This is a very comprehensive measure, and I think it would tend to its more useful discussion and facilitate its going through, if the Minister would give us an outline of its details.
COURT OFFICERS BILL, 1926—SECOND STAGE.
Question proposed—"That the Bill be now read a second time."
I suppose I should assume that Senators followed, in outline at least, the discussions in the Dáil on this Bill, but certain amendments were made in the Committee and Report Stages in the Dáil. In view of that it might be of assistance to the Seanad in considering the Bill if I made a statement tracing, in outline at least, the main provisions. The basic idea of this Bill, as I see it, is to supplement the Courts of Justice Act, 1924, by providing the machinery of the new courts, and in doing so, not merely to give the old machinery a new name but to scrap any part of the old machinery which is now useless and to make necessary alterations. One point I would ask Senators to keep in mind in discussing this Bill is that as regards the actual personnel of the Courts staff there is not going to be any sudden drastic change. The men who were appointed to positions in the courts under the old systems are not going to be compulsorily discharged, nor are their emoluments going to be curtailed even as regards appointments which were made by a system of unrestricted patronage and to which salaries were attached which in our opinion are too high. No man under the age limit who is fit for work and for whom work can be found will be told to go, and no man who is re-employed will suffer a loss of salary.
I would like to make one small reservation in that latter statement. That is in connection with the position of the County Registrar, which will roughly correspond to the present position of Clerk of the Crown and Peace. We will pay to no registrar more than £1,200 per annum plus cost of living bonus. That would work out at a total of £1,450. There would be a maximum of £1,450. That limitation, however, will not affect more than three or four of the existing Clerks of the Crown and Peace, and in fact and in practice I doubt if it will affect that number, because so far as I can learn some of these three or four officers are not inclined to accept service as county registrars even if their present salaries are guaranteed. Their position is, of course, that they see under Article 10 of the Treaty that they can secure a handsome pension, and they prefer to take that pension rather than to go on working for perhaps a few hundred a year more. That is, perhaps, an unfortunate position. It may be regarded as an unfair drain on the pockets of the taxpayers, but there is no remedy for it. Article 10 of the Treaty, with its other Articles, has been accepted by us. The Courts of Justice Act has been passed by us, and this position is a necessary consequence of Article 10 of the Treaty and the Courts of Justice Act.
With regard to the future staffing of the several court offices, it might be, perhaps, well if I began with the District Court and worked up through the Circuit Court to the High Court and Supreme Court. The District Court is a simple matter. The Bill (Sections 44, 45 and 46) really only gives permanence to the existing temporary arrangements. In Dublin, there is a regular District Court office, formerly known to the public as the Dublin Metropolitan Police Court Office, with a chief clerk and a staff—about ten in all. This office is of old standing and has been run on Civil Service lines, i.e., open competitive examination, promotion by merit, retirement at 65, and Civil Service pensions, for many years. It was not interfered with when the petty sessions clerks were disbanded and this Bill leaves it just as it stands. No difficulties arise there; the work is being well done, and, with a couple of exceptions, the men there have shown no desire to retire under Article 10 of the Treaty. In Cork there is an office with a chief clerk and two assistants. At Waterford there is a full-time clerk and an assistant, but these two men are also responsible for some courts outside the city of Waterford. In no other case does the District Court staff in any one town consist of more than one man; in fact, on the contrary, most District Court clerks serve the court at more than one place. There are about 160 clerks and about twice that number of places at which courts are held.
The volume of work of these clerks naturally varies enormously. There are clerks who are whole-time officers and busy at that, working as many as seven or more courts. There are clerks with only one court, sitting monthly, whose whole yearly work, if packed together, would not take an efficient clerk a month to do. In all cases, one gross, inclusive, salary is paid. There is no cost-of-living bonus and no separate payment for travelling expenses— sometimes a very heavy item. This inclusive salary varies from a maximum of £600, paid in one case only, corresponding roughly to an ordinary Civil Service salary of £300 or £350, to a salary of £40 per annum. Excluding the staff at Dublin, all the other District Court Clerks, to the number of a little over 160, were appointed since the Saorstát Government came into existence. They replaced the petty sessions clerks, who were disbanded on 31st December, 1922. A very few—six or seven—petty sessions clerks were re-employed. It is to one of these that the largest salary, mentioned above, is paid. All the other appointees were new men; the majority of them had been connected with the Dáil Eireann Courts or, if not, then with some other aspect of the movement which resulted in the setting up of the Saorstát. When these men were appointed, the Civil Service Regulation Act was not in existence and these men were appointed by me—about one hundred and fifty of them—on my own responsibility, and naturally not without advice or suggestions, sometimes on very strong suggestions indeed, and sometimes against very strong suggestions.
The appointments made by me were, naturally, in the circumstances, temporary, in the sense that they conferred no pension rights. I need not tell the Seanad that to run the District Court on this almost entirely untrained staff was not an easy proposition for the justices or for my own Department. It would have been altogether impossible but that simultaneously the voluntary lay magistrates were replaced by men with legal qualifications and experience. On the whole, the clerks have justified their selection. We have had perhaps a dozen dismissals, and we have about the same number of men on the last stages of probation, but, speaking generally, these men fitted rapidly into their new posts and are giving no trouble. For some time past vacancies in the district court clerk service have been filled by an arrangement with the Civil Service Commissioners. We advertise the vacancy, put all applicants through a qualifying examination, and from those who qualify the Civil Service Commissioners, with the advice of a selection board, pick out the most suitable man. The appointment is nominally made by me. In fact, I merely assent to the appointment of a man whom the Commissioners present to me. As I have already stated, the present Bill makes no change in this system. There are about 160 of those clerks, and the average gross inclusive salary is £200 per annum.
There was formerly a department charged with the general supervision and control of petty sessions clerks. This department had a registrar, who was a fairly well-paid official, a senior clerk, a chief clerk, two inspectors and a general clerical staff. The clerks accounted to this department for the fines and fees collected by them every quarter, and the registrar paid the clerks' salaries, and his own salary, and the salaries of his headquarter staff, out of a fund which was under his control and into which was paid the produce of the fines and fees of the District Court. All the former officials of this supervising department, except one, have died or resigned or gone to the corresponding North of Ireland office. The work of supervision and payment of salaries is now done in my Department, but in law there is still a separate department of the Registrar of District Court Clerks and there is still, both in law and in fact, a separate fund. Sections 47, 48 and 49 of the Bill provide for the dissolution of this separate office and this separate fund. Section 49 has, however, other implications also, to which I shall refer later on.
I now come to the Circuit Court. The Circuit Court is at present being run by the old County Court machinery, which was, in one word, the Clerk of the Crown and Peace. There are twenty-seven Clerks of the Crown and Peace, one for each of the twenty-six counties, except Cork which has two, as Cork was formerly divided for County Court purposes into two parts —the West Riding and the East Riding, including the city. These officers received assistance in two ways. There was an officer called the registrar to the Civil Bill Court who was expected to do some of the work which would otherwise have fallen on the Clerk of the Crown and Peace, and the Clerk of the Crown and Peace received from the State an allowance towards the cost of clerical assistance in his office. As regards the registrar to the Civil Bill Court, this officer was appointed by the County Court Judge and was frequently a friend or a relative of that judge. His duties were never very well defined; some judges and some Clerks of the Crown and Peace expected the registrar to do solid work, but I think that this was the exception. The remuneration was at the rate of £2 2s. per day. The registrar went out of office with the death or resignation of his judge. He had no pensionable rights. It seems to be generally agreed, both by the Clerks of the Crown and Peace and by the departmental side that the office of registrar to the Civil Bill Court should not be preserved, and we propose in this present Bill to amalgamate the duties of that office with the new office of County Registrar. That proposal appears in Section 6, sub-section (1). As regards the second kind of assistance to which I have referred above,—the money allowance towards cost of staff—this allowance varied from £1,100 per annum downwards, and was calculated on the basis of the Clerk of the Crown and Peace himself doing a full day's work in the office.
In addition to running the county court office the clerk of the Crown and Peace acted also generally as
(a) Registration officer in connection with the lists of Parliamentary and Local Government voters;
(b) Compiler of the Jurors' Lists and Jurors' Book, and
(c) Local Registration of Title Officer under the Local Registration of Title Act, 1891. But in Dublin, Monaghan, Leix and Waterford the Clerk of the Crown and Peace is not the Local Registration of Title Officer; in those counties there is a separate functionary for that purpose.
The Clerk of the Crown and Peace was appointed by the Lord Lieutenant; he might be removed by the Lord Chancellor for misconduct or incapacity; if not removed he remained in office until he died or voluntarily resigned. Solicitors of six years' standing were eligible for the office. This officer's emoluments were made up partly of salaries and partly of fees. He received a salary as Clerk of the Crown and Peace; a separate salary as Registration Officer (i.e., for compiling franchise lists), and the third salary as Local Registrar of Title; latterly he received cost-of-living bonus on these salaries, but the amount of bonus was in most cases relatively small as it is on all the larger Civil Service salaries. The salaries varied very much as between the smallest and the biggest county, and so naturally did the fees. It is difficult to name exact figures where fees are concerned, but I think I am right in saying that the worst-paid Clerk of the Crown and Peace had a net income of over £1,000, and that at least three of the best-paid had a gross income of over £2,000, possibly one exceeded £2,300.
We propose to substitute for this officer a new officer to be called the County Registrar, who will do all the work of the old officer and any other work which may, from time to time, be thrown on him, for one fixed salary. He will be appointed and, if necessary, removed by the Executive Council, and he will automatically vacate office at the age of 65, but power is taken to extend service in individual cases to 70.
The salaries payable will, like all Civil Service salaries, be fixed by the head of the Department, that is, in the present case by the Minister for Justice, with the sanction of the Minister for Finance. The salaries which we contemplate paying in the regular way will vary at the present cost of living from about £900 inclusive to £1,200 inclusive, according to the size of the county, but in the case of any existing Clerk of the Crown and Peace who is offered and accepts re-employment as county registrar we will not in general reduce the existing salary. I say "in general" because some of these salaries are so high that we are not prepared to allow them to stand, and we have fixed £1,200 per annum plus bonus, that is at the present rate about £1,450, as the highest salary which we will pay to any county registrar even as an inducement to a Clerk of the Crown and Peace to continue in our service. The county registrar will surrender to the Exchequer all fees which represent additional emoluments to himself or to his staff; on the other hand, we will relieve the county registrar of all responsibility as regards staff.
As regards the existing employees of Clerks of the Crown and Peace, these men are part, and the most serious part, of the problem of temporary staff in court offices. I should like to say that I am impressed with the long and faithful service which many of these men have given, frequently at a rather poor salary, and I think that their claim to be established and to be given pensionable rights is difficult to resist. Under Section 60 we ask for power to present these men to the Civil Service Commissioners for establishment and to pay a gratuity, in lieu of pension, to such as by reason of age, or for any other reason, cannot be established. I should perhaps explain that men are never established unless they are in good health and have at least ten more years to serve before retirement; under the Superannuation Act ten years is the minimum service for pension.
I now come to the staff of the High Court of Justice. There are in the High Court of Justice a considerable number of temporary employees, to some of whom the remarks which I have just made as regards the staffs of the Clerks of the Crown and Peace apply equally. I find, in fact, that at the time when the change of Government occurred in this country the British Treasury was on the point of establishing some members of the staff attached to the Official Assignee in Bankruptcy in the High Court. To these men the remarks which I have just made, as regards the application of Section 60, apply equally as to the men in the Crown and Peace offices. As regards the permanent staff the position, broadly, is that almost all the existing officers are not, strictly speaking, officers of our High Court of Justice at all: they are officers appointed definitely, and on a definite tenure, to the Supreme Court of Judicature, which was abolished by our Courts of Justice Act, 1924. By Section 102 of that Act, however, all registrars, clerks and other officers attached to the then Supreme Court of Judicature or to the Lord Chief Justice were to continue to hold office by the same tenure as heretofore and to discharge the duties heretofore discharged by them, or duties analogous thereto, unless and until otherwise determined by the Oireachtas. This arrangement, while obviously open to objection, has worked in practice quite well during the eighteen months which have passed since the abolition of the old Supreme Court.
It may be asked, therefore, why we should not let things go on as they stand. There are several good answers to that question. The officers themselves, or at least a number of them, are naturally anxious to know where they stand: their present position is neither fish nor flesh. Again, these officers could only be removed for stated reasons and with the consent of the Lord Chancellor. There was no age limit; several of the existing officers are long past the highest retiring age allowed in the Civil Service: that is not a state of affairs which we want to see perpetuated. Again, the present staffing is a survival of the time when every judge of the Supreme Court of Judicature was, for staffing purposes, a court to himself: the officers were appointed for certain definite purposes and in connection with certain definite courts only: there was no flexibility or interchangeability.
Again, the present staffing is extravagant; it is not so extravagant, in the total, as it was some years ago, because if we have not been able to do anything else we have at least been able to control new appointments and promotions, but still there are more than twelve posts the holders of which draw £1,000 a year or over. Again, the present staffing is based on the idea that every post which is really worth having is to be the gift of the judge, and while there have been several gratifying exceptions—e.g., the two present chief clerks in the Chancery offices, who were promoted on merit—the rule has been that when any post worth £500 a year or over, and sometimes even lesser posts, fell vacant they were filled by judicial patronage that became stereotyped and sanctified by time.
You should have sent in Commissioners there.
We have determined to make a clean break in this system. Of all the posts in the new High Court we see only two which must necessarily be filled by the appointment of a person from outside the court staff proper. These two are the Master and the Taxing Master. Even in these two cases it is quite possible that it might, from time to time, be found possible to promote a member of the ordinary court staff, but we have thought it proper to draw the line firmly and definitely in those two cases (Sections 21 and 22). In one other case—the Registrar to the Chief Justice—we have limited the appointment to court officers who have long experience and who have been called to the Bar, and we have provided for the contingency of such men not being available and for the appointment in that event of an outside barrister. Otherwise we have left all posts open to the rank and file by promotion. It is hardly necessary for me to point out that this decision gives to the ordinary officer of the courts a clear line of promotion which he never before had, and we think that this improved prospect will more than compensate him for the inevitable reduction in the number and value of the higher posts.
We have been pressed in the other House, on the one hand, to close more posts to the rank and file (e.g. the post of Examiner and the post of Probate Officer), and, on the other hand, to do quite the opposite—to open all the posts to the rank and file. We have considered the arguments advanced on both sides and we have decided to stick to our present via media.
Again, we have decided that the staff of the High Court shall be employed on the same terms and conditions as the staff of any other Government Department in the State, save that as a propitiatory offering to those who are afraid of executive interference with judicial independence we propose to seek judicial consent before dismissing any principal officer, if, unhappily, that contingency should ever arise. There is no reason, as far as I can see, why a clerk in the High Court who enters by open competitive examination and who receives a full salary from the State should have any privileges over and above the privileges common to civil servants generally. There is certainly no reason why he should remain in office indefinitely irrespective of age or efficiency, and there is no reason why he should not do a full day's work if it is there for him to do.
Apart from the question of the tenure, salary and hours of the individual clerk, we propose to reconstruct the High Court offices on the principle of creating by Statute as few separate offices as possible. Certain officers and certain offices must so clearly have a separate existence and must so necessarily be referred to by name in the Rules of Court that we have given them here a separate name and a statutory origin.
These offices are:—
1. The Taxing Master's Office.
2. The Examiner's Office.
3. The Probate Office.
4. The Bankruptcy Office.
5. The Accountant's Office.
Every one of these offices has a clear-cut homogeneous mass of work to do. Everything else that is required to be done, from the issue of the initiating writ to the marking judgment, will be done in the only other office, which we propose to create—what I may call the "residuary" office, viz.:—6. The Central Office.
To anybody who is at all familiar with High Court procedure (as many members of the Seanad are—some in a very expert way) these names will explain themselves, and in the Bill will be found a section dealing with each office and describing the work to be performed therein. Probate and Bankruptcy are, I take it, entirely self-explanatory. The Taxing Office is, of course, the office where the costs which are to be allowed are settled, and the persons who do this work must necessarily be persons who enjoyed a good practice as solicitors; no other man can really be expected to know the intricacies of cost drawing or to have the necessary experience and authority to tell a fellow solicitor, if and whenever it is necessary, that his costs are excessive and must be reduced. I may perhaps add that there are at present three Taxing Masters. Two will certainly be enough for the Saorstát.
In that connection I would like to say that we are making special provision by way of an extension of the age limit for any of the three existing taxing masters. The three men at present serving in that capacity are giving entire satisfaction to the public in their work there and enjoy the confidence and the good-will of the practising profession. I do not know whether all three would desire to remain on or not, but two at least are in good health and vigorous and capable of giving continued service to the public and the third officer, the senior taxing master, if he wishes to remain on and avail of the extended age limit will most certainly not be interfered with by us.
The Examiner's Office is a new name, but it represents merely an amalgamation of the two existing offices of the two chief clerks in Chancery and also of the small volume of business of much the same character as Chancery business remaining in the old Land Judge's Office. It may perhaps be worth while that I should endeavour to explain the object of this office (the Examiner's Office) in very few and simple words. Speaking in the broadest way, the business that comes before the High Court falls into two great divisions, viz.:—
(1) A.B. claims that C.D. owes him a certain sum—e.g., on a contract, or for damages arising out of an accident, or for injury to reputation by slander. The questions to be resolved by the court are really only two, viz.:—
(a) is the claim good at all? and
(b) if so, what amount?
In this class of case there is a short, sharp trial of the issue and the matter is over.
(2) A.B. wants the court to control or to investigate and clear up a complicated set of transactions such as the winding-up of a company or the administration of a deceased person's property. Inquiries have to be made, advertisements inserted, creditors' claims examined, debtors followed up, and assets realised.
The matter may take six years to clear up and difficult points of law may crop up at any moment. This is the kind of case with which the Examiner's Office will deal.
The Accountant's Office is the office which takes charge of the securities and monies which are lodged with the court, and which makes payments as ordered by the court.
I have left the office of the Master to the last, as being the most important of the High Court offices. The Master will have a dual capacity. He will be a sort of minor judge, who will save the time of the High Court judges, and of the parties, by deciding matters which, while too important to be dealt with by officials pure and simple, are yet of a more or less routine nature and do not call for a special sitting of the High Court.
There will, of course, be an appeal from any such decision. A Master will have no jurisdiction within himself. It will be the delegated jurisdiction of the judge that will be exercised. On the administrative side the Master will be head of the Central Office and the overriding authority, subject only to the Minister, in the matter of staff and establishment in every High Court office. To him we will look for uniform procedure. It will be his duty to see that the work goes on smoothly and diligently; that it is done in a businesslike way and that an industrious atmosphere is preserved throughout. It is he who will interfere if clerks in any one office are notoriously having an easier time than in other offices or if the public find there is a tendency to be unnecessarily curt or disobliging. It will be his duty in such cases to speak first to the principal officer of the office concerned in as tactful and diplomatic way as he can contrive and, failing to get satisfaction, report the matter to the Minister for Justice. I expect a certain amount of criticism with regard to the duties imposed on this officer. We will be told we are placing two entirely dissimilar duties on the same man. I could defend that by precedent.
The Master of the King's Bench and, in fact, the judges themselves, to some extent, had in the past this kind of dual capacity. I would prefer to defend it on the merits of the case. The Master, in so far as he will perform minor judicial functions, will not have work that will keep him for more than a couple of hours daily, and we are not prepared to face the prospect that the highest paid officer in the courts will be going home for the day at 12 or 1 o'clock because there was nothing more for him to do. Then there is the other side of it: that no officer except such an officer as this could be properly put in the position where he could be called upon to censure another principal officer.
The Supreme Court and the Court of Appeal on the staffing side is a simple matter. It requires an officer of some standing to act as registrar. We provide for that in the Bill. It will need very little of a staff. The Court of Appeal being one where the judges do everything, there is not much staff work in connection with it. The same officer will act as registrar to the Court of Criminal Appeal.
The Chief Justice will require, in the exercise of the jurisdiction transferred to him by Section 19 of the Courts of Justice Act, 1924, a special staff. His special jurisdiction is the wardship of lunatics, the wardship of minors, disciplinary control of solicitors and the appointment of commissioners for oaths. At present there is a separate office for lunatics, a special office for minors, and under each of these heads, lunatics and minors, there is a fairly steady flow of work. The work is not heavy under the other two heads, disciplinary control of solicitors and the appointment of commissioners for oaths. It is done at present by what used to be the Crown and Hanaper office by one or two fairly junior officials, except what falls to the discretion of the Chief Justice. We have decided to have a new officer, a registrar to the Chief Justice, in whose office all four classes of work will be done— lunatics, minors, disciplinary control of solicitors and the appointment of commissioners for oaths.
I would like to repeat generally on the question of staffing what I said in the Dáil as to the position of the existing officials in the High Court and the Supreme Court. I would refer Senators to the section dealing with the matter —Section 61, sub-section (5), paragraph (d). There is not any doubt as to what the legal position is. We recognise quite frankly that all the former High Court officers are discharged from office within the meaning of Article 10 of the Treaty as soon as Part 1 of this Bill comes into force. That is the legal position.
Nothing we could do or say could prevent every one of these officers becoming entitled to the compensation which Article 10 of the Treaty guarantees. They are discharged, and the right to compensation accrues automatically. But what is the real position? In fact, our position is that we do not desire to discharge from office a single one of these men save those who are over our new retiring age or otherwise unfit for their work. With these exceptions we offer every one of them re-employment in the new system, and guarantee that their salaries will not be reduced even where we think they are too high. But, on the other hand, we do not think they are entitled to have it both ways, and we will ask most of them, under Section 61, sub-section (5), paragraph (d), to take the alternative. Either they are discharged in the sense of going out and staying out or they are not.
We will not in general re-employ any man who insists on his discharge in the full sense and applies for compensation accordingly. He may go and take his compensation. If we re-employ a man he must in general waive his compensation rights altogether so far as they arise out of his technical discharge. We have gone the length of saying in this Bill—as Senators can see if they turn to page 22, line 66—for the assurance of the timid that if any man accepts re-employment on these conditions and is subsequently discharged, not through his own fault, his claim to compensation shall thereupon revive. If any man is unwilling to accept these terms, if he will not accept re-employment with these guarantees, in lieu of compensation, then in general we do not want him, and whatever temporary inconvenience it may cause we will get on without him.
Does that apply to incapacity or where a man suffers from ill-health but is substantially under the age? Is he entitled to compensation?
Is the Senator referring to retirement now?
Does that cover an official who suffers from ill-health?
CATHAOIRLEACH
Do you mean does it cover a case where a man elects to stay on? You want to know if the waiver clause applies to a man who retires from ill-health.
If a man decides to remain on, and if his health breaks down subsequently, he must simply take his chance like everyone else. There could be no question of the revival of Article 10 rights for his special benefit.
He gets his pension under the Act.
Yes, under the Act. Senators probably have noticed that when speaking here about our position I qualified my general statement by saying that any gentleman that was re-employed must waive his compensation rights altogether so far as they arise out of his technical discharge. I used the word "generally" because there are some cases where we propose to allow existing officers to have their Treaty pensions assessed and nevertheless to continue in our employment. The cases I have in mind, where we do not propose to enforce paragraph (d) of Section 61, are those where men came into the court's service as professional men at a comparatively late age on the definite understanding that they were taking up a life office. They gave up their professions as solicitors or barristers on the clear understanding that they would draw full salary until death. The pension rights, in the ordinary way, which they could claim if they had to go out at 65 or 70 or 75, would be comparatively small because of their short service. It seems clearly unfair to appoint a man at 60 or over for life and tell him ten years afterwards that he must be prepared to go and that his pension will be about one-eighth of his salary. We could not take that attitude and we are not taking it. The alternatives to that seem to be three—(1) He can stay until death; or (2) to give him special pension terms by this Bill; or (3) to allow him to have his Treaty pension assessed and held in reserve against his retirement, and this latter alternative we have decided to incorporate in the Bill, after very full consideration.
It is not in the Bill yet?
It is in the Bill. Section 61 (5), paragraphs (a), (b) and (c).
CATHAOIRLEACH
I think not. I think there is some confusion. I think the determination of the Government must have been arrived at since the Bill passed through the Dáil. I do not think that that specific provision which the Minister mentioned is in the Bill at present.
I think it is. Sub-section (5) of Section 61 reads:—
The following provisions shall apply to every existing officer who accepts employment in a situation under this Act, that is to say:—
(a) the acceptance of such employment shall not prejudice or affect (save as is hereafter mentioned) his rights arising under Article 10 of the Treaty of 1921 on the abolition of his office,
(b) he shall not be entitled to receive any annual allowance under the said Article 10 in respect of any period for which he receives salary in a situation under this Act nor to receive any gratuity or lump sum payment under the said Article 10 while receiving such salary,
(c) on his ceasing to hold a situation under this Act he shall be entitled to receive at his option either such compensation as he may be entitled to under the said Article 10 or such allowance or other compensation as he may be entitled to under the Superannuation Acts, 1834 to 1923, as modified for and applied to him by this sub-section.
Paragraph (d) enables him to escape from these conditions and to insist upon a full waiver. It reads:—
(d) In lieu of the foregoing paragraphs, the offer of employment under this Act may be made conditional on his waiving all right to compensation under the said Article 10 in respect of abolition of or discharge from office but with the right to withdraw such waiver in the event of his being subsequently discharged from such employment for any reason other than age, misconduct, incapacity or ill-health.
In the absence of the application of paragraph (d) the position is that the man accepts employment; that he has his compensation for the discharge of his existing office assessed, and that that does not begin to run until he leaves the new office which he accepted under the new system. I feel quite sure of my ground, but the matter can be discussed in Committee, and in any case I say this, quite offhand, that if what I said is not effected by the Bill, then we will take steps to see that it is effected because at any rate that is our intention.
CATHAOIRLEACH
That is quite enough.
I ran through the provisions dealing with the District Court, the High Court and the Supreme Court, in the matter of staffs. There are certain miscellaneous provisions that I will now touch upon because some of them are important. There is the Court Fees, Fines and Fees Fund, Lunacy Fund, District Probate Registries, Summons Servers, and new proposals with regard to the office of High sheriffs and under-sheriffs. The Court Fees are dealt with under Section 55. The proposal originally was that they should be fixed by the Minister for Justice with the sanction of the Minister for Finance. The present position is that they are fixed by the rule-making authority: that is in practice by the judges, professional men, solicitors and barristers. We consider that the question of the extent to which litigants should pay for the cost to the State of administering justice— which necessarily involves the question of the extent to which the cost is to fall on the general tax-payer rather than on the litigants themselves—is not a judicial or legal question and should be left in the hands of the Executive Minister who will have to answer any complaints which may be made on the subject. We were pressed, however, to associate the rule-making committees with the fixing of fees, and accordingly we amended the section in that sense, as will be seen in lines 24, 25 and 26 on page 20 of the Bill.
In fixing the fees, the principle upon which we intend to base our charge is that the administration of justice, in civil matters, should, as nearly as possible, pay for itself, but that in criminal matters the cost should fall on the State. Once that principle is established the only difficulty is to apportion the fees accordingly. The Minister for Finance feels strongly that the present fees are too low. Most of them are based on the value of money 50 years or more ago, and I may, perhaps, add that so far as I can see the fear that we may impose excessive fees is based on the largely erroneous notion that the court fees play a large part in the cost of law to the litigants. That is, emphatically, not so. Court fees are merely a drop in the ocean compared to the other cost of litigation, and if we were to treble the fees, on the one hand or abolish them altogether on the other hand, the ordinary litigant would scarcely be aware of the change.
As regards the Fines and Fees Fund, the present law is that in general all fines and District Court fees go into this Fund, which is the primary source for the payment of the salaries of District Court clerks and the pensions of the retired petty sessions clerks. It is an insufficient source; it does not produce more than £25,000 per annum, whereas the salaries of the existing clerks amount to about £30,000 per annum, pensions of retired petty sessions clerks and retired headquarter officers amount to over £25,000, and salaries of existing headquarter staffs and considerable incidental expenses bring the total cost of the District Court Clerks' Department, including all officers, past and present, town and country, to about £65,000. This does not include the District Court clerks in the Dublin Metropolitan area, who are paid out of voted moneys. It is therefore necessary to find, every year, a large sum, approximately £40,000, over and above the income of the Fines and Fees Fund to meet the expenses of the District Court Clerks' Department. In the past that additional sum has been obtained out of the annual yield of the dog duty, but the dog duty has, since the 1st of January last, become an excise duty, and the enactment under which it was formerly available to supplement the Fines and Fees Fund has been repealed, so that, in future, if the Fines and Fees Fund were retained, we should have to look to the Dáil to vote annually a sum of about £40,000 to supplement the Fund.
It has been decided in these circumstances to abolish the Fund altogether, to pay the fines and fees into the Exchequer, and to ask the Dáil to vote annually the necessary money for the pensions, salaries and expenses of District Court clerks in the same way as the Dáil votes the money for the pensions, salaries and expenses of the other court officers. We, therefore, propose under Sections 48 and 49 to enact that in future all court fees and all fines shall go into the Exchequer direct instead of into a fund. It will be observed, however, that there is provision under Section 49, sub-section (4), for the making of orders under which certain classes of fines may be paid not into the Exchequer but in other directions to be specified in the order. The reason for this is that there are at present certain bodies which have by statute a right to certain fines or portions of them—municipal corporations, the Gárda Síochána Reward Fund and fishery conservators are examples. I am informed, in fact, that so many of these vested interests have been created and the law in that regard is so entangled that no one could undertake to expound it fully and clearly. I have a lengthy memorandum on the subject, and if on Committee Stage Senators would like further information I can provide it.
We feel that the law on this point should be so simple and clear that every District Court clerk might be expected to recite by heart a list of all classes of fines in which these vested interests exist. Moreover, it is by no means clear that all these private proprietorships in fines are justified.
I have no doubt that cases exist where a right of the kind was created by statute fifty or sixty years ago, but circumstances have so much altered since that time that there is no longer any justification for the continuance or perpetuation of the private right. Our object, therefore, is twofold: First, to clear up the existing confusion as to who is entitled to these rights irrespective of merits. Secondly, to eliminate claims which have ceased to be justifiable, or which are so insignificant in amount as not to deserve a separate existence. In most cases the claims will be found on examination to be by Government Departments themselves, and it is merely a book-keeping transaction which wastes the time of the staff. Generally, I want to say that if any person or body who has at present such a vested interest of this kind can put up a case that the abolition of that interest is unjust to individuals or undesirable in the public interest, it would be our duty to consider whether it would be proper either to make the necessary exemption order or to make other provision to relieve any hardship. We take power—sub-section (2) of the section—to re-create by a specific order any apportionment for which a good case can be shown.
There is another Fund which is abolished also—the Lunacy Fund. The British Government were contemplating the abolition of the Lunacy Fund when the change of Government took place, and we see no reason for not proceeding with the proposals. The objection to the fund is the general objection to all such funds, namely, that the salaries of public officials paid out of such funds are thereby shielded from public criticism. Nobody, in fact, knows what the salaries are. Moreover, in this particular case, the Lunacy Office, which is the raison d'être of the fund, is being abolished as a separate entity. It is being merged, as I have already explained, in the Office of the Registrar to the Chief Justice. In sub-section (4) of Section 53 we have, however, provided that the expenses other than salaries and pensions in connection with the investigation of lunacy cases, or alleged lunacy cases, shall be paid on the certificate of the Chief Justice out of the fees before the balance is surrendered. This provision preserves the privacy of these transactions, and the power of the Chief Justice to make whatever payments he sees fit without the necessity of sanction by a Minister.
Let me now deal with the question of District Probate Registries (Section 54). The present position is this: Wherever the deceased person died, whether in Saorstát Eireann or elsewhere, probate of the will, if there is a will, or a grant of administration intestate, if there is no will, can always be had from the principal Probate Registry attached to the High Court in Dublin. In addition, however, and by way of an alternative, there are District Probate Registries at Ballina, Cavan, Cork, Kilkenny, Limerick, Mullingar, Tuam and Waterford. To each of these registries a definite territorial area is assigned, and if the deceased person died domiciled in one of these areas, then the grant may be extracted in the local registry instead of in the principal registry, according to the applicant's wish. In an average year there are about 11,000 grants issued altogether in the Saorstát. The principal registry issues a little less than half of this total —about 5,000. The district registries which I have mentioned issue the remaining 6,000. The point I want to make about these local probate registries is that we are not convinced of their necessity. There was, and probably still is, a local probate registry in Derry. Donegal is in the territorial area attached to that particular registry, and when the change came Donegal was of course, cut off from Derry. They did not know it until I mentioned it in the Dáil, and then the first action of the local T.D. was to suggest that there should be a local probate registry opened in Letterkenny.
We are not really satisfied that that is not an unnecessary refinement of administration, and an unnecessary expense. At the same time, even if we were to close down all the local registries to-morrow without putting anything in their place, the consequence would not, as far as we can see, be of a very serious kind. We are not going to do anything of the kind. We are not going to do anything hastily or ill-considered in this matter. We are not going, for the sake of a minor economy, to take away from provincial solicitors any facilities to which they are reasonably entitled, but we feel that the position is one which justifies us in asking ourselves whether by means of new rules, or by administrative changes, we may not create a state of affairs where everybody will agree to the closing down of the local registries. We ask, accordingly, not that they be closed down, but that we may have power to close them down, or, perhaps, to close some of them down, if and when we are satisfied that that should be done, without coming to the Oireachtas with a special Bill for that one object. Senators will observe that under sub-sections (3) and (4) of Section 54 provision may be made in any county whereby the county registrar's office may be utilised to facilitate local applicants for probate.
I now come to the question of summons servers. At present the High Court writs may be served by anybody to whom the plaintiff entrusts that work, circuit court processes by civil bill officers—who are paid £20 per annum each by the State and get fees for service—and District Court summonses by summons-servers. We propose to establish a single corps of summons-servers for all these purposes and to attach them in each county for administrative purposes to the county registrar. We propose in Section 50 to abolish the office of high sheriff at once, and, Section 52, to allow the office of under-sheriff to expire as the present holders die or retire, the duties of the office to be performed thereafter by the county registrar. As regards the high sheriff, the Sheriffs (Ireland) Act, 1920, deprived this officer of all his powers and duties, except two, the duty of summoning grand juries in a ceremonial way and the duty of attending at assizes. Both grand juries and assizes have disappeared since then under our legislation, and the high sheriff is left as occupant of a nominal office, with no duties and no emoluments. His duty was to summon a grand jury that did not exist, and to wait on a judge who did not go.
As regards the under-sheriff, it is our opinion that so far as the execution of court judgments is concerned the actual field of work is at present done almost entirely by the bailiffs. In many counties the under-sheriff seldom or never goes out with his men. Even the office work is generally done, not by the under-sheriff in person, but by a clerk in his office.
The under-sheriff merely exercises control and decides any legal point which may arise, such as to the priority of right between two rival judgment creditors. It seems to us that the work could be done equally well—as is actually done in England, so far at least as the county court is concerned —by the county registrar, who will have the additional advantage, in circuit court cases, of having all the facts of the case available. The average under-sheriff, between fees and salary, enjoys a substantial income. We think it well to save some of that money if possible, or at least to spend it in some other way, such, for instance, as paying a better salary to and so getting bailiffs or court messengers of a better class. We are not, however, superseding any existing under-sheriff. We will wait, in each county, until a vacancy occurs before introducing the new system. It may be no harm to say there are two or three counties where vacancies may occur very soon if the present occupants of the position of under-sheriff do not improve.
As regards the work of conducting Dáil and Seanad elections, which is at present done by the under-sheriff, we provide in sub-section (7) of Section 38 for the appointment of special men to do this work if the county registrar is not available. A special deputy of this kind has been appointed already on more than one occasion when the under-sheriff was not available, so that this provision is not a new departure. We considered it advisable also to relieve the under-sheriff now, and the county registrar hereafter, of one very unpleasant duty—the carrying out of the death sentence. In practice the governor of the jail has really to bear the main responsibility already in this matter, and we do not see why any other official should be brought in.
I have listened with a very great deal of care to the very able statement of the Minister, but I regret to say, in vain, for any explanation of the provisions in Section 49 of the Bill. He has told us that the section provides all fines and penalties that are paid into court must be paid into the Central Fund. The only explanation he has given as to the reasons for this change is that in some cases a certain abuse has arisen, and there were doubts as to the rights of the people who hitherto received these fines, and, therefore, he proposes to clear up all difficulties by taking over the money himself. I belong to a very ancient city. I believe it is the oldest municipality in Ireland. I heard the charter dates before the City of London. The Town Clerk there has written requesting me to call attention to the fact that the fines in that city, hitherto under this charter, or for a very long period, became the property of the city of Limerick. These fines in the past have averaged the proceeds of a penny rate. It is now proposed to appropriate the value of this penny rate which hitherto had gone to the benefit of the ratepayers and hand it into the Central Fund. I believe that is hardly fair, and it certainly appears to the citizens of Limerick it is not fair that they should be mulcted to this extent. They do not think that a Bill of this sort should be used as a means of depriving them of a source of revenue which produced a substantial sum. I propose to move an amendment on the Committee Stage dealing with this matter.
CATHAOIRLEACH
You will observe that there is a sub-section at the end which gives the Minister power in any case where he is satisfied a good case is made to leave the destination of the fines as at present.
Quite so. But the Corporation would prefer to have a section in the Bill and not leave to the tender mercy of the Minister the rights they have had for many years.
This Bill in the form in which it has reached the House, and as it has been explained by the Minister, is a good Bill, indeed, I may say, a very good Bill. I have no doubt it will obtain a second reading without any opposition. There are, however, one or two matters to which I would like to call attention at this stage. The first of these is the position and the tenure of office of the County Registrars. Under Clause 33, sub-clause (2), the County Registrar is to hold office during the pleasure of the Executive Council. That is to say, he can be removed from his office by the Executive Council without the concurrence of the Circuit Judge. That is not a position I would submit, in which an officer, with the duties and with the relationship which he has to the judge, should be put in. He discharges, or will have to discharge, as was explained by the Minister, certain semi-judicial duties. If you look at Section 36 you will find that under the Rules he has to hear interlocutory applications and he will have to deal also with all undefended cases. He is very much in the same position in the Circuit Court as the Master would be in the High Court. He has also practically the same position with reference to the Circuit Judge as the principal officers in the Supreme Court and in the High Court have to the judges of these courts.
In the Bill as it originally appeared in the Dáil the principal officers in the Supreme Court and in the High Court were like the county officers under the Bill as it has reached this House, absolutely at the mercy, I might say, of the Executive Council. That is to say, they could be all discharged from their offices by the Executive Council, and without the concurrence of any of the judges. That proposal raised a discussion between the judges and the Minister, and as a very-well-arrived-at compromise it was agreed by the Minister that in the case of all those principal officers, none of them should be removable from their offices except with the concurrence of the Chief Justice and, I think, the President of the High Court. That was a perfectly proper concession of the Minister to the principle of the independence of the judges, who ought not to be in the position of having an officer who is most in contact with them and responsible to them for the carrying out of their orders, removable except with their concurrence. Otherwise it would put the judges and the officer in a highly improper position. In theory and principle, there is no distinction whatever between the position of the county registrar with reference to his judge and with reference to his duties and the position of the principal officers of the High Court and the Supreme Court.
If the principle so recognised by the Minister in the case of the principal officers in the Supreme Court and High Court is carried out to its ultimate conclusions, I can see no reason for leaving out the county registrar from the very excellent provisions put in, in the case of these principal officers of the Supreme Court and the High Court— that they cannot be dismissed without the concurrence of these two judges. I have some recollection from reading the debates in the Dáil that the Minister there made a case for a difference between the position of a county registrar with reference to the Circuit Judge and the position of these principal officers with reference to those Judges of the High Court and the Supreme Court. I think the distinction which he tried to make was this— he said that in the case of the Circuit Judge that he is a judge in several counties. In most cases he has two and three counties and, in at least one or two cases, he has five or six counties. Therefore he urged the Circuit Judge is not so constantly in touch with the county registrar as to make his concurrence a prior condition of the dismissal of the registrar. Now even in the case of the Circuit Judge who has the largest number of counties, he is in touch with each of his county registrars for six or seven weeks in the year, and, surely, the answer to the Minister is this, that even if the Circuit Judge is not at all times in touch with the county registrars, the Minister is never in touch with them at all. Therefore the Circuit Judge really knows the facts of the case; he really knows the merits of the case in a way in which the Minister could never have the same opportunity of knowing. I would therefore respectfully suggest to the Minister that he ought to carry out the principle which he has already adopted in the case of the principal officers in the High Court and the Supreme Court and make a condition of the removal from office of the county registrar the concurrence of the Circuit Judge.
There is only one other matter to which I should like to refer. It is to the position of those existing officers who may accept service under this Bill. The Minister has very fairly stated that in the case of officers who were appointed late in life having professional qualifications, it would not be fair to put them to elect between Article 10 of the Treaty and their right to pension under this Bill. He told us that there was a provision in the Bill which I did not happen to be able to find, for assessing their rights under Article 10 of the Treaty before they are to have their pension at any rate determined under this Bill. I have not been able to find that provision, but we have the assurance of the Minister that if it is not there it will be put in.
The right to have their pension assessed arises automatically from their discharge, and this is only by an express waiver provided under paragraph (d) of Section 61 (5).
The express waiver is going to be practically automatic because it is certain the Minister is going to insist on this waiver.
In nearly every case.
What I want to insist on is this, that in the case of a person who shall have all the rights he is entitled to, the Minister should ascertain for him what his rights are before he asks him to make up his mind whether he will take employment under this Bill. That is perfectly fair and right and what I would urge on the Minister is this, that he ought extend that principle to certain other officers whose position is likely to be one of just as great hardship as that of these men who took their positions late in life, believing that they could go on working as long as they were fit to work. I know two officers of about 15 years' standing, men of 35 or 40 years of age. Under Section 61 (5) (d) they will be put to their election by the Minister as to whether they will continue to serve under this Bill or go out with whatever rights they have under Article 10 of the Treaty. That is a very serious problem for a man who has arrived at the age of 37, 38 or 40 years and who has probably a wife and family. He ought to know before he is put to his election what exactly he has to elect between, and what are his rights under Article 10, and by whom those rights are to be determined in the case of disagreement or dispute. Nobody knows what the rights under Article 10 are.
You are driven back to the kind of measure that is to be on those rights by the Schedule in the Act of 1920. Nobody can tell in figures what they are, and nobody knows yet by what tribunal they will be determined in case of dispute. I submit that it is not fair, just as it is not fair in the case of the older men who have arrived at middle life and are in these positions in which they believed they had security—it is just as unfair to put them to their election as it would be to put these other officers to the hardship which, in their case, has been recognised by the Minister. The whole difficulty in this section would be got rid of if the Minister would see his way to confine Section 61 (d) to the cases of officers who have served less than fifteen years. If he will do that, it will really do away with the hardship which will otherwise fall upon officers under this section. I intend to move amendments in Committee both on the mode of dismissal and also on this point with reference to confining Section 61 (d) to cases of officers who have not more than 15 years' service.
I must say we are very much indebted to the Minister for his statement on the Bill. I had an immense amount of difficulty in going through this Bill in following or appreciating what it meant. I feel to a large extent I am not very clear on it. I felt much the same about the Courts of Justice Act to which this Bill is supplementary. I think we should be rather careful, because some of the dangers that struck me at the time have arisen on the working of the Courts of Justice Act. At that time I thought that the Courts of Justice Act would break down inasmuch as it expected the circuit judges to administer justice over such large areas. In actual fact it is known that in some areas an assistant judge has had to be appointed. I will appeal to the Minister to keep an open mind on this Bill in Committee. The administration of justice is so important that, important as economy is, effective and dignified administration of justice is far more important than cheap administration of justice. I think it would be very unwise to try to make things cheaper if there is any decrease of dignity and efficiency in the administration of justice. I feel also that this Bill is working rather in a contrary direction from the Courts of Justice Act. This Bill seems to me to centralise or, as the Minister says, appears to centralise, a great many of the officers connected with the courts around about the country now, whereas in the Courts of Justice Act the principle seems to be decentralisation inasmuch as that Act increased the jurisdiction of the district and circuit courts of the land by widening the scope of cases on which they could adjudicate.
I feel this more particularly with regard to the district probate registries. The words of the Minister in connection with them show that he and the Executive Council are not fully convinced of the usefulness of these district probate registries. With the greatest respect to the Executive Council and the Minister, with one exception, I say that they have had no experience of these. I think the Minister, when he occupied a position of less responsibility than he now occupies, served some time in connection with legal administration in the City of Cork. I wonder if he ever came into touch with the usefulness of the district probate registry in Cork during his sojourn there. It is a cheap, quick method of getting particulars, and if there is a change made it will involve greater expense, more particularly in matters of small estates where expense is important, and it certainly should not be abolished. I know that the Minister does not definitely propose to abolish these registries in this Bill, but he takes power to abolish them. In addition to the local court of registry, I want to say a word on the local court of bankruptcy. Now, when local officials deal with a case in bankruptcy they know much better than one in Dublin could know, whether they are dealing with a crook or with a straight man. In dealing with a straight man who is in a financial difficulty they give such indulgence as they may think desirable——
Perhaps I might set the Senator right if I tell him that this Bill does not touch the local court of bankruptcy in Cork at all. Perhaps the Senator does not know that.
I do. But I know that there has been a Bill in the Dáil recently dealing with the regularising of certain proceedings. I respectfully submit to the Minister that the local probate registry is quite as important——
No.
Well, I have lived longer in Cork than the Minister.
Thank God.
There is another small matter, but it seems to me to be rather important, particularly in view of the comments of the Minister on the Bill whereby he takes power to appoint and, I take it, to dismiss the local summons server. I think that is a very foolish provision. The district registrar and the circuit judge are the people who should know the virtues and shortcomings of their summons server. The Minister takes the appointment, and, I presume, the dismissal of an officer of that kind into his own hands over the heads of the circuit judges. I think that is not a wise proceeding. I may refer to a very small matter which is important but which I do not know is within the Department of the Minister. Some of us have to go to the courts as jurors, witnesses or litigants, and the condition of some of the courts at which we are compelled to attend is, to say the least of it, very dirty. I do not know if this is a Bill in which I should refer to this, but I have referred to the dignity of justice as being a grave moral factors I think I may, and I ask the Minister to get in touch with the Department which has to deal with that matter.
Senator Brown states that this is a much better Bill now than when it was introduced, and, in fact, claims it to be a good Bill. I do not know if he gives the Minister credit for the changes which have taken place or attributes the fact to the other House. Personally I attribute most credit myself to the remarks of the Chief Justice at a certain social function where everyone seemed inclined to speak their minds freely. It is notorious it was after that oration that those amendments were put down, 16 for the Committee Stage and 27 for the Report Stage. They overhauled the Bill considerably and effected the changes which commended themselves to Senator Brown.
I want to refer to one or two points. I am glad to see that there is a proposal to set up a Master of the High Court. I think that is a long-delayed requirement. His appointment is very desirable. He will be an important officer and will deal with work that is now being done by judges. He will be, in a sense, a minor judge. I think the pity is that work of a more important character is not delegated to an official of that kind as is the case in England where there are three masters sitting daily hearing business of an important character that has still to go to a judge here and will have to go to him, I think, even under the new Bill. I understand the English system is more economically wise.
CATHAOIRLEACH
Under the new Court Rules a great deal of that business you are speaking of will, in the future, be discharged by the Master.
I am glad to hear that it will make for economy and efficiency in some respects. Here we have not sufficient judges to deal with the work involved daily, and in many cases you have expense and delay as the result. In England the work of the Master is done, I understand, by experienced barristers who have had a good practice immediately prior to their appointment. In the case of the Bill before the House, the only qualification necessary for a candidate for this important post is as follows:—
Section 21 states:—"No person shall be appointed under this Act to be Master of the High Court unless at the time of his appointment he is a barrister of not less than ten years' standing who either is then actually practising or has previously practised for not less than ten years."
Some amiable, but quite unsuitable, old gentleman who has been on the shelf for years and out of touch with everything that has happened recently, may be appointed to this post. He may command the minds of those who are responsible for the making of the appointment, and very likely will, if reports are true. This is the person to whom this very important work is being delegated.
What reports does the Senator refer to?
I am referring to the Master of the High Court.
What reports are you referring to in that connection?
I do not think I referred to any reports.
You said, "And very likely will if reports are true." I would like to know what they are.
They are rumours that are going around.
Perhaps we had better have them.
I cannot state my authority.
Would it not be better to leave out any such references if you cannot state the authority?
I will drop that part. It is eminently desirable that the person appointed should be a person who has had actual practice for ten years prior to the appointment, and not a person who, though he may be attending the Law Library, is really out of touch with current events. This is a country notorious for jobbery, and the profession is notorious for favouritism, according to the Minister himself. For that reason it would be a public calamity and an outrage if a person was appointed to this new and very important post who had not the necessary qualifications. I want to refer to the proposal to abolish the position of sub-sheriff. That work is now to be delegated to the county registrar. If Senators look at the Bill they will see the amount of work that has been already allocated to the registrar, and they will find that putting on to him duties, hitherto performed by the sub-sheriffs, will mean that he will only have an impersonal contact with a good deal of the work. Sub-section (2) of Section 36 lays down a whole series of tasks the sub-sheriff used to perform. Amongst others, it provides
for the hearing and determination (subject or not subject to an appeal to the Circuit Judge) by the county registrar of all or any class or classes of interlocutory applications and unopposed final applications in or in relation to suits or matters in the Circuit Court as well as the taking or making of all or any class or classes of accounts and inquiries in such suits or matters.
Then
The county registrar of the county, county borough, or other area in which the Central Criminal Court is for the time being sitting shall act as registrar to that Court and perform and fulfill such duties and functions in relation to that Court as shall be assigned to him by rules of court.
In addition, he is expected to carry out the various duties that were carried on by the sub-sheriff. Sub-sheriffs, in a country like Ireland where you are dealing with people with very small means, very often have very delicate tasks to perform, if they are to be performed properly. As far as I know a large number of the sub-sheriffs have done their work in an exceedingly conscientious and humane way. They made themselves acquainted with the domestic conditions of the debtors and instead of levying execution at once, selling out people, putting them out of business, and destroying their chance of pulling themselves together, they made arrangements whereby they took the amount of the decree in instalments. In that way they got the money within a reasonable time.
The Court Registrar cannot possibly have that intimate acquaintance with judgment debtors because of his multifarious other duties. He will only delegate the work to an official who will be a civil servant, who will merely send out the court messenger to levy execution. Of necessity these men will not take any responsibility upon themselves except to execute their instructions. You will have a more impersonal levy of execution and a more ruthless administration of the law with very sad results, because of the special conditions obtaining. To that extent, I do not think the suggestion that the position of sub-sheriff should be abolished is a particularly happy one.
The County Registrar will be the judge's intimate confidential officer and will, in view of his office, be dealing with settlements in Chancery and in Bankruptcy. Under such settlements he will be dealing with the costs of solicitors and various other items. He will have a certain commanding influence with solicitors, and if, as a consequence, in the discharge of his duties as sheriff, he exceeds the law and is guilty of any action or inaction, any solicitors in his area will be very slow to take him to task because of the position he holds. That consideration did not obtain where the sub-sheriff was an independent officer as he had no control over solicitors and their costs in any way. The new powers delegated under the Courts Order Act to sub-sheriffs make the new change all the more serious because of the powers given under this Bill.
I thoroughly endorse what Senator Brown said in regard to the protection of the staff. I do not think one should seek to obtain a public benefit at the expense of private hardship. That principle should be avoided, no matter what the conditions may have been in the past and the best interests of those employed should be protected. I dare say the Minister will meet that point in a suitable way. I was glad to hear what the Minister said about the staff dealing in a curt manner with the public. If there is one place that the public have a horror of entering it is these places connected with the courts. It is almost like stepping into the dock, and one feels that he is almost a criminal going there. I think it is time that civil servants in the courts should conduct themselves in a proper and a business-like way and show that courtesy to the public that would be extended by a business firm.
With regard to Section 55, fixing the court fees, I notice that the position of the Minister is not a particularly dignified one.
The Minister may, with the sanction of the Minister for Finance and the concurrence of the committee with whose concurrence or assistance the rules of the court to which the matter relates are made, by order prescribe...
I take it that the Rules of Court Committee can at any time refuse to concur in certain wishes of the Minister.
Not necessarily.
What good purpose the Minister will serve by giving such powers it is difficult to see.
If concurrence were unreasonably withheld, then I would have to bring in another Bill.
The Minister admits what I say is true and that legislation would have to be introduced in order to compel the Committee to give its concurrence.
Not to compel the Committee to give its concurrence. I was prepared to take such risks as may be said to exist in the situation. If I found that they were too great, that concurrence was unreasonably withheld and that professional men, for professional reasons, held out against proposals and suggestions emanating from me, which are considered to be sound and reasonable, then I would have to introduce legislation to alter the position.
I hope the Rule-making Authority will take notice of that. I do not argue as to the merits or otherwise of the section, or whether it is right for the Minister to fix the court fees or not, but I am anxious, no matter what party is in power, that a Minister of the State shall not be placed in a humiliating position, and that he shall not consent to do something which the Committee may over-rule. That is my only anxiety, but I hope the position will not arise. At any rate if it does they have the warning now.
The Oireachtas will have to decide if it is unreasonable.
This Bill is an exceedingly comprehensive one and, no doubt, an excellent one, but I suggest that a Bill, of such vast importance, should be referred to a special committee rather than to a committee of the whole House.
CATHAOIRLEACH
That does not arise until the Second Reading is passed. If the Second Reading is passed it is open to the Senator, or any other Senator, to move that it be referred to a Select Committee.
Very well. But I should like to make one or two observations, especially in reference to that ancient institution of local Probate Courts in different parts of the country. They were established, I understand, away back in the 'fifties, and they did invaluable work since that time. The very suggestion that it is possible for the Minister to remove courts of that kind has caused a considerable amount of consternation in different parts of the country. I hope some arrangement will be made whereby, at any rate, the two Houses of the Oireachtas will have an opportunity of discussing the matter before such drastic steps can possibly be taken with regard to any part of the country. There are other points also in regard to which, in Committee, I should like to move amendments, particularly as to safeguarding staffs in the service of the State. They have given very valuable services in some cases that I am aware of for over 30 years and now they are to be retired and thrown upon the scrap heap, receiving very little remuneration. I also want to say a word in favour of a public official that I am afraid is rather unpopular, and who, under the terms of this Bill, will be abolished. I refer to the office of high sheriff which has been filled by distinguished men with credit to themselves and great advantage to the community. The high sheriff, in the past, was the man who always nominated the sub-sheriff. These men bore the heat of the day in troublesome times, and in the drab surroundings we are experiencing at present, although we have excellent Commissioners in Cork and Dublin the picturesque figure of the high sheriff is outstanding. I believe the great majority of my fellow-citizens in the South of Ireland will regret to see the well-known personality of the present high sheriff vanish from the scene. I hope that the Minister will reconsider the matter and allow the high sheriffs to remain for the remainder of their lives to carry on the functions that they at present discharge.
Question—"That the Bill be now read a Second Time"—put and agreed to.
I was about to make the same suggestion as that made by Senator Haughton; that this very complicated and technical Bill should now be referred to a Select Committee consisting of the Cathaoirleach, Senators Sir Edward Bigger, The Countess Desart, Farren, Jackson, Kenny, Haughton, MacKean, and myself, and that four form a quorum.
I beg to second the motion.
Question put.
On a show of hands the motion was declared carried by thirteen votes against twelve.
I ask for a division.
CATHAOIRLEACH
It is the first time we ever divided on a matter of this kind, but if the Senator asks for a division he is entitled to get it.
I would not like to press my motion if there was strong feeling against it in the House. I made the motion because of the length of time that the Third Stage would take in a Committee of the whole House. We are going to be very pressed for time during the month, and I think a Bill of this kind will be dealt with much more effectively by a Select Committee than by a Committee of the whole House. It was for that reason that I moved my motion. I would not press it, however, against any strong feeling of opposition.
Is it not open to Senators to propose amendments on the Report Stage?
CATHAOIRLEACH
Yes; the House is not bound by the proceedings of the Select Committee at all.
Considering that we do not meet very often and that the attendance in the House is small, I do not think there is much to be gained by referring the Bill to a Select Committee. It is very desirable that a Bill of great public importance like this should be dealt with by a Committee of the whole House rather than by a Select Committee, in which very little interest is taken. When we come to the Report Stage the whole matter is passed over. Senators do not seem to know what occurred at the Special Committee, and the result is that five or six people determine the policy of the House in regard to a very important matter. If we retain the Committee Stage here the matter will be dealt with by the whole House.
I support the action of Senator Brown. I think he made his case in favour of sending the Bill to a Select Committee, but, like Senator Brown, I should not be in favour of sending the Bill to a Select Committee if there was much opposition to the motion.
CATHAOIRLEACH
There is one consideration that I would put forward before any decision is come to. I do not care whether the Bill is referred to a Select Committee or not, but if it is sent to a Select Committee, that Committee could meet on Friday and Monday or Tuesday of next week and perhaps get through the Bill. If it is not sent to a Select Committee the Committee Stage in the House cannot be taken before this day week. I do not think it would be right to take the Committee Stage to-morrow. There would not be time to table amendments. The earliest date that we could have the Committee Stage would be Wednesday next. If the Bill was sent to a Special Committee it would be through Committee Stage by that time.
It could be got through by the end of the month.
CATHAOIRLEACH
Business is accumulating, and we are likely to be pretty busy for the next fortnight.
I would not have put down the motion if I thought there would be such opposition. I now ask for leave to withdraw it.
Motion, by leave, withdrawn.
I wonder would the Minister give his views with reference to this Committee Stage?
CATHAOIRLEACH
I do not think it is fair to ask the Minister for his views on that. It is a matter for the House.
Really this is a rather technical matter, and a few experts dealing with it would be much better than many heads.
CATHAOIRLEACH
All your colleagues do not take that view.
I seconded the motion, and I would not so readily withdraw it as Senator Brown.
CATHAOIRLEACH
I shall arrange that the Committee Stage will appear on the Order Paper for the next day the Seanad meets—that does not mean to-morrow.