I ask the leave of the House to allow amendment 1, in my name, to stand over until the other amendments are considered.
Trustee Bill, 1931—Committee Stage.
Leave granted.
Sections 2 and 3 agreed to.
SECTION 4.
(2) Where the High Court has power under the said Section 25 as extended by this section to make an order appointing a new trustee or new trustees the High Court may, in lieu of appointing a new trustee or new trustees make an order vesting the power of appointing or nominating or of consenting to or approving of the appointment of new trustees (as the case may require) in the holder for the time being of a specified office by virtue of and during his tenure of such office in the place of the holder of the office the cesser of which occasioned such appointment.
I beg to move:—
Section 4, sub-section (2). After the word "specified" in line 18, to insert the word "judicial".
The sub-section as it stands sets out that the High Court shall have power to vest the appointment of new trustees in the holder of a specified office. My amendment aims at providing that that power of appointing new trustees should not be given to any person except the holder of a judicial office. Trustees have very important functions. There are a good many of these old trusts created by instruments of very long standing. There is a considerable amount of property governed by those instruments. It is important that the trustees of this property should be carefully selected. The presumption is that there is no existing trustee of the instrument creating these trusts. Where there is no existing trustee of any trust, the Court, under the old Trustee Act of 1893, has power to appoint a new trustee, but before the Court appoints a new trustee there must be filed in the Court the consent of the trustee to act. There must be also an affidavit that the trustee is a fit and proper person and, following upon that, there must be proof that the trustee's private interest is not in conflict with his duty as a trustee. These documents must be filed in the Court and the nature of the trust must be disclosed to the Court in order that the Court may see that the personal interest of the trustee is not adverse to his representative interest as a trustee. Therefore, the greatest care is taken.
The documents are filed. They are all on record to be produced in case there is breach of trust, and very frequently there is a breach of trust. Senator Brown said that I was wrong in stating that the Court is delegating its functions under this Bill. My point is that if the Court is to delegate its functions to the holder of any office that person must be the holder of a judicial office. I define a judicial office as an office held by a person who is a Judge of a Court of Record. The judicial officer should be either a district justice, a circuit court judge or a high court judge. My reason for that is this, partly because these are the proper persons to make a selection of people to be trustees, but chiefly because the documents that I have mentioned will be recorded in the Court. They will be there on record, and will prevent, to a considerable degree, the danger of having improper persons, even though they are the holders of offices, appointed trustees. That is my reason, not altogether because the judicial officer is the proper person to appoint trustees, but mainly because these documents will be on record to be brought up hereafter. If the section is accepted as Senator Brown sponsors it, the Court shall have power to nominate the holder of any office to be the person to appoint trustees, but there is no regulation that the holder of that office may make the necessary inquiries. There is no requirement that the necessary documents shall be filed and the whole thing will be secret. I object to secrecy, both as regards the huge amount of these old trusts and their administration. I ask the Seanad to accept my amendment for the two reasons which I have stated.
The principle that underlies this section is this: that where the Court itself does not appoint a trustee it may designate the holder of some specified office to appoint a trustee or to nominate a trustee. Senator Comyn's amendment limits that power to the holder of what he calls a judicial office. A judicial office as he defines it in his first amendment means the office of a Judge of any Court of Record. I may tell the Seanad that it would include the Coroner's Court.
A very good man.
The Coroner's Court is the oldest Court of Record in this or in any other country. My first objection to the amendment is this, that it will not give the protection which Senator Comyn thinks it will. If the section were amended in the way that Senator Comyn seeks it would read in this way: that the person whom the Court appoints to exercise the function of appointing trustees in the case of one of those old charities is to be a judicial officer. That does not mean that when he appoints a trustee it will be done in court. On the contrary, he may do it sitting in his garden or in his study when he will not have the documents to which the Senator referred before him. Because of that they will not be filed. I quite agree it is important that the person who has the nomination of trustees in the case of these old charities or old institutions should, where the Court is not going to do it, be a person of wisdom and of judicial mind. In many cases, certainly in the case of local charities, a person holding judicial office in Dublin would not know anything at all about the qualifications of the person he was asked to appoint as trustee.
It is very important that you should have someone with local knowledge who still holds some specified office. In many cases that would be necessary, cases in which the Bishop or perhaps the Mayor of a city or someone of that kind would be the best person to nominate the trustee and not some judicial officer exercising functions either in the Circuit Court or in the High Court. You are much more likely to get a proper kind of trustee appointed if you leave the Court a discretion as to whether the specified officer is to be a judge or is to be someone who may in the circumstances of that charity know far better than a judge. I ask the House to leave the section as it is and to allow the Court to exercise its discretion. In nine cases out of ten it will appoint an officer holding judicial office, but in the tenth case it may be very much more useful and will result in the appointment of a very much better class of trustee if you leave it to someone who has local knowledge of the person he is asked to appoint.
Amendment put and declared lost.
Section 4 agreed to.
Amendments 3 and 4, by leave, withdrawn.
Sections 5 and 6 agreed to.
Section 1 agreed to.
Title agreed to.
The Seanad went out of Committee. Bill reported.
Report Stage ordered for June 3rd, 1931.
The Seanad adjourned at 5.40 p.m.sine die.