Before we begin the discussion, I should say that amendments Nos. 5 and 6 are out of order because they increase the charge on the Exchequer.
Courts of Justice (District Court) Bill, 1946—Committee and Final Stages.
I take it that we shall be entitled to raise the points involved on the section?
Arguments on those lines will be in order on the question that Section 19 stand.
Sections 1 to 4, inclusive, agreed to.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."
This section is the first of the operative sections in this Part of the Bill. In fact, the whole scheme of the Bill is really dependent upon the division of the Dublin Metropolitan District into three divisions. There is nothing in the Bill which states specifically the divisions that are going to be created but I take it that I am correct in thinking that the divisions are divisions according to the nature of the work and not geographical divisions. The divisions according to the nature of the work will probably be the custody division, the summons division and then the general division. I am asking the Minister to give us an indication of the divisions which he proposes to adopt. I cannot see how he proposes to operate. It will be agreed by everybody that the most important type of case to be disposed of urgently in the District Court is the custody case, as there the people are already before the court, so to speak, and it is essential that they should be dealt with before any other business. In the scheme which the Minister proposes, if I am interpreting his mind correctly, the custody division is going to deal with all those cases that are already before the court in custody.
What the Minister has in his mind, perhaps, is that the custody division may have before it at a particular time not quite enough work fully to occupy all the justices. There is a provision later on whereby justices may be transferred from one division to another, but if that transfer is to be effective it is essential that there should be someone on the spot who would be able to gauge exactly the point at which there is likely to be less work in a particular week for custody cases and that gauging must be done some considerable distance in advance. Documents, civil bills, summonses and so forth have to be served a stipulated time before the hearing by the court. It takes some little time to effect service and it really means that the decision as to whether there are really going to be two, three, four, or five custody courts sitting in a particular week is a decision that must be taken some time in advance. It is no good having a situation arise on a Monday morning that the custody division suddenly decides that it will not have enough work for that week, that the custody justices can be transferred to other divisions and that work can be conjured out of the ground for them in those other divisions. The decision must be taken some time in advance, so that the documents can be served.
Therefore, it seems to me that the whole scheme is a wrong one, that what there should be is a continuance of the present scheme, with slightly different executive functions. There should be one senior metropolitan justice, who would be given by the Department an executive officer whose business it would be, under his direction, to organise and direct the work and that he should be keeping the control, as he would be the person best able to judge in advance which division was likely to have pressure of work and which division was likely to have slackness of work. In consequence, the people on the spot would be able—as the Minister and his Department could not possibly be able—to know how many cases of a particular sort could be dealt with at a particular time. The consideration of this whole scheme depends to a very large extent on how the Minister intends to arrange the divisions and I would particularly like him to indicate that to the House on this section.
I think we dealt partly with this matter on the Second Reading. The question which has arisen now is not the question which arose then, that is, the tendency to interfere with the rights of the courts. I suppose the fact that I read out Section 47 of the 1926 Act probably satisfied the Senator that I had the right to do it. The practice will be that the person on the spot will arrange these things, that is, the principal justice in each division; and the Minister is keeping himself in reserve to come in and give a ruling, if necessary. There will be a principal justice attached to each section and he will have a fair idea as to how many justices will be required for each division. I suppose it will not be possible to deal with all the business at once, as we all know there may be a hang over at one time and that there may be slackness at another time. Generally, the scheme is that it will be in the hands of the principal justice in each division and it is only where trouble arises, if it does arise, that the Minister will use the right he has had all along.
Would the Minister indicate what the divisions will be?
I think I did that before. There will be three blocs— custody cases, ordinary criminal cases; civil cases; and the Children's Court, with possibly the new rent cases, when we give effect to that part of the Rent Restrictions Act. That is the general idea. If there is any change necessary, there will be consultation, I can assure the Senator, and I will try to arrange the work in the most satisfactory manner. If there is a big rush in one section and slackness in another, I have no doubt it will be quite easy to get the justices to transfer from one section to another, but there may be the case of some man who may have thought he was going to have an easy time and did not want to work. We will have to preserve the right we have to say: "You must go into that section, as there is not enough work in the other one."
I tried deliberately to keep away from the line the Minister has taken. There are to be three divisions, and the Minister knows as well as I do that if he suggests to the principal justice of the children's division that there is a slackness of work in that division, the principal justice of that division will react, as all humans react, and say: "Not at all, you must not steal anyone from me". The principal justice of the criminal division will be calling to the Minister, saying he is overwhelmed by pressure of work. Accepting fully that the Minister is going to consult with the principal justices, the man who has no responsibility for the overwhelming pressure is not going to give away his assistants. I am sure the Minister realises that, no matter how slack things were in the Department of Justice, if the Department of Finance came along to him and said his Department had too much staff and they were taking 20 people away from him, he would be up in arms at once. This is exactly the same principle.
If there is one justice responsible for the administration of the whole District Court, then the responsibility is on that justice to switch the various assistants around so as to get the work done in the best way. Where the responsibility is divided there will not be the same acceptance of the fact that one division is slack and another division is busy. I agree at once with the Minister that to have one single principal justice responsible for the whole Dublin Metropolitan District would not be effective and it would not be possible unless the Minister were prepared to give to that senior justice an executive officer who would do the management work that is necessary. It is a fact, and it is as well that it should go on record as a fact, that during the great pressure of work that there has been in the district courts in recent years, there have been remarkably few cases of adjournments at the last minute because the justices working as one organised whole under the senior justice have been in the position of being able to know what cases were likely to come on, what cases required adjournments and what cases were not quite ready for proof. In consequence, the senior justice has been able to spread out the work as a homogeneous whole.
The Minister under this Bill is setting up three divisions. I would ask the Minister completely to forget that in this there is any question of interference with the Department. If I want to attack the Minister for interfering with the courts, and I may want to do that on another section, I can assure him that I shall do so in no uncertain terms. On this particular point, my anxiety is to have the courts operating as a homogeneous whole in order that the business can be directed as a whole. I do not understand the benefits which the Minister imagines are going to be obtained under Section 5, and I think that he ought to explain the matter for the benefit of the House.
I must say that I agree with Senator Sweetman. I do not like this stereotyped method of dividing the work as proposed in this section. If the section read that the Minister "may make regulations from time to time to divide the work, to allot certain justices to particular divisions and to change them from time to time from one division to another," that would be a much more elastic system, and I think it would be much better than the procedure laid down in Section 5 and also in Section 7. Section 7 provides that an ordinary justice of a division may from time to time be transferred from his division by the Minister to another division. What does that mean? It means that the Minister makes an Order on a certain date changing the justice from division A to, say, division C.
We are not discussing Section 7, at the moment.
I am dealing with Section 5, but that section must be read in conjunction with Section 7. I am objecting to the stereotyped method in which the section is drawn. I would prefer if Section 5 read that the Minister could make regulations for the division of the work, and arrange that certain justices might carry on the work according to his directions.
Section 10 provides for that.
I do not know that it does. Section 10 provides that:—
"The business of the District Court to be transacted in the Dublin Metropolitan District shall be distributed amongst the several divisions in such manner as the Minister may from time to time direct."
Now, that does not help at all. That simply enables a distribution of the work to be made amongst the divisions in the way that the Minister has outlined—to give the criminal cases to one division, civil cases to another division and the children's cases to another division. There are to be so many justices in each division. If there is a glut of work in one division one week the Minister may make an Order transferring a justice from division A to division B or C and the justice will remain there until the Minister makes another Order transferring him back to his old division. I suggest that the whole method is bad and I think it should be altered by empowering the Minister to make regulations. If given that power the Minister could make elastic regulations that would enable justices to be transferred from time to time. There is no reason why the senior justice of a division, if he has no work to do in that division, should not be asked to work in another division when there is a good deal of business. Under Section 5 that cannot be done, but it could be done if the Minister were given power to make regulations.
This is the most important section in the Bill. If things were working satisfactorily I would not have brought in this Bill at all. The Minister must have the right to divide up the work. The principal justice in each division will have the right to manage the business in that division. If everything does not go right it would be the duty of the Minister to see that the work is arranged as it ought to be. It will be his business to see that enough work is being done in each division. If there is a slackness of work in one division and too much work in other divisions, and if the justices do not fix that up between themselves, then the Minister will come in and say what must be done. I cannot understand Senator O'Dea at all, because Section 10 provides that the work amongst the several divisions shall be distributed in such manner as the Minister may from time to time direct.
The point that I made was that if the Minister makes an Order transferring a justice from division A to division B or C, the justice remains there until the Minister makes another Order transferring him back to his old division. That might be very difficult. I suggest that that should be done under regulations. It could be done by the senior justice, subject to the Minister's approval. I think that the section should be made more elastic. There should be power to say to a justice that he was to go into this court to-day and into another court to-morrow. Under the section, he may say: "I am in this division and I will not go into that court". In a case such as that the senior justice has to go to the Minister and get an Order transferring him. In that case there is a delay waiting for the Order. I think that the section will work badly.
I do not think it will.
The Minister said that the present system is not satisfactory. As one who has experience of operating under the present system I could not allow that statement to go uncontradicted. It is the almost universal opinion of solicitors practising in those courts that the present arrangements are satisfactory except that the work during the emergency increased and kept on increasing. I suspect—I am not putting the blame at the Minister's door—that the Department of Finance fell behind a long way in appointing the necessary number of additional justices to deal with the work that was there. That is the only thing that was wrong. There is nothing wrong with the present system.
That may be the Senator's opinion, but the Department of Finance did not interfere. Any demand that I made to the Department of Finance, either for justices or for staff, was acceded to. The staff was increased from 12 to 20, and the number of justices from three to eight.
Not as when they were required.
During the emergency?
Since I became Minister for Justice, I never had the slightest difficulty with the Department of Finance either as regards staff or justices. On a couple of occasions there was a remark made by the justice that there was something like that. Immediately we found out any request had been made it was attended to. Once or twice it happened that a complaint was made in court. When I examined into that I found that no request had been made. Any time I got a request for help, so that people would not be kept waiting to have their cases dealt with, I immediately went to the Minister for Finance or to the Government and I was given all the help I wanted.
I merely wanted to give the Minister greater power.
Section 5 put and agreed to.
SECTION 6.
I move amendment No. 1:—
To add to the section a new sub section as follows:—
(4) Nothing in this Part of this Act shall be so construed as to prejudice the terms and conditions of service operative prior to the passing of this Act, of the justice appointed by the preceding sub-section.
On the Second Reading of this Bill the Minister stated that he was doing nothing to alter the contract already existing between the State, on the one hand, and those people who are asked to take up and who do take up positions under the State, on the other hand. I accepted the Minister's word on that and I regarded his statement as being of such importance that I considered it should be reflected for all time in the statutory provisions of the Bill. For that reason I have incorporated his statement in this amendment so that it would be there on record in the Act itself. I am not suggesting anything new in my amendment; I am merely giving legislative effect to a statement made by the Minister here on the last occasion.
What I stated was that there was nothing in this Bill which would interfere with the contracts of appointment of any of the justices. Neither is there. Why then put in something, as part of the Bill, that I said here on the last occasion? With all due respect, I think that is a most ridiculous suggestion. The matter is either covered by the Bill or it is not. If there is nothing in the Bill interfering with the rights or the contracts of appointment of justices, then there is no necessity to make the obvious more obvious still. I think I made that quite clear, when I explained what Section 47 says. There is quite enough in the Bill without embodying statements made by me in the House here. Surely, the Senator is sensible enough to see that.
I quite understand the Minister's point of view but in practice we have found that very often in the interpretation of a Bill something is read into it which was not intended when the Bill was originally drafted. It is not infrequent to have a provision incorporated in a Bill to the effect that nothing in a particular section "shall interfere with." I think that is what is at the back of Senator Sweetman's mind. It is not a matter of putting over a fast one on the Minister. It is a question of trying to make it quite clear that it cannot be so interpreted, knowing that the Government has no intention of changing any previous or existing arrangement. Therefore, it would seem to me that it would be better in a Bill of this kind, which is very complicated, to make a proviso that nothing in it can be taken as interfering with the contracts of the justices.
I have the strongest possible objection to that. I certainly think we have, both in this House and the other House, people sufficiently intelligent to point out anything which might interfere with the contract of a justice. It is up to them to point out anything which may interfere. That has not been done. Surely, it reflects on the situation when I am asked now to copper-fasten it like this. If there is anything in the Bill there are plenty of people quite competent to point that out without our having to incorporate a statement of that kind in it.
The Minister, or his colleagues, have on occasions taken up the same attitude on other Bills, namely, that his interpretation of the Bill was the correct one and that the interpretations put upon the Bill by others were incorrect. It has happened that people in the Civil Service, or working for the Government, who are in a position to give their whole-time service and their especial skill so essential for these things, have given interpretations of sections. Subsequently, it was found that the interpretation put upon the measure was not the interpretation that was intended and that the interpretations put upon statutes and put upon the Constitution were not the interpretations that were intended. There is a fairly recent case on record in that regard. However, I do not want to labour the point, but I do want to have this case copper-fastened beyond all shadow of doubt. I want that done not because of the Minister or of the Government, or because of any Government which may succeed them, but for all future Governments which may not take out the same interpretation as the Minister has taken. This amendment cannot do the Minister any harm whatsoever and it will beyond question copper-fasten the matter and allay the anxiety that exists at present on the part of some of us, namely, that there is a change in status in effect contemplated under the Bill, though we accept at once the Minister's statement that he does not so intend. I do say, however, that there is within the four walls of this section a possibility that a Minister who wished to could alter the terms of an existing contract. I think that if such a possibility exists the proper legislative thing to do is to put into the Bill now an amendment so as to place such a possibility beyond the power of anyone.
In answer to that, if the tendency was in that direction there would be some case for the Senator's amendment. But the tendency is in quite the reverse direction. As I pointed out on the Second Reading, under the 1926 Act the Minister had a say in these matters and it was not until 1937 that the justice was given a say in them. As far as the status is concerned, it has been altered here but it has been altered to the advantage of the district justices. There is a definite alteration in the direction of making their status better than it has been in the past. Therefore, the tendency is quite the reverse. For that reason I am not going to accept the implication contained in this amendment. I shall strongly resist it.
May I give one example of interference? In Section 6, sub-section (2), paragraph (b), power is given to the Minister to nominate an ordinary justice of a division to act temporarily as a principal justice, but without additional remuneration, and the section says that such justice so nominated shall act accordingly. That is to say, the principal justice gets extra salary in consideration of extra work presumably; but under sub-section (2) of Section 6, the Minister has power to say to any ordinary justice of the metropolitan division that he must act as a principal justice temporarily without remuneration. He cannot say that to a principal justice because he cannot transfer a principal justice without his consent. Now, whether that is a change in the terms and conditions of service, or whether it is a breach of contract, I do not purport to say because I do not know. Quite plainly, it gives the Minister power to make a particular individual do more work without remuneration.
It does not alter his terms; he will merely act for the other in his absence.
It gives the Minister power to do that.
The Senator was not here to see the powers the Minister had under the 1926 Act. That is a small point. The salary is not interfered with; the justice will be paid £1,100 a year. All that will happen is that he will be asked to take the other man's place during either vacation or illness. I think there is very little in that.
I do not object to it. The point I am making is that under this provision the justice is being required to do something which he was not required to do hitherto. I have not the same overwhelming regard for the 1926 Act that the Minister appears to have.
I have not either. I am resenting the implication that we have been interfering with the rights of justices. That is what I am objecting to. That is the whole tendency.
I am making no implication. But circumstances differ; 1926 is 20 years ago. I am prepared to admit that the Minister is making certain improvements. On the question of whether there may possibly be a change in the conditions of service, this appears to me, as an outsider, to indicate that there may be a small difference.
I am not certain whether at present we are requiring a justice to take the place of the senior justice, but in practice it is done. If the senior justice happens to be ill, his place is taken by one of the ordinary justices without extra remuneration, because his remuneration is fixed by statute. I cannot find at the moment where the Minister has the power, but in practice he does it, so that we are not doing anything which we are not at present doing.
Does the Minister do it by arrangement with the justice?
There has never been any difficulty about it.
Then it is probably by arrangement with the justice.
That is the way it will be in future. I think the position is that we are not allowed to change the justice's salary without legislation. That is the whole difficulty.
I know that.
That is why "without additional remuneration" is put in there.
Unless you made an addition to this to empower you to do it.
Which would give me power to change his salary. I have no power to do it, as it is fixed by statute.
I am prepared to withdraw the amendment in the hope that the Minister and I will not live to see the day when I am proved right. I do not believe the Minister intends to change the terms and conditions of service. I accept wholeheartedly and absolutely his declaration that he has no intention of changing it. I sincerely hope that it will not be necessary for me in future to come along to this Minister or any other Minister and say that there has been a change, because I am afraid that under the section without the amendment it could be done. But, as the Minister is so categorical in his declaration that he has no such intention, I am accepting it and withdrawing the amendment.
The Senator may be in the Minister's shoes then.
Amendment, by leave, withdrawn.
Section put and agreed to.
SECTION 7.
I move amendment No. 2:—
In paragraph (b), to insert in line 48, after the word "Minister" the words "after consultation with the principal justice of such first named division."
This is only a small amendment. I do not think there is the slightest doubt that the Minister would consult the principal justice of the division before transferring a justice to another division, but I think it might be better if it were put in legislative form, because I want to ensure that there will be a responsibility fixed on the principal justice for each division to make certain that his division operates, and, if he is brought into consultation in this way, it will make him shoulder his responsibility in a better manner.
I have the same objection to that as I had to the last amendment. In practice it will be done.
The Minister so undertakes?
Certainly.
I am satisfied and I will withdraw the amendment.
There is no intention of departing from it.
Amendment, by leave, withdrawn.
I move amendment No. 3:—
To add to the section a new sub-section as follows:—
(2) Nothing in this Part of this Act shall be so construed as to prejudice the terms and conditions of service operative prior to the passing of this Act of either of the justices who, immediately prior to the passing of this Act, was a Dublin Metropolitan justice, unless and until such justice becomes the principal justice of a division.
I take it that on the amendment I can construe the Minister as again giving the undertaking given in respect to the first amendment, that there is no intention of changing the terms and conditions. The Minister is reiterating his point?
Yes.
Then I am satisfied and I will withdraw the amendment.
It was not necessary.
Not for the present, but I want to get the declaration.
Amendment, by leave, withdrawn.
Section put and agreed to.
Sections 8 and 9 agreed to.
SECTION 10.
I move amendment No. 4:—
To insert after the word "divisions", in line 22, the words "after consultation with the principal justice of each such division".
That is the same thing as amendment No. 2. The Minister is undertaking to consult the principal justice?
The same thing applies there.
Amendment, by leave, withdrawn.
Section put and agreed to.
Section 11 to 18, inclusive, put and agreed to.
SECTION 19.
I understand that my amendment has been ruled out as being of a financial nature.
An Leas-Chathaoirleach
That is so, Senator. I might say also that amendment No. 7 appears to be consequential on amendment No. 6.
I am talking on the section.
An Leas-Chathaoirleach
We have not come to the section yet. Amendment No. 7 is consequential on amendment No. 6.
If the Minister was prepared to accept the argument that Senator O'Dea and I are going to put forward on the section, amendment No. 7 might be necessary.
An Leas-Chathaoirleach
If so, it can be retabled for the Report Stage.
In that case, I presume I cannot move it.
Amendments Nos. 5, 6 and 7 not moved.
I move amendment No. 8:—
At the end of the section to insert the following new sub-section:—
(3) Whenever a justice is removed from office on account of incapacity, he shall be deemed for the purposes of pension to have vacated his office owing to permanent infirmity.
This is necessary, because in Section 49 of the Courts of Justice Act there is provision made for a person retiring through incapacity being entitled to a pension. By repeating that section we remove that provision. Consequently, I am providing now that where a justice has to retire through incapacity, or be removed for incapacity, his pension rights will be safeguarded. It could happen that a man would be so ill that he would not be in a position to tender his resignation and would have to be removed from office owing to incapacity.
Might I ask a question? I understand that amendment No. 8 is being moved by Senator Quirke. In view of the decision of the Cathaoirleach earlier that a Senator cannot move an amendment which imposes a charge, I want a ruling as to whether it is possible for a Senator to move this amendment.
An Leas-Chathaoirleach
This is a Government amendment and Government amendments on Committee Stage are moved by the Leader of the House.
There is nothing on the Order Paper to indicate that.
An Leas-Chathaoirleach
That has been the procedure.
I am not challenging the procedure. I have contended that any member of this House could, at any time, move any amendment, irrespective of whether it imposes a charge or not, because if it was improper, the Dáil would object.
An Leas-Chathaoirleach
There has been a decision by the Committee on Procedure on that point.
Very good. I am not challenging that. I listened patiently to the Cathaoirleach giving a ruling to day that two amendments on the Order Paper could not be moved by Senators because they imposed a charge. A Senator is now making a proposal and I submit that it is out of order.
The question whether this is in order or not relates to the powers of the House. It is a question whether this House can send back an amendment which increases a charge. If it can do it, obviously it can be moved; if it cannot do it, then it cannot be moved, whether by the Minister or anybody else. This is a matter of considerable interest. I believe the Committee on Procedure and Privileges take the view that it cannot. I hold the view that it can. I believe the Cathaoirleach is quite correct in saying that the Committee on Procedure and Privileges decided to the contrary. We have come to a crisis, because it is the Minister who wants to increase the charge. It does not matter whether it is Senator Quirke or the Minister who moves it; it is really a question of the powers of the House.
An Leas-Chathaoirleach
The Committee on Procedure and Privileges gave a decision on the matter when it was submitted to it, and I am bound by that decision until it is altered.
Amendment No. 8 was moved by a Senator. I would be prepared to consider this proposition, provided that Senator Douglas and Senator Hayes, who are the authorities on constitutional practice——
That is very serious.
I make the submission—I do not know how it will be accepted by those authorities on constitutional practice—that it might be possible to move this amendment as a Government amendment on the Report Stage. I am not arguing that it can.
An Leas-Chathaoirleach
The practice has been that Government amendments on Committee Stage are moved by the Leader of the House. Until the Committee on Procedure and Privileges changes it, that practice must prevail.
I suggest that a Senator can move on anybody's behalf to impose a charge on public funds.
An Leas-Chathaoirleach
What I have indicated has been the practice up to the present.
Has it not been the practice that the Leader of the House moves such amendments?
An Leas-Chathaoirleach
I stated that at least two or three times.
Then we are merely continuing the practice. I submit this is not the proper place to discuss the matter.
An Leas-Chathaoirleach
I made that suggestion also.
I am protesting against this practice, and I ask the Chair to rule that it is not in order. The Chair has ruled that two other amendments, doing precisely the same thing, are not in order, and they have been ruled out.
An Leas-Chathaoirleach
I have ruled that the amendment as so moved is in order, according to the practice of the House. Amendment No. 8.
Amendment agreed to.
Question proposed: "That Section 19, as amended, stand part of the Bill."
I was hoping that I would be allowed, on the Report Stage, to submit an amendment suggesting that this matter be referred back to the Dáil for the purpose of amending Section 48 of the Courts of Justice Act, 1936. That section provides that a district justice will be entitled on retirement after 30 years' service to a full pension— that is, two-thirds of his salary. It appears it would be very difficult for any district justice to attain that length of service. He would need to be appointed when very young. First of all, he would have to be apprenticed to a solicitor or he would have to practise at the Bar and he has to be so many years qualified before he can be appointed. The practice is not to appoint a man unless he has a good deal of experience. A man has to be a certain age before he is appointed.
It would be very difficult to attain the period of service specified. A district justice is in somewhat the same position as a Circuit Court judge. Circuit Court judges have been appointed as young as any District Court judge. The Circuit Court judge in our county was very young when he was appointed and the Circuit Court judges in Dublin and all over the country are very young. They could just as easily go to 30 years' service as a district justice, but, as a matter of fact, after 15 years they can retire on full pension. In the case of district justices I would lengthen the period from 15 to 20 years. My suggestion is that they should get their full pension if they retire after 20 years' service. It is a very reasonable suggestion. Perhaps the Minister will consider it between this and Report Stage in order to see if anything could be done in that direction?
I raised this matter immediately after the Minister spoke on the Second Reading. I was then in some doubt as to whether there was an overriding power which limited the pension to two-thirds of the salary. In case there was not such an overriding power, I put down the rider in amendment No. 7. It appears to me that it is not unreasonable to ask that a district justice should obtain his full pension rights after 20 years' service. As Senator O'Dea has said, a district justice has to spend years in order to be qualified as a barrister or a solicitor. Then he has to spend years practising as such before he can be appointed as a justice. For such a man to be in the position that he must serve 30 years before he can get his full pension, seems to be a hardship. It is particularly a hardship in view of the fact that in portion if this Bill the age limit is being reduced to 65. Some district justices have been functioning for slightly over 20 years.
I do not know whether the Minister can give us any information as to the number of justices who will have to retire because of the age limit before they achieve 30 years' service. I suggest that, having regard to the fact that 15 years' service is sufficient for the High Court and Circuit Court judges, a period of 20 years as the maximum for a district justice is not unreasonable. I should like the Minister to look at the matter in the same light and tell us how many cases there will be in which justices, because of this section, will not get the full two-thirds pension to which I think the Minister and the House feel they are entitled.
I support Senator O'Dea and Senator Sweetman in urging that the district justice should be entitled to a full pension after 20 years' service. It is only right that a district justice should be brought into line as regards pension with circuit judges and High Court judges. Of course, district justices are as a rule appointed at an earlier age to the Bench than Circuit judges or High Court judges, but even at the present time it would be very hard to find any district justice who, being compelled to retire at 65 years of age, would have had 30 years' service to entitle him to a full pension. It is true that over 20 years ago a number of young men were appointed district justices, but I think the tendency is to appoint more mature men as district justices nowadays. Therefore, I can only add my voice to those of Senator O'Dea and Senator Sweetman in urging that the Minister should take some steps, by persuasion of the Minister for Finance or otherwise, to improve the pension rights of district justices in the direction indicated by Senator Sweetman and Senator O'Dea.
I do not know whether the Minister can do this in this particular Bill, but certainly the position is that we have had more than 20 years' experience of the district justices and the system, I think, has proved to be successful. There can be no doubt about that.
That is true.
The position, as explained by the Minister in the other House, is that since 1932 the tendency has been to appoint people of a later age than previous to that.
That is right.
There are several reasons for that. Everybody was young in 1922 and for the first ten years younger people were appointed. The retiring age has now been reduced to 65 and if the Minister for the time being or the Government for the time being should not be restricted in their choice, they should be able to appoint a person of 45 to be a district justice in the knowledge that when he is 65 he will get a full pension. I happen to know a case which rather surprised me although on reconsideration I understand it quite well. In the Gaeltacht a man may continue to 70. I came across a district justice recently who will go on until 70, but even at 70, having been appointed in 1924 or in or about that time, will not get his full pension. That is to say, he will not have served 30 years when he reaches the age of 70. He was appointed rather later than the others. I do not want to labour the point. I expect the Minister is, at any rate, in some sympathy with it, but in order to give freedom to appoint people of mature years and in order to recognise the success which has been achieved by district justices generally, I think they should be put, if not in exactly the same position as Circuit and High Court judges, at any rate in a better position than the present one. The period of 30 years should certainly be reduced to 20 years. It would make it easier to get the right type of material, I think, and it should certainly get consideration.
I agree with those who have said that it is in the public interest that district justices as a general rule should be men of some maturity and experience of life. For the District Courts, which are the courts of the people, we want men not only of integrity and experience, but of ability. At 35 it is an exceptional man who will have proved himself but between 35, 40 and 45 men develop very rapidly, especially solicitors and barristers who have contact with the world. We must consider the position of a man who has a prospect of making a good practice as a solicitor, and gives it up to become a district justice. We want the type of men who are likely to be a success as solicitors or barristers, but we should not expect too great sacrifices from them. They sacrifice the prospect of a good career and a business, especially in the case of a solicitor, that they could pass on, perhaps, to their son. If a district justice gives up the profession of solicitor— it is the more concrete case I have in mind—to become a district justice, unless he has been appointed at 35 which is comparatively speaking, immature, he retires on a small pension. I do not think that that is really in the interests of the common good. We want, as everybody has stressed, men of ability, of great experience and ripe judgment. They have important duties to perform and much of the peace of the countryside depends upon the judgment of the district justices.
I supported this idea in another form on the last day. The more general support there is for this idea in the House the stronger will be the Minister's position in dealing with it. There is a problem and it is foolish for us to close our eyes to it. Those of us from rural Ireland realise the part played by the District Court in the life of the people. It is the people's court. The status and prestige of the law are determined to a very great extent by the competence, personality, integrity and ability of the district justice. Personally, my view is that no matter how good the material is that is available for service in that court, it is not one bit too good for it. It is absolutely essential to get the very best material that is available. I have had very little experience of the law in any sense, but if anyone who is practising as a barrister or solicitor were put in the position of having an invitation from the Minister for Justice to become a district justice, what considerations would he have to take into account? First, he would have to consider the salary; I do not know that anybody feels that district justices are adequately paid. In my opinion they are not. Only for the fact that the calibre of those selected for service in these courts is of very high order they might very well become suspect. If they were a weaker type of people, in the circumstances of to-day, one might hear a number of very unpleasant suggestions made, not one of which is ever made against the manner in which our district justices discharge their duty. There are risks involved in underpaying people who have considerable responsibility to discharge. District justices certainly are not adequately paid. From that point of view there is no great attraction to enter that service.
When they consider what will be their position at the end of their service, what do they find? It may very well be that a man gets an invitation from the Minister when he is at an age that will not enable him, in present circumstances, to qualify for full pension. He must ask himself the question, if he gives up all his time to his work, what will he do when he has to go out on a small pension of a few hundred pounds? Is he to go back and try to pick up a practice as a barrister in the courts or to go into some solicitor's office or something like that? We could all cite such cases. From that point of view, it is a very undesirable condition of affairs.
I belong to a section of the people who do not believe in very high salaries, because they are accustomed to equate salaries paid to what they receive themselves, but in this respect anyhow not only is it penny wise and pound foolish but, from the point of view of the administration of the law, we are creating a situation in which the best material will not be available. When we get the best material, we are not treating it with the consideration which ability is entitled to expect.
This is the matter which I promised to take up with the Minister for Finance. I cannot commit the Government in a matter like this. Senator Hayes has seen the difficulty that it cannot be done in this Bill and I do not know whether it will be done at all. All I can say is that I will raise the matter again with the Minister for Finance and the Government and see what, if anything, can be done about it. I do not know why, when district justices were first appointed, the term was fixed at 40 years. I suppose the idea was that it should be the same term as applies to the Civil Service. It was changed in 1936 to 30 years.
We were all young fellows then.
The Department of Finance had too much influence at that particular moment. That was the reason.
They will have a lot of influence, but one thing I cannot do is to commit the Minister in this matter. I will take the matter up again with him and I may succeed in improving the terms. It has to be remembered, however, that the people who take these appointments are sensible people who know what they are doing. It may be a point that we would get more applicants if there were better terms, that better applicants might come forward if better terms were available, but the fact is that these people know what their conditions are. With regard to Senator Sweetman's question, I think about one-third of the present justices could obtain the full pension.
Only one-third?
Yes. It was suggested in the other House by one of the Opposition that we were appointing younger people, but, as Senator Hayes has said, it is the other way round— we are appointing people of more mature age now.
We are all getting more mature ourselves.
I hope, when the Minister is making his case which he has promised to make and which we all hope he will make with success, that he will point out the extremely important factor that 20 years ago nobody could have foreseen such a violent change in the value of money as has taken place since.
That affects everybody, of course.
And, further, that "applicants" as a general rule should not be appointed.
I should not have said "applicants". I should like to delete that from the records, if I could.
Question put and agreed to.
Sections 20, 21 and 22, inclusive, agreed to.
Question proposed: "That Section 23 stand part of the Bill".
This is a stop-gap section, and I hope that, in future legislation, it will be put right. The section provides that, where an appeal from the District Court in any matter is determined by the Circuit Court, then, unless the Circuit Court has issued the necessary instrument to enforce its decision, the District Court shall issue the said instrument. That confuses the whole matter. Which court is to issue the instrument? The section arises out of a certiorari case brought before the High Court, in which I acted. I advised my client not to go to the expense of trying to justify the order of the court, but, as a result of that warrant for possession of a house being fought, a state of uneasiness arose in the District Court, and I think the district justice refused to sign any further warrants lest they should be quashed.
What happened in that case was that the landlord brought a summons for ejectment of a tenant who had signed a caretaker's agreement under Section 86 of Deasy's Act. The district justice refused the warrant and the owner of the house appealed. The Circuit Court judge made an order that the plaintiff do recover possession. That order should have been implemented by what is called an execution order of the Circuit Court, but, owing to some confusion in the rules which provide that, when the Circuit Court makes an order on appeal from the District Court, the order of the Circuit Court shall be communicated back to the District Court so that the district justice will sign the warrant, the warrant was signed without any communication from the Circuit Court and the warrant was quashed.
The section provides that the Circuit Court may issue an execution order on foot of a Circuit Court order on appeal from the District Court, or that the District Court may issue it. It is obviously undesirable that the District Court should issue a warrant for the execution of an order which has been made by the Circuit Court. That execution order should be issued from the Circuit Court office, and, when an appeal is taken from the District Court the District Court should no longer have anything more to do with the matter. The matter should come to the Circuit Court which should deal finally with it. As it is, this section provides that, when an appeal is taken from the District Court to the Circuit Court and the Circuit Court makes an order, say, for possession of a house, the order implementing the order of the Circuit Court is to be signed by a district justice. That is highly undesirable.
This is a kind of panic section to get over some temporary difficulty which arose in the District Court, and I urge the Minister to take steps to amend the rules of the District Court or the Circuit Court in relation to this matter. The whole position with regard to appeals from the District Court to the Circuit Court is most unsatisfactory, both so far as the rules of the District Court and the rules of the Circuit Court are concerned. I urge the Minister to look into the matter carefully.
I did not know that Senator Ryan was concerned in the case in question, but I want to support what he has said from the theoretical angle. I want, however, to take the matter very much further from the practical angle, because the fact is that, as this section is here drawn, it is highly objectionable, from the theoretical angle, and, from the practical angle, is a futility. It provides that where an appeal from the District Court has been taken and where the Circuit Court does not issue the necessary instrument to enforce its decision, the District Court shall issue the instrument, but there is nothing in the section or anywhere else to enable a district justice to know whether the Circuit Court has issued the necessary instrument or not.
Mr. O'Donovan
There is not a direction in writing?
No, nor a subsidiary instrument. There is nothing in the section and there are no rules dealing with the matter and the situation at the moment is that we pass the section and a case comes into the District Court on which the district justice gives his decision—let us say, with regard to possession of a house. It passes on appeal to the Circuit Court, and the Circuit Court judge gives his decision that possession of that house shall be handed over. The Circuit Court apparently has no power to issue the necessary execution order, and what happens? The party concerned must go back to the district justice and say to the district justice: "Will you issue the order for me"? The district justice, if he has any sense at all, will not do it, without finding out whether the Circuit Court has done it or not, and there is no method provided by which he can find out. There might, therefore, be a position in which a district justice was falsely got by this section to issue a warrant, for which a Circuit Court had been already enabled to issue the necessary document. In fact, there would be two orders on one decision. This section, I suggest to the Minister, seriously needs further consideration so that such an eventuality shall not arise, and that there will not be such a stop-gap method which Senator Ryan has correctly described, but some practical way of ensuring that the responsibility of the various courts shall be properly co-ordinated.
Undoubtedly this is a stop-gap section, and the way to fix the matter up satisfactorily is by the rules of both courts. As far as machinery is concerned, it is quite easy, I am assured, for one court to know what the other court did. If the Circuit Court has not done that until the rules are made right, then the District Court shall do so. We will take steps to see that one court will know what the other court did, and we will urge the rule making committee to get to work to make the rules right.
I urge the Minister to provide in the rules, if possible, that an order of the Circuit Court should be enforced by an execution order issued from the Circuit Court, and not from the District Court, and that this section should be agreed to for stop-gap purposes.
Question put and agreed to.
Schedule and Title agreed to.
Bill reported with amendment.
Agreed to take the Fourth Stage now.
Question—"That the Bill, as amended, be received for final consideration"—put and agreed to.
Agreed to take the Fifth Stage now.
Question—"That the Bill do now pass"—put and agreed to.
Ordered: That the Bill as amended be returned to the Dáil.