Amendments Nos. 1 and 2 to this Bill, in the name of Senator Sweetman, are not in order.
Courts of Justice Bill, 1947—Committee and Final Stages.
Sections 1 to 7, inclusive, agreed to.
SECTION 8.
Question proposed: "That Section 8 stand part of the Bill."
I do not propose to take up much of the time of the House on this section because we discussed this matter of the salaries payable to district justices fairly fully on Second Reading. The Minister in his reply dealt rather effectively with a point that was not made.
It was up to me to make it.
One of the easiest ways to avoid answering an awkward question is to put up another ninepin and knock it down. There is a case, and the case was made before in this House, in respect of the difficulty associated with work in the Metropolitan District Court. By virtue of the pressure of business in these courts, there is the case that the district justices should not be asked to sit on as many days as justices in the country but I do not agree, as I said on the last stage, with the provisions of the Bill, even though the provisions are taken to some extent from the Principal Act.
One of the Minister's arguments on the last day was that the Principal Act provided a difference between the salary of a district justice in the metropolitan district and the salary of a district justice in the country. Before the Minister arrived this evening we had a discussion on the question of precedents. As I pointed out then, if we were to take the view that every Act previously passed was the last word in legislation, we should never have the Minister here. We should be very sorry for that. There would be no necessity to amend the law if we took that view. Apart from that, I think I am right in saying that the difference in connection with the original Act is smaller than the difference which there will be under this measure. There is a very distinct view that district justices in the country have to keep up a style which does not operate in the city. In the city nobody knows exactly what the manner of living of a particular district justice is. He is swallowed up in the large urban population. In the country the district justice of the area is a person who must be looked up to. That is essential if he is to carry in his court a proper dignity. He is a person who must be asked—and very properly —to various functions in his area. The Minister knows as well as I do that, even though one may get an invitation to a certain function, as matters work out, the cost is often greater than if he had not got an invitation. It does seem ludicrous that, if I knock down a man because he annoys me, the district justice who will try the case, if the offence occurs in the country, will be paid at a different rate from the district justice who would try the same offence if it were committed in the city. I do not think that that is right. As I am not allowed to move an amendment on the matter, I press the Minister to bring in an amendment on the Report Stage covering these points.
I quite agree with all that Senator Sweetman has said. I shall not delay the House by adding to what I said on a previous occasion on this subject.
I support this proposal. There is every justification for the Minister doing what Senator Sweetman urges. Neither the Minister nor anybody else will challenge the truth of the statement that the competence of the district justice in the country must be, at least, up to the level of that of the district justice who operates in the city. As the national schools are the poor man's main source of education in the country, so the District Courts in the country are the poor man's courts. Many interesting and important questions of law are decided in those courts. The justice who adjudicates on these questions must understand country life and must know his law. What is sought will not involve any considerable expenditure and it is a desirable step to take.
If additional justices or temporary justices have to be appointed in the city, I presume that these young men coming into the service will be paid a salary equivalent to what the permanently appointed justice receives. That salary will be higher than the salary received by old and experienced men in the country. That is an invidious position in which to place the senior justices in the country. Nobody seeks to belittle the responsibilities with which city justices are faced every day of the week. On the other hand, nobody who knows the type of problems which have to be determined by district justices in the country and who realises how important it is that their judgment should stand out as competent and impartial will deny that these justices should be as well paid as justices operating in the city.
I should like to join my voice with the voices of those Senators who have spoken in support of this proposal. I should like to see justices in the country paid the same salary as justices in the city are paid. Apart from their work, with which many Senators are more familiar than I am, these men have a position to keep up. It is extremely difficult for them to do so, particularly if they have young families. I ask the Minister to consider the proposal which has been made. On Report Stage, perhaps he would see his way to meet the wishes which have been expressed by so many Senators to-day.
I support this proposal on general principles. I think that it would be better if, instead of this peculiar scheme of differentiation, district justices were paid a uniform salary. I do not want to repeat what I said on the Second Stage, but civil servants in the administrative grade have a much higher salary than these country district justices. Under the consolidation scheme, and a man who had £900 a year, now receives £1,300 a year, and he has prospects of promotion. When a person becomes a district justice, he abandons any prospects of promotion. The District Courts have worked well, and there is no basis at all for this distinction between ordinary Dublin justices and justices in the country districts.
I frankly think that it is very desirable that the district justice should be enabled to cut some kind of figure in the country. One of the things we have come to realise since our extreme youth, when we were in favour of the levelling of everything, is the lack here of a certain kind of society. The district justice, who represents the State, and the administration of Irish justice, and who has been selected for his character, is a desirable kind of person to be able to cut a figure such as I have mentioned. From the social point of view and even from what we might call the Irish-Ireland point of view, it is desirable that he should have a reasonable income. The difference made between a district justice in the country and a district justice in Dublin has no real basis. The Department of Finance is, of course, always looking for bases to make differentiations of this kind. The man who gets appointed to Dublin may become a principal district justice and may, in a short time, have a much higher salary than men in the country who were appointed 20 or 25 years ago. That is very undesirable. The amount of money involved is very small. The unfortunate position is that the district justices win the golden opinions of all classes, including politicians and lawyers, but they do not get any money.
It is very hard for me to resist all these appeals, but I have got to do so. Whether the Seanad agrees with it or not, what is being done in this Bill is consistent with what has happened throughout the Government service. In this Bill a percentage increase is provided, which is not as great as would compensate for the increased cost of living. That has not been done in the case of those higher positions at all. The increases are on a graduated scale. Whatever case may be made for an increased salary for district justices, the Minister for Finance would never consent to such an increase in connection with the figures set out in this Bill. He does not want to destroy the basis on which he started out. If that were done in this case, he would be told that he gave 50 per cent. to these people and only 30 per cent. to others. I am not promising that such increases will be made at a future date. I put this matter up to the Government. There was some pressure about it before now. I myself should have liked to see a larger salary provided for district justices. Whatever hope there may be of having that done in the future if the question of the difference in the purchasing power of money leads to an increase in the jurisdiction of the courts, it will not be done in connection with this Bill. We have had other Bills here to-day. There is a percentage increase in them. In the case of civil servants it could be done without legislation. Statutory salaries require legislation to give effect to the Government policy generally.
I am sorry I have to resist the appeal that has been made from all sides of the House. I have, however, no option in the matter. I will say that if I were the Minister and if there was a Bill for increasing jurisdiction of that kind I would make a fight for it. At present I see no case without opening the door for practically every class of public servant which has got an increase. Some Senator said that we are taking an unscientific line in the matter. I do not agree. I consider that it was a very safe course to adopt. People on the lower scales got a much higher percentage increase because undoubtedly a greater proportion of their salary went to the increased cost of living. I suppose that as one's salary goes up the scale it is less—maybe it is not, some say it is not but I think it is—because my belief is that a higher salary does not require as big a percentage increase. The Government thinks so too and have been consistent in the matter. I have no option but to turn down the appeals which have been made from all sides of this House, and also in the Dáil, and even before that from all over the country.
Do I understand the Minister to say that he undertakes to give consideration to the question of differentiation?
No. Does the Senator mean under this Bill?
No, in connection with the question of extending the jurisdiction.
I cannot say how soon but there probably will be a Bill. I would be prepared to put up a fight with the Minister for Finance to try to increase the salaries of country district justices then, but I may not succeed. I do not want to commit myself in any way. However, I will say that I think there is a case.
That is fair enough.
I take it that the Minister's case is that these particular Bills are for a particular increase without any regard to the merits of the salaries and that if another Bill comes in he recognises the strong case that has been made. Is that the position?
Yes, that is the position.
There is a good deal of feeling about this. I want to make it clear that I think the Seanad in getting the statement it has got from the Minister has got an assurance that if occasion occurs the question of the relative value of the salary, which has nothing to do with whether there should be an increase or not, will receive careful consideration.
Yes, that is my feeling in the matter.
We must accept that as being satisfactory although I do not quite accept the Minister's view that the mere flat percentage method of dealing with it is the correct one in the circumstances. However, that is the Minister's view.
It is the only one we could adopt.
Question put and agreed to.
I move amendment No. 3:—
To delete sub-section (2).
This amendment was discussed at some length on the Second Stage. Its purpose is to ensure that, though the President of the Circuit Court will have all and every proper power in relation to the Circuit Court, he will not be an ex officio judge of the High Court. I do not like the provision by virtue of which the President of the Circuit Court can be—and I use the words “can be” deliberately—utilised as a judge of appeal over another Circuit Court judge. The Minister said on a previous stage—I am not quite clear whether he said it here or in the Dáil, but I read it in the report of either House—that the President of the Circuit Court would not be used for that purpose. With all due respect to the Minister, I say that he cannot give any such undertaking. The provision is in this Bill that the President of the Circuit Court can be so used. I do not admit the Minister's case in this respect but, whatever case there is for the President of the Circuit Court to, so to speak, stand in and do High Court work, if High Court judges become ill, I suggest there is no case at all for sending out the President of the Circuit Court as a journeyman High Court judge on circuit to hear appeals coming from other judges of the Circuit Court. There is provision in this Bill by virtue of which that can happen. The Minister, I think, very nearly went as far as saying that he did not agree that it would be satisfactory for the President of the Circuit Court to have to hear appeals from other Circuit Court judges. I think it was in the other House that the Minister stated that. If that be so—I say very strongly that it is so—and if the Minister agrees with me would it not be far better to insert an amendment in this Bill by virtue of which the President of the Circuit Court can stand in to do ordinary High Court work if there is illness but under no circumstances can he be asked to hear appeals from his other Circuit Court brethren?
I think quite candidly that for the President of the Circuit Court to hear appeals from the other Circuit Court judges whom he is directing in the courts could only lead to friction. There is no use in trying to evade the fact that if a judge is overruled by another judge there is bound to be a certain amount of ill-feeling, and perhaps friction, in certain cases. It is very undesirable that the man who is directing the work of the Circuit Court, as the President of the Circuit Court, should be asked as in this case, or should be put in the position of being asked—even going as far as that—to sit in appeal over another Circuit Court colleague.
I am opposed to the amendment as it stands. I gave my reasons on the last occasion for that. In short, they are that it is a very good thing, if there is a shortage of High Court judges, that the President of the Circuit Court would be available to do the work. There is something in what Senator Sweetman has said but it is not in his amendment.
I agree.
I do not know whether the Minister would consider putting in some little clause about the hearing of appeals, or perhaps a direction to the President of the High Court to see that such a judge would not be sent round on circuit.
I do not think there should be any direction to the president. That position would be worse than the present one.
I regret very much that this provision should be inserted in the Bill. This Bill has been drawn up without reference to or consultation with the members of the legal profession. Members of the profession are practically unanimous in opposing this provision, namely that the President of the Circuit Court should ex officio be an additional judge of the High Court. I do not know why the Government ever decided to adopt this provision. It may be that the Department of Finance had some qualms of conscience about consenting to Section 6 (1), which reads:—
"The President of the Circuit Court shall receive the same annual salary as an ordinary judge of the High Court",
and in order to salve their consciences they said he must be ex officio a judge of the High Court so that he would keep within their regulations.
There is a great difference between the High Court and the Circuit Court. In the first instance, there is the hierarchy of courts. In practice, a decision of a circuit judge does not bind a High Court judge and, no matter how learned that decision on any point of law, it cannot be referred to before a High Court judge. That is so in order to preserve the right of independent judgment of the High Court in cases of appeal from the Circuit Court. There is what is known as the comity of courts—judges of co-ordinate jurisdiction, although not bound by the decision of their colleagues, adopt those decisions and use them and allow the party aggrieved to go to the higher court to have the matter decided.
In this case, the President of the Circuit Court may sit as circuit judge one day and as a judge of the High Court the next day. As a judge of the High Court, he cannot look at his decision in the Circuit Court, if the same matter should come before him, but his mind and his views on law will be exactly the same as when he was a circuit judge. Therefore, he is not absolutely free to act as a High Court judge. In the Constitution, Article 36, it is expressly provided:—
"Subject to the foregoing provisions of this Constitution relating to the courts, the following matters shall be regulated in accordance with law, that is to say:—
(i) the number of judges of the Supreme Court, and of the High Court, the remuneration, age of retirement and pensions of such judges,
(ii) the number of the judges of all other courts, and their terms of appointment,..."
It is contemplated that there should be a distinct number of judges in the High Court and a distinct number in the Circuit Court, which is one of those "other" courts. There is no provision in the Constitution for a judge of the Circuit Court to be ex officio a judge of the High Court, in other words, to be a judge of both courts. That matter should have weighed with the Government.
The Minister stated that the circuit judges were consulted. I am sure they were quite willing to agree, as every circuit judge had a chance of being made a judge of the High Court and had everything to gain and nothing to lose by agreeing.
I have a feeling that, in practice, this will not be satisfactory. We know what human nature is and when a circuit judge sits once in the High Court he will be loath to go back and sit as a circuit judge. No temporary judges of the High Court have been appointed —though at one time there were commissioners to hear appeals—as when that temporary service would be ended they would have to go back to the Bar and be one of the crowd. Now, when his functions as High Court judge are ended, he goes back to the Circuit Court. That is a step down which should not occur. A judge should be a judge of the court to which he is appointed and of no other court.
It is unnecessary, for the purpose of giving the president the High Court status, that he should be a judge of that court. He has status in being president and in being endowed with all the powers of president as set out in this Bill and he has the status of being paid the salary of a High Court judge. That is status enough and there is no necessity to add this novel provision to make him a judge of the High Court. He is to act as president and direct the other judges of the Circuit Court. He has that status under Section 10 and the mere fact that he is ex office a judge of the High Court will not improve in any way his position, status or prestige in carrying out his functions as president.
Section 9 (4) states:—
"The person appointed to be President of the Circuit Court shall hold that office so long as he holds the office of circuit judge."
So the section itself is contradictory. He is a circuit judge and at the same time an additional judge of the High Court. He seems to be made a judge of the two courts at the one time, though he cannot sit in both on the same day. If he sits in one on one day and in another on the next, he is in effect a judge of two courts; and the spirit of the Constitution does not allow that. It says that the number of judges of the High Court and the number of judges of the "other" courts shall be regulated by law. It makes a clear distinction and this merger of the judgeships is contrary to the spirit of the Constitution.
This merger also is contrary to the views and opinions of the legal profession. It would have been advisable if the Minister had consulted informally the President of the Incorporated Law Society and the Chairman of the Bar Council on this matter. That is why I think this whole idea has been misconceived. The Minister has been advised in this matter by members of the Civil Service and by the judges but judges do not constitute the entire of the legal profession. I say that the courts could not function without the practising members of the profession, helping the judges to understand the law and to keep the courts going, to help the litigants. The knowledge of the law is kept in the custody of the legal profession. The members of the bench are chosen from that legal profession. The members of the bench have no what I may call super knowledge of law. They only get that either from their practice in the legal profession or from the practitioners who appear before them.
Therefore, I say that the legal profession should be consulted. As I have said, on the Health Bill, the medical profession has been consulted and in agricultural matters agriculturists have been consulted so I think it is nearly time now that the legal profession should be consulted when matters affecting the courts of the land are being dealt with by legislation.
Rather than permit this discussion to become a wrangle between lawyers—
Now, now.
So far, the lawyers have had the best of it.
There has been no "wrangle."
Senator Baxter need not get hot about these things. The lawyers are quite happy. I may be permitted, perhaps, to intervene for the purpose of getting some information because it is not at all clear to me what case is being made against the section. It seems to me that it is common practice in the courts to elevate a High Court judge to the Supreme Court bench on occasion and in his capacity as a temporary Supreme Court judge, he sits on appeals from his brethren in the High Court.
As one of five. Not singly. In this case he sits singly.
I agree, but he is sitting in appeal and he has a voice and a vote in the decision.
Yes.
And his could easily be the deciding voice or the deciding vote. If there are five judges sitting on appeal and two take one view and two take another, the judge who is temporarily elevated to the Supreme Court may in fact decides in these circumstances. I am not arguing against the proposition put forward by Senator Sweetman. I am looking for information because it seems to me that it is hardly competent for us to say that a Circuit Court judge is unsuitable for temporary transfer to the High Court bench while we agree and when it is the practice that a judge of the High Court may be temporarily lent to the Supreme Court. There was a constitutional issue considered in the Supreme Court two or three weeks ago and one of the five judges was promoted for the purpose from the High Court to the Supreme Court and he returned to the High Court the next day. In that case the High Court judge was in fact sitting in judgment on an issue tried a few weeks earlier by the President of the High Court and I take it that he has a voice and a vote in deciding whether the president of the court to which he normally belongs was right or wrong. If that is acceptable, I find it very difficult to see the substance in the argument that the President of the Circuit Court should be disqualified from sitting on the High Court bench simply because he is a Circuit Court judge. I am not making any point about it but I do not understand the argument and nothing that has been said has made it clear to me why there is this objection in relation to the President of the Circuit Court when it does not apply to an ordinary judge, much less the President, of the High Court in corresponding circumstances.
Personally, I do not think there is any need to put in this section in order to give dignity or authority to the President of the Circuit Court. I entirely agree that he has all the authority, power and dignity he needs for his office by reason of the fact that he is President of the Circuit Court and that he has the right to order the business of the Circuit Courts.
On the Second Reading of this Bill I expressed the view that, if this avoids the appointment of an additional High Court judge, the section should be welcomed. It seems to me that circumstances might arise, in fact, I imagine they do arise from time to time, in which it is necessary to have available the assistance of an additional judge of the High Court and as these circumstances are of a temporary character there would be no justification for the permanent appointment of an additional High Court judge. It seems a natural enough arrangement, if you must have temporary help to carry on the business of the High Court, that a named judge from the Circuit Court should be transferred rather than that a temporary High Court judge should be appointed. I think everybody agrees that the appointment of temporary judges in any court from the Circuit Court up is an unsatisfactory arrangement. I do not know anybody who defends it, except perhaps the Department of Finance.
There is one other consideration that I would like to put forward. Again, I am open to correction from those who have more experience and more knowledge of these matters than I have. It seems to me that there are duties which fall to the High Court judges other than the hearing of appeals from the Circuit Court. I understand from solicitors that it is common practice that a judge of the High Court can preside over a criminal court.
The Central Criminal Court.
Yes. I imagine that in circumstances of that kind, should there be an objection to having the President of the High Court hearing appeals from his brethren, it would be preferable that he would be asked to do the work of the Central Criminal Court.
Another point arises and again I am subject to correction. There are occasions, I think, in which a divisional court is assembled. I do not know whether or not it is a common practice but I had an experience of being in the High Court where three judges sat hearing an appeal from the Circuit Court. Is that not comparable with the position that exists in the Supreme Court, to which I referred a moment ago, of having a judge transferred from the High Court to the Supreme Court?
That system is changed now.
I do not know. I am merely asking questions because I do not understand from anything that has been said the objection to this section and therefore I do not understand the case for the amendment. It is in order that I may understand it that I have been putting these questions.
The answer to the first question raised by Senator Duffy, as to the difference between a High Court judge sitting in the Supreme Court and a Circuit Court judge sitting in the High Court is, I suggest, simple. Both the High Court and the Supreme Court are courts of unlimited jurisdiction. The Circuit Court is a court of limited jurisdiction. Therefore, there is a greater difference between moving from a court of limited jurisdiction into a court of unlimited jurisdiction than in moving from one court of unlimited jurisdiction into another. I suggest that the Senator's argument about the High Court judge sitting in the Supreme Court being the man who turns the scale on occasions is slightly illogical. It would be just as logical for me to argue in the case, say, of a majority decision in the Supreme Court where five judges sit that of the majority of three it was the two Supreme Court judges who were responsible for the decision rather than the High Court judge who happened to be one of the majority of three.
I think the correct way to put it is this: in one case he is one of the three judges making the decision, but in the case that is proposed in the Bill he is going to be the single one who will do it. In one case he has only one-third of the responsibility, but in this case he has the entire responsibility of dealing with the appeal. Senator Duffy referred to what he called the divisional court. That, I think, was the old method, and it is no longer operative. A judge of the High Court goes on circuit to the various centres. He hears appeals alone from the Circuit Court. That is what I consider particularly undesirable—that the President of the Circuit Court should hear appeals alone from one of his colleagues. I do not think there is the analogy between the High Court and the Supreme Court on the one hand, and the Circuit Court on the other which Senator Duffy has referred to. I do not expect the Minister to accept the amendment as it stands. I would ask him to bring forward an amendment himself to provide that the President of the Circuit Court shall not hear appeals coming before the High Court from the Circuit Court.
It is with some hesitation that I intervene in this debate between lawyers. I feel there is a certain element of holy sanctity about the methods of the law and of churchmen, and that a layman must be loath to intervene in these matters. It strikes me that the proposal in the Bill is a rather businesslike arrangement. There are periods, perhaps, when extra work will fall rather heavily on the Supreme Court and on the High Court and when the work in the Circuit Court may be light. Therefore, it seems to me desirable to have a certain amount of flexibility between the courts. I feel that the President of the Circuit Court would be fully qualified as a lawyer to discharge the occasional work that may be allotted to him in the High Court and to dispense justice there. I agree with Senator Duffy that temporary judges are undesirable. I would not regard the President of the Circuit Court when sitting occasionally as a judge in the High Court as a temporary judge. What happens is that he is simply transferred from one court to the other as a temporary convenience.
Senator Sweetman seemed to suggest—at least I understood him to suggest—that the President of the Circuit Court would be of a different calibre from the person usually appointed to the High Court bench. I seemed to gather from him that the idea was running through his mind that such a person would not be of the same standing and would not have the same training and qualifications as those which are looked for in the case of a High Court judge. I have a recollection that in the early days of this State, in one case at least, a judge of the same standing as our Circuit Court judges—in those days they were called county court judges—was transferred and appointed a High Court judge. That particular judge—Judge Johnston—was a county court judge for very many years, and as I say became a High Court judge. When he was appointed to that position he was allotted work of a specialised character. I think I am correct in saying that he became the Chancery judge in the High Court. I do not think the suggestion was ever made that he lacked the qualifications possessed by any of his brethren on the High Court bench. There may be some reasons for the Senator's objection, but they had not been made clear to me. The objection surely cannot be on the ground of qualifications. I think that a Circuit Court judge can try a murder case and sentence a person to death. If he is competent to do that work in the Circuit Court, can it be said that he is less competent to do it in the Central Criminal Court? I, personally, cannot see any backing for the Senator's argument.
I think Senator Duffy has fallen into an error because no Circuit Court judge has jurisdiction to try a murder case, and no power consequently to sentence a person to death for murder. There is no reason why Circuit Court judges ought not to try a person for murder. My objection is not based at all on any allegation that the President of the Circuit Court, whoever he may be, is not competent to act as a High Court judge. It has nothing whatever to do with the competency of the Circuit Court bench. It is simply a question of what I may call legal mechanics, the working out of this in the practical everyday life of the courts and also having regard to the working of the legal system by which each court is, so to speak, kept in a watertight compartment. Now, the layman may not see the necessity for that but, having regard to the fact that judges differ in their opinions on law, it is necessary to have decisions by a final court. Therefore, you have what is called a system of appeal. If a Circuit Court judge decides a case in a certain way, the aggrieved litigant has the right of appeal to the High Court on circuit. A High Court judge may decide a case in a different way. Whether he is a better lawyer or whether his decision is right or wrong, it is final and conclusive, and it is for the purpose of having finality on questions of law that you have a hierarchy of final courts whose decisions are binding. In this case, by breaking into that hierarchy, you have a person who is a judge of the Circuit Court and also a judge of the High Court. In fact you have the same person occupying two different judgeships at the same time, because the section provides that "the President of the Circuit Court shall be ex officio an additional judge of the High Court”. “He shall be”; in other words, by virtue of the fact that he is President of the Circuit Court he is an additional judge of the High Court; he is a judge of two courts at the same time, which, I say, was never intended by the Constitution. There is nothing to prevent the President of the Circuit Court sitting in the Supreme Court, because as a judge of the High Court he can be invited to sit in the Supreme Court. Therefore he can go two stages—he can sit one day as President of the Circuit Court as a Circuit Court judge and the next day he can sit as a judge of the Supreme Court.
If he is invited.
If he is invited.
The "if" is important.
No High Court judge can sit in the Supreme Court unless he is invited. The President of the Circuit Court is ex officio a judge of the High Court; in other words, he is not invited to become a judge of the High Court. “He shall be ex officio a judge of the High Court”; in other words, he is a judge of two courts at the one time and that is the objection to this provision in the Bill. A judge of the High Court is not a judge of the Supreme Court. He sits in the Supreme Court, but he is not a Supreme Court judge; he is a High Court judge. If there were a provision in the Courts of Justice Act that every High Court judge shall ex officio be a judge of the Supreme Court, it would mean then that he was a judge of the Supreme Court, not a judge of the High Court. This section provides that the President of the Circuit Court shall be ex officio an additional judge of the High Court. The word “additional” means nothing there except in relation to the others. It means that he shall be a judge of the High Court. That is what I cannot understand. That is the position under this section.
Listening to Senator Ryan's last remarks, it struck me forcibly that the President of the Circuit Court, being an ex-officio member of the High Court, would be subject to the orders of the President of the High Court. That might create a very interesting situation. There might be a clash of views between the President of the High Court and the President of the Circuit Court. When the President of the Circuit Court decided to sit as a Circuit Court judge, he might be ordered by the President of the High Court to sit as a High Court judge. Surely that is a situation that steps ought to be taken in this Bill to avoid.
I do not think that situation could possibly arise at all. He would only go to the High Court when invited by the President of the High Court. The President of the High Court is a man who has a great regard for all courts, whether the High Court, the Circuit Court or otherwise. He would take the greatest care not to interfere with any of the work of the Circuit Court and would not invite the President of the Circuit Court unless he was absolutely free at the time and had no work of his own to do, or unless he could get another Circuit Court judge to do his work, which very often can happen. I do not think that situation is at all likely to arise. There would be no clash, because he would only go when invited by the President of the High Court.
I think the case made by the various representatives of the legal profession is a very strong one. Personally I think that every effort should be made to preserve the lines of demarcation, as it were, between the different courts—to preserve that hierarchy referred to by Senator Ryan. I believe that the courts are the last bulwark of liberty in this country. I have expressed that view very frequently. This might be interpreted as something equivalent to what is commonly called in warfare sapping and mining. If we once muddy, as it were, the boundaries between the two types of courts we do not know where that arrangement may stop and eventually it may be carried forward from the High Court to the Supreme Court. In that way the step here proposed is much more serious than perhaps appears on the surface. We are all familiar with a lot of parallels such as that of Jekyll and Hyde. We may have a person who is a Circuit Court judge and the next time the same man appears as a High Court judge. You have then the character in The Mikado known as “Pooh Bah” who held various offices. Is this not the commencement of a similar state of affairs? Generally speaking, I think the case is a very strong one for reconsideration. The Minister at least should take precautions in the Bill to provide that a man who has given a decision in a certain case shall not be called upon to review that same case. There ought to be some provision at least made so as to prevent something like that occurring. I would be inclined to join with those who have asked the Minister to reconsider this provision and to introduce some suitable amendment to prevent evils that may arise if the Bill is allowed to stand as it is.
I must say that I am surprised at the opposition to this provision. The first thing to be remembered is that all the business in the High Court is settled by the President of the High Court. The matter of going on circuit is provided for definitely in the 1936 Act. It is arranged between the Chief Justice and the President of the High Court. Surely we can leave them to use their common sense to see that a judge will not be put on a case which he dealt with before.
Nobody is suggesting that.
The Chief Justice and the President can look after all these things. I cannot see anything in the objection raised to the President of the Circuit Court hearing appeals from other Circuit Court judges, because, as Senator Duffy pointed out, that practice obtains already. The Central Criminal Court is presided over by a High Court judge, sometimes by the President of the High Court. An appeal can be taken to the Court of Criminal Appeal consisting of three judges, two of whom are High Court judges. Is not the same thing happening there? I can see no objection to that. All the Government want to do, as I said in the other House, is to see that there is no question about the prestige and status of the person who would occupy the position. He would be there to be called upon in the event of there being a great deal of work to be done in the High Court, arrears of work due to some unforeseen circumstances, such as the possibility of two judges being ill at the same time. Generally speaking, I think anyone who knows anything about the courts knows that the Circuit Court is a much busier court than the High Court, that it has more cases to deal with. It is most unlikely, therefore, that the President will be called away, but if the President of the High Court wishes him to go I can certainly see no objection to it.
As to the provisions of the Constitution, of course I do not happen to be a lawyer, but at the same time I may have a certain amount of common sense. It is just possible that I have. So far as I can see, the courts are very well mixed already. As a matter of fact, the only one that stands out by itself is the Supreme Court. As I read Article 34 of the Constitution, the Supreme Court is set out by itself as a court of appeal. It is not a Court of First Instance. Paragraph 2 of Article 34 states: "The courts shall comprise Courts of First Instance and a Court of Final Appeal." It appears to me that there is more joining up, under the Constitution, of the High Court with the other courts than with the Supreme Court. Nevertheless, the judges in the two courts are interchangeable. With regard to the point raised by Senator Ryan as to whether a judge is a judge of the High Court or of the Supreme Court, or merely in the Supreme Court by invitation, I refer the Senator to Section 6 of the 1924 Act, which says:
"The President of the High Court shall be ex officio an additional judge of the Supreme Court and the Chief Justice shall be ex officio an additional judge of the High Court.”
They are both definitely judges of these courts, of two courts at the same time. There is your Dr. Jekyll and Mr. Hyde in the Act of 1924. We are doing nothing here but extending that in a very desirable way. Undoubtedly every judge of the High Court is not a judge of the Supreme Court, or vice versa, but two particular judges are— and the ex officio position, by the way, is left for legislation; it is not in the Constitution—and we are following that precedent.
With regard to the lawyers, I do not mean to be disrespectful to the lawyers. I fully appreciate their position, but I think that, when dealing with any particular class of the community, it is desirable that we should consult them, and, when dealing with the circuit judges, I think I have done all that could be expected of me when I submitted the Bill to them for their consideration and observations. I took particular pains to do that. We consulted two other judges, too, but I just gave the opinion of the Circuit Court judges on this matter and I think that, having done that, I have done very well. If I had got considered opinions from the Bar Council, I would have regard to them, but I simply got a resolution saying that they did not approve of what was being done.
That was after the Minister had introduced the Bill.
They were not invited, I agree.
I suggest that they should have been consulted before the Bill was introduced.
I do not agree at all. I will not admit that principle, unless they were directly concerned. I have plenty of legal opinions at my disposal, too, although I am not a lawyer. I would appreciate their help, and, if I had felt that this Bill affected them to the extent suggested by Senator Ryan, I would have consulted them beforehand, but I did not think it did and I am not yet convinced that it does. It did affect the position of Circuit Court judges because we were putting somebody to preside over them, to tell them the places in which they should hold their courts and to direct them to sit in any circuit in which there was pressure of work if the work in their own circuits was light at the time. That was really a changing of their position and it was only fair that they should be consulted, as they were. I do not want to speak in any way disparagingly of the Bar Council but I do not agree that I should have approached the Bar Council or the Incorporated Law Society about the matter. If there was something dealing with these two professions directly, I would, but I have done all that is required of me by consulting those directly and immediately concerned with the legislation.
Apropos of some of the remarks of Senator Duffy, I do not think he meant them in that way, but I want to be perfectly clear that, in discussing this amendment, I am not discussing personalities but offices. I am not discussing it from the point of view of whether A or B is competent to carry out any particular work; I am discussing it from the point of view of the office for the time being, without regard to whether there is a holder of the office at present or a person rumoured as a future holder.
Amendment, by leave, withdrawn.
Sections 8 to 12, inclusive, agreed to.
SECTION 13.
I move amendment No.4:—
In sub-section (1), to insert in line 25, after the word "Government" the words "with the concurrence of the President of the Circuit Court".
The purpose of the amendment is perfectly clear. The Minister is giving the new President of the Circuit Court powers to deal with the direction of the work. The president is to be the person responsible for that work, and, in these circumstances, before circuits are altered, it would be only fair to give the man who is to be held responsible the opportunity of concurring in these arrangements, so that arrangements will not be made of which he would not approve, although he would have to carry them out.
I am sure the Government will carry out what the President of the Circuit Court arranges, and it is really unnecessary to say in the Bill that they should get his concurrence. It could not be done without his concurrence, in any event.
I wonder would Senator Sweetman consider altering his amendment by the substitution of the words "after consultation with" for the words "with the concurrence of".
I would not accept either one or the other. I do not see why the Government ought to be asked to do it. It would be unthinkable that arrangements would be made without his consent.
Why not say so in the Bill?
I would not put them in the position of having to get the concurrence of a judge. The Government is responsible to the people, to the Oireachtas. Perhaps there might be a case for it if it were a Minister, though I do not think there would be, but surely the Senator does not suggest that the Government should be asked to hold their hand for the concurrence of a judge. The Government ought not to be asked to do so, and I would object most strongly to it, but it would be unthinkable that we would do anything without consulting the president. What Senator Ryan says is what will happen. He will say that a certain thing should be done and the Government will give effect to it. It is not a matter for a Minister but for the Government. The Senator will admit that there is a point in that—that you simply could not ask the Government to wait for the concurrence of a judge or for consultation with a judge. It will be done, without any question whatever, not alone after consultation but very likely at the request of the president. The amendment is entirely unnecessary because any Government will try to work with the judges as well as they can.
The Minister is trying to have the best of both worlds. He says in one breath that no Government could possibly consult, and, in the next, that the Government certainly will consult. I will take him on the second point.
This is quite a different thing from requiring them to do it. A Government will do something of their own volition which they will not agree to be compelled to do.
Amendment, by leave, withdrawn.
Question proposed: "That Section 13 stand part of the Bill."
I do not like the wording of sub-section (1). It says:
"The Government may make an Order altering, but not so as to increase the total number of circuits, the composition of any two or more of the circuits."
I would prefer "altering the boundaries of circuits, and, if necessary, amalgamating circuits". "Composition" is a word I do not like. Perhaps the Minister would look into it.
It is a drafting point, but, in a matter of this kind, I am in the hands of my legal advisers.
I imagine that the words "composition of any two or more circuits" mean that there is already an Act—probably the Act of 1924— which says that a circuit shall be composed of so many counties, and altering the composition would mean altering the number of counties in the circuits concerned.
It seems to me that the phrasing is loose. If we leave out the words in parenthesis, it reads:—
"The Government may make an Order altering the composition of any two or more of the circuits."
They have no power under the section to alter the composition or the geography of one circuit.
I imagine you cannot alter one without altering another.
Senator Sweetman has not grasped the fact that the word "composition" makes a whole lot of difference.
I agree I have not grasped it. I do not like the wording, but I cannot see how you will alter one circuit without altering a second one.
You have power to alter the areas. There would be a section like that in the Poor Relief Act giving power to amalgamate dispensary districts and alter them. Words of that type would possibly be more clear.
It is purely a drafting matter?
Purely and simply a drafting matter.
I take it the Minister will discuss this matter with the draftsman?
I think the section is clear enough.
That is my opinion, too.
Question put and agreed to.
Sections 14 to 18, inclusive, agreed to.
SECTION 19.
Question proposed: "That Section 19 stand part of the Bill."
What is the point of Section 19? Is that not already a fact?
It is to make clear that any pension shall be paid out of the Central Fund. There was some question about the drafting of the original provision and we brought this in for that reason.
It is not a change in principle?
No, it is merely a tidying up of the measure.
Question agreed to.
Section 20, the Schedule and the Title agreed to.
Bill reported without amendment.
Agreed to take the Fourth Stage now.
I move:—
In page 4, Section 9, sub-section (2), to add at the end of the sub-section the words: "but shall not hear any case coming before the High Court by way of appeal from a decision of the Circuit Court".
I have already made the case in respect of this amendment, but I want it to go on the record.
Amendment put and declared negatived.
Question—"That the Bill be received for final consideration"—agreed to.
Agreed to take the Fifth Stage now.
Question—"That the Bill do now pass"—agreed to.
Ordered: That the Bill be returned to the Dáil without amendment.