Courts Bill, 1988: Second Stage.

Minister for Social Welfare (Dr. Woods)

I move: "That the Bill be now read a Second Time."

The normal retirement age of a district justice is 65 years, under section 30 (1) of the Courts (Supplemental Provisions) Act, 1961. However, the Courts of Justice (District Court) Act, 1949 provides a mechanism by which a district justice may be continued in office year by year up to age 70. The power to grant an extension is exercised by a committee, comprising the Chief Justice, the President of the High Court and the Attorney General. Where a justice satisfies the committee that he is not suffering from any disability which would render him unfit to continue to discharge efficiently the duties of his office, the committee may, if they so think proper after consultation with the Minister for Justice, make a continuation warrant. A warrant is required for each extension year and must be made before the year commences. The responsibility for seeking an extension of service in good time rests with each district justice although the standard practice is for the Department of Justice to advise a district justice about nine months in advance of his 65th birthday of the need to apply to the committee for a formal extension of service under the 1949 Act if he wishes to be continued in office beyond that date. If the justice requests an extension of service the matter is referred to the committee for attention. The consultation with the Minister for Justice required under the Act normally takes place by formal correspondence.

The purpose of the Bill is to enable the committee I mentioned to make a warrant retrospectively in a case where such a warrant was not made in due course through error or oversight. That, in fact, is what happened in one particular case. No application was made for an extension of service in the case of a district justice who reached the age of 65 in 1984 and no warrant was made. The Bill is designed to remedy that problem by providing a means of having a warrant made now.

I now propose to indicate to the House the precise circumstances in which that omission occurred. The district justice in question is Mr. Séamus Noel Mahon who was appointed as a temporary justice of the District Court in October 1976 and as a permanent justice in May 1977. He reached the normal retirement age of 65 years in January 1984. He should before that date have applied for a continuation warrant but did not do so and a warrant was not made. As I have already indicated, normal practice is for the Department to remind a district justice well in advance of the need to apply for a warrant. A reminder was not given in this case, however, because of a mistake in departmental records. Mr. Mahon first applied for appointment in April 1973 and in his application form he gave his year of birth as 1920. This was recorded in departmental records. In January 1977 Mr. Mahon submitted a birth certificate which showed his year of birth as 1919 but the discrepancy was not noticed and the incorrect year of birth remained in departmental records. Warrants were, in fact, made for subsequent years but I am advised that these have no effect because of the critical absence of a warrant to cover the first year after Mr. Mahon reached his 65th birthday.

I am advised that in the absence of a valid continuation warrant for each year after his 65th birthday Mr. Mahon has not been a duly appointed district justice since he reached his 65th birthday. Consequently, his decisions in court since then are invalid and his service since then cannot count for pay, superannuation or other service benefits. I am also advised that, under the law as it stands, the committee I mentioned have no power to issue a certificate retrospectively and that is why the provisions proposed in this Bill are necessary.

In the period since January 1984 Mr. Mahon has dealt with some 8,000 criminal cases, 74,000 Road Traffic Act cases, 1,100 family law cases, 11,000 liquor licensing cases and 17,500 other civil cases. Penalties he imposed included approximately 40,000 fines, imprisonment/detention in relation to some 1,250 offences, and disqualifications or endorsements for some 3,700 Road Traffic Act offences. Clearly the public interest would be served best by enacting legislation to allow for validation of such a wide range of cases. It is inevitable that there should be some doubts about the wisdom of doing this for criminal cases. I am satisfied, however, that it would not be in the public interest to make an exception. The convictions in criminal cases must be presumed to have been decided in good faith on the evidence presented and since the normal appeal mechanism was available to any person dissatisfied with the decision there can be no valid argument as to the merits of any convictions which were not appealed or, if appealed, upheld on appeal. It would be quite wrong, in my view, that a person, who, for example, was convicted for drunken driving and had been disqualified should benefit from this technical omission by having the disqualification lifted and any fines returned to him. Apart from criminal cases there is a range of decisions made in civil cases including family law cases. It is clearly in the public interest that decisions made in such cases should stand on the basis that they were made in good faith on the evidence presented. Otherwise serious hardship could result. There is, however, in the Bill a specific saver for the possible infringement of a constitutional right. This is similar to a provision in the Garda Síochána Act, 1979 which, Deputies will be aware, was also in the nature of validating legislation. The effect of the provision is to emphasise that it is not the intention of the Bill to deprive anyone of a constitutional right. It would be open to any person who considered that the Bill did conflict with a constitutional right to seek redress in the courts.

The Bill, as I have indicated will enable the committee to make the necessary warrants in the kind of situation we have to deal with now. An alternative approach would have been to have a provision directly validating Mr. Mahon's position as and from January 1984. There are two reasons for not adopting this approach. First, I think it important to preserve the concept that all extensions of service of district justices should be considered and granted, if appropriate, by the committee set up under the 1949 Act. In this way the independent nature of the process is retained. The second reason is to provide a mechanism by which errors or omissions made in the future may be corrected without the need to come back to this House for new legislation. This is not to seek to justify in any way the acts or omissions which have led to the present problem. I have set out fully what did happen and it is for Deputies to draw their own conclusions as to any culpability involved. However, I can assure Deputies that there has been a full review of administrative practices within the Department of Justice so as to avoid in future any contribution that these practices may have made to the present problem. It is, of course, impossible to guarantee that no error or oversight of any kind will be made in the future at any stage of the proceedings, whether by a district justice, the Department, the committee or any other body, and it is to provide against that eventuality that I consider this Bill should be adopted.

A feature of the Bill is the provision under which Mr. Mahon's service since January 1984 can be validated for pay, superannuation and other service benefits. We have a situation where a person has sat on the District Court bench for more than four years and performed all the duties required to be performed by a justice. It would be unfair, given the background, to deprive that person of this service for pay, superannuation and other purposes.

However much we may regret the circumstances which gave rise to this measure I am satisfied that there are convincing public interest and humanitarian reasons for adopting it. I am satisfied that this measure is the appropriate one in the circumstances and I therefore commend the Bill to the House.

Mr. Flanagan

Usually at the end of a Second Stage speech by the Minister it is left to the Opposition spokespersons to commence their contributions either than by welcoming the legislation or by indicating their intention to oppose it. This is an unusual situation in so far as Fine Gael will not be welcoming the legislation, nor will they be opposing it. We will not be introducing amendments to it either. It is technical legislation which in the circumstances should get the support of the House. It is unfortunate that the circumstances are such that legislation is necessary to correct any error, omission or oversight on the part of the powers that be. It is unfortunate that the matter should have had to come before the House.

The powers referred to by the Minister to issue a warrant are laudable. After reaching the age of 65 there is a provision whereby a district justice can apply on an annual basis to continue in office, having regard to the health, etc. of the justice but it is clear that due to an oversight the necessary warrant did not issue in this case. The members of the special committee who have power to issue warrants include the Chief Justice, the President of the High Court and the Attorney General. All of these people are most definitely beyond reproach and I would not like the feeling to come from this House that there was any error or omission on their part.

I was interested to hear the Minister assure the House that following the year in which the discrepancy was made the normal channels were undertaken in so far as a warrant did issue. One point made by the Minister which I would like tightened up related to the fact that the warrant issued after formal correspondence between the committee, the applicant and the Minister. If there was something more than formal correspondence, for example, a meeting by way of oral hearing between the Minister, the committee and the applicant, perhaps the problem which has given rise to the peculiar difficulties in this case would not arise again. I take it that the reminder from the Department of Justice did issue to the district justice in, I think, 1985, as would have been normal in these cases. I should like the Minister to be able to give an assurance that any orders made by the district justice in question since 1984 would be validated and that there were no circumstances under which confusion could arise from this legislation. Unfortunately, though, that cannot happen for the simple reason that we are now recognising that there was an error or oversight and that, in fact, a district justice sat on the bench without being validly appointed. I believe the best we can do in these circumstances is to enact the legislation, which is before the House today.

Section 1 (2) (a) of the Bill is the global section of the Bill. It attempts to validate everything that was purported to have been done while that justice was on the bench. I believe that is as far as we can go. I have sympathy with the Minister and his Department in their efforts to try to redress this difficulty. The Minister has quite rightly left a valve in section 1 (3). This is not a concession in the legislation because under our Constitution it is something we must always guarantee.

It is unfortunate that an element of confusion has arisen in relation to this legislation. This is particularly dangerous in view of the fact that this district justice was assigned to District No. 15, the District Court area which initiated a number of extradition cases as well as a number of serious criminal matters since 1984. Of course, we in Fine Gael respect at all times the right of the Government of the day to appoint a district justice to the bench. This is a matter about which there has been some debate in recent times and many people believe that this system should be changed. I do not agree with that. I believe it is the duty, and should be prerogative, of the Government to appoint people to serve on the District Court. However, I should like the Government to have due regard at all times that a person, be they a solicitor or a barrister, has fulfilled more than the criteria of serving ten years in practice. It is very important that they look at the suitability, level of experience and adaptability of these appointees to their jobs and the responsibilities which are being placed on them.

Perhaps it would be no harm for the Government to consider increasing the number of district justices having regard to the number of cases being heard in the District Courts. It is interesting to read that District No. 15 alone has dealt with an enormous number of cases since 1984, some of them petty, some of them serious. The Government should perhaps consider appointing younger people and more women to the bench. However, I am sure that is a matter for another day.

Obviously the most important aspect of this Bill is the validation of the orders which were made by this district justice since 1984. The Minister was correct in saying that the only course open is an absolute validation of what has taken place. This would be in the public interest. If one looks at the cases which were referred to by the Minister one will see that during the hearing of these cases there was an acceptance by all parties in both civil and criminal matters that the district justice was duly appointed and that each case was judged on its own merits and not on the basis that it was heard before a district justice. From that point of view the only course open to us at this time is to legislate in so far as we can for the validation of those orders. There may be some constitutional difficulties on that point but we should do whatever we can so that the committee can backdate the warrant in order to validate everything that has taken place in the past. If we were to take any other course of action we would be doing a great disservice to the community and to all concerned. If we had a scenario whereby all convictions in that area since January 1984 could be overturned the practical difficulties would be enormous. One has only to look at one simple aspect of this. If one takes an average of £50 for each of the 40,000 fines, how could the Exchequer go about returning £2 million to people who answered charges before a court and were duly convicted?

Mr. McCartan

Did they not give as much back to the farmers when rates were abolished?

Mr. Flanagan

The circumstances are different in so far as the merits of the case are such that they were judged as though there was or was not a conviction. An appeal mechanism was also there and anybody who was not satisfied with the decision had the opportunity to appeal to the Circuit Court. Many people opted to do that and had their convictions either upheld or overturned.

The District Court was initially set up as the Court of Petty Sessions. Now it deals with licensing, debt collection, family law, civil cases up to £2,500 and road traffic cases. Even extradition cases are now being initiated through the District Court. Some serious crime is also being dealt with. While we are discussing this matter I would ask the Minister to look again at the system of on-the-spot fines. I fail to see why we cannot have amending legislation to avoid the complete waste of time in having a number of gardaí sitting in the District Court waiting to deal with two or three summonses for speeding.

I would ask the Minister to assure the House of the global nature of section 1 (2) (a). That must be the crucial element, otherwise we are in difficulty. It is unfortunate that this legislation has had to be brought before the House. The error or oversight was such as to assure everybody here that there was no element of sharp practice involved. I hope it will not happen again and that this legislation, having being passed, will not allow the Minister or the special committee of which he spoke to go easy on any of their duties. Formal correspondence between the parties is not sufficient. Each application should be considered by way of full hearing. It is important that the Department should be ever vigilant in the handling of these matters because of the very serious consequences that can result. Fine Gael support the measure without amendment because of the technical nature of the Bill. I hope no hardship will accrue as a result.

Miss Colley

I should also like to express grave reservations about this Bill, which is not one that can be welcomed. It has obviously been put together in a hurry and appears to be an impersonal legal measure, but in fact it is designed to undo a major mistake which has been made in the Department of Justice in relation to a particular district justice. It is a pity the Minister for Justice is not here to face up to the problem. I realise official business can take a Minister for Justice away from the House at inopportune times but it is a pity he is not able to be here today.

The mistake which has been outlined by the Minister for Social Welfare was originally made under a Coalition Minister but continued under a Fianna Fáil Minister. The double trouble we have experienced under the two Governments points to a slipshod method in the administration of the courts and the whole Department of Justice. This, in tandem with the mistakes discovered and dealt with last night in relation to extradition, cannot be allowed to continue. It points to a real difficulty within the Department of Justice and the Department of Foreign Affairs in keeping an eye on matters which are their responsibility.

District justices have a normal retiring age of 65. The Courts of Justice (District Courts) Act, 1949 provided for an annual extension of a justice's tenure on foot of annual warrants made by a committee consisting of the Chief Justice, the President of the High Court and the Attorney General, as if he had not enough to do. This committee is required to consult with the Minister for Justice in relation to each warrant they propose to issue. The warrant is expressed by section 2 (2) of the 1949 Act to be one which continues the justice in office. It is not a fresh appointment. It can only be made in respect of an existing justice who, at the time the warrant is made, is already duly appointed and has not ceased to hold office. A second or subsequent annual extension warrant under section 2 (3) of the 1949 Act must be issued before the expiry of the previous warrant.

Where a district justice reaches the age of 65 without a warrant being made in respect of him or reaches his sixty-sixth or subsequent birthday without a renewal warrant being made, he ceases to be a district justice and, as the law stands, is not eligible to receive a further warrant under the 1949 Act. Once a justice's continuity of office is broken, the procedure of the 1949 Act is incapable of restoring his judicial capacity. Having reached the age of 65 he is also ineligible for appointment de novo. Consequently the maintenance of continuity is, as the law stands, an absolute necessity for a district justice past 65 years. The onus of keeping such continuity is a heavy responsibility. It appears that that responsibility was not complied with in at least one case in recent years. That is the fault of those whose duty it was to keep these procedures under review.

The administration of justice is restricted by Article 34 of the Constitution to being carried out in courts established by law by judges appointed in the manner provided by the Constitution. No valid administration of justice can be carried out in bodies other than courts or by persons other than duly appointed judges. The appointment of judges can only be done by the President, under Article 35.1 of the Constitution acting on the advice of the Government. District justices are judges for the purposes of Articles 34 and 35. Thus where a person who is not a judge purports to act as a judge and to administer justice under Article 34, the purported administration of justice is a nullity in constitutional terms.

One might go so far as to compare the operation of courts under a justice who is not duly appointed with the attempts at illegal courts which we find among illegal organisations. I do not say this lightly. We are taking very lightly this Bill and its attempts to deal with the problem caused by a person who has not been properly appointed but yet has dealt with thousands of cases. It is not good enough to take the matter lightly.

It is not open to the Oireachtas to deem a person to be a judge. A person appointed to be a judge must be appointed by the President and must thereafter make a declaration. He only holds office for the duration of his term of office. Once his term of office expires, he ceases to be a judge and cannot become a judge again except by reappointment.

The stark fact is that a justice who, whether by deliberation or inadvertence, reaches and exceeds his retirement age without extension of his term, ceases to be a judge. He does not become "a judge in suspense". The Constitution does not admit of quasi-judges. At any given time, a person is or is not a judge. Where, by error, the machinery of the 1949 Act is not operated in time, the person affected ceases to be a judge.

It would of course be open to the Oireachtas to provide that a person who formerly held judicial office and had ceased to be a judge would be eligible for reappointment under Article 35.1.

It is not open to the Oireachtas itself to pass an Act to retrospectively "deem" a person who had ceased to be a judge to have continued as a judge. That would be to attempt in retrospect to clothe as the due administration of justice acts which were not such at the time they were done. If the Oireachtas cannot retrospectively deem Acts to amount to a valid administration of justice, it follows that no decision of a statutory committee can retrospectively transform a former judge into a serving judge. Accordingly the effect of section 1 (2) of the Bill is a nullity in law in so far as it purports to deem any act by any person who was not at the date of its closing a judge to be the administration of justice in a court established by law by a judge.

Section 1 (3) seems to imply that the constitutional rights of citizens may have a limited circumscribing effect on section 1 (2). In fact, section 1 (3) would render null any purported judicial determination of any rights in a manner which amounts to an administration of justice, creating a doubly unconstitutional aspect to the Bill.

Persons who have been adversely affected by a purported but unconstitutional administration of justice, whether by inadvertence or not, are entitled legally to regard the proceedings as a nullity. Whereas they may not now be able to recover fines paid, they can, if in custody, be set at liberty. Their licences, if revoked, may be treated by them as valid. It would, of course, be open to this House to confirm licences granted without jurisdiction.

It seems that the best this Bill can do is (a) to indemnify those who have relied on the acts of the former justice, and (b) to make any such justice eligible for reappointment. It is not possible to achieve the effect of section 1 (2) (a) of the Bill by law is so far as that clause attempts to confer the status of due administration of justice on any act of a person who was not for the time being a judge.

Every citizen has a constitutional right not to have his rights varied by a judicial process unless that is done by a judge and in a court. Thus section 1 (3) means that no decision which adversely affected anyone's constitutional rights on a continuing basis can be validated by the Bill. Nor can the retrospective issuance of warrants under section 1 (1) make a judge out of a person who in law has ceased to be a judge. To achieve that end, the Bill would have to make the person eligible for appointment once more a judge and the President would have to appoint him again.

This Bill, therefore, is an empty husk. It tries to achieve the impossible. It purports to attempt the retrospective extension of a judge's tenure which had expired and could only be renewed by a new appointment. It attempts to give to a committee a power which this House could not exercise on its own account. If it were open to this House to deem retired judges to have continued in office or to authorise a committee to retrospectively continue their period of office, the monopoly of appointment given to the President acting on the advice of Government would be broken.

The only effect of warrants under the 1949 Act is to continue a justice in office. They cannot be used by this House to "bridge" a discontinuity or to revive that which had ceased to be.

The Bill is hurriedly drafted, misconceived in law, ineffectual in content, and deserving of reference to the Supreme Court lest the original error made in the Department of Justice, whose responsibility it was to ascertain the true facts and to act on them, should be compounded by further constitutional blunders.

It is worth noting that the justice in respect of whom this Bill was introduced sat in the early stages of a significant extradition case. Providence kept him from making a final order in the matter. The mind boggles at the damage that could have been done to our standing had such a void order been made. We ought not tempt providence twice. This House should not compound the original error by legislating for "error on stilts".

I would like to refer to the area District Justice Mahon covered, area No. 15. It is quite incredible that such an area has been covered for four years without the proper status of a justice in the District Court. Thirteen towns in six counties have been dealt with in area No. 15, including such large towns as Carlow, Portarlington, Portlaoise, Athy, Roscrea, Rathdowney, Templemore and others. The mind boggles at the numbers of cases that have been dealt with and the importance of some of those cases, whether they be criminal or family law cases. You cannot run away from the problem by simply saying we will wave a magic wand.

As a footnote, the legal remedy for a person who suspects that they have been tried by a "non-judge" is to apply for an order quashing the decision by way of judicial review. This procedure, known as Quo Warranto, by what warrant, is only open to those who make application within three months of the purported decision. This is provided for in the rules of the superior courts. In many cases, fines and other decisions would not now be capable of being quashed by reason of the lapse of time.

The absurdity of this Bill is that it would require a committee to attempt in retrospect to assess the capacity of a person to make a judicial decision. It would also require the committee to consult with the Minister in relation to such a finding. Were any doubts to arise that at sometime during a period of years the justice had ceased to be fit, we would have the absurd spectacle that some decisions would be retrospectively validated while others made at different times would not. Not only that but the retrospective analysis of the justice's fitness must be concerned not with his continuing state of health but with his state of health immediately prior to each birthday from 65 to 69.

The Bill acknowledges, in section 1 (3), that what it is doing is unconstitutional, in the recognition of the difficulties that may arise out of passing of this Bill. We know this has been brought to light because some person who was the subject of a decision by a district justice adverted to it and a case has been set aside. Perhaps others have also. We must face up to this difficulty. It is not simply good enough to pretend that we do not have a Constitution or that we do not have the laws that have been adhered to up to now.

Perhaps the practice of almost automatic extension of service for district justices has caused a slipshod approach to obtaining warrants. I would like to ask the Minister what is the reasoning behind the reliance on district justices over the normal retirement age in a large number of cases. I would ask him to consider the alternative approaches I have suggested.

The Bill before us could have been taken straight from the pages of Gilbert and Sullivan's "Trial by Jury" or "The Mikado". Unfortunately, it is more like a comedy of errors than a Bill and I do not say that lightly. We in the Progressive Democrats have grave doubts about the Bill. That is not to say that we would not wish that the provisions contained in it would not take effect. We wish they could take effect but we have grave doubts about that. At the very least the Bill should be sent to the Supreme Court to test its constitutionality. That would be a wise move in the circumstances, if the Bill passes this House. I fail to see how it could be adequately amended so as to make any real difference and therefore I will not be pressing any amendments. I would ask the Minister to take seriously the real doubts about the Bill and about its efficacy, to face up to and not to try to hide the problems that have been created by the mistakes that have been made.

Mr. Taylor

As an interesting aside before remarking on the Bill itself, I should say it is interesting to see what is the workload of a typical district justice, as recited by the Minister in the course of his introductory remarks. It is indeed a remarkable one. Apparently since 1984 Mr. Mahon dealt with 8,000 criminal cases, 74,000 Road Traffic Act cases, 1,100 family law cases, 11,000 liquor licensing cases and 17,500 other civil cases. That is a remarkable workload cited by any standard. Many people who are often critical of district justices should have regard to the workload they carry, very often in difficult circumstances and inadequate court accommodation. One would have to pay tribute to the District Court and the work it does up and down the country in maintaining the bread and butter role of the administration of our judicial system.

The events disclosed in this Bill are nothing short of horrific. I can only sympathise with the Minister in the appalling position in which he finds himself, the dilemma that must have been faced by him in deciding what to do about this clearly was horrendous. The mind boggles as to what was the right way to tackle it, whether one should have accepted that something very serious had gone wrong in the administration of justice here — something rare, very exceptional — meet it and remedy it so far as one could in so far as people were adversely affected by the decisions of that justice, and I put the word "justice" in inverted commas.

I presume the Minister did not and was advised not to take that line because of the sheer weight of cases that Mr. Mahon had determined in his unauthorised period in office from January 1984. I will say one thing for starters. It was a mistake to have introduced a general Bill here in the way this one was done that would seek to cover a generality of cases where there had been slip-ups of this nature in the appointment of a judge. If the decision had been taken to introduce a Bill I would have thought that the best course would have been to have limited the provisions of the Bill to the one case of Mr. Mahon alone, have it a Mr. Mahon rectification Bill, if one were to tackle it in that way. I do not think one should legislate in advance, in futuro, for mistakes of that kind. They ought to be regarded as once-in-a-lifetime that would never recur. A Bill confining itself to the specific case of Mr. Mahon, mentioning him by name, would have been altogether more appropriate.

It is noteworthy that the Minister in the course of his remarks did not say that he had taken advice on this issue from the Attorney General as to the validity of this Bill from a constitutional point of view. One would have expected the Minister to have said in the course of his introductory remarks that the Government had sought the advice of the law officer of the Government and other law officers as to the constitutionality of this Bill and had been advised that it was constitutional. As the Minister did not say that, there are two possible alternatives. One is that the Minister did not seek the advice of the law officer of the Government, the Attorney General, at all. The other is that the Minister did seek the advice of the Attorney General on the Bill and that that advice was adverse, namely, that there was a very large question mark over its constitutionality.

I would find it totally incredible that in these circumstances in a Bill of this type the Minister and the Government did not seek the advice of the Attorney General. For the life of me I could not imagine that the advice of the Attorney General was not sought on this issue. If that be so, then I was driven unavoidably to the second conclusion, which is that the advice of the Attorney General was sought and was either adverse or cast a very serious doubt as to the constitutionality of the Bill. That is the inevitable conclusion to which I have been driven.

In fairness to the Minister I should say that in the course of his remarks he more or less concedes that there is a constitutional doubt when he said:

It would be open to any person who considered that the Bill did conflict with a constitutional right to seek redress in the courts.

— thereby, as it were, inviting any person who had their doubts to seek a constitutional decision on this Bill.

I do not think that this House should introduce a Bill and pass it in the normal way when a constitutional question mark to that extent hangs over it. At the very least, when a question mark as to the constitutionality of a Bill arises to that serious an extent it seems to me that the Minister should be telling the House that he will arrange to have the Bill referred, before adoption or enactment, to the President for examination and referral to the Supreme Court as to its constitutionality. I do not know whether the Minister intends doing so. My request to him would be that he should seriously consider doing so, that it is not good practice for the House to bring in legislation when implicit in it is so serious a doubt as that expressed in the Minister's introductory remarks.

I do not know whether or not the Bill is constitutional. I have grave doubts about it. It would take people with greater knowledge of constitutional law than I to determine that issue. That case must be unique. That material I have examined certainly finds no prior case that comes anywhere near parallel to this one. I would think it must be unique both here and in the United Kingdom. Deputy Kelly is more learned in this line of country than am I. When he contributes he may have some record of something parallel, but certainly I cannot find any.

It boils down to the question of retrospective legislation, something which is always unsafe. Article 15.5 of the Constitution itself says:

The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.

I do not think that quite meets the kind of circumstances we have here. I do not think the Bill quite purports to do that. There is an interesting comment in Deputy Kelly's book on the Constitution in page 72, in which he is quoting Mr. Justice Cave in a case called Re Raison where he says:

There is an old and well-known saying with regard to new laws, that you are not by a new law to affect for the worse the position in which a man already finds himself at the time when the law is actually passed:

There is no doubt that if this law we are debating here today was passed it would adversely affect very many people.

Mr. Kelly

That is if it had any effect at all.

Mr. Taylor

Mind you, if it had any effect at all it would affect them adversely. Mind you, it would also have a beneficial effect on an awful lot of other people. There would be winners and losers if the Bill was found to be valid and constitutional. I have my doubts about that.

Wade and Phillip's book on constitutional law, which of course deals with English constitutional law where the considerations are different, had this to say on page 36 dealing with retrospective legislation:

Retrospective laws are, however, prima facie of questionable policy and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts and ought not to change the character of past transactions carried out upon the faith of the then existing law.

We are faced with a very difficult situation. Deputy Colley referred to Gilbert and Sullivan and, to use another quote from Gilbert and Sullivan, I do not know whether even quiet and calm deliberation here can disentangle this particular knot. I have grave doubts that it can. It would have been better not to have introduced the measure but to have faced up to the fact that a drastic situation had occurred and to have dealt with that and provided whatever funds were necessary to meet the defective situations arising from the unlawful decisions given in that period by Mr. Mahon. There may be people in prison today who were sentenced by a person who was not a judge. That is a remarkable occurrence. Can one come along now under our Constitution and validate that?

Deputy Colley was taken with the point that section 1 (2) is talking about one thing deeming to be another and that his actions are deemed to be as valid as if the warrant had been duly made. That of itself would not necessarily adversely affect the Bill if that was all it was, because one finds all the time in Acts of the Oireachtas and in Parliamentary and ministerial orders statements deeming one thing to be another. There is nothing wrong with that. The difference is that those deemings are in futuro and they would operate from the time when that law was passed. I remember reading once that when one sees the expression that one thing is deemed to be another it sets up warning bells, because it means that that thing is not that thing but is a different thing altogether. This expression was used very frequently in the wartime emergency powers legislation. I remember reading a long time ago that one regulation was brought in which said something ridiculous like “for the purpose of this regulation sewing machines shall be deemed to be dog biscuits”. That kind of ridiculous statement appears in this sort of thing. That alone would not affect the issue. The nub of the problem is that we are attempting to validate sentences of imprisonment, decrees of a court, by a person who undoubtedly was not a judge appointed under the terms of the Constitution when he made those decrees.

Section 3 (1) of the Bill is the most remarkable section I have ever seen in a Bill. It provides that if there is anything unconstitutional here it does not apply. I do not know whether or not we can do that. That is a most remarkable product from a parliamentary draftsman and I do not see how it can possibly stand up.

Section 1 (e) talks about the committee being satisfied that the person was not when the warrants or warrants aforesaid fell to be made, suffering from any disability which rendered him unfit. This, in other words, is putting the committee in a position, quite an appreciable time after the events, of deciding that a person was fit at that time. How can the committee possibly know that, two years later? They could not possibly know whether he was if it two years ago. They can talk to him and examine him now and decide now whether he is fit for the age exemption, but how can they be expected to decide that he was fit two years ago? Quite frankly, it escapes me.

I do not want to condemn any one or say where the responsibility lies for this appalling mess as that will solve nothing. I sympathise with the Minister and the Government in their position on this issue. I realise what induced the Minister to bring forward this Bill, having regard to the enormous number of cases determined by Mr. Mahon. All of us in the House will do anything we reasonably can to assist the Minister in trying to rectify matters. If we were satisfied that the thing was in order there would be no problem. I would ask the Minister to assure us, when he replies, that the question of the referral of the Bill to the Supreme Court will be taken up before the Bill becomes law.

Mr. McCartan

On behalf of The Workers' Party I signal that we do not support this legislation. In the event of a division today we do not intend opposing it. We take the view that the legislation is wrong in its direction and it cannot achieve what it sets out to do.

The blame in this affair rests full square on the Minister. It is the duty of Ministers to accept responsibility for all that goes on in their Departments. It has already been indicated that during this saga there was a change of Government and at least one change of Minister. However, the error must be looked at critically by any legislator or any one concerned with the proper administration of justice in this country.

Look at how simple a job we have asked the Minister, through his Department, to do. At a guess we are talking about 100 judges in the State at any one time. We have a complete administrative Department of Government to ensure that documentation, the tenure of office and the qualifications for office are correct. It is not a very big job and it is unforgivable that errors of this sort should arise. In the media, leading from the publication of the Bill, certain indications were given that the fault in some way rests with the District Justice in question. It appears that in the initial documentation submitted in 1977 there was an error of one year in date of birth. One might ask whether or not at that stage because of the importance of age in the tenure and conditions of office a person would not be required to submit a basic birth record when applying for the post and that somehow somewhere that document would correspond with the other. There was an error of one year, but it appears that after 1984 individual applications were made in the Department to this committee for extensions on a yearly basis and that this was done on at least three occasions. Again one asks what was asked for and was not a birth certificate sought and referred to at this stage? I understand that quite some time ago the justice in question had submitted a birth certificate. That is confirmed in the Minister's speech as being as long ago as January 1977. Surely some explanation must be given beyond merely saying that there was a misrecord in the Department, because this matter was fully dealt with on at least three if not four occasions when extensions were required. I have come to the firm conclusion that first the root of the problem is the rather facile way in which extensions appear to be granted for the asking and, second, the very unsatisfactory and somewhat slipshod approach to dealing with the District Courts generally in the administration of law within this jurisdiction. I will come to that shortly.

The message must go very clearly from this House today that we as legislators are completely dissatisfied with the nature of these events. It is an incredibly simple job asked of the Minister and his staff and it is unforgivable that an error like this should or can arise. The drift of this legislation is to give power to this committee to appoint retrospectively. I am opposed to that. I do not believe we should be legislating in a general way for future errors. The approach should be that the Minister gets his house in order and, more particularly, gets his Department in order. It is a view widely held that the Department of Justice is a difficult place to deal with. As a practising lawyer who has gone on deputations to the Department over the years, I certainly hold that view. It is even said that Ministers in office encounter difficulties. It is time we found a Minister who is prepared to take charge of the ship and take responsibility for everything that goes on there. He should be seen to be and he should be in full control of the affairs of his Department. It is time this type of administrative sloppiness was dealt with once and for all. This is not the first time errors of this sort have been made in this area. Only a few years ago a member of the Bar was appointed to the District Court and within a year through litigation it was established that the unfortunate man was not qualified to take office and had to be removed.

The point has to be made that it is unnecessary to provide legislation for the prospect of future errors. Consequently, the point made by Deputy Taylor is one with which we agree. The approach of this legislation should have been to deal with this specific instance, and the way to deal with the future is to ensure that a simple straightforward affair is dealt with competently and errors like this should not be allowed to arise.

The Minister gave two reasons he thinks the Bill is better drawn in general terms but in my view neither reason stands up. He spoke about legislation in this instance and in all others — although there should never be another case like this — enabling the committee appointed under the 1949 Act to make the actual decision. Those decisions have been made with regard to Mr. Mahon. Nobody denies the work he has done over the years and no one begrudges him his entitlements to remuneration and all other rights; but it is unnecessary at this late stage to ask the committee to make this decision because under the Act the committee consult the Minister. The notion of total independence is not even in the original legislation.

What we should have been dealing with today is a simple section enabling the Minister to seek to validate those conditions and decisions which he is empowered to do — I have grave doubts as to what they are but they would relate to remuneration and other rights accruing from time spent on the bench by Mr. Mahon.

The second reason the Minister gave was that it would provide for future errors. I totally reject that approach. He said:

The second reason is to provide a mechanism by which errors or omissions made in the future may be corrected......

We should not be legislating on the basis that the Minister is going to, is likely to, or could make errors in the future, particularly when one considers the simplicity of the operation — a mere reference to records retained publicly, a birth certificate, relating that to documentation on file and making what, with care, would take a few minutes in any departmental office, that is a decision. That is what we are dealing with here. We should not be asked to legislate on the basis that future errors could arise. They should not. For that reason I believe the approach to this legislation is wrong.

The legislation is seeking retrospectively to validate the decisions already made or taken. Curiously, the Minister makes a plea, not as a legislator but in the guise of an extra court constitutional lawyer seeking in some, I believe, vain way to influence future inevitable constitutional actions on this legislation, seeking to make the case that because decisions were made in good faith on evidence and that there was an appeal mechanism available, they should not be lawfully challenged. Those decisions were constitutional errors, flawed constitutionally at the time, and I do not believe any legislation can put them right.

There is an area of law dealing with the impact of the breach of constitutional rights on the position of accused persons where the formula of the knowing breach was made irreparable by a court and where in the balance between maintenance of the Constitution and the common good the accused person must be protected. If a knowing breach of constitutional right is made, then the person must be freed if it is a question of liberty, or it must be put right if it is a question of penalty other than imprisonment.

The law is clear, as I understand it, in defining what is a knowing breach of the Constitution. Where law has been laid down by this House, where it has been sought to be enacted and put into effect by the Minister and by the justice sitting, there is no scope to suggest that this was not other than a knowing breach of the Constitution. For that reason I believe the judicial interpretation of the courts, where they have said that mere oversight does not equate with unknowing, imposes a positive duty on all of us to ensure that the Constitution and its provisions are respected and that mere inadvertance, mistake or oversight will not give an out, an explanation or a justification to the person seeking to suggest that the Constitution was knowingly breached.

I believe the decisions of District Justice Mahon, as far as the criminal code is concerned, are open to valid challenge by all persons affected and aggrieved, and I do not believe this legislation can interfere in the judicial process. Consequently, I believe section 1 (3) is superfluous. It is a vain attempt by the Government to dress up in some way a grave error that has huge constitutional and legal consequences. Statements like the Minister's suggestion that it would be quite wrong if people were now entitled to come to court to seek a remedy in law under the constitution achieve nothing. I have no great expertise or knowledge with regard to civil cases and our entitlement as legislators to impact on those decisions retrospectively. I appreciate that different considerations would apply, but as previous speakers have said the matter will ultimately have to be determined by the courts.

What I believe is wrong, and what this illustrates, is a matter of fact — the haphazard and slipshod approach to the question of the administration of justice at District Court level generally. As I have already indicated, an error of this sort was made in the past five years in the appointment of District Justice Murphy, a barrister who simply did not have the qualifications, and any inquiry properly carried out would have established that long before he was put on the bench and subsequently had to be removed.

Reference has already been made to the method of appointment. I ask why the Minister has not more regard to the qualifications needed to meet specific jobs, such as family law cases.

An Leas-Cheann Comhairle

The Deputy will appreciate that the legislation does not refer to qualifications but rather it refers to age, etc. I do not think it would be wise to use this legislation as the basis for stretching out too far in that direction.

Mr. McCartan

I am making the point, if I am allowed, that I believe this problem is symptomatic of the Department's overall approach to the administration of justice in the District Court. If the Chair will allow me I would like to give some brief illustrations of this — the lack of attention given to the establishment of night courts in the District Court; the problem of the proper level of remuneration of those appointed to the District Court bench, which has been a matter of contention; court facilities, the fact that many of our courts are unusable and in some areas are completely inequipped for the elements; and that which is dear to me, the legal aid schemes. All of these are in a sorry state and reflect a grave indifference at departmental and ministerial level to the quality of justice delivered in the District Court. The problem we are dealing with today is simply another symptom of that major ailment. The Minister would be well engaged in having a complete review within the Department of all matters affecting the District Court and its operation to ensure that we will not have a repeat in future of an error of this sort.

Mr. Kelly

This Bill opens up a fascinating range of legal problems of a kind the House luckily does not have to concern itself with very often. I have a lot to say on it and will be drawing, if the House will give me that much patience, on some decided law in areas which, although not squarely in point, are sufficiently analogous to the problems in front of us today to be illuminating.

Let me offer the House a trailer of the conclusion that I will come to, which is that the matter in front of us is not a national disaster and that well-established principles here entitle us to regard this, by no means certainly as a trivial over-sight but as something with limited consequences and not at all, I think, in practice having the kind of consequences that Deputy Colley as well as Deputies Taylor and McCartan quite rightly explored. Let me offer the House a simple analogy from the part of the constitutional structure which we ourselves represent. We are part of the Constitution, the very same as the courts are. Let us suppose there is some irregularity in the composition of a Dáil, of a kind which may very easily be imagined. Is one seriously to assume that all the works of that Dáil are invalid, and if we were to assume such a thing who is to put them right? Are we to dissolve the State or to invite in the United Nations? Let me offer the House in a very short space of time a couple of instances. The law on eligibility for membership of this House, or most of it, is contained in the Electoral Act, 1923, but that is alluded to, of course not by name, in Article 16.1.1º of the Constitution:

Every citizen without distinction of sex who has reached the age of twenty-one years, and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann.

It follows therefore that people who are disqualified or incapacitated by law are not eligible and those two categories — the House will not expect me to read out the full statutory provisions — if I may mention them very quickly and roughly, include people who are undergoing certain sentences of imprisonment, imbeciles, persons of unsound mind — needless to say no such person was ever elected here — an undischarged bankrupt or a person who has been convicted of corrupt electoral practice. These people are all disqualified. Other categories are what is called incapacitated, although the distinction is not very firm, and in the incapacity category seems to refer to one's status or the category to which one belongs rather than to any personal weakness whether culpable or not. People are incapacitated from being elected here if they are a member of the Defence Force on full pay, a member of the police force on full pay or temporarily or permanently in the Civil Service, unless by the terms of such employment they are expressly permitted to stand and be elected to Dáil Éireann.

Let us suppose that a Taoiseach is elected by a narrow majority of one, and we have had such cases in the recollection of every Deputy here. Let us suppose the Government party — and we will not speculate as to which party is most likely to have the weak links — by some fluke turned out to contain an apparently elected Deputy who was a bankrupt, another who was a member of the police force, perhaps a plain clothes man in some obscure rookery carrying out some highly sensitive employment which even his party colleagues did not know about, but nevertheless on police pay, and a third, although I do not have to enumerate three as the Taoiseach has only an overall majority of one, but for safe measure let us say the third was in some capacity a member of the permanent Civil Service or even a temporary civil servant serving in a category not specifically regarded as compatible with membership of Dáil Éireann. Let us say the Taoiseach is elected by a majority of one, or even two, but it subsequently turn out that there are these three weak links, what does that mean? Let us suppose this comes to light three or four years later and that this Dáil has enacted a whole stack of legislation, taxes have been imposed, disabilities of all kinds imposed, immunities lifted. Let us suppose that drastic things have been done in external affairs as well as internal matters? Let us suppose, as is the normal case, 40 statutes a year have been enacted. Is all of that a nullity when it turns out that these three men or women ought not to have been here and in consequence that there were three non-Deputies among the majority which apparently elected a Taoiseach and in consequence the Government which appeared to have been serving under him is not a Government at all? Are all these consequences to follow? Of course, they are not, and this matter has been addressed, admittedly not in great detail but in sufficiently broad and trenchant terms by the Supreme Court in other settings in recent years in such a way as to be illuminating. I hope before I finish to get a chance to cite these passages to the House.

Having said that much, I will admit a point made by Deputy Colley on my right and two Deputies on my left. I will concede that if a situation arises which is unconstitutional or involves a potential loss of citizens' constitutional rights it cannot be put right by a Bill. I may have stated that proposition over-tersely, over-compendiously, but this House cannot be enacting something to deprive someone of a right which is his constitutionally. If, on the other hand, that constitutional right is a naked, bare right, unsupported by any possibility of ever putting it into effect because it would run foul of the large considerations of public order which lurk beneath — one's refusal to concede, for example, that all the doings of a Dáil are invalid — then the House by legislating is not perhaps just beating at the air; it may be putting some shape and order in the best way it can on this fallible collection of 166 men and women of flesh and blood in a situation which has arisen by mistake.

The Minister said, fair enough, we cannot offer to insure against mistakes or guarantee against them. That is true and all the huffing and puffing in the world will not change that. Of course mistakes can be made and have been made in the history of the State. Deputy McCartan a moment ago mentioned the case of the State at the prosecution of Walshe v. Murphy which is reported in the 1981 Irish Reports, page 275, in which a gentleman who, no doubt inadvertently, was appointed a district justice and did not have enough years in practice to qualify for such appointment under the terms of the statute which was applicable. I believe it was a mistake made in good faith because that length of time had passed since his call to the Bar. He had spent some of that time not in active practice but in legal employment in a State office and it was a matter of fair debate whether that qualified as practice. At any rate, the High Court found against him. I do not think it would be quite right to say they had to get rid of him, but that finding operated to disclose his appointment and not having been valid from the beginning. He had not been there very long and certainly he had not built up the Titanic score of 17,500 and I forget how many other tens of thousands of cases of various categories, which I find not just admirable as Deputy Taylor said, but next to incredible——

Mr. Taylor

"Remarkable" is what I said.

Mr. Kelly

I would like to see that broken down into the average number of cases per day and hour. I find it hard to believe that a workload of this kind, unless reckoned among the total are automatic actions effectively carried out by a District Court clerk, that number of adjudications of a serious kind where somebody has to bring his mind to bear on two competing points of view, would be within the physical power of a man or woman in that time. The man Deputy McCartan had in mind, the apparent Justice Murphy, was not there long enough to have built up a workload of that kind and as soon as the proceedings involving his status were initiated he was put in abeyance, so to speak, or allowed to run with the belt off, if that is not a disrespectful expression to use of a district justice. The total number of people affected by his operations, which I believe were quite innocent, was very small.

This is a different case. A genuine honest mistake appears to have been made, on the Department's part certainly and possibly also on the part of the justice, and it is up to us to put the thing right. I do not think it is necessarily the case that this irregularity must be seen to have invalidated everything done by this gentleman when he was not, in fact, operating as a district justice according to law and consequently was not a judge within the terms of the Constitution.

We have had cases over the past 15 years which have opened up the whole question under a much broader claim of what happens when something turns out to have been illegal all along. There is a stack of such cases. I will not weary the House by enumerating them but I will mention to the House a couple of conspicuous ones. There was a case in which a Miss de Burca and another lady — I think her name was Kelly — successfully challenged the provisions of the 1927 Juries Act——

Mr. McCartan

Her name was Anderson.

Mr. Kelly

I am sorry, Anderson — on a number of grounds which are not really here material, partly on the grounds that they effectively or largely excluded women and, much more relevant, they effectively excluded anybody but householders from appearing on a jury. The judgment is reported in the 1972 report; the case may have been decided a year earlier. Until then the State had existed for 43 or 44 years operating its jury courts according to the provisions of the 1927 Act, which ever since 1937 at the very latest had been invalid because the Supreme Court held in one of these cases by four out of five that the moment at which invalidity must be seen to date in the case of a pre-Constitution Statute was the date at which that Constitution came into force. In other words, the Juries Act had been invalid because it was not consistent with the Constitution ever since 29 December 1937. Think of the thousands, tens of thousands of juries in criminal cases that had been impanelled in those intervening 44 years. Think, in sterner times from the States's point of view than we now live in, of the sentences which had to be passed by law in consequence of their verdicts. Think of the persons who suffered capital punishment in consequence of the verdicts of juries which were constituted essentially not from a cross-section of the adult population at large but from a cross-section of the male householders. You do not have to be either a soft witted loony out of sight — I beg pardon, I am not talking about the workers — you do not have to be anti-social and opposed to this sort of society in all its dimensions to see that the kind of jury can be by its very disposition prejudicial, not kindly disposed to people of a different social background and different set of experiences.

That seems obvious enough and I could well imagine that case being raised earlier, but it was not raised until 1971. Was the State now to regard all the things that had been as a consequence of jury verdicts over those 44 years as void, unlawful, illegal? Leave alone the people who had been hanged in consequence of jury verdicts — of which I suppose there were a couple of dozen in that period — how was one to make good even to people who had been in prison or perhaps not even sent to prison but endured the ignominy of a suspended sentence or a heavy fine? I suppose most of them were not even still alive. Was the State to regard the most important and drastic end of its judicial arm as having been beating the air but doing so in such a way that a large number of people suffered who should not have suffered for that 44 years? We could not accept a conclusion, as Chief Justice O'Higgins said.

I think I will be asked almost at once to move the adjournment of this business. Before I do so let me say that, although I could quite understand the sense of grievance of somebody who might only lately have been prosecuted, tried on indictment before a jury of a kind which now turns out to be unconstitutionally constituted, I do not think any more than a handful of such cases were subsequently raised. There were one or two on which the point was made but the public at large, although they have no doubt registered the fact of Miss De Burca's will, accepted that there could be no refunding up the river the water which had flowed down and passed under the bridge. There is a limit to the extent to which that can be done in an orderly State. That is not intended, I do not mean to offer that, as an umbrella absolution for every irregularity and for every illegality that can be imputed to the State. Of course I do not do that. If I were to do that there would be an end of all law. People must be, in principle, entitled to redress; but when their entitlement to redress, to be relieved from an illegality has not occurred to them before, so to speak, and only emerges as a possibility in consequence of a development which involves not only them but countless other people in numbers so large that, were they all to get justice in the technical sense of the word — because they may in fact already have had substantial justice — could the structure of the State sustain it and could ordered society sustain it?

Debate adjourned.

Dáil Éireann debate -
Thursday, 8 Dec 1988