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Seanad Éireann debate -
Wednesday, 18 Jul 1945

Vol. 30 No. 4

Court Officers Bill, 1945.—Committee and Subsequent Stages.

Section 1 agreed to.
SECTION 2.

I move amendment No. 1:—

In sub-section (1), to delete the words "after consultation with" in line 11, and to substitute therefor the words "with the concurrence of".

I want, in the first place, to apologise to the Minister for giving him rather less time than I might have given to consider these amendments, but there is a certain fatality in that respect. The purpose of the amendment is very obvious. This is not an isolated case. The same wording occurs throughout the whole course of the Bill. As the principle is exactly the same I only put down an amendment in one place to cover the whole lot. The Minister has provided for consultation with the President of the High Court and I am perfectly certain that the Minister will tell me that no Minister for Justice, neither himself nor any subsequent Minister, would act in opposition to the wishes of the President of the High Court after he had been consulted. I think, having regard to that, it would be better if it were specifically so stated in the Act. It is not really from the point of view of the Minister that I am considering this. For the reason that it is expressly set out in the Bill and in the Act, that the Minister merely consults the President of the High Court, it would be better if the President had to give his positive approval because then he would be likely to consider it very much more carefully and seriously before giving advice after consultation. The Minister is at one with me in trying to ensure by every possible means that there shall be nothing directly or indirectly that will cause any possible chance of interference with the judges of the courts in the carrying out of their duties. These duties are necessarily carried out not only when they are sitting in open court. We all know perfectly well that it is possible to ensure by indirect means that a man carrying out a job is hampered through the staff and the facilities that may be made available to him. I do not think that there is any attempt or suggestion here of doing that, but I want to ensure that it cannot be done in the future.

I could not possibly accept this amendment because its principle is one on which the Government could not give way. Under the Court Officers Act of 1926 there was such a provision. There had been a practice of judicial patronage, and that was done away with. The staff were to be under the control of the Minister and the Department responsible to the Oireachtas. While, as the Senator says, any Minister will try to meet the wishes of the President of the High Court, the Minister could not for a moment allow the President of the High Court to have what would amount to a veto in the matter of staff. There is no intention of interfering with the judicial rights or functions of the judges, but in matters of management or control of staff no Minister could possibly give way. Therefore, I could not possibly accept this amendment.

Do I understand that the Minister claims that although the judges are independent as regards their functions constitutionally, those who are to carry out the various instructions the judges may give in the execution of orders of court, etc., are to be entirely under the Government? It seems to me that there should be some restriction. I do not want to go back to judicial patronage and I do not suppose anybody else does. I think this question applies pretty well to all the courts, and that, if a man is independent in his functions, he must take whatever officers he is ordered to take, in a very short time it is possible that may interfere with the independence of his functions. There should be an obvious line of compromise. To my mind the amendment proposed by Senator Sweetman is reasonable. It does not give to the President of the High Court power to appoint anybody.

The President of the High Court would have the power of veto.

Somebody must have the power of veto.

The Dáil can veto it.

There is room for genuine difference of opinion. The question is whether in the event of a difference of opinion, is the Government to have control over all the court officers? I doubt if that is a right or a good principle. I think the Minister is right from his point of view in the stand he takes. He wants the Government to have absolute control.

The point is dealt with in the Court Officers Act of 1926. It is Section 65 and as it is a short section I will read it if I may.

"(1) Nothing in this Act shall prejudice or affect the control of any judge or justice over the conduct of the business of his court.

(2) When an officer attached to any court is engaged on duties relating to the business of that court which is for the time being required by law to be transacted by or before or under or pursuant to the order of a judge or judges of that court he shall observe and obey all directions given to him by such judge or judges.

(3) All proofs and all other documents and papers lodged or handed in to any court in relation to or in the course of the hearing of any suit or matter shall be held by or at the order and disposal of the judge or the senior of the judges by or before whom such suit or matter is heard."

It is simply a matter of the control of the ordinary staff which must be in the same position with regard to the Minister for Justice and the Minister for Finance as any other staffs in the Civil Service. The provision in the Bill is to make sure that that will be the case. As far as judicial matters are concerned they are quite safeguarded. There is no question whatever of interfering with them. If I accepted the amendment I would be accepting a right for judges which the judges do not claim. I could not allow the judge to veto the Minister in the case of a purely staff matter.

Leaving out the general principle, which we can discuss on the other sections, this is, presumably, going to happen only once. The Minister is to make an Order to relieve the Master of the High Court of the Management of the central office. That is not a matter that affects the general status of the staff. It is the exercise once of a function changing the whole management of the courts. I was rather mystified as to why the section was introduced at all in the form in which it was introduced—with the introduction of the word "may". It may be that there was necessity for the section, but the Minister could have come to the Oireachtas and said this should be done. I do not quite understand why it is left in that discretionary way, unless the Minister intends to have further consultations with the President of the High Court. If he intends to have further consultations, the responsibility for this very sweeping change, in case it does not work, should not only be on the shoulders of the Minister, but on the shoulders of the President of the High Court, because, as I have said, the change is very sweeping.

The intention is to consult the President of the High Court. It is unlikely that we shall be at variance in the manner suggested, but if it should come to that, the Minister could not agree to taking control of the staff out of his hands. In this case, there has been consultation, and there will be consultation when the Bill is passed, with the President of the High Court as to what should be done. I do not think that it interferes with the judges in any way.

Amendment, by leave, withdrawn.

On this section, would the Minister explain why he has brought the section to us in this particular form? Will he say why it is left discretionary? Perhaps he would take the House into his confidence and say if it is intended to operate this section immediately the Bill becomes law.

I have to consult the President before I take any action, and it would be rather invidious for me to say what I intend to do before consulting him.

My consultation with the President would be of no avail if I were to say beforehand what I intended to do.

You told us you had consulted him.

I did consult him before the Bill was drafted. Before I take action under the Bill, when it becomes an Act, I shall again have to consult him.

Section agreed to.
SECTION 3.

I move amendment No. 2:—

In sub-section (2), in line 42, to add after the word "relating" the words "directly or indirectly".

Before I pass on to the amendment, would the Minister clear up a point for me? Will the operation of sub-section (2) of this section be governed by the section of the Court Officers Act, 1926, which the Minister has read? The wording of the two provisions is slightly different.

We are not touching the section I read and that will govern the position.

Supposing sub-section (2) of this Bill clashes with that section of the Court Officers Act, which it does, which will govern?

There would be the possibility of a clash as things are at present. All that will happen when this Bill is passed will be that the Master will be replaced by another person. There is just as much likelihood of a clash now as there will be then.

If the Minister will again read Section 65 (3) of the Court Officers Act, he will see that "all proofs and all other documents and papers lodged in or handed in to any court in relation to or in the course of the hearing of any suit or matter shall be held by or at the order and disposal of the judge or the senior of the judges by or before whom such suit or matter is heard". In this Bill, it is provided that the official in charge shall be "subject to the general direction of the Minister in regard to all matters of general administration and to the directions of the President of the High Court in regard to all matters relating to the conduct of that part of the business of the High Court which is for the time being required by law to be transacted by or before one or more of the judges of that court". The wording of the two sections is different and I want to discover which is the governing section. If the predominant section adequately preserves the independence of the judiciary I am perfectly happy.

If the Senator will read Section 5 of that Act, he will find the same words set out in relation to the Master's functions as are set out in this Bill. There is the same possibility of a clash under the present Court Officers Act as there will be when this Bill shall have been passed. The only difference is that another official will take the place of the Master. The provision is taken word for word from Section 5 of the Court Officers Act. So far as judicial work is concerned, the word of the President of the High Court is what will carry. There will be no interference with the work of the judiciary but, as regards purely administrative work, the ordinary Civil Service regulations will apply to officers in the courts, as elsewhere.

My whole difficulty is that the two sections are different.

Amendment, by leave, withdrawn.
Sections 3 to 5 ordered to stand part of the Bill.
SECTION 6.

I move amendment No. 3:—

In sub-section (1), to delete paragraph (b), and to substitute therefor a new sub-paragraph as follows:—

(b) If both the Minister and the President of the High Court are satisfied that none of the persons qualified to be appointed under paragraph (a) of this sub-section are suitable to be appointed, the Minister may appoint a person who at the time of his appointment is either a barrister or a solicitor and of not less than six years' standing as such and who then is actually practising.

The same situation arises, to a large extent, in this case. I suggest seriously to the Minister that the person most likely to know the most suitable officer of the courts to become examiner is the President of the High Court and not the Minister. I suggest, therefore, that the President of the High Court should, if the word may be used, have a veto on any proposal to go outside the officers carrying on that department when the new appointment is about to be made.

Of course that is the same point. I could not at all agree to leave a veto to the judge.

With all respect, this is the most important point of the lot. The work of the chancery judges must depend completely and absolutely on their examiners. I shall not weary the House with a description of the way in which the work is carried out except to say that there are two chancery judges. This Bill now provides that there shall be two examiners and that each of the examiners shall be in the same position as a private secretary, say a first executive officer, to the Minister. The Minister would feel extremely aggrieved if he were not to have a voice in saying who was to be appointed his private secretary. The examiner must act in that position in regard to the chancery judge. If we wish to preserve the independence of the chancery judges, I think we must ensure that they will have some say in the appointment of officers working under them who will be responsible for arranging and conducting all their business.

Certainly they will be consulted, but further than that I could not go. To be logical, the Senator might as well advocate that a judge could bring in a man off the street and appoint him. That might not be a bad thing; he might get a better man, but it would be a bad principle to establish. It would mean going back to the old system under which the judge could bring in anybody he liked.

I have not suggested that.

To be logical, the Senator might have done so. The judge might say he could not find anybody in the Civil Service to suit him. There might be something to be said for that view, but the practice now is that all Civil Service appointments are filled in a certain manner. We shall do our best to meet the wishes of the judge by every means we can but to agree to allow him to veto the Minister's appointment or to bring in anyone he wanted, whether he was an official of the courts already or not, is something to which I could not agree. Certainly nothing will be done to hamper the judge but this is a principle on which I cannot give way.

Is the Senator pressing the amendment?

I could not withdraw it. I regard this as a vital principle.

So do I—very vital.

Amendment put and negatived.

Sections 6 to 11, inclusive, agreed to.
SECTION 12.

I move amendment No. 4:—

In sub-section (6) (a), to delete the words "at the will and pleasure of the Government" in line 13, and to substitute therefor the words "until resignation or until retirement under the next succeeding paragraph or until termination by the Government for stated negligence or misconduct".

I do not know whether there is any precedent in existence for a provision of this kind, and I really put down the amendment for the purpose of getting information. I think that there may be occasions when a sheriff in the exercise of his duties would possibly differ from the Government, quite genuinely, on a matter such as the exercise of a discretion in the collection of debts—say, as to whether it was reasonable to accept instalments in respect of land annuities or some debt of that kind. I should not like to see the sheriff so completely dependent as he is in this paragraph. To be quite frank, I have not been able to trace any precedent for a provision of the kind which I suggest.

The words which the Senator seeks to have deleted are a common form. In fact, I may say that every civil servant holds his appointment at the will and pleasure of the Executive Council. Section 35, sub-section (2) of the Court Officers Act says: "Every county registrar shall be appointed by the Executive Council and shall hold office at the pleasure of the Executive Council." That does not mean that if some disagreement arises as to the method of collecting debts the Government would dismiss the sheriff, but as I say, that is a common form.

It in fact means that he can be dismissed if they do not like the colour of his hair.

I suppose it does, but that never happens.

Amendment, by leave, withdrawn.
Sections 12, 13, 14 and the Title agreed to.
Bill reported without amendment.
Report Stage ordered for Thursday, 19th July, 1945.
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