COURT OFFICERS BILL, 1926—THIRD STAGE. (RESUMED)
SECTION 50.
The office of high sheriff is hereby abolished in every county and county borough.
I move:—
"To delete the section and to substitute therefor a new section as follows:—
"50.—No appointment shall be made to the office of high sheriff after the passing of this Act: provided that the tenure of any existing high sheriff shall in no case be affected."
That amendment covers two High Sheriffs who have been more prominently before the public than any other gentlemen holding these distinguished positions. They undertook the office of High Sheriff at a time when considerable trouble and danger existed. Thank goodness things are very different now, a state of affairs which has been largely brought about, we all recognise, by the admirable administration of the present Government. The duties of the sheriffs have been very onerous and have caused no expense whatever to the country. They have been quite an acquisition, I believe, to the metropolis and to the South of Ireland. It is very generally admitted that the Commissioners are functioning admirably both in Dublin and in Cork, courteously, efficiently, and in a progressive spirit. I think it is admitted that they cannot always continue just as they are carrying on these important duties.
I did not follow the suggestion that fell from my friend, Senator Dowdall— perhaps I may be allowed to congratulate him on his new University distinction—honoris causa—that these Commissioners might remain in office for another hundred years. I think it is generally hoped that in the near future the Government will bring about some legislation so as to provide an electoral body to co-operate with the Commissioners. There is a feeling in the provinces amongst a large part of the community that there is an undue tendency to centralise matters too much in this important city of Dublin. Apropos of that I wish to read an extract from the “Irish Tribune” of last week, dealing with that question: “Now that we have a national capital which absorbs so much of the wealth and brains, it is more than ever necessary to develop civic consciousness in provincial centres if they are not to decay into intellectual and commercial stagnation.”
CATHAOIRLEACH
Where are you quoting from?
The "Irish Tribune," a very important paper published in Cork. I believe that the offices of Lord Mayor and High Sheriff add interest and dignity to local communities. I have never been a member of the Cork Corporation, though I have been in close touch with it for a number of years, but Senator Farren, who has been a corporator will, I think, agree that functionaries such as the Lord Mayor and High Sheriff add considerable interest and dignity to corporations.
Senators must not allow Senator Haughton to confuse them. He talked at some length about the position of Commissioners for Cork and Dublin. I want to say all that has no bearing on the matter whatever. It certainly has no relevancy to his amendment. I explained on the second reading here the position of the High Sheriffs after 1920. Their duties were two. They summoned the Grand Juries and they attended on the judge who went down on Assizes. Since the Court of Justice Act the duties of a High Sheriff are nil. Grand Juries no longer exist, and the judge does not go down on Assize. The position of High Sheriff at the moment involves the summoning of a jury which has no existence, and attendance on a judge who does not go out. The Senator is anxious that the title should remain to the present holder in Cork, and, in an incidental kind of way, in Dublin. There is absolutely no point or sense in that.
I simply put it to the Senator that it would be an absurd thing to cater for the sensitiveness of two individuals in our population of 3,500,000, and leave them an empty legal title, with no duties or responsibilities whatever attached. There is also this, that the present holders, if things had gone in their ordinary course, would have gone out of office long since, as the office changed hands every year. Why should we go out of our way in legislation to cater for what may be the very harmless vanity of an individual and say, "as long as you live you will be High Sheriff of Cork with no duties and no responsibilities"? The thing is really unsound, and I would ask the Seanad not to approve of the amendment.
The Minister may have a severe exterior, but I know he has a generous heart, and he might think the matter over carefully so as to avoid a peremptory dismissal of these gentlemen.
Amendment, by leave, withdrawn.
Agreed that sections 50, 51, 52 and 53 stand part of the Bill.
SECTION 54.
(1) The Minister may by order close any district probate registry as from such date (not being earlier than the date of the order) as he shall think proper.
I move:—
To add at the end of the sub-section the words "Every such order shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next subsequent twentyone days after the order is laid before it annulling such order, such order shall be annulled accordingly."
This is a very important amendment, with regard to the probate offices throughout the country, of which there are about eight or nine. In the most interesting and graphic speech the Minister delivered in the lower House the whole matter was very clearly defined. The Minister then mentioned the eight districts which have been functioning for about three-quarters of a century, and he gave the profits that have accrued from the different places—Cork, Limerick, Tuam, Waterford, Cavan, Kilkenny and Ballina—amounting to over £5,000. In some cases, I know in the case of Cork, the profit that accrued last year was to some extent larger than what the Minister was aware of, but I know that there were about 1,000 cases granted last year, some of them for very large estates, amounting to possibly over six figures. The district is a large one, including the East and West Riding of Cork, the city of Cork, and the county of Kerry. It is obvious that it would be very inconvenient for the legal profession and their clients to have to come up to Dublin in connection with these cases, instead of having them dealt with rapidly in Cork.
I support the amendment. It will obviate the necessity of moving the next amendment which stands in my name, and which is practically the same. These courts are very useful, as they enable small estates to be dealt with quickly and cheaply. There are competent officers in these district probate courts. Since the destruction of the Four Courts the usefulness of these courts was proved, and the legal profession who have to go to those places are anxious that they should be retained. I can quite understand that as time goes on it might be advisable and necessary to allow the Minister to exercise his own discretion, but a case would have to be justified to the Oireachtas if an Order was made.
When the Senator mentioned casually and personally to me his intention of putting down this amendment I was inclined to accept it. There did not seem to be a very strong case against it. Looking into the position, and favourably disposed to the proposal, I find that under the law which set up these registries—the Probate Act—there was power in the Lord Lieutenant to close a district registry without consultation with anybody, but since the Adaptation of Enactments Act that power is in the Minister for Justice. The position since the seventy years of their establishment was that the Executive in the name of the Lord Lieutenant could at any time close these district registries. I put it that the Minister for Justice, who has a very direct and immediate responsibility to the Dáil, and through the Dáil to the electorate, can be trusted with that much discretion. The tendency of bringing an Executive proposal before the Dáil and Seanad by resolution and suspending it pending the sanction of both Houses is I think wrong.
It makes towards the position of government by resolution of both Houses rather than government by the Executive, with the obvious political consequence if that government is wrong. But this government by resolution in both Houses simply means if the tendency is needlessly continued that the Tables of both Houses would be snowed under with a drift of resolutions, which probably not one Senator or Deputy in sixty would advert to or read.
I think it is quite safe to leave that much discretion in the Executive. There is no intention to do anything hastily or without the fullest examination. I rather deprecate the idea underlying this amendment, that this administrative Executive step cannot be taken without specific, expressed approval of both Houses via a resolution. While dissenting from the amendment, I just throw out that word of dissent to the tendency which the amendment represents. I do not believe it is a good or sound tendency. The Government must and should take responsibility for executive and administrative actions of this kind, and Deputies and Senators should criticise, and criticise loudly, where they disapprove of such actions.
The Minister's speech has, in my opinion, made it very much more important that this amendment should be pressed. In effect what the Minister has said is that the bureaucratic tendency which is creating wide-spread unpopularity for the Government throughout the country should be enforced and that the right of the Dáil or of this House to express criticism should be restricted. The Minister has not said a single word on the merits or the usefulness of these courts.
I will do that if you wish.
All that is asked for in this amendment is that this should be done. The usefulness of this amendment is, I think, proved by the Minister's statement that it was in the power of the then Executive for seventy years to close those Probate Registries at any time, and that power was vested in the Minister under the Adaptation of Enactments Act, but that was not thought of when this Bill was drafted. Undoubtedly the Minister was not conscious of the power which he possessed, because a sub-section is put into the Act to enable him to do what he has already power to do. I did not know that such power was vested in him. But when it is suggested now to insert this sub-section, so that such an Order may be discussed in the Dáil and Seanad, the Minister resents it. I will ask the Seanad to pass this amendment. I do not know how useful probate registries are in other places, but members of the legal profession, men of the very highest standing in Cork, assure me that this office in Cork is very much used, and these legal men are in quite as good a position to know the usefulness of this provision to their clients as anybody here.
The present Government will probably be in office for many years to come, and I hope the Minister for Justice will be in his present position for many years to come, but there is a possibility that another might supplant him who might have very different ideas from the Minister as to the usefulness of those probate offices throughout the country.
It is not a question of the personnel of a given Government. It is a question of their responsibility for their sins of commission and omission. It is a question of extending this principle of Government by resolution. Government and Government Departments every day decide certain matters and take action with much greater reactions than is covered by the section. I think it is necessary and right that that should be so. If you move away from that and say that in addition to passing legislation, passing the Estimates and, in addition to passing matters of that kind, the Dáil and Seanad shall be consulted with regard to administrative action, and shall be asked to approve or disapprove of this and that act by resolution, I submit that you are putting on the Dáil and Seanad work that is not proper to the Dáil and Seanad, and you are taking away from the Government work and responsibility which is properly the work and responsibility of the Government, for which it should of course answer politically through the Dáil and Seanad to the people. The Senator challenged me, or at least invited me to discuss the merits of this. At any rate, he commented on my omission to do so.
I went into the matter very fully on the Second Reading and if I refrained from doing it again it was because I thought the Senator, and other Senators, remembered the substance of what I did say. I cannot be expected to discuss these probate registries and their utility now. I could, I think, bore a considerable hole in what these eminent Cork solicitors have said to the Senator on the matter. I pointed out on the last occasion that Donegal, for instance, was in the area of the Derry registry. Then came the Act of 1920 and its consequences, and Donegal was no longer in the area of the Derry registry; yet not a single solicitor in Donegal made representation either directly or indirectly in favour of the establishment of a local registry there in substitution of that from which they had been cut off. I do not believe there was any advertence in Donegal to the absence of such registry until I myself commented on the matter in the Dáil. That gives the proportions of the thing——
And, to some extent, elsewhere, too.
Would the Minister tell me how many cases were dealt with in Cork last year?
Does the Minister say I am wrong?
It was Senator Haughton I corrected.
I will stand over these figures.
The Minister did not give the information I asked.
The principal probate registry under the existing rule will not issue a grant unless the applicant or his solicitor attends in person at the registry. I grant that it is more satisfactory for a solicitor in Cork city to attend at the registry there than having to pay a town agent to attend at the principal registry in Dublin. There is that much in it. Then the district registry is empowered to do business by correspondence, and a solicitor in Tralee can get his grant in Cork or in Limerick without leaving his office or employing an agent, whereas at the principal registry he would have to go to Dublin or pay a solicitor to act for him. There may be this, too, that the staffs in these district registries stand to gain or lose in their salaries according to the volume of business transacted in the local registry, and they endeavour to attract business, so to speak, arising in their areas and to keep the solicitors from having recourse to the principal registry.
But apart from these considerations, which are more or less accidental and do not go to the root of the matter, the district probate registries, in fact, cause delay and confusion rather than speed and certainty, because every application made to the district registry has to go to the principal registry before it is passed, and official work, indexing and calendaring, and so on, is, in fact, doubled. During the British time there was a probate registry in Derry which extended its area to include County Donegal. Not a solicitor in Donegal complained that there was any inconvenience in doing business henceforth with the principal registry in Dublin. Now the cry is economy; it is waning a bit, but it was very strong two months ago. There was a cry for economy, a cry for pruning unnecessary refinement of administration.
Surely the case has to be examined whether this matter of the district probate registries, and so on, is not an unnecessary refinement in administration. If it is a fact it means that a particular thing has been done there and just that same thing is to be done in the central probate registry office, it simply means that there is overlapping. In connection with many of these outlying offices the justification for their existence will have to be called in question and will have to be weighed, and administrative decisions will have to be taken accordingly, not merely in the case of this office but in the case of the Land Registry and so on. It is easy to raise a clamour. A Senator or Deputy is approached by an officer in an outlying office who says "I believe they are going to abolish us, and all here shall suffer for this," It is only by this process that the total of your outgoings will be pruned and brought down to within the limits of what we are told is the people's capacity to pay.
I do not like to interrupt, but it seems to me that the discussion is altogether apart from the amendment. The amendment asks that the Order closing a probate registry shall be placed on the table of both Houses for annulment or otherwise. The Minister's speech is directed to whether it is desirable or otherwise to close this office. I suggest that is not before the Seanad at all.
If the Senator does not like to interrupt he exercises considerable mortification in the matter, because he has interrupted me here more frequently than all the other Senators put together.
I do when the Minister is out of order.
I was invited by Senator Dowdall and his colleague to discuss the merits of these probate registries. The Seanad concurred in that and I was endeavouring to do so, but Senator O'Farrell mortified himself by cutting in. Perhaps the amendment is not worth the time spent on it. I disapprove of the idea underlying the amendment. It is all right to talk of bureaucracy, but the Senator knows the constitutional position sufficiently. If the Executive Council does anything of which the majority in the other House disagree, the Executive Council can be fired out. Our responsibility is through the Dáil to the people, and I deprecate this tendency, which is found from time to time in amendments, to put up legislation that the Government is to be less a matter of particular individuals recognising their responsibilities, facing their responsibilities, and open to criticism, and more and more a matter of deliberation in one or other or both Houses on what is essentially an executive and administrative action.
The Senator can wax very indignant about bureaucracy but the fact remains that it is the proper apportionment of the functions that the Dáil would legislate, that the Dáil would control finance, and that the Dáil would criticise policy closely and criticise the Estimates closely. But the Dáil cannot govern and the Seanad cannot govern and the Dáil and the Seanad together cannot govern by resolution and cannot judge by resolution the merits of a particular administrative or executive action which is to be sifted out in departments and so on.
A Minister would really despair of being able to come to one or other of these Houses and discuss in all its bearings the case for or against particular executive proposals. It is putting an undue tax on the members of both Houses to expect that they would take on themselves those responsibilities in addition to their other functions. I am wholly opposed to the amendment, not merely to the amendment itself, but to the amendment in the tendency it represents and the frame of mind from which it emanates.
I asked the Minister a question. I asked him nothing about the volume of business in Donegal. What I had in mind was the business in Cork. I was not approached by any official as was suggested, but I was approached by members of the legal profession of both branches who had business in this court. I was assured that it was a quick, economical and efficient way of dealing with small estates. The Minister speaks of administrative action as if it were the merest trifle. The closing of any court is not the merest trifle. Obviously the Minister has, as we were told, power without this section of doing what he seeks to do now. I move the amendment so that if an order was made closing one of these registries, that at least both Houses should have an opportunity of discussing it, and of hearing from any Minister for Justice what were the reasons for his action. Evidently the Minister does not wish to have such a sifting of his action.
Amendment put.
The Committee divided: Tá, 10; Níl, 21.
Tá.
- Sir Edward Bigger.
- William Cummins.
- J.C. Dowdall.
- Michael Duffy.
- Thomas Farren.
- Thomas Foran.
- Benjamin Haughton.
- John T. O'Farrell.
- William O'Sullivan.
- Thomas Toal.
Níl.
- John Bagwell.
- Samuel L. Brown.
- Mrs. E. Costello.
- John C. Counihan.
- Countess of Desart.
- James Douglas.
- Sir Nugent Everard.
- Michael Fanning.
- James P. Goodbody.
- Mrs. A. Stopford Green.
- Sir John Griffith.
- Henry S. Guinness.
- Arthur Jackson.
- Sir John Keane.
- Cornelius Kennedy.
- Patrick Williams Kenny.
- Francis MacGuinness.
- James Moran.
- Joseph O'Connor.
- Michael F. O'Hanlon.
- Bernard O'Rourke.
Amendment declared lost.
Question—"That Sections 54, 55 and 56 stand part of the Bill"—put and agreed to.
The following amendment in the name of Senator Haughton was withdrawn:—
Section 56. To add at the end of the section a new sub-section (2) as follows:—
"(2) Every whole-time clerk attached to the office of a Clerk of the Crown and Peace who shall at the date of the passing of this Act have served in such employment for a period of ten years and upwards and who shall not be re-employed in the service of the State shall be entitled to a pension to be ascertained according to the principles of the Superannuation Acts, 1834 to 1919, and the Acts extending or amending the same and such pension shall be charged upon and be payable out of the Central Fund of Saorstát Eireann and any such clerk as aforesaid who shall be re-employed in the service of the State after the passing of this Act shall on resignation or retirement be entitled to a pension to be calculated in manner aforesaid and his period of service in such employment as aforesaid before the passing of this Act shall be added to the period he shall have served after the passing of this Act."
Sections 57, 58, 59 and 60 ordered to stand part of the Bill.
SECTION 61.
(1) All registrars, clerks, officers, messengers, criers, and servants (in this section referred to as existing officers and servants) who at the passing of the Courts of Justice Act, 1924 (No. 10 of 1924), were either attached to a court then existing or to the person of a judge then holding office or were employed in a court office then existing and are at the passing of this Act attached or performing duties in relation to any court or judge or are employed in any court office shall immediately upon the commencement of the Part of this Act relating to such court, judge, or office cease to hold office and their respective offices shall be and are hereby abolished as from such commencement.
(2) Sub-section (1) of this section shall not apply to any person who immediately before the commencement of Part III. of this Act holds the office of district court clerk under the District Justices (Temporary Provisions) Act, 1923 (No. 6 of 1923) or, in the Dublin Metropolitan area and in the County Borough of Cork, the office of chief or other clerk of the District Court in that area and borough respectively, and no such person shall be an existing officer or servant for the purposes of this section.
(3) All existing officers and servants who are temporary officers or servants and whose functions are not expressly transferred by this Act to any officer created by this Act shall, notwithstanding the abolition of their respective offices or situations, continue until the Minister otherwise directs to perform the like duties as they respectively performed immediately before such abolition and while so performing such duties shall be entitled to receive remuneration on the same scale as that on which they were remunerated immediately before such abolition.
(4) Subject to the provisions of this Act prescribing the qualifications and retiring ages for particular officers, every existing officer and servant other than a Clerk of the Crown and Peace who is not a temporary officer or servant shall be offered employment in a situation under this Act carrying not less salary than the situation held by him as such existing officer or servant at the passing of this Act.
(5) 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 hereinafter 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,
(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,
(e) he shall hold the situation under this Act by the tenure and on the conditions prescribed therefor by or under this Act,
(f) the Acts which, immediately before he ceased by virtue of this section to hold office, authorised the grant to him of a pension or other allowance (from whatever fund or moneys such pension or allowance could have been granted) shall on his ceasing to hold a situation under this Act apply to him in the same manner and to the same extent as they applied to him immediately before he so ceased to hold office but with and subject to the following modifications, that is to say:—
(i) in computing the period of his service for the purpose of those Acts he shall be entitled to reckon as continuous service for those purposes whatever period (if any) of service he was or is deemed by virtue of this sub-section to have been entitled immediately before he so ceased to hold office to reckon as service for those purposes and his period of service in a situation under this Act, and
(ii) the Minister for Finance shall be substituted for the person authorised by those Acts to grant to him a pension or allowance, and
(iii) any pension or allowance granted to him shall be paid out of the moneys provided by the Oireachtas;
(g) if he was first appointed to his office in a temporary capacity under the Court Officers (Temporary Appointments) Act, 1924 (No. 2 of 1924) and was subsequently appointed to the same office in a pensionable capacity, he shall be entitled and shall be deemed to have been entitled immediately before he ceased by virtue of this section to hold office to reckon as continuous service in a pensionable capacity for the purposes of the Superannuation Acts, 1834 to 1923, his total period of service in such office from the date of his first appointment thereto in a temporary capacity;
(h) he may on the recommendation of the Minister be retained, with his own consent and the sanction of the Minister for Finance, in a situation under this Act until he attains the age of seventy years.
I move:—
Section 61, sub-section (4). After the word "less" in line 40 to insert the words "scale of."
This amendment was put down to get an assurance from the Minister. I have it in my mind that "salary" in line 40 means scale of salary. The way the question arises is this: Every one of the court officers who is not disqualified by age will be offered employment under the new Bill. The employment under the new Bill is to carry the same salary as the officer has under the present system. It has occurred to certain nervous people that they might be called in and remain at the same salary. I think the Minister gave an undertaking to the Dáil, and I think he will be able to give it now, that salary means scale of salary, and that persons taken on in the new employment will get the same increments as they had in the old positions.
I am quite definite that a person holding a situation carrying a salary of from £700 to £900 by annual increases of £25, that that would be the salary payable to the officer in question within the meaning of this Bill. I have not the least doubt, and neither have my professional advisers, about that. If I had I would accept the Senator's amendment right away. It is intended, of course, that persons coming in at a particular scale of salary shall come in on that scale and shall go ahead with their annual increments as hitherto.
I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I move:—
Section 61, sub-section (4) After the word "salary" in line 40 to insert the words "or fees based on the average of the last preceding three years."
I believe that some officers have small salaries, but their emoluments are largely supplemented by the fees they receive. I want to secure that a man's position will not be prejudiced by confining him to a salary.
CATHAOIRLEACH
I think there is some confusion here. I see what the Senator is at, but I do not think the amendment will carry it out. It is proposed to offer a man a position that will carry a salary, including fees, which would be equivalent to his previous salary and fees. The new office might carry no fees and no fees might be attached to it. What you want is to secure a salary which would not be less than the emoluments, including fees, of his previous office.
CATHAOIRLEACH
Perhaps the Minister has no objection to that.
My difficulty about this amendment is that I do not know what officers are in question. Of course Clerks of the Crown and Peace have fees which, if not greater than their salaries, are at least a substantial addition to them. I do not know what other officers are in question, but if the Senator could be more precise on that point I believe I will make up my mind about his amendment.
CATHAOIRLEACH
You can get rid of the difficulty if you put in the words "no less emoluments."
Clerks of the Crown and Peace are expressly ruled out. What other ones are there?
I will withdraw the amendment and will raise the point again on the Report Stage.
CATHAOIRLEACH
I think that is better. There may be officials who have no fees. I do not know of any whose salaries are supplemented by fees except Clerks of the Crown and Peace. They may have other emoluments which might not necessarily be included in the word "salaries."
Amendment, by leave, withdrawn.
I move:—
Section 61, sub-section (5). After the figures "1921" in line 48 to insert the words "or otherwise."
CATHAOIRLEACH
The section should read "arising out of the abolition of his office under Article 10 of the Treaty of 1921 or otherwise."
I know exactly what attitude the Minister will take on this amendment. He is afraid of the Judicature Act. He is afraid that officers of the court who were appointed under the Judicature Act and who have certain rights and a certain measure of compensation under it could claim that they have these rights under Article 10 of the Treaty or that they have them under the Judicature Act in addition to Article 10 of the Treaty. That is not the case I am making. The way the Judicature Acts come in is this: Article 10 of the Treaty establishes a certain measure of compensation for a person whose office is abolished or persons discharged from their employment. The measure, I understand, comes under Schedule 8 of the Act of 1920.
None of the officers in the courts are civil servants in the established sense. They therefore come in under Part 2 of Schedule 8 of the Act of 1920 which gives the measure of compensation of public officers who were discharged but were not in the established civil service. In measuring that compensation the first thing the tribunal or commission or whatever be the body that will decide, will be to ascertain what were the conditions of the appointment to the office. Now most of the officers whose office is to be abolished in the Four Courts under the present Act hold their positions for life. It will, in my opinion, be not only competent, but really the duty of whatever tribunal is sitting to ascertain compensation for officers of this kind to take into account the fact that the positions they have lost were offices for life. Therefore, I think, whether the Ministers like it or not, the Judicature Act must come into whatever measure of compensation these officers will get. I, therefore, suggest that he should allow the words "or otherwise" to go in. They cannot do him any harm.
It is, perhaps, not the best case to make for an amendment that it cannot do any harm. I always posit that an amendment to be accepted should be an improvement of the Bill. The Senator has not shown me that this amendment is an improvement of the Bill. He damns it with faint praise. The utmost he can urge is that it cannot do any harm. It might do a little harm. It would do a little harm if it seemed, in any way, to carry the implication that we were of opinion that these officers had rights under Article 10 of the Treaty, and if it was argued that under the Judicature Act, they had rights, other than those conferred under Article 10 of the Treaty; and if it was argued, hereafter, as it might well be, that those words were inserted specifically so as not to bar out rights that the Government, the Dáil and the Seanad, considered these officers had under the Judicature Act. I am entirely satisfied that they have none, but I am unwilling to accept anything that would give the impression that we had any other view about it. The relevant paragraph in the Act of 1877 is "In case it shall appear to the Lord Chancellor that by reason of consolidation or abolition of office under the provisions of this Act," and so and so. And throughout you have simply reference to the changes effected by that Act. I do not see how that can be brought in in the year 1926-1927 to affect officers whose position is altered not by the provisions of that Act but by the provisions of this Bill.
CATHAOIRLEACH
Would not the position be met if it was put in this simple wording: "His rights arising on the abolition of his office," because the difficulty I see is that if you say arising under the Treaty the arbitrator may say "I cannot consider any other rights."
Surely before we insert words that contemplate some other right we should get some indication of what the other rights are or may be.
CATHAOIRLEACH
It would be the duty of the person who has to award compensation to determine what the rights are. I think that would leave the whole question open.
These officers never contended to me that they had any rights under the Judicature Act or any rights other than those conferred by the Treaty. It is true there is no measure providing for High Court officials, but many other persons who were serving the British administration in this country at the date of the Treaty, are, and were, in that position. There would be need for a tribunal to assess what their rights are. There is no definite measure given by the Act of 1920. Certain officers such, I think, as resident magistrates and Crown Solicitors, and certain others had to appear before a tribunal here in the absence of any measure as to what their compensation for loss of office would be. I take it that the same would be the case with these court officials.
CATHAOIRLEACH
I think the resident magistrates held office at pleasure. That is why they were called removables. The officers of the courts did not hold office at pleasure.
I mixed up their case with that of the Metropolitan Police Magistrates. I do not like the words "or otherwise." If Senator Brown, who has sponsored this amendment, would leave it over until the Report Stage the question whether the rights mentioned have reference to Article 10 of the Treaty could be looked into.
Does the Minister deny that these men have rights under the Judicature Act?
I think I have contended so at some length.
CATHAOIRLEACH
That is at the Minister's suggestion and I think it would be better to leave it to the arbitrators or whoever may be appointed to determine the matter.
There is a difference between any rights under the Judicature Act and having tenure. That would be brought in in assessing their compensation, and that I would not like to exclude.
CATHAOIRLEACH
I think that would follow from the investigation. If they have tenure that goes with their rights, that would be included in the rights. That would be a matter for the court.
CATHAOIRLEACH
The matter remains over until the Report Stage.
Amendment, by leave, withdrawn.
The following amendments in the name of Senator Brown were not moved:—
23.—Section 61, sub-section (5). After the word "his" in line 55 to insert the words "resigning or otherwise."
24.—Section 61, sub-section (5). After the figure "10" in line 58 to insert the words "or otherwise."
I beg to move amendment 25:—
Section 61, sub-section (5). After the word "Act" in line 63 to insert the words "to any existing officer of less than fifteen years' service."
This is an amendment the subject of which I dealt with very largely on the Second Reading, but as some of the Senators present to-day may not have been present then, I would like to explain the matter to them in as few words as possible. It really is to my mind one of the most important amendments to the whole Bill. The Bill abolishes every office in the courts, but all existing officers except those excluded by age or some disqualification are to be offered as nearly as possible corresponding posts and certainly posts at the same scales of salary. They are to be offered these new posts on the terms as you will see set out in sub-section (5). That is on "waiving all right to compensation under the said Article 10."
Now there is an old principle of equity that if a person is put to his election between two matters of choice he should know the facts as to both of them, so that he would be in a position to make up his mind definitely and fairly to himself between the two. The difficulty does not arise in the case of officers who are only of very short service. An officer, say, of five or ten or twelve years does not care a pin about his rights under the Treaty. He knows what his rights will be under this Bill when it is passed, and he is perfectly willing to take his chance of promotion, and is sure of his pension in that way.
It is the officer of about forty years of age who has had fifteen years' service, is possibly a married man, that has to make up his mind, his office being abolished, and he being offered a post under the new Act, whether he will take that post with a similar salary, it is true, but with only the right of pension which the new Act gives him, or whether he will take his pension under Article 10. I suggest to the Minister that it is not fair play to put a man of that age to that choice when he does not know one of the two matters which he has to choose. Such a man does not know what his compensation will be if he goes and accepts his right under Article 10. I put the age at fifteen years. The effect of the amendment will be that any officer who has fifteen years' service will not be put to his election. He can take his new post under the new Act, and if he is discharged from his office he can fall back on his rights under the Treaty.
The Senator has pounced on the weak chain in our armour when he comes up with this principle of equity that when a man is put to his election he should know what he is choosing. I am prepared to meet that point by the statement that this provision in the Bill will not be put into operation. No man will be put to his election until he is in a position to know what he is choosing between. A certain number of officers go willy nilly when the Bill comes into operation on grounds of age and so on. Until the principles of assessment are established in their case I undertake that these portions of the Bill will not be used. I might grant the justice of that case that if a man is being made choose whether he goes to the new system as an official or goes out under Article 10 he has the right to know whether he will have to make a choice that will be based on realities and will be for his welfare in life, but a man will not be asked to judge in the dark, that is to chance his arm under Article 10 of the Treaty as against a definite known thing on the other side.
Is it certain that the ascertainment of compensation for those officers who must go out would give a line or scale of compensation for the others?
It would necessarily give the principles and the scale for the others.
I am perfectly willing to take the Minister's assurance that this will be done, but I should like to be sure that it would be effective in that the standard of compensation in the case of the men who would be discharged should be applied to the others. Would the Minister allow it to stand over until Report, as it is rather a serious matter?
There is just this fear: Sometimes when you allow those things to stand over you allow them to stand over prejudiced against you. On the other hand, in this and the other House, when matters are left over, they are left over with the implication that you are going to go very much more in the direction of meeting the mover than you are prepared to go. I wanted to discuss this thing on its merits. We are not, in fact, desiring that a man should go on as an official into a new system and at the same time refuse to waive his Article 10 rights or ask that they be kept in suspense for ever or something of that kind. Men should, at the beginning of this new court system, make up their minds whether they are going to take up their stand definitely with the other officials of the State. This business of keeping one foot behind them is not the kind of thing we should like to co-operate in.
I have put down an amendment and the Minister has given an undertaking.
CATHAOIRLEACH
He might accept the principle that before any such officer as you described should be put to his election he should understand what the election means. He does not want that to extend to allowing that individual to elect to serve in a new office and at the same time hold in reserve his rights under the Treaty.
Our position is that there are people in the court not merely with fifteen but with twenty years' service to whom we propose to apply paragraph (d), believing, as we do that the prospects of promotion opened up by the Bill compensated them sufficiently at any rate, and in general we wish them to consider every case on its merits and exempt from paragraph (d) only cases where it is undeniable that its operations would be harsh and unfair, but the Senator can take it that paragraph (d) is intended to rule the great majority of the cases and such cases as we exempt from it will be carefully considered. What we want to say to the majority of the officials is that they have got to make a choice. They either go out under Article 10 or go on, but only in a very limited number of cases can there be this special concession of having the Article 10 terms suspended in their favour.
Do I understand an officer of fifteen years' service might be put to election without knowing what he is entitled to?
No. We will see that a man knows what he is choosing. I thought I had disposed of that question of equity, and then I was discussing the thing on its merits as to whether it was reasonable that officers should ask to have their Article 10 rights assessed and suspended in their favour.
CATHAOIRLEACH
The Minister is willing to have them assessed but not to have them suspended.
Would it do to move to insert "when such right is being determined"?
CATHAOIRLEACH
It is better to leave this over. If Senator Brown prefers to accept the Minister's undertaking to provide for the assessment, that can be provided for on the Report Stage.
CATHAOIRLEACH
It is on the ground that he does not agree to any amendment that would allow those rights to be suspended.
Amendment, by leave, withdrawn.
I beg to move:—
Section 61, sub-section (5). To delete in lines 68-69 the words "age, misconduct, incapacity or ill-health" and to substitute therefor the word "misconduct."
This amendment is to safeguard the interests under Article 10 of the Treaty of an official who might accept an appointment but who had subsequently to resign through ill-health.
The Senator should ask himself what is the basis of the Treaty compensation? Why was it provided for at all? It is to protect a man who is discharged from office in an arbitrary manner at the whim of the new Government or who because of one reason or another, or for a dozen reasons, is obnoxious to the new administration, but the proposal of the Senator goes very much beyond that. Clearly if a man is discharged because he has gone blind, because he is 95 years of age, because he is not able to write or talk, he has no real claim for compensation under the Treaty. It was not to cover that kind of case that the Treaty compensation was agreed upon. Whatever claim such a man might have for a pension in the ordinary way or for a gratuity, he is not entitled to a pension on the basis of compensation the provisions for which are inserted in an international document.
If he were a fully capable man and a man of great capacity who suddenly got ill surely he is not to be thrown on the scrap-heap.
That is a picturesque phrase—thrown on the scrap-heap—but it is not a question of throwing him on the scrap-heap. It is a question of whether he should be entitled to some compensation rights, the provisions for which were embodied in the Treaty to meet an entirely different class of case, because other officials not protected by Article 10 may get ill, may get blind or any one of a dozen other physical afflictions may befall them. They do not get the rights of Article 10. This hypothetical individual for whom the Senator has sympathy will get the same treatment that the ordinary officers of the State will get, but not the special compensation provided for in the Treaty which was not agreed upon with any advertence to these cases of illness or physical afflictions at all. If a man waived the Treaty rights and is thrown out of employment we will only allow these rights to revive if that man is arbitrarily dismissed through no fault or failure of his own, but if he gets ill and cannot do his work we will treat him just as we would treat one of our own civil servants in the same set of circumstances. We will not treat him any better and we will not treat him any worse.
Our position with regard to the Article 10 man is this: If you come in you are one of our men with the ordinary rights of a civil servant. The only addition to that is that if you are arbitrarily dismissed yon can withdraw your waiver of the Article 10 rights and your Article 10 rights are then revived. They are not revived because of some affliction or some set of circumstances which render an official unable to continue to perform his duties. They are only revived to meet one case, and that is the one case that we arranged to meet—the case of arbitrary dismissal—but if a man goes on a career of intoxication or does not turn up at his office these rights do not apply. That is taking one aspect of the thing. Taking another, if he becomes stricken so that he cannot continue work—these are not circumstances calling for the revival of his Article 10 rights because that might happen to other officials who are not guarded by Article 10. I could not accept the Senator's amendment. It does not appear sound or equitable.
Does not the word "incapacity" cover ill-health, and are the words "ill-health" necessary at all? I take it that when a man is incapable of performing his duties for any reason, including ill-health, his case would be covered by the word "incapacity."
CATHAOIRLEACH
I think it would, except that where you put in the words "incapacity or ill-health," the incapacity could be construed as meaning some cause other than ill-health. I see that Senator Brown has another amendment down to the same section, but I do not think that he has the same idea as Senator Haughton. Senator Haughton proposes to leave out the words "age,""misconduct,""incapacity" or "ill-health," and to substitute the word "misconduct," and Senator Brown merely proposes to delete the words "incapacity or ill-health," and to substitute "incapacity."
I think my amendment is really intended to meet the case of a civil servant who had to make his election without knowing what it really was, and I think it would be very hard if, after deciding on his election, he subsequently lost his job by reason of ill-health. Having regard to the undertaking the Minister has given, that would be unnecessary now, because when he is electing he will know the matters of his choice.
CATHAOIRLEACH
That is quite a different thing. These two amendments deal with the waiver, and once the waiver is established the concluding words of this section give him the right to withdraw that waiver, except he is dismissed for any one of these things— age, misconduct, incapacity or ill-health.
Oh, no; it is if he is not dismissed because of misconduct or age. These are excluded.
CATHAOIRLEACH
The section states: "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."
That is really an arbitrary discharge.
CATHAOIRLEACH
You propose to leave out everything except the word "incapacity."
I wanted to put such cases alongside the case of a man who was arbitrarily discharged, that is if he fell into ill-health and he was discharged, he would be entitled to a withdrawal of his waiver of his rights under Article 10.
CATHAOIRLEACH
In other words to leave out "ill-health."
I am prepared to withdraw this amendment now, because of the undertaking the Minister has given —that the officials will know what their rights are before they have to elect.
CATHAOIRLEACH
I do not see how that will affect this amendment. How would he know what his rights would be if ten years after he fell into ill-health?
He would know what his fate would be if he fell into ill-health.
Amendments Nos. 26 and 27, by leave, withdrawn.
The Seanad went out of Committee.
Bill ordered to be reported with amendments.
