Seanad Éireann debate -
Wednesday, 11 Mar 1931

Vol. 14 No. 9

Public Business. - Courts of Justice Bill, 1931—Second Stage.

Question proposed: "That this Bill be read a Second Time."

Minister for Justice (Mr. Fitzgerald-Kenney)

This is a very small measure, As Senators are aware, a Joint Committee of the Dáil and Seanad was set up to consider what alterations, if any, should be made in the present administration of the law in this country. That Joint Committee brought in a very far-reaching report that is at present under consideration. I hope, in the fairly near future, to introduce legislation carrying out the majority, if not all, of the recommendations embodied in that report. There was one very small alteration suggested by the Joint Committee in their report which is perhaps more urgent than the general question—that is, the retiring age of judges. The present retiring age for Circuit Court judges is seventy, and for High Court judges seventy-two. The Committee suggest that the age of both should be raised to seventy-five. We are not satisfied that would be a good improvement. Some men are able to carry on with their faculties unimpaired to seventy-five; others may not.

On the whole we think that seventy-five would not be a good age. There is no reason, however, why the age of Circuit Court judges should not be raised to the same limit as High Court judges. This Bill proposes that the age limit of Circuit Court judges should be raised to seventy-two. If a Circuit Court judge goes out at the age of seventy he will, of course, be eligible to be reappointed under the Bill. Section 3 of the Bill deals with the question as to how the pension should be fixed. Shortly put, it is that he should receive his pension based on the number of years that he has actually been working.

Mr. Johnson

Would it not be better to make it clear to the House that the Bill before us is intended to bring a particular Circuit Court judge into office again? That will be the effect of this Bill when passed. I think it is rather hiding what is a palpable fact not to state that a judge who has retired recently in Cork owing to the age limit ought to be brought into office again. The purpose of this Bill is to make that possible.

Mr. Connolly

I feel disposed to oppose this Bill for a number of reasons. One is that to make one servant of the State the subject of a Bill is to reduce legislation to a very low level. As Senator Johnson has pointed out, the sole purpose of this Bill is to prolong the official life of a certain Circuit Court judge. There has been a good deal of controversy on the question as to the age at which judges reach their most mature judgments. I personally doubt very much if it can be argued that a judge, or any other person, is improving at the age of seventy, and that he is going to still further improve between that age and seventy-five. We have had various sidelights on this question of maturity recently. The Minister for Finance, for instance, assured the people of Skibbereen that our little party had not reached maturity yet. It so happened that a day or two after I read that I came across a controversy in an English magazine which went on to say something about "not a drop under seven years old." The two things linked themselves together, for some reason, in my mind, and I came to the conclusion that the Minister for Finance, being now seven years old as a Minister, might be released from the wood, so to speak, and bottled up for a period. Maturity at the age of seventy-five—I believe that is one of the recommendations of the Joint Committee—is, I think, a very debatable question. Personally, I feel that a man is more likely to be approaching a state of senility at seventy than to be developing the proper type of judicial mind.

Civil servants retire at the age of sixty. The maximum, I understand, is sixty-five. I see no reason why the official life of a judge should be prolonged more than that of the average civil servant. I have yet to learn any reason for it. It is true that we have had some very distinguished and brilliant judges in the country who carried on until they were seventy-five and some until they were eighty years of age. These, however, were the exceptions. I, personally, would be strongly in favour of judges being pensioned off at seventy years of age. On the question of pensions to judges, it has been argued that judges have to be provided with very big pensions so that they will not be subject to bribes. As the gentlemen who sat on that committee were mostly legal men, I think that in expressing that view they were not paying a great tribute to their own profession. I must say I disagree with some members of our Party on this. One member, I believe, argued in favour of adequate provision for judges so as to prevent them being subject to bribes. One would imagine that people occupying the position of judges, even if never given a pension, would be above the temptation of bribes. I do not think it is fair to the Oireachtas that a Bill to prolong the official life of one judge for two years should, in all seriousness, be introduced into the legislature. For that reason I am inclined to oppose the Bill.

Mr. Farren

I do not think that we ought to debate the recommendations of the Joint Committee on this Bill. I was a member of that Joint Committee, and because of that I am going to support the Bill. Another reason why I am prepared to support the Bill is this, that a very strong wish has been expressed by the people in the district in which this particular Circuit Court judge served that his term of office should be extended. The judge's name has not been mentioned, but the people who frequent his court are anxious that he should be continued in office. He appears to have given undoubted satisfaction to the people in that area. This Bill only deals with one matter. When the general Bill is brought forward, then we can discuss the retiring ages of judges and all other matters dealt with in the Report of the Joint Committee. The general opinion amongst many people conversant with the work of the courts seems to be that some of the finest judgments on record were given by judges after they had reached the age of seventy-five.

It is a notorious fact that most judges live to a good old age. Whether or not it is the hard work that they have to perform or not, it is notorious that these men do live to a ripe old age. We have three ex-Lord Chancellors of Ireland on the pension list at the present time—all drawing hefty pensions. We can deal with all these questions when they arise. When I look around this House, I see some men over 75 who are in possession of all their faculties. One of these men I have in mind particularly. I think that his judgment is better than that of a man of 40 or 50 years of age, and I would be prepared to accept it. You cannot legislate generally. One man might be perfectly active and capable at 78, while a man at 48 might be a duffer. I expect that whoever is in charge of the Department of Justice will see to it that men who are past their period of usefulness will be retired compulsorily, even if they are under 70 years of age. I would expect that to be done. One would expect that it would be the duty of the Government to see that the men charged with the carrying out of the laws made by the Oireachtas would be fit for the work, and even if they were not 70 that they would, if unfit, be removed from office.

Mr. Fitzgerald-Kenney

They can only be removed for misconduct.

Mr. Johnson

On a motion passed by the two Houses of the Oireachtas.

Mr. Farren

If a man is not sufficiently in possession of his faculties to administer justice properly, that, in my opinion, amounts to misconduct. The Minister happens to be a lawyer himself, and, of course, lawyers can bring in regulations when they like to suit themselves. I shall not, therefore, attempt to argue with the Minister. I am in favour of the Bill because I believe that the people in the area concerned desire that the Bill should be passed so that the purpose intended should be carried out.

Mr. Dowdall

Like Senator Farren, I served on the Committee which drafted the recommendations referred to by the Minister for Justice. They were far-reaching and numerous. Had they not been so and had they affected only a few issues, I am sure that a Bill would have been prepared and passed by now, and that it would not be necessary to bring forward a Bill such as this. I think I should tell Senator Connolly that the Committee which dealt with this matter was not "mainly composed of lawyers." It had, very properly, a number of lawyers on it, but it had also a number of honest and sensible men, like Senator Farren and myself. As Senator Farren has said, we had the judge affected by this Bill before us. He gave evidence. Anybody who thought that his intellect was in any way impaired by the passing of the years would be disabused of that opinion in a very short time by listening to him. He is fully competent to carry on his work, and it is the wish of the area which he serves that he should be permitted to carry it on. This was also the unanimous opinion of the Committee, and I will support the Bill.

Mr. Hooper

As a member of this Committee, I should like to emphasise what Senator Dowdall has said as regards its composition. I have been running over the names of the members of the Committee since Senator Connolly referred to the matter, and I find that it was composed half and half of lawyers and non-lawyers. Of the lawyers, at least two were not in practice either as solicitors or barristers. Even assuming that what Senator Connolly said was correct, one would have thought that lawyers on a Committee of that kind would have been in favour of fixing the maximum age for judges at the lowest possible point. If the lawyers on that Committee were professionally or personally interested, they surely would have done their best to open the way for promotion for themselves or their colleagues. But the fact is that they voted for and strongly advocated the raising of the age limit. I do not think I am betraying any confidence when I say that many of them would have been in favour of even a higher age than is proposed in the Bill. I was anxious to clear that point up.

As to the financial aspect of the matter, surely it is in the public interest that judges, if they do retain their faculties, should be allowed to function for as long a period as possible. Otherwise, they will be placed on the pension list and new men will be introduced at the salaries which they were receiving. In that way, the State will be paying considerably more than it would have to pay if the judges were continued in office as long as they were capable of administering justice properly. I do not desire to go over any of the other grounds of argument, but, as a member of the Committee, I would ask the House to pass this Bill.

Mr. Fitzgerald-Kenney

This Bill raises the age limit, not to 75 but to 72. It will have the effect of enabling a judge who has just retired to be reappointed. It will have that effect in fact, but it is a permanent Bill, and it will enable all other judges as well as that particular judge to retain their positions on the Bench until they are 72. If you are going to raise the age limit to 72, and if, as is generally admitted, a man who has been an excellent judge were to be shut out from the provisions of the Bill by a couple of weeks or a couple of months, I think it would be hard luck.

The general question of an age limit of 75, I suppose, we will discuss later. I think that 72 is as high as we could reasonably go. Although some judges carry on their functions with unimpaired ability until they reach 75, as other individuals do, still there are some men who are not physically fit to do the work of a judge at that age. The work of a judge is long and hard work to a man of 70 or 72, if he does it properly. It has been suggested that we can always remove a judge if he is not competent. That is impossible. We can only remove a judge for misconduct, which really means that he must have done something professionally wrong or shown himself not to be a straight man. But who is to decide whether a judge is good or bad, whether his decisions are right or wrong? It would be impossible for any Department to consider seriously the position of a judge and to say: "We remove such-and-such a judge because we do not like his decision in such-and-such a case." That could not be done.

Question—"That the Bill be read a Second Time"—put and agreed to.

Committee Stage fixed for to-morrow (Thursday).

Mr. Fitzgerald-Kenney

There is no detail in this Bill, and I do not suppose there will be any amendment. I should like if the Seanad would take all the stages to-morrow.

Cathaoirleach

That could not be done under our Standing Orders.