I beg to move:—
To delete in line 18 the word "either," and to delete all after the word "practising," in line 19.
Now that we have changed from railwaymen to lawyers, I hope we will get a more sympathetic hearing.
COURT OFFICERS BILL, 1926—THIRD STAGE.
Question—"That Sections 1 to 20 (inclusive) stand part of the Bill"— put and agreed to.
SECTION 21.
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.
You will, in this House anyhow.
The object of this amendment is to ensure that the Master of the High Court—a very important appointment—must be a barrister of ten years standing—that he shall not only be a barrister of ten years' standing, but that he shall be a barrister practising at the time of his appointment. The Minister, in his speech on the Second Reading of this Bill in the other House, rather indicated that the recommendations of the Judicial Committee that was set up to inquire into the reorganisation of the courts, was being followed in this respect, but I do not think that is quite correct. If my memory serves me right, the committee recommended that the person appointed to the position of Master of the High Court should be a barrister of at least ten years' standing, but I cannot imagine that they ever contemplated the appointment of a barrister who might have retired from the Bar for ten or twelve years previously.
CATHAOIRLEACH
I do not think you have quoted the recommendation quite accurately, Senator. They were very precise. A practising barrister of ten years' standing—that was the recommendation.
I have not got the report before me, but my recollection is that they would not recommend a person who had actually retired from the Bar. The existing Master is only Master of the King's Bench. He has nothing to do with the Court of Chancery, the Probate and Matrimonial Court, or the Bankruptcy Court. The new Master will be the head official of all branches of the High Court. He will be brought into daily and intimate touch with the new Rules of Court, procedure and practice, and upon him will devolve the task of advising and assisting every official on the staff. For these reasons it will be obvious that it is absolutely essential the person appointed should be up-to-date in the procedure and practice of all the courts, and nobody but a barrister in practice could fulfil these requirements. It is true that he will have administrative as well as judicial duties to perform, and while you could rely on a practising barrister to discharge both legal and administrative duties, you could hardly rely upon a barrister who may have retired for a number of years from active participation to discharge the legal and other duties that will devolve on the holder of the new appointment. As we know, numerous and drastic changes have taken place in the organisation of the courts in recent years, so that any person away from active participation and practice at the Bar must inevitably be out of touch with many things. Again, we find that the qualifications for the Registrar to the Chief Justice are more stringent and exacting than those laid down for the Master, although the Master must be the superior officer, exercising as he does the functions of a Judge as well as those of an administrator.
Section 23 lays it down: "No person shall be appointed under this Act to be Registrar to the Chief Justice unless at the time of his appointment he either (a) is a barrister of not less than ten years' standing, who is then actually practising." The clause goes on to state the other qualifications. Section 21 gives the qualifications:—
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.
I think it would be extremely unfortunate if this important post, now established for the first time, should be in any way hampered or injured by the appointment of an unsuitable person. In all probability it is a mere oversight that the qualification is so loose here whilst it is tightened up for an altogether inferior position. Accordingly, I presume the Minister will have no difficulty in accepting the amendment. The duties of the Master are of a judicial as well as of an administrative character. The duties to be performed are extremely important. It seems to me unreasonable and impracticable to expect that anyone would be able to meet the requirements of the office successfully in view of the changes that have taken place, and in view of the new Rules of Court that will soon be before this House, unless he is a practising barrister and in intimate touch with all recent developments.
Arising out of your remark, sir, that the Committee that investigated this matter reported that he should be a practising barrister——
CATHAOIRLEACH
Recommended.
I understand the clause as now drafted does not conform to the recommendations of the Committee.
CATHAOIRLEACH
I think it is only fair to the Committee to say that we were unanimous in our desire that this particular official, whom we felt would have a very heavy legal responsibility put upon him, should be at the date of his appointment a practising barrister of not less than ten years' standing. That was our unanimous recommendation.
It is not described that way in the clause.
CATHAOIRLEACH
No. We never entertained this at all, and never would. That was the view of the Committee.
I am in favour of this amendment, and on the Second Reading of the Bill I called attention to the nature of the office of the Master of the High Court. It has been absolutely accurately described by Senator O'Farrell as an office largely judicial. Every day he is deciding points of law and of practice. Therefore, it is absolutely necessary that the person who fills this office at the time of his appointment should be then a practising barrister. The clause as it is drafted might lead to the most absurd results. As the clause stands there is nothing to prevent a person who had been ten years in practice at the Bar, and who has left the Bar and gone into the tea trade, or gone away from the country, being appointed Master of the High Court.
Or judge.
CATHAOIRLEACH
No, a judge must be a practising barrister.
I would like to remind the Minister of what he said in the Dáil, referring to the Master of the High Court, on the Second Reading of the Bill on the 11th March:
No officer, except this officer, could properly be put into a position where he might be called upon to censure any principal officer in the court or any particular officer amongst the courts staff. Thirdly, we are following in this matter the recommendations of the Judiciary Committee's report, which Deputies will remember, was an unanimous report from men who, certainly, ought to be able to form a sound judgment upon matters of that kind.
Might I say that I entirely agree with the Minister's estimate of the capacity of the Judiciary Committee to form an opinion on this point and, if the Minister was anxious to carry out the unanimous recommendations of the Committee, as he obviously was at the time, he could have no objection whatever to this amendment?
I have an objection to the amendment. The section as it stands states ten years' experience at the Bar, as an active practitioner, is a necessity and is a condition precedent to appointment. But the amendment as it stands precludes the possibility that a person having that experience and having that qualification who then passes on to an administrative sphere and acquires considerable administrative experience shall not be eligible. Let us consider this position of Master. Senator Brown says that the functions are largely judicial. I would like to put as against that my view that the functions are largely administrative and, to a certain minor extent, judicial. There may be a lot to be said for the point of view as I have heard it put here, that the man coming into this position should have the sawdust on him, that he should be fresh from the ring, and have a personal acquaintanceship with all the gladiators, and so on. But, would there not be still more to be said for the point of view that, if a man had all that, plus considerable experience of the administrative side of the courts, he would be even more eligible and suitable for the position than the man with the sawdust on him?
My objection to this amendment, frankly, is that it precludes a person— the person whom I would refer to as the most eligible for the position; that is, a man who had seen both sides—who had been a practising barrister for ten years and had that personal, intimate contact with members of the Bar which is desirable, and, in addition, considerable administrative experience and considerable knowledge of the offices of the Courts and the machinery of the Courts, as well as some experience in handling staffs. Mark you, your barrister of ripe years is not perhaps the most suitable person you could get for a big administrative position in charge of a large staff. He has, from the nature of his professional occupation, worked alone. The Bar is a most highly competitive profession. The barrister has to work on his own throughout his professional career. Sometimes one finds a man who has pursued that kind of work for a long period unwilling to delegate, and desiring to handle all the strings himself, to deal with everything personally. The capacity for intelligent and discriminating delegation is one of the main factors in successful administration.
Senator O'Farrell is thinking along the lines of a man who has retired from the Bar and the possibility of his being called back—a man who had given up active contact with the legal profession in any office being called back to fill this office of Master. Candidly, I am not thinking along these lines, but I object to an amendment which would lay it down as a rigid rule that the only man to be called into this office would be a man who had ten years' experience at the Bar, and who had never left it, even to pass to another phase of legal work. I am not talking or thinking in terms of the man who had severed his connection, but I am talking and thinking in terms of the man who had passed from the arena, to continue the metaphor, and who had gone simply to what is another facet, another phase, of what is essentially the same occupation.
The report of the Judiciary Committee has been referred to. That report sets out:—
"...the staff to be members of the Civil Service, and entitled to pensions and subject to retirement under its rules. All vacancies to be filled by promotion from the staff, due regard being had to seniority, save in the following cases:—The chief official or Master of the Central Office as already recommended; the principal clerk entrusted with the taking of accounts... provided always that any member of the staff who is possessed of the required qualification shall be eligible for appointment and for this purpose a member of the staff of six years' standing who is also a barrister shall be deemed to be a practising barrister."
I was not so wide of the mark in my statement in the other House on this subject.
CATHAOIRLEACH
There must be some confusion. If you look you will find a definite recommendation applicable to this post in the report. That definite recommendation is "a practising barrister of 10 years' standing."
The chief official shall be "a practising barrister of not less than 10 years' standing, and his remuneration shall not be less..." but on page 25, in the first paragraph, there are certain exceptions to the rule that vacancies shall be filled by promotion from the staff. The exceptions are set out, and after that there is a proviso:—
"Provided always that any member of the staff who is possessed of the required qualification shall be eligible for appointment, and for this purpose a member of the staff of six years' standing who is also a barrister, shall be deemed to be a practising barrister."
That does not refer to the Master.
CATHAOIRLEACH
There should be no confusion about this matter. The Minister will find that what he has read deals with two minor appointments, and is not any qualification of the recommendation with regard to the Master.
The Master is dealt with first.
CATHAOIRLEACH
Yes. "The chief official or Master of the Central Office as already recommended." That disposes of him, and then it goes on to deal with some clerks, and with regard to them there is the provision that the Minister his referred to, but there is no departure on that page, or anywhere else, from the recommendation of the Committee as to the Master.
There is the very definite statement.
CATHAOIRLEACH
Yes, in reference to some subordinate officials mentioned.
There is the statement:—
"Any member of the staff who is possessed of the required qualification shall be eligible for appointment, and for this purpose a member of the staff of six years' standing who is also a barrister shall be deemed to be a practising barrister."
CATHAOIRLEACH
That refers here to the principal clerk entrusted with the taking of accounts in Chancery cases, and the principal clerk in charge of Probate and Matrimonial matters. It ceases at these two offices. There should be no controversy about this because it is there in black and white.
I am not prepared to accept that. On page 25 of the Judiciary Committee's report I read the following:—
"All vacancies to be filled by promotion from the staff, due regard being had to seniority save in the following cases:—The Chief Official or Master of the Central Office as already recommended; the Principal Clerk entrusted with the taking of accounts in Chancery cases, and the Principal Clerk in charge of Probate and Matrimonial matters, who should, in both cases, be a practising barrister or qualified solicitor of not less than six years' standing; the official discharging the duties of the present Accountant-General, and the Official Assignee in Bankruptcy, who should, in both cases, be a duly qualified accountant, provided always"—
and I submit that "provided always" covers all the foregoing exceptions—
"provided always that any member of the staff who is possessed of the required qualification shall be eligible for appointment, and for this purpose a member of the staff of six years' standing who is also a barrister shall be deemed to be a practising barrister."
But apart from the Judiciary Committee's report, on the merits of the matter, I put it to Senators, lay and legal, whether a man who has both that experience of active practice in the profession, and considerable administrative experience in offices attached to the courts, is not the very man for the post. I could get an administrative man who knows a great deal about court business and the machinery of the court system, and he would be open to the charge that he has not that intimate personal contact with the practising profession that would make him readily accessible to them in such difficulty as might arise and that a man in that position ought to have.
In the practice of the profession.
Or I could get better from the ring and the charge would be made against him that he is coming into an office that, as well as being to some extent judicial, is an administrative office, in charge of a big staff, and that he has absolutely no experience of administration or the handling of staffs. He has ploughed a lonely furrow through life in the cut-and-thrust of his profession, but of administration and in the handling of staffs and the organising of offices he knows nothing. And now I am objecting to an amendment which would rule out the man who would have both the qualifications of ten years' experience of active practice of the profession and the experience of the other sides of things—the administrative side, office organisation side and the handling of staffs. I object to that.
CATHAOIRLEACH
I do not take any interest as to who is employed; my sole reason is to see that the best man is appointed. The section, as it at present stands, does not prescribe that during the time he ceases to practise he is a member of any staff of any kind. He may have gone abroad or gone away.
I am prepared to prescribe that, but I am not prepared to accept an amendment which compels me to take a man who is a practising barrister et praeterea nihil up to the date of the appointment. If I can get a man who, in addition to having personal contact with the Bar, has also considerable administrative experience and knowledge of office administration, I say that is the man for this position. I am prepared to block the one evil the Senator pointed out of a tea merchant who is an ex-B.L., on Report Stage. But I will not accept an amendment that precludes the appointment of a man who is a barrister of ten years' experience at the Bar and who then passes to the administrative side.
I say that that is a reasonable and sound attitude to take up in this matter. We know exactly—it is my business to know—the nature of the duties that the holder of this office will have to perform, and I can see objection either to a man who was an administrator throughout his time or to a man who was only a barrister and who had no further kind of experience. It may be that in time we would be compelled to make a choice of a man who would have only one set of qualifications and perhaps trust to him to acquire the others, but I am not going to accept an amendment which precludes the appointment to this office of the man who has ten years' active experience at the Bar and then becomes a court officer and acquires considerable administrative experience in office organisation and in the handling of staffs. I have nothing to add.
The Minister has admitted, in the closing stages of his speech, that the section, as drafted, is far too vague and indefinite inasmuch as it is left in the power of the appointing authority to appoint to this office somebody who had actually retired from the Bar and did not occupy any of the other posts to which he referred. He rather indicated his willingness to guard against any such occurrence by a subsequent amendment providing for the alternative of the person appointed being a practising barrister now practising and who may have held other positions that would qualify him. I suggest the Committee should accept this amendment now and that on the Report Stage the alternative qualifications should be inserted. This amendment is not hostile to the effort of the Minister, but is a protection which I think is very necessary in the Bill.
Amendment put and on a show of hands, declared carried by fourteen to ten.
I have an amendment as follows:—
Section 21. To delete all after the word "standing" in line 18 down to the end of the section and to substitute therefor the words "Provided always that any member of the staff who is possessed of the required qualification shall be eligible for appointment, and for this purpose a member of the staff of six years' standing who is also a barrister shall be deemed to be a practising barrister."
CATHAOIRLEACH
It is only fair that I should say, on behalf of the Judiciary Committee, that we want to make it quite clear that the proviso as to recommending the appointment of a member of the staff of six years' standing did not refer to the chief official of the central office but referred to the subordinate offices. I do not know what may be suggested from the reading and what the effect of the various semi-colons would be, but that was the intention of the Committee. Perhaps if the Minister will consider this and make some suggestion on the Report Stage it would be wiser.
I will put in an amendment on the Report Stage. I cannot give the wording of it off-hand —but an amendment that will, at one and the same time, block the tea merchant, who is an ex-B.L., and leave it open to appoint a person who only ceased his contact with the active practice at the Bar for administrative office in connection with the courts.
I think, in the circumstances, the best thing would be to withdraw this amendment. I can put it down again if necessary on Report Stage.
CATHAOIRLEACH
I wish to make it clear, whether we were right or wrong, that we all agreed that in view of the nature of the office of this new official our suggestion was— and I am bound to say it was we who suggested and recommended the appointment—we were all agreed upon it—that this new official ought, of necessity, to be a gentleman directly in practice at the Bar up to the date of his appointment. We may have been right or we may have been wrong, but that was our recommendation.
Amendment, by leave, withdrawn.
Question—"That Section 21, as amended, stand part of the Bill"—put and agreed to.
Sections 22 and 23 ordered to stand part of the Bill.
SECTION 24.
(1) In addition to the principal officers there shall be employed in the several offices established by this Part of this Act such and so many officers, clerks, messengers, criers, and servants as the Minister shall from time to time determine with the sanction of the Minister for Finance and after consultation with the President of the High Court in the case of an office attached to that court and with the Chief Justice in the case of an office attached to the Supreme Court or the Chief Justice.
(2) All officers (other than the principal officers), clerks, messengers, criers, and servants employed in any of the offices established by this Part of this Act shall be interchangeable amongst such offices and shall be liable to serve in any of those offices as the Minister shall from time to time direct after consultation with the President of the High Court in relation to an office attached to that court and with the Chief Justice in relation to an office attached to the Supreme Court or to the Chief Justice.
I move amendment 2:—
"No person shall be appointed under this Act to be Probate Officer unless either—
(a) at the time of his appointment he is a barrister of not less than ten years' standing who is then actually practising, or
(b) he was immediately before the commencement of this part of this Act Principal Probate Registrar or Assistant Probate Registrar of the High Court."
As the Bill stands at present there is no qualification laid down for this probate officer. Yet a very large number of considerations which apply to the Master of the High Court apply to him. It is true that he has no purely judicial function. He acts as registrar to whatever judge is assigned to take the probate business of the High Court and he will have to carry out the administration of the principal registrar of what I might call the Probate Court. In discharging both these duties and for their proper discharge it is absolutely necessary that he should be acquainted at the time of his appointment with the practice of what used to be the Probate Court and which was known until our late Act as the Probate Division. Now, the Probate Court, or rather the court which was the Probate Court, is part of the High Court and has a very peculiar practice of its own. It has a practice which is embodied in quite a large volume—a text book of quite large size. It is a very technical and very difficult practice. Nobody can properly discharge the duties of the probate officer unless at the date of his appointment he knows and understands the then existing probate practice. The Judicial Committee made a report on this matter. It is contained in the paragraph which the Minister read and which you, sir, read, in which the Committee unanimously recommended that the Probate Court officer should be a practising barrister of six years' standing.
CATHAOIRLEACH
Or a practising solicitor.
Yes, or a practising solicitor with the qualification of six years' standing or doing duty in an office for six years for a person who did the duty in the office. I would be perfectly satisfied if the Minister would accept an alteration in it changing ten years to six years and to add the words to be found in the Judiciary Report, namely, if he is an official who has been six years previously at the Bar that his period of official service is to count and to be deemed to be practice at the Bar.
I am not moving this amendment entirely on my own. The suggestion came from the Incorporated Law Society, the body who represent the opinion of the solicitors of this country. They are strongly of opinion that this probate officer with whom their members come in constant contact should be either a practising barrister or a practising solicitor. They told me they would prefer "a practising solicitor" left out, and accordingly I have only put in a practising barrister. I am perfectly willing to put in "practising solicitor" as well.
This amendment seems to exclude the staff from promotion to the position of probate officer. The only legitimate grounds for such an exclusion would be that the kind of man whom we would have as the higher class of court officer would not be able to do this work. That is a contention which I am not prepared to accept. Senator Brown has been quite frank with the Seanad. This is a trade union amendment. It is an amendment aimed at excluding the ordinary Civil Service staff who work in these offices in the courts from promotion to this particular office. I put it to Senators that the only justification for that would be if the view prevailed quite clearly and definitely that the kind of man whom we are going to secure as a higher class officer in the courts would not be capable of doing this work. Only on that ground would it be proper to accept this amendment. This Bill throws open to the staff through the ordinary process of promotion every office except two. These are the Master of the Central Criminal Court and the Taxing Master. The Master of the Central Criminal Court has been closed by Senator Brown's amendment. I hope, however, to re-open it. This amendment proposes adding to the number of doors that will be closed to the ordinary process of promotion from the staff and saying that the probate officer shall be a practising barrister or, as Senator Brown is now prepared to add, a practising solicitor. I do not accept it, not for a moment, that the higher class of officer in the court staff at present or the officer that we would be likely to get in the future would not be capable of doing the work attached to the court. The comment I make with regard to that is a comment made with a knowledge of the men and a knowledge of the type of work that is to be done in that court, and that comment is that there is nothing in the work which a man with a good university degree in law, and so on, could not take up, with his experience down there as court officer. It is, I submit, unsound to suggest that no man but a practising barrister could do that kind of work. If that were true there is hardly a higher post in any Department of the Government, certainly very few in my Department, which should not be reserved for a practising barrister. I put it to the Senator that he entirely underrates the capabilities of the higher class of civil servant. I put it to him that the higher class of civil servant can do things far more technical and difficult than superintending the issue of probates. Men who are not even in the higher Civil Service every day in their lives do work as technical and as difficult in many Departments as the work of the probate officer. I could quote the case of the officer dealing with death duties, income tax, and matters of that kind. I am entirely opposed to this amendment. I think it would be very unjust to the court staff and very reactionary to fence off little positions here and there, and say that they are not to be open to the staffs of the court in the ordinary way, but that they are to be reserved for men practising in the legal profession. I know men who are higher class court officials and I have a fair conception of the man who will be the higher class court officer in the future, and I say, with all due respect to Senator Brown, that that type of man is perfectly capable of doing that type of work and that it would be unjust to exclude him.
Would the Minister say if there were any qualifications laid down for the probate officer and who is to make the appointment?
The appointment will be made in the ordinary process of promotion.
In the Civil Service?
Yes. It will be made formally by the Minister for Justice on the advice of the Master of the office.
Are there any definite qualifications required?
No, but that has been so in the past. With regard to the business done in the court, the work to be done would be considered difficult and technical. The Chief Clerks in Chancery at the moment are laymen promoted from the staff in the ordinary way.
From the statement made by the Minister, I feel bound to say that I must support him in this matter and vote against the amendment. The Minister has laid it down quite clearly that this is a purely technical job. The work, however, can be performed by a layman who is not a professional man. The intention in the Bill is that this position shall be open for promotion within the Civil Service, and I feel in all the circumstances that I must support the Minister and vote against the amendment.
CATHAOIRLEACH
The only thing I would ask the Minister to consider is this: I quite appreciate that you can get a good man in the office who is neither a qualified barrister nor solicitor, but under this Bill, once it becomes law, it may be found that you have an officer who may be brought in from an external department altogether and who may be in no way connected with the courts. He may be brought in from any department in the Civil Service, as I read the Bill as it stands at present.
If we were to go into questions of what is possible and ignore what is probable you would arrive at strange results. It is possible for the Executive Council to appoint a junior barrister of a year's standing as a judge of the High Court.
CATHAOIRLEACH
Oh, no, ten years' standing.
Well, as a Circuit Judge.
CATHAOIRLEACH
No. That is also fixed, and so is the judge of the District Court.
I have probably chosen an unfortunate example. You simply have to put a certain amount of trust in the discretion of the Government which carries on the administration. We are not going to bring a man from the Department of Education and make him a Chief Clerk in Chancery or a Clerk in the Probate Office to do work of which he has no experience. There is no intention of interfering with that in the future, or of making it otherwise than it is, a self-contained staff. There may be exceptions. You may take an exceptionally good administrative officer from the courts and put him into a position in another department. Conceivably that could happen, but you are not going to bring in a man from the Defence, Education, or Local Government Departments, and put him at the work of the more difficult and technical offices in the court. If it is desired to stop that, then, again, I will be reasonable and cater for and guard against fears and apprehensions which I look upon as rather absurd.
I am not going to shut off from the staff work that I regard the staff is perfectly competent to perform. I have not that poor opinion of the recruits we are going to get for the service of the State in any of its Departments. I believe that in the future, as in the past, men will be produced by the ordinary process of administrative experience down there fully capable of performing the work both of the Probate Office and the Office of the Examiner— the position referred to in the other amendment. Men who go into the staff of the courts very often have got a first-class honours LL.B. degree. They have knowledge of that work; they are getting their experience there, and it would be unfair to fence off the position from men of that type, whom we can get in plenty for the service of the State, and say, "No, you cannot get it; you have not the hallmark, and you are not from the ring; you did not eat your dinners at King's Inns. It is true you passed an examination very much more difficult than the Bar final examination, and that you had distinction in that university examination, but all that goes for nothing, because forsooth you are not a practising barrister or a solicitor."
CATHAOIRLEACH
I wonder would this meet the case: "Nobody shall be appointed under this Act unless he is a practising barrister or a qualified solicitor of not less than six years' standing, or a court official of not less than six years' service"?
Would six years' service be enough? The object of the Minister, I think, and it is my object, too, is to be assured that the person appointed to one of those chief offices should have the qualifications.
CATHAOIRLEACH
It is really a highly technical branch of the law.
Might I suggest that the word "ten" should be retained in the section throughout? It would then state that a barrister of not less than ten years' standing, or a court official of not less than ten years' service.
My objection is to the reference to a practising barrister, or a solicitor at all. I feel that the staff are entitled now, at any rate, to what they never had in the past, and that is to have the avenues of promotion thrown open, and that every position which men are competent to fill, or can become competent to fill, by experience of administration, should be thrown open. I do not deny that it is technical work. So is income-tax and death-duties work, and a great many things in connection with the Departments of State are technical, but men are competent to perform them who have not any professional hallmark.
I do not despair at all that the layman in the future will become competent to perform this kind of work. Why irritate the staff and create the feeling that the higher offices are not open to them, and that men will be brought in from an outside ring—from the Bar and the solicitors' profession— over their heads when there is no reason whatever for believing that members of the staff who are not professional men are not capable of doing the work? I am prepared to accept the reservation saying that a certain number of years' service as a court officer shall be necessary. I object to the mention of practising barrister or solicitor. I do not want the eyes of men at the Bar to be turned in the direction of the court staff, and I do not want the eyes of the men on the court staff turned with dread to men at the Bar with the feeling that they are to be brought in over them to the more lucrative positions.
CATHAOIRLEACH
The Minister may think I am a little importunate about this, but I want to say that the Committee recommended that all promotions should go to the staff except in four cases out of the entire official staff, which numbers hundreds. The recommendation was that otherwise the entire promotion should go to the staff. Posts included in the four or five excepted were these two I have mentioned. All I am suggesting is, it ought not to be fair, I think, to rule out the possibility of appointing a qualified solicitor or a qualified barrister to these highly technical posts. I think the thing would be fairly met in everybody's interests if what I suggest were adopted, that is to say, that the appointments should be open to a barrister or solicitor of not less than six years' standing, or a court officer of not less than six years' service. That would not be ruling out a barrister or solicitor, and it would be unfortunate if it was found necessary to appoint a barrister or solicitor and it could not be done.
Would not that interfere with officials already existing?
It would create the feeling and apprehension that people would be brought in over their heads.
CATHAOIRLEACH
Only four out of hundreds.
The Judiciary Committee made reports and recommendations. We have not accepted in detail all their recommendations, and where we have departed from them we have shown cause. I have attempted to show cause for my Department.
CATHAOIRLEACH
I withdraw the suggestion altogether. I thought the Minister told me he accepted it. I am not jealous about the Judiciary Committee's report but I am jealous of the future working of the courts.
I suggest that the amendment should be withdrawn until the Report Stage. We are in somewhat of a difficulty as five or six different suggestions have been made. I think if the Senator would withdraw the amendment and let it come up in another form on Report we might come to an agreement.
How would these officers be appointed if the amendment is not carried?
CATHAOIRLEACH
By the Executive Council.
Whether the amendment is defeated or not the appointments rest with the Executive Council.
CATHAOIRLEACH
Yes, whether the amendment is carried or not these particular posts will still be filled by the Executive Council.
I am quite willing to accept Senator Douglas's suggestion and to withdraw the amendment to allow this matter to come up again on Report, and perhaps we may come to an understanding.
Amendment, by leave, withdrawn.
Question—"That Section 24 stand part of the Bill"—put and agreed to.
NEW SECTION.
I move:—
After the foregoing Section (24) to insert a new section, as follows:—
"No person shall be appointed under this Act to be Examiner unless either—
(a) he is at the time of his appointment a solicitor of not less than ten years' standing who is then actually practising, or
(b) he was immediately before the commencement of this part of this Act a Chief Clerk attached to the offices of the High Court."
This raises practically the same question with reference to what is called the Examiner in the present Bill. Exactly the same arguments apply to it, and no doubt exactly the same answer will apply.
I have a stronger answer.
I am not so sure about that. I am willing that this also should stand and be brought up on Report.
Amendment, by leave, withdrawn.
Question—"That Sections 25, 26, 27, 28, 29 and 30 stand part of the Bill"— put and agreed to.
SECTION 31.
Save and except Section 49 (which relates to the closing of district probate registries), nothing in this Act shall apply to the District Probate Registries, and none of those Registries shall for the purposes of this Act be deemed to be or to have been attached to the High Court or to the former Supreme Court of Judicature or any branch or division thereof.
"Save and except Section 49" is, I think, a mistake. It should be "save and except Section 54."
That is so. We noticed that. It is a misprint. I will bring up an amendment to it on Report. I understand it is the practice here that Government amendments should be brought up on Report.
CATHAOIRLEACH
I want to get rid of the idea that there is a practice here that Government amendments can only be brought up on Report.
I think the Government amendments are moved on Report by Ministers, but any member may move an amendment in committee.
CATHAOIRLEACH
Government amendments have been moved in Committee on many occasions.
I move:—
In Section 31 to omit the figures "49" and insert in lieu thereof the figures "54" in the first line.
Amendment put and agreed to.
Question—"That Section 31, as amended, stand part of the Bill"—put and agreed to.
I move:—
To add at the end of Section 32 a new sub-section as follows:—
"(4) For the purposes of this section the Minister may include a county borough in any portion of any county so amalgamated or divided as aforesaid and the work of such county borough shall be administered by the circuit court office of the county or portion of the county to which it is attached."
This deals with the circuit court. The Minister takes power to amalgamate a number of counties into a circuit area or to divide a county into two. The county of Cork is one-tenth of the area of Ireland, and I ask the amendment should be accepted so as to incorporate the county borough of Cork in any one or other of the divisions of the county.
As the section stands the Minister may do any one of three things. He may split up a county, he may amalgamate several counties, and he may amalgamate a county with a county borough, but he has not power to amalgamate a county borough with part of a county. Take Cork as a concrete instance. We could and will amalgamate the city and the county, and we could but will not make the city one unit and divide the county into east and west so as to have three units, that is, the city, the county east and the county west. What we cannot do— and the Senator seeks power to do—is to make two units, the city and east county as one unit and then the county west as another unit.
That was the whole arrangement. The Senator is anxious to confer power on them to take the latter course. We do not want it, and if it is conferred on us we will not use it. Beyond that I have no objection to the amendment.
Amendment, by leave, withdrawn.
Amendment 5.—Section 32. To add at the end of the section a new sub-section as follows:—
"(4) The county of Cork and county borough of Cork shall remain as at present divided into two areas, with a separate circuit court office attached to each." (Senator Dowdall)—not moved.
Question—"That Section 32 stand part of the Bill"—put and agreed to.
SECTION 33.
(1) There shall be attached to the Circuit Court so many County Registrars as the Minister, with the sanction of the Minister for Finance, shall from time to time direct.
(2) Every county registrar shall be appointed by the Executive Council and shall hold office at the pleasure of the Executive Council.
(3) No person shall be appointed to be a county registrar unless at the time of his appointment he is either—
(a) a solicitor of not less than eight years' standing who is then actually practising or has previously practised for not less than eight years, or
(b) a Clerk of the Crown and Peace, or
(c) a person who has been a Clerk of the Crown and Peace or a county registrar.
I move:—
In Section 33, before sub-section (3), to insert a new sub-section as follows:—
"(3) No county registrar shall be removed from his office without the concurrence of the Circuit Judge to whose Circuit Court he is attached."
Senators will remember that I explained the reasons for this amendment when the Bill was up for Second Reading, and I need not repeat them now at any length. In reality the county registrar is in exactly the same relation to the Circuit Judge as the Master of the High Court is to the Judges of the High Court, and the Minister in the Dáil admitted the logic of the position but he distinguished the two cases in this way. He has agreed, and it is now in the Bill, that certain principal officers of the High Court cannot be dismissed without the concurrence of the Chief Justice and the President of the High Court. He admits that that in logic ought to apply equally to the county registrar because he is really in the same position as the Master. He, too, has judicial functions and his relation to the judge is the same as that of the other principal officers to the judges of the High Court. But he says that a Circuit Judge is not always in touch with the county registrar, that he is only in physical touch with him for a certain number of weeks every year, some of them more and some of them less, and, therefore, he would not know enough about the county registrar to make his concurrence a necessary or proper condition of the dismissal of the county registrar.
My answer is, he knows a great deal more about the county registrar than the Minister would know, and apart from that, although he is not in absolute physical touch with him he must be in constant communication, and surely the judge, who knows this officer so well, is at any rate in a much better position to form an opinion about the officer's dismissal than the Minister for Justice. There is another grave objection to allowing an officer in this position to be dismissed by the Executive or the Minister. He is, in fact, a judge. He performs or will perform most important judicial functions, and it is an interference with the independence of the Bench that a person, occupying a real judicial position and exercising the real judicial functions, should be dismissed by the Executive. It is contrary to the principle in our Constitution that our judges should be absolutely independent. I, therefore, press very strongly on the Minister to let the logic which he admits in the case of the principal officers of the High Court also apply to the county registrar.
The matter the Senator has mentioned, both on the Second Reading and to-day, of the comparison or contrast in the amount of contact between this county registrar and the judge on the one hand, and the Minister on the other, will be dealt with first. There is no use in talking about the Minister personally and the number of hours he sees individual officials. I do not have any personal contact with the passport officer in Cobh, but I am in constant administrative contact with that officer from one end of the year to the other. In the same way I will be in constant administrative contact with those officials we are now considering, and there really is not any point or substance in urging that I do not see them in the flesh more often than the judge does because it does not turn on that. The Minister's contact with officers is the administrative contact through the ordinary official channels of his Department and not so much the personal contact with which the Senator makes play.
The independence of the judiciary is an impressive shibboleth. Let us see we do not ride it to death. One could set up other impressive shibboleths over against it. One could talk about democracy and be very eloquent on that line. I want to put it whether it is entirely wise to say whether an important public official down in the country on whom the public would be dependent for courtesy and satisfaction in the transaction of their business shall not be removable without the concurrence of a person who, for all practical purposes, is himself irremovable. Is that wise?
It is the same in the High Court.
Not quite, and in any case the Senator knows the High Court position was pretty well of a compromise to get out of an ugly and rather disedifying wrangle. It was not my proposal that any officer in the High Court should be irremovable save with the concurrence of the judge. It was something I accepted to guard against fears and apprehensions which I regarded as utterly groundless, but there are, at any rate, in the High Court officials in daily and hourly contact with the judges. The county registrar is different.
His judge is, perhaps, in his county for six weeks in the year, and he is away in other counties for the remainder of the year. The judge is not in that constant contact that would enable him to form an opinion on the conduct or efficiency of the officer. I put this point, too: that that public official performs work now, and will in the future perform work, with which the Judge has nothing whatever to do —the preparation of the jurors' lists and the matter of the franchise. He will have tasks of one kind or another to perform for my Department and other Departments of the State. Is the judge to pronounce upon the degree of satisfaction which he gives in the performance of these tasks? I ask the Senator to think it over. To some extent it is a paper point. If the amendment is carried I will not lose any sleep about it, but I ask Senators whether this fetish, this shibboleth, of the independence of the judiciary, is not being overworked, and to say whether it is entirely wise that an important public official down the country, holding a very pivotal position, shall be placed to that extent out of popular control, that he shall be removable only with the concurrence of a person who is himself for all practical purposes irremovable.
The Circuit Judge may withhold consent. He may say: "I know nothing whatever about that," and the official may in many respects continue to give the very reverse of satisfaction to the public and to the Department, but he cannot be removed because we are asked to provide that, and we are asked to provide that because the independence of the judiciary might be infringed if we provided anything else. The thing is not right, in my view; it is not sound. The independence of the judiciary is being steadily overworked in the whole matter of this Bill. I am told that this officer has judicial functions. He has to an almost negligible degree. He has no original jurisdiction; he has no final jurisdiction. Technically his functions are judicial, but it is just as true to say that to the extent of 99½ per cent. of the duties he is an automation. The orders he makes are orders about which there can be no question. He has no final jurisdiction. He is exercising delegated jurisdiction from the judge, and in every case there is an appeal from his orders to the judge; but he is also a big administrative officer performing, and he will be asked to perform, a great many tasks that the Clerk of the Peace was not asked to perform in the past. He will be doing work for my Department and for the Department of the Minister for Local Government.
I suggest that it is inadvisable to say that, regardless of the degree of satisfaction he gives or withholds in the performance of these tasks, regardless of the satisfaction or courtesy he gives or withholds to the public in his conduct, he shall not be removable, save with the concurrence of the Circuit Judge, who is under no obligation whatever to concur, and who is not himself amenable to the control of the public or their representatives.
Amendment put and declared lost.
I beg to move:—
Section 33, sub-section (3). After the word "years" in line 21 to insert the words "and whose age does not exceed fifty-five years at the time of his appointment."
The position of county registrar will be one of considerable importance and serious responsibility. This Bill very carefully provides that candidates for this important position must possess certain professional qualifications and legal experience, but no provision whatever is made that these professional qualifications and legal experience will be backed by physical energy. There is no age limit in this section, and I was just wondering from the previous discussion whether some recommendations had not been made by the Judiciary Commission with regard to the age limit. The Minister is responsible for the appointment of this officer and he carefully provides that he has legal knowledge, but he takes no thought, as I said before, whether he has physical energy to carry out the duties of this important office. In the Dáil an amendment somewhat similar to this was moved. The age limit was 50 years, and the Minister there said that it was possible he might not be able to get a candidate who could perform these duties sufficiently well under the age of 50. There are thirty or forty solicitors in every county in Ireland, and I think it is a slur on those who are under 50 years of age to think that the Minister could not get a young man amongst them capable of performing these duties.
What is a young man?
Of course it is a very touchy question. As far as I am personally concerned, I do not like to think that a man is not young at 55. but I must have regard, at the same time, to the fact that the lethargy of old age comes on long before 50 years. I am reminded that Cato held office at 80 years, but I do not think Cato would be appointed at 80 years of age.
He never worked on a railway.
I would like to remind Senator Farren that this is not a jocular question. This is a very serious question. We ought all to remember in connection with the office of registrar. that it is a pensionable office, and I think it would be a mistake in view of the insistent cry there is now for economy throughout the country, that the Minister should flout that cry, and appoint a man over 50 years of age. Possibly he may not, but he is leaving himself open to do it. He is leaving himself open to the suspicion that he may do it, and I think that is flouting the demand for economy. The amendment introduced in the Dáil was only defeated by two votes, the figures being 27 and 29. My amendment extends the age to 55. I believe that if 55 was mentioned in the amendment in the other House it would have been carried, if there had not been party claims.
What have party claims to do with it?
I say that party claims resulted in defeating the other amendment by a majority of two. If it had been left to a free vote that amendment would have been carried.
I am opposed to this amendment. If it is raised for the purpose of economy I would like to know what is at the back of it, in fixing the age limit at 55 years.
I am quite willing to change the age.
CATHAOIRLEACH
Would you be willing to advance it?
I made no suggestion as to age. I simply say that if efficiency and virility were wanted 55 would not be the age inserted. In an appointment of this kind, the first under this Bill, I think, the House would be acting wrongly if it prevented the Minister exercising his discretion and getting the most suitable man.
I am also opposed to the amendment as I think it would be contradictory to what is in some sections in the Bill. Apparently at present a Clerk of the Crown and Peace is open to be appointed. A question might be raised as to the age for retirement, but if a man who held office is still efficient at the age for retirement he might be allowed to remain.
Is not physical energy a rather dangerous question to touch on in this Bill, because if that were done you might have the appointment depending on a man's form at golf and we might have Senator MacKean coming in plus fours. One thing has emerged from the discussion: that a man of 55 has great physical energy. Apparently he has thrown his shadow over the House. Senator Yeats told me that Brian Boru won the Battle of Clontarf at 88. If he was connected with the courts he would have, apparently, to retire at 55. I think the question of age should not arise.
I am in favour of the amendment. If the age was fixed could it be extended?
CATHAOIRLEACH
That is discretionary.
If a man was appointed at 60 or 61 years of age, and if he was to retire at 65 he would serve only a few years. As this is a pensionable appointment I will support the amendment.
A man with a salary of, say, £ x, if he gave ten years' service, would be entitled to ten-sixtieths, one sixth of x. He would not be entitled to any pension unless he had ten years' service. I am not prepared to accept as an abstract decision that a man is too old at 55. I was 34 last Monday, and that is near enough to 55 to make me unwilling to accept that general proposition. My position in this matter is that it is unwise to attempt to tie the hands of the Executive Council in an appointment of this kind. A good man 60 years of age with a prospect of 10 years' service might be a better appointment than an inefficient man of 30, 35 or 40 years of age. I am not going to pretend that I am not aware that this amendment is very much in persona. I know it is, sand I disapprove of amendments being put down, not on broad, sound, administrative lines, without any well-defined principles underlying them, but simply to cover a particular case.
I want to say that I repudiate with the utmost indignation the aspersion that the Minister has cast on my amendment. If I retorted tu quoque, I would say that at the present moment a candidate has been promised the position.
An excellent man; and it is because of that the amendment is put down.
Is it not plain common sense that if I was running a candidate, or had an interest in any candidate, I would not move this amendment, as that candidate would have no chance with the Minister? If you admit that why accuse me because I move this amendment?
Amendment put and negatived.
I move:—
Section 33, sub-section (3). To add after the word "or" in line 22 the words "Deputy Clerk of the Crown and Peace or."
This amendment is for the purpose of safeguarding the position of officials in the country who may have filled the office of Deputy Clerk of the Crown and Peace and who are not covered by the Bill. I know one case where such an officer has eight years' service.
CATHAOIRLEACH
The next amendment, in the name of Senator Dowdall, is somewhat similar.
In view of that I am prepared to withdraw my amendment.
Amendment, by leave, withdrawn.
I move:—
Section 33, sub-section (3). To add at the end of the sub-section a new paragraph as follows:—
"(d) a person being a solicitor of not less than eight years' standing who has acted as Deputy Clerk of the Crown and Peace for not less than three years immediately preceding the passing into law of this Act."
Senator Haughton should know that there is no such statutory office as Deputy Clerk of the Crown and Peace in the sense of a permanent separate appointment. The position is simply this: that when the Clerk of the Crown and Peace goes away, or if he is ill, he generally gets his senior clerk to act in his absence. That is all that is meant by the Deputy Clerk of the Crown and Peace. If the amendment were carried it would make all senior clerks who have from time to time acted in the absence of the Clerk of the Crown and Peace eligible for appointment as county registrars. I object to that. I do not think it is a proper provision, and I ask the Seanad to share that view.
CATHAOIRLEACH
What do you say to Senator Dowdall's amendment?
Only one man, as far as I know, comes within the terms of that description, even if the amendment were passed. I do not think the amendment would secure what is intended to be secured. I have the same objection to both amendments, except that the first amendment is drawn closer and would not have that general application which the other one would have. I would have no particular objection to the amendment passing, except that I would like to tell the Senator definitely that its passing will not secure what is intended.
I quite appreciate what the Minister said, but this amendment simply makes the man eligible. I only know one case, but there may be others, of a man who acted as deputy for years. I think, perhaps, his position is safeguarded, but I am satisfied that he is eligible. I do not ask the Minister to appoint anybody if he does not think it right.
I would like to say, in justice to the Senator, that the particular official covered by his amendment is an excellent official, a highly competent man, quite suited to fill the position of county registrar. I have no objection to the amendment on that ground, but as the amendment is drawn it would simply have the effect of making one man eligible who acted in the position of deputy registrar for many years in Cork. The Cork position is simple, as we intend to amalgamate both Cork city and county under one registrar and the present Clerk of the Crown and Peace in the West Riding will be appointed to that office.
Amendment, by leave, withdrawn.
Sections 33, 34 and 35 agreed to.
SECTION 36.
(1) Every county registrar shall have and exercise such powers and authorities and shall perform and fulfil such duties and functions as shall be from time to time conferred or imposed on him by statute or rule of court, and in particular shall perform and fulfil the duties and have and exercise the powers and authorities expressly imposed or conferred on him by this Act and (unless and until otherwise provided by statute or rule of court) shall also, save as is otherwise provided by this Act, perform and fulfil all the duties and have and exercise all the powers and authorities which immediately before the commencement of this Part of this Act were by law imposed on or vested in the Clerk of the Crown and Peace or the registrar of a Civil Bill Court or, where a local bankruptcy court formerly existed, the registrar, or any other officer of that court except the official assignee.
(2) Rules of court made under Section 66 of the Courts of Justice Act, 1924 (No. 10 of 1924), may provide 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.
(3) 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 fulfil such duties and functions in relation to that court as shall be assigned to him by rules of court.
I do not move amendment No. 10 on the paper, but I beg to move amendment No. 11:—
Section 36, sub-section (2). After the word "court" in line 27 to insert the words "including the payment out of court of moneys lodged under the Workmen's Compensation Act."
I think the Minister ought to accept this amendment because it would prevent parties having to go into court to get orders for small sums lodged under the Workmen's Compensation Act and instead to go to the registrar who could pay the money over to them. It is merely a matter of convenience, and in some cases it would mean a saving of expenditure on the part of poor people, particularly in reference to the claims of minors.
I cannot see any good reason for inserting these words in the section. The rules themselves will say what the registrar has to do and if the Senator thinks the rules should give him this particular class of work to do the point can be raised when the rules come before the Seanad for approval. It seemed to me, when I examined the amendment first, and I am still of that opinion, that it would be out of place to pick out and put into this Act one particular branch of work as work which it might possibly be well to give to the county registrar. I suggest that the Senator's ideas on this matter might be held over until the rules come before the Seanad.
I might mention also that the Workmen's Compensation Committee will be reporting shortly and they may make some suggestions with regard to this matter.
I thought the absence of some such provision as made in the amendment might have been an omission.
If I am not absolutely correct in what I said as to the propriety of raising this matter on the rules, and not on the Bill, I will let the Senator know on the Report Stage and I will be prepared to deal with the matter.
CATHAOIRLEACH
Section 38 provides that the rules of court shall specify the powers of the county registrar.
Amendment, by leave, withdrawn.
Sections 36, 37, 38, 39, 40 and 41 were agreed to and added to the Bill.
SECTION 42.
(1) There shall be attached to every circuit court office such and so many summons-servers as the county registrar, with the sanction of the Minister and (as regards numbers) of the Minister for Finance, shall think proper.
(2) Every such summons-server shall be appointed by the county registrar with and subject to the approval of the Minister and shall hold office at the will of and may be removed by the Minister and shall be paid out of moneys to be provided by the Oireachtas such salaries as the Minister shall, with the consent of the Minister for Finance, direct.
(3) Every such summons-server shall be and is hereby declared to be competent to serve within the area served by the circuit court office to which he is attached any writ, summons, process, notice or other document issued by or from any court.
I beg to move amendments 12 and 13:
Section 42, sub-section (2). To delete in line 46 the word "Minister" and to substitute therefor the words "Circuit Judge."
Section 42, sub-section (2). To delete in line 49 the word "Minister" and to substitute therefor the words "Circuit Judge."
I think if the Minister considers this he will not insist upon the wording in the section: "Every such summons-server shall be appointed by the county registrar with and subject to the approval of the Minister ... and may be removed by the Minister," and so on. One of these summons-servers may go to a races or he may get drunk, and if these complaints have to go to the Minister and if he has to make investigation into the matter, the whole process of legal administration and justice might be brought into contempt. Amendment 13 is supplementary because it is almost infra dig for the Minister to investigate such small matters, and such small defaults.
I believe I have really rather a good case on this point. The proposal is to delete the word "Minister" in the section, and to substitute therefor the words "Circuit Judge." The proposal is that the Minister should have nothing to do with, or be consulted as to, the appointment of summons-servers, or as to their remuneration. I think the first amendment is not precisely what was intended. We can take the two together. The Minister proposes to have quite a lot to say in these matters about appointments and remuneration and removal, and I do not see any good case against that. I do not see any good case, for instance, for making the removal of the summons-server a matter for the Circuit Judge. It is an administrative act, and not in any way a judicial function. I think we have a right conception when we say that the judges shall not in our judicial system of machinery of this State perform other than judicial functions, and that they shall have no executive or administrative responsibilities. My second point is that the summons-server is not merely connected with the circuit court. He deals also, or may deal, with the high court and the district court. He is not so much an officer of any one of these courts as an officer under the Act when required in connection with all.
My third objection is that the judicial control of this matter, as it existed in the past under the county court system, was not an outstanding success. A large percentage of the present men are too old, or too careless, or utterly unreliable. I ask the Senator to consider whether it is wise to do what he suggests, to do away with all Ministerial control or responsibility in respect of these officers and put it on to the judges who, as I pointed out before in another connection, are no way responsible. He can do the obviously correct thing or leave it undone, just as he likes, and has not to answer to anyone for it. Now you may say that in the case of misconduct on the part of one of those officers, surely it should be within the powers of the judge to censure him forthwith. Why not give to the county registrar the power of suspension over court officers? I think we will provide for that matter, for a case might arise that would require to be dealt with on the spot in a disciplinary way.
I would accept that if the Minister brings it in on Report.
My suggestion is that the power of suspension should be with the county registrar. I would not bring the judge into it at all. If he sees misconduct he tells the county registrar that the man's conduct deserves immediate suspension. The Senator can take it that it is not simply looking for power in the matter. It is considering what is administratively right, and he can take it that when any county registrar recommends dismissal of a summons-server that he is going to go in the same way automatically, as, for instance, an officer in the Gárdaí would go if the Commissioner sent a strong recommendation to that effect to the Minister, who would bring it before the Executive Council. It is simply providing the proper machinery.
Amendment, by leave, withdrawn, to be brought up on Report.
Question—"That Section 42 stand part of the Bill"—put and agreed to.
SECTION 43.
Nothing in this Act shall apply to the office of official assignee attached to a local bankruptcy court established under the Local Bankruptcy (Ireland) Act, 1888, before the passing of the Courts of Justice Act, 1924 (No. 10 of 1924).
I move:—
To add at the end of the section the words "or to any existing officer appointed under Section 8 of the Local Bankruptcy Act, 1888."
That is simply adding other officials in addition to the official assignee— like the Registrar in Bankruptcy, and the officer filling a menial position like a messenger, a most useful servant. I do not see why it should be confined to the official assignee. Other officers should be embraced in it.
The only existing officers so far as I know, other than the official assignees, are the deputy registrar and the court messenger. Referring to Section 36 of the Bill, sub-section 1, the last two lines, it will be seen that the county registrar has all the powers of these other officers, and coming then to Section 56 you will note that the county registrar may arrange for the performance of these duties by persons employed in his office. What will happen in fact will be that the present officers will be retained unless they are incapable, and so far as I know they are not incapable. The only reason why an assignee is specially mentioned both here and in Section 56 is because of the nature of the duties he must have an existence separate from the registrar, and he must have a statutory existence. I readily give the assurance that what will happen is that the present officers will be retained.
Amendment, by leave, withdrawn.
Question—"That Sections 43, 44, 45, 46, 47 and 48 stand part of the Bill"— put and agreed to.
SECTION 49.
(1) Save as is otherwise provided under this section, all fines, amerciaments, penalties, and forfeited recognisances imposed or levied by any court after the appointed day shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance shall direct and notwithstanding any enactment to the contrary, no part of any such fine, amerciament, penalty, or recognisance shall be paid or allowed to any prosecutor, informer, or other person or paid into any fund.
(2) So much of any fine, amerciament, penalty, or forfeited recognisance imposed or levied by any court on or before the appointed day as is not received by the Registrar of District Court Clerks on or before that day or lawfully paid before, on, or after that day to a prosecutor, informer, or other person shall (save as is otherwise provided under this section) be paid into or disposed for the benefit of the Exchequer in such manner as the Minister for Finance shall direct.
(3) Whenever any fine, amerciament, penalty, or forfeited recognisance is remitted in whole or in part after the same has been paid into or disposed for the benefit of the Exchequer under this section, such fine, amerciament, penalty or forfeited recognisance or the portion thereof so remitted (as the case may be) shall be repaid out of the Exchequer in such manner as the Minister for Finance shall direct.
(4) The Minister may, with the concurrence of the Minister for Finance, by order direct that the whole or any specified portion of every fine or penalty belonging to any particular class or classes of fines or penalties specified in the order shall not be paid into the Exchequer under this section and that, in lieu of being so paid, the whole or such specified portion (as the case may be) of every such fine or penalty shall be paid to such prosecutor, informer, or other person or into such fund and upon such terms and conditions as shall be specified in the order in respect of each particular class or classes of fines.
I beg to move:
Section 49, sub-section (1). To insert before the word "Save" in line 11 the words "Where any fines, amerciaments, penalties and forfeited recognisances have pursuant to an Act of Parliament, Ancient Charter or Patent been granted to, and for upwards of twenty years paid to the credit of any of the funds of any public body, corporation or council, they shall continue to be appropriated as heretofore; but."
I want to remove from the mind of the Minister or anybody here the idea that this proposal has emanated from me. I received a letter from the Corporation of Limerick which reads as follows:—"The council have directed me to forward to you the enclosed copy of a resolution most rigorously protesting against the proposal in the Court Officers Bill now before the Dáil to divert to the National Exchequer the funds heretofore levied and paid over to the Corporation of Limerick. It is the opinion of the members that this Bill, if passed, will deprive the municipality of Limerick, the oldest in Ireland, of the fines that they have been receiving from time immemorial. It is a Bill that would seriously interfere with their rights and privileges. We shall be glad to see the matter followed up by you." The resolution stated that the fines and penalties which have been levied in the city court at Limerick produce proceeds equal to a rate of one penny in the pound but that they leave the ratepayers liable for the maintenance and upkeep of the courthouse which was also erected at their expense, and without regard to the fact that a proportion of the fines and penalties are produced by the activities of the officers of the council in the enforcement of the Public Health Acts and the Food and Drugs Acts and other statutes, and that they call upon their representatives to direct attention to the matter when that Bill comes before the Seanad.
Now, in order to make clear to the Seanad the way in which these ancient privileges of Limerick arose, I should first begin by saying that Limerick is a very ancient city, and I should ask the Seanad to let their minds go back to a period a thousand years ago when Ireland was groaning under the oppression of the Danes. A Limerick man formed an army down in Limerick. He organised the country and inflicted a signal defeat on the Danes. He afterwards organised the whole country into a position to fight the Danes and finally defeated them and broke their power at the battle of Clontarf in 1014. He was unfortunately killed at that battle, but his family carried on the Government in Limerick and by judicious administration they added greatly to the privileges of the city.
When the Normans completed the conquest of England they extended their power to Ireland. The King in power in Limerick at the time thought it desirable to make a treaty with them and accordingly met them with sufficient forces to command respect in the neighbourhood of Cashel and made a treaty with them which reserved the privileges which Limerick had obtained under the victorious Brian Boru. That treaty was finally confirmed by a charter which was granted to Limerick by King Richard I. (Richard Coeur-de-Lion), in 1197. Under that charter Limerick elected, as its first Mayor, Adam Sarvant, in 1198. I may say that London did not obtain the same rights until ten years later, Dublin till 110, and Cork 120 years later. This charter was confirmed by King John in 1199. Another charter was given by Queen Elizabeth which recited the provisions of the first charters. King James I. of England and 6th of Scotland greatly enlarged these previous charters in 1609. I will read the words of the charter. By a curious coincidence there is in this very Section 49 one word "amerciament" which has been transferred from this very charter of James I. That charter recites that as "the citizens of our city of Limerick have sustained not only intolerable wasting and spoiling of their goods, but, what is greater, the cruel shedding of their blood, we therefore in consideration thereof ordain, institute, declare and grant that our city of Limerick aforesaid be and remain for ever hereafter a free city"; and it goes on amongst other things "to grant by these presents to the aforesaid mayor, sheriffs and citizens and their successors the fines, redemptions, issues, amerciaments, forfeitures, perquisites and profits whatsoever happening, assessed, imposed or taxed or to be so, in the court to their own proper use and to the better support of this city."
Does it not strike this House as somewhat peculiar that though Limerick has preserved its privileges down to the present day, that after all the vicissitudes it has gone through after the occupation by Cromwell and the violation of the Treaty in the time of William III., that these privileges have been continued and exist till now and that it should be reserved for an Irish Parliament, sitting here in Dublin, to revoke these privileges? It is quite true, as you, sir, pointed out, the last day when this matter was before the Senate, that there is power under sub-sections (3) and (4) of Section 49 in the Minister for Finance to direct that the whole or such specified portion as the case may be of these fines and penalties shall be paid into such fund as the Minister may direct.
The people of Limerick rather object to be put into the position of Lazarus looking for "the crumbs that fall from the rich man's table," and they do not want to be left to the tender mercies of the Minister to get what they had hitherto been entitled to receive. This right, as I have shown you, by the resolution of the Corporation, amounts to the equivalent of 1d. in the £ in the rates and we have always been told that one of the essenials of proper taxation is that taxes should fall equally on the whole community. It seems to us that that essential is being violated by this Bill. Why should Limerick be called upon to contribute a rate of 1d. in the £ while the rest of the country goes scot free? We do not see why she should. Personally I have a little experience of Ministers for Finance. I do not care whether he is the Minister for Finance here or elsewhere, but you are always met with the statement that the Treasury is empty with many calls upon it so that he cannot afford to be generous. We do not wish to be referred to the generosity of the Minister. It is not generosity we want. It is justice. We want to have reserved to us unimpaired the rights which we have enjoyed for the last thousand years.
We had better get the proportions of this thing to begin with. I have a table here showing the amount of the fines collected and their apportionment. I find that the total would be £22,000, of which £7,000 are imposed in the Dublin area and about £14,500 elsewhere. Of that, £8,000 goes into the Fines and Fees Fund towards the upkeep of the District Court clerks; a sum of £3,250 goes towards the upkeep of the Gárda Síochána; a sum of £2,300 to the Revenue Commissioners; a sum of £4,500 for the Road Fund. Now, £3,000, and that is the item we are concerned with, goes to the local authorities, £400 to Cattle Diseases Fund, £250 to the Conservators of Fisheries, and £400 to the Gárda Síochána Reward Fund.
Of the item of £3,000 to the local authorities, a sum of £1,200 goes to the Dublin Corporation, and £50 each to the Pembroke and Rathmines Urban Councils in aid of the impoverished ratepayers of those areas.
May I ask whether the figures the Minister is giving us includes the fines locally levied in Limerick?
I am passing on to Limerick. The Senator must have a little patience. That would be £1,300 in Dublin and district, leaving £1,700 to the local authorities outside Dublin. That is allocated approximately in these proportions:—Cork, £600, Limerick £350, Waterford £200, other places £550, making a total of £1,700. So far as I have been able to find out, each of the three cities mentioned gets all the fines inflicted in the city because of an Act, the Municipal Corporation Act of 1840, which has attained the age of 86 years. I do not know what the principle underlying that Act was, but I am aware that the conditions in which the fines were then imposed were very different from the conditions which now exist. The court was a local court, not part of a State-maintained system, as is the present position. I do not regard that Act as having any particular sanctity which should make us slow to revise it after such a lapse of time and such a radical change of circumstances. I submit that the Senator should be prepared to consider this thing on its merits rather than invoke ancient charters and statutes granted and passed at a time when conditions regarding court maintenance and upkeep were entirley different.
I stated in the Dáil quite clearly that we are prepared to investigate the merits of each case and make orders accordingly. This apportionment of fines has become a veritable tangle. We ask the Oireachtas to cut clear away from the entire thing and leave it to the persons and bodies with a good case to show. That gives a retaining power to the Minister for Finance and myself to make orders resurrecting any right of apportionment for which a case can be shown. The view underlying the Senator's amendment is that the merits do not matter. It is the ancient charter or patents that matter. I put it to him that it is not reasonable to regulate the affairs of what may be called the Limerick Police Court in the second decade of the twentieth century on the lines the advisers of James the First thought suitable for whatever court was in the City of Limerick in their time. I could weary the Senator and his colleagues on this matter of fines. I could show the tangle they led into. Let me take out of the memorandum one instance. There is a sum of £550 out of £1,700 divided among a number of people.
Under the Act passed seventy-two years ago, the Towns Improvement Act of 1854, rather more than 100 towns had special rights to fines inflicted in those towns. Such towns formerly enjoyed two local courts, namely, the ordinary Petty Sessions Court and the Towns Court, the latter constituted under the 1854 Act. If an inhabitant were arrested in an advanced state of intoxication and disorder he might be brought before either of these courts. If he were brought before the Petty Sessions Court and fined 5/-, the town got 2/6. If he were brought before the Town Court and fined 5/-, the town got the whole 5/-. That was complicated enough, but under the Courts of Justice Act of 1924 the authority of both of those courts merged and vested in the District Court and then the position becomes a strange one. The District Justice is now the Town Court. Solomon, in consultation with the Supreme Court here, could scarcely decide whether the town is entitled to the 5/- or to the 2/6, and these are the kind of tangles and problems that exist under the apportionment of those fines.
How is the matter going to be simplified by the Minister taking the money instead of leaving it to us?
We must get to a clear, definite position. We are letting a case be made for the revival of such rights as can show a case for revival. Surely it is the merits that matter. Does the Deputy think we are inserting this provision in the Bill to take £300 off the City of Limerick? We are not, because this whole tangle of fines takes up the time of a staff in endless book-keeping, and very often it is the merest book-keeping, because very often the body which is to get the fine is another Department of State. It is no lust for the £300 that inspires this, but it is to get clarity in administration and to prevent unnecessary calls on the staff in endeavouring to pick their way through what has become a veritable maze. If there is a case made for the revival of an Order, or the apportionment to the City of Limerick, then the Order will be issued. We are out for clear administration. Really, any District Court Clerk ought to be able to say off by heart all the persons or bodies in the country who are entitled to any apportionment of fines. I suggest also he ought to be able to say why. But there is no one in the country who can give you a clear statement of the law in this matter. I did, under pressure in the Dáil, give a considerable amount of information. I never suggested to them, and would not, that it was exhaustive, because I warned them it would be impossible to give them exhaustive information as we had not got it. I gave them so much that I succeeded in wearying them in the Dáil. Really, I ask the Senators to agree that these apportionments, arrived at many hundreds of years ago in entirely different circumstances, cannot stand immutably because of reverence for their age. If a case cannot be made to-day hic et nunc they ought to disappear.
Have you power to do away with rights under a Royal Charter in this Bill? You have rights under the Charter Bill.
I am advised that we have powers to do away with these appointments. The whole court system has changed. The court system that existed at the time these rights were granted has gone and I pointed out, with regard to certain of the fines, that no man or court could say who should get the apportionments, present conditions have so altered. It is in that state of circumstances that we ask the Oireachtas to remove such apportionments.
It is the principle we are out for, not the amount.
I am all for principle, too, but one good principle is to have our laws clear and understandable and to have our administration at any rate laid on lines which do not make for useless calls on the staff.
The Minister asked us to take the merits of the case. There are merits, and the merits are the antiquity and the romance connected with this charter. I am surprised to see the Minister, who has a certain amount of romance and poetry about him, trying to persuade us that he is an accountant and that the idea of the Government was to turn the system into a cash register or totalisator. Surely it would be better to get the good-will of the city of Limerick for this small concession of £300. This city had a magnificent record when Dublin was kow-towing to Henry II. It is the only city practically that justified its existence in its resistance to the Norman and the Dane. The good-will of that city should be invited. Limerick has a good deal to be grateful for, too. It was selected on account of its physical advantages as the seat of the great power scheme. The Minister cannot persuade the House that he is an accountant and that he has an opportunity of saving on this. It is only a miserable sum. I am not going to be drawn away from the question which, I take it from Senator Barrington's excellent address, is the antiquity and romance attaching to that Treaty, for the sake of £350. I do not think the Minister would be wrong if, with a stroke of the pen, he allowed that ancient right to remain.
CATHAOIRLEACH
I am not sure whether Senator Guinness has not raised a question that may not be one of serious importance. I do not know whether under this section—of course the Minister may have had advice in the matter—you are not trying to capture money paid under Royal Charter.
And a Royal Charter is supposed to be of particular sanctity.
I am not interested in Royal Charters or anything of that kind, but I am interested in what Brian Boru did. I am also astonished that the Minister should put on his arms and helmet and charge down upon Brian Boru. I think he does not seem to have any regard at all for antiquity whereas I have. I am a conservative in these matters. Brian Boru gave this charter originally, and I will certainly vote that the city of Limerick should retain its right in this matter of 2/6 or whatever it is. I think it should not be appropriated by the Minister for Justice and put into the Treasury. I object to that altogether. There was no difficulty about this for 1,000 years, but now the matter is questioned. It always went to somebody.
CATHAOIRLEACH
I think the amendment of Senator Barrington would require to be somewhat altered. I think you have to insert the words "for upwards of twenty years prior to this Act."
The difficulty I am in is that I was not quite sure that during the late trouble the right was not interfered with for a short time, but it has been in existence for hundreds of years. I have shown the historical continuity of it. It was a result of the privileges granted because of the great services which Limerick gave to the country and was conferred by Treaty.
CATHAOIRLEACH
I only want to get the matter right.
The difficulty I am in is that during the last twenty years, during the troubles, I am not quite clear that these moneys were obtained.
CATHAOIRLEACH
You might say: "have been paid any time within the last twenty years," because otherwise the twenty years might have occurred at the time of Brian Boru. Another point is that your amendment applies all over the State. It does not apply to Limerick alone. It applies to all towns with ancient charters, if there are any, that are entitled to these fines. I am only suggesting that we should make this amendment watertight. You can do so by saying "at any time during the last twenty years."
This amendment goes further than any provisions in the charter. It affects any rights conferred by Act of Parliament.
Under this charter or ancient patent, Senator Barrington is really getting away with a lot more than the Seanad would be willing to to grant him on consideration. The law enacted one thing long ago in an entirely different set of circumstances, and I suggest that public bodies now, when circumstances have changed, when there is a question of a new law, ought simply to take up the attitude that "the Law giveth and the Law taketh away," and if they like to add: "Blessed be the name of the Law," it is not for me to object to it. This charter business ought to be examined. I wonder what proportion of the £300 comes under the Senator's blessed charter. I do ask Senators not to be carried away by Senator Dr. Gogarty's romance in this matter. I ask them to form a mental picture of the administrative cost, involved by endeavouring to make out apportionments of fines, and try to see that the proper people are getting them. I ask them to remember just how much of the time and the energy of officials, regarding whom we hear and see so many complaints, will be expended on this petty question of fine apportionments, and whether it is good business to pass the Senator's amendment.
We will relieve the Minister of the trouble he anticipates in separating fines. We never had any trouble in separating them.
You had not; we had.
If the Minister excepts Limerick we will be quite satisfied.
I will not except Limerick from the terms of the Bill. The Senator is mixing romance and greed in an extraordinary way in his talk about this blessed charter. We will go to the trouble of finding out how much of the £300 arose under the charter of James the First and give you every penny of that but nothing that you would get under statute.
CATHAOIRLEACH
I was going to suggest the omission of the words "Act of Parliament." It will stand over till the Report Stage.
Progress ordered to be reported.
The Seanad went out of Committee.
Progress reported.
As the Seanad meets to-morrow, if I am in order, I move the adjournment now.
CATHAOIRLEACH
I was going to suggest that the House might reconsider the decision to sit to-morrow and adjourn until Tuesday. If we meet to-morrow there will be very little business ready. On the other hand, I do not like putting off meeting until Wednesday as the Minister for Justice is anxious about the fate of the Increase of Rent and Mortgage Interest (Restrictions) Bill. I think Wednesday next would be the last day to enable him to get it through this Session.
Is there any haste about the Court Officers Bill?
There is haste, as the Rules of Court cannot be laid before the Dáil and Seanad until the Bill becomes law.
The Seanad adjourned at 7.25 until Tuesday, 15th June.