Dáil Éireann debate -
Thursday, 8 Dec 1988

Vol. 385 No. 4

Courts Bill, 1988: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Kelly

Before the Adjournment I was drawing the attention of the House to the fact that there are a few decisions of the Supreme Court of recent years bearing not squarely on the question of invalid judicial appointments or the continuation of people in apparent judicial office beyond an age at which they were no longer warranted so to do, but, nevertheless, illuminating, because they bear on the problem of whether the sky must be deemed to have fallen if some irregularity shows up in our legal or constitutional process of a kind which in theory might seem to invalidate a huge number of acts which previously have been done.

Before Question Time I had mentioned the case of Miss de Burca in which the plaintiff successfully got the Supreme Court to declare invalid the provisions of the 1927 Juries empanellment to persons who were both male and householders, and because of its conflict with the constitutional provision against discrimination, infringing what the court took to be the proper composition of a jury, and opening up the question of the status of jury verdicts in the years between 1927 and the date of the judgment. I inadvertently gave the House the wrong date for Miss de Burca's case. It was not in the 1972 but in the 1976Irish Law Report. I was confusing it with another case in the same list.

In that case Chief Justice O'Higgins referred to a case which had been decided a few years previously in which the court had not been invited to, and nobody had thought to draw anyone's attention to, the potential of the case before it for invalidating things which had previously happened. That was the case of McMahon v. the Attorney General. It was the case I had in mind and it is reported in the 1972 Irish Law Report page 69. In that case the plaintiff challenged what were regarded as the applicable provisions on the secret ballot in Dáil elections. He drew attention to the rules in and authorised by the 1923 Electoral Act which required that the presiding officer at a voting table, before issuing a ballot paper to an elector, would note on the counterfoil of the ballot paper the number in the electoral register opposite the name of the voter being given the ballot paper. That in theory made it possible to re-associate the ballot paper with the voter, by tracking the number on the ballot paper and matching the number on the counterfoil, to trace a particular ballot paper to a particular voter. It was not suggested that this had ever been done or that such an abuse had ever occured since the State began, but Mr. McMahon's point was that a reasonable apprehension must exist and the court said he was right. Accordingly, the court said a ballot constituted in the way I have described could not be described as a secret ballot for constitutional purposes and that that requirement which had existed under the 1922 Constitution had not been respected from the moment the 1923 arrangements came into force. Did that mean there had never been a validly elected Dáil since 1923? No one thought of raising that point, in fact it was expressly disclaimed in the McMahon case, but it was adverted to a few years later in de Burca's case when the Chief Justice said as follows:

In McMahon's Case the Courts were not asked to entertain any suggestion that such irregularity invalidated previous elections nor, in my view, could such a submission have been successfully made.

Why? Here is the pragmatic answer of a Chief Justice who for many years was a Deputy and a Minister in this House. I am not trying to imply that such a person would necessarily have his feet more on the ground than a lawyer who had never gone into politics but at least this is some kind of guarantee against not being free floating like a balloon in the air several hundred feet above common or garden reality. Chief Justice O'Higgins said:

The overriding requirements of an ordered society would invalidate such an argument.

He said that in Miss de Burca's case the same consideration would apply to any suggestion about the status of the jury verdicts which had been found by unconstitutionally composed juries over the years.

Chief Justice O'Higgins repeated this observation in much the same words, though cast in the form of a rhetorical question, when the point about the status of earlier jury verdicts was an issue shortly after in a case, The State (Byrne) v. Frawley, 1978 Irish Law Reports, page 326. The Chief Justice posed the question:

Could ordered society accept such a conclusion?

In other words, if we are to do what one of the judges in the Supreme Court felt might need to be done, although he said this realising the magnitude of the implications of the statement, what would be left of society? Would the convulsion not be so mountainous that society could not survive if we were to try to undo the effects of thousands of jury verdicts down to the uttermost implications theoretical justice might require? One of the judges in de Burca's case, Mr. Justice Walsh, our most senior and respected judge stood a distance from this. He said that the implications of the suggestion that earlier verdicts might now be impugned might be thought to be frightening. He went on to say that whether they are frightening or not has nothing to do with the task of interpreting the Constitution which falls upon the court, that if an infringement of the Constitution were to continue long enough, the cost of correcting it might be great but that that is not a reason for perpetuating it. In an oblique way he did envisage that one might some day have to incur a heavy cost in putting right some unconstitutional process, but if I have to declare a preference between two very respected and fine judges, I would have to come down on the side of Chief Justice O'Higgins for the simple reason that society simply could not sustain the burden which any such retrospective rectification of countless errors would throw on it.

The last of the cases I want to burden the House with is the income tax case which everyone must remember — Murphy v. the Attorney General reported in the 1982 Irish Law Reports, page 241. That case bore on the constitutional validity of the Finance Act provision which effectively taxed a married couple more heavily than if they were two people cohabiting, even calling themselves Mr. and Mrs. X, perhaps even having a bogus reception and handing out wedding cake. There is no law against that. They could have been masquerading in every respect as a married couple but not in fact married. They would pay less in tax than a lawfully married couple going through the same social formalities. All the imagery I have employed naturally did not come into the court's judgment but, in a nutshell, that was the reason for the court striking down those provisions.

That, of course, raised the ancillary question of the status of any taxpayers, of whom I was one, who down the years had been the single taxpayer of a married couple and had been treated less advantageously than if he had not been married but living in ostensibly the same conditions. The court did a very unusual thing. It gave a set of opinions uncoupled from the substantive judgment in which it dealt with the question of possible retroactivity. In the judgment the majority view, certainly on the point that interests us here, was delivered by Mr. Justice Henchy in a form which I think must be regarded as magisterial and authoritative. I could not improve on it. If the House will bear with the quotation from the Supreme Court majority, I will cite it. Judge Henchy said:

While it is central to the due administration of justice in an ordered society that one of the primary concerns of the Courts should be to see that prejudice suffered at the hands of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there may be transcendent consideration which make such a course undesirable, impractical, or impossible.

Over the centuries the law has come to recognize, in one degree or another, that factors such as prescription.

—that is lapse of time—

(negative or positive), waiver, estoppel laches,

That is, sitting on your rights so to speak and not doing what perhaps the solicitors in the cases that we are talking about here, might well have done, namely, asked themselves how old is the judge, ought his appointment to have been renewed, has it been renewed, or is he properly there on account of the practice qualification? That is for solicitors, forgive me colleagues, but that is what they are part paid to do just as counsel are paid to do it and from now on, no doubt, it is a point which every defending solicitor and counsel will look at ——

Mr. Taylor

Save us.

Mr. Kelly

Is the man sitting on the bench under the harp and purporting to administer justice entitled to be there? His client will be expected to be satisfied about that before pleading to the court or even recognising it.

Over the centuries the law has come to recognise in one degree or another these things:

a statute of limitation, res judicata or other matters, most of which may be grouped under the heading of public policy may debar a person from obtaining redress in the courts for injury, pecuniary or otherwise, which would be justifiable and redressable if such considerations had not intervened.

I will quote one more short paragraph, Sir, if you will allow me.

Judge Henchy, speaking for three other judges as well as himself, said:

For a variety of reasons, the law recognizes that in certain circumstances, no matter how unfounded in law certain conduct may have been,

—in this instance the collection of tax on a basis which was found unconstitutional—

no matter how unwarranted its operation in a particular case, what has happened has happened and cannot, or should not, be undone. The irreversible progressions and by-products of time, the compulsion of public order and of the common good, the aversion of the law from giving a hearing to those who have slept on their rights, and quality of legality — even irreversibility — that tends to attach to what has become inveterate or has been widely accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of the corpus juris.

of the body of the law.

Now, Sir, I freely admit, and I would not be required to be pushed on this point, because it is a very important point, that a doctrine like that is a dangerous one to stand on in all cases. If it was proposed to use such a doctrine as an umbrella to protect against the rain of litigation or challenge, all unlawful acts done officially, by carelessness, by inadvertence, or even deliberately, if the people who had suffered under them did not realise what had happened, I would not put that forward in this House for an instant. There would be an end to all justice in this country, or anywhere else, if such a proposal was made, that water under the bridge, whatever pushed it under the bridge, at whatever speed or in whatever channel it flowed under the bridge, was simply gone and could not be recalled. I would not stand over such a thing at all, but where you have a large scale irregularity, so large in scale that, as the Minister has said, tens of thousands of people are involved, even if in only relatively minor ways, so that to undo the thing would not only be a headache but would probably be physically impossible in many cases, then, I think, large considerations of public policy may come into play.

I do not want to be the one to draw the line as to where the argument I have just quoted from Mr. Justice Henchy would apply or where arguments of strict individual man to man justice would apply. I do not want to be asked to draw that line in any theoretical form, but what I am saying in general terms is that there may come a point — and I believe the situation here before us today is one of those points — at which to put the thing right in all its last and uttermost dimensions is not possible and not reasonable to ask for. I think, therefore, we are not doing anything outlandish by acquiescing in it.

I will be concluding shortly but, before I do so, I cannot let this moment pass without for the very first time in Leinster House using a passage of Roman Law in order to bolster an argument that is highly topical here. I will condense an excerpt from the fourteenth title of the First Book of Justinian's Digest. This excerpt comes from a late classical Roman jurist who would have been writing around the year 200 A.D. His importance derives not just from his reputation, which was very considerable, but from the fact that what he wrote was incorporated by a very tough selection process into the Digest of Justinian, compiled about 300 years after he died, which remains, so to speak, the highest form of common law reason in Eastern Europe first and then in Western Europe after it was rediscovered, throughout the middle ages and well into early modern times.

It was regarded Sir, by the medieval people as ratio scripta, written reason, which enjoyed the same status in civil affairs that the Bible did in religious. Therefore, the passage that I am going to mention without quoting it in extenso represents a piece of canonical European legal wisdom. It is not in the common law tradition and is not incorporated in any judgments of a court of Edward the III or Edward the IV or of Saorstáit Éireann, but it is part of the oldest legal tradition extant, still alive and breathing. If you overlook, Sir, the unavoidably archaic physical setting of the case, it bears on the question of what happens if somebody who is actually of un-free status — a runaway slave as, in fact, the instance cities — if somebody of unfree status, who has absconded from his owner, goes to a place where he is unknown, where no one knows his status which is that of not being a citizen and therefore he is ineligible of public office, and gets himself elected praeto, which is something more than a judicial office.

Let us suppose that he spends time in that office issuing edicts and decrees before this unfree status and therewith his ineligibility is discovered, the answer given by this jurist Ulpian who is personally responsible for about one-third of the Digest and who is given canonical force by Justinian is yes, these decrees and edicts stand, even though the person who put them out was not just inadvertently doing so, having mistaken his status, but in the full knowledge that he was not entitled to act as praetor. He has given out decrees and edicts of a kind that have affected people and they may not now be reversed. I have condensed his ruling and I am not denying that problems arise in a passage of that kind which the House will not want to lecture on, but it is unquestionably part of a very ancient European tradition that in a case where something irreversible in one sense has taken place, the public interest and public policy may be better served, within reason, by allowing the situation to stand. I emphasise “within reason,” because I do not want to be taken as saying that what is done is done and cannot be undone. That would be grotesquely unjust. I am not saying that, but that there may come a point where the scale of an irregularity is such, particularly when it is an inadvertent one, that the public interest is better served by trying to find some form — as any Government would have had to do — to make sense of it.

The question remains: is this Bill necessary quite apart from whether it has any effect? If what I say might be applied by analogy to the situation that this gentleman's judgments and various acts qua justice are concerned, if all these considerations from the Murphy case, the de Burca case and so on could be applied to these 17,500 plus 10,000 cases, then perhaps there is no need for the Bill at all. The House is entitled to look at it this way. If that principle which I have tried to explain to the House is a fair one and if we can regard it as having been settled now by a reasonable quantity of authority, and I think that can be said, the House would be so to speak well within the four corners of its conscience in not attempting to undo all the things this justice did. If it is within the four corners of its constitutional conscience, if I may invent such a concept, then it is within its rights to try to put the thing into some orderly form.

If we do not put it into an orderly form it is going to be up to someone to raise by means of a declaratory action some kind of case in the courts which will cost money, take time, result in uncertainty and possibly even go the wrong way from the public policy point of view. I do not want to adjudicate as to whether, if it went the wrong way, this Bill would have any validity, but we are within our rights in making an effort with it. As the Minister said when introducing this, in particular the effort to provide for similar slips in the future is not only justified but necessary.

Section 1 (3), in which Deputy Taylor said he could see no point, is an attempt to save constitutional rights which might appear to be infringed by this Bill. It is copied from the provision in the 1979 Act, the passage of which was made necessary by the foul up over the wrongful dismissal of Commissioner Garvey from the Garda Síochána and, accordingly, the non vacation of his post and, consequently, the void appointment of another officer purportedly as Commissioner. For a certain time until the matter was regularised his acts were theoretically challengeable because he was not the Commissioner, the commissionership never having been effectively vacated in the first place by Mr. Garvey. A similar clause was built into that, I think on my suggestion, back in 1979. I accept that the mere fact that this is put into the Bill does not really achieve anything special, because if somebody has a constitutional right it does not require the vesture of a statutory section to make it effectual. If I have a constitutional right and this Bill without this subsection infringes it, I am still entitled to assert it before the court even though I do not have the vesture of this section. However, it has this much purpose: it displays this House in a frame of mind in which it always ought to be, namely of an unwillingness to breach constitutional rights, a consciousness of the duty laid upon it by Article 15 not to do so, and an effort so far as it is within the power of the House to preserve individuals' constitutional rights while not losing sight of the general public interest.

Mr. S. Barrett

I would not for a moment suggest that I could add anything to the constitutional wisdom of my colleague, Deputy John Kelly. The House is a bit richer for his contribution on this legislation. One thing that comes out of what he said is that back in the year 200 AD great commonsense prevailed. Deputy Liam Cosgrave, a former Taoiseach, once said that every country needs a constitution but no country can afford one that cannot be put on the back of a postage stamp. There is a great deal of truth in what that man said. We seem to get ourselves tied up in knots here about Constitution matters. Not being a lawyer or a member of that illustrious legal profession, I often have to knock my head and ask myself if I am sitting in the Four Courts or whether I am in the place where laws are supposed to be made and changed by those elected by the people to do so.

Recognising that we have a Constitution, I wonder, when the Irish people were asked to approve of that Constitution away back in those beautiful days, whether they realised what in God's name they were doing. I do not think they ever intended that, because of an error in whatever Department it was and somebody gave his age a year older or younger, 8,000 criminal cases, 74,000 road traffic cases, 1,100 family law cases, 11,000 liquor licence cases and 17,500 other civil cases should be thrown out because somebody in some Department made the mistake about a gentleman's age.

Mr. Taylor

We would still have that problem even if there was no Constitution.

Mr. S. Barrett

Also about 40,000 fines would have to be refunded.

Miss Colley

They would not have to be.

Mr. S. Barrett

The people never intended that sort of nonsense to happen when they approved this Constitution. This House can not alone make laws, it can change laws. That is our role. The other evening here we were talking about the Extradition (Amendment) Act, 1987 and reading section 7 I, and I am sure any reasonable person, would interpret that as providing that the law could be extended beyond a particular date, that if one extended it beyond that date for a limited period one is in keeping with the principle of the law. I would to my frustration that apparently the legal eagles got working on this again and are telling us we cannot do that. Of course we can. That is what we are elected here to do. We were elected here to make and change laws. That is the responsibility the people gave us. To say we cannot do that because it is not in keeping with this, that and the other, is nonsense. We are the ones who should change the law when it is necessary and make new laws when they are necessary in the best interests of the public, provided it really is in the best interests of the public. In this case would we endanger all the best interests and what about the thousands of summonses signed by this district justice? What about the thousands of bench warrants signed by him? There is no air of reality about what we are talking about here.

I am not for one moment trying to justify what happened. The Minister of the day has a responsibility to ensure that procedures are put in place so that this sort of thing may never happen again, but the reality is, as an ordinary, reasonable person would accept, that as long as there are human beings on this earth there will be mistakes. Nobody can guarantee that never again in any Department will a mistake be made. Of course mistakes will be made. Somebody may press the wrong button on a computer or put in a two instead of a three on a piece of paper. You can do the best you can to eliminate as many possibilities of mistakes being made as is feasible. Therefore, I urge this House that when we are faced with a situation like this, one none of us particularly likes, we make it quite clear that we have to change the laws to suit the situation. It is in the public interest that we make the necessary changes here to enable those cases to remain valid and we do not drag ourselves into a heap of problems that could be avoided.

Miss Colley

We cannot provide against challenges in the courts.

Mr. S. Barrett

The courts now tell us this is what the people intended when they were approving the Constitution. Why can we not change the Constitution? Every other country changes it whenever it feels so inclined. We think everything is a big deal here. We cannot do sensible, reasonable things because of the Constitution or the courts.

(Interruptions.)

Mr. S. Barrett

We appoint the judges. The judges administer the laws passed by the people through their public representatives. That should be the basic principle any decent society operates under. That is what democracy is about. It is not about people arguing for weeks, months, and years in the law courts on a point of law. This is the place where people make the laws and change the laws. That is what they elect us for.

(Interruptions.)

Mr. S. Barrett

If we find the Constitution is acting against the best interests of the people, we should ask the people if they agree that we should change it. Imagine trying to explain to ordinary people that, for argument's sake, the courts found that 74,000 road traffic offences are invalid because somebody in a Department made a mistake about reporting somebody's age. They think little enough of us, but can you imagine what they would say about us then? Would it be that we could not find a way of changing this so this sort of nonsense cannot go on?

Every day I speak to people who read in their newspapers that somebody got off on a technicality. They pull their hair out. They ask what sort of nonsense this is when the man was clearly guilty but somebody found a technicality that allowed him to walk free from the court. Did the people really intend that when they were adopting the Constitution? Did they really intend that they should elect people to an assembly to allow that sort of nonsense to come through? They did not. I think I speak for the ordinary, reasonable people who go about their daily lives wanting to live in peace and harmony and not to interfere with the day to day running of the State, and they are electing us to do it.

Legislators are elected to make laws or to change them. The public depend on legislators to tell them if their Constitution that was approved a number of years ago is not meeting the needs of Irish people in today's world and to advise them to change it. Then it would be a question of the decision of the people. If their decision was for change, we should give them that opportunity but let us not continue to justify some ridiculous decision because somebody got off on a technicality.

I should not be straying into this area but, in relation to the Extradition (Amendment) Act, I fear that the will of the majority of the Dáil here the other night was that it would have been safer to allow another period of 12 months to elapse before making a final decision as to whether that legislation remained in place. I have a sneaking feeling that the majority of the people in this House had sufficient doubt about that legislation to prevent them from passing it into permanent law.

Miss Colley

You are either for democracy or you are not.

Mr. S. Barrett

We voted for it because we were told that there was a danger the law might become inoperable. Legislators voted one way that did not make sense because they were afraid the law would become inoperable. It never dawned on them that they could change the law or introduce a new one the following day. We should be doing what is right and reasonable, not hiding behind technicalities and loopholes and fears of challenges in court. The judges are there to administer the laws made in this House. I do not speak as a distinguished lawyer and I find that when one speaks from a base like this one hears sniggers from the benches occupied by members of the legal profession.

Miss Colley

It is disbelief.

Mr. S. Barrett

They do not like to hear the ordinary punter like myself challenging the collective wisdom of the legal profession. They feel there is an integrity that should not be challenged. I say, "hump that." I am elected as an ordinary representative to use basic commonsense to put on our Statute books laws that make sense and to change laws that do not. This does not make sense and I do not give a hoot what book they quote from, who said what or when. It does not make sense to me that because somebody in the Department of Justice made a mistake in filling in a record of somebody's age, 74,000 Road Traffic Act offences should be thrown out; it does not make sense to me that 11,000 liquor licence cases or that 17,500 other civil cases should be declared invalid because somebody filled up a form incorrectly. Did the Irish people ever intend that that should happen? The answer must clearly be no.

Therefore, despite the discomfort of having to implement this and the fact that people may have their suspicions that it may not be in accordance with the Constitution and may have to be fought out in the Four Courts, the Irish people would say that we should go ahead and change the law and make sure that those things stick and that we are not put to the expense of having to find ways and means of unravelling this mess because somebody in the Department of Justice made a mistake. I would lay my house and my next year's salary on it that if one did a survey in Grafton Street 90 per cent of the people would agree with me. I think it makes sense that we should pass this sort of legislation.

Having said that, in relation to the appointment of the Judiciary, we should be looking at ways and means of getting the best people to serve on the Bench. If we want to pay peanuts we will get monkeys. Society depends on our courts to administer the laws fairly and to have people doing that who have the ability. I am not casting aspersions on those who serve on our Bench at the moment but there was a period when we were out looking for people to serve as District Court Justices because people could earn more money serving in private practice. In any democracy that is a dangerous thing. We should be prepared to provide the salaries and the conditions of service that will attract the people who are capable of administering the law properly and they should work in premises where the conditions and such that any human being would expect. I wonder would health inspectors approve of the conditions that exist in our District Courts for people in any other sector? The answer must be no. Yet we who talk so much about the need to preserve democracy are expecting these people to work in appalling conditions and we do not seem to be able to transfer responsibility for the maintenance and upkeep of district courts from local authorities to a central agency such as the Office of Public Works because local authorities do not have any money: I am not saying that the Office of Public Works have a lot of money either but at least there is some chance that the Office of Public Works may be able to maintain these buildings in some sort of reasonable condition.

Acting Chairman (Mr. M. Kitt)

Would the Deputy stick to the Bill please?

Mr. S. Barrett

This is all to do with the Bill. We are talking here about district justices. At the end of the day we have to make sense from the point of view of the ordinary man in the street. I may not be as qualified as my learned friends here on my right in the Progressive Democrats and the Labour Party — I did not get the opportunity of going to law school——

Miss Colley

What about the learned friends in your own party?

Mr. S. Barrett

I believe the Irish people have elected me on a number of occasions on the basis and in the hope that I can recognise a bit of commonsense when it stares me in the face. I hope that always this will be a place where people can use commonsense in deciding whether legislation should be passed or changed or whatever. There were two occasions in this one week where commonsense did not prevail. One was on the Extradition (Amendment) Act, where a crazy decision was taken. We should have challenged the great legal opinion. We could have opened up this shop the following day and walked in here and passed another piece of legislation if we wanted to make certain that the Extradition (Amendment) Act would not be permanent. It was only an excuse that was offered here. The same thing applies here today. Commonsense is being attacked because the legal arguments are being thrown in again. Therefore, we will be supporting this legislation, regretting that it is needed, on the basis that it makes commonsense.

Minister for Social Welfare (Dr. Woods)

I would like to thank the Deputies who have contributed to this Second Stage debate. At the outset I would like to say that the Minister is unable to be here as he is at an EC meeting of Ministers of Justice, one that occurs about every six months or so.

The Deputies raised a number of questions which do not directly relate to this Bill but which are related to the position of district justices, including such matters as night courts, remuneration, legal aid schemes, the question of accommodation for district justices and a variety of other questions. I will certainly convey the comments of Deputies to the Minister.

I am satisfied that the public interest will best be served by adopting the Bill. It provides a mechanism by which Mr. Mahon's position and decisions may be regularised. In a sense the difficulty about Mr. Mahon is a technical one. No one can say that the due process was not observed in the hearing of the cases he dealt with. Decisions were made in good faith on the evidence presented. Any person dissatisfied with the decision made in his or her case had the option of an immediate appeal. If he did not avail of that option he must be presumed to have accepted the verdict. Also, if he appealed he had the benefit of a higher court's reassessment of the case on the evidence. I cannot see, therefore, that any real injustice will have been caused if the technical difficulty about Mr. Mahon's appointment is corrected. The second reason for promoting this measure is the humanitarian one of allowing Mr. Mahon to benefit from the service he has given since January 1984 by way of remuneration, pension and so on. Given the background, I hope Deputies will agree that the best thing to do is to provide the means by which his service may be validated.

I should, perhaps, explain, in response to questions, what happened in this case. The district justice on the original application form in 1973 gave a wrong date of birth, 4 January, 1920 when the correct date of birth was 4 January, 1919. He submitted the application form and documentation on 25 April 1973, and was appointed in October 1976. In that month he was asked for a copy of his birth certificate for record purposes and that was submitted in January 1977. That certificate was filed but was not at that stage compared with the original document.

The first error occurred when the district justice submitted his application form with the wrong date of birth. The second error occured when the person who received the birth certificate for record purpose failed to cross check it against the original document. The birth certificate was requested as a routine and placed on a file. We can say that the person who requested the certificate should have compared it with the original document. A Kardex system operates in the Department and the initial document is put on to that system. The system is used as the reference subsequently. When one considers the system that operates it is a lot easier to understand how an official can subsequently make such a mistake. Nevertheless, it should not happen.

The district justice reached the retirement age of 65 years in January 1984 but he did not apply until late in that year for an extension from January 1985, and successively for each year after that. The cross-checking was against the Kardex system. It was not until mid-1988 that the association between the documents was made and it became clear that an error had occurred.

A number of Members have asked about the position since the mistake was discovered. The position is that verification of age and qualifications is done before the appointment by the President. That is a routine part of the checking before the appointment of a district justice now. District Justice Mahon says that so far as he was concerned it was a genuine mistake. The Minister is giving the district justice the benefit of the doubt, in so far as there is any, about the matter. We heard a lot about old Roman law from Deputy Kelly and one could say that even Homer nods.

The district justice has said that his failure to seek an extension was a genuine oversight. Arrangements have been made to ensure that before a candidate is considered for appointment as a district justice it will be necessary for him to supply a birth certificate and evidence that he fulfils the statutory qualification requirements. To be eligible for appointment a person must be a practising barrister or solicitor of not less than ten years standing and verification that he fulfils that requirement will have to be supplied by either the Bar Council or the Law Society, as appropriate. That is a new arrangement in the verification process. If correct information is obtained in this way before an appointment is made a difficulty like what occurred in this case will not arise but I accept that other difficulties may arise.

There is no doubt that a mistake was made in this case. The consequences could be very serious for the public at large and for the person concerned. He has indicated that the problem arose through a genuine oversight and the only reasonable course of action is that being taken by the Minister. Deputy Colley questioned that action being taken by the Minister and Deputy Kelly spent some time responding to the points made by her. I do not intend to deal with them again. The 1949 Act allows for a justice to be continued in office by way of a warrant made by the Committee and this will be an extension of that power. I note the argument Deputy Colley made about the break in service but there will not, in fact, be a break in service if the new procedure is followed.

I should like to assure the House that the Attorney General considered this matter and advised the Government on all aspects of the Bill. He regards the Minister's action as prudent and correct. Indeed, that is reflected in some of the statements made by Deputy Kelly. Deputy Flanagan asked me to give an assurance on that point and I am pleased to be able to do so. Deputy Colley referred to the mistake made in the Department of Justice and I should like to tell her that the Department do not conceal the fact that a mistake was made. I do not think anybody has tried to conceal anything. It was an unfortunate occurrence and that has been made clear. I am sure Members on all sides are anxious to put the matter right.

The Minister has taken action to ensure that verification of age takes place and has expanded that to include the verification of qualifications. Deputy Taylor asked if advice had been taken from the Attorney General, a point I referred to earlier, while Deputy McCartan said that the responsibility for the error rests with the Minister. At the end of the day the Minister has to take responsibility. The Minister is fully aware and conscious of that. Deputy McCartan seemed to think that the checking involved was very simple that it should have been done easily and pointed to the fact that there cannot be many involved. There are not many involved, but it was a very unusual occurrence. The administrator can be caught out at times when something quite unusual happens. The Minister is trying to provide against that in future. Taking all the cases that arose this would seem to be the only one where a mistake occurred. Perhaps it is inevitable that at some time something like this should happen.

I always find Deputy Kelly's contributions particularly interesting and enlightening. I am always afraid of them because they usually open up a debate which can go on for at least a week afterwards. He made some cogent arguments and quoted some precedents which bear on the situation.

Mr. Taylor

I will deal with those in a moment.

Dr. Woods

The Deputy will deal with them separately. The concept which Deputy Kelly was trying to convey relates to the overall public interest and the requirement for general order in our society. To some extent Deputy Barrett made that point also about commonsense which must accompany all the actions. Deputy Kelly made a point about the constitutional saver and stressed the fact that the saver shows that the House is unwilling to set aside rights. It could be argued on the other hand that, since the safeguards are there already in the Constitution, they do not have to be put into a Bill.

Miss Colley

Does it acknowledge an infringement?

Dr. Woods

No, it does not acknowledge an infringement. It is there as a saver and Deputy Kelly did not mention it. Something which he might have mentioned was the fact that actions could arise which we would not want to snuff out through this legislation which would be action for a different reason altogether. For instance, say, six or eight months ago, a district justice might have denied somebody the right to free legal aid or some other right of action might have arisen out of some of the actions which were carried out. To avoid that right being infringed or affected the saver is inserted. The need to include it is a debatable point. It was decided on balance that it was more advisable to include the saver. This point has been debated in the House before in a situation such as this when Deputy Kelly obviously felt that it was desirable.

I thank the Deputies for their comments. I can assure them that the Government's interest in this Bill is to restore order as quickly as possible and to overcome any of the difficulties which have been created while, at the same time, trying to ensure that any individual rights will not be violated.

Mr. Taylor

Will the question of a reference to the Supreme Court be considered?

Dr. Woods

I do not think that would be appropriate because the advice we have would suggest that it is safe.

Question put and agreed to.