January and there are 14 days within which to lodge an appeal. It does not matter when the High Court sits because the 14 days would count from the date of the making of the order. It is unlikely that someone decided not to appeal simply because the procedure was not there, but it could have happened. If someone comes forward now and says he did not appeal within 14 days because this legislation was not in existence but that he now wants his appeal recognised, I do not believe this Bill covers such a claim.

Mr. Dukes

The situation mentioned by Deputy Woods is hypothetical. I am not informed of any case where following a judgment or an order of the court a person came to the conclusion that he could not appeal because we had not passed this measure. I suppose that, even if such a hypothetical situation were to arise, I would not know about it. If on foot of orders made by courts up to now people have acted in a way that would debar them from making an appeal, they would have to live with that. I do not think it likely that such a situation would have arisen or that people would have taken that course of action because this measure was not passed. Apart from anything else, they did not know that this legislation was being introduced.

Dr. Woods

I do not want to argue the point further but a person would have a reasonable argument for saying he did not appeal because the appeal procedure was not there at the time. The Minister knows how barristers can successfully argue such points. If people claim that they would have made an appeal if they had known this legislation was being introduced, it is very hard to see why they should be prevented from appealing now. Admittedly, it could be argued that they should have looked for an extension of leave to appeal but the reasons these extensions are given do not normally include a lacuna in the law. That is a matter the courts could decide. I am pointing out that this is one aspect which is not covered in this Bill. I appreciate that the Minister has made provision for each circumstance he could foresee, especially given the fact that he did not know the number or nature of the appeals when he was preparing this measure. This is a point of law from which a good barrister could create an embarrassing situation for the Minister. He could claim that this lacuna was ground for getting an extension. We do not seem to be able to do very much about this now because there is not scope to deal with amendments.

Mr. Dukes

Basically I agreed with the final conclusion of Deputy Woods' remarks. It would take a great deal of verbal agility, if not a good deal more than that, to make the case post factum that had things been otherwise an appeal might have been made and that, since legislation has been introduced, an appeal is being made now. Most people practising in the Circuit——

Dr. Woods

The Minister had better get used to the law in that respect.

Mr. Dukes

——would find more productive use for their time than making that kind of case.

Dr. Woods

I am not pressing this further.

Mr. Dukes

Time will tell but, at the end of the day, the Bill makes provision for appeals that came up at a time when there was no designated appeal town for Galway County Borough. It also provides that appeals from now on will have, so to speak, a home to go to. In my view, that covers the situation as completely as it needs to be.

Question put and agreed to.

Section 2 agreed to.

Title agree to.

Bill reported without amendment.

Question proposed: "That the Bill do now pass".

Dr. Woods

We have pleasure in assisting the Minister in passing this measure urgently. Although the Minister regards this Bill as a mini, piecemeal Bill——

Mr. Dukes

The Deputy knows it is not.

Dr. Woods

I said "piecemeal" and the Minister brought "mini" into it. It is only a minor adjustment; but it is amazing, when one looks into it, the implications some of these minor adjustments might have. Nevertheless, we have pleasure in supporting the Minister in this Bill. Since it is his first Bill I would like to wish him every success in his role as Minister for Justice. We will give him every co-operation we can in a constructive way, but let him not take that to mean that we will not complain about things from time to time. We have pleasure in supporting the Bill.

Question put and agreed to.