Courts of Justice and Court Officers (Superannuation) Bill, 1961—(Certified Money Bill). Second and Committee Stages.

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

Minister for Justice (Mr. Traynor)

This measure contains two provisions, both of which have been formulated in response to representations from members of the judiciary and others regarding the absence at present of any arrangements to provide financial assistance for the dependants of a person who dies while either in office or on pension.

The members of the judiciary and the court officers covered by this Bill have at present a maximum pension of two-thirds of salary and there is no provision for a death gratuity or a lump sum on retirement. The Bill proposes to provide for cases of premature death by exchanging the present pension provisions for new provisions which actuarially do not involve additional expenditure. The pensions for the various categories, as calculated at present, will be reduced by one-fourth, and in return for that reduction a death gratuity of one year's salary will be available after not less than five years' service, and a lump sum of one-and-a-half times the amount of the annual pension will be payable on retirement. The new terms which I have mentioned will be applied to all persons appointed after the passing of the present measure, and persons at present holding office will, subject to certain conditions, have an option of accepting the new terms or retaining their existing terms in accordance with their individual wishes.

The second provision of this Bill will enable a person retiring on pension to surrender, subject to certain conditions, a portion of his pension in order to secure a pension for his wife or for one nominated dependant. This provision which will apply only at the time of retirement is being made available to present office holders and to future appointees.

As I mentioned in the other House this Bill has been prepared on the basis that it does not involve any additional expenditure. Actuarial advice has been obtained to the effect that the new terms in this Bill will, over a period of years, cost the same as the existing provisions, and are the most generous which can be provided without incurring additional expenditure. In the case of the provisions relating to the allocation of pensions, the principle of not increasing the burden on the Exchequer has also been applied.

This Bill will, I am confident, be welcomed for the reason that it is designed to reduce hardship which often arises from premature death even in cases where the office holder is, by general standards, in receipt of substantial remuneration. It is desirable that the measure should be enacted with as little delay as possible so that the benefits of the Bill may become available in the very near future.

Professor Hayes

We find this an acceptable measure. As the Minister has explained, it involves no charge on public funds, a fact which has been ascertained on the basis of an actuarial investigation. It is agreeable to the people concerned, the judges and certain court officers. What is being done here has already been done for civil servants of certain classes. It really amounts to this, that people are allowed to use benefits or moneys they already enjoy in a particular manner, which seems to be in order and which the Minister agrees would be better for themselves and for their wives or dependants. For that reason, the Bill appears to be acceptable and I see no reason why it should not pass rapidly.

Mr. O'Quigley

The one outstanding feature in the present age is the consciousness on the part of all classes of society of the necessity to provide for the time when either people themselves are not working or when they are dead. Consequently, it is not surprising to find that even people who are in the exalted position of being members of the judiciary are concerned about what will happen their dependants when they are no longer in a position to support them. For that reason everybody will welcome this Bill as another step forward in the development of social consciousness in relation to making provision for dependants. I gather from the Minister's opening statement that this Bill in all its terms is acceptable to the judiciary. If that is the case, there does not seem to be much in it that calls for amendment, so far as its application to them is concerned.

As Senator Hayes has indicated, this Bill will not impose any new charge upon the Exchequer. In the Dáil, the Minister for Justice indicated that was the cardinal principle upon which the Bill was framed. I suggest it is never too late for the Minister to change his mind. The Bill deals not only with judges but with other court officers, namely, certain Masters and Registrars of the High Court and county registrars.

As I understand the position with regard to county registrars, I have heard it said that there is at present only one county registrar in the country who, if he lives to the age of 65 years, will qualify for full pension. All those who have been appointed since the Act was passed in 1945, with one exception, will not qualify for full pension. There used to be a provision applicable to State servants in the Superannuation Acts, and that provision enabled the Minister for Finance to grant added years of service in the case of people who, by reason of a particular qualification of which they had to be possessed before they were appointed, were appointed at a late age. In such circumstances, the Minister for Finance was empowered to add years to their service to enable them to qualify for full pension. For some reason which I have never been able to understand, that section of the Act was repealed, mainly in connection with the change over from sixtieths to fortieths and the lump sum.

The plain fact of the matter is that no Minister for Justice, whoever he may be, would appoint a county registrar who has not considerable experience as a practising solicitor. Since that is absolutely necessary for appointment as county registrar, and because it is in the public interest that they should have a fairly long period in practice before being appointed, it is not right that their services should be availed of without giving them appropriate superannuation conditions equivalent at least to non-technical State servants.

If the Minister looks into the matter, I think he will find there are very few persons in State employment who are placed in that position; and, if there are other persons in the same position, then the superannuation code should be reviewed with a view to meeting the position of county registrars and others. I do not know whether or not they have made any representations to the Minister on this point, or whether they have any association or union which speaks on their behalf, but I have discussed the matter with many people and I think the Minister should take advantage of the position now to put down recommendations in the Seanad to meet the position of these people.

There is another section of people who do not appear to be covered by the Bill and I wonder if the Minister has been able to do anything about their position. There was quite a time-lag between the rise in the cost of living and the increase in the salaries of the judiciary. There are widows living today in conditions of real hardship. That hardship is not due to previous high living or anything like that. There are cases of which I am aware in which the widows have large families to provide for. I had the mortification of seeing the widow of one district justice engaged in work which one would not expect a person of that social standing to have to engage in. I know she has no income except what she can earn herself. I wonder whether anything can be done for the few who are in that penurious position? I am quite sure it is unnecessary to make any appeal to the Minister—his humanity is well known—but if there is any way in which these people can be helped, they should be helped. As the years go by then, and they get older, they can look forward to even a meagre widow's pension. The Minister will encounter no opposition to the granting of such pensions from Parliament, or, indeed, from the public. The Bill will to some extent relieve the hardship involved when the breadwinner dies.

With regard to the allocation of pension, I understand it can be allocated in favour of only one dependant. I wonder if there were two children and the position was that they could not earn their living, is there provision in the Bill whereby the allocation of the pension could be made in favour of each of the children? It may be that at the present time such allocation in favour of two dependent children does not arise but there can always be an accident. It may be that in the future such a provision would be desirable. It may be that it is not possible to make an actuarial calculation to enable allocation of the pension to be made in those circumstances, but if I understand the Bill rightly, I think the allocation can be made in favour of only one child. If I am correct in that opinion, I would ask the Minister to consider the desirability of enabling allocation to be made in favour of more than one child. Subject to that, the Bill can be given a speedy passage through the House.

Dr. Sheehy Skeffington

I should like to associate myself with what has been said in support of the Bill. The Bill is a just Bill and it includes a principle which is being extended under our legislation. I think we were given the first indication of that when a similar Bill in relation to civil servants was brought in by the previous Government. I am not quite clear— and I am afraid I did not have time to make the comparison—whether this Bill contains some provisions that were not in the Bill relating to civil servants. I have the feeling that some provisions here are new. They are all provisions I welcome but I should like to feel that civil servants also might get the benefit of such provisions. I should like to hear what the Minister feels about that.

For instance, I notice that subsection (3) of Section 2 reads as follows:—

Upon the death, while holding office as a judge of the Supreme Court, the High Court, or the Circuit Court or as a justice after five years' service or upwards as a judge or justice, as the case may be, of any person to whom this section applies, there shall be granted to the legal personal representative of that person a gratuity of an amount equal to the yearly amount of his salary as a judge or justice, as the case may be, at the time of this death.

There is a similar provision which is covered in subsection (2) of Section 4. I do not remember any such concession being made to civil servants. As I remember it, the only matter dealt with in the Bill relating to civil servants is that they will be entitled to forego part of their pension in order that their widows may get that portion of it after their death. I do not remember any introduction of the right of an annuity upon death while in office. I wonder whether I am right in thinking that this is new and appears for the first time in this Bill. I may be wrong in that.

I should like to ask two more questions arising out of subsection (3) of Section 2 because the Minister, as I understood him in his opening remarks, said more or less that this Bill will not cost the State anything. I may have misunderstood him. I understood him to say it was based on actuarial calculations and that it really was a question of allowing these judges and court officers to reallocate their pension rights so that the cost to the State could be met because it is a self-supporting scheme.

Can that be true of this subsection where a gratuity of an amount equal to the yearly amount of his salary is to be given to the dependants of a judge who dies while holding office? Where does that money come from, if not from the Exchequer? I have the feeling that that subsection cannot be covered actuarially but must, in fact, put a fresh charge on the State. I think I could make that point clear by asking whether it would be in order in the Seanad to put down an amendment to change this from a yearly amount to an amount of his salary, say, for 15 months? I would suggest that to put down such an amendment would be out of order in the Seanad because it would place an additional charge on the Exchequer.

If it is on an actuarial basis within a scheme which is self-supporting, then such an amendment would be possible and would be in order in the Seanad. Either it is a self-supporting scheme, in which case no such amendment by the Seanad would put an additional charge on the Exchequer and consequently it would be in order or it would be out of order because it would put an additional charge on the Exchequer and consequently the basis for this is not quite entirely the actuarial basis.

I should like to turn to Section 6, subsection (2), paragraph (b) which reads:

a person shall not be entitled to adopt provisions of section 2 or 4, as the case may be, of this Act unless the Minister decides that he is of sound health.

Paragraph (c) says:

Where a person is required to undergo medical examination under the regulations he may be required to pay such fee as the Minister may determine in respect of the examination.

I should like to make two separate comments on the underlying principle there. One of them I made before in relation to the Civil Service for whom similar provision is made because we are saying: "We are granting you the right to sacrifice portion of your pension but we are only granting you that, if you are in sound health." I remember the previous Minister for Finance resisting very strongly any suggestion that that was an unjust provision. I should like to make again the point I made then. The very person who is most likely to be anxious to sacrifice some of his pension is the person not in sound health. I feel that the demand that the pensioner shall be in sound health before he is entitled to make this sacrifice cuts down very considerably the utility of this Bill. I would suggest that it cuts down also the probability of the Bill coming into effect because on a general actuarial basis, if there is a married couple and you insist that at the age of 60, 65 or 70, one of them shall be of sound health, on an average the chances are that in the majority of cases, the other one will be less likely to survive. A great deal of the value of the Bill is removed by this insistence that the person shall be of sound health. I think it is a bad thing. I think that actuarially it should be possible to make calculations upon an average state of health at the age of 65 or 70 without insisting that the person, before he makes this sacrifice, shall be of sound health.

The other point is a separate one. Paragraph (b) says that the Minister will decide that he is of sound health. I cannot imagine the Minister going round with a stethoscope. I can only assume that the only legitimate way in which the Minister can so decide is by means of a medical examination. I am bewildered then to find that paragraph (c) says:

where a person is required to undergo medical examination under the regulations he may be required to pay such fee as the Minister may determine in respect of the examination

as if there were some circumstances in which he would not be required to undergo a medical examination—as if it would be, in fact, the Minister who would decide without any medical examination. I find that a little puzzling. Are we granting the Minister the right to decide that a judge is not of sound health? We are not saying that all of them must undergo a medical examination but only those about whom there is some doubt. I find that puzzling. I do not think it is very sound. It is giving the Minister power which he might find embarrassing and which, in fact, he should not be given.

If there is a decision as to the soundness of the health of such a person, it should be solely upon medical considerations and not upon a ministerial decision. The ministerial decision should be based only on medical examination and not upon how the person looks. I suggest that, as at present framed, paragraph (c) implies that there would be some cases in which a medical examination would not be necessary and in which the Minister himself could decide that the candidate was not of sound health. That is not a very good principle.

I notice that in Section 7, subsection (2), the suggestion is that this is not the same principle as applies to civil servants and that the pensioner can at the time of retiring, if he retires for reasons other than reasons of ill health, surrender part of his pension "in return for the grant by the Minister under this Act of a pension to the wife or one dependant of the person specified by him". The question I want to ask is: is this not a new provision also? I do not remember that civil servants were entitled to nominate a dependant. My recollection may be faulty but I thought it was only for the benefit of the widow. I should like to put the question whether that is a new provision or not, or whether that is the general provision in relation to civil servants also.

The final point I want to make is in relation to Section 7, subsection (4), which has a number of paragraphs. Paragraphs (a) says:

A pension under this section granted to the wife of a person shall be payable either, as the person may elect when he makes the surrender under this section—

(i) during the period (if any) for which the wife survives the person, or

(ii) during both the period of the joint lives of the person and the wife subsequent to the retirement of the person and the period (if any) for which the wife survives the person.

Paragraph (ii) seems to be a new provision and a very good one. It is excellent that a person should have the right to decide that the pension shall be payable to the wife during the period of his life, as well as to the widow, if she survives him. It is an admirable provision and I should like to know if that also is a new provision, as I do not remember civil servants being granted that privilege. The reason I ask whether these are new provisions is simply to express the hope that where they are new, they will be extended perhaps in some future Bill to all servants of the State. This type of Bill is a good one. The concessions are good ones and I should like to be assured that they are widely applied, or are going to be widely applied, to all civil servants and not merely to the judiciary or officers of the courts.

Seán Ó Donnabháin

I welcome this legislation which certainly must relieve some of the difficulties experienced by members of the judiciary and officers of the courts. I notice in the Dáil Debates that a Money Resolution was brought in to the effect:

That it is expedient to authorise such payments out of the Central Fund or the growing produce thereof and out of moneys provided by the Oireachtas as are necessary to give effect to any Act of the present session to make further provision in relation to the superannuation of Judges of the Supreme Court, the High Court and the Circuit Court, of Justices of the District Court and of certain Court officers.

I am puzzled why it is necessary to bring in a Money Resolution in the Dáil to provide for moneys to be paid when we are assured that this will not put any extra charge on the Exchequer. If no extra charge is involved, one would think that it would not be necessary to bring in a resolution to provide for payment of charges on the Exchequer.

Another point which has been brought to my notice is that judges and justices retire at 70 but court officers are still required to retire at 65. The same thing seems to apply to people who are appointed as judges or justices because they get these positions later in life. We are reducing the 30 years' service to 20 years' service under this legislation to facilitate the people retiring or getting a pension without having to spend 30 years in the service, when naturally they would be beginning those 30 years late in life. It seems wrong that different conditions should apply to justices and judges from those applying to people similarily appointed in the offices of Registrar or High Court officers. They are appointed pretty late in life and I suppose they would have to be physically fit to continue until they were 70 years of age, the same as judges and justices. I just want to bring that point to the Minister's attention, that similar conditions could surely be applied to judges and justices and Registrars and officers of the court generally.

Mr. Traynor

This is a very simple Bill which has been brought in at the express desire of the judiciary. As I said in my opening remarks, it does not impose any cost on the national Exchequer. It is based entirely on the Civil Service Act which provides similar conditions for civil servants. There are no new sections that I know of. They are based, in the main, on the Civil Service scheme and generally speaking, they apply in the same manner to the judges and district justices as they do to civil servants. I said in my opening remarks that it was desirable that we should expedite the passing of this measure, for the simple reason that should it occur—and I hope it will not—that any member of the judiciary died between now and the passing of this Bill, it would not affect the relatives left behind.

It has no retrospective effect, either, and I should like to refer to Senator O'Quigley's remarks in regard to wives and widows. It could not in any sense apply to widows who become widows before the passing of this Act. As I say, it can have no retrospective effect. Senator Sheehy Skeffington was worried because the Minister would appear to be the judge of whether a person was in sound health or not. The Senator knows very well that the Minister making that judgment would make it only on the basis of a certificate provided to him by the doctor examining the individual. If the Senator were a member of an insurance company, he would not be prepared to accept what I think is called a bad prospect. Some regulations must be made governing the type of individual who might, if he found himself in a very bad state of health decide: "Now is the time to get out." We are the guardians of public money and, as such, we must do what the directors of a business would do, that is, look after the interests of those concerned, in our case, the people.

That does not mean for a moment that the person in whom the Senator is interested would not be given the fullest possible consideration. I am pretty certain that any Minister — and the Minister referred to, as the Senator knows, is not the Minister for Justice but the Minister for Finance—would naturally be as humane as either the Senator or I would be in a case of that kind. If by any chance a man did feel it was time for him to get out, I presume he would do so before he would become so very bad that no doctor would pass him. This provision is there merely to ensure that State funds will receive that type of protection.

I do not think there is anything very much more that I can say on the Bill. It is a simple type of Bill based on the Civil Service scheme which, so far as I am informed, is operating very successfully. The judiciary were aware of that fact, and when they found that after negotiations the Government were not prepared to do this out of public moneys, they immediately turned to the Civil Service scheme and asked to be given the right to opt for that scheme. That is what is happening now. We are giving them the same rights as civil servants have and have had for quite a long number of years.

I am sure I am not leaving out anything I should mention because, as I said a moment ago, this Bill is based entirely on the Civil Service scheme. There is nothing that can be regarded as new, or that is not as effective as the other scheme. I would strongly urge the House to pass the Second Stage and I suggest that in the circumstances I might be given the remaining Stages today.

Question put and agreed to.

Agreed to take remaining Stages today.

Bill considered in Committee.

Section 1 agreed to.

SECTION 2.

Question proposed: "That Section 2 stand part of the Bill."

Mr. O'Quigley

I merely want to refer to the point raised by Senator Sheehy Skeffington. The position is, if I am correct, that subsection (5) deals with the manner in which the new provision of the lump sum will be financed. Senator Sheehy Skeffington wondered whether or not the Bill imposed any charge on the Exchequer. My interpretation, at any rate, is that the reduction by a quarter of the pension payable is the way in which the lump sum payable on death or on retirement will be financed. I wonder if I am correct in that?

Incidentally, the Senator is not correct in stating that there was no provision in the 1954 Act or in the Act that allocated pensions to the Civil Service, for payment of a lump sum. That point arises because, as the Minister knows, the lump sum has been payable to male public servants since the 1909 Superannuation Act, and to female public servants since 1954, so that in fact what is being done in this Bill is effecting two changes as I see it: one is the provision of a lump sum which has been payable since 1909 to male civil servants, and since 1954 to female civil servants, and the other is the allocation of pension payable, in respect of which an Act was passed dealing with civil servants some time in the 50's. I should like the Minister to confirm that subsection (5) is the method by which the lump sum is being financed.

Mr. Traynor

The Senator is perfectly correct, but I should like to point out to the House that the judges do not have to accept it, if they do not so desire. If they regard the position which they occupy in respect of pensions at the present time as being superior to what is contained in the Bill, they need not opt to accept it. Generally speaking, what the Senator has said is correct.

Question put and agreed to.

SECTION 3.

Question proposed: "That Section 3 stand part of the Bill."

Mr. O'Quigley

This is the section which gives judges and district justices the option to avail themselves of the benefits of the Bill. I wonder can the Minister hold out any hope that widows of judges and district justices can expect at any time in future that some form of widows' pension scheme will be introduce in relation to them?

Secondly, in relation to the type of person whose health is such that he cannot avail himself of the provisions of the Bill, and who wishes to allocate part of the pension in favour of his wife or child, can the Minister say will provision be made in future to cover the widow or dependants of that type of person? They stand just as much in need of protection as do the other people who will be covered by the Bill.

Mr. Traynor

I would not say there would be any provision in regard to the circumstances which the Senator has described. A judge in the position to which the Senator has referred would be entitled to his normal pension, and we must presume, too, that members of the judiciary, like members of the middle classes, will take out insurance and try to provide in that way, or in some other way, for the circumstances which the Senator has in mind. We must remember that if a judge is in bad health, that does not deprive him of his normal pension, but only of the right to come under this scheme which might be described as an insurance scheme.

Mr. O'Quigley

I appreciate that there is no intention of depriving a judge of anything he is entitled to but I think the Minister will agree that the prospective widow of a judge who cannot avail himself of this scheme is in as much need of some kind of pension or annual allowance as the person who can avail of this scheme. The person in bad health is likely to be the person who runs into a good deal of financial trouble because of his illness.

It is quite true that all classes of persons try to insure themselves, to cover themselves, to cover their dependants in regard to the eventuality of death. There is no doubt about that. There is no walk of society in which people are living on salaries at the present time where the salaries are such as would enable them to take out insurance to cover the contingency of widowhood and also to provide for their children. While judges and justices do take out insurance policies, there is no doubt that eventually people will find themselves without any means of subsistence. It is to meet that kind of situation that I would impress upon the Minister the desirability of providing some kind of scheme whereby the position of these people can be met. That also takes into account the widows of deceased former members of the judiciary.

Mr. Traynor

I cannot commit myself to any promise in respect of this Bill but there is always the future, of course.

Question put and agreed to.

Sections 4 and 5 agreed to.

SECTION 6.

Question proposed: "That Section 6 stand part of the Bill."

Mr. O'Quigley

The regulations to be made under this section will be made by the Minister for Finance, after consultations with the Minister for Justice. I wonder would it be in order to inquire whether it is the intention to consult some representatives of the judiciary? I know that in relation to regulations made under the corresponding Superannuation Acts, the appropriate representative bodies of civil servants were consulted on the regulations. When regulations of that kind are being made, every contingency ought to be covered and the way in which that can be provided for is to have consultation in advance. Perhaps, the Minister does not want to say whether or not he proposes to consult with the judiciary in this matter and I do not want to press him to say whether he will or not, but I would express the view that it is very advisable and desirable that there should be advance consultation when these regulations are in draft.

Mr. Traynor

The Senator knows that there is a period of six months allowed from the passing of the Act during which a person will have the right to examine the whole position as to whether he would prefer to opt or not to come under this Act. However, we can look into that particular question.

Mr. O'Quigley

I do not see any provision in the Bill for laying these regulations before each House of the Oireachtas. Am I right in that? This seems to me to be a case peculiarly appropriate for laying the regulations before each House of the Oireachtas because under Section 3 the regulations are such as may affect the position of existing judges and justices. It might be desirable that if that were not quite in order, the regulations could be annulled by one or other House of the Oireachtas.

Mr. Traynor

I am informed that the regulations in respect of the Civil Service were not laid on the Table of the House either and that the same will apply in this respect.

Mr. O'Quigley

One always assumes that these are regulations which will be laid before each House of the Oireachtas, While I am very anxious that the Bill should go through immediately, I am inclined to wonder whether further consideration should not be given to the kind of regulations which will be made in cases of this kind. We should not vest too much power in the Minister for Finance in relation to matters affecting the position of the judiciary, without having that power controlled in any way. I am inclined to think that unless there is a very good reason to the contrary, the regulations in the case of this Bill are peculiarly a type of regulation which ought to be laid before each House of the Oireachtas as a safeguard for the position of the judiciary. When it comes to the end of the Committee Stage, I may have something further to say on that.

Mr. Traynor

I think the regulations in respect of civil servants came in away back in 1954 or some such time. There have been no complaints suggesting that there is anything sinister occurring in that regard. These regulations are purely mechanical. They operate between the Minister for Finance and the person who will be benefiting from this Bill. As I said in reply to Senator Sheehy Skeffington, the Bill is in the main based on the Civil Service scheme and what applies, in fact, to the various sections of the Bill applies also to the regulations.

Mr. O'Quigley

If that is so, it is the same scheme but, of course, the terms and the conditions of service of the judiciary who hold office for the whole duration of their natural life until 72 years of age are quite different from those of civil servants who hold office at the will and pleasure of the Government. It is an entirely different set of circumstances where you are dealing with people whose constitutional position is that their salary may not be reduced during their term of office as judges.

I certainly agree that under this Bill the Minister for Finance should have the first and final word in relation to the kind of regulations to be made under the Bill. We are all aware of the tremendous power of the Minister for Finance in relation to matters of one kind and another. We often see the powers which the Minister necessarily has in relation to the control of public money used in a manner which ordinary people would not commend. When it comes to dealing with matters affecting the judiciary, I for one would not agree that the Minister should be the last authority in the making of regulations under this Bill. One possible way out of this dilemma as I see it, if this Bill is to go through all Stages to-day, is an assurance in relation to the regulations made under this Bill that the members of the judiciary will be consulted. Otherwise, I think it is a clear case where the regulations should be laid before the House.

Mr. Traynor

I shall bring the Senator's remarks to the notice of the Minister.

Question put and agreed to.

Sections 7 to 10, inclusive, agreed to.

Title agreed to.

Bill reported without recommendation.

An Cathaoirleach

Next Stage?

Mr. O'Quigley

In view of what I said on Section 6, I should be most anxious to have an opportunity of putting down an amendment on Report Stage to cover the question of regulations. That can be done later this evening. I should be glad of the opportunity, but otherwise I would ask to have it deferred until this day week.

Seanad Éireann debate -
Wednesday, 14 Jun 1961