I want the House to attend for a few minutes while I explain the difficult position it was placed in in regard to these Rules. It will be within the recollection of the House that when the Courts of Justice Bill was passing through the House it was suggested, and a question was raised by Senator Brown, that the proposal, as it stood in the Bill in regard to the Rule-Making Authority, was a breach of the Constitution. My opinion was asked in the matter, and I expressed a very strong opinion according to that expressed by Senator Brown. But the President, who was here in charge of the Bill, took an opposite view, and said he was advised by his responsible advisers that the procedure was perfectly regular and right, and after considerable debate the Seanad adopted the view of the President. Evidently, on further consideration, they came to the conclusion that they were not quite as right as they thought they were, and when it came back here the clause in question was modified—the clause providing for the making of Rules, and the authority who were to make these Rules. A clause was then introduced here in Committee, and I at once raised the question. I said: "Are you sure under this clause that you will have power to challenge and reject a particular Rule as distinct from the entire body of Rules?" The House then became alive to the difficulty and the doubt, and accordingly the Attorney-General and Senator Brown agreed that they would put their heads together and frame a clause for the Bill which would accomplish the purpose that the Seanad declared they wanted to have accomplished; that is to say, that would give them power to reject one or more Rules without thereby necessarily rejecting the others. In the end, the clause that is now in the Act was introduced by the Attorney-General after consultation with Senator Brown, and that clause was introduced here with the express purpose of enabling members of the Oireachtas to reject one or more of the Rules without prejudicing or imperilling the remaining Rules which they approved of. That was all passed. Then these Rules came to be circulated. In the first place, I think we got the Circuit Court Rules, but I need not trouble the House with them at the moment, because owing to pressure of time they were only sent out a week before the House rose for the adjournment, and also were sent out prematurely, before they had authority to send them out. The committee you appointed to consider them did not know that, and went on with their work.
At the end of three days when we came to report we found that we had no right to be sitting at all. However, the session was drawing to a close within two days, and by the action of the Government the Circuit Court Rules were withdrawn and they ceased to exist. Then the District Court Rules had been put before us, and they had been referred to a Committee of the Seanad for a report. The Committee made that report and recommended the rejection of a certain number, something like twenty. The Rules ran into a couple of hundred, I think, and the Committee recommended that the House should fail to approve of about twenty of them. That report of the Committee came up for consideration here. The then Minister for Justice was present, and the report was discussed in his hearing and presence. But the moment the motion was made that the House should agree with the Committee in rejecting, we will say, Rule No. 1, the Minister very properly interposed and said: "If you reject No. 1 I am advised that you reject the whole thing," and he said that the rejection of any one rule necessarily involved the rejection of the whole. That was rather startling to the Seanad, and to myself particularly, in view of the fact that we had gone out of our way, with the assistance of the Attorney-General, to elaborate a clause that would prevent that happening. Accordingly I said that I must hold the opinion I held throughout, that I must so advise the Seanad, and that was that they were quite entitled to reject any one or more of these Rules without prejudicing the remainder; that is to say, they were entitled to approve of 99 of the Rules and reject No. 100. The Seanad, acting upon that, rejected eight of them. According to the view of the Government that, you would have thought, disposed of these Rules; they ceased to exist, according to the Government's view. But the next thing the Government did was to publish them as Rules passed and approved of. They inserted a note saying that those Rules marked with an asterisk had not been approved by the Seanad, but they published them as originally introduced, and they ever since have been acted upon in the District Courts, although, if the Government's view was right, they were all wiped out—the moment we rejected one we rejected the whole lot. But they have not acted upon that. Now, apparently, they have gone back to the original view, that the rejection of one necessarily means the rejection of all, because that has been suggested in the other House.
What I am coming to is this: I have taken great trouble to look into these new Rules that have been substituted for the Rules that were withdrawn, and they seem to me to be drawn with exceeding care and with very great attention and skill. They are entirely different in that respect from the Rules that they have displaced, because these Rules that they have displaced were carelessly drawn; they were incomplete and in very many cases were inaccurate. All these defects, as far as my humble judgment goes, have been almost completely cured and remedied, and the Rules as they stand now, taken as a whole, are, I think, very accurate. Consequently it is desirable in the interests of the country, and in the interests of the courts themselves, that we should avoid, so far as possible, again getting into any conflict over this question as to whether, by rejecting one or more, the Rules have necessarily to be withdrawn, and with a view to getting rid of that possibility, or at least mitigating the evils of it, it is now suggested that these Rules should be referred to a joint committee of both Houses, not for the purpose directly of vetoing or modifying any one of them, but for the purpose of reviewing them. If any members of the Committee find, and so report to each House, that certain of these Rules should, in their opinion, be modified, or that they are doubtful or ambiguous, or if any other fault is found with them, then the Rule-Making Authority should have an opportunity of recasting them, and should not be driven to the alternative that by either House rejecting one or more Rules, they would have the whole thing thrown at their heads again. Therefore, I think it is desirable, if we could possibly arrive at it, that we should have a sort of preliminary revision of these Rules, and thereby, if possible, save any complicated or difficult question arising.
My own opinion is that there is no doubt as to what the interpretation of the section of the Act is. There is no doubt that contrary opinions have been given on it, some holding that you must either accept the Rules in globo or reject them in globo, others holding that you are at liberty to reject any one or more and to approve of the balance, with the result that the balance you approve of remain in law, the others having to go back. In my opinion all that might possibly be obviated by the labours of this Joint Committee. I wish, however, to guard myself and to protect the interests of the House in this respect, that is to say, that notwithstanding what the report may be when that report comes back to this House and when the Rules come up for definite consideration, I shall have to advise the House that it is still open to each and every one member to challenge any one of these Rules and for the House to take a vote upon them. I thought it only fair, in view of what had occurred, to make this quite clear, so that there might be no mistake about it, while at the same time I am strongly of opinion that it would be very desirable that this Joint Committee should be set up.
