I understand there is agreement to take this Bill and the Courts (Supplemental Provisions) Bill, 1959, together?
Courts (Establishment and Constitution) Bill, 1959—Second and Subsequent Stages.
I suppose we might as well be hanged for a very large sheep as for a very small lamb.
The more important of the two Bills is the Establishment and Constitution Bill. Its object is to provide for the establishment and constitution of courts of justice pursuant to the requirements of Article 34 of the Constitution. In accordance with that Article it proposes to establish a Court of Final Appeal, the Court of Criminal Appeal and Courts of First Instance. The Courts of First Instance follow the same pattern as the existing courts and comprise the High Court, the Circuit Court, and the district court. The fact that no change is being made in the existing pattern recognises that the existing courts have operated successfully since they were established under the 1922 Constitution nearly 40 years ago. However, one important change is being made in the constitution of the district court by the creation of a new office of President of that Court. The reasons for the creation of this office will be explained later on when I come to deal with the provisions of the Supplemental Provisions Bill.
With the establishment of the new courts under this Bill, the existing courts will, of course, cease to exercise jurisdiction and Section 7 of the Bill provides accordingly. The position of existing judges and justices is being fully protected. The formal disestablishment of the existing courts will not take place until each judge has vacated office with his consent. Moreover, these judges and justices, and they only, will be eligible for appointment to the new courts and any judge or justice who is so appointed or who retires before the Bills are brought into operation will retain his existing pension rights.
The Supplemental Provisions Bill is, as its title indicates, supplementary to the Establishment and Constitution Bill and is, I am afraid, a rather lengthy and technical measure of 61 sections and eight Schedules. It regulates various matters affecting the new courts and the judges, justices and officers thereof. In most cases this is done by the application of the enactments governing the existing courts with whatever modifications are necessary, but this expedient cannot be satisfactorily applied in some instances—notably with regard to the jurisdiction of the circuit court—and it has been necessary to incorporate new comprehensive provisions. I should say at this point that I am hoping that when this legislation has been passed, work will be continued on a measure which aims at consolidating all the enactments relating to the courts. This measure will replace the Act which will result from this Bill and will lead to a position in which there will be only two measures governing the courts of justice—the Establishment and Constitution Act and the Consolidating Act.
Perhaps the most important provisions of the Bill are those conferring upon the President of the District Court powers aimed at securing an improvement in the efficiency of the district court. This is the court to which most of the citizens have to have recourse. It handles over a quarter million cases a year, and it therefore calls for, in a special degree, efficient organisation of its business. I do not want to exaggerate the extent of the complaints that have been made from time to time about late starting of courts or cancelling of courts without giving sufficient notice. Some of these lapses are no doubt unavoidable in any large organisation and they arise only in a small minority of cases.
It is important though that there should be adequate powers to ensure that any reasonable complaints of this kind can be dealt with and brought to notice in a manner which is consistent with the constitutional independence of the district justices. The Bill provides therefore that it is to be a judicial person—a colleague—who will investigate complaints about any conduct of a district justice which appears to be prejudicial to the prompt and efficient discharge of business. The President will also have the power of convening meetings of justices from time to time, but not more often than twice a year, for the purpose of discussing matters relating to the discharge of the business of the district court including, in particular, such matters as the avoidance of undue divergences between justices in the exercise of their jurisdiction and the general level of fines and penalties.
There is no question of seeking any measure of absolute uniformity in these matters; any such uniformity would in fact be undesirable as it would prevent justices from taking into account all the various factors which determine the punishment to be awarded in any particular case. The object is rather to seek to prevent as far as possible undue divergences in the attitude of district justices to certain offences and to do this by an exchange of views between justices at these periodical meetings. Each justice will be as free after the meeting as he was before to ignore any views that may have been expressed and continue to deal with the cases coming before him in accordance with his view of their merits.
Apart from these powers, the President will also have the responsibility of allocating the business of the Dublin Metropolitan District Court. The efficiency of that court , I believe, be improved by placing responsibility for allocating the business of the court on one person and abandoning the present system of having three separate divisions, each in charge of a Principal Justice. The President will also have a number of powers in relation to making recommendations to the Minister on various matters relating to the district court and provision is being made for his being consulted by the Minister on certain other matters.
Section 10 (4) of the Bill extends the existing provisions for exercising disciplinary control over district justices by entrusting the Chief Justice with a kind of "reprimand" jurisdiction over them. In doing this the Bill is merely giving statutory recognition to a practice which has in fact operated on a few occasions in the past in accordance with which the Chief Justice, at the request of the Minister for Justice, interviewed a district justice privately about certain aspects of his conduct. In every case the intervention of the Chief Justice had most beneficial results. The great advantage of this procedure is that it enables action to be taken in a case where a formal inquiry by a Supreme Court or High Court judge would be unduly cumbersome.
The view has always been taken, and I think rightly, that such an inquiry should not be set in motion unless the misconduct complained of was of a very serious character and sufficient, if the allegations against the district justice were substantiated, to make it necessary for the Minister to move in the Oireachtas for the justice's removal from office. The formal machinery would not be appropriate to deal with, say, a rather serious but isolated case of misconduct or, perhaps, a number of less serious instances of misconduct. Indeed, having regard to the publicity which is likely to attend the setting up of a formal inquiry, the procedure might be criticised in these cases as an oppressive use of the disciplinary powers. The statutory jurisdiction now being given to the Chief Justice will therefore be supplementary to the present machinery of formal inquiry and I believe that the mere fact of its existence will have a moderating influence on justices.
The Bill, in Section 7, alters the law regarding the number of judges of which the Supreme Court may be constituted when hearing an appeal or any other matter cognisable by it. Under the present law the Court is not required to sit as a full court of five unless it is deciding on the incapacity of the President or on the constitutionality of a Bill referred to the court by the President. In other cases the law permits a court of three, four or five judges. This position is open to criticism on a number of grounds. It is undesirable that a court of less than five should decide whether an Act of the Oireachtas is repugnant to the Constitution: a court of five is now being made obligatory in these cases. For other litigation, having a court of four involves the risk of an even division of opinion and all the waste of time and money that that entails: a court of four is therefore no longer being permitted.
A Supreme Court of three judges may be objected to also on the ground that the views of two judges—a minority of the full court of five— might decide the issue: but the practical difficulties of having a court of five in all cases make it necessary, in the Government's view, to continue the existing provision of allowing a court of three whenever the Chief Justice so determines.
The occasion of the establishment of the courts has been availed of to prescribe, pursuant to Article 34.1 of the Constitution, certain cases in which justice may be administered otherwise than in public. These cases are specified in subsection (1) of Section 45 of the Bill and comprise applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction, matrimonial matters, lunacy and minor matters, and proceedings involving the disclosure of a secret manufacturing process. These are additional to the cases already prescribed by Acts of the Oireachtas, such as income tax appeal cases. Moreover, doubts have been expressed as to whether the provisions in various enactments passed before 1922 for the administration of justice otherwise than in public survived the coming into operation of the 1922 Constitution; similar doubts exist in relation to the effect of the 1937 Constitution on provisions of this kind in legislation enacted by the Oireachtas of Saorstát Éireann. These doubts are being removed by subsection (3) of Section 45 which provides that these provisions shall now have full force and effect.
The members of the House will be aware that these provisions in regard to the administration of justice in private have given rise to some public comment and some newspaper editorial comment. It is well, therefore, that I should give the House some reassurance as to what exactly is involved in this regard. I believe the provisions of Section 45 will operate satisfactorily. They are mainly a restatement of the existing practice and, in so far as they may, in particular cases to be decided by the court, extend the existing powers to have hearings otherwise than in public, I consider that the extension is amply justified in the interests of enabling the court to ensure that justice in its fullest sense is done in these particular cases.
I might give an instance of that. I am sure most members of the House will be familiar with the procedure in income tax cases. A taxpayer receives an assessment from the Inspector of Taxes. It is open to him to appeal against that assessment. If he does so and if his appeal is allowed by the Inspector of Taxes that ends the matter, but if there is still disagreement between the taxpayer and the inspector it is open to the taxpayer to take that case to the Special Commissioner and this, of course, is heard in private. If again the Special Commissioner decides against the taxpayer, it is open to the taxpayer to take the case to the circuit court. In the circuit court the case can be fought out before the circuit court judge and a decision given either for or against the taxpayer.
The House will readily appreciate that the whole process of hearing that income tax case in private is necessary if justice is to be done. You cannot have a taxpayer's private business position disclosed in public. That is a typical example of the sort of case we are dealing with in these provisions. We are not in any way extending what is there already. In fact, we are really not doing anything more substantial than giving effect here in this Bill to what has been the practice so far. I believe it is well I should make these few remarks about these provisions because I think there has been some misunderstanding as to what exactly is being done.
The Bill contains a number of other amendments of the existing law which are set out in the explanatory memorandum circulated to Senators with this Bill and the Establishment Bill. The memorandum has been revised to incorporate the amendments made in the Bills by the Dáil in the course of an exceptionally detailed consideration of their provisions. The thorough examination already given to the measures and the fact that they have been amended in a number of respects to meet the views expressed by Deputies will, I trust, help to lighten the task of the Seanad in dealing with them at a time when there is an exceptional volume of business to be disposed of.
We are taking these two Bills together and I think that is rational because they do, in fact, go together. One of them is the Courts (Establishment and Constitution) Bill. It is interesting, as the Parliamentary Secretary has pointed out to us, that the Courts have been functioning under the Courts of Justice Act of 1924 and under the Constitution of 1922 and not under the Constitution of 1937 of which we have heard so much boasting and which I have pointed out was not a new Constitution but an amendment of the 1922 Constitution. It was of such a nature that it allowed the courts already in existence in 1937 to function for a further 24 years before this measure was brought in and clearly they could have kept on functioning quite satisfactorily if I may use the precise words of the Parliamentary Secretary.
It should be put on record that the legislation which established these courts in 1924 under the 1922 Constitution, in circumstances which could be described rather mildly as not altogether auspicious or conducive to careful legislation, reflects great credit upon the foresight, the knowledge and clear thinking of the Ministers, of the Government and of the legislators of that period.
I am not a practising lawyer but I have always been interested in the Constitution because, as it happened, I had a particular function with regard to the first Constitution and its development. I am also interested in languages and particularly interested in the Irish language. The Courts (Establishment and Constitution) Bill strikes me as being an extraordinary example of confusion of languages. The confusion between Irish and English in this Bill may arise from a confusion of minds because I am not sure that even those who drafted it knew what they were aiming at. To me it is impossible to understand. Let me quote an example. Subsection (1) of Section 1 of this Bill says:
On the commencement of this Act, the Court of Final Appeal which in pursuance of Article 34 of the Constitution is to be called An Chúirt Uachtarach (The Supreme Court), shall stand established.
As I read Article 34 of the Constitution it does not mention the words "An Chúirt Uachtarach" at all. Article 34 of the Constitution is in English. It contains no Irish words and Article 34 of the Constitution certainly does not set up a court to be called "An Chúirt Uachtarach". If the intentions were that the Supreme Court, so called in English, were to be always called "An Chúirt Uachtarach" one could understand it. Section 1 (2) goes on to say:
The Supreme Court shall be constituted of the following judges—
and throughout the Bill the court is referred to as the "Supreme Court". I have read a fair amount about languages and I have dealt with a number of linguistic problems but I am quite unable to understand what this means. Similarly we are told that the President of the Supreme Court—not "An Chúirt Uachtarach"—shall be President thereof, namely, An Príomh-Bhreitheamh (The Chief Justice), but thereafter "an Príomh-Bhreitheamh" is referred to as "The Chief Justice." I do not understand this provision. Perhaps, as a former colleague of mine said, the words "An Chúirt Uachtarach" and "An Príomh-Bhreitheamh" constitute a hasty genuflection to the Irish language and then you go on to use the English language.
This all arises from confusion of thought. If the intention is to help Irish then this seems to me to be evidence not only of ignorance but also of insincerity. It is quite a different thing from the attempt made in the Constitution to bring in Irish titles for members of the Government. The Taoiseach is the Taoiseach. You cannot call him "The Chief" even though the word "Taoiseach" was introduced originally as an Irish equivalent for the "Chief." However, the Taoiseach is called "The Taoiseach". He is not called "The Chief". If An Chúirt Uachtarach is to be the name of the court, it cannot be called the Supreme Court. If it is to be called the Supreme Court when talking English, it should be called the Supreme Court. The whole thing seems very strange.
The Second Bill of which the Parliamentary Secretary spoke—the Courts (Supplemental Provisions) Bill, 1959,— is enormous. It consists, as the Parliamentary Secretary said, of 61 sections, eight Schedules, numerous references to statutes, sections and repeals. It does not contain a single word of Irish. The Courts (Supplemental Provisions) Bill, which is complementary to the Courts (Establishment and Constitution) Bill, contains no word of Irish at all. It refers throughout to the Supreme Court, the High Court and the District Court.
As the word "Court" is somewhat messed up, so also is the word "Breitheamh". The word is used in the Courts (Establishment and Constitution) Bill to translate judge of the Supreme Court, judge of the High Court and also district justice. I am at a loss to know what the whole thing means. For example, Section (2) says:
(1) On the commencement of this Act, the Court of First Instance restitution ferred to in Article 34 of the Constitution as An Ard-Chúirt (The High Court)——
it is not so referred to in Article 34 of the Constitution
——shall stand established.
(2) The High Court shall be constituted of the following judges—
(a) the president thereof, who shall be styled "Uachtarán na hArd-Chúirte" ("The President of the High Court"), and
(b) such number of ordinary judges (each of whom shall be styled "Breitheamh den ArdChúirt"...
It seems to me to be a hotch-potch of language and is really an insult to the Irish language because it endeavours to use the Irish language in an absurd way. If the Bill were in Irish, one could understand it. It would be reasonable and sensible. In stating what I think about this, I would prefer to say it in Irish—caint cham, chasta, gan chiall, gan fuinniméid.
There is an allusion to the style in the following: "such number of ordinary judges (each of whom shall be styled ‘Breitheamh den Ard-Chúirt'". That is a very awkward phrase. There was in one of those Bills a section to the effect that new forms of address in Irish would be introduced. It was suggested to the Parliamentary Secretary in the other House that that was a matter for Rules of Court and not for legislation. He took the provisions out of the Bill. I find among the statutory instruments the following: Rules of the High Court and Supreme Court: Mode of Address Rules 1961. This is a rule made with the concurrence of the Minister for Justice, Deputy Traynor. Therefore, I think it is proper for us to ask a question about it. The Rule is:
(4) The Judges of the Supreme Court, the High Court (including the Central Criminal Court), and the Court of Criminal Appeal respectively shall be addressed, in Irish or English, by their respective titles and names, and may be referred to, in Irish, as "An Chúirt", or, in English, as "The Court".
I wonder what the meaning of that is? I wonder if the Parliamentary Secretary knows? I wonder if anybody knows what are, for example, the respective titles and names of the judges? Is the Chief Justice An Príomh-Bhreitheamh or the Chief Justice? Is he to be addressed as Chief Justice? Is it now improper to address him as "My Lord"?
If that is so, it is very strange. What is to happen to people who prefer the older modes of address and rest themselves upon the view that all these things are history and should be preserved? Can you address the Chief Justice as "Mr. Justice Maguire"? Can we preserve under these circumstances the distinction heretofore observed where a High Court judge was known—perhaps I should take my own name as an example—as "Mr. Justice Hayes", a circuit court judge as "Judge Hayes" and a district justice as "District Justice Hayes"? Is that distinction gone and if it is, what is being put in its place? There is confusion of thought or lack of thought in this whole business. Can you refer to a High Court judge in the future as "Judge Hayes"?
I feel there must be judges in the High Court who would not be enthusiastic about that mode of address. The whole thing is a result of confused thought and of an endeavour to use the Irish language, not as it should be used as a living vigorous tongue, but as a kind of political weapon to prove that you want to do something about it when, in fact, you do not want to and, if you did, you would not know how to do it. What is the actual state of affairs? The first Bill—the Courts (Establishment and Constitution) Bill supplies Irish titles but the Courts (Supplemental Provisions) Bill has not a single word of Irish in it at all, good, bad or indifferent. It seems to me that these two Bills, when they become Acts and when combined with the Rule recently made, will make it difficult to address any judge either in Irish or English.
As a matter of fact, one of the things commented upon at the recent receptions in Dublin Castle was what a wonderful job was done by the Office of Public Works in Dublin Castle by way of decorating it and by leaving there the portraits of all the people who occupied Dublin Castle before we took it over in 1922. Exactly the same thing applies to the little Chapel in Dublin Castle which contains the coats of arms of the various Lords Lieutenant. That is a monument. It is a beautiful thing and something which should not be torn down. I think that titles such as "My Lord" and so on are in the same category. They could have been left alone. It is evidence of the slave mind to get rid of them. They are all part of our history. The fact that we have judges as a result of Acts passed by the Irish Parliament and appointed by an Irish Government is sufficient.
This idea of mixing up languages and making a hotch-potch that makes it impossible to call the judges anything is a very great mistake.
The Parliamentary Secretary concluded by saying that the Bills had got considerable examination and considerable amendment in the Dáil. Obviously, they can get no such consideration here because it is too late. Obviously, if some thought were taken about how to use our Parliamentary institutions, we could have had these Bills much earlier. They could have been considered on Second Stage and sent to a Joint Committee when we would have been in the position of having people in this House on the Joint Committee participating in the detailed consideration of the Bills. They then would be able to advise the members of this House on what to do about it.
Would the Parliamentary Secretary explain how he finds the words "An Chúirt Uachtarach" in Article 34 of the Constitution? It is not there. It is in the Irish version of Article 34. The Irish version is a translation of the English which is the fundamental version that comes first in order of composition. There is no doubt about that. No good can be done for the Irish language or any other cause, apart from the Irish language, by pretence and humbug. I think that the Courts (Supplemental Provisions) Bill is an exact example of that. I should like to have that explained.
The two Bills we have before us come, as Senator Hayes said, about 20 years too late. It is a remarkable thing that the Government have not realised that one of the organs of Government is the judicial organ and that that is set down in the Constitution.
Organ of Government.
If the Parliamentary Secretary will look at Article 6 of the Constitution he will find that all powers of Government, legislative, executive and judicial derive, under God, from the people. In this country I regret that the judiciary is one of the arms of Government. We are rather apt to confuse the Executive with the totality of Government as laid down in our Constitution. In my opinion it shows a lack of respect for the Constitution that we have waited 24 years before the Government, who were responsible for the introduction of the 1937 Constitution, thought fit to give effect to Article 34 in accordance with Article 6 of the Constitution.
It is remarkable to think that the courts were in existence for a much shorter time, 13 years, under the 1922 Constitution than they have been under the transitory provisions of the 1937 Constitution which kept the Saorstát Éireann courts in being. We have had the absurd and ridiculous position in the High Court and Supreme Court that in order at various stages to determine what the jurisdiction was and what the position of the courts was vis-á-vis the 1937 Constitution and in relation to certain statutes, that the courts have had to look at a provision of the 1937 Constitution which the 1937 Constitution forbade to be printed after the day the first President assumed office. Of course there have been no votes in establishing the courts under the Constitution. There were no votes in this kind of thing and there will not be any votes, I am afraid, for the Parliamentary Secretary or the rest of us in this thing. However, I am not dealing with it on that basis but I do condemn the attitude of mind that has had so little respect for the institution of law, for an arm of Government established by the people under the Constitution of 1937.
From time to time I spoke in this House, during my short period here, about the failure of the Government to bring in these Bills. I had hoped that once they did come we would have an opportunity to amend or to examine the Bills in some detail. We are being presented with an impossible task. It may well be that the excuse for not instituting these courts earlier was that it took that length of time to frame and draft these Bills. If that is the excuse, it is an impossible task to ask us to do in a few days what it has taken 24 years to do.
As the Parliamentary Secretary said, the second Bill contains 61 sections and eight Schedules. We find that in the Third Schedule we have to deal with 29 different kinds of proceedings which may be taken in the circuit court. In the Fourth Schedule there are 72 statutes, some of very ancient origin, to be examined in order to determine whether or not things have been properly related to the new circuit courts to be established under the Bill. We have also to examine a further 31 British statutes relating to the jurisdiction of the old county courts and courts of quarter sessions. There is, in all, the tidy figure of 132 statutes involved in the Schedules. The Schedules appear to be unimportant but I recall that on the occasion of the debate on the Third Amendment of the Constitution Bill the unpalatable meat in that particular Bill was contained in a Schedule. At times one is inclined to pay too little attention to what is contained in Schedules. As well as that, there are some 22 statutes being amended in whole or in part in one of the final Schedules so that it is hardly fair, or doing justice by a great organ of Government, which the courts are, to ask the Oireachtas at such short notice to examine these Bills in detail.
The Parliamentary Secretary has indicated that it is proposed—I took him down as saying this—to consolidate or amend the law later on. I do not know what the difficulty was in amending the law up to the present because in one of the Acts being repealed there are, for instance, only three sections left now out of 23, involving less than a page out of 22 pages in the Schedule. One wonders why these 22 statutes were not consolidated in this Act. It makes for great confusion in understanding what the position is and it will make for greater confusion, if these Bills are passed, when they come into operation in the courts themselves.
I regret that the Parliamentary Secretary has not given any indication of any intention to engage in any kind of reform in relation to the administration of justice in the courts. That is a matter which falls peculiarly within the domain of the Legislature. I believe it to be the right of every citizen, no matter what his means, to have justice done by him in the courts. Unfortunately there are many occasions on which citizens with a good cause of action, with a genuine grievance, are unable to have that grievance or that cause of action litigated in the courts because they lack the means to do it.
In my conception of democracy that is neither fair nor proper and there is nothing in these Bills to indicate that that position will be improved the slightest bit. It is quite clear that the stage has long since been reached where there should be some form of legal aid, however limited, for proper cases where persons are too poor to go to court. I do not want the Parliamentary Secretary to say that people can sue in forma pauperis. That day has gone out with the workhouses and it does not do to say that that is available. I know of one case, a matrimonial case, where that was available to the parties and where they could have sued in that form and they would not undergo the indignity of such a form of proceedings.
It seems to be past the time when some form of legal aid, however limited, should have been introduced for the benefit of the poorer sections of the community. I speak with some diffidence upon that aspect of these Bills because some people would be unkind enough to think that my remarks are motivated by the purpose of putting money into the lawyers' pockets. That is not so. Like the medical profession, there is no other profession, perhaps, which does more in the nature of free work for the public than the legal profession. Senator Lenihan, Senator Ryan, Senator Louis Walsh and others, I am certain, can add their eloquent testimony to that fact. That is why lawyers are so interested in getting costs where costs can be realised.
They recoup the costs.
Another urgent reform would be effectively to reduce the costs of litigation. Once we realise that the administration of justice by the courts is a form of State activity, that it is part of the government of the State, it will be easier to make certain reforms. I do not understand why it should be necessary, in order that a person may issue, say, a civil bill to recover damages from some other person, that he must first pay for the right to do that in the form of a stamp on that civil bill. I do not see what the justification in modern times for that is.
The amount of court fees at present is something of the order of about £300,000. I think it quite improper, where the cost of litigation is so high, to expect people, who are entitled as of right to justice as a public service, to pay for the obtaining of that service. If the State means anything and if in this country democracy is to work fairly, people should be able to go into court with the least possible cost to themselves. So far from paying for the right to issue a civil bill or to issue a High Court summons, it should be the other way around for the poorer sections of the community and they should get a State subvention.
Another matter in which it seems to me this arm of Government is not being properly treated is in relation to the cost which private individuals, through no fault of their own, sometimes finds themselves obliged to pay, largely because of the clumsiness of drafting or the mistakes of the Legislature. I do not want, again, to refer to the Court Officers (Superannuation) Bill which we passed in June of this year and which does not make sense. It is an outstanding example of legal gibberish. It is now solemnly enrolled in the records of the Supreme Court as an Act of the Oireachtas passed in 1961.
We find in this House in various enactments, and admitted to by Ministers, that certain sections were passed that do not mean anything. Later on, some citizen finds himself calling in aid a particular section. In order to ascertain what the Oireachtas meant when they enacted a piece of legal gibberish, some unfortunate person has to pay for a case stated perhaps by a judge of the circuit court to the High Court or the Supreme Court. It does not seem at all right that where a judge of the Circuit Court or the High Court on circuit, or a district justice, is unable to understand the law, any private citizen should have to pay for having the law clarified. There is every justification for having a fund out of which the costs of cases stated should be paid. I think it wholly wrong that private individuals should perform a service for the public in having the law clarified by cases stated.
A variety of other reforms is required in regard to the administration of justice—none of which is touched upon in this Bill—which I would expect would be dealt with. Why is it that a person charged with the crime of manslaughter has to pay for the transcript of the depositions? Why should that be so? If he is charged with murder, he gets the transcript free. Apart from murder, in every criminal case, where the person may be entirely blameless, he has to pay not alone for his counsel's and solicitor's fees but also for something which the State can provide for little or no cost.
I have known of people charged with manslaughter and one rather suspects they were charged merely as a matter of policy. There were so many cases of manslaughter and deaths resulting from dangerous driving and drunken driving that, for a period, it appeared that whoever was involved in such an accident with a mechanically-propelled vehicle was automatically returned for trial on a charge of manslaughter. A number of these people were quite blameless but they had to pay this quite unnecessary bill. In cases of that kind, where no costs are given against the Attorney General, a minimum form of aid which could be given to these people would be to provide the transcript free of charge.
Another matter which seems to call for some attention, in time, is the manner of the service of documents. Any proceedings originating in the circuit court are not properly served unless by a civil bill officer. I do not know why the registered post cannot be used in the case of all originating documents from the circuit court instead of going to the laborious process of serving these documents through the medium of civil bill officers. While the position of existing civil bill officers requires to be protected, it seems an unnecessarily laborious, tedious and time-wasting procedure which is long since out of date.
Senator Hayes referred to the mode in which Irish is misused, abused and not used properly in the Bills. It has always struck me as odd that the Rules of the High Court, of the District Court and of the Circuit Court, which are all statutory instruments, have never yet been rendered into the Irish language. At the same time, it is obligatory upon solicitors and barristers, under statute, to pass qualifying examiations in Irish. Yet, if such a person, who has passed his examination in Irish, is of a mind to conduct his practice through the medium of Irish, or even a particular case, he cannot refer to the Irish version of the Rules of Court. These are the Rules which have been made since 1922. This is something which highlights the monstrous hypocrisy involved in the misuse of the Irish language in these Bills.
I want to return for a short time to the costs of litigation. I observe that, in the No. 2 Bill, we limit the number of judges in the High Court, I think, to eight. I think we also limit the number of circuit court judges to a particular number which is defined. In relation to the High Court, I think we ought to go well beyond the number prescribed in the Bill. We ought to have not one but several High Court judges who, it would be assumed on their appointment, would never be employed full time. That might seem somewhat strange but one finds, for instance, as far as judges of the High Court and Supreme Court are concerned, that apart from the manner in which they fulfil their duties in the ordinary course of events, they give great service to the community by acting, always in an unpaid capacity, as chairman of a variety of bodies, commissions and committees. Apart altogether from that, it appears to me unnecessary that costs are being incurred daily in the High Court because, with cases which are listed and ordered, it is not possible to say with certainty that XY, living some place in Mayo, will have his trial proceed with certainty say on 1st November.
The present position is that he may expect to be taken on Monday and have all his witnesses there, but he may not be reached on Monday. He may not be reached on Tuesday, or on Wednesday, and, in consequence, there may be ten, 11, 12, or any number of witnesses, professional witnesses, idling in Dublin. If there were an extra judge or two in the High Court, it would be possible to make arrangements under which people could be taken with certainty upon a particular day. There does not seem to be anything revolutionary or startling in that proposal. It would certainly avoid wasteful and unnecessary costs, and a waste of the time of the witnesses and litigants, if sufficient judges were available to take actions, and particularly jury actions, on specified days. Under the present dispensation, that is not possible, and it seems to me that the only remedy is to create more judges.
I want to refer now to the places where justice is administered. I think on the debate on the Office Premises Bill we had occasion to make reference to the courts, where justice as a service of Government is administered. Some of the places throughout the country where the law is administered are a disgrace and a scandal. No one can justify some of these places as courthouses except to the extent of saying, "We are doing something about them." In the first place, the antiquated position whereby local authorities are required to build courthouses is responsible for the condition of many of our courthouses. It seems abundantly clear that this organ of Government, the Judiciary and the courts, should be a national charge in the same way as are the Garda, the Department of Justice, and the Army.
I do not understand why a county council should be expected to provide the cost of this pre-eminently Government service. No progress will be made in renovating, modernising and re-building these courthouses until that work is a charge on the Vote for the Department of Justice. It is strange to say that Garda barracks are built by the Office of Public Works, presumably in accordance with specifications, and so on, approved by the Minister for Justice, but that courthouses are not built by the Office of Public Works but by the local authorities. I do not see why that system, which has, of course, an historical basis, should be permitted to continue any longer.
Many of the courthouses that are not letting in rain through the roofs are draughty, cold, dull, badly lighted, ill-ventilated places. When a subpoena is served upon someone to attend at a particular court on a particular day, irrespective of the condition of his health, the law should not be such that he be asked to attend all day every day, perhaps for a week, in a court which is a source of danger to his health. Frequently, old people in bad health have to attend the hearing of an action in relation to a maintenance settlement——
Might I say: Fiat justitia, ruat sanitas?
Those old people in a bad state of health have to attend in those places. It has been a cause of mortification to many people who practise in the courts to observe such old people having to sit around in those places on a wintry day in November or December. The Parliamentary Secretary, who seems to have a great deal of zeal for reform, might direct his attention to the condition of those buildings and institute a widespread building programme to bring the courts up to the level of any Government office in a country town. That is not setting a very high standard.
Many other things which might be said with regard to reform are not contained in these Bills. Anything which can be said at this stage will not be dealt with in the immediate future, but I hope some of the matters to which I have referred will engage the attention of some future Minister for Justice, if not the Parliamentary Secretary, and that they will be attended to. The Parliamentary Secretary dealt rather too briefly for my liking with these Bills. I had hoped to get a clearer exposition than is to be obtained from the highly complex explanatory memorandum for which we must be grateful.
In his Second Reading speech the Parliamentary Secretary laid great stress on the district courts, and I think he regarded the provision in that connection as the major change being made by this piece of legislation. I regret that the Parliamentary Secretary's efforts have been directed to reforms of this kind, which are not nearly as urgent as some other matters requiring reform, which, in my view, are not reforms at all. The underlying theme of the Parliamentary Secretary's reference to the changes in relation to district courts was that they were inferior not only in jurisdiction but in personnel and that, therefore, someone had to be put in to watch over the district justices. If that is the Parliamentary Secretary's experience, and if that is the view of the Government, it is an extremely serious situation. The whole idea is that the circuit court judges can conduct themselves, judges of the High Court can conduct their courts properly, but that district justices do not and cannot be trusted to conduct themselves. Once you appoint judges, whether to the High Court, the circuit court or the district court, you appoint persons whom you can trust and thereafter you must allow them to function up to the point where it becomes necessary, if it does become necessary, to remove them by resolution of either House of the Oireachtas after due inquiry.
I do not think the District Court requires this kind of reform. Doubtless, there have been—I do not say quite a number—some complaints. It is a pity that the whole District Court bench which consists of quite a number of people should be denigrated by complaints in relation to the few and, furthermore, that that denigration should be crystallised in an Act of Parliament which says that district justices must be watched over in two ways, one of which is prescribed in Section 10 of the Courts (Establishment and Constitution) Bill, namely, that the Chief Justice can call in a district justice and tell him he is bringing the administration of justice into disrepute. I wonder if the Chief Justice can do that in relation to a judge of the Supreme Court, the High Court or the Circuit Court. The second provision, in case that is not sufficient, is contained in Section 36 under which the President of the District Court may also investigate the conduct of the justice which he believes to be prejudicial to the prompt and efficient discharge of the business of the court.
If it is laid down in Rules of Court, the Rules of the Circuit Court and the Rules of the District Court, that hours of attendance shall be such and such, and a variety of other things relating in a broad way to the conduct of district justices in the administration of their business, the district justices are as much obliged to observe these rules as they are to observe any other statutory provision which they have to administer while sitting as district justices.
We must never forget that district justices, like judges of the other courts, take an oath on entering office to carry out and discharge their duties in accordance with law and to uphold the Constitution. If, having these safeguards, you cannot get satisfactory service, it seems to me the proper people have not been appointed to the District Court bench and if they fall short and if these safeguards are not sufficient, they are not proper persons to administer justice between man and man and man and the State and then we would be getting to the stage where these people would have to be stripped of their powers. A threat of that drastic and immediate penalty for failure to discharge duties promptly, for bringing the institution of law and justice into disrepute, would be far preferable to this prefecting of district justices, which is being established twice in this Bill.
Once you create a President of the District Court, it becomes necessary to give him something to do and it has been found desirable, apparently, to give him authority to convene the district justices twice yearly to hear what he has to say and to hear what people like him have to say with regard to the discharge of the business of the district court and, in particular, with regard to the avoidance of undue divergencies in the exercise of the jurisdiction of the court by justices, in the general level of fines and penalties.
It seems to me that is a provision which will be useless and cannot be enforced. A district justice is intended under the Constitution to be independent in the discharge of his duties. It is provided in the Constitution that all judges shall be independent in the exercise of their judicial functions and subject only to the Constitution and the law. It appears to me that if a district justice is the kind of man who says: "I am going to be independent", he can sit in and smoke his cigarette or pipe and listen to what the President of the District Court has to say and go away and do whatever he wants to do after that. I should not be a bit surprised if there will be people who will act in that way.
It seems to me they are perfectly entitled to act in that way under the constitutional provision which says that they shall be independent in the exercise of their judicial functions and subject to the Constitution and the law, and that means not to be influenced by anybody in the penalties which they fix or in the manner in which they exercise their jurisdiction. If that position is to obtain, that this meeting will be a monologue, perhaps, by the President of the District Court with a few interjections by a few D.J.s who feel embarrassed by the tension created, it seems to me to be wholly unwise to put a provision of this kind into the Bill.
Apart altogether from the effectiveness and the proprietry of the provision, I very much doubt its constitutionality. Unless a district justice is reported to the Chief Justice and thereafter back to one of the Houses of the Oireachtas for some form of insubordination, I fail to see how this section could ever come to be challenged in the High Court on the ground of its repugnance to the Constitution but perhaps that may come sooner than people imagine.
If penalties in relation to certain kinds of offences and under certain codes such as the Road Traffic Act were unduly low in certain district court areas, and unduly lenient, I would much prefer to invest the Attorney General with a right of appeal to the circuit court against a penalty, on the ground that it was too low rather than have this roundabout method which seems to me to be behind doors and to be unconstitutional.
Some people might think that was a departure from precedent, that it was an extraordinary power to vest in the Attorney General, but I think I am right in saying that the Attorney General quashed certain orders of district justices in about 120 cases in the past few years by way of certiorari and that is nothing more or less than an appeal against the order of the district justice in relation to certain offences under the Road Traffic Act, the licensing code, etc.
If the level of penalties were unduly low in a particular area, it would be far more desirable that that should be dealt with by way of appeal either to the High Court or to the circuit court by the Attorney General or by competent complainants under the various statutes rather than in this roundabout way. When the Parliamentary Secretary or the Minister for Justice, whoever he may be, comes to consolidate and amend these Bills and comes to examine this provision, he probably will find that it would not work and it will be dropped.
I want to refer to the point raised by Senator Hayes in relation to the mode of address of judges. It is all very well to try to change these things by a complex order which appears to be simple but when it comes to working it out in practice, it will be found that the old system, whatever its origin, was a useful system and worked well. Personally, I have no objection whatever to adopting the form of address, "A Bhreithimh," to any judge or justice. The Irish language would be quite suitable in that respect. Nor, indeed, do I object to the Order, except that it seems it will not work.
At present when we address the Chairman of Seanad Éireann, we say, "A Chathaoirligh." That is all we have to do. If the Cathaoirleach gives a ruling under Standing Orders, we are obliged to obey that ruling absolutely and we may not even question it. We dare not tell the Cathaoirleach he is wrong because Standing Orders provide for immediate expulsion for such unwarranted and untoward impudence; similarly in Dáil Éireann.
When it comes to addressing the judge in court in the tense atmosphere of a criminal trial, when it falls to counsel or solicitor to tell the judge in polite language that he is wrong in law, wrong in fact, that he has misdirected himself, it does not and will not make things easier if we are to say plainly and bluntly: "You are wrong; you are wrong in law; you are wrong in fact; you have misdirected yourself." That does not seem to me to be something that people who have grown up in another system will find easy to do. It seems to be the only thing left as a result of the abolition of the old mode of address. It is quite a different thing to adopt a euphemistic method of telling "His Lordship" he is wrong, or to say "Your Lordship is wrong in such-and-such." That is a step removed from the immediate person and that seems to me to be the great advantage that was inherent in the old method of address.
I do not know what the new form would be. You cannot give it an abstract form such as "His Lordship" has had up to now. I think that would be an obstacle and I, and quite a number of other people who have discussed the matter, do not see any remedy for it. However, there the matter rests. The Rule-Making Committee of the High Court and the Circuit Court obviously must have seen the provision in the Bill which was giving to the Legislature the power to invade the domain of the judiciary and must have taken the view that it was better that the judiciary itself should regulate the matter. In consequence of this change they made, the provision has been dropped from the Bill. That is preferable to the situation which was presented in this Bill as originally circulated but the new Order seems to contain a procedural difficulty for practitioners that I do not see any real way out of. I rather fear that the ultimate position will be that the new law will be more honoured in the breach than in the observance. If that is to be the position—that it cannot be observed because people cannot break off an old habit—it would be better that the change had never been made and not have in the very court itself, where law should be upheld and honoured, any rule going by the board because of the impossibility of observing it properly.
Finally, there is one matter which rather disturbed me in regard to the No. 2 Bill. I do not quite understand the manner in which pending causes of actions, suits, matters, proceedings and so on are being transferred from the existing courts to the newly-created courts under this first Bill and as regulated by the second Bill. In Section 49, it is provided that the continuity of the administration and enforcement of justice shall not be interrupted by the coming into operation of the Principal Act or this Act. It goes on to say:
Without prejudice to the generality of subsection (1) of this section——
(a) any act done or proceedings taken before the operative date in respect of any cause or matter in the court mentioned in column (2) of Part I of the Seventh Schedule——
that would mean the existing court
—to this Act at a particular reference number shall be deemed to have been done or taken respectively in the court mentioned in column (3) of the said Part I at that reference number,
That is to say, any act done or proceedings taken in any cause or matter in the old courts shall be deemed to have been taken in the corresponding new courts. We have had an indication over the past two years, shall I say, of the technical nature of returning people for trial and of the various slips there are between the cup and the lip and how ultimately things worked out. I am not at all sure that subsection (1) of Section 49 is sufficient, particularly having regard to the terms of subsection (2), to ensure that all proceedings, civil and criminal, are being effectively transferred from the existing courts to the new courts established under these Bills.
If you observe the provisions of the old Judicature Act of, I think, 1877, you find the greatest care was taken in transferring effectively all pending causes of action, suits, proceedings and so on from the old courts to the new courts established under that Act. Similarly, under the 1924 Courts of Justice Act, one found the position dealt with comprehensively in relation to the High Court, the Supreme Court and equally in relation to the circuit court and district courts established under that Act. In particular, in the Judicature Act, there is a comprehensive definition of the causes, matter, proceedings, actions and so on and in the Courts of Justice Act one finds that all proceedings, whether civil or criminal, which were pending were transferred into the new court.
There is no doubt that no matter what way one read the Courts of Justice Act or the Judicature Act, one could have no doubt that all pending proceedings, civil and criminal, were effectively transferred to the new courts. I am not sure that subsection (1) of Section 49 here effectively does what is done in Section 20 of the Courts of Justice Act in relation to the High Court. However, having raised the matter with the Parliamentary Secretary, I am sure he will tell us that he is satisfied and has been advised that the section is quite effective and that "the Senator need not have any fears". That is the sort of answer one always gets from a Parliamentary Secretary or a Minister in reply to questions like this but, notwithstanding the knowledge that his reply will be of that type, I take the liberty of questioning the effectiveness of that section.
One finds that this time of the year on Bills of this kind it is rather frustrating to be talking about things that might be in them and changes that might be made. It seems, having spoken for so long already at this stage, a bit unreal to address ourselves any longer to these matters in an effort to secure better administration of justice. I hope, having said all I have, a more lengthy time than was given for the Committee Stage of the Civil Liability Bill will be available for these Bills so that, as far as this House is concerned, it can put its hand on its heart and say that, as far as it lay within its power, it did everything to ensure that these Bills were the best that time, thought and examination could make them.
I am not intervening in this debate at this stage, but I want to draw the attention of the House to the order and progress of business. As far as I can see, there is no possibility of disposing to-night of the business as ordered to-day and it will be necessary to sit tomorrow. I suggest we should sit at 11 a.m. so as to give an opportunity to country Senators to get home tomorrow evening.
These two measures clarify the constitutional establishment of our courts and, as such, are to be welcomed. It appears to me that much of the criticism and comment in regard to the Irish and English definitions of our courts and in regard to the modes of address in court could be described as much ado about nothing. Personally, as a lawyer, I would have preferred the continuation of the modes of address that operated heretofore. I see no great burden on the intelligence of myself or any other member of the legal profession in addressing the court in the terms: "May it please the court" or "If the court pleases" instead of the mode of address used heretofore "May it please your Lordship" or "If your Lordship pleases."
One important matter was referred to by the Parliamentary Secretary in his opening remarks. It is the question of what might be described as justice appearing to be done. It is particularly important in the district court. The district court more than the circuit court, High Court or Supreme Court, is the one intimately based among the people and the one the people come in contact with most. There is no point in a district justice hearing a case and making a proper decision if the people outside involved in the case think it is not a proper decision.
In that connection I should like to refer to one practice I have noticed, not in many cases but in some cases, in regard to district justices. That is this business of being friendly—there is no great harm in it, I know—with the Garda superintendent or the solicitors involved in the court before the court starts or during the proceedings or during the lunch break. The question of justice appearing to be done would be much better served by the district justice arriving punctually, having no connection with anybody else, judging each case on its merits and getting away from his court as immediately as possible. In that way justice would appear to be done and the confidence of the people in the administration of justice would be improved enormously. I am not suggesting there is any harm whatever in the sort of laxity and friendliness I mentioned, but there is that danger—that the impression is conveyed to the people that everything, to put it bluntly, may not be above board. However, that is a matter for the good sense of the Department of Justice and of the district justices.
I also feel that much of the criticism of Section 10 and Section 36 amounts largely to a storm in a teacup. I would be as jealous as Senator O'Quigley, Senator Hayes or anyone else if I felt there was any attempt at compulsion or any mandatory provision in either of these two sections. It would be deplorable if there was anything of that nature. However, I believe subsection (4) of Section 10 is in ease of the district justice. It envisages a very human situation where a district justice may be going off the rails and the Chief Justice has a chat with him to try to get him back again. The wording makes it quite clear: "Where the Chief Justice is of opinion that the conduct of a justice of the District Court has been such as to bring the administration of justice into disrepute, the Chief Justice may interview the justice privately and inform him of such opinion." If anything, that is in ease of the district justice. It is a sensible subsection designed to iron out the problem that may arise when a district justice may go off the rails. I do not see anything undesirable about it.
How is that in ease of the district justice? How is it better than the present position?
From the human point of view it is better. Instead of any mandatory provision or any element of compulsion, you have a human way of dealing with the problem.
But does not the other provision still survive, the provision by which the Government may ask a judge to investigate it?
But it is the Chief Justice who may ask.
This is the preliminary provision in ease of the district justice before the more Draconian step is envisaged.
The other section which has been criticised is Section 36, which gives power to the President of the District Court in regard to various matters. Subsection (3) is the one that has been criticised. Under it, the President of the District Court may convene meetings of the justices for the purpose of discussing matters relating to the discharge of the business of the court. The subsection further states that the justices "shall attend" such meetings the President "may convene". Again, there is no element of compulsion, no element of suggesting that uniformity of penalty be imposed. There is no mandatory element envisaged in that. Indeed, any mandatory element would be highly undesirable and completely against the whole principle of legal jurisprudence here that every case must be judged on the merits and facts.
It is only common sense to have discussions of this nature between the President of the District Court and the justices, to discuss a reasonable attitude towards cases and to exchange views on cases. I do not see any great harm, particularly in view of the careful drafting language. He may convene the meeting for the purpose of discussion. If it went any further than that, I would regard it as undesirable. In that form, however, I do not see anything to get excited about. It appears to me to be reasonable and practicable.
Apart from those observations, I should like to welcome Section 50 which specifies in regard to district court appeals to the circuit court against sentence that only matters relating to the penalty can be heard in evidence before the circuit court. Heretofore, the provision for a complete rehearing in decided cases did not do justice to the appellant. There is one suggestion I should like to make. I have felt for a long time it is one which might improve the general administration of cases, particularly in the High Court. This matter was touched upon by Senator O'Quigley when he talked about professional witnesses coming up from the country on High Court cases, having to wait around the courts for a day and having to come up again a second day and, sometimes, a third day. That problem—and, in fact, the whole question of the proper expedition of the hearing of cases—might be met by the appointment of a judicial officer who would meet the solicitors for both parties before the open hearing of the case and decide on the issues beforehand.
Professional witnesses now have to go through a long waiting period, hanging around for days on end and then, because of some apparent conflict, the action is prolonged. That situation could be avoided if these professional witnesses could be brought into conference, as it were, before the actual hearing where it could be decided between the parties and their solicitors as to what professional evidence would be agreed beforehand. In many cases, engineering evidence is common case. If my suggestion were adopted, the hearing time of High Court actions could be halved. Very often a substantial part of the time is devoted to long technical evidence, with direct and cross-examination, and, at the end, there is really very little difference of opinion. There is very seldom any great difference of opinion in relation to engineering evidence. Very often, there is not any great degree of conflict in the medical evidence on both sides. If outstanding issues could be solved beforehand, the hearing of these actions would take half the time they take now. I understand something analogous to that suggestion has been in operation in Britain for some years past and has been found very helpful.
I want to refer to a statement made by Senator Hayes this evening, a statement he has repeated again and again, here and elsewhere. It is the statement that the Constitution of 1937 was an amendment of the Free State Constitution of 1922. I have both Constitutions here before me. With regard to the Constitution of 1937, after invoking the Trinity in the Preamble, it is set down:
"We, the people of Eire, .... Do hereby adopt, enact, and give to ourselves this Constitution."
Article 48 lays it down:
The Constitution of Saorstát Éireann in force immediately prior to the date of the coming into operation of this Constitution and the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922, in so far as that Act or any provision thereof is then enforced shall be and are hereby repealed as on and from that date.
There is no amendment of anything in existence previously. There is an emphatic wiping out and an equally emphatic substitution. I cannot understand why Senator Hayes keeps reiterating the statement to which I have referred. He has made it here; he has made it elsewhere.
That is what President de Valera said when he was introducing it in 1936.
I am stating what is in the Constitution, the Constitution enacted by the people of Ireland.
We are not amending any Constitution at the moment. We are implementing the Constitution.
I merely wish to contradict the statement made so often by Senator Hayes. There is nothing about amending a previous Constitution, repealing the Oath, repealing appeal to the Privy Council, repealing the Partition of the country. I shall leave the rest to the legal experts. Senator O'Quigley referred to legal gibberish in some of the legislation passed by this House. I interpret some of the Senator's statements here as legal gibberish.
I should like, first of all, to deal with the major criticism Senator Hayes made of the two Bills, particularly of the Courts (Establishment and Constitution) Bill. In these Bills, we are simply attempting to carry out as specifically as we can the directions of the Constitution. The Constitution is in English and in Irish. There is a provision that, in the event of a conflict, the Irish version takes precedence. There are not two Constitutions. There is only one. There is only one Article 34. Article 34 provides for the establishment of one set of courts, not two. The combined effort of the English and Irish versions is to direct the establishment of these courts with an Irish and an English title. That is the directive purpose of Article 34. It is to that directive purpose we seek to give effect in this Bill.
It is a combination of the two Articles.
There are two languages but there is only one Article.
There is no Irish at all in the second Bill.
Let me develop my argument. There is a very clear, distinct and logical pattern in what we are doing. I shall take the Supreme Court. The rest follow the same pattern and it is easier to deal with one particular court. The Courts (Establishment and Constitution) Bill is an instrument which has for its purpose the fundamental operation of establishing the courts.
Subsection (1), Section 1 reads:
On the commencement of this Act, the Court of Final Appeal, which in pursuance of Article 34 of the Constitution is to be called An Chúirt Uachtarach (The Supreme Court), shall stand established.
That is the basic section performing the fundamental establishing operation. In that regard it is different from all the other sections of the No. 1 Bill and all the other Sections of the No. 2 Bill because they are all subsidiary to it, as it were. That one section, in so far as it refers to the Supreme Court, springs directly from Article 34 of the Constitution. That basic establishment section is more directly related to Article 34 than any other section of the Bill and we use the two forms to indicate that we are complying as fully and as closely as possible with the Constitution. Thereafter, these are the English texts of these two Bills and naturally we use only the English version of these courts. It is very logical and very desirable in the first section, in setting about establishing the courts, to go as directly as possible to the source of authority, Article 34, and give the English-Irish names.
I wish to direct the attention of Senator Hayes to that model of legislative perfection, the Courts of Justice Act, 1924, which he lauded to us here as being the product of brains, Ministerial ability, and so on. I direct the attention of the House to Sections 4 and 5, in particular, of the Courts of Justice Act, 1924, of which Senator Hayes not alone approves but holds up to us here to-night as a model. Let me quote, for instance, from Section 5 of that Act:
A Supreme Court of Justice (Cúirt Breithiúnais Uachtarach) shall be constituted under this Act to be the Supreme Court of the Irish Free State.
If that is not, in Senator Hayes's own darling Courts of Justice Act of 1924, a perfect precedent for what we are doing in this Bill I do not know what is.
No, it is not a precedent. It is the reverse.
The 1922 Constitution was enacted in English.
I am talking about the Courts of Justice Act of 1924. I have the English version of it here in my hand. I have the English version of the Courts (Establishment and Constitution) Act, 1959. I see exactly the same pattern and form of words used in each of them to perform the same operation.
They are not the same.
I want to make it clear also to the House, in view of the fact that the point has been raised, that there is neither confusion of thought nor hypocrisy involved in this. The Constitution provisions are to the effect that there shall be two languages in this State. In so far as we can, we are sincerely accepting that obligation and giving effect to it in these Bills. There is nothing else behind what we are doing. We are following a clear and logical pattern throughout the two Bills.
With regard to what has been said by Senator O'Quigley, I welcome most of it. He has put forward a number of suggestions with regard to the administration of justice generally which I regard as being very useful and indeed worthy of consideration. However, with regard to most of them, even if we had more time at our disposal, these two Bills are not the place to give effect to them. These Bills have a very definite and specific objective, first, to establish the courts and then to deal with all other matters arising out of that establishment. In the main, the No. 2 Bill should confine itself to matters arising out of and subsidiary to the establishment which is performed by the No. 1 Bill.
Senator Lenihan also made some suggestions which are well worthy of examination. I want to assure the Seanad that that examination is proceeding and will be proceeded with. In so far as anything can be done within reason to improve the administration of justice it will be done but I am sure the House, including the two Senators concerned, will be the first to admit that it is not easy to effect these changes quickly. A very great deal of time and thought must be devoted to them, apart altogether from the fact that practically every improvement involves considerable expenditure.
Senator Hayes asked what had happened to the modes of address that existed up to now and Senator O'Quigley also dealt with that point. The position there is quite simple. There was a volume of opinion in this country to the effect that it was inappropriate at this time that our courts should continue to use phrases which were by many people regarded as archaic and out of date. There was a volume of opinion which objected to the use of these phrases in our courts.
Much of the discussion which has taken place on this matter has been directed to the use of these phrases by the practitioners but in dealing with this problem we must take cognisance of the fact that our people who have recourse to the courts were constrained to use these forms of address. As long ago as 1936 a very distinguished chief justice of this country, Chief Justice Kennedy, proposed exactly what we propose in this Bill. Therefore there is nothing new about it. There was no question, as there was an endeavour to suggest in the Dáil, of our having rushed in with this proposal at the last moment.
You could not be accused of rushing anything in regard to the courts.
I shall deal with that later. We were conscious of this volume of opinion against these forms of address which were in our circumstances considered out of date and inappropriate. We set about dealing with that problem and very strenuous objections were raised to the Oireachtas attempting by legislation to do something which was strictly and correctly a matter for the courts themselves through the Rules Committees. We took cognisance of that objection. Indeed we received deputations from various interested parties and listened to many views. It seemed to my Minister and to me that the basic objection was to the fact that this was being taken from the Rules Committee and done by legislation. It seemed that if we gave the job of prescribing these modes of address back to the Rules Committee we would go a long way if not the whole way towards meeting the objection. I therefore moved in the Dáil to delete Section 45, as it then was, from the Bill, and the matter of prescribing modes of address in our courts was handed back to the Rules Committee. The Rules Committee for both the Superior Court and the circuit court have made new rules and these new rules have been accepted by the Minister for Justice. I have every confidence that they will be accepted by both professions as well.
Senator O'Quigley raised a point with which I was going to deal but with which Senator Lenihan dealt very well. Surely the difficulty he foresaw arising in regard to the use of terms such as "if your Lordship pleases" would be very easily met by the use of the phrase "the court". It is a simple matter to substitute "the court" for "my Lord" or for "your Lordship" in that instance.
The criticism has been made that we spent a long time producing these Bills and neglected our constitutional obligation for 24 years. I suppose there is something in that criticism but I want to mention the background. Almost immediately after the passing of the Constitution we had the war. We had the period between 1938 to 1946 when the energies of all of us were directed to very important matters other than constitutional matters of this sort. Indeed, I think that any fair-minded person would agree it was not possible to expect that a major legislative constitutional project of this nature would have been embarked upon in the period from 1938 to 1946. If anybody is culpable, I suppose it is the people who were responsible between the ending of the war and 1950 because these Bills got under way in 1950.
When you take all these circumstances into consideration, I think that they were got under way with not unreasonable delay. The fact that they have been gestating, if I may use the word, since 1950 is due, I think, to the complexity of the various matters involved. The lawyers present in the House will realise immediately that the matters dealt with are complex and required a very great deal of care and consideration before the Bills eventually saw the light of day. I think that Senator O'Quigley might have said, now that they are here, that they are welcome. He might have been gracious enough to say that.
I will leave that to those opposite.
Senator Lenihan dealt fully with the question of the district court. Let me say, however, that there is no question at all of endeavouring to establish that district justices are in any way inferior to the other judges. The district court is a different type of court. These provisions, apart from the provision about the reprimand jurisdiction of the Chief Justice, deal in the main with the administration of the courts. They are not directed to the quality of the justices themselves. The reason we have these provisions with regard to the district court is not that we think the district justices are in any way inferior but simply that the District Court presents special problems. As Senator Lenihan pointed out, the district courts deal with a vast volume of business. Approximately 250,000 cases are dealt with in the district courts every year. Apart from law, jurisdiction or justice, there is a big administrative problem in the working of these courts. If we examine these new provisions, I think it will be found that they are directed to administration rather than to anything else.
What about Section 10?
With the exception, as I have already said, of the reprimand jurisdiction in Section 10. With regard to Section 10, I think that should be welcomed by the House. Indeed, I think it will be welcomed by the district justices themselves. There has always been inherent in the office of the Chief Justice this jurisdiction of control over judges. Indeed, it has happened from time to time that he has informally sent for district justices and spoken to them about their behaviour. All we are doing is putting that informal procedure on a statutory basis and giving the Chief Justice the statutory authority to do what he has from time to time done informally before.
I think Senator Lenihan was absolutely right in this regard. It is quite possible that a district justice could benefit by the provisions of Section 10. There might be some small irregularity, some temporary lapse. Surely, in those circumstances it is desirable that a judicial person, rather than the Minister or the Executive, should come in and have a word with the district justice about his conduct? We should not have undesirable interference by the Executive or, alternatively, the heavy-handed cumbersome procedure laid down in the 1946 Act. I think these provisions will do a lot of good and, on sober reflection by all concerned, they will be generally welcomed by the judiciary and, indeed, by the general public.
As I said at the outset, these two Bills in the particular regard which I mentioned are in their general intent nothing more than an endeavour by the Oireachtas to carry out the obligation which the Constitution has imposed upon it. I again admit that the establishment of these courts has been long delayed, but I think even at this late stage that it is a good thing that we should give to ourselves courts established in accordance with the provisions of our own Constitution.
An féidir an Coiste a thógaint anois?
The Second Stage has taken eleven years, on the Parliamentary Secretary's showing.
I am craving your gracious indulgence.
When is it proposed to take the Committee Stage?
The truth about this and the other Bill is that we can do nothing about them. The Parliamentary Secretary knows that and we all know it. It is a travesty of Parliamentary institutions to do this kind of thing at all.
Can we not take them now?
If you take them now, they should be taken in omnibus fashion without going through the farce of calling out the sections.
Perhaps we could go through the sections of the Courts (Establishment and Constitution) Bill as there might be some comment on some of them. The other Bill might well be taken in omnibus fashion. I agree with that suggestion.
Agreed to take remaining Stages today.
Bill considered in Committee.
I should like to repeat what I said before. It is very ingenious for the Parliamentary Secretary to say that he takes Article 34 to be the Irish and English versions. That is impossible. It is not right and the Parliamentary Secretary knows it is not right. It is daft to say that the fundamental law of the country is in two different languages because the Constitution recognises two languages. You cannot do anything with the language by legislating. You cannot legislate Irish into English and English into Irish. The idea that because you have two separate pages here and somebody says Irish is an official language and that you can combine two separate versions of the same thing is "cracked". The Parliamnntary Secretary is not right. The name of the court has to be something. This Constitution was thought out in English: it was framed in English. It was translated into Irish by a Committee and that translation was abandoned. It was translated then by the official translators. The name of the Supreme Court is "the Supreme Court" and, in Irish, it is An Chúirt Uachtarach." This purports to twist all that around. If you are going to call it An Chúirt Uachtarach, then call it An Chúirt Uachtarach, just as you call the Taoiseach "the Taoiseach." I do not like that particular kind of thing and I do not think it does any good for Irish. You have the advantage of knowing what you are talking about if you call the Taoiseach "the Taoiseach." What is the name of the Supreme Court? Is it "An Chúirt Uachtarach" or is it "the Supreme Court"?
Is that not "cracked"? How could it be both?
An English-Irish version.
Nonsense. That means you are talking two different languages. This Bill is in English and the whole evidence is that, after subsection (1) of Section 1, you refer to the Supreme Court. You cannot have it both ways.
Was it wrong in 1924?
It was quite different in 1924. "The High Court of Justice" and in brackets "An Ard-Chúirt Bhreithiúnais" shall be constituted. What was constituted was a High Court of Justice, and for Irish purposes it could be called "An Ard-Chúirt Bhreithiúnais". What is the good in the Parliamentary Secretary's telling me this, because you cannot talk two languages at the same time, no matter how clever you are. All this is very fine if you do not know Irish, but if you know Irish, it is a disgrace because it hurts your feelings. It calls it "An Chúirt Uachtarach" and then in brackets "Supreme Court" and you go on to use Supreme Court leaving An Chúirt Uachtarach after you. It is using Irish in a fradulent manner to pretend you are interested in Irish when in fact you are not. That is what annoys me. All the provisions of the other Bill are in English, the Supreme Court, the Chief Justice, High Court, district justices and so on. This is a linguistic fraud. There is no doubt about that.
Senator Hayes is entirely correct. I wish people would study the Constitution. It is a very valuable document and contains a great deal of information. I would refer the Parliamentary Secretary to Article 12 which deals with the office of President and which illustrates the point made by Senator Hayes. In the English text, it says that "There shall be a President of Ireland (Uachtarán na hÉireann), hereinafter called the President." Then you have the National Parliament, which "shall be called ... the Oireachtas", and afterwards in the English text, it is referred to as the Oireachtas. But you do not find any such provision in relation to the courts in Article 34. That bears out completely, if it required to be borne out, what Senator Hayes, who must be regarded as an expert, has said and I prefer his informed opinion.
Did he say that in 1924?
1924 was a different matter. What was set up then was a High Court of Justice and it was given an Irish title. It is admitted that the Constitution was discussed in English in 1937, and then put into an Irish translation. This is a reversal. This is an endeavour to continue the fraudulent idea that the Constitution was discussed and written in Irish. It was not.
How does the Senator know?
I know extremely well; I know all about it. It is just too bad that somebody should know something about these things. The people who framed this Constitution could no more have framed it in Irish than in Sanskrit.
Presumably the Senator knows about the 1924 Act?
I do not know anything about that. I was in the Chair. It was a different thing.
Section 2 is——
The same thing.
Subsection (2) (b) says "such number of ordinary judges (each of whom shall be styled "Breitheamh den Ard-Chúirt.""Styled"? What does it mean? How are you going to style him? Surely he is not to be addressed "A Bhreitheamh den Ard-Chúirt?" I appeal to Senator Ó Ciosáin—surely his heart would bleed if he heard that? What is the meaning of "style"? Are you to address letters to him in that way? "Micheál Ó hAodha, Breitheamh den Ard-Chúirt."
I did not want to intervene, but as Senator Hayes has mentioned my name, I should like to point out that these terms have been used in the courts already by people who wanted to have their cases dealt with in the Irish language.
In the Vocative Case.
I have often heard the term "A Bhreitheamh" being used.
But "A Bhreitheamh den Ard-Chúirt"?
There is nothing wrong with that.
Did anybody ever say it? Nobody ever said it and nobody will say it.
With regard to the particular objection which Senator Hayes has to this subsection, as distinct from the other, when we use the word "styled" we do not refer to modes of address in court. It is purely a drafting procedure whereby we indicate that from here on in the Bill they shall be known as such and such.
But from here on they are known as judges of the High Court. That is what strikes me as being absurd.
I just want to make it clear that styling here does not refer to modes of address.
I know that.
I should like to know from the Parliamentary Secretary what is the title of judge of the High Court when you are dealing with the High Court?
I am not sure whether that question is directed to the new rule of court. Is that the Senator's point?
It arises from this style and title.
It is not for me to interpret the new rule. That is a matter for the courts and the judiciary themselves but if I am asked a straight question: what is the title of a High Court judge, I would say this: he is Judge Smith, or Breitheamh Mac Gabhann, as the case may be.
Therefore it would be the same for all courts, Supreme Court, High Court and so on—the word "Breitheamh" would be used in all cases?
The use of the word "breitheamh" indiscriminately to describe a judge or justice has been in use since 1924. There is nothing new about that.
Arising from the Parliamentary Secretary's interpretation, are we to take it that it is correct to describe a judge of the High Court, or to address him, as Judge Smith? Because as far as my information goes there has been a ruling against that form of address already.
I want to make it absolutely clear that I would not attempt to lay down what the modes of address in court shall be. The Dáil has agreed, and I hope the Seanad will also agree, that this matter should be left to the Rules Committee. They made a ruling; the Minister for Justice approved of it; and thereafter its interpretation is entirely a matter for the courts.
I should like to see Irish used in the courts and, indeed, anywhere else. My whole difficulty is that this is not a step towards that end. It makes a laughing-stock of Irish.
There is a peculiarity of drafting here, the significance of which escapes me. "The District Court shall be constituted of the following judges ... such number of other judges (each of whom shall be styled ‘Breitheamh den Chúirt Dúiche' (‘Justice of the district court')" as fixed from time to time by Act of the Oireachtas. Then we have, later on, the provision that although they are to be called "judges" they are to be styled "justices". It is a form of confusion that does not appeal to me and I do not understand the reason for it. If the present district justices are judges why are they not called judges of the district court? What is the objection to that? They are all judges.
There is no fundamental objection to that, I think, except that we decided to adhere to the traditional styling.
With us, the term "justice" has always technically been applicable to the district court. It was simply to maintain that tradition that we decided to do it in this fashion.
I do not understand how in one case it is decided to adhere to the old form of address and in another case it is improper to adhere to an old mode of address and it has been changed as a result of the activities of the Parliamentary Secretary and the Minister. I wonder whether the purpose of this section is, again, what I have in mind and what I said earlier, to differentiate between those who are judges in the District Court and other judges. If they are all equal in quality, in status, with different jurisdictions, they should all be known as judges, which they are.
We do say that. We say the district court shall be constituted of the following judges—(a) a judge; (b) such number of other judges. Therefore, it is clear that they are judges.
That being so, it is quite illogical. It seems to be going that bit to push them off the pedestal on which they are erected in order to keep them in a somewhat inferior position. That provision, coupled with the other provisions in the No. 2 Bill, convinces me that there is some idea, some notion, some attitude of mind which regards judges of the district court as inferior. The Parliamentary Secretary will not be able to convince me to the contrary and I suppose it is not worth his while trying to do so.
There are certain things that trouble district justices from time to time, I understand, such things as allowances —travel allowances, and so on. These things, as far as I can gather, are accorded certain scales. I wonder whether that variation in treatment has percolated into these Bills in order to ensure that the different financial treatment will be maintained.
Oh, no. I want to give the House an absolute assurance that we have nothing of that nature at all in mind. I want to state categorically that the suggestion that we in any way regard district justices as inferior is without foundation. This is purely a matter of adhering to the well-established styling that has been in use. We continue "the Chief Justice" for instance.
Yes, that is constitutional.
Surely the Senator does not suggest we are being in some way derogatory of the Chief Justice by keeping on the title "justice"?
That argument is nonsense. The title is a constitutional provision.
Have we not at present justices in the district court? Then we have judges in the other courts and we finish up with Chief Justice. Would that not indicate at present that the Chief Justice is comparable in title to a justice of the district court? I cannot follow all this argument of respective justices and judges. At present, the Chief Justice, An Priomh Bhreitheamh, is classified as "justice" and we have "justices" in the ordinary terminology in the district court. We have just that anomaly at present.
It is part of the space age.