Skip to main content
Normal View

Seanad Éireann debate -
Wednesday, 7 May 1930

Vol. 13 No. 19

Public Business. - Illegitimate Children (Affiliation Orders) Bill, 1929—Report.

I would like to suggest to the House that in view of the number of amendments to Section 3 and the difficulty of discussing these amendments in accordance with the rules for Report Stage and also because of the possibility that when an amendment is carried it might need some revision, we refer Section 3 back to Committee for consideration of the amendments. It would mean that the Report Stage could be taken next week.

Cathaoirleach

I was going to suggest that.

It seems to me that in the working out of this Bill the amendments to Section 2 will be quite as important as the amendments to Section 3.

Cathaoirleach

They will get ample discussion on Report.

Is there any precedent for recommitting any one section of the Bill when a request has been made to recommit another section?

There is. I formally second Senator Douglas's motion.

Ordered: That Section 3 of the Bill be re-committed.
The Seanad went into Committee on Section 3 of the Bill.

Cathaoirleach

I would ask each Senator to move his amendment, and when they are debated I will put the original question: "That sub-section (5) stand part of the Bill."

SECTION 3.

(1) On the hearing by the District Court of a summons issued under this Act the Justice, if he is satisfied in accordance with this section that the alleged father of the illegitimate child (whether born alive or still-born) to whom such summons relates is the father of such child may make an order (in this Act called an affiliation order) adjudging such alleged father to be the putative father of such child and ordering such putative father to pay the expenses, as measured by the Justice, incidental to the birth of such child, and, where such child was born alive, such of the following moneys as may be appropriate, that is to say:—

(a) if such child has died before the making of such order, the funeral expenses, as measured by the Justice, of such child to an amount not exceeding five pounds, or

(b) such weekly sum not exceeding twenty shillings as the Justice shall fix for the maintenance and education of such child, or

(c) where the putative father so consents, a lump sum of such amount as shall be fixed by the Justice in commutation of any weekly sum which might otherwise be payable under this Act by such putative father in respect of such child.

(2) No Justice of the District Court shall be satisfied that a person is the putative father of an illegitimate child without hearing the evidence of the mother of such child and also evidence corroborative in some material particular or particulars of the evidence of such mother.

(3) Where a Justice of a District Court by an affiliation order orders the putative father of an illegitimate child to pay a weekly sum in respect of such child he may attach such conditions as he shall think proper to the payment or to the receipt of such weekly sum.

(4) The provisions of this Act relating to the fixing of the amount of a lump sum paid in commutation of a weekly sum payable under an affiliation order and the payment, administration, and application of such lump sum shall apply to the fixing, payment, administration and application of a lump sum made payable by an affiliation order in commutation of any weekly sum which might otherwise be payable.

(5) All applications to the District Court and all cases under this Act shall be heard in camera.

On behalf of Senator Farren I move:—

Section 3, sub-section (5). To delete the sub-section and to substitute the following new subsections therefor:—

"(5) On the hearing in the District Court, or in the Circuit Court on appeal therefrom, of a case under this Act, the Judge shall direct all persons to be excluded from the Court other than the officers of the Court, the parties and their counsel and solicitors, the witnesses and the mother or other female relative or female friend of the applicant.

(6) It shall not be lawful to print or publish or cause or procure to be printed or published any report, statement, commentary or other matter of or in relation to the judical proceedings in any case under this Act.

(7) Nothing in the last preceding sub-section shall apply—

(a) to the printing or publishing of any order, notice or report in pursuance of the direction of the Court, or

(b) to the printing or publishing of any matter in any separate volume or part of any bona fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal profession.”

The effect of this amendment would really be to put in practical working form the amendment that was carried on the Committee Stage. That amendment provided only that the cases would be heard in camera; this amendment makes provision for the clearing of the court, with the exception only of the persons who are parties to the suit, their counsel or solicitors, the mother or other female relative or female friend of the applicant, the officers of the court, witnesses, and so on. It prohibits the publication in the form of a newspaper report or in any other similar form of anything in connection with the proceedings, but it does not prohibit the printing or publishing of any order, notice or report in pursuance of a direction of the court, or the printing in any separate volume of part of any bona fide series of law reports which does not form part of any other publication and which is published merely for the information of the court and of lawyers. There is nothing new in principle in this except to the extent that it definitely prohibits publication, retaining, of course, as it does, the principle of the hearing of the case in camera. There is a subsequent amendment which imposes a definite penalty in the event of publication.

Cathaoirleach

We will come to that later.

I just mention that now. This merely amplifies or puts into legal form the principle adopted on the Committee Stage through the amendment that was then agreed to.

I move:

Section 3, sub-section (5). To delete the sub-section and to substitute the following new subsections therefor:—

"(5) Where in his opinion the ends of justice may be defeated owing to the difficulty of obtaining the necessary evidence from witnesses in open court, it shall be within the power of a District Justice, or, on appeal, of a Circuit Court Judge to order the exclusion of all persons not being members or officers of the Court or parties to the application, their counsel or solicitors, the necessary witnesses and a female relative or friend of the applicant, and the bona fide representatives of a newspaper or news agency from the hearing of any application under this Act.

(6) It shall not be lawful to print or publish or cause or procure to be printed or published any report, statement, commentary or other matter of or in relation to any judicial proceedings for the grant of an affiliation order save and except all or any of the following particulars of such proceedings, that is to say:—

(a) The names of the parties,

(b) the court in which and the Judge before whom the proceedings were tried and the names of the solicitors and counsel professionally engaged in the proceedings,

(c) a concise statement of the charges, defences and counter-charges in support of which evidence was given,

(d) particulars of any point of law raised and discussed in the proceedings and the decision of the Court thereon,

(e) the decision of the Court and the observations of the Judge when pronouncing his decision.

Nothing in this section shall apply—

(a) to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings, or the communication thereof to persons concerned in the proceedings, or

(b) to the printing and publishing of any order, notice or report in pursuance of the directions of the Court, or

(c) to the printing or publishing of any matter in any separate volume or part of any bona fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal profession or medical profession.

(7) (a) If any person being the proprietor, editor or publisher of any book or periodical publication, or being a master printer engaged in the printing of such book or publication, prints or publishes or causes, procures or permits to be printed or published therein in contravention of any of the provisions of this section any matter, details or particulars in relation to any judical proceedings, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five hundred pounds or at the discretion of the court to imprisonment with or without hard labour for any term not exceeding six months or to both such fine and such imprisonment.

(b) Every prosecution for an offence under this section shall be brought at the suit and in the name of the Attorney-General."

My amendment, only the first portion of which I will deal with now, is meant to give some amount of limited discretion to the judge who deals with the case. I have listened with interest to the debates in this House on the subject, and I have studied the debates in the Dáil. They bring out, as far as I can see, only one point, and that is that it is only sentiment which justifies a departure from the accepted principles which we have used in our courts for some time, and that main point is that any person who has a serious charge brought against him is entitled to a public investigation.

The main object of this Bill is to impose on the father of a child born out of wedlock the burden of its maintenance; and the secondary object is to relieve the public of the burden of maintenance. But in Section 14 you see that the final responsibility still rests with the mother. I think our natural desire is to ensure that the father and the mother join in maintaining their child, but in attempting to do so we must be very careful as a criticising assembly that we do not sanction sentimental legislation or create ill-considered precedents, possibly precedents which will be very far-reaching indeed.

The main advantages which are claimed for hearing cases in camera here are that applications will be made by girls who would not otherwise face the open court, and on the other side, that the male defendants will be less open to blackmail. The disadvantages are that the force of public opinion is absent and that the defendant is at the mercy, behind closed doors, of possibly a biassed justice or judge. I have given every consideration to the views expressed by Senator Mrs. Wyse-Power in this House, and I have read very carefully the account of her work on the Commission for the Relief of the Sick Poor, but neither she nor any other speaker, in this or in the other House, has given us one single statistic in support of their contentions. Figures are an immense help in examining most arguments, and it is my experience that their absence implies, as a rule, that an argument is based on a few individual cases which have come to the knowledge of the person concerned.

In this connection, I wonder if there is anybody in the House to-day who could give us the number of illegitimate births in the Saorstát in 1928 or 1929? I ascertained that the figure for 1928 was 1,788, and that for 1929, which are not yet quite complete, amounted to 1,850. I think we are legislating for rather outside cases. If there was only one type of case to be dealt with, the question whether it was to be in camera or not would be very simple, but the debates, both in this House and in the Dáil, have disclosed a very large number of different kinds of persons who will be involved. On the female side, for instance, we have the innocent girl who has been wronged; the girl who is well aware of what she was doing, but who made a mistake; the older woman who is alarmed at the poor prospect of matrimony except by guile of some kind; the hopeless case, who has been referred to by the Commission on the Relief of the Sick Poor, the girl who had two or more children, of which there is a considerable number; the dangerous woman whom, it is suggested, will make a living out of affiliation orders; and the blackmailer. On the male side, you have several cases. You have the simple boy who is led away by sexual instincts and who is probably not as much to blame as the girl; the marauder, the man who goes from town to town and leaves his mark; the innocent victim of blackmail; and finally, the selected one out of several sinners, who is selected because he has a long purse and is the most likely to be able to pay. All these cases are different, and that being so it seems to me that they should be differently treated. If you combine some of these cases, it would be evident that the hearing in camera would be to the advantage of one party and to the disadvantage of the other, and very probably to the disadvantage of the public as well. I suggest that no general rule can apply, and that a limited discretion in the terms of my amendment, which indicates the reasons why, should be left to the District Justice or the Circuit Judge.

The laws on which the conduct of our courts of justice are based hold that the only occasions on which cases should be heard otherwise than in open court are when the public mind may be unnecessarily contaminated, or when it is reasonably clear that justice cannot be done except by hearing in camera. Except to make it clear and prevent legal argument there is really no reason to mention this matter in the Bill. I think when there is a very even balance of advantage and disadvantage in any problem the House should hesitate before committing itself to radical change in a procedure which has had centuries of practice behind it. In the Dáil 119 Deputies voted on the amendment, but only 13 took part in the debate. I wonder whether all these votes were recorded after consideration of the working of the principles which brought, and which still maintain the justice of our courts at their present high level. The majority for the clause on a free vote of the House was nine, and it seems to me that there might have been at least that number who did not give it the serious consideration which a question like this deserves. I think moreover, that there was a certain lack of moral responsibility on the part of the Executive itself, evidently against the advice of the Minister for Justice, in leaving a question of this nature to an open vote, because it is one that affects the well-being of the people under the Constitution for which they are responsible. Finally I think the House will recollect that it was Eve that originally made Adam pluck the apple from the tree. I think it is the old Adam you have before you to-day and it is the old Eve who accuses him and I think the House should at any rate give him the benefit of accepted principles.

I move:—

Section 3, sub-section (5). To delete the sub-section and to substitute the following new sub-section therefor:—

"(5) On the hearing of any case under this Act in the District Court or on appeal in the Circuit Court, the Judge shall order the exclusion from the Court of all persons other than the parties, their Counsel or solicitors, the mother or other female relative or friend of the applicant, the officers of the Court, the witnesses in the case and any bona fide representatives of a newspaper or news agency."

I wish to make it clear to the House that the amendment which stands in my name is No. 8 on the Order Paper. My name was in the original draft, but the printers evidently were so much impressed by in camera that they thought I wanted to move it in camera and my name was removed. Perhaps I can explain my amendment best by telling the House how I came to put it down. I was very much impressed, particularly by the speech of Senator Mrs. Wyse-Power, with reference to the difficulty of persuading girls who were believed to have a perfectly good case, but who were unable to support the illegitimate child, to go into open court, and although I have a good deal of sympathy with some of the arguments used by Senator The McGillycuddy I cannot help feeling that a strong case has been made, by persons who have studied the question, against having more persons in the court than are absolutely necessary. In this House I think we are without exception strongly in favour of the principle of the Bill, and that the Bill itself meets with general approval. We are equally desirous to see that as far as it can possibly be assured, where there is a genuine and clear case, a maintenance order will be made, and that the girl will get what we might roughly call justice. We are equally anxious, as far as it can be prevented, that there shall not be blackmail. I think we also want a situation, as far as it can be achieved, that there shall be a fair measure of uniformity in dealing with cases of this kind.

Since this Bill came before the House first, I have had conversation with a number of persons accustomed to the practice of the courts— judges, barristers and others, and I found an absolutely uniform opinion that if you are going to get justice and general uniformity, you must have an open court as far as the Press is concerned, that if you leave it, as has been suggested by Senator The McGillycuddy, to the judges, you will find one judge will almost always hear cases in camera without the Press, while another judge will nearly always admit the Press. We are not now discussing the second part of the amendment, but that argument possibly applies even stronger there. The amendment provides definitely that the Press may be present, and that they may report cases within the limits provided under the Censorship Act, but it provides that no one else other than persons connected with the case, and the mother or other female friend, shall be present. That means, for the sake of argument, that if a board of guardians want to get a girl to apply for an order, if the case is in camera they will be in the position of assuring her that no one outside those actually connected with the case, and her own friends, will be present. Under the amendment of Senator The McGillycuddy, that might be the case, but there would not be a definite assurance. In a nutshell, my amendment provides for the presence of the Press, because I believe it is necessary to justice, but it also provides that no busybody or mischievous person, or persons who might be there purely for curiosity, should be present when cases of the kind are heard. I have, somewhat reluctantly, come definitely to the conclusion that while I would prefer Senator Farren's amendment to the Bill as it stands, nevertheless I am not prepared to support complete and absolute secrecy. I would much prefer it to the Bill as it stands or as it came from the Dáil, as I believe it would be much more workable. I would prefer the amendment of Senator The McGillycuddy to that of Senator Farren for the reasons stated, but I prefer my own to either, because I think mine assures a secret court, a court in which it would be much easier for the girl to appear. It also provides the necessary publicity which I honestly believe is desirable if you are to have uniformity and equal justice for both the girl and the man, who may virtually be the accused in these cases.

Cathaoirleach

We will now take Senator Comyn's amendment. The Senator, while leaving the sub-section as amended in the Committee Stage stand, wishes to add an addendum to it.

I move amendment 12:—

Section 3, sub-section (5). To add at the end of the sub-section the words:—"But this sub-section shall not be construed as excluding from the District Court or, on appeal, from the Circuit Court any persons being members or officers of the Court or parties to the case, their Counsel or solicitors, or persons otherwise directly concerned in the case."

As you, sir, have pointed out to the Seanad the amendments in my name accept the decision already arrived at by the Seanad. The three sets of amendments proposed by Senator The McGillycuddy, Senator Douglas and Senator Farren propose to reverse that decision. If I were to decide as between the three sets of amendments I would certainly be in favour of the amendments proposed on behalf of Senator Farren. Speaking for myself, I would say that Senator Farren's amendments, which appear as No. 9 on the Order Paper, are very carefully drawn and probably meet the case, but I still prefer the amendments that are in my own name.

Like all lawyers, I have a prejudice in favour of the open court. The practice has been to insist on the open court in all cases except where the higher interests of justice require that the court should not be open. There are already in our law two examples of that: matters relating to persons who might be temporarily deranged in mind. These matters are heard and decided in private, because it is considered not desirable to expose the infirmities of people who may, and frequently do, recover from their illness. There are many cases in which officers administering that very important branch of the law find themselves in social relations—sometimes at a bridge party—with people who may have been at some other time under their care. Now it is highly desirable, from the public point of view, that proceedings of that nature should be heard in camera and so they are. There is another class of litigation which is also held in private. It is litigation relating to the fortunes of wards of court. That is to prevent the fortune-hunter from finding out how much a young girl has. These matters are always heard in private, and for a sufficient public purpose. Now so far as I know these are the only two matters of a civil kind that are discussed in private.

When this Bill came before the Seanad I was in favour of the open court, because in my experience I did not find that many girls were deterred from giving evidence in seduction actions brought by their fathers. Perhaps I may have been wrong in that, but I must say that I changed my mind on hearing what Senator O'Farrell had to say on the question of publicity in these particular cases. I was thinking of the position of the girl, but I think it was Senator O'Farrell or Senator Farren who suggested the case of the man. Suppose there is a man against whom an affiliation order is sought and suppose an order is made against him, because of the fact that the order is published he may lose his employment and may not be able to pay the money awarded against him. That, I think, is a very serious consideration. I would say that this new law—because it is a new law providing that a father shall make provision for his illegitimate child— comes into the same category as the other two classes of litigation that I have spoken about, and that the ends of justice would best be served by having as little publicity as possible.

Senator The McGillycuddy said, and also Senator Douglas, that it was highly desirable that the Press should be admitted. Now we all know that the Press is conducted by gentlemen of the highest honour and of great discretion, but sometimes it happens that cases of this kind are reported in country districts without any regard for any other consideration except the circulation of the local little paper. We had an example of that some four or five months ago in the South of Ireland where the entire details of a case of this character were fully reported in one newspaper. The newspaper was, of course, bought up. There was not a copy of it to be had for love or money. It was a great success from the point of view of the circulation of the particular little periodical, but certainly it was not a success from the public point of view.

Would the Senator say how much the proprietor of it was fined?

I am very glad to know that the Minister considers that the fine was adequate.

The harm was done, and what good was the fine then?

The harm was done, as Senator Mrs. Wyse-Power says.

It certainly did not pay him. He lost very, very heavily over it.

He may have lost very heavily, but the prospect of losing heavily did not prevent him from being guilty of the offence and the same thing may apply again. I do not say that it would apply in the case of journals of wide circulation.

It was the first case under the Censorship of Publications Act. The case could not be dealt with except under that Act, and there has been no case since.

The feeling of the Seanad was that for the protection of the girl and the protection of the man these cases should be heard in camera. Now if they are to be held in secret, so far as the actual hearing in the court is concerned, is it not absurd that once the hearing is over the whole thing may be published broadcast through the country, not merely to the 20 or 30 people who may come into court to hear what is going on, but to all the people with libidinous minds who may be inclined to read and gloat over reports of this character. I think, therefore, that the amendment proposed by Senator The McGillycuddy ought not to be accepted by the House. I would also ask the House not to accept the amendment proposed by Senator Douglas, and for the reason that it provides for the admission of the Press. Senator Douglas's amendment—No.8 on the Order Paper—down to the last line of it is, I think, unobjectionable. The words in the last line are: “Any bona fide representatives of a newspaper, or news agency.” That last clause in my judgment is one to which the Seanad ought not to give its approval. A bona fide representative of a newspaper or of a news agency has no concern whatever with the paltry details of an affiliation order by a poor servant girl or a person of that class against a man in the same walk of life. Therefore, I think that as the amendments of Senator Douglas have to be taken as a whole that they ought not to be accepted, because really this particular clause would be closing the window and opening the door. The section of the Bill as it stands is: “That all applications to the District Court and all cases under this Act shall be held in camera.” That is how it stands as a result of Senator O'Farrell's amendment. What I proposed to do was to define as clearly as I can what in camera means, and it is not my own invention. It is what I have culled from various sections of Acts of Parliament passed in other countries, and is defined in the amendment. I think my amendment is a fair explanation to give of the words in camera. I merely repeat them, as they speak for themselves. As I have already occupied too much of your time I will only just ask you to pass your judgment on them, but I would submit that what we have already done should stand, that is, on Senator O'Farrell's amendment we voted and we left the section as I have read it to you and we ought to abide by that decision. I am bound to say that in one respect Senator Farren's amendment is superior to mine because it provides for publication in the official law reports, but I think we will be able to get over that difficulty and there will be no necessity for legislation on that particular point.

May I ask what is the particular section of the Bill we are debating?

Cathaoirleach

In Committee we altered sub-section (5) to read in this way: "All applications to the District Court and all cases under this Act shall be heard in camera.” That is how it stands now. There are three amendments to delete that and to substitute other words.

I have had a great deal of difficulty in making up my mind as to how one ought to approach these amendments, and I am sure a number of members of this House had a similar difficulty. I would, therefore, like to say how I have made up my mind and made my choice between these amendments. The cardinal difference between the four amendments is whether you are to admit the members of the Press or not on the hearing of a case. The first thing that any of us who has to make up his or her mind on this question has to ask is: Ought the Press to be admitted on hearing, even though the rest of the attendance in court is strictly limited? Now, that is really the main question we have to discuss, and when we have made up our minds on the question of the exclusion or non-exclusion of the Press we have solved the difficulty. Senator O'Farrell's amendment definitely and admittedly excludes the Press. Then we would have to choose be tween the amendments by Senator Douglas and Senator The McGillycuddy of the Reeks. Senator Douglas's amendment is one that admits the Press without any limitation or restriction as to what they can publish, except under the restrictions of the Censorship Act. The amendment of Senator The McGillycuddy of the Reeks is one that leaves it in the discretion of the judge. The main question, therefore, is, are we going to have a court in which a limited number of persons only are to be admitted but from which the Press is to be excluded?

Senator Comyn has stated that he as a lawyer has a prejudice in favour of an open court. Every lawyer has, I think, more than a prejudice in favour of an open court. It is a principle with lawyers that there ought to be an open court, and the only excuse for not having an open court is that in some particular cases there are arguments sufficiently weighty to induce legislation to provide that there should not be an open court. The case that is made against an open court under this Bill is that if you have an open court you will prevent the mother very often from facing the ordeal of an open court, and we must all recognise that to some extent at least, and probably to a very considerable extent in some cases, it would prevent a modest girl from taking advantage of this legislation, but the real objection is not to the Press itself but to the busybody and the gossip amongst the people amongst whom she lives. The real objection is that if you exclude that kind of public from the court and admit the Press you will still have, as far as you can possibly have, the advantage of the open court, for the Press is there and everything is done as it ought to be done and will be reported. You will have the Press there, and all the protection that a mother making an application in cases of this kind requires. I have made up my mind on the amendments. I would be strongly in favour of the amendment by Senator Douglas which admits the Press, subject only to whatever limitations are put upon them by the censorship law. My objection to Senator The McGillycuddy's amendment is that it leaves it to the judge to say whether a case is absolutely to be heard in camera, or whether the Press is to be there or not, for you will have one judge deciding one way and another judge another way, and there is nothing worse in the administration of law than want of uniformity. I will, therefor, vote against all the amendments except Senator Douglas's.

I was following very closely the remarks made by Senator Brown with regard to the question of the Press being there. What does the Press there mean? Does it mean that the Press have a right to publish or does it mean that the Press is limited in any way by the power of the judge?

Senator Mrs. Wyse-Power's point is that if Senator Douglas's amendment is passed what will be the result of allowing the representatives of the Press to be present? The result would be absolutely free publication subject only to the censorship regulations.

Cathaoirleach

We have further amendments which will limit the power of the Press.

If they are adopted. If the House so desires, this can be added.

Cathaoirleach

There are further amendments which seek to curtail the power of the Press.

I am against the Press, because the whole feeling underlying this hearing in camera is that a girl would be induced to give her evidence in open court without people looking and gaping at her and that she would know her evidence would not be reported in the local papers. Speaking of the girl, one must also speak of the man, and I think for the sake of the man as well as for the sake of the girl there should not be publication. If you let the Press in you are running a great risk. When Abraham Lincoln began life, he wrote a paper on this very question, and he wound up by saying: “There never was a woman went astray but there was a man to help her.” We ought to think of that in our contentions over the Bill; we ought to think of the two sides of the question. When Senator Farren suggested that it should be made clear that the man's name would not be published, I was quite in favour of it because I think it would be very unfair, if it was decided that the girl's name should not be published, that the man should not have the same advantage, although I think he is the greatest sinner. For those reasons I could not vote for Senator Douglas's amendment. The MacGillycuddy referred to the proportion of second and third cases. That has been very seriously thought out, but the number of first cases is so much in excess of anything else that it is really the first cases we ought to consider and not the second and third. If the Senator excludes the second and third cases perhaps I would be with him. The first cases are really the ones under consideration, and if the Senator thinks the second and third cases should be treated differently, perhaps I am with him.

It appears to me that Senator Comyn has made a case for my amendment. There seems to be considerable doubt, even amongst the members of the legal profession, with regard to the exact meaning of the words in camera. Accordingly, we have submitted an amendment which clarifies the whole matter. The House has decided on the principle that cases under this section shall be heard in camera. We go further and we define what we mean by in camera. We take out the words in camera altogether and we substitute something that will be easily understood by everybody; we indicate that certain people named in the amendment will be permitted to attend the court. We do propose that the Press be excluded, because we think there is no sense in admitting them once we have decided that the case shall be heard in camera. Otherwise the position would be that busybodies who had come to listen to the details of these unfortunate cases would be excluded from the court, but the whole countryside would be informed through the reporters who would be present. There is no sense in the House agreeing to have these particular cases heard in camera if the Press reporters are permitted to be present and if the proceedings are published. No doubt the details of these cases will not be published, but we do know that sufficient of the details can be published for the whole countryside to know all the circumstances.

As Senator Comyn has stated, I remarked on a previous occasion that in justice to all concerned there ought not to be publicity of any kind from the point of view of the girl and from the point of view of the man, but more particularly from the point of view of the illegitimate child, in whose interest the whole Bill is introduced. As Senator Comyn has said, I already have made the point that if these proceedings are made public and an order has been obtained against the man and that man is in a small way of business or is a working man, it is quite probable that he will clear out of the neighbourhood. I do not say that he would be driven out with stones, but there was a time when he would be. Anyway, he will not be able to earn a livelihood in the locality and he will not be in a position to meet the order made against him. That is the whole point in regard to publication. Under all the circumstances there is no necessity for the Press to be present. I do not understand Senator Douglas's point of view, and I do not see the benefit that is to be gained by his suggestion. If the man is imprisoned by order of the court, that would be well known without publication in the papers. I assume what Senator Douglas has in mind is if the man's character is clear. It may be argued that in many cases it makes little difference whether or not there is publication, because there are people in this country who strongly hold the view that there is seldom smoke without fire. We have put forward a particular amendment and, in view of the House agreeing to the principle that these cases should be heard in camera, we hold that our amendment meets the situation. I think the Seanad ought to accept the amendment.

I have felt very great difficulty indeed as to what should be our attitude on this question. During the last two or three weeks I had the privilege of discussing this matter with an eminent lawyer, and I have been impressed with the practical unanimity and—I think that somebody spoke of uniformity—with the uniformity of legal opinion in favour of an open court. I am not easily moved from the view that the principle which has been generally accepted and practised for many generations has something very valuable behind it. It has been suggested to me on high authority that Article 64 of our Constitution might well make this proposal invalid. That article states that judicial power in the Irish Free State shall be exercised and justice administered in the public courts. I am not going to express any view as to what that implies. But it has been raised as a matter of serious doubt. I put it that supposing 20 or 30 cases had been tried in camera and that the 21st case or the 31st case was such that it was brought into the Supreme Court for a decision as to whether this provision was ultra vires, and suppose it did turn out that the decision was that the Constitution prohibited camera proceedings, what would be the effect upon the women in the particular cases that had already been decided? It seems to me that that is a risk that those concerned with the protection of women ought to be a little slow to take, if there is a risk in that matter, because the decided cases would probably be of no effect in aid of the women; the orders made would have no validity, and quite probably some of the cases would have to be retried in public.

They could not be in the circumstances.

I will leave out the question as to whether they could be re-tried in public. I am not putting that forward with any strong confidence because it is a matter of doubt as to the legal interpretation of the Constitution. I am, as I said, strongly impressed with the almost unanimous responsible legal view that it is desirable as a matter of legal principle to have cases of this kind tried in public court. I think it is not primarily for the benefit of the plaintiff or the defendant, the prosecutor or the prosecuted, but I think it is very important from the point of view of the judge that he should feel that there is a public criticism directed to his actions. If the judge can go on from year to year trying this kind of case with the knowledge that whatever he decides is not to be made public; that there is no public opinion, not even legal opinion directed towards him, it is bad for the administration of justice. When I say legal opinion I mean lawyer's criticism which undoubtedly must have its effect upon the action of the judges in the courts. Under such conditions of closed courts there is sure to be some fault and some public damage done.

Cathaoirleach

I would like to point out that the amendment we are dealing with arranges for some form of closed courts and the Senator is assuming something different.

I am just coming to that point.

Cathaoirleach

It is not in order to deal with the public courts when they are not in the amendment.

I am going to argue that the court would not be a closed court if there were representatives of the press present.

Cathaoirleach

It would not be a public court at all if any people were excluded.

I dissent from your view in that. I think it would be a public court if the press were allowed to be present by law. I have every desire to meet the case made by those in favour of camera proceedings. I think that Senator Douglas's proposal plus the provision regarding the limitation of reports of such cases to the barest details, such as are stated in Senator The McGillycuddy's amendment, or some such thing would meet the case that has been made. That is to say, it would be possible to assure the woman concerned that she can give evidence without any fear of large numbers of people being present, and she can be assured that details of any case that have been made are not going to be set forth in the public Press. I think you will have substantial justice and consideration for the woman concerned, while maintaining the principle of the public court which is established under the Constitution.

I have already expressed very strongly in this House, and very strongly in the Dáil, my views upon the general proposition as to whether there should be a hearing of this class of case in open court or in camera. I have expressed my views strongly and I do not now propose to put again to the Seanad the arguments which I put before you on a very recent occasion. But to me, strongly as I am against the exclusion from the court of any person and strongly convinced as I am that if the court were open to everybody it would not prevent one single action being brought; convinced as I am of that, I recognise now that the Seanad has decided that there would be some restriction upon the public entering the court, and turning my attention to those various amendments which are before the Seanad, I would venture to suggest that the Seanad would do what Senator Johnson suggested a moment ago—that they might substitute the amendment of Senator Douglas for the first paragraph of the amendment of Senator The McGillycuddy. I think that if that were done it would go a very long way indeed, if it did not go the complete way, to satisfy the great protagonist of secrecy, Senator Mrs. Wyse-Power. As far as Senator Farren's amendment is concerned, I do not see any substantial difference between it and the amendment down under the name of Senator Comyn's beyond this, that Senator Farren's amendment allows one thing that Senator Comyn's amendment does not allow. It would allow the girl who is the plaintiff in the case to have her mother or some woman friend with her. Senator Comyn's amendment would not allow that, and therefore it appears to be the substantial difference between the two of them. Senator Farren also says that there might be reports in the law papers. It has been alluded to already. There might be a bona fide report in the law papers, but under this amendment there could not be, because if you could not have reporters there could be no report. These cases are heard and there would be no law reporters there. Quite possibly counsel or solicitors would send in reports to the “Law Journal” or the “Law Times.” That, however, is never done. Reports are in fact made by reporters who are not themselves barristers.

What about the reports in existence? Senator Farren's amendment provides for the publication for professional purposes.

A report to be quoted in the court must be a particular kind of report. A report made by an ordinary newspaper would be of no value, because a report, to be quoted, must be a report by a trained barrister. An ordinary newspaper report will not be quoted as an authority.

This amendment can be modified on report so as to allow the official reporters to present such a report, as is done in nullity cases, which are also heard in camera.

There is no official reporter in the District Court.

There would be decisions, and a decision in the District Court or Circuit Court might be reported. I agree with the Senator that they seldom are reported, and that really goes to show that it is not of very much importance. I will tell the Senator, however, what does happen. A considerable number of cases will come up, and there will be the question of corroboration of the girl's story. It will be very helpful—that is what precedents are for—when one District Justice knows what another District Justice has decided. It would be very helpful to know what is the meaning given to the word "corroboration." He will see that in the newspaper report, although it may not be binding on him or quoted to him as an authority. He will know that such a case came before the Circuit Judge or the District Justice, and that it was decided in a particular way. All the light of public criticism that ought to beat on the judicial bench cannot beat if you do not allow the Press to be present. I would ask the Seanad, although this does not go as far as I would personally like, to accept the amendment of Senator Douglas when it is amalgamated with that of Senator The McGillycuddy. I heard an argument put forward to-day against publication in the interests of the defendant. If that were driven to its logical conclusion you would have every single court in the country sitting in camera. A man might lose his position if a decree were made against him in this class of case. Suppose a decree were made against a business man, not in a very large way, say, in a running down case for two or three thousand pounds. A report in such a case might do a terrific amount of harm. It might drive him into bankruptcy. You would have his creditors coming down on him like a ton of bricks.

There is no parallel.

An absolute parallel. It might do a considerable amount of harm if a verdict for any amount was given against him and published.

A legal verdict is different to a moral verdict.

If you would not allow any proceedings to be published, your argument would apply as well to all criminal proceedings.

It would not apply.

The arguments you put forward that it would damage the defendant would apply just as much to criminal cases.

They are two different cases.

To clear up any misapprehension there may be in the minds of Senators with regard to the term "official reporter," I should explain that when I say "official reporter" I mean the reporter who is appointed by the Bar Council or whoever is responsible.

I do not know the body who is responsible but in a certain class of cases, if the legal profession or the Bar thinks it necessary, a barrister is appointed to report these particular cases. I say that the term in my amendment "officer of the court" refers to that particular individual.

Cathaoirleach

I think it does.

Would it be in order to withdraw my amendment in favour of Senator Farren's?

Cathaoirleach

I will put the original question that the sub-section stands, that is, that all cases be heard in camera. If that is beaten then your amendment is beaten. You cannot move your amendment in that event because there would be no section to which that would be added. If the original motion which I will put is carried then all your amendments go. If the original is not carried I will put Senator Farren's amendment which excludes the Press. If that is defeated then we will go to Senator The McGillycuddy's amendment, which is permissive for the judge,, and if that is defeated I will put Senator Douglas's amendment which compels the judge.

Before the matter goes to a division I should like to state that I did not deal with the second part of Senator The McGillycuddy's amendment, because at that time it was not before the House. As it has been dealt with by a number of speakers I would like to say, as far as I am concerned, that I am strongly in favour of adding the second part of his amendment to the one which I have moved, should it be carried. I am just as much opposed as Senator Mrs. Wyse-Power to mischievous details being published in any newspaper, in so far as it is possible to prevent it. I would point out to the Seanad that the second portion of Senator The McGillycuddy's amendment allows the names of the parties the court. the judge, the name of the counsel acting professionally in the matter, a concise statement of the charges, defence, and countercharges, any point of law, and the actual decision of the court to be published. The real issue, to my mind, is this: If that is added to my amendment there will be, admittedly, no details published, but there will be the effectual publication of the facts. I believe that complete secrecy without publication of any kind, and very little means of knowing what each judge has done, will not lead to uniformity and justice in these cases. I believe that the minimum amount of publicity is necessary to uniformity and justice generally.

I do not want to say anything that could in any circumstances be regarded as a reflection on the justices who tried the cases, but I do believe that there are some who, if acting in camera, would have a tendency almost always to acquit a man because their sympathies are in that direction. There are others possibly who would act in the opposite way, and public knowledge of the actual decision should be there if you are really going to get justice. Senator Mrs. Wyse-Power dealt with my amendment in a very friendly way. I feel that the issue is small, but it is important. According to her speech, she is not prepared to have even the smallest details published. That is clear. She is opposed to that because she thinks it might prevent girls coming forward, and it might create a difficulty for them. I believe that the small amount of difficulty that would be created, if only the essential points were published, is nothing like as important as the great danger of injustice which would occur if you had complete secrecy all over the country in every case. I honestly believe, from the point of view of the girl, leaving out the man for the moment, that she would have far more to lose by that secrecy.

Leave the man in.

Cathaoirleach

I will first put to the House the question that sub-section (5), which proposes that all applications under this Act should be heard in camera, stand part of the section. If that is carried no amendment that has been proposed will be permissible except the amendment of Senator Comyn, which proposes to make an addition.

Question—"That sub-section (5) stand part of the section"—put and negatived.

Cathaoirleach

I will now put Senator Farren's amendment, and, if it passes, the amendments of Senators The McGillycuddy and Douglas go.

Are we to understand that we are only dealing with paragraph 5?

Cathaoirleach

Yes.

And we may vote for that and vote against the latter part of the section?

Cathaoirleach

Yes.

It is clear that in voting for that you are definitely voting against Senator The McGillycuddy's amendment or mine.

Cathaoirleach

Yes. If you decide in favour of this amendment the amendments of Senator The McGillycuddy and Senator Douglas go.

What was troubling my mind was that I did not notice at first that this excludes the Press.

Cathaoirleach

It does.

If we vote for this amendment we are voting for not allowing the Press to be present?

Cathaoirleach

That is so.

Amendment put.
The Committee divided: Tá, 19; Níl, 24.

  • Miss Kathleen Browne.
  • Caitlín Bean Uí Chléirigh.
  • Michael Comyn, K.C.
  • Joseph Connolly.
  • Mrs. Costello.
  • William Cummins.
  • J.C. Dowdall.
  • Michael Duffy.
  • Sir Thomas Grattan Esmonde.
  • Thomas Farren.
  • Henry S. Guinness.
  • Major-General Sir William Hickie.
  • Seán E. MacEllin.
  • Colonel Moore.
  • Joseph O'Doherty.
  • John T. O'Farrell.
  • L. O'Neill.
  • Siobhán Bean an Phaoraigh.
  • Séumas Robinson.

Níl

  • John Bagwell.
  • William Barrington.
  • Sir Edward Coey Bigger.
  • Samuel L. Brown, K.C.
  • Alfred Byrne.
  • John C. Counihan.
  • The Countess of Desart.
  • James G. Douglas.
  • Michael Fanning.
  • Sir John Purser Griffith.
  • P. J. Hooper.
  • Right Hon. Andrew Jameson.
  • Thomas Johnson.
  • Cornelius Kennedy.
  • The McGillycuddy of the Reeks.
  • James MacKean.
  • John MacLoughlin.
  • Seán Milroy.
  • William John Molloy.
  • James Moran.
  • Joseph O'Connor.
  • M. F. O'Hanlon.
  • Thomas Toal.
  • Richard Wilson.
Amendment declared lost.

Cathaoirleach

I will now put the amendment of Senator The McGillycuddy.

I desire to withdraw the first portion of my amendment in favour of Senator Douglas's amendment.

Portion of amendment, by leave, withdrawn.

Cathaoirleach

I now put the following amendment accordingly:—

Section 3, sub-section (5). To delete the sub-section and to substitute the following new sub-section therefor:—

"(5) On the hearing of any case under this Act in the District Court or on appeal in the Circuit Court, the judge shall order the exclusion from the court of all persons other than the parties, their counsel or solicitors, the mother or other female relative or friend of the applicant, the officers of the court, the witnesses in the case and any bona fide representatives of a newspaper or news agency.”

Amendment put and agreed to.

Cathaoirleach

We now come to the portion of the Bill dealing with the question of publication, and I would ask Senator The McGillycuddy to move as an amendment sub-sections (6) and (7) of amendment 7.

I move:—

(6) It shall not be lawful to print or publish or cause or procure to be printed or published any report, statement, commentary or other matter of or in relation to any judicial proceedings for the grant of an affiliation order save and except all or any of the following particulars of such proceedings, that is to say:—

(a) the names of the parties,

(b) the court in which and the judge before whom the proceedings were tried and the names of the solicitors and counsel professionally engaged in the proceedings,

(c) a concise statement of the charges, defences and counter-charges in support of which evidence was given,

(d) particulars of any point of law raised and discussed in the proceedings and the decision of the court thereon,

(e) the decision of the court and the observations of the judge when pronouncing his decision.

Nothing in this section shall apply—

(a) to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings, or the communication thereof to persons concerned in the proceedings, or

(b) to the printing or publishing of any order, notice or report in pursuance of the directions of the Court, or

(c) to the printing or publishing of any matter in any separate volume or part of any bona fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal profession or medical profession.

(7.) (a) If any person being the proprietor, editor or publisher of any book or periodical publication, or being a master printer engaged in the printing of such book or publication, prints or publishes or causes, procures or permits to be printed or published therein in contravention of any of the provisions of this section any matter, details or particulars in relation to any judicial proceedings, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five hundred pounds or at the discretion of the court to imprisonment with or without hard labour for any term not exceeding six months or to both such fine and such imprisonment.

(b) Every prosecution for an offence under this section shall be brought at the suit and in the name of the Attorney-General.

Sub-section (6) is similar to a section in the Censorship of Publications Act of which the House has already approved. I think there must be some publicity in the interests of the public. For instance, there may be in future some delicate-minded parents who would prefer that their daughter should not contract matrimony with a man who has been burdened with one or more affiliation orders. Again, there will be people who would not care to welcome such a grandchild into the family, but without some publication these people have no means of finding this out. Then there will be occasions when an ill-founded rumour will be circulated with regard to some individual. It should be possible for parents to have a search made through their solicitor and no difficulty should be made in the circumstances. With regard to the publication of the proceedings in limited form, it cannot be of assistance to the judge. Counsel up to now have been able to look up the whole of our law in order to argue their cases and without precedents I think that the legal profession will find themselves at a considerable disadvantage. Therefore, I think, a section such as this is essential to the Bill. With regard to sub-section (7), it is similar to one in the Censorship of Publications Act and it is only necessary in order to ensure obedience to the law.

I should like to explain that the amendment which we have just passed permits the Press to attend the hearing of a case. The effect of the two amendments now moved by Senator The McGillycuddy is that the Press will only be allowed a limited form of publication. That ought to be distinctly understood.

Cathaoirleach

And the penalty is attached.

Would it be possible to put these amendments separately, because there may be Senators in favour of this limited publication provided for in sub-section (6)?

Cathaoirleach

Sub-section (7) provides the penalty.

Sub-section (7) provides the penalty by way of a fine, and it also provides, in paragraph (b) that "Every prosecution for an offence under this section shall be brought at the suit and in the name of the Attorney-General." Some of us might be in favour of sub-section (6), but we might not be in favour of limiting sub-section (7) in the way it is limited there. I suggest therefore, that they be put separately.

Sub-section (6) and sub-section (7) presumably will be put separately, as they are separate sub-sections, but I should like to suggest to Senator Comyn that he should not vote against sub-section (7), which provides the penalty, because of his objection to the Attorney-General, in view of the fact that on the Report Stage next week he can propose to alter or exclude that. It would be a great pity to lose the effective penalty, as otherwise, I think, this would be of very little use.

I should like to ask the Minister whether this amendment as now drafted falls in with his views expressed a few moments ago.

The suggestion had been made already by Senator Johnson, and I followed out that suggestion, that these two amendments of Senator Douglas and Senator The McGillycuddy should be joined together, paragraph 5 being taken out of Senator Douglas's and the other one from Senator The McGillycuddy's. It is a compromise on the whole business, but possibly in this sort of question a compromise works out the wisest in the long run.

Cathaoirleach

Would Senator Farren wish to argue his amendment?

It would not apply to this.

I think I might withdraw mine now.

Senator Farren's amendment excludes the Press completely.

Cathaoirleach

This is quite a different matter, and I shall allow Senator Farren to move his amendment if he so desires.

There is no sense in moving it now.

Cathaoirleach

I shall now put sub-section (6) of Senator The McGillycuddy's amendment.

Amendment put and agreed to.

Cathaoirleach

I shall now allow a discussion on sub-section (7).

This particular amendment provides that if a newspaper contravenes the provisions of the Act the proprietor and publisher shall be liable to prosecution and it provides a fine of £500 or imprisonment. It also provides that no person shall be competent to take any proceedings against the newspaper except the Attorney-General. I would much prefer that the rights of the parties were left to the ordinary law. Under the ordinary law it would be competent for a person who has been injured to sue for criminal libel whether what was published were true or false. I think I am right in that. It would also be competent for a person under the ordinary law to bring a civil action in case a report was unfair, and it would be also open to him to bring an action for an injunction. If these three remedies of the ordinary individual are to be taken away——

They are not taken away.

I would like to know from the Minister whether the penalty here is an exclusive remedy or not. If it is an exclusive remedy I certainly shall vote against the amendment; if it is only an additional remedy I have not much to say one way or the other except this: that I would be opposed to limiting the rights to the Attorney-General. I think the right of proceeding for a penalty ought to be given both to the Attorney-General and to the person injured. If it is open to me on Report Stage, as Senator Douglas has suggested, to bring in an amendment if necessary to delete this paragraph (b) I shall do so.

I would like to say that it is not arguable that this sub-section, which provides a penalty and a prosecution in the name of the Attorney-General, takes away anything. It does not take away the civil remedy against a newspaper, it only gives an additional penalty.

Does it take away the criminal remedy against the newspaper which the individual has?

It undoubtedly does not—not even the criminal remedy in the shape of criminal prosecution for criminal libel. So far as the Attorney-General being the proper person and the only person to prosecute, that is all entirely in favour of the person who is protected against this kind of wrongful publication. Poor people cannot go to the expense of such a prosecution. The Attorney-General is the proper person to prosecute at the expense of the country.

The Attorney-General is not bound to bring the prosecution.

Senator Comyn knows perfectly well that there never are prosecutions brought by anyone else except by the Attorney-General.

Or by his leave.

Yes, in his name. I cannot see how having the Attorney-General in here does the slightest harm. I think it is the proper thing to do. I know that in all these cases of criminal libel it is necessary to get the fiat of the Attorney-General before you can go on.

Amendment put and declared carried.

Cathaoirleach

I think that practically covers all the amendments in the paper. There is an amendment, No. 14, in the name of Senator Farren, but I think that he does not propose to move it. I now put the section.

Question—"That Section 3, as amended, stand part of the Bill"— put and agreed to.
The Seanad went out of Committee.
Section reported.
Bill ordered for consideration on report, Wednesday, 14th May, 1930.
Top
Share