Vol. 2 No. 19
I beg to move:—
Section 3, line 25, "To insert after the words ‘of any' the words ‘civil or.'"
The President said on a former occasion that he would look into this matter with a view to its adoption. Obviously it would be a great advantage to embrace the civil side of this question and that is the object of my amendment.
I beg to second that.
I think this is non-contentious.
I think we came to the conclusion that this is not necessary. It was proposed to introduce into the definition clause these words with reference to Judges going out to hear criminal cases. There is express power under the Bill to send Judges out to dispose of any Civil Bill Appeals which might remain to be disposed of under the old system. Beyond that there seems to be no necessity for any special provision in regard to the jurisdiction of Judges of a Circuit Court.
The object of this amendment was not to provide that Judges should go out, but that it should be possible, if necessary, to send them out. As the Bill stands you could not send out a High Court Judge for civil purposes at all.
It is purely permissory and not mandatory. I do not think that it does the slightest harm.
There is no very great objection to it, but I would not like it to be supposed that the Government contemplates sending out High Court Judges again on circuit.
We quite understand that.
The next amendment is a Government one. It reads: "In Section 12, line 2, to delete the figure 75, and to substitute therefor the figure 72." I think that the most convenient way to deal with these Government amendments would be to allow the Minister in charge to state the Government's reasons for the amendment.
As regards these age limits, the Government has considered the whole position. It will be remembered that as the Bill stood when it came here certain age limits were fixed for retirement with power to the Executive Council to extend the age limits by five years. Exception was taken to that power here. The history of it is very simple and very innocent notwithstanding the somewhat sinister aspect that some people saw in it. The origin of it was, I think, in the Dáil. There were certain personal individual cases which were in view, and it was suggested really with reference to certain magistrates that there should be power of extension. The Government assented to that, and said that they would give similar power of extension all along the line. Unfortunately when it came here it was supposed to have some sinister motive behind it. What the Government proposes to do is to recall the power of extension and have fixed age limits. These limits are practically those recommended in the Report. Having regard to the observations made here when the Section was under discussion the Government is willing to have fixed an age limit of 72 for Judges of the Supreme and High Courts, of 70 for Circuit Court Judges, and of 65 for Judges of the District Courts.
There is a Government amendment later on in which the Government proposes to give effect to the undertaking given in the other House with reference to existing persons, Recorders, County Court Judges, and so on, that in certain cases, though they be of the age limit, if it be decided to re-appoint them, the age limit is to be extended. For the moment the proposal is to have a fixed age limit all along the line save in Dublin and Cork, where it is proposed to have an age limit of 70 for District Justices.
I think it would be convenient if you explained to the Seanad the consequential amendment that comes in later on. I do this entirely on my own motion. What I would suggest to the Government is to reconsider the last amendment and to consider whether five years is not too great an extension in the case of High Court Judges. If you extend the term of existing High Court Judges for another five years you give them a tenure up to 77. I suggest that is going a little too far. If in the case of all these judges you extend, in the case of existing men who are re-appointed, their tenure by three years, it would be enough. The effect of that would be to give, in the case of existing High Court Judges who were re-appointed, a tenure up to 75; in the case of Circuit Judges, up to 73; and in the case of District Judges, up to 68.
I doubt if 68 would cover some of the District Justices. I will consider that separately. I do not think that the Government has any objection to cutting down this age limit. It was really put in in deference to opinions expressed.
The Seanad passed an amendment in favour of 75. You have now extended that in the case of existing judges to 77. You have, in fact, enabled them to hold on up to 77.
I do not think it was intended to do that, but that is the effect of the amendment as drawn.
It would ease the mind of some Senators if the Government would say that this last amendment should be limited to three years' extension in the case of Circuit Court and other judges.
Yes. I think we could agree to that.
I make the suggestion in the interests of the Bill.
I will have the words altered.
The next is a Government amendment:—
In Section 14 to delete all from the words "Provided always" to the end of the Section.
This is an amendment to an amendment of the Seanad. The Seanad amendment added to Section 14 these words: "provided always that there may be granted, if the Executive Council think fit, to any such Judge as aforesaid who vacated his office owing to permanent infirmity before having completed five years' service, a pension not exceeding one-sixth of his salary at the time he vacated his office." The original Government amendment enacted that no pension should be granted to a judge retiring after less than five years' service. The Seanad inserted an amendment which enabled a pension to be granted to a judge retiring after any period of service. The Government, having considered that, did not feel able to accept it, and hence this Government amendment to excise that provision. I think, at a later stage in the Bill in Committee, a similar amendment was proposed and rejected. The President pointed out then that a provision of this kind would lend itself to abuse by the Government, who might appoint some decrepit person who had yielded valuable service to the Government, who might immediately retire with a pension under this provision.
What the Attorney-General said is quite right. I had two similar amendments down and they were both defeated. I think the President pointed out some possible iniquities which might happen under a future Government. We are not talking of the present Government, but of what might be possible in the future. In view of what the Attorney-General has said, I do not propose to bring such amendment forward again.
I cannot find the words "provided always" in my copy of the Bill.
There has not been time to re-print the Bill with the amendments that were passed in the Seanad. In any event, it was thought that as they were so few it would be a mistake to incur the expense of reprinting the Bill. A separate leaf has been sent around containing these amendments.
I do not want to have any misunderstanding about this. The House understands that the amendment they are now dealing with is an amendment which seeks to delete an amendment inserted by the Seanad.
I move:
To add at the end of the Section the words "Provided that, where under the provisions of this Section a judge of the Supreme Court of Judicature in Ireland is appointed a judge of the High Court or of the Supreme Court, the person so appointed shall receive a salary not less than the existing salary, and his appointment as a judge of the High Court or Supreme Court shall not prejudice any right of retirement or pension on retirement which such person would have enjoyed if he had not been so appointed."
This amendment was suggested to me by the Southern Law Society. It is to safeguard the interests of the Judges of the High Court, who, if the country was so fortunate as to secure their services, might be continued as Judges. I think the records of the Judges deserve the very special consideration of the country. Their experience would be an immense advantage, and, moreover, I believe it would be a saving to the State.
I am not sure that I quite agree with the Senator, but at the same time, to enable the matter to be discussed, I second his amendment.
This amendment, and amendment No. 16, are amendments that were moved in the Dáil and, I think, with the same inspiration perhaps, by Deputies from Cork. I am sure that you, A Chathaoirligh, appreciate as I do the sentiment of reverence for a particular individual that I think inspires that.
Speak for yourself.
It is quite unnecessary, because the provisions which have been introduced in the Schedule to the Consequential Provisions Act dealing with Judges' pensions make it wholly unnecessary. The position of the Judges would be this: As soon as the existing Courts come to an end, when this Bill passes into law, all the Judges will have their pensions assessed, and the special additional privileges that they got from the British Government. Then if they are re-appointed under this Bill the Schedule provides that the pension so assessed is to be suspended in whole if the salary they receive in the new Courts is equivalent to the salary they were formerly in receipt of. But otherwise so much of the pension will be paid as will make the new salary equivalent to the old, so that it is quite unnecessary to put in a provision of this kind; in fact, it would probably be to the disadvantage of the Judges. I doubt if any of the Judges would themselves desire to have it, because it cuts in upon the arrangements that they made with the Government under the Act that was passed dealing with their pensions.
I think, Senator, that what has been said by the Attorney-General is quite correct, and I do not myself think that there is any advantage to be gained by this amendment.
Under these circumstances, I beg to withdraw the amendment.
I think you may safely do it. I think the position of those whom you wish to protect is amply protected already.
Government amendment:—Section 19: "To add at the end of sub-section (1) the words ‘An appeal shall lie to the Supreme Court from the exercise by the Chief Justice of the jurisdiction transferred by this Section.'"
The object of the amendment is this: In Ireland, lunacy matters were dealt with by the Lord Chancellor, and subsequently by the Lord Chief Justice, under Royal Sign Manual. In England they have been dealt with for many years in the same way as minor matters, as part of the jurisdiction of the Chancery Division. The appeal which was applicable to the old method of dealing with the estates of lunatics, and matters arising with reference to them, would not apply now, and under this Bill we are transferring that jurisdiction to the Chief Justice of the new Court, and it is necessary to provide an express appeal to the Supreme Court of Appeal. That is the object of the amendment.
I move:—
Section 22: To delete in lines 64 and 65 the words "this part of."
This is consequential on a later amendment on the Rule-making amendment. It is really a verbal amendment in that Section which would be rendered necessary if the Rule-making amendment is carried later on.
Then it should be allowed to stand until we come to the Rule-making Section.
If you please.
Consideration of amendment deferred.
Government amendment:—
Immediately before Section 23 to insert a new Section as follows:—
23.—The judges to be placed on the rota for the trial of election petitions in Saorstát Eireann in each year under the provisions of the Parliamentary Elections Act, 1868, shall be selected out of the judges of the High Court in such manner as may be provided by any rules of court to be made for that purpose, and in the meantime and subject thereto shall be selected out of the judges of the High Court in like manner as they have heretofore been selected out of the judges of the King's Bench Division of the High Court of Justice in Ireland.
This is a re-drafting of the amendment that was proposed, I think, by Senator Haughton. It still appears — amendment No. 12 — on the Order Paper. The object is to enable the provisions of the Parliamentary Elections Act of 1868 to be given effect to under the new system of courts. That was not originally an oversight. This provision was omitted because it was contemplated having a Bill dealing generally with election petitions and the modernising of the machinery. The machinery under this old Act of 1868 is of a most complicated description, and this amendment is accepted in the form in which it has been re-drafted to enable us to carry on until a comprehensive Bill can be introduced dealing with the subject generally.
Government amendment:
To delete the words "either alone or with any other judge or judges" and to substitute therefore the words "or by a Court of which he was a member, or made in an action tried by him with a jury."
This is to give effect to a suggestion that you, A Chathaoirligh, made in the Committee Stage. You pointed to a defect in the draft as it stood, that it did not really cover the case of a dissenting judge sitting with other judges, nor the case, perhaps, of a judge in a trial with a jury, and it is therefore proposed to give effect to that suggestion of yours in these words.
I am grateful to the Attorney-General for accepting the intention of my amendment, though he did not accept the words. Not having accepted the words, I am afraid that the new phraseology is less calculated to carry out the purpose than the original phraseology, and for this reason. The words "or by a Court of which he is a member" would prevent any member of the High Court from sitting in any appeal that came from the High Court. Of course, that was not intended, but you see the phraseology of the Bill makes all judges of the High Court members of the High Court, and, therefore, if this amendment was carried out in the words suggested by the Government it would contradict the subsequent clause by which they enable a judge of the High Court to be brought into the Court of Appeal, because he would be a member of the Court in which the appeal would be taken, and, therefore, under this clause, would be ineligible.
Of course what was intended by the use of the word "Court" is actually the tribunal that decided the thing, but I am afraid that when these words come to be construed it would be held that as every Judge of the High Court is a member of that Court, no Judge of the High Court could sit in any appeal from any order of a High Court Judge, and, therefore, I think my original words, which avoided that pitfall, were better. I would suggest to the Attorney-General that he may use them even yet. They were these: "No Judge shall sit on the hearing of any appeal from any action tried before him, either with or without a jury, or from any Order made on a hearing by him sitting alone, or with other judges." That gets rid of the difficulty that if a Judge dissents he, nevertheless, is a member of the Court, and consequently it might be held that he was eligible to sit on the hearing of the appeal because he had dissented, but I think the words I have suggested would cover the whole position. The present words, I think, are more objectionable than the old words. I am only saying this in the interests of the Bill.
What we are trying to do is to give effect to the suggestion made by you. I think in one respect we defeated our object by spelling "Court" with a capital C.
I think you did.
If we had made it a small c it might have made all the difference, but any words that give effect to the idea would be accepted by us.
I think the other words are better. I think this would lead to confusion. We can let it stand over.
Further consideration of amendment deferred.
SECTION 24.
When any action shall be pending in the High Court which might have been commenced in the Circuit Court, any party to such action may, at any time before service of notice of trial therein, apply to the High Court that the action be remitted or transferred to the Circuit Court, and thereupon, in case the court shall consider that the action is fit to be prosecuted in the High Court, it may retain such action therein, or if it shall not consider the action fit to be prosecuted in the High Court it may remit or transfer such action to the Circuit Court in which the same might have been commenced, or to any Court that may appear suitable and convenient, upon such terms, in either case and subject to such conditions, as to costs or otherwise as may appear to be just:
Provided that the High Court shall have jurisdiction to remit or transfer any action, whatever may be the amount of the claim formally made therein, if the court shall be of opinion that the action should not have been commenced in the High Court but in the Circuit Court or in the District Court if at all.
Government amendment:
To delete in lines 20-22 the words "in which the same might have been commenced or to any Court that may appear" and to substitute therefor the words "or (where the action might have been commenced in the District Court) the District Court, to be prosecuted before the Judge assigned to such Circuit or (as the case may require) the Justice assigned to such District, as may appear to the High Court."
This amendment, I think, meets the point raised by Senator Jameson. He suggested a doubt on the last occasion whether the Section as it stood did not permit an action that would not be within the jurisdiction of the District Court originally to be remitted to a District Court. I undertook to have an amendment drafted that would meet with the point, and I hope that these words will do so. The idea is that any remittal of an action shall only be transferred to a Court where it might originally have begun. As regards the amount of jurisdiction——
Would it not accomplish your purpose if you simply inserted in line 21 the words "or to any Court with original jurisdiction to hear and determine the matter"?
That might create a difficulty as to locality. We wanted to keep it open so that it might be possible to have a case transferred.
I move to delete Section 35. This amendment depends on the amendment which is No. 57 on the Order Paper, but it is necessary that I should practically move the amendment which is No. 57 in order to explain to the House why I have put down the amendment for the deletion of Section 35. Section 35 would be the Section which created the Rule-making Authority for the Supreme and High Courts. The Section which I propose to add is one which deals with the Rule-making Authority for all the Courts which are set up under this Bill, and if I succeed in persuading the House that they ought to adopt my amendment No. 57 it would then be better to delete from the Bill as it stands Section 35, and certain other Sections I need not mention for the moment. The Section which I propose to substitute for all the Sections dealing with Rule Making reads as follows:
Part IV. Section 90. Immediately before Section 90 to insert a new Section as follows:—
"90.—(1) Committees shall be constituted for the several Courts established under this Act whose duty it shall be from time to time to make such recommendations to the Oireachtas as to all matters of Procedure (including Schedules of Costs and Court Fees) as they may consider necessary or expedient for the purpose of giving effect to the provisions of this Act. All such recommendations (to be styled ‘rules of court') shall be laid on the table of both Houses of the Oireachtas, but shall have no force or effect unless within six months from the date of their being so laid they shall have been passed into law as provided by the Constitution.
"Any rule of court in respect of any matter affecting public revenue or expenditure shall be recommended to the Oireachtas with the concurrence of the Minister for Finance.
"(2).—The Committees shall be constituted as follows:—
"(i) The Committee for the Supreme Court and the High Court shall consist of the Judges of the said Courts, the President of the Incorporated Law Society of Ireland and two practising barristers, one of the Senior and one of the Junior Bar, nominated by the Council of the Bar of Ireland. A barrister nominated to this Committee shall hold office for five years, and shall be eligible for renomination.
"(ii) The Committee for the Circuit Courts shall consist of (a) five Circuit Judges selected by the bench of Circuit Judges, (b) two practising barristers (at least one of whom shall be a Junior barrister) selected by the Council of the Bar of Ireland, and (c) two practising solicitors selected by the President of the Incorporated Law Society of Ireland. Each member of the Committee shall hold office for five years and shall be eligible for re-election, and casual vacancies shall be filled in accordance with the foregoing principle of selection. The Chairman of the Committee shall be such of the five Circuit Judges as the members of the Committee shall elect.
"(iii.) The Committee for the District Courts shall consist of (a) five District Justices selected by the bench of District Justices, (b) two practising barristers (at least one of whom shall be a Junior barrister) selected by the Council of the Bar of Ireland, and (c) two practising solicitors selected by the President of the Incorporated Law Society of Ireland. Each member of the Committee shall hold office for five years and shall be eligible for re-election, and casual vacancies shall be filled in accordance with the foregoing principle of selection. The Chairman of the Committee shall be such of the five District Justices as the members of the Committee shall elect."
I spoke so frequently, and at such length, when this Rule-making matter was before the Seanad in Committee, that I am really not anxious to repeat myself more than is absolutely necessary. The House will remember that the objection to the Rule-making provisions of the Bill was a constitutional one. The Rule-making provisions, we contended, offended against the Constitution in three ways. They interfered, in the first place, with the judges; they deprived, in the next place, the Oireachtas of its exclusive right of legislation, and in the third place, they offended against Article 67 of the Constitution, which says that: "The number of judges, the constitution and organisation of, and distribution of business, and jurisdiction among, the said courts and judges, and all matters of procedure shall be as prescribed by the laws for the time being in force and the regulations made thereunder." As to the first of these objections, that the Rule-making provisions of the Bill interfere with the independence of the judges, I have really said all that I intend to say. It shortly comes to this, that under this Bill the judges cannot conduct the procedure of their own courts in the way which they think best, without the consent of the Minister for Home Affairs.
It is to be noted that in the Report of the Judiciary Committee on which this Bill is founded, there was no suggestion and no hint of any Rule-making authority of anything like this nature. It was naturally assumed that the Rule-making authority under this Bill would be somewhat like the Rule-making authority under other legislative provisions that regulated procedure of courts in the past. The Attorney-General was a member of that Committee. It was composed almost exclusively of lawyers, and distinguished lawyers. I have no doubt that if it had been suggested to that Committee that a Rule-making Authority of this nature would have been created by this Bill that proposition would have been defeated in that Committee by an enormous majority. No Committee of lawyers knowing the past history of Rule-making in this country and in England would ever have consented to join in a Report which would have recommended provisions such as are contained in this Bill.
As to the other constitutional objections to these Rule-making provisions the Attorney-General, speaking in Committee, has frankly admitted that this rule-making is practically legislation. He called it administrative legislation, and I think I objected to the adjective because a great deal of it is more than administrative legislation; it is positive legislation affecting the rights of litigants and citizens. But I will not quarrel with the adjective. It is legislation in any event, and being legislation, by putting it in the hands practically of a single Minister to say whether it is to be or not to be, it offends directly against the Article of the Constitution which says that the Oireachtas are to have the sole and exclusive right of legislation. It also offends against Article 67 of the Constitution, which I have read. I would ask Senators to note the distinction between the word "laws" in this Article and the word "regulations," because it may be suggested that these Rules of Courts, which it is proposed to make under the provisions of the Bill, are mere Regulations, and that they are Regulations which will, if made under this Bill, be made under the law. With very great respect, that is not so. There is a clear distinction between the word "laws" in this Article and the word "regulations." Matters of procedure are to be prescribed by laws when they involve legislation. They may be prescribed by Regulations made under the laws if they do not involve legislation, but only involve machinery and details. The whole history of rule-making in this country and in England is opposed to the provisions of this Bill and in favour of the alternative Section which I seek to introduce.
Before the Judicature Act in England the procedure of the Courts there was regulated by a number of what were known as Common Law Procedure Acts. They contained hundreds of Sections and they practically regulated the entire procedure of the English Common Law Courts. In the Judicature Act in England, the old procedure having been abolished, it was necessary to introduce new Rules of Court, and in the Schedule of that Act practically the entire Rules of Court necessary to bring the provisions of that Act into effect were scheduled in the Act itself, were part of the Act itself, and were the result of the work of the Legislature. Therefore in England from the old days of the early Common Law Procedure Acts in the early 'fifties down practically to the present time Rules of Court were made by ordinary legislation in Parliament.
In Ireland, before the Judicature Act, procedure in the Common Law Courts was regulated by two well-known Common Law Procedure Acts. One of them, I think, was passed in the year 1853, and the other in 1856. They had hundreds of Sections, and, just like the English Acts, of which they were very largely a copy, they contained the entire procedure necessary for the working of the Courts. The Chancery Court procedure was regulated by another Act of Parliament, the Chancery Regulation Act, so that under those Acts, before the Judicature Act in this country, everything was prescribed, so far as procedure and Rules of Court go, by the laws. Then came our own Judicature Act. It is true that under our Judicature Act the Rules of Court were not scheduled to the Act, but the explanation is very easy. Our Judicature Rules are a copy almost verbatim of the English Judicature Rules which have been enacted by Parliament. All that was necessary when these Judicature Rules were made for this country was to alter the wording of the English rules so as to make them suitable for the Courts in this country. So that practically the Rules of Court under the Judicature Act in Ireland were just as much legislation, although they did not happen to be scheduled to any Act of Parliament, as were the Rules of Court in England.
What is to be noted about all this is that all this rule-making by positive legislation took place when there was no written Constitution. It took place when the Government that were introducing the rule-making legislation could, if they choose, have delegated the rule-making to some body other than Parliament. But they did not do so, and they must have felt that it was not proper to do so. Here we are living under a written Constitution which makes the delegation of legislation impossible, because it says that the exclusive right of legislation is to be in the Oireachtas. Therefore, the giving of legislative power to the Minister for Home Affairs is, I respectfully submit, an absolute breach of the Constitution. Why is it being done, and what good reason can be urged in support of it? I think the President, in speaking to one of the amendments that I moved in Committee, suggested that one of the reasons for keeping this rule-making in the hands of the Minister was, that they wanted to be quite sure that litigation would be made as cheap as possible in this country. If that is the object of giving this right to make rules of Court to a Minister, it will be attained just as easily, probably far more surely, if these Rules of Court are submitted to the Oireachtas. I can imagine Senators on the Labour Benches scanning very anxiously the Rules of Court to see if they would result in extravagant costs of litigation. So far as the cheapening of litigation is concerned, and ensuring that the costs will not be too high, that object will be attained just as easily if the amendment I propose is adopted. Would it be too much to ask the Government to deal with this matter of rule-making as they dealt with the question which arose in the Dáil on the salaries of District Justices? On the 31st October last Section 70 of this Bill was before the Dáil. A Government amendment was moved by Mr. Duggan, who stated:—
"The effect of the amendment is that the Minister for Finance shall have exclusive control of the amounts of the salaries of the Justices."
If the Seanad will allow me I will refer to the official report of the Dáil for the 31st October, column 474. Mr. Duggan moved a certain amendment to the above effect. That was objected to by Deputy Johnson, Deputy Professor Magennis, and a number of other Deputies on the ground that the remuneration of the Judges, including the Circuit Judges, under the Constitution, was a matter which must be determined, not by the Minister but by the Oireachtas. Deputy Professor Magennis, in column 476 said:—
"These are the Courts of local and most limited jurisdiction. According to that Article of the Constitution they are Judges. Now, Article 67 declares: ‘The number of Judges, the constitution, organisation of and distribution of business and jurisdiction among the said Courts and Judges, and all matters of procedure shall be as prescribed by the laws for the time being in force, and regulations made thereunder.' The present Bill is the machinery for the carrying out of Article 67. In Article 68 the concluding passage runs: ‘The terms of appointment of Judges of such other Courts as may be created, shall be prescribed by law.' That ought to include the remuneration, and, most important of all, Article 69 declares — and this is what has made me interrupt the harmony of the proceedings —‘All Judges shall be independent in the exercise of their functions and subject only to the Constitution and the law.'
If a Judge owes his appointment to a bureau, it might seem to the bureaucratic mind that it would follow as a natural and logical consequence that the bureaucrats could interfere with the administration of justice. I think it is most imperative, even if it were only as a matter of policy, that now that we are setting up courts of law, we should set them up under such conditions as would secure the uttermost independence of the Judge and his complete freedom from interference."
On the next page Deputy O'Connell said:—
"I would like to support as strongly as possible the suggestion made by Deputy Magennis. It is a well-accepted principle that Judges should be absolutely independent and feel that they are independent of the Government or of the Ministry for the time being. The District Court will be the poor man's court. Very many cases that will crop up in ordinary everyday life will be decided there. It is no less important that the poor man's Judge should be made as independent as the High Court Judges by having their rates of salary put into the Bill, and so made independent of the Ministry."
Deputy O'Mahony also supported. He said:
"It will be remembered that in the debate on a previous portion of this Bill strong exception was taken to any interference on the part of a Minister with reference to the appointment of Judges of the High Court and Circuit Courts.
Then the Attorney-General (at the foot of column 478) said:—
"It is the intention, and always has been the intention, that the District Justices should have their positions very distinctly marked in independence from that of their predecessors, the Resident Magistrates. It is believed that they have been established in a position of independence in which they can dispense justice. As regards salary, they are protected by the Constitution from any reduction, once they have been appointed at a particular named sum, so that in so far as any attack might be made on their independence in the manner indicated by Deputy O'Connell, that is rendered impossible by Article 68 of the Constitution.
Having regard, however, to the expressions of opinion that I have heard, I will put the matter before the Minister for Finance between this and the next stage, and see whether he will be prepared to agree to any modification of this provision.
In column 480 Deputy Johnson said:
"I want to support the view taken by Deputy Magennis and Deputy Redmond. I am not satisfied that the promise of the Attorney-General was a promise that anything would be done, except to consult. That is not very satisfactory. I want to emphasise the Section of the Constitution read by Deputy Magennis, and to put it to the Attorney-General that he has no option, and, as a matter of fact, that unless he is prepared to name the figure, that he ought to Report Progress until an amendment in the name of the Government is brought forward. Article 68 of the Constitution says: ‘The age of retirement and the remuneration of such Judges shall be prescribed by law.' Now, I do not think that is capable of any other interpretation than this, that the sum to be paid has to be set out in an Act of the Oireachtas. It will not satisfy that Article of the Constitution to say that the sum to be determined by the Minister for Finance is to be the remuneration prescribed by law."
The Attorney-General was not able to give an undertaking at that sitting, but subsequently a new Section (Section 71) was introduced into the Bill which fixes the salary of the District Justice at a certain figure. When this objection was made in the Dáil as to the unconstitutional mode in which the salaries were dealt with in the Bill the Government recognised the situation and if I might say so, had the courage to go back and alter the Section. They put in one that complied with the Constitution. Is it too much to ask that they should take the same course with reference to the rule-making provisions of this Bill? I do not know if this would be the time to go into the amendment that I intend to propose to the fourth part of the Bill. I have read it for you, and it really does not require any great explanation. It means simply that these rules will be made by the Committees who are constituted by the Section, that within six months they have to be brought before the two Houses and have to go through the two Houses in the form of a Schedule to a Bill. Every one of them will be before both Houses and will be subject to criticism. It may be suggested that that might delay the operation of this Bill by requiring legislation before the Rules of Court come into effect. That is not so. These Rules of Court are very probably prepared already. I have no doubt that they are in process of preparation, and if they are Rules of Court which in the ordinary course would be adopted by the two Houses their passage will be facilitated. It will be the fault of the Rules themselves if there is any unusual delay. I move the amendment.
Is there not another answer to the question? The Bill expressly provides that until the new Rules are passed the old Rules are to apply. Therefore, there could not be any interregnum at all.
Yes, I am much obliged.
I beg to second the amendment.
I take it that the later amendment, No. 57, is being dealt with now.
I think the simplest way is this. The question now is whether this particular Section will be deleted or not. The object of deleting it, is to enable other amendments at the end to be tabulated. If the Seanad agrees to the deletion of this particular clause then the way is paved for Senator Brown afterwards to move his conjoint amendment. If on the other hand the clause is allowed to remain in the Bill that disposes of the whole matter.
I may congratulate Senator Brown on the astuteness with which he has made an appeal to another section of the Seanad for support, because what he proposes as an alternative to the Government draft is to set up a kind of Judicial Soviet which would, in the first instance, determine what are to be the rules, and whether we call it a Functional Council or a Judicial Soviet I think it is to propound the rules of procedure, and we get no further than we are at present.
If we look at that, I think you will find that it is not correct, because all that the amendments suggest is that these recommendations should be laid before the Oireachtas. They may be rejected in toto, and the Oireachtas may pass legislation of its own.
But the initiation and first draft of all such regulations are to come from this Functional Council. Among the reforms that have been suggested in the report of the Judiciary Committee, and which the Government is anxious to have given effect to, are matters such as these—that the Court shall commence work at 10.30 in the morning, and that the vacation shall be curtailed. I do not know whether it is suggested that reforms of that kind are to be expected in the future from a Judicial Council of this kind. In the past these ideas were mooted, but they never reached anything like accomplishment. In fact the rules we had have been to a large extent a slavish imitation of the English rules, and when Senator Brown says that no Committee of lawyers would approve of the suggestion that the Minister responsible for the administration of justice should have anything to do with the rules I cannot agree with him.
With initiating them?
I cannot agree with that. We have had some very ridiculous things in the past. I remember only a few years ago it was suddenly discovered that our arrangement of vacation was not exactly the same as that in the Strand. A hurried alteration was made in the existing rules of Court. Within a few weeks afterwards the people in the Strand discovered that theirs was not a good system and they adopted that which we had cast aside. Now the Government feels that it is responsible for having the administration of justice made efficient, for having economies effected, for having litigants relieved of a large amount of unnecessary costs by unnecessary procedure in Court, and the only way that that can be done is by recognising that it is the responsibility of the Government to see that it is done. Senator Brown has suggested that the rules are already prepared. If he is nervous on the point, I can assure him that they are not, because it is perfectly obvious that the procedure that will be adopted under the provisions of the Bill as it stands is this. The Committee will be formed, and the Minister will request them to prepare rules of Court. He will indicate certain matters such as those upon which I have touched which the Government suggest on the lines of the Judicial Report should be introduced into those rules. The Committee presumably will meet, and the next proposal will be for an allowance for a draftsman, and the Minister for Finance not being here, I may assume that the Government will grant such allowance. That is the ordinary procedure. Rules will be drafted really by the Committee, but it will be for the Minister to see that particular reforms and economies are given effect to in the rules, and if the draft put up by the Committee to him does not give effect to these matters which public opinion demands, it will be for him to send back to the Committee and say: "I cannot lay these rules before the Oireachtas. They will be turned down as they do not do what is required." Now, so far as the Oireachtas is concerned, the rules will be laid on the Table of each House. You have here skilled minds both from the legal and commercial end, which will investigate these rules, and if they are not satisfied they will turn them down. The Courts then will not be able to go on. On the question of delay, I may say that while it is possible that the High Court and Supreme Court may carry on under the existing rules, it will be practically impossible for the District Courts and the Circuit Courts, with their new jurisdiction, to carry on without new rules being drafted. Under the old regime technically the Lord Lieutenant made the rules. They were drafted under a Rule-making Committee and put up to him. No one, I think, contemplated that there would be any difference in that particular procedure, but, of course, it must be remembered that under the old regime the judges were closely associated with the Executive and there was no likelihood of there being any reason why the Lord Lieutenant should call attention to any matter of public importance because there was probably an absolute consonance of view as regards policy and matters of that kind. Now you have here a responsible Minister who must see that these economies which are foreshadowed will really be effected and that people will really be provided, not with cheap and nasty, but with cheap and efficient machinery for litigation and for threshing out questions that arise between them, and that matters such as the undue prolongation of vacation, the inconvenient hour of sessions, and so on will be dealt with.
How does that affect the independence of the Judges in the exercise of their judicial functions? I do fail, though I have heard Senator Brown on this so often, to see any interference with the Judge, as a Judge, in saying that the public requires him to sit so many hours a day, requires him to hear cases and to make certain provision for the hearing and disposal of litigation. I cannot agree—these must be matters of opinion—with all respect to the opinions of Senator Brown. I cannot agree with his suggestion that Article 67 of the Constitution is in any sense departed from by this proposal. The Article clearly contemplates that the procedure of the Courts is to be regulated by regulations made under law. That is what we are proposing here, that they are to be regulated by regulations which shall be made under this Bill when it becomes law. It may be my stupidity, but I cannot see the basis for that particular contention. The matter of the old Procedure Acts is really a matter that tells against Senator Brown's contention because while in the early part of the last century these various Common Law Procedure Acts and Chancery Procedure Acts were passed regulating by statute in great detail matters of procedure in court, as time went on people saw that statutory regulation of procedure was a wholly impracticable method of dealing with procedure which might require to be varied. Consequently regulation by statute was given up and regulation by Rules of Court was adopted. That is the modern system of dealing with the matter as proposed in this Bill. The Government is quite unable to accept this proposal, and I do not think I can add anything now to what I said on the last day.
In the Attorney-General's speech he said that the Rules of Court, when made, would be laid on the Table of both Houses of the Oireachtas. There is nothing in the Act to say that those Rules of Court will be so laid.
Yes, in Section 97.
When laid before the House and accepted by the House do they become the law of the land?
It is a formal matter, but it gives every member of the Dáil and Seanad an opportunity of looking into them. If they object to any one they can move either in the Dáil or the Seanad to have it rejected.
By a simple resolution.
Referring to the matter that Senator Guinness has mentioned, I think that the Seanad ought to be quite clear about that, because there is a great difference in laying on the Table of the House documents and leaving a private member to take a matter up and fight a battle on it. I wonder what it would mean if any one of us tried to influence this House to disqualify the rules of Court. It would be hopeless, and that is where the real difference lies between Senator Brown's proposals and what the Attorney-General says is in the Bill. Section 35, which Senator Brown wishes to delete, and probably some other Section of the Bill, says that these rules of court, having been laid down by the Minister, with or without the concurrence of the Committee, it is quite easy to see that there might in certain circumstances, rather foreshadowed by what the Attorney-General says, in which Judges would adopt a different attitude entirely from that which any one of us thinks they would follow. He suggests such things as a Soviet of the Judges holding up the issue. When one hears that I quite agree with the Attorney-General, when he smiles. It is not a thing that I would accuse our existing Judges of. I do not think Clause 35 at all carries out what the Attorney-General says, that if the Seanad does not like them, it will turn them down. That is not so. The Seanad will see them there. Some private member will take them up and know they have been drawn up by the Minister. There will be no Judges here who may object as much as ever they please. No one here will represent their point of view. The Government will produce its majority if a private member brings up the matter. I cannot say Clause 35 gives the Seanad the right which the Constitution gives us, and unless we adopt Senator Brown's proposal that those rules of Court must be put to a vote in the House the House has really no chance of exercising the rights given to it under the Constitution. The House, by putting the Minister as the draftsman of these rules, to my mind, really disqualifies the best guide the House ought to have in deciding what their opinion of the rules of Court is. It puts the whole question of the drawing of those rules within the vision of members of both Houses. They are drawn up by a Minister with or without the consent of a Committee of Judges. If there is a contest or difference of opinion in that Committee—it seems to be foreshadowed—the House has got then to vote against the Minister if it wishes to support the view of the Judges, and we can quite easily see a most unpleasant state of affairs. If, on the contrary, a Committee of Judges prepared the rules, I should think there would be no objection to the Minister for Home Affairs being a member of that Committee. I should also say that all matters of finance should be subject to the approval of the Minister for Finance. When they come before the House, which is one of the essentials of Senator Brown's proposals, we have the guidance of the Minister, who will be able to tell us all about the rules, whereas, if he is the draftsman, what can he do except to try and force the House to follow his draft, no matter who is against him.
Really, I think that the Government, in their wish to establish a new system of Rules of Court, are taking a method which will not nearly as well accomplish the object that they have in view as if they would make use of the constitutional right of the Houses to settle these matters, and I cannot see anything in the last year or two to cause them distrust the Houses in any shape or form in backing them in every real, essential reform that they consider necessary, and there is nothing that I fear more than establishing a practice of being afraid of bringing things before the Houses. We have not shown in any shape or form that we are afraid to take responsibility or to back the Government when we think it is right, and I hold that if the Minister for Home Affairs brings these Rules before the Houses he can have them passed. If there are some he does not approve of let him say so, and if there are others he wants put in let him say so. The Constitution will not be threatened or strained, at any rate. I doubt if there is a single member of this House who has heard the speeches of Senator Brown and the Attorney-General but who has come to the conclusion that whether we are absolutely breaking the Constitution or not, we are most decidedly within an ace of it. It is perfectly easy for the Government to use the Houses as they ought to be used— to give their opinion on a matter which is highly constitutional—they will get every reform they want; they will get every assistance they want—and why they should take this course, believing that we are not to be trusted to do our duty, is a thing I cannot understand.
After the speech we have heard from Senator Jameson I do hope the Government have not said their last word on this matter, and are open to consider some modification of their proposals. I personally am in sympathy with the desire of the Government to prevent the public being in any way imposed upon by the legal profession. I have always felt, and I am sure other members have also felt, that there was considerable scope for reform in several matters, especially in the length of vacation and in matters of costs, and so far as rules will affect desirable reforms I am sure we are all anxious that everything possible should be done. But what I am concerned about is the provision in these proposed Rules that seem to make conflict between the Executive and the Judges almost certain, with human nature what it is, and it seems to be so wholly unnecessary to court that danger. If, as Senator Jameson has suggested, the Minister for Home Affairs and the Minister for Finance are made members of the Rule-making Committee, and they are given something in the nature of a suspensory veto on any rules they do not approve of, pending reference to the Oireachtas, that would avoid any possibility of conflict. Every rule that either of these members of the Government do not consider in the interests of the public could be held up and would not come into operation until it had been referred to the Oireachtas. That would appear to protect the public fully, to achieve the objects that I understand the Government have in view, and prevent any risk of this definite conflict between the Judges and the Executive. I think we have reason to be alarmed as to what may happen if this conflict arises, because the Attorney-General had no suggestion to make as to how it was to be dealt with. If the Minister for Home Affairs initiated a rule and the Judges refused to accept it there is a deadlock, and we have received no light as to how that deadlock is to be overcome. Presumably legislation would be necessary. Some proposal such as I have indicated and such as Senator Jameson has adumbrated would meet the case.
Sir, it is very difficult in the circumstances, when there is yourself, a great lawyer, Senator Brown, well versed in his profession, and the Attorney-General dealing with this Bill, for anyone like myself to try to explain this matter in any way. First of all, we are asked to delete Section 35, and before that we had a very long speech from Senator Brown proposing an alternative method of dealing with Rule-making. What I imagine Senator Brown really objects to in Section 35 is this: "The Minister for Home Affairs may at any time, and from time to time after the passing and before or after the commencement of this Act, but with the concurrence of the Minister for Finance in respect of any matter respecting public revenue or expenditure, make rules to be styled rules of Court for carrying Part I. of this Act into effect." That is really the kernel of his objection. He proposes then, in another Section, to delete that Rule-making Authority. The Attorney-General said that that was a Soviet. I do not agree with him in any way; I do not think it is a Soviet at all. I think it means this, that both Houses will be the Rule-making Authority. That is really what it amounts to, because Senator Brown suggests that if they do not agree with it they can alter it in any way. To ask these Houses to be a Rule-making Authority is to go into most meticulous particulars, a position that it would be almost impossible for these Houses to be put in. But what I favour is that the Minister for Home Affairs and the Minister for Finance should be members of the committee to deal with Rule-making. That seems to me a sensible proposal, and I hope the Government will consider it. There is another aspect to remember with regard to this, and it is this, that both these Ministers—and we are legislating for all time in this Bill—are responsible as Ministers to both Houses. I think I am right in that. So that if they are members of this Rule-making Committee, they can come before this House, they can come before the Dáil, and they can be questioned and criticised, and dealt with, dealt with drastically, if these Houses find that they have been playing an unfair game in any way. Financially and in their capacity of making appointments they can be dealt with by these Houses in a way that is well known in every Parliament in the world. I shall vote for it if the Government would agree to that. I do not see that there is any objection to that. They will be in a dual capacity there. They are responsible. They have to stand up before their peers there, if I may use that expression, and give an account of what they have done, what they have not done, and what they ought to do.
The more a person like myself listens to expert arguments on this very intricate question the more confused he is likely to become. The speeches to-day, while, no doubt, exceedingly able, have been so diverse that it tends to confuse one even more than was previously the case. Section 35 states that the Rules of Court shall be made, annulled or altered, only with the concurrence of a majority of a Committee consisting of, and so forth. The Attorney-General indicated that the reverse would be actually the practice, that the Committee would make the Rules with the concurrence of the Minister.
But the clause in the Bill is precise. It says that it is the Minister for Home Affairs who is to make the Rules.
I quite see that. I am only pointing out that, according to the Attorney-General, the reverse will be the case. That tends to make it difficult for us. We want to make up our minds quite impartially as to how we are going to vote. I should like that point elucidated as to what will be the position in the event of the Minister for Home Affairs with the Committee failing to find agreement. Will it mean a Bill to deal with the particular points of disagreement? The alternative suggested by Senator Brown is not ideal, from my point of view at all events, but it has this particular merit in it that appeals to me, that the Rules of Court cannot operate until they are passed by the Oireachtas. There is that virtue in it. The Minister undoubtedly, in his capacity, I presume, as representing the general public and the taxpayers, will be there, but his point of view as to what their interests are may vary according as different Ministers are appointed, and what may seem good economy in one case may seem quite the reverse in the case of a succeeding Minister. When he comes before this House — and as a matter of fact he need not come before the House, as the Rules will be laid on the Table—it then rests with some private member to challenge any or the whole of these rules. That means, with the exception of the Minister, the only safeguarding authority is the vigilance of the private member, who may be far from expert in matters of this kind. If any of these Rules are challenged, naturally the Minister will have to fight for them, and in doing so he will command a majority in the Dáil, but he may not command a majority here. He will bring with him all the support that any Government can bring to bear on any Bill. From that point of view the public is not as well protected as if it were incumbent on the Oireachtas to pass these Rules before they came into operation. I would suggest to the Government that they would consider an alteration to that extent, and not leave it to a private member to challenge Rules which affect the whole community and the taxpayers, but that it shall be the business of somebody to introduce these Rules into the Oireachtas, and let them become regular legislation, and not legislation enacted by a Committee with only one Minister present. I do not feel that I could vote in its entirety for the amendment proposed by Senator Brown, but, as I have said, it has that saving virtue that Section 35 now has not got.
Senator O'Farrell has raised a point regarding Section 35 that I was about to raise. Having a non-legal mind, and not knowing what interpretation legal phraseology is capable of, it appears to me that under the Section as it is framed, the person who would make the Rules "off his own bat," so to speak, in the first instance would be the Minister for Home Affairs. He would make out the framework, embracing all the different clauses and sub-sections, and, having done that, he would submit it to the Judges and members of the legal profession associated with the Rule-making authority. If I understand the Attorney-General rightly he said that the Minister for Home Affairs would call together the Committee at once, and would—and I think Senator O'Farrell agrees with me in this—sit conjointly with it to discuss these Rules, each man expressing his own opinion; and the Minister for Home Affairs having full opportunity for expressing his views on matters of economy and so forth. If that is what is meant, I cannot see why the suggestion made by Senator Jameson should not be adopted, because if the Minister for Home Affairs is to be only one of this Committee, as the Attorney-General seems to imply—I am certain it is not so provided in the Section—I cannot see why the Government should not accept the suggestion that both the Minister for Home Affairs, and the Minister for Finance, where finance was the essence of the matter, should not be joint members of that Committee. It seems to me that such a provision would protect this Bill, and make it what we are all anxious it should be, viz., as good and perfect a measure as possible. I have, unfortunately, not been able to be here for the past month or two, but I have read the debates carefully, and my opinion, for what it is worth, has been formed in a detached atmosphere. After studying these debates I cannot help feeling that some members of the Seanad as well as the President have had an idea we were trying to force the Government's hands, and that the President seemed to think we were not treating the Government with confidence. Speaking for myself and, I believe, for the majority of the Seanad, we have the fullest confidence in this Government, for we cannot forget that they have brought us out of an impossible position, and for that we can never be sufficiently grateful. To assume that we bring these amendments forward with a view to questioning their ability much less to indicate our lack of confidence, is not worthy of a moment's consideration. I would beg the President not to think there was any desire on the part of any member of the Seanad to do other than perfect this measure and to make legislation cheap and efficient, and in the interest of all parties, and having regard more especially to what fell from the Attorney-General as to there being no intention of the Minister for Home Affairs dictating to the Committee, or that he would be more than one of its members, taking part in and threshing out all these matters with it, I do most earnestly beg the Government to favourably consider acceptance of some such suggestion as that made by Senator Jameson.
As no new rule not submitted to the House by the Minister for Home Affairs has the slightest chance of passing that House, it seems to me that the Minister for Home Affairs will have all the necessary authority, with the rule-making body, as suggested by Senator Brown. He can say to them: "I haven't the smallest chance of passing these rules except you have some such regulations about the hours of sitting, the shortening of vacation, and so on." It seems to me that he has every possible legitimate authority under Senator Brown's proposal. It is difficult to see these things, but I propose to get the information by asking a question. If he has not that necessary authority, why is it? What is wrong that he has not got it?
One thing I would like cleared up arises out of an implication of Senator Brown's, that if the rules of court are not left at the disposal of the judges the liberty of the judges will be interfered with. That is a very serious implication, because it means that any one who does not support this amendment is a party to interfering with the liberty of the judges. I looked over the Rules of Court, and I for one could not see how by the settling of the dates of a man's vacation or the hour at which he appears in court, the validity of a judgment is thereby impaired. I can well understand that if he were summoned at 6 o'clock in the morning it would be very hard to make up his mind suddenly. I would like Senator Brown to show me an instance of how the Rules of Court will interfere with the independence of the judges. The mistake seems to arise from a confusion of function. There is a difference between adjudication, such as the function of a judge in forming his opinion and adjudicating on the law, and the power of making legislation, which, I think, is removed from the judges. If that matter could be cleared up it would be a very desirable thing before this amendment is put, because I should not like to vote against an amendment which excluded interference with the independence of the judiciary.
At the risk, with other Senators, of showing my ignorance, I think it is perhaps better to express some of the difficulties that I have felt in listening to the debate, because it is quite likely that the difficulties I and other Senators feel will be the difficulties that the ordinary man will feel in reading the debates. I suffer from one difficulty in this matter, and that is, that I have listened with the greatest care to the arguments of two men skilled in the legal profession, both of whom I know personally and for whom I have the greatest possible respect, as to their ability and character. That makes it extremely difficult to see exactly where the fundamental difference arises as between the two points of view. One Senator said before we met: "Why cannot Senator Brown and the Attorney-General agree on this matter?" I confess that the feeling that one almost has is that they should be put into a room and told that they should produce something which would meet the difficulties. I cannot help feeling that it should not be beyond the ability of these men to find a way out of the difference between the two proposals. It seems from the Government proposal that the Minister technically or theoretically makes the Rules, but that he cannot make them without the concurrence of a majority of certain persons, all of whom are either judges or members of the legal profession. It would seem to the ordinary understanding that unless the assent of a majority is obtained he cannot make any Rules, because the Bill says such Rules shall be made, or annulled, or altered, only with the concurrence of a majority. That would seem to the ordinary man to give to the Bar, plus the judges, even a greater power than in Senator Brown's proposal. On the other hand, Senator Brown's proposal seems to the ordinary man to have the objection that it is doubtful if it is fully workable. I do not think, at the present stage at any rate, that it is going to be practicable for a Committee, with no member of either House on it, to bring in proposals virtually in the nature of a Bill or of legislation; to lay them on the Table, as it says, and then to say that they are not to have effect unless they are passed into law as provided in the Constitution. I could not support the exact wording of such a proposal, because it does not seem to me, as we are at present constituted, a satisfactory method of initiating what Senator Brown and the Attorney-General agree is some type of legislation.
The weakness of the Government's proposal seems to me to be that if you fail to get concurrence there are no Rules even to come before either House, so that if my interpretation is correct some amendment at least is necessary. Surely it is possible to ensure that in the main matters the representatives of the Bar and of the Judges will be fully consulted, which, after all, they will be if it comes before the House and the House has the final decision; that the point of view of the responsible Ministers will be ascertained before the Rules come before the House; and, at the same time, that this House will have some kind of veto, as apparently is admitted both by the Government and Senator Brown to be essential? I feel myself that there is one great virtue in the Government's proposal, if there were a way out of the difference, which there does not seem to be in the Bill. It is very difficult to accommodate in a House of this kind the differences of opinion between a body which is not represented here, but which lays proposals before us, and the Government which is represented here. I can conceive that a conversation between the Minister and the Bar would at least lead to Rules which would probably be passed in the House here. To the ordinary man it would seem as though there was not any very great principle between the two proposals which could not be adjusted. I should like to appeal to the Government to make clear what would occur in the event of a difference of opinion or of failure to get concurrence, and to see whether in arranging for that they might not be able to meet the fundamental point advocated by Senator Brown. Personally I cannot vote for the amendment in view of the wording of the later Sections, which I honestly believe will be an unworkable way of introducing legislation.
Perhaps before the President speaks I might throw out a suggestion. I am not going to enter at all into the controversy; I am not going to refer to it in any shape. I think it is quite apparent, and I think the Attorney-General himself must realise that there are difficulties in the Government's proposal. There is an obvious difficulty that might become of very serious importance in the event of the majority of the Judges failing to concur with the rules as drafted by the Minister for Home Affairs. That is, of course, an obvious danger even from the Government point of view. But what I am concerned with most, and what appeals to me most is this: I am convinced —it is only my opinion for what it is worth—that so long as the Constitution says that these matters of procedure are to be settled by the Oireachtas, then any limitation on that power which compels them to wait before they legislate until the Minister has framed Rules for them, is a breach of the Constitution. That is my opinion for what it is worth. Therefore, what I would be afraid of is this, that not only is a conflict inevitable if the Judges fail to concur with the Minister for Home Affairs, but also that it would be open to anyone to challenge the validity of these Rules as having been made ultra vires by the Minister for Home Affairs if they are not passed into law by the Oireachtas under the Constitution. In that view I would suggest anxiously to the Government—because there is no man in this Seanad more anxious to see this Bill in operation and a success than I am—that every reason of sentiment and honour in the case is satisfied if, in addition to the Minister for Finance being made a member of this Committee on all matters affecting public expenditure, the Minister for Home Affairs was also to be made a member of the Committee. I think that would meet the situation on both sides, and I think it would be from the point of view of the Government—and I say so with all sincerity—a most desirable amendment.
There were three cardinal points made by Senator Brown against the Government proposals. One was the independence of the Judges, the second depriving the Oireachtas of their exclusive right, and the third, that we were offending against Article 67 of the Constitution. We have debated at some length the question of the independence of the Judges. On the second point, depriving the Oireachtas of its exclusive right, I have some hesitation in following Senator Brown. I would prefer to have followed Senator Jameson. I do say that it is rather late now for Senator Brown to come down and give us that information now which he withheld from us, if he had it, on the last day we were discussing this matter. On that day, when he was proposing a different amendment, that was not the basis of his contention. He wished to have a committee which I expect is much the same committee as is set out in sub-section (2) of Section 90, dealing with Rules of Court. Senator Brown on that occasion was perfectly satisfied that it was not an infringement, was not an interference, was not restricting, was not outraging, if I might say so, the exclusive right of the Oireachtas, to pass Rules of Court set up by these gentlemen into law. I really think it is not so much these three particular reasons as the fact that Senator Brown is wedded to the old system absolutely and without question. He got me on a rather weak point when he said that my case was that I wished to bring the law within the power of sections of the community. It may have been that in a somewhat weak moment I made that statement. I will take the Senator in a weak moment of his. He said the excellent laws passed in England for their Judiciary were simply altered and passed on here. There is really what is between us in this matter. In the old days the Lord Lieutenant had the same power that we are asking here for the Minister for Home Affairs. Taking the words of Acts of the English Parliament and passing them on here was good enough at that time. Our proposal now is that the Minister for Home Affairs will make these Rules subject to Section 35, that is, with the concurrence of the Committee of Judges and of the Bar and other people. The question is put to us: In case of non-agreement what is going to happen? One thing only. What Senator Brown suggests here, and that is, we pass them into law in a Bill. These rules are wanted for two Courts set up under this Bill which have scarcely got an analogy in our present judicial system—the Circuit Courts and the Courts of District Justices. We want rules for these Courts. We have not got rules at the present moment. We are providing machinery that will give us these rules in good time. Legislation may be ultimately necessary, and at any time might be necessary for dealing with this matter. If it is necessary, we will introduce it. We do not wish to introduce it if it is not necessary. The basis of the objection of Senator Brown to the Government proposal now is that it is against the exclusive right of the Oireachtas to enact legislation. The Attorney-General was careful enough to point out that this was not legislation in the ordinary sense, but administrative legislation. On the last occasion Senator Brown did not object to that. He was quite strong on having Section 97 in this Bill, which provides for these rules being laid on the Table of both Houses and allowing any Senator here or any Deputy in the Dáil the right to object to any rule, where wrong. A vote in either House would have done that. It is said that that is not a sufficient precaution. It is the easiest precaution. One could speak against the Bill, against any section in it, and get heated over a particular section or sections.
If there be only one particular rule to which exception can be taken, a member could make a study of it and concentrate on having it removed. It is said that the weakness of that proposition is that a private member is not well drilled or skilled in the science of the law. Is that the case? I take it that if there be an objection to any rules that that objection will be notified by persons who are not members of this House. Judges will know someone who is a Senator or someone who is a Deputy—members of the Bar will know a Senator, or someone who knows a Senator or Deputy, and we will have every rule discussed from every angle.
The independence of the Judges has been dealt with before. Nobody wants to restrict the independence of the Judges, but we do at least wish to have this thoroughly understood, that Judges are not above the law, and not above the Parliament; that if we lay down rules and regulations as to the amount of time or anything of that sort which is perfectly reasonable, they are no more than members of the Seanad, members of the Dáil, or members of the Government. Even the members of the Government have to obey regulations with regard to hours of duty, however irksome they may be to some of them.
I am not going to deal with the objection to Article 67 of the Constitution. That is a matter for constitutional lawyers, and I am not going to enter into a domain on which I am not competent to speak learnedly. I am not satisfied from what Senator Brown has said, that there is the slightest infringement of the rights of the Constitution by the proposals we have made.
May I say that it was the President, on the last occasion when the Bill was in Committee, showed me that my former amendment was unconstitutional. My former amendment, as far as committees are concerned, is the same as it is now. I then proposed that the Oireachtas should have the last word and be the real rule makers, but that they should do it by resolution, and that if either House objected the rules would have no effect. The rules would have to be adopted as a positive resolution by both Houses. The President very properly twitted me and told me that was not legislation. It was for that reason I altered the form of my amendment, made it conform to the Constitution, and put it in a form in which both Houses would have to pass the rules as an Act of Parliament.
It was the President himself who showed that my opposition was unconstitutional, and I am glad, because nothing would have given me greater pain than to have submitted a resolution contrary to the Constitution. With great respect to the Attorney-General and also to the President, they have not met my fundamental objection to the rule-making section of the Bill. My fundamental objection to the rule-making clause is this—who is to make the rules, who is to have the last say, is it the Minister or the Oireachtas? If you give the two Houses the last word, and if you make it a condition before the coming of these rules into operation that they shall pass both Houses, I do not care who does the drafting of the rules. I would be prepared to go so far as to say that I will take the Minister for Home Affairs as the person who is to make the Rules of Court under the clause in the Bill, provided that they have to go through the two Houses as legislation, though I am not satisfied that that would be as good an authority as the Rule-making Committee which I have suggested. I am perfectly willing that the Minister for Home Affairs should be made a member of each Committee that I have proposed. It is quite correct and proper that he should. It is suggested that if you have to come here and pass these rules as Acts of the two Houses you will not be able to carry out the objects which the Government have in view, such as the object of economy, the object of getting judges to sit at 10.30 in the morning, and all that sort of thing. The Government have that in their own hands. It must be a Government measure. The Minister for Home Affairs would, I take it, be the Minister who would introduce the Bill embodying these Rules of Court, and he would come here and support it in the Seanad. It would run through both Houses as a Government measure, and therefore the Government would have control. All I want to be sure of is that the Articles of the Constitution are complied with, and that legislation in this respect will be made in this House. Now, with reference to what Senator Gogarty said about the independence of the Judges, that does not depend upon such matters as whether the Judges sit at 10.30 in the morning. It depends on their being bound by Rules of Court which regulate the entire procedure of their courts, whether they like it or not. Senator Gogarty asked me for an example of a matter in which the independence of the Judges would be interfered with by these rules. I will give him one, one which the Government seeks to put within the purview of the rule-making authority, and that is the liability of persons as to costs. That is a matter which affects every citizen. Yet the right to decide the liability of costs is to be given to the rule-making authority, and is to be taken from the judges, who have had it so far, and who ought to retain it in the future. Surely that is a matter interfering with the independence of the Judges. As I said before, my whole struggle in this matter is that the rules should be put through both Houses. If that is secured I do not care how these rules come into being.
The next is a Government amendment:
Section 35. To insert after the word "generally," in line 54, the words "(including the entering-up of judgment and the granting of summary judgment in appropriate cases)."
It may be observed that later it is proposed to delete Section 56. Representations were made to me by various people connected with commerce, the Dublin Chamber of Commerce, the Mercantile Association, and so on, that we had not provided sufficiently for this form of summary judgment through the various Courts. This provides that judgment may be entered up in default of defence in the office and that summary judgment on affidavit may be granted in each of the Courts.
The next amendment, No. 12 on the Order Paper, has already been provided for.
That is quite so.
I am satisfied with the Government amendment, and so I shall not move No. 13 on the Order Paper.
I move: "In Section 39, line 53, to delete all from the words ‘But the Executive' to the end of the Section."
We accept that. That is to say, the power of extension is to be deleted.
I shall not move amendment 15, standing in my name. I am satisfied with the Government's undertaking, and I thank the President.
The following amendment stood in the name of Senator Haughton:
Section 42. To add at the end of the Section the words "Provided that, where under the provisions of this Section a Recorder or County Court Judge in Ireland is appointed a judge of the Circuit Court, such person shall receive a salary not less than his existing salary, and his appointment as judge of the Circuit Court shall not prejudice any right of retirement or pension on retirement which he would have enjoyed if he had not been so appointed."
This has been provided for.
I think, Senator Haughton, you have the same security with regard to those judges as you have with regard to the others.
The next is a Government amendment:—
"In Section 43. Immediately before Section 43 to insert a new Section as follows:—
43.—So far as may be practicable having regard to all relevant circumstances, the Circuit Judge assigned to any Circuit which includes a district where the Irish language is in general use shall possess such a knowledge of the Irish language as would enable him to dispense with the assistance of an interpreter when evidence is given in that language."
This is to meet the point raised by Senator Kenny. He is withdrawing No. 15 and accepting our amendment.
I move: To delete Section 44 and to substitute the following new Section therefor:—
"It shall be lawful for the Governor-General, on the advice of the Executive Council, at any time before the expiration of six months from the date of the passing of this Act, to appoint as Assistant Circuit Judges persons possessing the qualifications by this Act prescribed for Circuit Judges, provided that every such appointment shall be for a definite period not exceeding in any case three years. Any persons so appointed shall be paid on the same scale as is herein provided in the case of Circuit Judges."
This was the case of the temporary judges, where the President undertook to limit the action of the clause to three years. The words which I wish to draw attention to are "on such terms and conditions as the Minister for Home Affairs with the concurrence of the Minister for Finance may determine." The whole point between the Government amendment and mine comes into the following words: "It shall be lawful to appoint as assistant Circuit Judges persons possessing the qualifications by this Act prescribed for Circuit Judges, provided that every such appointment shall be for a definite period not exceeding in any case three years. Any person so appointed shall be paid on the same scale as is herein provided in the case of the Circuit Judges." The House will see that the difference between the two amendments is that the appointment and the terms and conditions of the employment of judges by my amendment are taken out of the charge of the Minister. That is following out the same line of argument that we have adopted in all cases in regard to the Judges, and in practically every case, except, of course, on the Rules, the Government have met us. I think that they should leave these temporary Circuit Judges free in every way from any possible imputation of being under Government control, probably more than other Judges mentioned in the Bill. They should get no worse terms than the Circuit Judges. They are to act as Circuit Judges; their judgments must have a certain weight, and I think it is eminently desirable that they should be paid on the same scale and that the terms of their employment and remuneration should not depend on the Minister, even if their appointment be only for three years. I daresay the Government will treat them quite reasonably, but I think, in fairness to the temporary Judges themselves, it would be far better if they were treated like the other Judges, put on as Circuit Judges and paid as Circuit Judges, as the Bill specifies.
I think that even here again—I suppose the House will be getting tired of the word "Constitution"—it is in the Constitution that the Judges shall be paid, and the terms of their appointments shall be as the Oireachtas lays down. These particular Judges are to be taken out of this category. I do not think that the gain to be made is worth the sacrifices to be made by these Judges. I would ask the Government to look into it.
I think, Sir, that the Senator may possibly be looking at it from an entirely different angle to ours. Let us say we require a Circuit Judge for three months. Is the Senator's proposal that we would be limited to paying him at the rate of £1,700 a year? It is quite possible that he would be willing to take it. It is quite possible that if we were to have a position like this for which we would require a man during twelve months, we might get him for £1,500. On the other hand, the same man might not take three months' tenure of office for the same proportion, and I do think that it would be much better if it were left to our discretion, rather than that we should be bound to the other thing. If the position were to last for a month only, I hesitate to think that one would give a man suitable to the position a one-twelfth of £1,700.
I hardly think that if there was a question of a month only the Government would appoint a man. I do not think the Government are the least likely to appoint a temporary Judge, unless they can give him at least a year's employment, and if he is qualified to do Circuit Judge's work he ought to be paid as a Circuit Judge. I rather think if any of us in ordinary life were looking for a man to fill such an important place as that, and had to make him give up his ordinary work and take it on for only a year, we would have to pay him a good deal more. Of course, he would have no pension rights, or anything of that sort, and I doubt if the Government are wise in implying that they are going to hawk this job about for the man that they can get to do it most cheaply when really there are only a few temporary Judges to be employed. Saving must be considered, but when we are dealing with such a man, before whom such important cases would be tried, I think, talking as an ordinary business man, that it is false economy to treat these Judges in a way in which other Judges would not be treated. You bring it down to a matter of pounds, shillings and pence, and I really think that it would be better to give these men the standing and the pay of Judges. I am sure you will not employ them if it is only a question of a month or two months, but that there will be at least a year's work for any of them. This amendment gives the Government six months more than the Bill, because I take it for granted that certainly some months would pass before the Government would know whether they wanted these Judges or not. They have six months in which to make up their minds.
I take it that there is a further infirmity in Senator Jameson's amendment: "the Executive Council at any time before the expiration of six months from the date of the passing of this Act to appoint," so that if we do not appoint within six months we could not appoint at all. In our amendment we are taking power to do so at any time within three years. The Senator takes exception to my statement that we would not appoint a man for one, two, or three months. If representations are made to us that in any county or county borough, the Circuit Judge is unable to dispose of a large number of claims for compensation before him, obviously it would be our duty, in order to get those out of the way, and to do justice to the people who have suffered injury, to afford him somebody for three months to deal with these arrears, even for a period of three months. If I were to accept Senator Jameson's amendment it is possible you would not get them on the same scale. You might easily get a Circuit Judge if you take him on for two years at £1,500. You certainly would not get a Circuit Judge for one-fourth of £1,700 for three months, in those cases, and I think the Seanad might be satisfied that we are not going to be too severe, while at the same time having due regard to the public purse.
The Government have accepted the real principle for which I was fighting, and I do not think it would be fair to divide the House on a question of this kind. There is a difference of opinion between the President and myself. He thinks one thing and I think another, but he is probably in a far and away better position to judge on the matter.
This is a Government amendment:
Section 44, line 36. To delete the words "In case" and to substitute therefor the words "Whenever within three years after the commencement of this Part of this Act," and to add at the end of the Section the words "Provided also that no temporary Assistant Circuit Judge appointed under this Section shall continue to hold office after the expiration of three years from the commencement of this Part of this Act."
I move:
In Section 46, page 11, to delete lines 54-56 inclusive and to substitute therefor the following:—
"(ii.) (a) In contract and tort (save matrimonial and criminal conversation actions) jurisdiction when the claim does not exceed £100.
(b) In contract and tort (save matrimonial and criminal conversation actions) when the parties to the action reside in the same county, and the claim does not exceed £300."
This is a Section we debated at some length when we were discussing the Bill last. If Senators will look at the districts of the Judges in the Schedule they will see that there are enormous districts covered by the Circuit Judges. Take, for instance, No. 6, which includes Louth, Meath, Kildare, Wicklow and Wexford. If a man in Louth has an action against someone in Wexford, or vice versa, one party at any rate will have to go through Dublin to have the case tried. In Section No. 5, Sligo, Roscommon, Westmeath, Leix, Offaly and Longford, the parties will have to travel immense distances, and in a great many cases come through Dublin. Then again, if you take Donegal, Leitrim, Cavan and Monaghan, a great deal of travelling has to be done. If you could have the Section drawn so that in every case where it is a matter of only £100 it is to be tried in the Circuit Court, and if you could have it as I propose, where the parties reside in the same county and the claim runs up to £300, then undoubtedly you will be giving the convenience to everybody. There is another point in this: Suppose they do not reside in the same county, Section 24 gives the High Court the right to send the case down in all cases where it may appear suitable and convenient, on such terms and on such conditions as may appear to be just. However, in a case of £300, where the plaintiff lives, say, in Louth, and the defendant in Wexford, the case, under my amendment, would go to the High Court. If it was argued that it was convenient for the individual in Louth to go down to Wexford, and the Judge agreed, it could be tried in Wexford or Louth, as the case may be; but if it happened to be that both parties said Dublin would suit them far better, they would have it tried in Dublin. But the Bill as it stands gives the litigants no chance of making such an arrangement, as far as I know—perhaps the Attorney-General may say it does—but I would like to hear from him whether in the case of those large districts under the Circuit Judges litigants who lived at the far end of these circuits would have any chance of appealing to the High Court, and getting their cases tried in Dublin if they wanted to, or whether if, as the Bill stands, they would have cases up to £300 tried in the Circuit Court, with all the inconvenience it means. The amendment is to limit the unlimited jurisdiction of Circuit Courts to cases of £100, and in cases of £300 to let anybody who resides in the same county use the Circuit Court. In cases of £300 where it suits the litigant it should come before the High Court to see where it ought to be tried, and if convenient it should be remitted to the Circuit Court, that the convenience of the parties should be settled in that way, and that they should not be all compelled to go to the Circuit Court, where it might cause extreme inconvenience.
I second the amendment. I may say that when the question of the £300 jurisdiction was before the House when the Bill was in Committee, I drew attention to the fact that there had been a good deal of change of opinion in the country as to the advisability of having so large a jurisdiction as £300 in all the Circuit Courts. This amendment seems to me greatly to improve the Bill. I am not entirely in favour of £100. I think even if it went up to £150 it would not harm the Bill, but the amendment has this advantage that it gives you a £300 jurisdiction in the case of persons to whom it is convenient and valuable, that is, persons living in the same county, whereas it allows a plaintiff who lives far apart from a defendant to sue in Dublin if he likes. Then if the High Court thinks that the venue in Dublin is not convenient it has power, on the application of the other side, to change the venue to the more convenient court. You will get the advantage in both cases if you adopt this amendment.
Of course it will be remembered that the figure of £300 as a limit of Circuit Court jurisdiction was really a compromise. Many people were in favour of the Scotch system, which gives unlimited local jurisdiction. Many people still urge upon me that there should be unlimited local jurisdiction. Others favoured a much higher limit than £300, and this figure is a compromise figure which was arrived at and recommended by the Committee, and is fundamental in the policy of this Bill. But there are reliefs in the Bill as it stands. First of all, anyone may commence an action in Dublin; secondly, he may, if an action is commenced locally, apply to have it transferred. There was some suggestion here in the Committee Stage of substituting the plaintiff's venue. During the past week I have had the advantage of meeting representatives of the Dublin Chamber of Commerce and of the Mercantile Association, and I have discussed this matter very fully with them. The result of that discussion is that Amendment 22 represents an agreed view that was come to at that meeting to allow the venue where the contract was made, at the election of a plaintiff, to be chosen. Of course it is really people interested in contracts who have agitated this question. I believe that both these deputations were quite satisfied with that proposal and expressed themselves so to me.
Amendment 22 reads:
If the plaintiff so elects, in any action founded on contract, whether the claim be to enforce, rescind, dissolve or annul the contract, or for damages or other relief for the breach thereof, by the judge for the time being assigned to the Circuits within which the contract was made.
If Senator Jameson could meet any of the people who were concerned in those deputations I think he would find that they agree that that amendment really met the position from their point of view.
The trouble is that I only heard about that amendment yesterday evening. I am quite unable to give any opinion on it as I have not had an opportunity of finding out whether it meets the case or not. It is really difficult to carry on a debate on the Bill when a Government amendment is only handed to Senators the evening before, after one's own amendments have been put down. I have had no chance of knowing whether this amendment meets the case or not. Could the amendment be left over in order to let Senators see if it meets the case? If it meets my point I have nothing more to say.
The two things are quite different. They are on different principles. Senator Jameson wants to limit the Circuit Court jurisdiction, in cases where the claim is over £100 but does not exceed £300, to cases between parties living in the same county. The Government have approached the thing from a different point of view. They have put down amendment No. 22, by which they enable the plaintiff in all cases of contract, whatever the claim arising out of it may be, to select as a venue, not necessarily the place in which the defendant resides, but the place in which the contract was made. That is, of course, a different principle.
The Attorney-General suggests that I should consult with my friends in the Chamber of Commerce and see if they are satisfied with this amendment. I merely ask for time to do that.
I was not exactly suggesting that. I was saying that I met this deputation by arrangement and they expressed themselves to me as satisfied with this proposal as an alternative to what had been put up here—the plaintiff's venue; that this met whatever hardship they thought might be imposed on commercial people. I wish to say this with reference to what Senator Brown has said about a change of opinion in the country. During the week I also received a deputation from the Provincial Solicitors' Association—most representative men—and they assured me that this principle of local jurisdiction and the trial of substantial actions locally was heartily approved of throughout the country by the profession and by the people, and that there has been, if anything, a stronger view in favour of the proposal.
Is there any objection to this matter standing over until to-morrow, both Senator Jameson's amendment and the Government's amendment No. 22?
I have none.
Consideration of amendment postponed, together with amendment No. 22.
I beg to move:
Section 46, page 12, line 5. To delete the words "including winding-up of companies."
On the Committee Stage I moved the deletion of these words. The reasons I gave were that the winding-up of companies was considered to be a very technical and difficult proceeding in the Courts. I believe that is so. I am told that under the present law the winding-up of companies can only take place in Dublin. There are no powers to wind up companies in the other Courts. I would also think it wise to look at it from another point of view, that of economy. If the Government intend to have a staff for the winding-up of companies in every Circuit Court that would certainly add very considerably to the cost of those Courts. It will mean that each Court will have to be supplied with technical experts for this particular purpose. If, as hitherto, these cases were reserved for trial in Dublin the Government would save considerably in the expense.
I beg to second.
This matter was discussed in Committee, and I thought had been disposed of. As to the difficulty that Senator Guinness appears to have, I may say that there is no special expert staff in the High Court for dealing with companies. The staff is the ordinary administrative accounting staff that deals with the administration of estates and with all other matters of accountancy. Through the country in connection with the County Courts there are people who administer estates. I hope there will be more expert people in future in connection with the Circuit Courts. But it is purely a matter of accountancy, administration, marshalling debts, and so on, on the same lines more or less as taking accounts in connection with estates of deceased persons. It will have this advantage. You have in places like Cork, Dundalk and Limerick fully qualified accountants, and there seems no reason why they should not be able to deal with these matters locally just as Dublin accountants have hitherto had matters in their hands. This will give a share of this business throughout the country to local auditors and accountants. If any difficult question of law arises—and it is very difficult now for such a question to arise, as they have now nearly all been settled and comprehensively dealt with by the Companies Act of 1908—it can be disposed of in Dublin either on an appeal from the Circuit Judge or taken there in the first instance. The ordinary winding-up of a company is a matter of accountancy and administration and does not require a specialised or separate staff. It has not got it in the High Courts.
It is not a question of a separate or special staff connected with the court that is required in winding-up companies. The person whose functions are so important in winding-up companies, even when that is done by order of the court, is the liquidator. He does it practically all out of court, although the order for winding-up was made in court. All the real work is done by the liquidator, who ought to be a person who knows Company law and the practice of winding-up companies. I am afraid you would never get that in the country. The winding-up of a company is a technical matter, and outside Dublin, except Cork, you will not find people with the necessary qualifications.
I think there are a number of highly qualified persons capable of acting as liquidators in Cork, Limerick, Dundalk and elsewhere.
The Government apparently is quite prepared to pay the expense. I was advised that it would add considerably to the cost of the Bill, but if they shoulder it I am satisfied.
I move:
Immediately before Section 56 to insert a new Section 56 as follows:—
"56.—A Circuit Judge shall have the same powers for procuring the attendance of witnesses in the Circuit Courts as a judge of the High Court of Justice in Ireland formerly exercised for procuring the attendance of witnesses in the High Court. That part of Section 52 of 27 and 28 Victoria, Chapter 99, from and including the words ‘not to exceed' to the end of the Section is hereby repealed."
I beg to second. The object of the amendment is to give the Circuit Judge the same powers for procuring the attendance of witnesses in Circuit Courts as a Judge of the High Courts has. At present in the County Court the County Court Judge has no power to procure the attendance of witnesses by subpæna. A summons is issued from the Court, and the only remedy, if the witness does not attend, is for the plaintiff or the defendant, or whichever party issues the summons, to sue the recalcitrant witness and get damages against him, not exceeding £5. That is a most inconvenient mode of procedure, but there does not seem to be any way of procuring the attendance of witnesses in a Circuit Court under this Bill. The object is to give the same power to make the witness attend as the High Court Judges have. I do not think you could do it by rule. This is a matter for legislation. I suggest to the Attorney-General that this is a useful amendment to his Bill.
The first part of the amendment is, I think, proper, and one that we would require. The second part is unnecessary, as the Section it proposes to deal with deals only with the limitation of the powers of a County Court Judge as regards awarding witnesses' expenses. Of course the County Court Judges are abolished by this Bill, so that the second part is unnecessary.
I agree.
The amendment, then, stops at High Court.
I agree.
I move: Section 56—to delete the Section. This Section deals with default cases and with Circuit Court judgments. The purpose of the amendment is to enable the same thing to be done in a better way. The Government has put down amendments providing that the rules shall make provision for entering up judgments as in the High Courts and for the granting of summary judgment as in the High Courts. I agreed with the various interests that were with me during the week, that that provision should be made. It is, I think, a proper provision. In the Dáil, I think, a similar undertaking was given, that where people are not defending, facilities for entering judgment, and getting summary judgment on affidavit, will be given. This deletion is for the purpose of introducing an express provision in respect of each of the courts. In each case it is a Government amendment for that purpose.
Your amendment No. 25 goes, Senator Brown?
Yes. The next amendment which I propose is:—
"In Section 58. To delete the Section and to substitute the following new Section therefor:—
"58.—Any Decree or Order of the Circuit Court may be enforced in any part of Saorstát Eireann in any of the modes in which a Decree or Order of a Recorder or County Court Judge might heretofore have been enforced within the jurisdiction of such Recorder or County Court Judge."
I think that that is not intended to be in substitution for the whole Section, but for that part of it beginning on line 10. The Section, as it stands, reads as follows:—"The rules to be made under this Part of this Act shall provide for the service of all originating or other documents or notices both inside and outside the circuit of the Judge before whom the matter is pending, and for the enforcement of any judgment or order of the Circuit Court by any process, appropriate to the particular case against the person or property of any person amenable thereto in any part of Saorstát Eireann." What I intended was to strike out the words from "and for the enforcement" to the end. That was giving to the rule-making authorities, power practically to enact a Sheriff's Act, and that power I respectfully submit ought not to be given to the rule-making authority. I propose to substitute my amendment for that part of the Section. It simply gives to a Circuit Judge all over Saorstát Eireann the same power to have decrees enforced as a County Court Judge had originally who was limited to his own county.
I beg to second the amendment.
I submit that this amendment is somewhat objectionable. The Circuit Court is constituted as a single Court for the whole country. It is not that there are eight Circuit Courts, but rather one Circuit Court with eight Judges. The object was to get over the old County Courts Judges' position in which you had a County Court Judge within his county, issuing decrees incapable of running outside it. The original Section provided that rules fulfilling that character of the Circuit Court should be made providing for documents of proceedings being circulated, and the enforcement of judgment equally over the country, as formerly in the case of a High Court. The amendment inflicts on the Circuit Court the status, as it were, of the County Court, and has that weakness to begin with. I think there are restrictions on the execution of County Court decrees which, if the Senator examines, he would not care to have applied. What was desired to be done was that the decree or order of the Circuit Court shall operate anywhere in the country in the same way as that of the High Court. I think the amendment does not achieve that object.
I would agree to have the amendment altered so as to make the decree of the Circuit Court exactly the same as the High Court decree. I think it should be in the Act, and not left to the rule-making authority.
What is the change you desire to have made?
To leave out all words from "a decree" to the end.
This Section, as it stands, enacts in substantive law that these things shall be enforceable, and provides that rules shall regulate how things are to be done. I do not see the necessity for this amendment. Those kinds of amendments are sometimes dangerous. I fail to see any reason why we should cut out a provision which enables documents by which proceedings should be carried out to be circulated in whatever part of the country that may be necessary. So far as legislation is concerned, it is contained in the Section, which is the Section of an Act, and provides that effect should be given to those principles by rules.
Could the matter be held over until to-morrow? We will not finish the matter to-night.
If Senator Brown would like the matter to be left over until to-morrow, I do not think the Attorney-General will object.
The principle is enacted in the Section.
Further discussion of the amendment was deferred.
Amendment 28 is the same as the Government's amendment. I am willing to accept the Government's amendment.
The next amendment is a Government amendment:—In Section 59. To add at the end of the Section the words:
"The appeal under this Section shall be on law and fact, save that where the appeal from the exercise by the County Court of any particular statutory jurisdiction transferred by this Act to the Circuit Court is expressly or by implication limited by statute to an appeal on question of law, the appeal from the exercise of that jurisdiction by the Circuit Court shall be similarly limited."
This was inserted in pursuance of an undertaking given by the Government.
Might I suggest to the Government that it would be better to put in the words "and of fact"?
That would make it like a bill of lading.
You might insert "shall be on law or fact, or upon either." There would be some sense in that.
Does not the latter part conflict with that interpretation?
No.
I am prepared to accept that.
I do not think it can be any harm to anyone, nor can it be of the slightest good.
I think it is better to adjourn further consideration of the Bill until to-morrow.
Agreed.
May I raise a question on the adjournment?
As you did not make that application early, you are outside the rule.
