Dáil Éireann debate -
Thursday, 8 Dec 1988

Vol. 385 No. 4

Courts Bill, 1988: Committee and Final Stages.

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

Mr. Taylor

I want to make a few comments. The Minister said that in all the numerous cases heard by Mr. Mahon the due process of law was followed in every respect — and so it was in every respect except one. The man was not a judge. That is the very serious defect that arises. Of course they called witnesses and cross-examination them, and so on, and the due process was gone through, but was it not a mock trial because the man sitting up there, dispensing judgment, was not a judge? Let us not overlook that fact.

Deputy Barrett was talking about commonsense. We all know that everybody's view of commonsense is not the same. Different people have different views on what is commonsense. I, Mervyn Taylor, could go out to Rathfarnham District Court one day when the Justice was delayed and tell the garda on duty that I was the Justice appointed for that day. I go up on the bench. Deputy Barrett is charged with driving without insurance — which, of course, he would not do — and I sentence him to six months imprisonment. If you asked if that was commonsense you would be told that it was not. It is not a simple or easy matter.

I listened carefully to the arguments put forward with great skill by Deputy Kelly. I am sorry he is not here. I have considered them very carefully and I do not agree with his reasoning. The cases which he selected and the types of situations he described are not the same as this case and I will give the reasons. He gave a number of examples, one of which was where one or two Deputies had something improper about their election to the Dáil. That would not invalidate decisions made by the Dáil. That is true but those decisions were still decisions of the Dáil. The decisions in this case were made by a man who is not a judge.

Deputy Kelly gave another example of the De Burca case. Because the situation of women had not been dealt with the juries were not in order because they had not been selected properly over the years, and so on, and women should not have been on them. That is true. They were not in order but the verdicts were given by juries. It was juries who gave the verdicts, not properly constituted, but it was still the jury that gave the verdict. In this case the decisions were given by a man who is not a judge and that is the difference.

The third case cited by Deputy Kelly related to ballot papers where it was found that the number was on the back and they were traceable. That was found to be wrong and had to be corrected. Deputy Kelly correctly made the point that, of course, that did not invalidate all the elections that had taken place. That is true and I agree with him on that matter. They were elections and a vote took place. Perhaps the ballot paper was wrong, but a vote took place and the ballots were counted. In this case the decisions were given by a man who was not a judge.

In relation to the income tax case which dealt with two people living together and the fact that PRSI prior assessments by the Revenue Commissioners were, nonetheless, held by the court to be valid, that is true. The point is that those assessments were made by the Revenue Commissioners and they have the authority to make assessments. The assessments in all those prior cases were made by the Revenue Commissioners. These verdicts and these judgments were given by a man who was not a judge.

In Deputy Kelly's final point he went back to Roman law. He referred to the man who went to another town and was elected praetor, a kind of judge. He gave verdicts even though he was not entitled to have been elected praetor because he was not qualified. That man was at least elected praetor. He did not have the qualifications but he was elected. Mr. Mahon was not a judge on this occasion and that fact is inescapable. No matter how many verdicts he gave he was just a man and his verdicts could have no more effect than mine or Deputy Flanagan's if we sat up on the bench at Dundrum, Rathfarnham, or wherever, and started to give out judgments. What possible legal effect could that have by any stretch of the imagination no matter how long it went on?

The question then arises, which is the purport of this Bill, whether you can retrospectively validate a purported verdict given at that time by that person who then was not a judge and say that the matter is now to be dealt with as though he was a judge at that time. That is the nub of the question and that is where the difficulty arises. That is why I have grave doubts as to the constitutionality of this measure. We are supporting it and we will not oppose it in these difficult circumstances. I sympathise with the Minister's difficulties, but it would be a grave mistake to think there was any certainty about it. I thought the Minister's reply on the question in regard to the advice of the Attorney General was very interesting and guarded. The advice of the Attorney General was that the bringing forward of this Bill was the most prudent and appropriate thing to do but what the Minister did not say was that it was constitutionally in order for him to do so. If he had said that, it would be a different matter. It may be the most convenient thing to do and easiest way out but there must be a serious question mark over whether it is constitutionally in order for him to do so.

Mr. McDowell

There are three points I want to make in regard to this Bill. The first is that an effort is being made to try to tidy up a mess. Every one of us in this House is in favour of tidying up a mess which has been created. This is attempted in section 1, but in a way which is not valid. Clearly, if a publican went before Mr. Mahon and asked for what seems to be a valid licence to be reviewed that publican is entitled to have his position vindicated by this House by way of section 1. He would have been told that the court is the place where justice is administered, that that is the place he should go to have his licence renewed and where he is entitled to be vindicated. That is the necessary outcome of any legislative consideration of this mess.

The second point I want to make relates to the status of the individuals at any given time. I know this sounds simplistic but sometimes the truth is horrifyingly simple. If a person ceases to be a judge in law, he is no longer a judge for the purposes of the Constitution and any purported administration of justice by him is null and void under the Constitution. Anyone who has been adversely affected by his decisions has a right to have these set aside. That right is not absolute but it is a right which is continuous in some circumstances. If a person is in jail, he is entitled to be set at liberty because no man, unless he is a judge, is entitled to adjudicate on the liberty of another. If a person has been disqualified from driving or has had a sentence imposed on him, according to our administration of justice he is entitled to have that decision set aside. He is not entitled to secure any financial compensation in respect of fines paid by him or secure compensation from the State in respect of any term of imprisonment he may wrongly have served as a result of an order made by the judge.

I agree with what Deputy Colley has said, that where somebody is of the opinion that the judge has adjudicated in the absence of judicial authority, the procedure to apply is the order of judicial review, to set aside the charge on the basis of the absence of authority on the part of the justice in question. that procedure, quo warranto, is based on the legal framework used by the English Crown and is only available under the Superior Court Rules within three months of the determination. That puts some kind of time limit on undoing the damage which has to be undone in circumstances such as these.

My third point is that this House must take a long hard look at this Bill and decide whether section 1 is constitutional. It is open only to the Government through the President, to appoint someone to be a judge. This House is not entitled under legislation to provide that somebody who ceased to be a judge is effectively to be regarded retrospectively to have continued to be a judge. That is the fundamental point. This House cannot legislate to provide that somebody is or is not a judge. The exclusive monopoly to appoint a judge is given to the State.

What happens when somebody ceases to be a judge, as undoubtedly Mr. Mahon did? He ceases to be a judge and can only in my view become a judge again in law if he is reappointed formally. There is no way that his House can alter that fundamental constitutional prerequisite for a valid execution of the judicial power. There is a very simple way around this problem. We could provide in this Bill that a person, who through ill-advertance had ceased to be a judge, would be eligible for reappointment notwithstanding his age, be reappointed properly. That would not deal with the discontinuity and the consequences of that discontinuity of the tenure of his office but at least it would be a straightforward constitutional way of dealing with this issue. It seems that a justice, when appointed, should be required to produce a birth certificate and so should every other judge as they all reach the age limit at various times.

Dr. Woods

We discussed this earlier.

Mr. McDowell

I know this has been dealt with.

Mr. Flanagan

The Deputy was in the Four Courts at the time.

Mr. McDowell

A justice, on appointment, should have to produce a birth certificate.

Dr. Woods

He is required to do so.

Miss Colley

But only recently.

An Leas-Cheann Comhairle

As this is a Committee Stage debate. I would ask the Deputy not to roam too far from what is contained in section 1.

Mr. McDowell

If the tidying up procedure had been adopted and somebody could not be appointed a judge until such time as the Government were satisfied in regard to the date of their birth, this kind of danger could be avoided. I agree that this is irrelevant to the section but it strikes me——

An Leas-Cheann Comhairle

It is bad enough to be out of order but to advertise the fact makes it even more embarrassing.

Mr. McDowell

The problem which the Department of Justice are bona fide trying to remedy under this section of the Bill is one which could be avoided. I do not believe it is correct in retrospect to attempt to square a circle and to say something which is not, is, and something which could not be, could be, by legislation and I think that is the big problem with regard to the wording in subsection (2). I am worried by the provisions contained in subsection (3) because in one sense they mean very little. Every Bill this House passes has implied in it that if anything done by that Bill is in conflict with the Constitution then, by ordinary constitutional interpretation, the Bill is held by post 1937 Statutes to fall short of any unconstitutional effect.

I think that this subsection is designed to have a wider effect. I think it is designed to deal with conflicts between this Bill and the constitutional rights of any individual. Apart from the consititutional right to liberty, to property and to a good name, there is another constitutional right which flows from Article 34, which is that every citizen in respect of whom justice is administered is entitled to have it done by a court, not simply by a court consisting of any old person but by a court consisting of a judge appointed in a manner provided by Article 35 of the Constitution.

That is a constitutional right which applies to all litigation. Nobody is obliged to subject himself to justice unless it is constitutional justice and that requires the two ingredients of a duly constituted court and a duly and constitutionally appointed judge. That is a fundamental constitutional right which section 1 (2) (a) conflicts with in virtually every case in that every single person who has been subjected by a compulsory process to an unlawful purported administration of justice has had his or her constitutional rights infringed. It is not simply a matter of looking to people who have exceptional constitutional rights: everyone who is affected adversely by the decisions or adjudications of the District Court is someone who has had his or her constitutional rights infringed. As I said before I do not believe that it flows from that that every single decision has to be torn up and that the State has to compensate people for a clerical slip or inadvertence nor do I believe that every fine has to be returned but I do believe that this Bill in the last analysis will not remedy to the extent that it seems to on its face the infringement of constitutional rights of every single person who was affected by an unconstitutional purported administration of justice.

While no one can oppose an effort to remedy the situation, we should at this stage at least sound a warning that the Bill does not achieve what is claimed for it and that it is unlikely to staunch the wound which this carelessness created in the first place. Subsections (1), (2) and (3) could have been drafted differently, could have been drafted better and could have been drafted in a manner which will not give rise to further constitutional litigation. One thing which is fairly sure is that somebody is bound to test out the constitutionality of this Bill. It is a certainty so far as any legal matter is concerned that somebody will have a vested interest in trying to undo this Bill. Therefore, the Bill should have been presented after much more reflection and should have been presented in a way which is least likely to trail a coat in front of the constitutional jurisdiction of the High Court or the Supreme Court.

The Bill should be referred to the President under Article 26 to see if it is constitutional in its intended consequences because if it is not it will make it a laughing stock of this House that, confronted with one constitutional problem and one unnecessary defect in the administration of justice, we compounded it by a remedy which was unconstitutional. I do not think there is a procedure for petitioning the President in relation to Article 26 but it should go on the record of this House that more than one Deputy believes that the President should take the advice of the Council of State on the Bill, send it to the Supreme Court before signing it to see if it does have the effect claimed for it and does not go too far. If this was done at least we would have some degree of certainty in regard to the litigation which would follow. It would be dreadful if a huge crop of litigation arose out of the passing of this Bill and the result was that the High Court or Supreme Court struck down the Bill in two years time with even worse consequences not alone for the judicial system but for the credibility of the legislative system.

I want to put on record my request that the Bill be sent by the President to the Supreme Court and that members of the Council of State should raise this with him so as to prevent an embarrassment arising out of what I consider to be a defective attempt to deal with a very serious problem.

Miss Colley

I have listened to a very interesting debate including, in particular, the Second Stage contribution by Deputy Kelly, a former lecturer of mine in Roman Law which he brought up again in this House. One has to say that his arguments were persuasive up to a degree about commonsense, as Deputy Barrett would put it, the need for the State to continue in being and that it should not fall apart because of simple administrative inadvertencies.

The difficulty — and Deputy Kelly referred to this — goes to the heart of the Bill, that is, section 1. He refrained from dealing with the concept of reasonableness judging between, as he put it, the overriding requirements of an ordered society, and he referred to the McMahon case which Chief Justice O'Higgins spoke about, not allowing administrative problems to take over and that these would put into second place the constitutional rights of the individual. Deputy Kelly admitted that there must be a line drawn but he refrained from drawing that line. I believe that is the difficulty we face today. We have a real query about where the line can be drawn in this Bill. If in the case of a judge who was not a judge and who presided over many thousands of cases we can simply wave the magic wand and allow him to have been a judge, where will that end? That is a very dangerous precedent to follow and for that reason and a number of other reasons, as Deputy McDowell and I said earlier, the Bill should be referred by the President to the Supreme Court.

As the Minister said in his reply to the Second Stage debate section 1 (3) allows for other constitutional challenges which would relate to cases that came before Mr. Mahon but would not relate to his inability to preside there. That may well be the case but the subsection as it is drafted does not exclude cases brought because of the present impasse we find ourselves in. It does not exclude people from challenging decisions he made on the grounds that he was not a properly designated judge or justice at that time. No matter what the Minister has said concerning other cases, if it allows that constitutional rights may be in conflict with the terms of this Bill, then we are acknowledging that there is a constitutional defect in the Bill. We must give that very close scrutiny. As I said earlier, if at the beginning of the consideration of this Bill we are faced with an acknowledgement that there are constitutional problems with it, I believe the case I have made is all the easier to make.

The Minister and others referred to the remuneration, pension rights, and so on, of Mr. Mahon. I would certainly have a lot of sympathy for somebody who finds himself in that situation, having worked effectively for four years. One does not ever expect a person to do that without payment. His expectation was that his pension rights would be growing. There are ways of getting around that problem.

The State can provide for that kind of difficulty either by an ex gratia payment or otherwise. That is not a real argument for pushing ahead with this Bill. There are other methods of dealing with some of the problems which arise. I mentioned them on Second Stage. Many of these decisions are not challengeable because of the time lapse. It is a case of facing up to the real difficulties. Deputy Kelly also referred to that.

Deputy Barrett made a lot of play about commonsense as if he, among the Deputies who contributed, had a monopoly of commonsense. That is certainly going over the top. Everybody here wants in a commonsense way to come up with the right answer to this problem. However, when does commonsense go too far and what protection can we expect the law to afford the individual if we simply take a subjective view of what constitutes commonsense? The courts are intimate part of the administration of justice. We do not expect to get in the courts the commonsense of the common man. We expect justice and we expect to have some sure idea of what will emerge from a court because the law is written down and there are precedents, etc. We also expect that the machinery which operates the administration of justice will be as it purports to be, that the judges will be duly appointed and will uphold the law as laid down. It is not enough simply to say we need commonsense. We need a commonsense approach to sorting out this problem. We must analyse the real problem and not simply refer to the thousands of cases. Obviously this man worked at a very high rate to get through the voluminous cases mentioned here. That does not mean we must run for cover and take this Bill as the only way around the problem.

The Minister did not say that the Attorney General felt this Bill was a constitutional way of going about it. There are constitutional queries which have been raised since the Bill was published. I raised them with representatives of the Department, as did others. I do not believe the Minister could make two separate speeches about this Bill and not refer to the fact that the Attorney General feels the Bill is constitutional if in fact he does. I call on the Minister to say whether the Attorney General considers the Bill to be constitutional or not.

The laws we enact in this House are only one part of the administration of justice. It is on the administration of justice that the State stands or falls. I do not believe that the whole body of cases involved under Mr. Mahon need fall simply because we discover that there is an administrative mistake. We make the laws here but they are implemented by the courts. If we do not keep to the order of the House in the throughput of legislation we are swiftly told that we cannot behave in that manner. We expect the same of the courts of justice. If they are not constituted correctly, the defect should be remedied immediately. Simply to rely on the Legislature to deem something to have been properly constituted is not the way to deal with the problem. We must analyse the consequences of this action and consider the realistic ways of resolving the difficulty within the confines of the administration of justice and of the Constitution. Whether Deputy Barrett likes it or not, that is the system under which we operate and if we did not have it we would have anarchy. The talk about commonsense, changing things if we need to change them or holding a referendum if we need one simply horrifies me. That kind of talk is not what makes a State work.

I have grave reservations about section 1. It is not that I wish it not to work; I wish it could work but I believe it should be referred to the Supreme Court. If the Minister would consider initiating other methods of dealing with the problem he would be doing the House and the State a service.

An Leas-Cheann Comhairle

We seem to be getting a certain amount of reassertion and rebuttal on points already made on Second Stage. Deputy Flanagan might agree and I hope he will give good example.

Mr. Flanagan

I realise your concern and I am also conscious of the time scale for the debate. We have gone somewhat off the rails regarding this legislation. All sides have agreed that we are talking about a technical hitch, a clerical omission or mix-up regarding a birth certificate and a date. There is an interest among certain parties in gloating over an imaginary can of worms that is about to be opened. That in itself is a grave danger. Deputy Taylor spoke about going into Rathfarnham District Court and purporting to be a district justice. Everyone agrees that there was no element of fraud in this case. Nobody purported to be other than he was. This man was lawfully appointed in 1976 and due to nothing more than a clerical error the circumstances of his jurisdiction are now in question. It is completely different from an attempt to defraud somebody or purporting to take upon oneself the role of a district justice.

We are legislating for the public interest and I am satisfied that the Minister spoke to the Attorney General about it and is satisfied with the advice he received. This House must accept that. I would urge the Progressive Democrats to think of the public interest, the fact that there are 74,000 road traffic cases and 17,500 civil actions——

Miss Colley

The public interest is served by the courts system.

Mr. Flanagan

Are we talking about throwing out all these cases——

Miss Colley

No.

Mr. Flanagan

——by invalidating everything this justice has done since 1984 or alternatively are we to attempt to redress the difficulty? The attempt to redress the difficulty is incorporated in this legislation. I sympathise with the Minister because this is a very difficult matter that he has to try to redress and he has made an effort to do so. I hope the legislation will be passed with that in mind. We have attempted to redress a technical hitch. There is no question of anybody trying to undermine the functions of the Judiciary and the District Court. Nobody is attempting any sharp practice. We are talking about redressing a simple technical hitch. I urge the Minister, if he has any difficulties, to go back to the Attorney General on the matter. I am satisfied that the Minister presented this legislation today in good faith.

Minister for Social Welfare (Dr. Woods)

Deputy Flanagan has very much hit the nail on the head. This is essentially a technical error. We have discussed the way in which it came about and I will not go into it again at this stage. Nobody said it is not a difficult problem. It was not created by anyone here but it is a problem for which we want to try to find a solution. Nobody likes retrospective validation and nobody likes to have to bring in legislation to bring it about. At the end of the day it is a matter of judgement. The legal advice which the Minister has is that this would not be repugnant to the Constitution. Deputy Flanagan is correct when he says the Minister is satisfied with the advice he has received in that respect. I ask the Deputies to accept those assurances.

Question put and agreed to.

Section 2 agreed to.

Title agreed to.

Bill reported without amendment and passed.