Recommendations Nos. 1 and 2 may be discussed together.
Courts (Supplemental Provisions) (Amendment) Bill, 1968 (Certified Money Bill): Committee and Final Stages.
I move recommendation No. 1:
In page 3, to delete lines 17 to 23 inclusive and substitute "each House of the Oireachtas and the order shall not be made unless a resolution approving such draft shall be passed by each such House".
The recommendations refers to paragraph (c) of the section which proposes that a draft of the order shall be laid before Dáil Éireann and, if a resolution of the draft is passed by the Dáil within the next subsequent 21 days on which it has sat after the draft is laid before it, the order shall not be made. It came as a shock to most Members of this House to find that the position with regard to the fixing of judges' salaries in the future will not be that the Government will be supposed to make an order and have the draft of it approved by both Houses or, as is proposed in this Bill, by the Dáil only. That will not be the position though it is the normal standard when one thinks of a draft order. What will happen is that the Government will make an order but it will not take effect until 21 sitting days after it has been made, if the Dáil has not annulled it. In other words, it will not take effect after 21 days if a resolution has been made.
If one examines the practical application of that, one will see it is the most undesirable way in which to increase judges' salaries. There has been a good deal of criticism, and it is a good thing that there should be criticism, however extravagant it may be at times, of salaries of judges and Members of the Oireachtas. It is right and proper also that there should be debates about this thing and that it should not be made to appear that increases of salaries of judges and Ministers are not awarded in any kind of clandestine way. What the Bill is proposing is just to do that—to make the increases appear to be made in a clandestine manner by laying an order in draft before the Dáil and then saying that the salaries will not take effect. It is not an easy matter, in practice, for anybody to say: "you will not get something" to somebody who has been granted an increase. It would be difficult for most people to contemplate putting down a motion.
I dislike the idea that this is the method which will be adopted. It would be far better if the Government came clean whenever it is realised by the Government that an increase to the judiciary is warranted, having laid the draft order before both Houses, as I suggest in the recommendation, and certainly before Dáil Éireann, seeking for the approval of Dáil Éireann to the increase. That is what should be done.
It is for that purpose I have put down the recommendation — to provide that each House should be given an opportunity of passing a draft order before it takes effect. I know the Minister will say that the constitutional position is that in relation to Certified Money Bills only the Dáil can amend them, that the Dáil has the final say in financial matters. That may be so, but I suggest to the Minister and the House that there is no constitutional warrant whatever for saying that the Government shall have a say, the final say, as is proposed in this section, in relation to the fixing of judges' salaries.
If it is wrong constitutionally for the Seanad to make amendments to Certified Money Bills, with greater force one can argue that it is wrong that what has up to now been done by legislation can in future be done by mere Government order. It is right, therefore, to say that both Houses should be given an opportunity of approving of the order. In the vast majority of cases, if the Government in their prudence and discretion think it proper to increase judges' salaries, it is more than likely these increases will be approved by both Houses.
I think it is also valuable and probably a good deal more satisfactory from the point of view of the recipient to know that the salary he is getting has received the open approval of the Members of the Dáil and Seanad. For that reason, I would urge the House to accept the recommendation which I think is much nearer to the spirit of the Constitution than paragraph (c), which gives all the power to the Government subject to the approval of the Dáil.
There is little I can add to what Senator O'Quigley has said, except to appeal to the Minister to allow this order to be laid before both Houses of the Oireachtas. It would cause much more public confidence if the public felt that the same procedure operated in this connection as operates with any other order.
As a layman, I would like to remark that the Minister has not given us any good reason for this proposal. I hope he will be able to give us some convincing reasons for the change. It seems to me that the status of the judges in relation to the Legislature is being changed, that they are being put into a different category now from that in which they were formerly. It is understandable that we should have government by order, particularly in certain spheres where legislation would be much more desirable.
The proposal is to give the Minister power to adjust judges' salaries by order, having given the appropriate notice to the Dáil, so giving the Dáil an opportunity of making an objection. So far, I have not heard from the Minister any good reasons for this proposal or why the previous scheme is considered now to be undesirable, and why this proposal is considered to be a more equitable method of dealing with judges' salaries rather than the scheme which operated formerly.
This scheme is going to change the status of the judges in relation to the adjustment of their salaries and the Minister ought to explain to the House why it is considered necessary to do this. In the previous debate the Minister gave substantial reasons for the proposal to give increases to judges and justices, although it is not so long since there was an adjustment. This is the second adjustment within a comparatively short time and perhaps the Minister could explain why the procedure now proposed was not considered on the occasion of the last adjustment and why this particular time was selected to bring in the new method.
Perhaps Senator Rooney was not present during the Second Reading debate when I gave some explanation of some of the matters which he has raised. I will return to this later. I would like to summarise the points contained in Senator O'Quigley's amendment by saying that it would give to the Dáil the power to make an affirmative resolution instead of the present provisions which leave it open to the Dáil to pass a resolution of disapproval, if it so wished and it would also leave it open to the Seanad to pass a resolution of disapproval. The substance of this recommendation was discussed in the course of the Second Reading debate and I have already indicated the reasons for the powers provided in the Bill as it stands.
I may mention again that the limited power of the Seanad in relation to money matters is the background of the situation, now being provided for. Up to now, Bills have been necessary to increase judges' salaries. These are money Bills and the power of the Seanad with regard to them is limited to a delay of three weeks. It would be out of line with the constitutional position if the Seanad were to be given power of veto in regard to orders which deal with money matters. Under Senator O'Quigley's recommendation, a draft order tabled by the Government and approved by the Dáil could not be made until the Seanad had approved of it and the suggestion that the Seanad could thwart the decision of the Dáil is unacceptable to me.
The recommendation would substitute an affirmative resolution for the provision in the Bill for a resolution of disapproval. The Government have given this matter serious thought and we are satisfied that this is the more satisfactory method of dealing with it. The procedure provided for in the Bill gives the Dáil adequate power and time to disapprove of the draft order, if it so wishes. I suggested yesterday, and I repeat the suggestion today, that under the procedure in this House, if Senators think it necessary to table a motion disapproving of increases in judges' salaries, they are at perfect liberty to do so. If they want an opportunity of discussing this matter, they have their own procedure open to them by tabling a motion in this connection This can be done at any time the issue arises.
I am completely unconvinced by Senator O'Quigley's suggestion that increases in judges' salaries would be given in a clandestine manner. Indeed, I am quite satisfied that Senator O'Quigley, with his political experience, knows that this could never be so. He is just as conscious as we all are that this is a controversial business, and to suggest for a moment that a substantial increase in judges' salaries could be made by any Government under an order of the Dáil and that this would escape the attention of Deputies is, in my submission, utterly unrealistic. We all realise that whenever this happens, people for their own purposes, some in this House and some outside, will be quoting all the increases that have been given to judges or higher civil servants, which is done in every place from the Labour Court and elsewhere that one can think of, and to suggest that there is a danger of some increase being given to judges that would pass the notice of the public is, in my view, completely unrealistic.
Indeed in the case of classes of this kind, the very limited number of these very important public servants, increases in their remuneration are, as Senators know, at all times politically unpopular, irrespective of what Government may be in power. There is no Government at any time, in my view, that will be in power that will be leaning over backwards to try to give people in this income group an increase. Indeed they will always find themselves, in the nature of the case, probably rightly so, at the end of the queue, and they will only be considered I would imagine—and this has been the history of this whole business —when everybody else has been dealt with.
I am quite sure that Senators will realise that this is the position and that there is simply no possibility of an order of this kind being laid before the Dáil increasing judges' salaries without the matter getting very ample publicity, and indeed without the figures being quoted by all those who could use them for their own purposes in their arguments in connection with other pay increases for different sections of the community.
Senator Rooney wanted to know why was this change in procedure not done before. I suppose that the shortest answer is that different Ministers for Justice take different views as to how matters should be done. I personally feel that it is utterly wrong that these very important public servants should become a political football to be kicked around the Houses of the Oireachtas for different reasons, in many cases suspect reasons. I think that there is no reason why members of the judiciary should not have their salaries fixed from time to time, the same as is done in the public service.
There was an objection by Senator O'Quigley — I think it was he who made this point — that these increases must be determined by the Government. The Government must always determine what this class of servants is to get, no matter what Government is there. It is true that we are retaining parliamentary control by having this procedure whereby an order will be laid before the Dáil, and it is open under this procedure for any Deputy of any Party to put down a motion to annul it, and no doubt such motions will be put down if it is only for the purpose of discussion from time to time if the matter arises, and, as I have said, the same procedure in its own way is open to any Senator.
Judges' salaries elsewhere, instead of being dealt with by legislation are fixed, from inquiries I have made, by order just as I am proposing here. In fact in some countries it is not necessary to make an order at all. They deal with them in the same way as with higher civil servants. I do not see why these people should be singled out for special consideration, if you wish, by having to introduce legislation, and, as I explained to the House last night, one of the reasons why they have missed, perhaps, some increases that other high public servants have achieved during the years is the fact that up to now it was necessary to have legislation to deal with them. So we are here this evening reassessing the position of these men, reassessing their salaries in relation to other public servants, and in relation to the community as a whole, whereas if they were dealt with from time to time like other important public servants, there might not be any reason for us to be here with this particular legislation, and they would be caught up with the other sectors of the community and their pay adjusted from time to time.
It is not correct for Senator Rooney to say that they got an adjustment some time ago. It is over four years since the last adjustment was made in the salaries of the judiciary. In fact, since the foundation of the State, as I told the House last night, there were only five changes made since 1922, five additions made to the judicial salaries. Considering the very important duties which these men perform for the community, having given the matter considerable thought, I felt that it was undesirable that every time these important public servants required an adjustment in their remuneration which other servants get automatically at a certain period of their time, we must have legislation.
It is for this reason that I have suggested this change. I think it is a better and more efficient way of dealing with these men, and I have no doubt at all that whenever any further adjustment is necessary in regard to them, when the order comes before the Dáil, it will not alone be in the national headlines but will be quoted by all those whom it would suit to quote increases given to the judiciary for their own purpose of arguing for other sections of the community. I am also satisfied that the whole history of this business is to the effect that they follow up increases given to other public servants, that they are at the end of the queue. For all these reasons, I am sorry I must reject the recommendations and ask the House to accept the Bill as it stands.
The Minister has certainly gone into great length to argue against the recommendation, and I accept the constitutional position that Seanad Éireann is not on a par with the Dáil and that the supremacy of the Dáil in money and financial matters must be preserved. But what I do take issue on is the idea that the Seanad must not be allowed to say anything at all about increases but at the same time must allow the Government by order, unless it is disapproved, to grant these increases. That seem to me to be taking away from the Oireachtas a power which it has at the present time and has exercised evidently sparingly in relation to judges—five increases in a period of 40 years—and probably fairly justly over that period. For that reason I propose to put down a recommendation on Report Stage to get over the Minister's difficulty of the constitutional position of both Houses, but at the same time to provide that the Dáil will approve a draft resolution before the increases can take effect. I think there is much to be said for that.
The Minister has said that increases in salaries for members of the judiciary, and we also know, in relation to Members of the Oireachtas, are not very popular ventures by any Government. That may be so, but I do not think that that is a good reason for making them clandestinely. I feel it is far better for the health of public opinion and for the judiciary themselves that any increases given should be given coram publico. It is far better that it should be done publicly. We are going to pass this Bill today——
Not if you are putting down a recommendation on Report Stage.
I have already indicated that I propose to do so. The ingenuity of the House will enable me to do that.
What did I hear that time? If I understood correctly, it is not conducive to my rest.
I do not wish to disturb the Leader of the House, especially when he is resting but, as I said, this Bill will go through today if the House agrees. I certainly will do nothing to prevent it going through. It will go through today and the end result will be that the judges will have got their increases. There has been a good debate on it and I feel it is far better that the judges should say at the end of the day: "The public knows what we are getting. There has been a good debate. There have been certain criticisms of us and a good deal of praise of our integrity" and so on, and then they can enjoy their salaries from 21st July——
That is even better. At any rate, the judges will have their salaries and no harm has been done, but a great deal of public good has been done for the public then know that the judges are paid these salaries and the judges, knowing that the public know what they are being paid for, will act accordingly. I think it is useful for all classes of public servants to be sensitive to public opinion and members of the judiciary, like members of the Roman Rota and others, become insensitive to public opinion if things are done in secret over a prolonged period. I think it is good to have debates from time to time about these things, about judges and how they should act. I think that is good for the health of the community and for the health of the courts and for our system of government. For that reason I think that when increases are to be made in future, we should deal with them as I suggest.
I accept the constitutional position as outlined by the Minister, but at the same time, I still think that there is merit in the principle of my recommendation. I now ask leave to withdraw it so that I can put down a recommendation on Report Stage.
I do not intend to speak on the first recommendation but on the second which, of the two, I favour anyway, for this reason that I can see this query about the constitutional position of the Seanad in regard to Money Bills and the spending of public money but there are perfectly good precedents for the Seanad being involved. The Imposition of Duties Act, 1957, in section 4, provides that anything done will be subject to 21 day orders; in other words, following the line suggested by Senator Quinlan that the Seanad should be brought in. There is this to be said for bringing in the Seanad: as the Minister knows, the Seanad has a Statutory Instruments Committee. Its function is not to query the amount granted under an order of this type but to query the way in which it is done and to ensure that everything is done in accordance with the statutes. This does not always happen. It happens now and again that Departments slip up in the machinery they use and the language used in an order and it is most important that these should be carefully examined.
At the moment only one House has a Committee which examines Statutory Instruments and that happens to be this House. If an order is not laid before the House, then the Statutory Instruments Committee cannot consider that order, and if the Minister wishes to refer back to the various reports made by the Committee, he will see that the Committee has exercised a very useful function and in fact the preciseness with which orders are now drawn up compared with the way they were drawn up at the time the Committee was set up is much improved so that the Committee has had the effect that very much greater care is taken in the drafting of orders. Surely it is important that this should continue? I disapprove entirely of this step, which apparently is proposed in the Bill, that a precedent will be set for removing this type of order from the Seanad. That is very wrong and I am entirely in favour of Senator Quinlan's recommendation. What possible harm can happen I do not know. The Seanad quite recently passed a superannuation order granting increased superannuation to secondary teachers. No one said that the Constitution was being torn to shreds in the process. I cannot see what possible harm can be done, and in fact I can see a great deal of good in ensuring that these orders should be laid before the House which has a Committee which deals with this precise point.
It is not very long since a particular order came before the Committee and it turned out that apparently three distinct methods of doing a certain thing were available and the odd thing was that the Minister for Finance who was the operative Minister had agreed to the whole three. No clarification was ever got on this, but at least attention was drawn to it and one can hope that in future such an error will not be made. This type of thing may seem fiddling and it certainly takes up a lot of time pursuing these orders and, I hasten to add, with the help of the staff of the House. The Senators do not go into the precise details themselves but they have the machinery available to do it. It is highly important that it should be done and that mistakes do not occur, and with all due respect to those who draft orders, mistakes can occur and they ought not to be ignored and forgotten about and then possibly brought up as a precedent in the future when someone says: "This was done years ago and nobody amended it".
I feel it is most desirable in the public interest that the closest watch be kept on the way orders are worded. Far be it from me to suggest that the Seanad Committee should query the amount in an order fixing the salaries of judges. This would not be right at all: it would not be within their terms of reference. However, I do think it is important that where legislation is done by order the public interest must be watched and at the moment there is only one body to watch it, that is, the Statutory Instruments Committee.
I should like to support Senator Sheldon. As a member of the Statutory Instruments Committee, I can corroborate for the benefit of the House the statements the Senator has made. The incident he referred to is not, in fact, an isolated one. The records of the Committee will show that on quite a number of occasions the Committee succeeded in pinpointing either errors or, if you like, breeches of what would otherwise be good conduct. I think Members of all sides of the House would agree that we have a responsibility here, not only to ourselves but to the people at large, to ensure that all these matters, whether it be the salaries of judges or the importation of potato seed, or anything else where we must exercise control, that control should be exercised at least in a legal and proper manner. I, therefore, add my voice to that of Senator Sheldon as I think this is one field in which the Minister should be prepared to listen to the voice of the Senators in this House.
This amendment, if it were accepted, would mean that a draft of the order should be laid before Dáil Éireann and Seanad Éireann and if a resolution approving the draft is passed by Dáil Éireann and Seanad Éireann its effect shall take place as soon as the order shall be made. In addition to what I said already on the other amendment, I cannot accept what Senator Sheldon contends about the Statutory Instruments Committee in this instance. The order, whenever it may be made, unlike the other Statutory Instrument ones referred to by the Senator, will not be of a technical nature. It will simply set out that judges of the Supreme Court shall get so much and judges of the High Court shall get so much and so on.
The Statutory Instruments, which Senator Sheldon had in mind, are in many instances of a very technical nature. They refer to very technical matters and may need very technical interpretation and the wording of those can be, as the Senator rightly said, of the utmost importance to the public and to the court. In this particular instance, however, the instruments that will be made in future, if this legislation passes the House, will be of a completely different kind. They will be very simple factual statements of increases in the salaries of the judiciary. I suggest, therefore, to the House that the arguments Senator Sheldon has advanced in connection with the Statutory Instruments Committee and the interpretation of various Statutory Instruments, do not apply although I agree with the Senator, as far as this is concerned, that many of these instruments are of a very technical nature and, of course, they all have the force of law.
This is just as important as an Act of the Oireachtas or the passing of legislation, as if they were brought before the House of the Oireachtas in the form of a Bill. As I pointed out to the House, Seanad Éireann has its own procedure for bringing matters before it by way of motion. Indeed, I do not accept for a moment that somebody like Senator Sheldon, who is known for his eager beaver performance on Committee Stages of Bills—well I know it since I was a long time before this House on the Land Bill—will not keep his eye on matters like this, as many Senators do. If the matter calls for debate in this House they have their own procedure whereby they can have any such increase discussed in public.
I think that is the real answer to those Senators who have some fear that there will be something clandestine about future increases under this order procedure. Let me emphasise again that all our experience down through the years in this field has been that those people are not considered until the last, although I do not say that that is not right and proper. At all times I feel this is due solely to the cumbersome procedure we have because it is known that it is necessary to introduce special legislation to deal with judges' salaries. As I pointed out last night, there will never be a suitable time for the introduction of a Bill of this kind. Of course, the time is never right for this class of legislation and it never will be. I am sure we are politically realistic enough in this House to realise that. Instead of providing, perhaps in the last four years some annual percentage, as was given, for instance, to higher civil servants, we have now made a complete reassessment and, as I pointed out to the House, the question of working out percentages on this is utterly unrealistic.
This is a reassessment of the whole position and it is largely due to the fact that those men have been the victims of the system whereby special legislation must be brought in for them each time there is any question of giving them any increases. I think from a commonsense point of view that those considerations are overwhelming. I suggest to the House that the safeguard is there in Dáil Éireann, in the first instance, by having to table this order whenever the judiciary gets any increase. I am sure the House appreciates just as much as I do that there is no Government at any time in this country or in any other country for that matter who will be breaking their necks to give an increase to high public servants of this calibre. Again, if it is an inopportune time, as it always will be, there will be Parties in the Dáil and individuals there who will make very sure, either by way of discussion or by way of question or, as I have already said, by way of citing it to the Government that: "You gave so much to the judges. What about so and so?"
I am quite sure that the Members of the House are sufficiently experienced and sufficiently appreciative of that factor. Again, I certainly reject the argument that it could ever happen that increases to the judges in Ireland would go by clandestinely without the whole country and the Dáil in particular being fully cognisant of the fact that they were made. I am sorry to disagree with Senator Sheldon. If at any time such an order is made, I am quite sure that people such as he and other Senators, if they so feel, will fully utilise their own procedures here in the House to express the view that the increases given were unjustified, that they were too much, that they should not have been given or that they should have been greater. This procedure is open under the rules of this House and I have no doubt that there are many Senators here who will avail of this procedure should they feel they are justified.
What the Minister says very much reassures me and looking closely at it I am quite satisfied it is the very area the Statutory Instruments would not wish to interfere with. However, it very often happens that orders go a little wider than the Act permits. One of the committee's functions is to make sure that this does not happen. On the question of drafting, I hope the Minister is quite satisfied with what is here. On the top of page 3 it says "The Government may, whenever they so think fit, ... make an order". They can make an order to grant an increase but they cannot decrease those salaries. There is no provision for amending such an order or revoking it as there is in the case of others. This is a difficulty which arises in other cases where a Minister or the Government set out to make an order and discover they cannot do it because the Act, being badly worded, provided permission to make an order only and there was no permission to amend or revoke that order. I hope the Minister is satisfied with the terminology used in this new sub-section (9) (a). It says that the Government may by order increase the sums and nothing is said of the future amendment of that order. It seems to me that there may be a possible difficulty, that once having increased the judges' salaries——
Once for all increased.
——there cannot be anything more done about it without amending legislation.
All I can say is that my backroom boys have shown me that this is all right as it is. I do not think the Senator is right but he has the disconcerting habit of frightening people when he comes into this House with things of this kind. I raised questions with those who are concerned and I think it would be better that it took effect.
I can only say briefly that another Department was assured by the backroom boys. The Committee raised issues and the backroom boys were very slow to come forward.
I never suggested that all my geese are swans. I can only tell the House that this is all right. If I have to come again I will say mea culpa.
I would like to appeal to the Minister to accept this amendment. It is asking for little and it is a case that can afford reasonable protection. It means that the order gets the Statutory Instruments Committee to work as outlined by Senator Sheldon. We are very jealous to see that our powers are not whittled away. This is a small thing that could have a big effect. This could form a pattern for the future laying of orders before the House and in this case we appeal to the Minister. We are not asking much and I think the Minister should go some way towards meeting us.
The Senator's amendment goes to the root of the whole business. We might as well leave the position as it was. I can well understand people being jealous of their powers, and so on. Leaving aside all these technical arguments, I am convinced, having gone over the history of this during the years since the foundation of the State, that the procedure we have is wrong, that it is cumbersome and that as a result we have the backlog situation we have had here.
There is an aspect of the matter that was pointed out in the Dáil and nobody has referred to it here. It is conceded that these people were passed by for a number of years on a number of increases. Some of them have since died. If they were entitled to this four years ago, and it is generally accepted that they were, the widows of those men have suffered. Those who have been pensioned have suffered. You have the anomaly that these men suffered because they were at the end of the queue. They suffered financially through pension allowances and gratuities for their wives of one year's salary. A case was made to me in the other House about the inequity and that I should consider this because these men and their widows had missed the bus, whereas other important public servants had caught it. It was pointed out to me there that that was because of cumbersome legislation. Anybody who has experience of government procedure knows how long legislation takes. It has to be circulated to different Departments. Cabinet time is taken up and that is why I am called upon to abolish legislation of this kind.
For all these reasons I feel we should do here as is done in other countries as a rule. There is no reason why these important public servants should not be capable of being dealt with if it is necessary to deal with them and that their renumeration should be increased the same as the other top echelons of our Civil Service, State boards and so on. They must face legislation brought before both Houses of the Oireachtas by whatever government may be there at that particular time.
It is only fair to them. I feel that the protection is left there now. This procedure whereby if somebody thinks— and I can never visualise the situation arising—that they are brought in before their time the Dáil has the right to annul the order. I strongly feel that this rule is a reform that is long overdue so far as these public servants are concerned.
If we had this business as suggested by Senators, outside the constitutional issues I pointed out, it would leave us back where we were. We might as well go through the whole gamut of legislation as it is. These men because they are public servants are, as has been pointed out on both sides of the House, important public servants. They are concerned with the most important arm of the State, running our courts and giving justice to all men. It is unfair to them from the point of view of remuneration that they should be treated unfairly and discriminated against in contrast to the way other important public servants are dealt with and it is to cure that situation that I have brought this machinery before the Dáil and Seanad.
We all accept what the Minister has stated about the desirability of doing it in this way, by order, and so on, but we cannot for one moment see that acceptance of the amendment will cause any additional delay or be responsible for any of the disadvantages or other drawbacks the Minister has outlined. What we are asking is simply that the order should come to this House. It is put before the Statutory Instruments Committee. There will be a debate in the Dáil and a shorter one in this House. I do not see that that will lengthen it and it will guard a right we have in this House. We should be slow to surrender that right and I do not think it affects the judiciary in any way. It is simply a slight elaboration of the procedure as recommended by the Minister. On this ground, unless the Minister can indicate that he might reconsider this between now and Report Stage, we have no option but to press the recommendation.
When I rose earlier I should have made myself clearer. I am supporting the spirit of the recommendation but I have been somewhat reassured by the Minister in the meantime. Whether he reconsiders it or not, I do not think I can support the recommendation in its present form because it is ungrammatical.
For the reasons I have given, I regret I cannot accept the recommendation. I have considered it carefully and find that it would nullify the objective I am trying to achieve. I do not intend to go over the arguments again. All I shall say is that I cannot accept the recommendation as proposed.
I move recommendation No. 2:
In page 3, line 17, before "and" to insert "and Seanad Éireann" and in line 19 before "within" to insert "and Seanad Éireann".
Is the recommendation being pressed?
May we have a division?
Will Senators calling for a division please stand?
Senators Quinlan and Sheehy Skeffington rose.
The Senators will be recorded. The recommendation is negatived.
In section 2 we refer to the Act as being the Courts (Supplementary Provisions) (Amendment) (No 2), Act, 1968 but on page 1 the Bill is described in its Title as Courts (Supplemental Provisions) (Amendment) Bill, 1968. The No. 2 does not appear. What is the reason for that? I realise there was an earlier Bill to do with the superannuation of a particular judge.
We already had a Bill before the House dealing with a member of the Supreme Court. I think the Bill is properly described.
What I am saying is that in the Title to the Bill on page 1 we drop the No. 2. It seems proper to put it in.
There is some misunderstanding. This is the first Bill of 1968.
I see. I hope it is right.
I should like to move an oral recommendation which I suggest will resolve all the difficulties we encountered during the afternoon. Seconded by Senator FitzGerald, I move:
In page 3, to delete all words from and including ", if" in line 17 to the end of paragraph (c) and substitute "and the order shall not be made unless a resolution approving such draft shall be passed by Dáil Éireann."
I do not wish to delay the House. The purpose of the amendment is to provide that before judges' salaries are increased a draft of the order increasing them shall be passed by Dáil Éireann. At this stage I am abandoning the powers of Seanad Éireann to meddle in these important matters of finance because the Constitution does not give us such powers, does not put us on a par with Dáil Éireann, as my original amendment intended to do. I object, of course, to the Government being put on a par with Dáil Éireann in this matter. I now wish to provide a situation which accords with the spirit on all sides of the House, if I am any good at estimating it. It is to provide that the Dáil shall first approve of the increases before they take effect.
The Minister has said that people should get to know about these matters and talk about them. That is so, but it will be delayed action knowledge if the Bill passes in its present form: there will be a long delay after the time the increases have been made before Deputies, Senators and the public will get to know about them. It is bad for the judiciary in that they will at that stage be brought into political controversy. Increases were given to numerous higher civil servants during the past few years and these increases had already taken effect. If I am not mistaken, moneys had been voted by the Dáil in the various Estimates to give effect to them and there was not a word about it, nobody knew a thing about it, until Deputy Dick Barry of Mid-Cork put down a question. It was only then that even Deputies got to know about the increases which had been given by ministerial order. It is for that reason I say that these increases can be given in the way I suggest and nobody can say it was an outrageous thing, that the public know nothing about it— what were the Government hiding? That is what will be said after judges get increases if the present procedure in the Bill is enacted.
It cannot be said about the increases to Members of the Oireachtas.
It cannot. Now we can go along and whatever cheques we shall get at the end of July they will not be got surreptitiously. The public will know and there will be nothing furtive about Deputies going into banks and public houses to cash their cheques. That has been washed out by the open discussion we have had——
It was nearly spoiled by the humbug at the end.
A little nonsense is relished by the wisest men and the Seanad should not put itself outside the category of wise men. For that reason I urge the Minister, who has paid great attention to the debate, to accept this amendment which can do nothing but good. It will preserve the power of the Dáil over financial arrangements in relation to the judges and it will be to the benefit of the judiciary in the long run because it will be done perfectly openly—these undesirable discoveries will not be made by some alert political or other correspondents of the press—something unwholesome will not happen or be seen to happen.
The relevant paragraph as it stands reads:
(c) Where an order is proposed to be made under this subsection, a draft thereof shall be laid before Dáil Éireann and, if a resolution disapproving of the draft is passed by Dáil Éireann within the next subsequent twenty-one days on which it has sat after the draft is laid before it, the order shall not be made.
This has been taken from some other legislation, I cannot give chapter and verse, but it is in the form of orders already enshrined in some different statutes. In effect, it means that the Government cannot make the orders giving any increases until this specified time has elapsed after the proposed draft order has been laid before the House. Senator O'Quigley referred to higher civil servants getting some increases which the people did not know about. I do not quite accept that but if that was so, surely the Senator realises that this is a completely different matter. There was no draft order to be laid before the Dáil about increases for higher civil servants or any others. This was done as a matter of negotiation between the relevant organisations and the Government.
In this particular instance, and this is where Parliamentary control is being retained, this draft order will be laid before the Dáil for 21 days before it can be given legal authority by the Government. I do not think that a matter of this kind, which is of such political interest, can appear on the Order Paper in the Dáil without anybody knowing about it. A motion can then be put down by some of the Opposition Parties to have the matter discussed and they can then make suitable comparisons with people for whom some advocates may be seeking increases. There can never be anything clandestine about this business. The draft order must appear before the Dáil and there is no attentive Deputy in the Dáil who will not be conscious of it. The main Opposition Party will be conscious of it and other people who see these increases being given to members of the judiciary will not be asleep in quoting them before the Labour Court and in other places.
All this procedure is open to the Dáil and I am quite sure most Senators will readily appreciate that this is the kind of thing that must always and will always make headlines in this country. Suppose that the judiciary is the highest salaried group in the country, any change in their salary and in their status will always be news; it will always be news and will be a political embarrassment to the Government of the day which will have to make these adjustments. For all these reasons I regret that I cannot accept the amendment which, in effect, reverses this procedure now proposed and this would mean that you would have to have a positive debate in Dáil Éireann before an order could be made. If we had that procedure we might as well go back to the procedure of having a full discussion on legislation specifically drafted for this purpose. That debate would obviously relate to the status of everybody in the community, each individual Deputy riding his own political bicycle for his own political purposes.
If we were to adopt that procedure we might as well go back to the legislative system we have had up to this change. There is a specific position here whereby any Party or any Deputy can put down a motion to annul the order which cannot be made until the specified 21 sitting days have elapsed. That is sufficient safeguard from the Parliamentary point of view; it is the most effective way of dealing with the matter and if the judges feel that they are at the end of the queue; and if the Deputies feel it is due to the judiciary to have their salaries increased, when such an order is introduced they can let it go through without putting down a motion to annul it. This is the most effective way of dealing with these men. It takes them out of the category of being used as a political football from time to time. The judificiary are entitled to be treated in this way and there is specific provision to annul the draft order if Deputies so think fit.
We all agree on the undesirability of judges' salaries being treated as a political football and in the past they have been so treated in one or other of the House of the Oireachtas. But that does not justify the procedure proposed in this Bill. It has now become explicitly clear from the concluding remarks of the Minister that the purpose of the procedure is to try to avoid a discussion taking place by adopting a procedure under which it appears that the draft order will not be known until it is through the specified time, when nothing can be done about it. That is the very reason why this procedure should not be adopted.
Provision has been made that the order will be before the Dáil for 21 days but who is going to be so naive as to suggest that anyone will know what the order is about? What is this order to be called? Will it be called the Courts Supplementary order? There are many orders on the Dáil Order Paper, the names of the orders are not very explicit and they do not indicate what they are about so that it is necessary to examine each one of them. There have been cases in the past where things happened in this way. If every Member of the Oireachtas was as attentive as he should be every order would be fully noted but every order is not so noted. An order on a matter like this could slip through and not be noticed either by press or Deputies.
Unless the Minister is prepared to give an undertaking of some kind that such an order will be accompanied by the appropriate publicity, I do not think we can agree to this procedure and unless such an undertaking is given we must press this point.
In this case I am on the Minister's side. This is not the ordinary case where 21 days notice is given. This is a specific proposal that the order must be before the House for 21 days and I think it is unfortunate that Members of the Fine Gael Party should raise their eyebrows at this when they are getting £10,000 for political research.
I would urge the Minister not to accept the amendment. The suggestion underlying it is that for some reason it is desirable that the salaries of the judges and the amount of the increases given to them should be debated in the Dáil and Seanad. I cannot see why the judges, alone of all the people in the country, should have their salaries debated in Parliament. I agree that the salaries of Ministers, Deputies and Senators should be debated but the suggestion is that the salaries of the judges alone of all other sections of the community should be so treated.
That is not suggested.
The suggestion is that before any such order can come into force it must be debated in the Dáil. That does not seem to me to be conducive to the prestige of the judiciary. That practice has obtained up to the present and the result has been that Governments quite candidly preferred to let these salaries remain for years on a low level rather than run the risk of having a free-for-all on the subject. The average gap between increases for the judges has been nine years and it has been a ridiculous situation in which District Justices, people of the greatest importance, until now have had the ludicrous salary of £2,500 in the country area.
It has been pointed out that there is provision for notice of 21 sitting days of the Dáil before the Government can make this order and it has been suggested that this time could elapse and that the draft order could escape notice. That would be quite impossible. I do not believe that Senator FitzGerald believes, if he is familiar at all with Dáil Deputies, that an order increasing judges' salaries would escape the notice of Members of that House.
How would they know the meaning of the order?
There was no order before Dáil Éireann necessary to increase Civil Service salaries as the Senator well knows. In this case there is a specific order that must be placed before the House and must be there for 21 sitting days before the Minister of the day can give effect to it. If the Senator thinks that the whole Dáil is asleep on matters of this kind he is certainly very wide of the mark. There is another matter I should like to point out and that is that these draft orders are accessible to newspaper reporters and these questions of increases in judges' salaries will always be news to these men. The apprehensions Senator FitzGerald professes to have that an increase to the highest public servants we have which has to be brought before Dáil Éireann and be given to them until this order is made is going to escape the attention of all the press and of all the Deputies in Dáil Éireann and of all those who are obviously going to use it for their own purpose I think is utterly unrealistic. I have no doubt at all that whenever this is before the Dáil it will be in the headlines of the national press the following day and it will be used and indeed quoted in many instances particularly if it is around election time at every cross roads in the country and the Senators know that damn well.
The Minister has not answered my question. How, in fact, will people know what the order is about? I begin to suspect the purpose of this manoeuvre when I see the Minister's attempt to suggest that every journalist will immediately see it. If the Order is not entitled "Increases in Judges Salaries" what will it be entitled—"Courts (Supplemental Provisions) Order"? If it is, then with the many other scores of orders which pass unexamined by members of the press and, indeed, by many Members of the Oireachtas, nobody may know it has been made because nobody may have taken the trouble to look at all the orders with obscure titles. I would therefore, ask the Minister is he prepared to assure us that copies of the order will be circulated to all Members of the Dáil or that the order will be entitled "Increases in Judges' Salaries Order" plainly showing it relates to Judges' salaries or that he will make a public announcement. If he is not prepared to do so then the purpose of his manoeuvre becomes patently clear and objectionable to me.
On a point of order, are we on Report Stage?
The Chair is in difficulty that when I took over from the Cathaoirleach there was nothing in the demeanour of the House to signify that we were on Report Stage and I was misled.
We are on the humbug stage.
I have now informed myself that we are on Report Stage and I will ask Senator O'Quigley to conclude unless any other Senator who has not already spoken wishes to speak.
The present adjustment in the salaries of the judges has come out at the same time as adjustments in allowances for Members of the Oireachtas.
A happy coincidence.
I think it is part of a package and I think this has happened on previous occasions. I think that the sort of pressure that is put on the Government to do something about allowances usually builds up by way of pressure from the judges to adjust their salaries and on previous occasions there has been a combined package. We have had a debate on this and we will have a further debate on the allowances for Members of the Oireachtas and now we are proposing that for the future adjustments in the salaries of judges might not necessarily give rise to any debate at all and might, in fact, slip through without anybody knowing anything about it. I wonder are we inadvertently leaving ourselves a bit powerless for the future when we will not have any sort of pressure on the Government.
I said this morning that any Government are very reluctant to promote a Bill just for Members of the Oireachtas. That is why they have been so few and far between. I just wonder how we are going to stand in future years now that we are re-assessing judges' salaries and having this done by way of an order, which may not be noted, and which does not need the approval of the House. This, as I said at the start, is a rather mundane point but I would not be too happy about such a situation.
There will be no need for Oireachtas increases after this.
I think Senator Garret FitzGerald has said all I really wanted to say about what the Minister had to say.
He was out of order.
He was in great order. The real purpose, and the Minister has been very frank this afternoon, of this particular device is to prevent public discussion in the future about increases in judges' salaries. That is a retrograde step for reasons I have already given and which I do not want to repeat. I also think the idea that we must increase the salaries of our judges in this way because every time is always an inopportune time to increase judges' salaries does no tribute to our maturity as a people. I believe we have reached the stage in this country, and our development as a State, that if a Government are in a position to show that a salary increase is warranted for members of the Dáil, the Chairman of CIE, the Chairman of the ESB or members of the judiciary and comes to the public and say: "Yes, that is the increase we propose", and they have the figures to justify that increase, it will be approved by the public.
In the same way, I rather believe, if the same thing is said in regard to the work of Deputies and Senators, the sacrifices they make, the inroads it makes on their lives and health, they will in time accept that the salary increases which we have voted for ourselves today are justified. I believe we have developed to the stage when we can say that everybody else has got the second, the third, or the fourth round of wage increases over a period of years, that judges have not got them and that now we propose to give them. I am convinced we are mature enough as people to say that that is so. There has not been all that great fuss about those increases from the Dáil, the Seanad or the public on this occasion.
When people like Senator Sheldon talk about research and say that those orders should not pass unnoticed, may I say that so far as they are orders laid before Seanad Éireann, they always come before my scrutiny because in regard to all the regulations made I have, after great trouble with the Stationery Office and other people, had arrangements made to have every Statutory Instrument made sent to me and I scrutinise them. I have no doubt that if this order were laid before Seanad Éireann it would come before me, although whether it will or not in future, I do not know.
The Senator can always change House.
I believe it is better for public opinion and for the political health of this country that the salaries given to judges should be given openly and after public debate. The Minister takes a different view and says that it is never an opportune time to grant those increases. Senator Yeats is a great man for research and he loves to taunt people who are inaccurate. He says that the only salaries which are increased or sanctioned by law are those of Members of the Oireachtas and the judges but he is not right in that. I will not tell him who else is.
There are others?
Plus many pensions.
I am talking about salaries.
As Senator Garret FitzGerald suggested, every time a draft order was being made, instead of being in that widely read journal, Iris Oifigiúil, if a statement were made that the Government, after consideration with the judges, made an order to increase their salaries, everybody would say there was nothing secretive about it, but I do not think the Minister is prepared to do that. It will just appear in Iris Oifigiúil and it will be put on the Order Paper. If I know civil servants, it will be put on the Order Paper for the first day the Dáil will sit after the summer recess and then will be included among 378 other Statutory Instruments on that Order Paper, and it is very easy for the research officers to miss that out.
I would, however, take issue with the Minister because I know of no precedent for this present draft order. I know of a precedent where it has to be approved. That is certainly to be found in many Acts we have passed in recent times and in many orders under the Social Welfare Act, 1952. I would love the Minister's officials—I do not like to call them backroom boys—to see if there are any precedents for this because I do not know of any. This is the first and this creates the precedent. However, I will not delay the House further on this. I think the recommendation should be accepted and accordingly it is being pressed.
There are just a few remarks I have to make. There are certain things I think should not be left unsaid. During the debate on the Second Stage of the Bill, there was some reference to the delay in getting actions to trial. It is right to say that whereas the procedure up to some years ago was that if you did not have a notice of trial served for the early on sittings, Michaelmas, Hilary or Trinity, then you had to wait for the next sitting, but that absurd regulation has been dispensed with and the procedure is that whenever notice of trial is given, it comes on for trial whenever it is permitted to be tried.
Senator Nash referred yesterday to the desirability of later sittings in the country as if later sittings were not a common feature of the courts at the present time, both High Court and Circuit Court. Indeed, during the foot and mouth disease outbreak, one saw where a learned district justice was sitting down in Achill late at night, dispensing justice in candlelight, from the description of the court given in the papers at that time. There is a definite practice for all judges to sit until 5 o'clock, 5.30, 6.30, 7 o'clock and after 7 in the evening. That has been my experience and the experience of many other barristers.
In addition, in the High Court, judges, depending on the convenience of jurors, whose convenience has to be taken into account, sit oftentimes until 4.30 p.m. or 5 o'clock, but there are many occasions when it does not suit the business of jurors who are in attendance to sit beyond 4 o'clock and often jury actions have to be curtailed so that businessmen can get back and do something in the afternoon. In spite of that disability, it is true that courts do sit frequently, particularly Chancery, and I have had experience of sitting until 12 o'clock at night to cross-examine a witness who wanted to get back to the Continent.
Perhaps the Senator would bring that more closely to what is in the Bill.
I do not want it to go unsaid that they do sit late: they do. I want it said that they do exercise themselves in the way some people say they do not. The salaries they are getting are not merely for sittings from 11 a.m. to 4 p.m., as some people suggest, and I want to say that the salaries paid to them under this Bill are, in fact, earned in a way which many members of the public, and apparently Senator Nash included, do not realise.
Finally, I want to say that in so far as costs of trials in court are concerned, if Senator Nash has been engaged in a case in the High Court where the cost was £1,000 per day, that may have happened to him once in a lifetime. It is nothing like that and it is complete extravagance to parade that exercise the Senator had in that particular action. The Minister may have some experience of that. It never amounts to anything like that for our judges and I hope they will continue to try to facilitate us as far as possible. More witnesses than are necessary in a particular day are released though subject to being on call. This is something that is being done and, to relate myself more to the Bill, it is one I hope will continue to be done. There are many other things I would wish to say to correct the wrong impressions given but your stern ruling and the late hour prevents me going further.
It is a pity Senator Quinlan is not here to hear that; he might have heard something good.