Seanad Éireann debate -
Wednesday, 7 Jul 1971

Vol. 70 No. 11

Courts Bill, 1971: Second Stage.

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

Minister for Justice (Mr. O'Malley)

The purpose of this Bill is to increase the civil jurisdiction of the district court and the circuit court. In addition the Bill provides for a number of important matters relating to the courts. Among these are provisions to increase substantially the weekly amount of maintenance which may be awarded by the district court to a married woman deserted by her husband and to the mother of an illegitimate child; to give a right of audience for solicitors in all courts; to enable certain summary offences in respect of which speedy prosecution is essential to be brought for early trial in the district court; and to amend the existing provisions in relation to the service of court documents.

The limits of the civil jurisdiction of the district and circuit courts were fixed by the Courts of Justice Act, 1924 and were increased by the Courts of Justice Act, 1953, mainly to compensate for the fall in the value of money since 1924. As Senators will be aware, the question of increasing the jurisdiction of both courts was examined by the committee on court practice and procedure and the recommendations of that committee are set forth in their fifth interim report. The committee were unanimous in recommending that the civil jurisdiction of both courts should be increased, not alone to compensate for the fall in the value of money since 1953 but also to guard against the contingency of a further decline in money values over the next 20 years or so. Further, the committee expressed the opinion, unanimously in regard to the circuit court and, by a majority in regard to the district court, that there should, in addition, be a real increase in jurisdiction. However, there was some disagreement among the members of the committee in regard to the new levels of civil jurisdiction, and the various recommendations made are summarised in paragraph 2 of the explanatory memorandum which I have had circulated in connection with this Bill. It should be borne in mind also that these recommendations about jurisdiction were made five years ago.

The Government accepted the view that there should be real or basic increases in jurisdiction over and above increases that are required to compensate for the decline in money values. We are satisfied that the district court is competent to deal with a substantially increased jurisdiction and the proposals in the Bill in relation to that court are framed accordingly. We are also satisfied that the circuit court should be given substantially increased jurisdiction to deal with the bulk of civil cases that are above the jurisdiction of the district court and that arise locally in any county or county borough within a circuit. Both the district court and the circuit court have already large criminal jurisdictions and these are not, of course, affected by the Bill.

The Bill is designed to enable contract and tort actions up to £250 to be taken in the district court. In the circuit court the jurisdiction in contract and tort is being increased to £2,000 and in equity to £5,000. I may mention here that the circuit court already has under the Succession Act, 1965, jurisdiction up to £5,000 in contentions probate and administration business.

The main benefit which will flow from the proposed increases in jurisdiction will be that over a large area the cost of litigation will be substantially reduced. This will come about chiefly because more actions will be capable of being taken in the district and circuit courts where costs are lower, but also because many actions which are now tried in the High Court in Dublin will be tried locally in the circuit court with a consequent saving of travelling and other expenses of litigants and witnesses. I need hardly stress that the question of the cost of litigation is a matter which must be of prime concern to the Government because it is axiomatic that people should not be debarred from availing themselves of the courts through inability to afford the cost of undertaking proceedings. With the passage of time the present limits of jurisdiction imposed on the circuit court have become unrealistic and have in many cases resulted in costs out of all proportion to the amount involved, because people have to bring quite small cases in the High Court in Dublin.

This Bill will help to bring the costs of proceedings more into line with the amount recovered in the courts having jurisdiction.

I may also mention that the Government were conscious of the desirability of localising as much as possible the administration of justice in the various courts.

Section 23 of the Bill provides that the provisions in relation to the increased jurisdictions are to come into effect on the first day of January 1972. The reason for this is that it is desirable to give time to the various rules committees to make new rules to deal with the higher jurisdictions in so far as such matters as costs etc. are concerned.

The miscellaneous provisions of the Bill include provisions to increase maintenance and affiliation allowances. These are sections 17 and 18. At present the maximum amount which the district court may order a husband who has deserted his wife to pay for maintenance is £4 per week and there is no provision for payment of additional amounts in respect of children of the marriage. The maximum amount which the court may order the putative father to pay towards the maintenance of an illegitimate child is £1 per week. These amounts were fixed over 30 years ago and have now become quite unrealistic.

The Bill proposes to increase the maximum amount that may be awarded by the district court to a deserted wife to £7.50 per week and the Bill provides in addition for the award of up to £2.50 for each child of the marriage under 16 years of age. The maximum amount which may be awarded in respect of an illegitimate child is being increased to £2.50 per week. Furthermore, the Bill proposes that in future these rates may be increased as occasion demands by ministerial order to be approved by resolutions of both Houses of the Oireachtas. This will obviate the need to bring in amending legislation whenever an increase is called for by economic circumstances such as a fall in the value of money or an improvement in the general level of earnings.

In so far as concerns the reciprocal enforcement of maintenance and affiliation orders, Senators will no doubt be aware already that agreement in principle has been reached with the British authorities on this subject. The actual legislation necessary to give effect to the agreement is at present being examined in discussions with officers of my Department.

Also, membership of the EEC will necessarily involves us in the ratification of the Common Market Convention on Jurisdiction and the Enforcement of Civil and Commercial Judgments. The Convention covers, inter alia, maintenance and affiliation orders.

The next proposal in the Bill to which I should like to refer is section 16 which will allow a right of audience for solicitors in all courts in the land. Solicitors rarely appear as advocates in the circuit court. Although they have at present a statutory right of audience in that court, their appearance is not, I regret to say, encouraged. So far as the Superior Courts are concerned, there is no right of audience, with minor exceptions such as the bankruptcy court. I may say that the principle of a right of audience in all courts has been supported by a recommendation recently made to me by the committee on court practice and procedure.

For myself, I believe the provision in the Bill is a reform that is long overdue and, as I have indicated on another occasion, I hope that its enactment will help, amongst other things, to stimulate debate on the desirbaility of having a unified legal profession. Here I might mention that this matter derives a special and topical significance from our impending entry into the Common Market. In few other countries in the world is the legal profession divided in the same way as ours is and the Common Market and its institutions presuppose the absence of any division such as ours in the legal professions in member states. Our position will give rise to some difficulty when we assume membership. In particular, I find it untenable that the legal education of our comparatively small number of law students should be so fragmented and duplicated, considering the limited resources at our disposal.

I now come to section 14 of the Bill. The object of this section is to overcome difficulties that have arisen in regard to the prosecution of certain offences in the district court. In the case of certain offences, such as those relating to the prevention of the spread of foot and mouth disease, it is essential that the offence be prosecuted with the minimum of delay. Due to the infrequency of district court sittings in rural areas and the fact that a justice under existing provisions does not have power to hold special sittings to deal with urgent summary cases, delays can occur in bringing these cases to trial. Section 14 is designed to eliminate these delays by allowing a justice to hold special sittings and by reducing the period within which the hearing may take place.

Among the other miscellaneous provisions in the Bill are those dealing with the service of court documents by registered post. Section 21 will enable a wider range of district court documents to be served by registered post under the provisions of section 7 of the Courts Act, 1964, which provides for this type of service where there is no summons server. Documents such as instalment orders, maintenance orders, affiliation orders and summonses under the School Attendance Acts will in future be capable of being served by this method. Section 21 also provides for the assignment by the county registrar of summons servers to specific areas in a county for the service of specified documents. This is necessary to resolve doubts as to the interpretation of section 7.

Section 22 will allow Superior Court documents, for which personal service is not required, to be served at the residence or place of business in the State of the person to be served or the place of business in the State of the solicitor, if any, acting for him. Service may be effected by leaving the document at the address for service or by sending it by registered post. The importance of this is that under existing provisions service on a solicitor of these documents can only be effected at his registered place of business, which must be within a radial distance of two statute miles of the Four Courts in Dublin. This in effect compels country solicitors, including solicitors practising in Dún Laoghaire, to have town agents in Dublin, and it effectively restricts the area in which Dublin solicitors may carry on business. This anomalous situation will disappear on the enactment of section 22. Here we are following a recommendation made by the committee on court practice and procedure in their eighth interim report. However, while the committee recommended service by ordinary pre-paid post, the Government decided that the more formal procedure of service by registered post would be preferable, in the beginning at any rate.

I shall refer only briefly to the other provisions of the Bill. The proposed abolition in section 6 of juries in civil actions in the circuit court is a recognition of the fact that in practice the right to civil juries in this court is very rarely exercised. In any event, there is an appeal by way of full re-hearing to a judge sitting alone from the findings of fact of a circuit court civil jury. The proposal is supported by a recommendation made by the committee on court practice and procedure.

Section 12 makes the district court a court of record. This is in fact and in law the existing position; and all that section 12 does, is to state that position in statutory form.

Section 13 abolishes the justice's minute as an official record and makes the formal order of the justice the only evidence of a decision of the district court. The object here is to prevent perfectly good decisions of the district court being upset on technicalities connected with entries in the minute book, and to relieve justices of the necessity of making elaborate and time-consuming entries in the minute book. The proposal has been strongly recommended to me by the district court rules committee. In general, I should say that there is no reason why decisions of the district court, which has a substantial civil as well as criminal jurisdiction, should be treated and evidenced any differently from decisions of the circuit court. The judges of both courts are professional lawyers, and not lay magistrates.

Finally, I should like to refer to section 19 of the Bill. This section proposes that an application for a legitimacy declaration may be made to the circuit court by a parent of the legitimated child and that all legitimacy applications shall be heard in chambers. Under section 2 of the Legitimacy Act, 1931, the application has to be made in open court by the child. The object of section 19 is to avoid embarrassment to, and unnecessary publicity for, the persons concerned. Also, there is no reason why an application for a declaration of legitimacy should not be made by the parent of the child.

I trust the Bill will be acceptable to the House. It is the first of a series of Bills on the courts, court officers and juries that I hope to introduce over the next couple of years so that the various recommendations of the courts committee may be implemented. Before I conclude, I should like to express to all the members of this committee my own and the Government's appreciation of the excellent work that the committee have already done and continue to do. We are all very much in their debt.

Mr. O'Higgins

If I did not already believe the Minister is an optimist I would believe it after having heard the last paragraph of his speech where he says that he hopes to introduce other Bills over the next couple of years. Without wishing the Minister any harm I trust that legislation will be introduced but I also trust that it will not be introduced by a Fianna Fáil Minister for Justice.

Mr. O'Malley

A year ago the Senator told me I would not last two months.

Mr. O'Higgins

Accidents will happen. Many of the principles in the Bill will be readily accepted and supported but a number of the provisions, while readily understandable, will have consequences which, to my mind, require to be considered rather carefully before we can give our unreserved blessing to the changes being brought about in this Bill. I should imagine that most people will accept that it was necessary and desirable to increase the jurisdiction of both the circuit and the district court. The extension of jurisdiction being introduced by this Bill for both courts are substantial. I would not disagree with the extensions being granted but I think this extended jurisdiction will create certain problems. One of the matters that come to my mind in this connection in relation to the district court is that when the district court now goes into what might be called a higher field of jurisdiction, as is being done under this Bill, it seems to me it is going to create a situation where we may need some other type of machinery apart from the district court to deal with purely trivial and minor claims.

Traditionally the district court in this country and the magistrates courts in England were the small courts that dealt with minor claims, claims of a comparatively trivial nature. I do not think that that will necessarily be true in the future as far as the district court in this country is concerned. I think that one of the results of the increased jurisdiction will be that considerably more work will be done in the district court and that the time of the district court will be occupied to a large extent by what from past standards would be regarded as comparatively substantial claims.

We possibly have already reached the situation—if we have not already reached it we will when this Bill becomes law—which will require some type of machinery that will be able to deal quickly, cheaply and efficiently with minor claims, minor debt collection cases and minor disputes of one sort or another. I know that in at least one area in England, on a more or less experimental or pilot basis, an effort is being made to deal with this problem on the basis of agreed arbitration machinery. It may be that something of that sort would be worth while considering here. However, the principal point I want to make is that I think the problem will be accentuated now that the jurisdiction of the district court is being extended, broadly speaking, from £50 to £250.

I think the problem as regards the amount of work involved will become very acute in the circuit court arising from the increased jurisdiction there. I cannot talk with any very great knowledge of either district court or circuit court practice. Indeed, I cannot talk with really any knowledge at all of the operation of these courts outside the Dublin Area. However, I get the impression at the moment that the work load already in the Dublin Circuit Court is such that it is causing considerable delay. I would like to be corrected on that if I am wrong, but the impression I have is that it is now a slow, lengthy process to get a hearing in the Dublin Circuit Court.

I do not think there are sufficient circuit court judges even for the jurisdiction the court exercises at the moment. When that jurisdiction is extended—again I am talking in general terms—from £600 to £2,000 it seems to me that the volume of business that will go into the circuit courts is going to increase very dramatically as a result of this Bill becoming law. If that is so, if I am correct in what I believe to be the position as regards delays, delays which are inherent in the present situation—I am not faulting either the members of the Bench or the officials in these courts at all—then the volume of business is going to become four or five times heavier if not ten times heavier as a result of increasing the jurisdiction in what might be called the stock cases from £600 to £2,000.

I should like to know if the Minister has any proposals in mind to deal with that situation. Is it envisaged that the number of circuit court judges will be increased, to try not merely to catch up with the backlog there at the moment but in anticipation of the increased volume of business that will arise as a result of this Bill? I think it is true to say that there is probably fairly widespread dissatisfaction, particularly among non lawyers, with the length of time it takes for the ordinary civil legal process to go through to a conclusion. In that connection I should like if the Minister could give us some statistics as to the average time it takes the various courts, from the time a case is initiated by the issue of a civil bill or a summons as the case may be, to the time the case comes on for hearing and is determined. I should like to know also—this applies really not at all to the circuit court, to some extent to the High Court and to the greatest extent to the Supreme Court—what is the average time taken up by judgments being reserved, how many cases there are pending at the moment for decisions in the Supreme Court and what is the average length of time it takes to get a decision from the Supreme Court when the arguments have been concluded.

If we are going by this legislation to create a situation which will simply pile delay on delay we have got to take stock of that situation. I agree without any reservations at all that there should be increased jurisdiction for the district court and circuit court, but a question of time comes into this. If we are in a situation, as I think we are at the moment, where there are delays which the ordinary person would regard as inordinate delays about getting decisions in the various courts, we have got to take stock and see, when we are increasing the jurisdiction of these courts, should we not make some effort by means of other alterations in the rules of court or by means of increasing the number of judges and district justices to clear up the backlog first before we pile new work on the courts.

That is something that must be thought of and considered seriously. The Minister has come to the conclusion that by increasing the jurisdiction it is going to mean a decrease in the costs of litigation. The Minister is correct when he refers to saving expenses of witnesses travelling, and so on, if a case can be taken in the local circuit court rather than if it has to go to the High Court in Dublin. Undoubtedly, the cost of litigation in that sense would be saved such as travelling expenses and expenses of boarding witnesses in Dublin, if cases can be heard in the local circuit court, rather than in the High Court in Dublin.

May I put this query to the Minister? I have to declare an interest because I am a practising lawyer. Am I not right in thinking that if the jurisdiction of the district court or the circuit court is increased automatically, there must be some revision of costs scales in those courts so far as the legal practitioners are concerned? I simply want to put that as a query to the Minister because I should be failing in my duty here if I did not do so, if I dealt with this merely on the assumption that while the jurisdiction was to be increased, so far as practitioners were concerned they were to operate still within the limits of the same costs scales as under the existing jurisdiction. I should be very surprised to find that that was so and I should like the Minister to clear up the position.

The Minister refers to the position of juries in civil cases in the circuit court and one of the provisions of this Bill is to abolish completely the right to juries in civil cases in the circuit court. I have not very strong views with regard to this matter because I am perfectly well aware that the right to jury trial in civil cases in the circuit court is one that has not been availed of very extensively. I am also aware that there is an anomaly here at the moment. If a person opts to have a jury in a civil case in the circuit court and if there is an appeal against that decision, the appeal is to a judge sitting alone in the High Court, and that is the final court of appeal so far as those proceedings are concerned.

For that reason the usefulness of a jury trial in civil actions in the circuit court was obviously very greatly diminished. On the face of it, it seems to be merely a tidying up operation, the getting rid of dead brushwood, in taking away the right to a jury in the circuit court in civil cases, but it is a matter that we should think about. It is certainly a matter that I should like to think about a little more deeply. Different people will have different views as regards the usefulness of juries in civil cases, whether in the circuit court or the High Court. Some will feel very strongly on this subject.

I cannot bring myself to feel very strongly on it, but I see that there is a certain measure of protection, from the point of view of the litigant, if he can, as a matter of right, opt to have a jury to hear his case. The reason I say that is—and I do not intend it in any way at all as being in the slightest way derogatory of the Judiciary—this is a small country and, in terms of personnel, we have a small Judiciary. Whether we are talking about judges sitting in the circuit court or judges sitting in the High Court, they are few in number in this country: there is merely a handful of them there. Any practising lawyer with a few years' experience probably would be able to spot very quickly the normal form of the members of the Bench in dealing with different types of cases. Because of the comparatively small number of judges here, they will be able to decide that a particular judge is inclined to go heavy in damages in a particular case and that another judge may not be inclined to go so heavy. That situation is likely to arise and to be known to practitioners.

I know that at the moment we are talking about the circuit court only, but if you are to get into a situation where there will be no right to juries in civil cases and once the start is made in the circuit court, it will be easy for a Minister to argue the next step in another Bill. The Minister has indicated that other Bills will be introduced, and he may argue from the ground prepared in this Bill—the right to abolish juries in civil cases in the circuit court—that we have done away with them in the circuit court and let us advance a pace from that and do away with them in the High Court. I simply want to enter a caveat here and to express my doubts as to whether it is wise, in all the circumstances, even with the existing limitations, to take away the right to jury trial in the circuit court.

The Bill deals with things such as the service of documents and I have no criticism of the manner in which it is dealt with in the Bill. Documents in the district court, such as witness summonses and notices of one kind and another, instead of having to be served personally now, may be served by registered post. So far as the other courts are concerned, if the present procedure does not require personal service, then service of documents by registered post will be sanctioned under this Bill for those courts also. That is all to the good.

In my professional capacity, I must welcome the extension under this Bill of the right of audience to solicitors in all courts rather than being confined to the circuit and district courts as at the moment—with the exception of some cases, peculiarly enough bankruptcy cases in the High Court. However, I am not sure that I should go along to any degree at all with what the Minister had to say regarding the unification of the two branches of the legal profession. Here again there is a lot more to be considered, even from a solicitor's point of view, than the kind of casual attractiveness of the proposal for a unified profession. There is a lot more to it than the simple idea of tidying up and of unity within the profession. As things stand now, the smallest solicitor's office in the country, and the clients of the smallest solicitor's office in the country, can for a comparatively modest fee, obtain the advice and guidance of the greatest specialists in the various fields in law simply because there is in this country the system of the separation of the professions as between the solicitors on the one hand and the barristers on the other. That is a privilege which I do not think solicitors would be likely to forego for their clients.

There are various other aspects of this matter on which it is not necessary to argue the pros and cons in connection with this Bill. I am simply following on some remarks which the Minister made on the subject. There are various other arguments on both sides. Experience in other countries has shown that where there is nominal unity in the professions there is, in practice, a division of labours and while having the same status there is the kind of office man or the person who will do the spade work and prepare the briefs on the one hand and on the other there is the advocate who will do the court work.

I shall refer very briefly to the section of the Bill dealing with payments to deserted wives. The Bill does not go nearly far enough. Senator Kelly, on behalf of this party, introduced recently in this House a Bill on this subject which was voted down by the Government party. The reason given was that Government legislation would be introduced. We now have this legislation before us. All this Bill does in that regard is to increase from £4 to £7.50 the payment for deserted wives and allows payment of £2.50 for dependent children. This does not go nearly far enough if even one regards it purely and simply from the point of view of the fall in money values from the time in the early forties when the sum of £4 was fixed.

I am aware that the Minister is taking discretionary powers under this Bill to enable him to vary the figure later on. It seems to me that a much better way to deal with the matter would be the way in which it was suggested in the Bill proposed by Senator Kelly, which was to have it related to the income of the husband. I am disappointed with that provision of this Bill dealing with the treatment of deserted wives.

As regards section 14 of the Bill, I am at a loss to understand precisely what is intended by this. The Minister has given an explanation in his opening remarks. This is the section which gives power to deal with urgent cases of summary jurisdiction. I have no fault to find with the proposal regarding the holding of special courts to deal with urgent matters. It is right that that provision should be here but I am doubtful if the proposal to have cases coming on for summary disposal by the courts, even by the district court, on a two-day summons will work out fairly in all circumstances to the defendant. Forty-eight hours' notice will not be enough to allow the defendant to get fixed up with a solicitor. Even if he were a person who had dealings with a solicitor prior to this and had ready access to a solicitor, it would not be easy for the solicitor, in appropriate cases, to retain and brief counsel within two days, which is the proposal in this section.

I understand that the type of case which was instanced by the Minister, for example the necessity to take urgent action to prevent the spread of foot and mouth disease. I can understand a case of extreme urgency being made there but, even bearing that in mind, I would question the time of 48 hours from the defendant's point of view.

I have nothing else to say in relation to the Bill at the moment. Many of these matters should be dealt with more fully on Committee Stage. Many of the proposals contained in the Bill are essentially proposals that are worthwhile, but, in the context of the existing situation in the courts here I am not sure that the consequences are not such that we should not think a lot more deeply about the timing of this Bill when it will come into operation.

Mrs. Robinson

Like Senator O'Higgins I welcome this Bill. I am glad that the Minister for Justice has managed to have the Courts Bill taken in this session. I also welcome the fact that it is extending the jurisdiction of the district and circuit courts and thereby, as the Minister said in his statement hopefully, cutting down the cost of litigation and making it more equitable for litigants.

Before addressing myself to the terms of the Bill itself I should like to comment on three specific areas that the Minister might possibly consider including in the Bill. Two of them are relatively technical matters and the third is a separate issue.

The first matter arises from a defect under section 13 of the Criminal Procedure Act, 1967 which replaced section 3 of the Criminal Justice Act, 1951. Section 13 of the Criminal Procedure Act, 1967, provides

If, at any time the district court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the court is satisfied that he understands the nature of the offence and the facts alleged, the courts may...

One of the alternatives is mentioned, and then:

(b) if the accused signs a plea of guilty, send him forward for sentence with that plea to a court to which if he had pleaded not guilty he could lawfully have been sent forward for trial.

The problem that has arisen with this section was illustrated by a case which came before the Court of Criminal Appeal in June, 1970, the case was the People, the Attorney General, against Liam Tyrell. In this case Tyrell had been charged with five charges of indictable offences including shop breaking, larceny and robbery. He signed a plea of guilty before the district justice and was sent forward for sentence to the circuit court. In October 1969, he was sentenced by the circuit court judge to three years penal servitude concurrent on each of the five charges. He regarded this as a very severe sentence and he wished to appeal against it. He made an application for legal aid and the Court of Criminal Appeal were forced to conclude that, because he had pleaded guilty in the district court and, therefore, he had not gone forward for trial on indictment, there was no appeal open to him on this point. If I might quote from the judgment of Mr. Justice Henchy in the Court of Criminal Appeal in relation to this. It stated:

The repeal of section 3 of the Criminal Justice Act, 1951, by the Criminal Procedure Act, 1967, coupled with its replacement by section 13 of the latter Act, has resulted in an unfortunate casus omissus in that a person who signs a plea of guilty in the district court on a charge of an indictable offence and is sent forward to the circuit court and sentenced on that plea has no right of appeal to this or any other court. It is hardly necessary to point out that it offends against the fundamental principles of justice and fairness that a person who confesses his guilt and submits to sentence should be left without appeal, no matter how excessive the sentence may appear, while a person who is sentenced after a trial on indictment in which he has pleaded not guilty may apply for and be given leave to appeal to the Court of Criminal Appeal and may be given legal aid to prosecute such appeal. It can scarcely be doubted that this defect in our system of criminal law is the result of a legislative oversight. The remedy, however, lies with the Legislature. All this court can do is to express the hope that the necessary corrective legislation will be enacted as soon as possible.

This judgment was given on the 22nd June, 1970. Mr. Justice Henchy on behalf of the Court of Criminal Appeal urged that this matter be reported back to the Legislature. This is not something which fits into any other scheme: it is a matter which might well be included in the Courts Bill and I urge the Minister to consider the possibility of bringing in a section in this Bill to amend the Criminal Procedure Act of 1967 so that this lacuna can be filled.

The second matter which I would urge the Minister to consider as being appropriate to the Bill relates to costs, In his introductory speech the Minister said that the Government were anxious to keep down the cost of litigation. In relation to this there is another hardship which a person can undergo in the courts: the problem of costs in criminal proceedings. In the case of the People the Attorney General v. Bell, 1969Irish Reports, page 55, Mr. Justice Kenny given a High Court decision to the effect that he felt he had jurisdiction to award costs in a criminal case and this was upheld by a majority of the Supreme Court so that what would be sought here is a statutory provision declaratory of a Supreme Court judgment, the judgment in this case. I quote from the dissenting judgment of Mr. Justice Fitzgerald:

Mr. Justice Kenny appears to have been influenced by what he described in his judgment as a "persistent public complaint" and a citizen's view that it seemed wrong that the High Court should not have power to award costs to a person acquitted on a criminal charge. If there is such public complaint or citizen's view, in my opinion this is a matter to be considered and dealt with by the Legislature and not by the courts.

Then Mr. Justice Fitzgerald dissented from the other judges of the Supreme Court who felt that there was a discretion to award costs.

I am asking the Minister if he would consider a provision declaratory of this judgment to clarify the position that there is a discretion in appropriate circumstances to award costs in a criminal case and that this would be an appropriate Bill to do this.

The third matter I would suggest to the Minister in relation to this Bill is in relation to an amendment of the Juries Act, 1927. I see in his explanatory memorandum that the Minister proposes to deal with other matters relating to courts and juries at a later date. The matter I am putting forward is a minor but important matter and that is: I would recommend to the Minister that he amend the provision relating to the fact that women in Ireland are not automatically on a jury but that under Part II of the Schedule to the Juries Act, 1927, they have to apply specially. In the list of people who have to apply under Part II of the Schedule there are included women and various other professional people such as doctors, dentists et cetera. The position was changed in England as early as 1919 by the Sex Disqualification (Removal) Act of that year which declared that a person shall not be exempted by sex or marriage from the liability to serve as a juror. Women in England, as in most other civilised countries, serve and take the responsibility of jurors.

The Minister may be aware, and if not I can enlighten him now, that this is an important reflection on the position of women in this country in the view of various women's associations and also a reason for feeling that there is a discrimination here purely on the basis of sex. I propose to introduce an amendment to this Bill at the Committee Stage which I hope the Minister will accept. I propose to include in it the similar exemptions for women as the English statutes have included. These are: exemptions for such professional women as mid-wives who are certified and practising as such, women who are avowed members of religious orders living in convents or other religious communities, and also exemption on the grounds of either medical reasons or good grounds for not wishing to hear the facts of a particularly notorious case. This amendment would be in line with the thinking of women in this country and their awareness of this discrimination purely on the basis of sex.

Having made these three points in relation to provisions which are not included in the Bill but which I should like to see included in it, I will now turn to the scope of the Bill itself and the various matters arising out of it.

The first matter with which I should like to deal is in relation to the abolition of juries in the circuit court. Here I agree with Senator O'Higgins who made the point that juries ought not to be abolished in the circuit court. I would agree with him that juries are comparatively rare now but they are an important element in certain types of cases. The types of cases which come to mind are, in particular, defamation cases. Also I note that juries are abolished under section 44 of the Succession Act, 1965, and I do not think this is a good idea because the application to have a jury on a question of fact under the Succession Act is generally in relation an action when a will is being contested and it is often better to have the jury assessment of whether a person was of sound mind and disposition when making the will if there is a family quarrel about it.

The Minister in his opening statement said that the committee on court practice and procedure recommended the abolition of juries in the circuit court in civil cases and this may have been because there was a feeling that they are not much used in fact. However, the jurisdiction of the circuit court will now go up to a ceiling of £2,000. Defamation proceedings, including almost all slander actions which one can think of and a great many libel suits as well, are matters which are better determined by a jury.

The Minister mentioned in his opening statement that there is an appeal from the circuit court, a rehearing in the High Court—that would be a rehearing by the judge—yet the Minister must be aware that judges take the assessment of a jury on matters such as defamation and they very rarely set aside a jury verdict because they regard this as being the best assessment of the facts. Therefore, I would urge the Minister to reconsider this. On the question of administration, as the Minister is aware, the jury panel must continue for criminal cases in any case and the machinery for empanelling a jury exists in every county. The jury systems, therefore, is not imposing any great burden. It is not being abused by the profession in order to delay or increase the cost of litigation and it is a very useful device in certain circumstances such as I have mentioned.

In relation to section 16 of the Bill, which gives solicitors the right of audience in all courts, I personally welcome this provision. It is a very appropriate amendment that solicitors are permitted a right of audience in every court, from the district court to the supreme court. In many cases there are matters which a solicitor may very appropriately handle in relation to a case. The fact that he had to brief council in such matters leads to delay, to increased cost of litigation and is not necessary.

I would agree with the Minister that the existing right to appear in the circuit court, is not very often exercised by solicitors. I would submit that in substantial cases very few solicitors would exercise the right to appear in the High Court or Supreme Court, but in matters where they wish it they ought to be permitted to do so. I am not completely happy with the way in which section 16 is worded. The Minister appears to desire that a solicitor who is "acting generally"— again I am not quite sure what that means—for a party in an action or matter will have a right of audience in that court in that action or matter.

I should like to suggest to the Minister that in order to achieve that effect he ought to add at the end of section 16 some wording to the effect of: "In that action, suit, matter or criminal proceedings". Otherwise the situation would arise that a solicitor would be acting in a particular matter, say in court 4 on a Monday morning, and when that matter was ended, as the section now reads, he appears to have general right of audience in any other matter which comes up. I do not think this is what the Minister intended. It is a matter, perhaps, more for Committee Stage than for now, but I mention it at this point.

In relation to section 8, on the question of jurisdiction of the district court, I note in the explanatory memorandum which the Minister circulated a few days ago that there was much division of opinion as to the appropriate jurisdiction of the district court. Two members of the court committee recommended a £500 ceiling, five members recommended £200 and five members recommended £100. Out of a committee of 12, ten members recommended £200 or under.

I have noted in the Law Library in general there is a feeling that the ceiling for the district court is too high at £250 because that will mean usually about a half-day's hearing on a matter of £250. This will be a cause of great delay in the district court. There is a considerable questioning as to whether the district court offices are suitably geared at the moment for this type of case. The consensus appears to be that £100 would be a more appropriate ceiling in relation to the district court. I have said all I wish to say at this point on the Bill. I will, depending on the response of the Minister to the points I have raised, bring in amendments on Committee Stage.

Mr. E. Ryan

I should like to welcome this Bill for the number of important changes and innovations which are in it. The extension of jurisdiction of the circuit court and the district court are certainly required. In general, I agree with the amount of the extension.

The circuit court jurisdiction for civil actions has been increased by slightly over three times what it was in 1953. The nearest equivalent I can get in regard to the value of money is that £1 in 1955 is now equivalent to 52p. It is clear that not only does this extension provide for the fall in the value of money but it is giving a substantial increase in the jurisdiction of these courts. This is desirable and is a good thing. In any event, by the time another amendment is made to this Bill it is probable that the value of money will have fallen still further. Consequently, this is making some allowance for the fall of money in the future.

In general it can be argued that there is a good case for having, in real terms, an extension of jurisdiction in the circuit court and district court. When these extensions come into operation it will mean that the circuit court will have a good deal more work than it has at the present time. If the amendment has the affect which is desired by the Minister, then inevitably the circuit court will have considerably more work than it has at the present time.

There are a great many cases, negligence cases, running down cases, factory accident cases and so on in the High Court at the moment between £600 and £2,000. I have heard an estimate made that approximately one-third of the cases which are at present taken in the High Court would probably be taken in the circuit court if this extension comes into operation. This will mean very much greater work for the circuit court. The question which naturally arises is whether the circuit court will be able to deal with the extra work. In regard to that it is clear enough that some of the circuits at the moment are able to cope with the amount of work which they have and probably have some leeway for extra work. On the other hand, there are other circuits—in particular, the Dublin Circuit Court—where the business is already very much in arrears, and it seems to me impossible that the Dublin Circuit Court could cope with the extra work which it will be provided with under this amendment.

Consequently, I think the Minister should face up to the fact that, if and when this amendment comes into operation, this extension of the jurisdiction of the circuit court, it will be necessary to appoint one or more extra circuit court judges. Of course, I realise that any proposal on his part to do this will be fought very hard by the Department of Finance and that the extra cost will be, like everything else at the present time, something the Minister and the Government will have to seriously consider.

It should be stressed that whatever the cost may be—the cost of appointing one extra circuit court judge will not be astronomical; it is possibly a matter of £10,000 or something of that nature— it must be compared by the Government with the amount of wasted time and money on the part of litigants, on the part of the professions, witnesses and everybody concerned. That must be weighed by the Government against the cost of appointing another judge.

Consequently, I would ask the Minister, if and when the time comes, to bear in mind the cost to all those concerned in court of not having a sufficient number of judges, of having delays and so on. This is something which should not be minimised. It may be only a small thing for everybody concerned or it may be a big thing but the gross effect, the cumulative effect, the total effect on all concerned certainly far outweighs any extra cost that might be imposed on the Government by appointing an extra judge, or extra judges as the case may be. In this connection it is not only a question of cost it is also a question of justice being done and justice being seen to be done. In view of the Division in the other House, is it the wish of the House that I should continue?

Acting Chairman (Mr. McDonald)

It is a matter for the Senator in possession.

Professor Kelly

On a point of order, without wishing to interrupt Senator Ryan, I understand the difficulty of the Minister very well when he has to be elsewhere. I feel it must be made plain that the privileges of this House so far as they are reflected in the Standing Orders of the House do not require the attendance of the Minister on the discussion of a Bill. He has got a front bench of his own party and, while as a matter of courtesy I am certain this side of the House would willingly facilitate him and suspend the debate, I think it should do so only having made it absolutely clear that the Standing Orders do not require the presence of a Minister during this or any other kind of debate.

Acting Chairman

The Senator asked what he should do. I think the procedure here has been that the Senator in possession can decide to continue in the absence of the Minister or he can wait until his return.

Professor Kelly

I do not wish to prevent Senator Ryan. Whatever Senator Ryan chooses will not be opposed by me or, I am sure, by anybody else on this side. I thought it well to make it clear that, if Senator Ryan elects not to continue, it is to be interpreted only as a gesture of courtesy on his part and will be acquiesced in by us only as a gesture of courtesy and not in any sense as recognising that a debate here cannot be conducted in the Minister's absence.

Mr. E. Ryan

I think as we have taken so much time discussing whether we should go on or not that it might be just as well to wait until the Minister returns.

Business suspended at 4.45 p.m. and resumed at 4.55 p.m.

Mr. E. Ryan

I was asking the Minister, if and when the time comes when it appears necessary to appoint another judge or judges to weigh the cost that would entail to the Government against the cost, frustration and the lack of justice, in the real sense of that term, which occurs when cases cannot be heard within a reasonable time, when cases have to be adjourned and when there is an unsatisfactory system created by the failure on the part of the court to take cases within a reasonable time.

Under the provisions of the Bill juries have been abolished in the circuit court. As the Minister mentioned, such juries were rarely availed of. I, like some of the other speakers, am not apprehensive that this might lead eventually to abolition of juries for civil cases in the High Court. I think it would be a very good thing if this took place. We will have when this Bill comes into operation, no juries for many cases which had juries up to the present time. It has been estimated that approximately one-third of the cases which were taken in the High Court will now be taken in the circuit court. These were cases which, up to now, had juries but will not have juries in the future.

When we have reached the stage where juries are considered not necessary, up to a jursidiction of £2,000, it is very hard to understand the argument that they must be necessary for cases over £2,000. Obviously, there is no principle involved; it is merely a question that at a certain stage a jury are necessary, and at a certain stage, they are not. In principle there can be no real argument why a person taking a case over this magic figure of £2,000 is entitled to a jury. A case taken by a man who is claiming £1,900, and hoping to get £1,900, is just as important to him as to a man who is claiming slightly over £2,000. If a jury is necessary for a case of over £2,000, it should be necessary for one just under £2,000. The converse is true, that if it is not necessary up to £2,000, it is difficult to see what real argument can be adduced to say that it is necessary over this figure.

Juries for the kind of cases with which I am dealing, civil actions running down cases, factory accident cases, have been abolished in Great Britain for many years. In general, it has been found that there was no adverse result in getting rid of juries. The cases there are dealt with just as efficiently and in as fair a manner, with justice to all concerned. We should bear this in mind when we are considering the future of juries in the High Court. We are now abolishing them in the circuit court and the arguments in favour of extending this to the High Court are very strong. As a result of my experience practising in the High Court, I never believed that there was any strong argument in favour of having juries. I am not saying that juries were a failure, or that there has been any lack of justice to litigants in having juries. On balance, I have no doubt that the arguments are stronger against juries than in favour of them. In certain cases where negligence is being contested, the views of a jury of 12 reasonable men are of some assistance to the court in deciding whether a particular action was negligible. That may be in certain cases, but in general a judge would be fully able to decide this for himself.

However, when we come to the cases of assessment of damages, the juries are asked to do something which is quite unreasonable. It is simple enough for a jury to decide on the basis of how long a man was out of work and what loss of wages he sustained, and so on, and what medical fees he should get. However, whenever you ask a juryman, particularly one who has never been in court before, to assess the value in money of the pain and suffering represented by a broken hip, or something like that, naturally he has no idea how you can assess general damages, or pain and suffering, in terms of pounds and pence. In this kind of situation, a juryman is being asked to do something for which he has no qualification. He is asked to do something which is really impossible for him to do with any accuracy or in any reasonable way. In the end he thinks of a figure, or possibly the whole jury think of different figures, and they are all added up and divided by 12, which happens very often, and you get a figure representing general damages. Very often, the award by the jury is not unreasonable. In most cases, whether it is unreasonable or not, it is accepted by both parties as something which cannot be upset on appeal.

There are many cases where the decisions by juries are so unreasonable and so perverse that they lead to appeals to the Supreme Court, new trials and sometimes other appeals. Therefore, the experience in having juries is certainly such as to make the Minister, or anybody considering the future of juries, consider very carefully whether, on balance, they have justified themselves and, on balance, if juries should be continued for ordinary civil actions—running down actions and actions of that kind. There will always be a case for having a jury in certain kinds of litigation, defamation, possibly will cases and a few cases of that kind.

In general, the argument for continuing juries is a weak one and should be reconsidered. The judge tells the jury what the law is, and they have no discretion in deciding but they have to apply the law to the facts of the case. However, if you had a judge to decide on the question of negligence, and in particular to decide on the question of damages, a pattern would emerge of what was a reasonable figure for a certain kind of injury and you would have far more consistent awards than obtain at present. If you had consistent awards, if a member of the profession could predict in advance with reasonable accuracy what a certain jury was worth, then the probability is that the case would be settled, you would discourage unnecessary litigation, costs would be cut very considerably, and the end result would be a good deal more favourable than the results from juries at present.

Apart from the erratic results which often emerge from juries, there is the undoubted increase in cost as a result of having juries. In the High Court, or in the circuit court up to now, where there has been a jury, there must be speeches to the jury by counsel on both sides, an opening and closing speech, and the judge has to charge the jury. This means that many cases which could easily be done in one day take two days; a case which could be done in two days, takes three, and so on. The extra time involved in the necessary speeches and the charges to the jury increases the length of cases, and very much increases the cost of cases. This is something which the Minister mentioned in his opening speech and is something of which everybody connected with the legal system is conscious at present— the costs involved in litigation. Anything which would minimise or decrease the cost of litigation is something which should be very carefully considered. The elimination of juries would be helpful in this regard.

The arguments in favour of having juries are somewhat difficult to grasp at times. In general, the feeling is that a jury are more likely to be sympathetic to a plaintiff who has what really amounts to a poor case. If the plaintiff has an unanswerable case he will probably get a good settlement anyhow. If he has a good case a judge will give him what he is entitled to having regard to the facts of the case. Many of those who argue in favour of juries are merely arguing on the basis that a poor case will get more sympathy from a jury which means that a plaintiff who does not deserve to succeed may succeed in doing so before a jury or that a plaintiff who does not deserve to get much in the way of damages will get quite a lot from a sympathetic jury.

Again, some who argue in favour of having juries do so because of the known predilections of certain High Court judges. One of the High Court judges is commonly believed to be unduly sympathetic to plaintiffs and another one is believed to be unduly sympathetic to defendants. There are idiosyncracies on the part of certain members of the Bench. It would be a very bad thing to base our system of law on any such idiosyncracies. Even though there are some judges who may or who may not have these leanings, it should be ignored and the legal system should be approached on the basis of what is the best system in an objective way. Generally speaking, I am convinced that better decisions would be obtained, and, in the long run, justice would be done at a considerably lower cost by having civil actions tried in the High Court by judges alone.

Finally, juries have a serious affect on the costs of motor insurance. Juries give very much higher awards in many cases. Anybody who compares awards for damages in this country with awards for damages in the courts of Great Britain will find that, on average, awards here are almost twice what they are over there. This factor, and the fact that costs are made higher by having juries, means that damages are higher and motor insurance is higher. This strictly speaking, does not arise from the Bill, but it has an effect on another aspect of public affairs which at the moment is very much in the news—the question of high motor insurance. For these reasons I recommend the Minister to consider extending the abolition of juries to the High Court as well as to the circuit court.

Section 12 of the Bill states that the district court shall be a court of record. I am intrigued to know what exactly is intended by this section. On the one hand, it may merely mean that the district court shall be a court which may fine or imprison for contempt as well as for substantive offences. The exact definition of a court of record is difficult to come by. There are many different definitions. Hallsbury has quite a lot to say about it. One of the references to a court of record is: a court where the proceedings are preserved in its archives and are called records and are conclusive evidence of that which is recorded therein."

I mention that because if the intention is that the court of record should be one in which more records are kept than are kept in the present district court then this seems to be inconsistent with section 13 which says that: "the only thing which may be considered in regard to any proceedings in the district court is the order of a justice drawn up and signed by him in accordance with the rules of court or a copy thereof." Accordingly, I would be interested, when the Minister is replying or when we are dealing with these sections on Committee Stage, to know which of the various definitions of a court of record was in the mind of the Minister and the draftsman when section 12 was drafted.

Section 16 deals with the right of audience of a solicitor. I am not in any way opposed to this section. I am completely in favour of it for what it is worth. I wonder if it worth very much. The Minister said he hoped that this section would stimulate debate on the amalgamation of the professions. I am sure it will stimulate some debate. We are having some in the Seanad already. Although the solicitor's profession had the right of audience in the circuit court up to now they rarely, if ever, availed of it. They rarely availed of it for very good reasons. For instance, the work connected with litigation falls into two fairly clearcut divisions: the preparatory work, what can be called in a general way the office work, and the court work. In general solicitors prefer to approach litigation by doing the office work themselves and by handing over the advocacy to members of the Bar.

Consequently, although it is only right that members of the solicitors' professions should have the right to appear in any court if they so wished, this will be something which will remain an academic right or a theoretical one which will rarely, if ever, be availed of.

The Minister, when talking about amalgamation, gave this as an example of what he thought might be a first step towards amalgamation. Amalgamation has been discussed for many years and there are some pros and cons. It seems to be a good idea to amalgamate professions or, in a general way, and to approach it from another direction, it seems to be unnecessary to have two different professions.

It seems to be unnecessary to have to consult a solicitor and to subsequently employ a member of the Bar to take a case to court. There is no doubt that amalgamation would be feasible to a certain extent. There would be no technical difficulties in having one profession and allowing them to do whatever kind of work they thought best or whatever kind of work they could get.

I wonder whether the advantages of amalgamation would be very great or would there be any advantage at all. For a big Dublin firm of lawyers, amalgamation might be a very useful innovation because where you have seven or eight partners, if amalgamation took place, quite obviously some of the partners would do the office work, to use a general term, and some would take charge of the cases in court and do the advocacy. This would be quite a satisfactory and workable situation for such a firm.

In the case of a small firm in the rural area, a solicitor running his own business, this would be no advantage whatever. At the present time a solicitor who runs his own business in a small town, probably does most of the district court work himself: he employs a junior counsel for the circuit court and if he has an occasional High Court case, he employs whatever senior counsel may be necessary to look after the High Court case. So he has a great deal of flexibility in being able to do the work himself in some cases, or being able to employ whatever kind of advocate is suitable for whatever kind of case he has at any particular time.

If amalgamation took place, this solicitor would certainly be at a disadvantage as compared to his present position. He might do most of the circuit court cases himself, but, obviously, it would be impracticable for him to come to Dublin for the High Court cases. Instead of the case being his own, in which he would employ such counsel as necessary, he would have to hand it over to a firm of lawyers in the city, and this would be no improvement so far as he would be concerned.

The advantages of amalgamation are exaggerated. For the situation in this country, particularly for solicitors in rural districts, solicitors who run their own business, the present system has a great deal to recommend it. Amalgamation, although superficially appearing to have many advantages would only be of advantage to large firms and not to small ones. I agree with the Minister when he says that we must have regard to our probable membership of the EEC in the near future and that in so far as possible we must try to bring our legal system into conformity with the legal system of the countries which will be in the Community. I do not believe it is essential that we should have amalgamation to be a member of the Community. In fact, very little progress has been made in regard to harmonisation in the legal field. It is one field in which little progress has been made and this is without the complications of the two professions which we have in this country. They already have many difficulties regarding harmonisation of the legal system in the six countries of the Community and the fact that we have the division between our two professions is not likely to be a major cause of difficulty in the future. If they can solve some of the difficulties they have at present, this local problem of ours could also be solved in some way or another in future.

In general I think this is an important Bill. It has very useful improvements and innovations, and I welcome it.

Professor Kelly

This Bill is a small crumb of the law reform programme promised in 1962 when Deputy Haughey was Minister for Justice. A document entitled Programme of Law Reform was laid before each House of the Oireachtas in January of that year. Looking through this document which is now old and frayed, I find that a very large number of subjects have not yet been touched by reforming legislation. There are some matters which will be of lesser interest than others, but let me briefly tell the House the matters which are still outstanding and some of which, in my view, are of greater importance than anything in this present Courts Bill.

We have not yet got the State Proceedings Bill promised in 1962, the object of which would be to make sure that damage caused by the negligence of a State servant in some way other than through the negligent driving of a State-owned vehicle could be the subject of an action by the person injured against the State in exactly the same way as it would be against a private individual, That legislation has been repeatedly put on the long finger despite questions asked every few months in the Dáil. It was the subject of legislation in Britain in 1947 and possibly the Department of Justice feel that the decorous interval which usually elapses between law reform there and law reform here has not been long enough yet. In my view, it is more than long enough and it is high time we had a State Proceedings Bill and that the Minister in charge of the Department made sure that it was introduced in one of the Houses of the Oireachtas immediately.

The same applies to the reform of the law of contracts, also the subject of one of the chapters in the Programme of Law Reform. The same applies to some elements of the criminal law in which reform was foreshadowed, for example, the statutory amendment of the McNaghten Rules governing insanity in criminal cases and the guilty but insane verdict in criminal cases. I am aware, though not a specialist in the matter, that the McNaghten Rules are under some judicial disfavour at the moment, because of a charge to a jury in a criminal case given by Mr. Justice Henchy a few years ago. That, to me, does not put that matter beyond all doubt and there is no excuse for prolonging the delay before we have a proper statutory amendment of this approach to insanity in criminal matters.

The law of evidence was another chapter dealt with in this law reform programme which has not yet been the subject of a full reforming Act. The reciprocal enforcement of judgments between this country and other jurisdictions was another element in the law reform programme which again has not yet been the subject of amending legislation. I realise that the matter is not a simple one and that the cooperation of other Governments is, by very definition, necessary. Nevertheless, there has been, particularly in an area central to this Courts Bill, no proper legislation forwarding the question of reciprocal enforcement of judgments.

The last of these important topics is the question of malicious injuries. This antiquated and, in my belief unconstitutional system whereby the ratepayers of a district are made to pay for damage maliciously inflicted within their district, whether inflicted by somebody living in that district, or not. An inter-departmental committee, which did not consist of lawyers but consisted of civil servants, made a very sensible and workmanlike report on this matter some years ago in which they recommended basically no change or only peripheral change. That report seems to me to be a poor reason for throwing overboard the legal considerations which must weigh very heavily against this absurd system which can scarcely be believed when I find myself explaining it to people on the Continent.

Every day when we open the paper we read a Minister's speech of what we are going to have to do in the EEC. The EEC does not presuppose this or does not presuppose that. Is there any country in the EEC with a system so absurd as our malicious injuries code? Yet it remains on our Statute Book and the reason it so remains, in my belief, is simple lethargy, inertia and incompetence. These are the only reasons because the reasons given by the inter-departmental committee do not stand up to serious examination.

These are areas in this law reform programme which, although now pushing on for ten years old, have not yet been dealt with by legislation. This Bill is a fragment or crumb of the legislation promised in part 3 of the law reform programme. For myself, and I am sure I speak for the majority of my side, I have no objection to the idea of increasing the jurisdiction of the various inferior courts. What I cannot understand is why it should have taken so long to do this. I know the Minister is anxious to have this Bill quickly through this House and the other House and probably there will be no great encouragement of Senators on the other side to hold him up by speaking. But if they were encouraged so to speak, I have not the least doubt that I would be hearing some of them thanking the Minister, congratulating and complimenting him on this piece of legislation and welcoming it.

My welcome has grown cold. This piece of legislation, so far as the increase of jurisdiction is concerned was recommended by a committee on court practice and procedure over five years ago. Before that Committee reported it was common talk in the legal profession when I was practising at the Bar, which I did for a couple of years, 12 or 13 years ago, that the jurisdictions of the inferior courts were going to be increased. But everything moves at this snail's pace with this Government. Why should that be so?

I read in the Dáil Official Report recently where Deputy FitzGerald said in regard to the Higher Education Authority Bill that measures which in an ordinary concern in the private sector of life would take days or weeks take months or even years, once the Government get involved. There is no reason for that. I know there may be complications in other sections of the Act, but these particular sections, the earlier sections extending jurisdiction, could quite easily have been enacted five years ago or ten years ago for that matter. The degree to which the jurisdiction is being extended is something which I do not disagree with. My criticism is limited to the unpardonable delay in bringing this legislation forward.

It is worth saying—and it is something which nobody has said so far in this debate — that the circuit court system in this country is one of our few native inventions since independence which has been an unqualified success. It is one of the few instances in which this section of the Irish people, through their Government, struck out for themselves, turned their back on the English model and did something in a way which they thought would suit themselves rather than copying it line for line from English legislation.

The first Minister for Justice in the Government of this State, Kevin O'Higgins, piloted the 1924 Courts of Justice Bill through the Dáil and Seanad and that was the Bill which established basically the bones of the system of judicature which we have today. It may have faults; we know it has faults—and it is being improved by amending legislation from time to time — but this simple system of inferior courts, a Circuit Court and a District Court, was an invention of the Department of Justice of those days, of the Minister who commanded it and of the Dáil and Seanad who enacted it.

That is something to be proud of. It was a system which had the idea of bringing the law to the people. To that extent I commend this Bill because in extending the jurisdiction of these inferior courts it is going to make it possible for more litigation to be done on the ground at local level instead of sending people up to Dublin for it. But that was the idea behind the Circuit Court system, to make a unified court which would be a kind of a young brother of the High Court with a very far-reaching criminal jurisdiction as well as a civil jurisdiction. I am speaking offhand now, but I think the circuit court always has had jurisdiction in all criminal matters except murder, treason and piracy. I may not be exact on that, but certainly in all the major crimes, which in Britain would be the subject of a full-scale assizes presided over by a High Court judge going round the country, these have been done satisfactorily here in the circuit court for nearly 50 years.

It has been a very successful native invention, adapted to native use inspired by native needs. It is a thing we have seen far too little of. It is worth seeing more of it and this Bill is intended to strengthen and extend the jurisdictions of these inferior courts which, unlike so much of the administrative and judicial machinery and other kinds of machinery with which we have to work, are our own invention. They work quite well and we should be proud of them.

Mr. Honan

In point of fact, did they not supersede the assizes?

Professor Kelly

It superseded them certainly.

Mr. Honan

They were just called a different name.

Professor Kelly

No. I do not want to bandy words with Senator Honan but the circuit court here is unique. It does not correspond to anything that went before it and it does not correspond to anything in Britain. The circuit court here has a very wide range in criminal jurisdiction and the same judge, sitting in the same court in the same week, can hear civil cases as well up to what is, at any given time, a fairly substantial figure. That is not the case in Britain and it was not the case here before that time. The old county courts here, for example, had no criminal jurisdiction.

Senator Ryan spoke about the necessity for more judges. I do not want to repeat what he said except to add my own voice to his advice. If this jurisdiction of the circuit court is increased we are going to have more circuit court judges. The backlog in Dublin so far as I can gather from the hearsay of friends of mine in the profession is very serious indeed and despite the best efforts of three judges in the Circuit Court in Dublin it is a cause of definite grievance and inconvenience to litigants. Even now, as Senator Ryan said, there are not enough Circuit Court judges in Dublin. There are going to have to be more now all over the country, in my belief, because litigation is simply going to flood into the circuit court as well as into the district court when this Bill is passed. That is as it should be. It is perfectly right that litigation should be kept in people's own area. There are, perhaps, special reasons in sensitive criminal matters for having a man tried in some district other than his own, and that may mean having to send him to Dublin to get a jury which is not inflamed by local sentiment. That kind of thing is, of course, an exception.

Generally it is right and proper that this part of the Bill should be permitted to do what it sets out to do, namely, to give more significance to the courts at local level. Incidentally, although I realise it is important to the good administration of justice, it will save expense and inconvenience to the people who live there and save them the trouble of having to come to Dublin for their business.

I do not neglect the effect which this is going to have on the profession of which Senator Ryan is a member. It is going to mean that a lot of barristers who up to this have been doing most of their work in Dublin will now find that a lot of work is being kept in the country and that they are going to have to carpetbag up and down to circuit towns more than they used to do — either that or forego some of the work which they had come to take for granted. That is going to be an inconvenience to them, and I am sure I speak for many others on both sides of the House when I say that I regret it. But, balancing it against the public convenience, I think the increase in the local jurisdictions far outweighs the inconvenience to the professional people who are going to be involved.

Before I pass from the subject of the courts and delay, let me say that a good deal of the delay in the courts — this is not strictly relevant, but Senator Ryan was allowed by the Chair to speak for a long time about jury actions in general, not in particular with regard to this Bill and I hope I will be allowed to say this much — is not entirely due to the shortage of judges. The sort of delay which is backbreaking for a litigant, I think, subject to the correction of the solicitors in the House, is very often due to the lackadaisical manner in which pleadings go back and forth. There are times laid down in the rules of court for the doing of certain things, but it is conventional among the profession that one does not push one's colleague too hard, that one makes allowances for difficulties which he may have with counsel, and much time is wasted in that way. I do not wish to minimise the difficulties which the legal profession has to endure. I am not suggesting that Senator Ryan meant it in that way, but it would not be fair if it were suggested that the shortage of judges is the only reason for long delays in litigation. It is not the only reason. If the rules of court were tightened in such a way as to make it impossible or more difficult for the members of the legal profession to facilitate one another in this way — I realise that I am saying something perhaps unwelcome to friends of my own by making that suggestion — that probably would cut out a good part of the delay of which the public nowadays complains.

In regard to section 6 and the question of cutting out the juries in the circuit court, in the three or four years in which I practised at the bar, I only once saw a jury hearing a civil action there. It is a thing of the greatest rartiy and what I am afraid of, as Senator O'Higgins has said, is that this is simply the thin end of the wedge. There is no public demand for taking juries out of the circuit court in civil actions. There could not be because they are rarely used. I do not think that as a piece of dead wood it is so significant as to warrant being repealed by specific inclusion in a Bill of this kind. I can see no reason for not leaving the juries in the circuit court; they are hardly ever invoked. When they are invoked it is by a litigant who has what he feels to be a serious interest in getting a jury to try an issue of fact. I am inclined to suspect this section as being the thin end of the wedge, the fat end of which will be the demolition of juries perhaps in some criminal matters but certainly in civil matters in the High Court.

Senator E. Ryan in this regard gave a "on the one hand" and "on the other hand" kind of speech. I did not take him in the end to have come down absolutely against the use of juries in the High Court, but he seemed to be against juries in a wide range of places in which they are now used. I think if the Minister does intend, for so long as he and his Government are in office, to do away with juries in the High Court, they should say so now. This is the way to do it. I think to insert the thin end of the wedge quietly, unobstrusively, by doing away with juries in a case like this where they are scarcely used is not the frankest way of proceeding. I may not be correct in thinking that that is what the Minister or his Department have in mind, but since there is no public demand for what is proposed in section 6 or any serious reason for doing it, it seems to me very likely that the ultimate aim of section 6 is to clear the ground for a frontal assault on the jury system in the High Court as well.

Section 14 is a section which deals with a specific type of summons which can be served in such a way as to require the defendant to appear 48 hours afterwards. I realise that the district justice of any court has a jurisdiction and a discretion to extend a time and to grant an adjournment. I do not want to give the House the impression that I imagine that this means that, within 48 hours, everybody who receives a summons of this kind is going to have to answer there finally for whatever he is charged with. I presume it will be possible for him to appear and say: "I want an adjournment. I have not had an opportunity to consider my position. I have not had an opportunity to consult a solicitor or my solicitor has not had an opportunity to consult counsel." I have no doubt that the majority of district justices will grant an adjournment in this kind of case. I do not like to see this kind of provision going in unless it is absolutely necessary.

I remember the foot and mouth outbreak quite well, as I am sure the other Members of the House do, and I must say this in the Government's favour, that I admired the firm way in which the outbreak was controlled and I have nothing but respect for the resolution with which that very serious threat was confronted. If all that was in the Minister's mind or in the mind of his Department here was to make it possible in a case of this kind to summons people, and punish them quickly so that it could be seen that the Government meant it when it said: "You must not come into the country if you have been in contact with infected animals," I would not mind. But I feel that this House at all times, as I said the other day when we were looking at the Higher Education Authority Bill, must look at legislation not in the light of what the present Minister is advancing in favour of it but in the light of what some future Minister may extract from it.

I do not want to raise a scare or grab a headline, but what may be in the mind of somebody in the Minister's Department in promoting this section — I do not wish to be offensive or contentious — is the use of it in the context of political offences. If that is what is in his mind that section does not belong here but belongs in an amendment in the Offences Against the State Act; or if it does belong in a Courts Bill the Minister should frankly tell us that this possibility is also envisaged. It will be no good to a defendant, in a case like this tried in a drumhead district court on a 48-hour summons, to say: "Mr. O'Malley back in 1971 told the Seanad that it was intended only for the kind of case of which he gave an instance in the foot and mouth outbreak problem." That will be no good to him. The justice will not have any jurisdiction to take that kind of argument into account. If there are — I will not say "more sinister things"— political necessities and considerations of security in the Minister's mind or in the mind of anyone in his Department which might drive a Government towards this kind of law, we should be told them now. The Dáil should be told them when the Bill reaches the Dáil.

In connection with section 16 and the right of audience of solicitors, Senator Ryan's evident lack of excitement or indignation for the sake of his own profession clearly enough shows that this section is not going to amount to a threat to the Bar. There is no question of the bread being taken out of the mouths of the barristers' profession. As the Minister said in his opening speech, the right of audience for solicitors has already existed in the lower courts, in the district and circuit courts, for many years. It has perhaps been there since 1924 — I am not positive about that but it has been there for a long time. The Minister said that "although solicitors have at present a statutory right of audience in that court their appearance is not, I regret to say, encouraged."

Who is discouraging them? The Minister has practised as a solicitor for some years. Was he ever discouraged from appearing in the circuit court if he wished? If so, I wish he would tell us how or who it was who prevented him and what means were used to discourage him. In the few years that I was in practice I do not ever remember a solicitor being discouraged, certainly not by the Bar, from appearing if he wished to appear. I do not recall that any judge before whom I practised or whom I ever saw in action tended to behave unsympathetically towards a solicitor who took it on himself to do a case by himself. I think it rarely happened, but that is because a doctor, although he probably would not be breaking the law by doing so, would prefer to get a dentist to carry out a jaw operation or to draw a tooth. It is exactly the same thing which might lead a doctor, instead of doing instant surgery himself with a small scalpel, to refer the man to a specialist surgeon.

Solicitors have never been discouraged from practising in the circuit court so far as I know. If they have the Minister should tell us what form that lack of encouragement has taken. If they have not done it, it is because they are better at their own job, just like every other man is. They are better at their own job of running their office, dealing with their clients and providing a buffer between the client and the person who is going to be arguing for him in court. That is the thing they are good at and that is what in my own view they are wise to stick to. I am not against their being given the right to practise in any court in the country. I do not wish to put words into the Minister's mouth which he will tell me afterwards that I put there for party political reasons.

If the Minister wants to produce this change in our law I think it ought to be put fairly and squarely on the basis that solicitors should not be discouraged from making the most of their gifts. If they feel they have got a talent for court work let them do court work. That is fair enough, but to imply, as the Minister has done, that this is not encouraged by some other force in our society, by the profession of barristers or by the courts themselves, is wrong. If I have misunderstood the Minister in this regard he will have an opportunity later of correcting me.

The Minister mentioned, with regard to the audience of solicitors in the High Court and Supreme Court, that this would be an enactment which would help, amongst other things, to stimulate debate on the desirability of having a unified legal profession. Are we to take it that the Minister is seriously promoting legislation in order to stimulate a debate on this point? Surely he has got things the wrong way round. Let us have the debate first and then get on with the legislation, if necessary. My own impression is — although I have no vested interest in the matter at all — that the strong consensus of opinion among the legal profession in Ireland, both parts of it, is against consolidation or amalgamation. That is my own personal impression. Perhaps the Minister has statistics which will effectively contradict that impression.

I do not mind if the Minister or his Department approach this topic and say: "Here is something which we could tidy up. Let us put other matters in the law reform programme on the long finger and tidy up the legal profession first." That point of view may not be very damaging to anybody. However, I cannot see the relevance of the European Economic Community to all this. The Minister, in his speech, says:

In few other countries in the world is the legal profession divided in the same way as ours is and the Common Market and its institutions presuppose the absence of any division such as ours in the legal professions in Member States. Our position will give rise to some difficulty when we assume membership.

I am not an EEC specialist but I should like the Minister to tell the House what are those difficulties? If the legislation which he is now promoting is passed it will give solicitors and barristers exactly the same right of audience before all courts in this country. What is to stop any member of either branch of the profession from appearing before one of the judicial instances of the European Economic Community if they multiply? I can see absolutely nothing to stop them doing so.

There seems to me to be a hidden piece of disingenuity in this statement of the Minister which reproduces almost word for word a passage in a speech which he made to the Incorporated Law Society in April. When the Minister says that "the Common Market and its institutions presupposes the absence of a divided profession" what are we to understand by that statement? What is contained in the Treaty of Rome which presupposes the absence of a divided profession? In other words, what is contained in the Treaty of Rome which relies on the presence of a united profession? There is nothing that I know of. It is important to ensure that a body of treaty law like the Treaty of Rome, and the instruments made under it, may very easily not presuppose something just as they do not presuppose green letterboxes. It does not mean that we have to stand our legal system on its head in order to assimilate the systems that exist in other member countries.

Are the British falling over themselves to amalgamate their profession? I am not anxious, by any means, to follow their example — I have made that clear on many occasions in this House — but the British are not falling over themselves to amalgamate their legal profession because the EEC requires it. I assert that the EEC does not require such an amalgamation. I should like the Minister to say in what respect our possession of a divided profession — provided that the reform which the Minister proposes and from which I do not dissent is effectuated—will make things difficult for legal practitioners in this country if we are admitted to the European Economic Community. I am not an expert and I do not mind being contradicted on this; let me add that contradiction is quite a different matter from abuse which is what I got from the Minister on the last occasion when he and I were together under this roof — and if the Minister wants to correct me on that point——

Mr. Honan

The Senator asked for it that time.

Professor Kelly

The Minister has plenty of friends here to defend him and I do not feel I am saying anything behind his back. If the Minister wants to contradict me on that impression I will accept it as patiently as I can.

Before I leave the question of the divided profession I should like to say that I believe that a separate Bar is a public benefit. I want to say in defence of the legal profession as a whole and, in particular, in defence of the Bar — which I know is easily held up to ridicule partly because of the myth that it is overrepresented in the Fine Gael Party as distinct from the Fianna Fáil Party; a simple head count will show that the opposite is the case — that I believe that a separate Bar is a public benefit. I shall give the reasons for so saying quickly, as I do not wish to hold up the House by giving a lecture on this.

The kind of Bar that exists in Ireland—leave aside the wigs and gowns for a moment; one can defend wigs and gowns because they lend an air of ritual to a very important proceeding — through its local concentration in the Library in the Four Courts means that every member is on friendly, christian name terms with every other member. That friendly relationship which does not, in any way, rest on any kind of snobbish exclusiveness or closed shop idea persists after a member of the Bar is promoted to the circuit court, the High Court or the Supreme Court bench. The people who are in there fighting and wrangling with one another on behalf of their clients in front of a judge are people who know that the judge is a friend of theirs but who also know that the judge is bound and controlled by the strongest social motives to behave himself. That is a very important point and it is a point that is hard to make clear to laymen who have no experience of the system.

A judge is a human being like anybody else. He can be impatient, stupid, pigheaded and can tend to interrupt or lose his temper during a case. He is not a superman by any means, but what controls him and makes him behave himself — apart from his oath and his conscience — is the social restraint which he experiences in seeing himself confronting counsel who are all former colleagues of his and who know him, outside of working hours, and are on christian name terms with him. He would be ashamed to misbehave himself in front of such colleagues. That seems to be a very strong reason for preserving, perhaps not in this form — I do not defend the wig and gown theory in particular—the essentially fraternal atmosphere of the Bar Library and the barristers' profession from which judges are recruited.

If judges were recruited in some other manner my argument would fall to the ground but for as long as judges are recruited from the Bar, this somewhat intangible, somewhat elusive atmosphere of the barristers' profession in which friendship and solidarity, crossing party boundaries and creeds — let me say that very firmly; I have lots of friends in the Bar Library who are of Fianna Fáil persuasion—is of colossal public benefit. It is very hard to quantify it and it is very hard to persuade people who perhaps have not experienced that atmosphere — I am not trying to talk down to anybody in saying that — that it is of great public benefit and not easily underestimated. For the Minister or his Department to come in here to try to break it up would amount to a terrible blow and cause great damage to one of the few institutions in this State which still enjoys a fair measure of public confidence.

Another small matter which I should like to deal with is the question of the commencement of this Act, when enacted. Section 23 provides that it will commence on 1st January, 1972, and the Minister explained that the thinking behind that decision was to give the rule-making committee a chance to adapt the rules of court to the various orders which will be necessary to effectuate this legislation. That is, of course, a perfectly good reason but we are now approaching the time when the Bar, which provides the personnel for the rule-making committee, is in its busiest period. The same point goes for solicitors and judges. I do not think that the rule-making committee will be able to sit or do very much work before the end of July. The court vacation is in August and September and I do not think you will find many judges or barristers anxious to sit down in committee to do very much in these months. I strongly suspect by the time October comes that this Bill, if enacted, is going to put that committee under heavy pressure. I suggest to the Minister and his advisers that it would be more sensible either to name a later date in section 23, or else to leave the commencement of the Act for settlement by ministerial order.

I have kept until last my remarks on a matter which is of special interest to me. That is the provision for the maintenance of deserted wives. The history of legislation concerning deserted wives and the history of this Government's attitude towards deserted wives is a long one. No doubt tomorrow the Minister will get a headline for doing something for deserted wives. If he does, half that headline belongs to Fine Gael, because my conviction is that, had it not been for our efforts here and in the Dáil on other occasions pushing the Government, this Bill would not yet be before the Seanad. In fact, in the Bill, there are signs of very hasty draftsmanship, which strengthens my belief that we are getting a rushed measure, because the Minister's political advisers told him that the point had been reached where the matter was becoming politically disagreeable. That is the moment at which something always has to be done. My conviction is that, had it not been for the efforts made by this party over the years to have something done about this scandalously low ceiling in maintenance awards, this Bill, be it good or bad and whatever else it contains, still would not be before either House.

I have studied a string of parliamentary questions going back to early 1969, and beyond, and I could have gone further back, but I was afraid I should bore the House by enumerating them. These questions were asked by Members of the Opposition — usually from my own party — in which they pressed the Government to do something about the ceiling which was contained in the Enforcement of Court Orders Act, 1940. I wish to refer at random to an answer given by the then Minister for Justice to Deputy Ryan on 6th May, 1969. The Minister told Deputy Ryan that the matter would be considered in a Courts Bill, which would be a general kind of Bill and which he hoped soon to introduce. Two months rolled by, and on 15th July of the same year the Minister was asked another question on the same topic by Deputy Treacy of the Labour Party. The then Minister for Justice said that legislation was under consideration by the Government and that he hoped to introduce it in the next session. That was two years ago. Seven subsequent questions have been asked about this topic and it has always been put on the long finger. Many questions had been asked about it in previous years and the matter had been consistently put on the long finger.

Now we have got legislation, and what is this provision about deserted wives? The Bill proposes to increase from £4 to 7.50 the ceiling on the maximum award which the district court can make by way of maintenance against the deserting husband. I have one serious objection to the legislation in this form: it is inflexible. I realise that the Minister proposes to take powers to himself to increase these ceilings by ministerial order. It is right that he should do so; I have no objection to it, provided that the orders are laid before the House of the Oireachtas for confirmation, as is proposed. It should have been done under the Act of 1940. I have no objection to that at all.

Within the framework of this is the idea that the Bill ought to contain a fixed sum, but that is a bad idea. It would have been more sensible and neater and less troublesome, involving less difficulty in trying to push Ministers in future years to sign orders, if the Bill were to do what we on this side of the House suggested three months ago should be done, namely, to relate the maximum award to the income or means of the husband, and not to a particularly named sum. At that time we proposed that, where there were children, the court might award up to two-thirds of the husband's earnings. Where there were no children dependent on the wife, the court might award up to one-half.

We proposed that and we still think that that is the best way of doing it. We proposed those proportions not only because the value of money falls so rapidly that this sum, £7.50, and the child's allowance of £2.50 are going to be too small in a very short time — they are too small anyway — but because some people in some conditions of life could not, in any case, get by on money like that.

I know that I am laying my flank open to attack from the other side by saying this: wives are deserted by their husbands in all strata of society. It is not, by any means, something that happens only among poor families. I want to draw the attention of the House to the fact that the legislation that was the grandfather of the proposed Bill was an Act passed in the year before Queen Victoria's golden jubilee. It was an Act passed at a time when it was considered to be the height of generosity and of moral virtue on the part of a parliament to so much as notice the fact that deserted wives were a social problem and to so much as recognise that social problems existed. That was a big victory in 1886. It was recognised that the problem was particularly acute among very poor people and so the ceiling of £2 in those days was fixed, having regard to people whose conditions would be pretty humble.

What about a man who is in the middle-class and is earning a good big income and who deserts his wife, and leaves her with nothing except the house and a big family to look after? He may have £5,000, £6,000 or £7,000 a year. He clears off with another woman or by himself, and deserts his wife and leaves her with nothing except perhaps the house, to which he may not even have legal title. Is she supposed to manage on the lines of her former state and bring up her children in the way to which they were accustomed at a rate of £7.50 per week, plus £2.50 for each child? That is not sufficient for somebody in that category and I hope I shall not be accused of thinking of the rich people only. I am not thinking of the rich people only. Naturally, this Bill will be some improvement for the poor people, but there are people for whom it will not begin to be of any use. It would be no use at all if, perhaps, the deserted wife has heavy outgoings on a house and must keep up appearances before the neighbours, and so forth. A wife cannot do it on this kind of money, if she has no other means. Perhaps some wives have other means.

That is one of the reasons why we recommend that this award should be made dependent on the husband's earnings. Why are we going to be struck with this figure of £7.50? Apart altogether from the principle that we were putting forward that it should be a flexible sum, adaptable to the husband's earnings, why are we going to be stuck with this particular sum of £7.50, and £2.50 each for the children? I formed the suspicion that, if there was one explanation, it was to be found in the fact that some piece of English legislation would have chosen exactly that figure. I formed that suspicion because over the years I have been well used to seeing legislation here copying, word for word, line for line, paragraph for paragraph, some English Act, but, as a rule with a respectable time-lag of half-a-generation. I consulted an index of English legislation and I found that the history of this legislation in England has been somewhat different. The 1886 Act was repealed, not for Scotland and Ireland, but for England, in 1895. The Summary Jurisdiction (Married Women) Act, 1895, was repealed and replaced by the Matrimonial Proceedings (Magistrates Courts) Act in 1960. This Act has a different scope, structure and purpose from that of the Bill in front of us and the words are not exactly the same. In the 1960 English Act section (2) (a) includes among the orders which the magistrates court in England can make an order providing for a payment to a wife in a case of desertion of a sum not exceeding £7 10s. I find in paragraph (h) of the same section that, in respect of a child if concerned in a desertion, the payment is not to exceed 50s.

In other words, not only are we, like so many shambling Paddys, copying the English down to the details of our legislation but we are copying them 11 years too late. We are copying them 11 years after they have named these sums. What has happened to the cost of living in the meantime? The fact that we have copied our legislation requires no comment from me, but to do it 11 years afterwards! I presume that the reason for doing so is that somewhere in the Department of Justice there is somebody who, no doubt doing his duty and doing it well, thought we should bring our legislation up to date and made a note sometime back in 1960 that the English had now got this provision and were now going to turn it into law and that note has been on a file in the Department of Justice. That is what makes me suspect that this Bill is a last-minute measure introduced in a hurry to cover up the gap which we had been revealing and probing at.

Since 1961 the cost of living in this country has risen by about 50 per cent. In other words it would require about £11.50 to buy now what £7 10s would have bought in 1960. If we are to copy the English let us at least copy what they are doing today and not what they were doing in 1960. In that year there were several Senators here who were still at school. It was the year after Mr. Lemass became Taoiseach. It was two years before President Kennedy visited this country. I am ashamed to copy them in anything; I think we should strike out for ourselves and do what seems to us to be the best for ourselves. But if we are to copy them, let us not copy this legislation.

I am certain that this Bill is a rushed measure. It is being rushed, I believe, for political reasons because the Government felt sensitive on the flank which we have exposed and have been probing at. That is what an Opposition Party are for. When the Minister is replying to this debate I hope I will not be told that I made a party political speech. I hope I will not be told that I am talking ráiméis. I hope I will not be told that I have been playacting and wasting the time of the House. That is what we are here for. I regard the Bill, which the Minister is now introducing, as something that the Fine Gael Party can be thanked for.

Business suspended at 6.15 p.m. and resumed at 7.30 p.m.

Mr. Gallanagh

I welcome this Bill, but I think in reality it does not go far enough. It merely brings the monetary aspect up to present-day values. I wonder if it even does that in the case of deserted wives and children. It will bring most of the cases which claim privilege under the 1914 Act within the scope of the district courts. This in itself is a good thing although I suppose legislation will shortly be introduced to do away with that protection.

The right of audience of solicitors in the High Court is very important. Up to now even solicitors at times have found it difficult to get barristers to appear in court to get an adjournment.

The population of Bray is equal to that of the remainder of County Wicklow and most of the circuit court cases come from Bray and are heard in the town of Wicklow. This is a cause of great expense to the people who have to travel there: witnesses who may not be needed and professional men having to wait all day. Doctors may be called to give evidence. Barristers, solicitors, and architects all have to attend but may not be called. There should be a Circuit Court in the town of Bray. There is plenty of room for one. I should like the Minister when considering new circuit court areas to consider the plight of these people who are put to such great expense often for trivial cases.

Mr. Alexis FitzGerald

I have not too much to say on this Bill. I should like to deal with it section by section as it comes before us on Committee Stage. I agree with what Senator Kelly said about the provisions for weekly payments under section 17 and that to stipulate them in these figures is unrealistic. Discretion should be left to the judge in question. I do not profess any expertise on this or, indeed, on any of the matters I am going to talk about, but desertion is not a ground for divorce a mensa et toro.

Mr. O'Higgins

I think it is.

Mr. Alexis FitzGerald

It is not. It is not a ground for such a divorce. This is a particular reason for making special provision. For example, such a desertion in England is a ground for divorce, but it is not so here.

Mr. O'Higgins

I think the Senator is quite right.

Mr. Alexis FitzGerald

Thank you. I like to get support from my leader occasionally. One of the points I should like to make and which Senator Kelly touched on is that regarding the special position of the Bar. I am not a barrister. I am an attorney. I have been recognised from my early days as such, but I was not expected to know anything about laws.

Mr. O'Malley

I take it the Senator is speaking for himself?

Mr. Alexis FitzGerald

No, I am speaking for attorneys who recognise their position. Attorneys are agents for their customers or clients, whose duty it is to express to members of the Bar what problem their client is faced with and to comprehend enough about the law to be able to express it lucidly to members of the Bar. If I saw anybody in my office spending too much time on his law books, I would regard it as a waste of time. There are different types of researchers. There are researchers in America who are junior fellows and the same is true of Canada. Here, they are probably older but have greater experience.

I am thinking about the Minister's proposed amendment giving the right of audience to solicitors. It is not for me to deprive anyone in my profession of this right of audience which the Minister is proposing to give under this legislation. Very few will avail of it. Senator Kelly said, and he put it very well, that members of the Bar recognise the judges as their colleagues. They know their form. The judges know the form of the members of the Bar.

There are a great number of unwritten rules. For example, may I mention one that may even take the Minister's advisers by surprise, and likewise the Revenue Commissioners? It is a rule of the Bar that you never raise the point that a document is not properly stamped. This is a breach of a rule of the profession. This is a point which can be taken by a judge. That is understood. There is a mutual confidence between the judge and the respective barrister who appears before him and who has a tremendous duty to him and to the whole Bench not to mislead the Court on any particular point. That is why it is such an advantage to have a smallish number of people who know what is required of them pleading before the judge. These people inherit a tradition which casts obligations on them of a professional, ethical and social character. I am not a member of the Bar, though I have connections with members of the Bar and many friends practising at the Bar.

I hope the Seanad believes me that this does not affect the presentation of my view in the slightest degree. It is a considered view. I regard the Law Library as one of the great educational institutions of our society. There may not be much evidence of this in terms of academic production, but if one studies the performance of our barristers and of our Supreme Court Judges, who are all recruited from the ranks of the Bar, and if one studies the quality of their decisions and their judgments one will see what I mean. They are all recruited from the Bar Library and are all inheriters of that tradition. They are all educated by that tradition. I do not think we should reject it simply because it was there in 1922.

I cannot make a great complaint about not having studied this Bill longer because I did not come back to Ireland until last Monday morning. I am told that the Bill was not issued for publication until Friday last. I may be wrong; I am open to correction on that. A Bill which proposes a major revolution, which would give a solicitor a right to audience in any court in the lands, ought really to be given more consideration than it is possible to give, with all the detachment that I can at least muster, at this moment of time.

Senator O'Higgins said today that one of his difficulties in dealing with this measure is that he did not know what our Party's view would be on this Bill. I think that is correct. We did not have a Party meeting until today when this thing was launched on us, which is a little hard when there are pretty substantial changes proposed. This is the month of July, perspiration is pouring from the speaker and perhaps from others among you, and in this month of July we are facing much legislation. Why are we faced with amendments of this kind? I know — and I could be told by the Minister if he did not want to be fair to me which I hope he will be — that Senator Kelly is complaining about the delay. This is not an answer.

I am not complaining about the delay in relation to the introduction of the right of audience to solicitors. I would join with Senator Kelly in complaining about the delay in the introduction of the provision for deserted wives, though I welcome the subsections which provide the judge with the authority to increase the amounts. The Minister ought to consider, even at this stage, bravely increasing these maxima. They are very low for the days we are talking about.

It is true the deserted wife is a very real Irish problem. Socially speaking, it is one of our very big problems. In so far as this Bill provides for an improvement in relation to that, I heartily welcome it. But I do not think the improvement is enough. The Minister should tell us what degree of consultation — I do not mean address and reception of address; I do not mean communication received by people who are given no opportunity of really giving a considered reply to it—there has been between him and the different branches of the profession that I am a member of and others in this House are members of.

I would agree completely with the Minister in his unexpressed view, if I may put it that way, that our system is not working very efficiently. That is quite clear. I agree with the increase in the jurisdiction given to the district and circuit courts but I would like to see an indication from the Minister of how he is going to solve the problem of dealing with the extra duties to be cast upon these people.

I am sure it is far better known to the Minister's advisers than it is to me — I am a little bit remote from these affairs and I just do not happen to deal with this sort of thing — that there is a tremendous backlog in the circuit court. How is the Minister going to provide for this? I do not mind going on record—it will not assist any of my plaintiffs, if I have any plaintiffs, or my defendants, if I have any defendants— as saying that I do not think the judges work long enough. That ought to be recorded. They work from 11 a.m. to 1 p.m. and from 2.15 p.m. to 4 p.m. How many of us do that. I know they make up their judgments and that takes more time, but it is worth nothing that they were working much longer before 1922. They started earlier and finished later. There is another two hours work in each of them. I would be damned if I would let them get away with it if I were Minister for Justice. I do not expect to get great cheers in the King's Inns when I go up there next, but still that is my view on that subject.

The ground's being laid for a united profession in this Bill, of which I honestly think inadequate notice has been given. The Minister ought to have been thinking of ways of solving these problems instead of by radical measures, by reforming measures. I am quite certain that, if there were proper directives given to the two branches of the profession in an appropriate form, reform in their relationship would be effected.

I am not at all satisfied that we are going to find great economies effected by moving the jurisdiction of certain cases from the High Court to the circuit court. Of course, I think it is a scandal that we have the two seniors, one junior counsel and one solicitor and people behind them in so many of these cases. This is an abuse. I am not sure that anyone has bothered to trace the history of the origin of that abuse. It would be an interesting exercise. I think I could give some interesting suggestions as to the origin of it. It should precede any amendment of the law with regard to this.

I do not know what we solicitors are going to do when we find ourselves dealing with circuit court cases. Let us face the facts. Kaim-Caudle has done research on the operation of a solicitor's office, and I am concerned with such, as are other Members of the House. It is surprising what is profitable and what is not. What is quite certain is that litigation has been unprofitable. All I can tell you is my spirit groans when I hear that we are instructed in another law suit unless it concerns, which rarely occurs, the sort of person who can pay you, irrespective of what the taxing master will award you. Normally speaking, you could not take it that any solicitor engaged in litigation in neither the High Court or the circuit court, particularly the circuit court, will be losing money in conducting it. One of the problems is that I do not think the Minister has perhaps sufficiently addressed himself to the cost of getting advice, of getting business done, by people.

The Minister should regard himself as the Solicitor-General. Let him regard himself as responsible for the salaries of all the people behind him; let him regard himself as being in the position that he has got to charge out fees to bring back a return to pay decent salaries and proper pension remuneration, and that is what any decent solicitor would want to do. He will find himself in the position, that if he is engaged in litigation — and he can find out about this from the Attorney General or the State Solicitor — it is at a loss. It will be conducted at a loss unless the fees appear to those who have to pay them exorbitant.

I am ashamed of my life at the fees that I see going out from my office to people. I say "Really this is unconscionable in terms of what the person has to pay" but it is not unconscionable in terms of what has got to be recouped to make the operation even moderately successful. I just wonder whether we are wise in taking even the first step towards throwing over the great educational institution, as I believe it to be, of the Law Library despite its failure to produce explicit academic productions for which I could criticise it. But if all the opinions written by the barristers of Ireland were put together into one book I think the House, the Minister and his advisers would be very surprised at the degree of learning that would be shown in them. I called myself an attorney deliberately because I am rendered humble every time I read what I call a good opinion, and I think I know what a good opinion is when I see it. It is an opinion which has shown great reflection on the law which is applicable to the matter in hand.

I hope the Minister will have an answer for me on this business of the effect of the transfer of jurisdiction. Anything that saves legal costs seems to me to be good. I am not sure that this is the right way to go about it. There are all sorts of things in our legal system that seem to me to be capable of being changed which would reduce costs. All sorts of things could be changed such as things which you would be required to do if you are acting for the plaintiff or defendant and trying to prove things. Even in Britain, which is not after all the most splendidly progressive country in the world, the solicitors get together before the case under their own rules and this saves a lot of expense. The expense, for example, which has been mentioned by one speaker here, maybe the Minister, of expert witnesses can be reduced. Many expert witnesses are unnecessary except for the "bitchiness" of the solicitor on the other side.

Mr. O'Malley

Counsel advise the proofs.

Mr. Alexis FitzGerald

I think the Minister may be right. Counsel under our existing procedures may be obliged to advise the proofs in this way. It is no advantage to counsel to advise that a veterinary surgeon be brought from Newmarket at the cost of 400 guineas a day, but if the case is to be won he has got to be brought unless somebody on the other side has the good sense and has got support under the rules of the court to agree that it is unnecessary. I wonder whether, instead of legislation, much good would not be accomplished by co-operation between the Department of Justice and the different branches of the profession.

Solicitors are frequently accused of delays and the Minister, I am sure, would remember his days when at least some colleagues of his were accused of delays, even if the Minister was not accused of them. In relation to this, account has to be taken of the fact that — I hope this is relevant and I look to the Chair to guide me if I am wandering away — public authorities are insufficiently conscious of the degree to which they subscribe to these delays. All of us in this profession have had experiences of delays in the Estate Duty Office, the Land Commission and the Land Registry. These delays are inexcusable except in terms of the inadequate supply of staff or the inadequate conduct of the staff, but the person who carried the burden is always the solicitor, who has been given the right of audience to the High Court in this legislation.

Has the Minister considered, for example, whether it is part of his policy in implementing this Bill, having regard to the existing extreme backlog of circuit court cases, which we all know about, to face into the appointment of a number of new circuit court judges? It is not my recommendation to him, but I think the Minister is obliged to tell us how, having regard to the backlog that exists in Dublin and Cork, he is going to deal with the proper transfer of an increased jurisdiction from the High Court to the circuit court and the district court. Even if we get these people up earlier in the morning and send them later to bed, I do not think they are going to be able to deal with this.

On the question of juries, to be perfectly honest with you — as I said earlier I did not come up here to make a speech, I just had some things I wanted to say—I am of two minds about juries. Let us deal with the first aspect of them. In a city like Dublin with a small number of judges and a small number of pleaders, each getting to know that one gives big damages, the other gives small damages. Where does the plaintiff seek to bring his case? He brings his case into the court, if he can, to the man who is likely to give him big damages. The jury is the safeguard against this. I know there is nothing in this Bill proposing the abolition of juries for the High Court. But why do we abolish the right for juries in the circuit court when, in fact, it is very rarely exercised? What is the point of that exercise? Maybe there is a good reason for it, but I should like to hear it. Maybe the view is that juries ought to go; but juries in London are not juries in Dublin and judges in Dublin are not judges in London or in Ottawa or New York, and we have to look at our own circumstances.

That is the first part of my observation on juries. The second part is connected with my deep conviction that there is nothing more important in Ireland at the moment than the enforcement of law. I should like to give the Minister the benefit of all the doubts that I must confess I have with regard to that matter. He is a young man facing very heavy responsibilities. So far from understanding them I do not think it is possible to overstate them. I had welcomed his observations on his becoming Minister. In a number of instances in striking contradistinction I thought of his predecessor, and I leave it at that. But this is a field which you do not talk about unless you are a Senator and a fool. This is a field in which you act. All the information that comes to me — it does not come to me merely as a private citizen, solicitor or Senator — through a variety of channels suggests that we are at the moment sitting on the top of a cauldron. All I can say to the Minister is: God forgive him if he fails to act in time or if he has failed to act in time and he may well have failed to act in time. We are dealing with justice and there is nothing more significantly just than that the law which exists should be properly enforced by the Minister whose duty it is to enforce it. I am giving the Minister all the benefit of the doubt and he has more information on this matter than I have——

An Cathaoirleach

The Senator will appreciate that we are not dealing with the general administration of the Department of Justice. We are dealing with a specific Bill.

Mr. Alexis FitzGerald

I would not attempt to deal with such an extensive and interesting matter as that.

An Cathaoirleach

The Senator has been veering in that direction.

Mr. Alexis FitzGerald

I am sure the Cathaoirleach will steer me away from that. I did not think it would be right for me to deal with the question of the abolition of juries in the circuit court in civil cases without considering the consequential abolition of juries in criminal cases in other courts. I have already said in the Seanad that I was in some doubt about this whole matter. I remain in that doubt but I think I am entitled to express my doubt here.

Juries in relation to civil cases in the High Court serve a purpose, whereas I think juries in criminal cases they may be a detriment to the enforcement of justice. That is very relevant to the proposed abolition of juries in civil proceedings in the circuit court because there is logic in this proposal. I do not think I can express myself clearly on this matter if I do not deal with the situation in which we are living today.

The Seanad does not have Minister's Estimates brought before it but we have an opportunity of discussing the value of jury service in this Bill. I would not be discharging my conscientious duty on this matter if I did not honestly say that the situation in which we are living today is far worse than it has been since the foundation of the State. Until we have enough people with the courage to say that and who will continue to say it until we get people who are prepared to enforce the law, and not let the situation deteriorate any further, we will find the Hobbsian situation described as the war of every man against every man. I am not given to exaggeration — God knows I wish to be proved wrong in this matter — but I believe our children and our children's children will pay the price if there are any errors in the administration of justice at this time.

Mrs. Farrell

I did not intend to speak on this Bill until I listened to Senator Kelly's remarks. I wonder if Senator Kelly thinks that we, on this side of the House, have no social conscience at all or that we do not stop to consider the plight of deserted wives or widows. The Senator seems to think that this is the prerogative of his party and that we in this party do not think about those matters at all. When you are in Opposition there is a very easy way to make headlines in the newspapers. You merely stand up and say what you like about the Government and their policies. However, when you belong to the Government party any comments you wish to make are made usually behind closed doors and this also applies to this Bill. The Fianna Fáil Party have a very active social conscience. This has been proved throughout the years. I should like to place on the record of this House that the plight of deserted wives is as actively considered by the Fianna Fáil Party as it is by Fine Gael.

Having said that I find myself in complete agreement with Senator Kelly. I am not at all happy with having figures written into the Bill. Senator Kelly made a very good point when he said that a wife should get a proportion of her husband's salary. The allowance should not just consist of a sum of £7.50 a week. I will not enlarge on this point because Senator Kelly has already dealt with it at great length, but I would ask the Minister and his advisers to think about this matter again and perhaps on Committee Stage they could bring in an amendment which would delete the figures mentioned and substitute a proportion of the husband's salary.

I should now like to say a few words about illegitimate children and the mothers who have the responsibility of rearing those children. For too long the fathers of these children have got away practically Scot-free and I am sure that for many years to come they will be able to do so. However, there is a wonderful opportunity in this Bill to help right a very great wrong. I would suggest to the Minister that he write in an amendment to this Bill which would ensure that two-thirds of the father's wage or salary would be allocated to the mother of the child if she intends to rear the child herself.

It is only right and just that such a provision should be contained in the Bill. If the couple had married I am sure two-thirds of the husband's wage packet would go to the mother and child anyway. In my opinion such a provision would prove to be a substantial deterrent and would go a long way towards solving the problem of illegitimacy in this country. We, in Ireland, have not been very talkative in the past about this problem because in such matters we tend to cover our shame, but if such a provision were included in the Bill it would be of tremendous help to the mothers concerned.

I would, very earnestly, ask the Minister when the Committee Stage of the Bill comes before the House to amend the Bill so as to delete the sums mentioned and replace them by a two-thirds proportion of the father's wages. I would also earnestly ask him to give more consideration to the mothers of illegitimate children by penalising the fathers as they should be penalised.

Minister for Justice (Mr. O'Malley)

I should like to thank Senators for their reception of the Bill and for their comments, which were very helpful. I look forward to going through the Bill in detail on Committee Stage when I am sure some useful suggestions will be made by the Seanad. I think it is agreed that the major changes proposed in the Bill are long overdue and for that reason have become urgent.

I apologise to Senators who may have been taken a bit short by the fact that the Bill was published only five days ago. I am anxious, if at all possible, to have it put through both Houses before the end of the month. In particular, I feel that there is a most pressing need for sections 17 and 18, to increase the maintenance and affiliation allowances, along with a number of other things that are equally urgent.

There were a large number of speeches; I have taken notes and I shall do the best I can to try to deal with them all. I am sure the Seanad will forgive me if I do not deal with every individual point that was made. Senator O'Higgins was somewhat apprehensive about the question of costs in the circuit and district courts. Was there a possibility that they would not be increased? Senator Alexis FitzGerald assured us that at the moment there was no profit in litigation.

I certainly accept Senator FitzGerald's statement that there is no profit in litigation as far as the circuit and district courts are concerned. One of the reasons why increased scales in the circuit and district courts, which appear to be necessary, were not pressed by the respective rule-making committees was because it was common knowledge for some time that a Bill of this kind was on its way and the committees probably felt that it was better to make one job of the new scales However, I anticipate that there will be realistic scales, taking into account the added jurisdictions. I hope that the two rule-making committees concerned will get down straightaway to the making of these rules, and to the drafting and submitting of them for approval so that they will be ready in good time before 1st January.

Senators O'Higgins and Kelly expressed some concern with the proposal in section 14, about these urgent cases, where a two-day summons would be served on the defendant. I want to reassure them and members of the public who might be worried about the matter that this most assuredly will not lead to any injustice. I have no intention of so using the section, and I do not think that it would be used in respect of political offences. An order must be made by the Minister for Justice, specifying the type of offence that will be involved, and the period for which that is to remain in force. The instance where, in recent years, a provision of this nature was badly needed was in regard to the foot and mouth disease outbreak, during which stringent measures had to be taken in this country to prevent its spreading.

The Department of Agriculture and Fisheries were very perturbed at that time at the fact that often three or four weeks had to elapse before the serving of a summons and the hearing of the case. They made representations to my Department on the basis that because a summons had been served, because it was not returnable for three or four weeks and because the defendant regarded himself as caught anyway, he took the view that he might as well be hung for a sheep as a lamb. There was continuous repetition of what could have been potentially very serious offences, serious in the sense that their consequences to the country could have been disastrous. This section is here to deal with that sort of situation should it ever happen again. I find it difficult offhand to envisage an example of any other set of circumstances in which it would be used. It certainly would be used only in something analagous at least to the situation I have mentioned.

There was much reference by Senators to alleged delays in the courts at the moment. Some expressed their apprehension that by increasing the jurisdictions of the district and circuit courts we might increase the delays. I should like to make the position clear with regard to what delays there are in the courts. In the High Court there is no delay. I understand that in a jury action, where there used to be long delays of up to 12 months, one is now liable to get a trial within two or three weeks of setting the action down and serving notice of trial.

Mr. O'Higgins

The High Court is very much up to date at the moment.

Mr. O'Malley

That has taken many solicitors unawares because my recollections of what it was a few years ago is that you served notice of trial, you set your action down and you forgot it for about six months. Some solicitors have had the unpleasant experience, when acting for plaintiffs, of waking up to find that the action had been dismissed with costs. There is now no delay whatever in the High Court. The Supreme Court is the final appellate court and every decision given by it has to be considered at great length. When judgment is reserved there, as it normally is, sometimes to the layman or the client the period of time during which it remains reserved may seem excessively long. There is good reason why it must be reserved for such a length of time.

There is no delay in the district court. There may be adjournments from time to time, but that is at the request of one or other of the parties. If you want a civil case in the district court, you may get it, assuming that the other party is willing and ready to go on, within a month at the outside. In the circuit court there is delay and there is a backlog in the Dublin circuit, but there is no backlog in any other circuit.

Mr. Alexis FitzGerald

Cork.

Mr. O'Malley

No. There is no serious backlog in Cork.

Mr. Alexis FitzGerald

That is not my information.

Mr. O'Malley

Unfortunately, there is in Dublin a backlog of about six months, and I very much regret that that is so. However, the backlog has been decreasing during the last couple of years. It was a good deal more than it is now and it has decreased. I hope that we shall be able to take steps to decrease it further and wipe it out altogether.

Mr. O'Higgins

What kind of steps?

Mr. O'Malley

I hope to be able to do this fairly soon. Before I take concrete steps with regard to Dublin, I shall have to consider the recommendations of the committee on court practice and procedure with regard to the reallocation, on a fairly radical basis, of the provincial circuits. A very different system of circuit has been recommended, which is basically different from our present circuit system. It would entail two judges travelling the country on criminal work for a year, to avoid any delay in the hearing of criminal indictments. It would involve larger circuits with more than one judge attached to each circuit for civil work. It would entail the transferring of judges from one circuit to another at fairly regular intervals.

Mr. Alexis FitzGerald

I do not wish to interrupt the Minister except that I think it might be appropriate to put the question to him. Has he got legislative power to do this?

Mr. O'Malley

No. I have not. I have been studying the recommendations of the committee to see if they would be acceptable and workable. The recommended system would be radically different from what we have at the moment.

Mr. O'Higgins

While the Minister is on the point, am I right in thinking that he is talking about what might be regarded as provincial circuits, not Dublin? The immediate problem in regard to backlog is Dublin.

Mr. O'Malley

It is. If I can reorganise the provincial circuits without increasing the number of judges, another judge could be made free in Dublin. I have no objection to appointing an extra judge. A lot of what Senator FitzGerald has said this evening is not wrong. I have detailed figures with regard to hours and days worked and I think that there could be a greater turnover if we had reorganisation of the provincial circuits. The work in the provinces is not excessive and what is proposed under this Bill will not increase it significantly because for every case that is gained at the upper level two are lost at the lower level. Admittedly, the case gained at the upper level of the jurisdiction will be a heavier and more onerous case. However, I am not satisfied that there would be any overall increase in the total amount of work to be done.

Senator Robinson made a number of points with regard to criminal law and criminal procedure as preliminary points to her speech. I think they are scarcely within the ambit of this Bill. She referred to Tyrell's case where the difficulty has arisen under section 13 of the Criminal Procedures Act, 1967. I agree with what she has said about it and I propose to rectify section 13, but I cannot do so in this Bill. It will have to be done in a Criminal Justice Bill.

She mentioned the case of Attorney General v. Bell in the 1969 Irish Reports and the Supreme Court decision regarding the power of a judge to award costs in a criminal case against the State. She suggested that we might have a declaratory section in this or some other Bill, presumably to make the matter clear. Frankly, I accept the law as declared by the Supreme Court and I do not think it needs urgent legislation. It is the law. We would need a section on this point only if I proposed to change what is the law, namely, the decision of the Supreme Court.

Mr. O'Higgins

Of course that is not so as regards the question of the district court being a court of record. The Minister says that is the law but he is, at the same time, saying it in the Bill.

Mr. O'Malley

There is no specific decision that I can point to to that effect. It is to be concluded from a variety of authorities which make up the totality of the law. In the particular case instanced by Senator Robinson, there is a judgment which declares the law, and that judgment is a judgment of the Supreme Court.

Mr. Alexis FitzGerald

Which does not bind the Supreme Court.

Mrs. Robinson

It was the majority decision. I read from the dissenting judgment which felt it was a matter for the Legislature so that it would clarify this. Senator FitzGerald said that they would be able to change that decision in a few years if they wish. It should be clarified in statutory form.

Mr. O'Malley

I doubt very much if the Supreme Court will come along and overrule themselves in this matter.

Mr. O'Higgins

A different Supreme Court, as regards personnel, might. The Minister should look at it.

Mr. Alexis FitzGerald

It is a Committee Stage matter.

Mr. O'Malley

Senator Robinson mentioned the question of women on juries. Again, that is a matter for a Bill on juries which I have in the course of preparation. It will be dealt with there. I should like to make it clear that there is nothing at the moment to stop women in this country serving on juries if they so choose. Admittedly, they have to apply. Senator Robinson makes the point that they should not have to go to the trouble of specifically applying, that they should automatically go on panels. The views of the women of Ireland on jury service are most eloquently expressed by the almost unanimous refusal over the years of 1½ million or so women in this country to apply to get on the panel.

Mr. O'Higgins

Most men would probably like to be in the position that they would have to apply.

Mr. Alexis FitzGerald

Could we not shove it into this Bill?

Mr. O'Malley

I do not think so. There is a separate Bill dealing with uries.

Mr. Alexis FitzGerald

We have not got at it yet.

Mr. O'Malley

With regard to the question of the abolition of juries in civil actions in the circuit court, nobody really disagreed with this because the right is not used. A lot of people with suspicious minds seem to think that this is the thin end of the wedge and that we are going to abolish them in all civil cases.

Mr. Alexis FitzGerald

Why abolish them if they are not being used?

Mrs. Robinson

I objected to the abolition of juries in circuit courts on the grounds that they are useful for defamation cases.

An Cathaoirleach

The Chair suggests that if Senators have questions they would like to ask they might keep them until the Minister has finished. This cross-examination is more suited to Committee State.

Mr. Alexis FitzGerald

The Minister is well able for what is described as cross-examination.

An Cathaoirleach

The Chair is not defending the Minister. The Chair is speaking about Standing Orders.

Mr. Alexis FitzGerald

I do not think the Minister is objecting.

An Cathaoirleach

But the Chair is objecting.

Mr. Alexis FitzGerald

We must have great respect for the Chair.

Mr. O'Malley

So far as I can ascertain there has never been a case under section 44 of the Succession Act, 1965, tried in the circuit court by jury, so the abolition of that right is scarcely radical. So far as I can ascertain only about 1 per cent of the civil actions tried in the circuit court are tried with a jury.

There is nothing radical about this proposal as it stands and I can assure Senators that I have no proposal in my mind to abolish juries in the High Court. I shall draw the attention of the House to the fact that while the recommendation of the committee on court practice and procedure to abolish civil juries in the circuit court was unanimous they divided 8:3 against abolishing them in the High Court in civil actions. I certainly have no proposal now or in contemplation to abolish juries in the High Court. They are used considerably there all the time, and it is a different type of case because the claim is for substantial unliquidated damaged in the High Court as opposed to claims for amounts within a limited range.

Senator Robinson may have been somewhat misled in regard to the remarks in my opening speech about the fact that civil actions in the circuit court which were heard before a jury are subject to rehearing by a judge. She may be under the impression that the High Court judge on appeals acts in the same way as the Supreme Court does in an appeal from the High Court. In fact, the circuit appeal is different. It is not an appeal on grounds of law, it is not an appeal on the basis that the jury misdirected themselves or were perverse in their verdict. It is a complete start from scratch and the judge disregards what the circuit judge or the circuit jury did on the original hearing. The High Court judge hears all the facts himself and makes up his mind de novo and independently of what happened in the circuit court. This is quite a different type of appeal to the appeal from a High Court jury to the Supreme Court.

Senator Eoin Ryan felt that there was a need for a further judge or judges in the circuit court. I agree with him that the position in Dublin, as I have already said, is not what I would wish it to be, but I, in turn, agree with Senator Alexis FitzGerald when he said that the answer to that particular problem may not necessarily be the appointment of more judges. One has to bear in mind that, on the provincial circuits, some of the circuit judges sit at 11 a.m. on Tuesday; and they sit what is described in legal terms as a full day on Tuesday, that is 11 a.m. to 1 p.m. and 2 p.m. to 4 p.m., a full day on Wednesday, a full day on Thursday and a half day from 10.30 a.m. to 12.30 p.m. on Friday. There is a lot of leeway that might be made up there.

Mr. O'Higgins

Ten to five.

Mr. Alexis FitzGerald

At least.

Mr. O'Malley

Somewhat more than the week's work that I have described might not be any harm.

Senator Gallanagh referred to the position in Bray in regard to the circuit court. I am aware of the fact that there is an anomaly there which is unfair to people living in Bray and that is even more unfair to the people living in the district electoral division of Rathmichael. This is on the north side of Bray and is in fact in County Dublin. Because it is in the Bray district court area appeals must go to the Wicklow Circuit Court, but unfortunately the Wicklow Circuit Court sits in Wicklow town. I understand there is an accommodation problem in Bray with regard to providing a courthouse. The responsibility of providing courthouses is not mine but that of the local authority and, if the Senator is in a position to do so, he might take this up with the Wicklow County Council.

I understand I have no power to provide that those living in the Bray district court area but in the County of Dublin, such as people living in Rathmichael electoral division, should have the right of appeal to the Circuit Court in Dublin, which would be much more convenient for them.

There was criticism of the fact that the amounts in sections 17 and 18 for maintenance and affiliation are inadequate. I doubt this. I would ask Senators to compare the existing situation. Take a deserted wife as of today and assume she has four children, which is a reasonable average. She is entitled to £4 per week for herself and the four children. Under the Bill, she will be entitled to £7.50 for herself and £10 for her children, giving a total of £17.50, which is more than four times what she has at the moment.

Mrs. Farrell

Some of them, if the husbands pay.

Mr. O'Malley

I think that is a very reasonable improvement, particularly when I have to bear in mind that the jurisdiction of the district court is a limited one under our Constitution. The Supreme Court has spelt this matter out pretty clearly on the criminal side in recent years. They expressed the opinion that fines exceeding £100 in some cases and £200 in others were beyond the criminal jurisdiction of the district court. When you are talking about £17.50 per week which the district court under this Bill has power to order a deserting husband to pay, you have to bear in mind that the capitalised value of the payments could be fairly substantial.

Mr. Alexis FitzGerald

The Minister does not recall the particular case, just for convenience of Senators?

Mrs. Robinson

I think the case is the Attorney General versus Conroy, which is in relation to minor and major offences, and it would not be relevant here. That involved looking for the right to trial by jury in a major offence under Article 38.

Mr. O'Malley

I could discuss this matter with Senators on the Committee Stage. I was speaking about sections 17 and 18. I think that the figures are perfectly adequate for the district court. If you want to go into the sphere of awarding a proportion of a man's earnings and this was going to be more than, say, £20 or £25 or even £30 per week you have left what I will call the district court bracket and gone into the High Court matrimonial bracket. The wife could take herself at that stage to Senator Alexis FitzGerald's office.

Mr. Alexis FitzGerald

She would not be welcome. I hope the Chair will permit me to ask: what right would she have in the High Court?

Mr. O'Malley

She would have the right of alimony in the High Court if she started proceedings for divorce a mensa et thoro?

Mr. Alexis FitzGerald

On what grounds?

Mr. O'Malley

If she is being deserted.

Mr. Alexis FitzGerald

Desertion is no ground for divorce.

Mr. O'Malley

No. She can apply under the Guardianship of Infants Act.

Mr. Alexis FitzGerald

Not for herself.

Mr. O'Malley

No. She will get enough for the children. That is all that is done now because it has the added advantage that proceedings under the Guardianship of Infants Act are heard in private and it pays wives to forego their own right and get a correspondingly more substantial sum for the children there.

Mr. Alexis FitzGerald

Is that not very inadequate?

Mr. O'Malley

It is not very inadequate. The High Court can give whatever proportion of the earnings it sees fit. The provisions in the Bill are meant to cover the case where the family concerned is not so wealthy that it would be worth the while of the persons involved to go to the High Court. What we require is a summary remedy for the wife which she can get speedily in her own local district court. Depending on the number of children, she can get up to £20 or £25 per week, provided her husband's income is high enough. I do not feel that she is being treated ungenerously in this Bill. If we were to go beyond the limits proposed, you might find yourself in the situation that doubts might be cast on the desirability of giving power to the district court to award such large amounts to a litigant, having regard to its ordinary jurisdiction.

I want to refer to section 16 which proposes to give a right of audience to solicitors. I want to refer to it particularly in the context of the EEC because that is one of the reasons why the section is in this Bill. At the moment Britain and ourselves are in the same difficulty on the legal side of the EEC, a difficulty that does not, I think, arise for the member states or the other applicant states. That is the question of who, in our legal profession, should have the right of audience in the courts of other member states and who should have the right of audience in the court of the Community itself.

The present position in the EEC is that members of the Bar of one member state will have the right to practise subject to certain safeguards of one kind or another in the courts of other member states and also the right to practise in the Community's Court. We would be faced with a difficulty on our entry if this section were not enacted. We might have arbitrarily to chose which of the two branches of the profession would have that right to practise all over the Community. I would say if you were to interpret the words "Members of the Bar" as they have always been interpreted in this country, the right might be confined to barristers. I would find that limitation difficult to accept. This section, if it does nothing else, certainly gets over this particular problem for us.

It also saves us from a problem that could arise if the two branches of the profession were amalgamated. This does not appear to be a popular topic among lawyers. Most laymen cannot see much justification for the continued division which is so staunchly defended by so many lawyers. However, this is not a topic that really arises on this Bill. I have no immediate plans in regard to amalgamation except indirectly in so far as legal education is concerned. I have said on more than one occasion that I regard legal education as being in a sorry state in this country. It might be greatly improved if we amalgamated the very limited resources which we have for such education. At the moment, there are, I think, six law schools between the various university colleges and the two professional schools. Altogether we have only 500 or 600 law students, and we have a great splitting up of resources. I have no wish to force any amalgamation on the two branches of the profession and I have no intention of doing so. However, I earnestly ask the profession to rationalise their educational establishments.

I think I have covered most of the points that were raised. Any that I have not covered can be raised again on Committee Stage.

Mrs. Robinson

In relation to the right of audience of solicitors, is it not correct that in the Community context it is not the intention in Britain to give the right of audience to solicitors and that an agreement has been worked out whereby they will have an arrangement with the Community? They have not seen this as a great problem in relation to representation in the European Court.

Mr. O'Malley

I understand the position is that these matters are being discussed but that no concrete arrangements have been finalised.

Mrs. Robinson

But they do not see themselves being given the right of audience on that ground.

Mr. O'Malley

Even if it were not necessary on EEC grounds, section 16 is desirable on general grounds anyway. It is hard to justify the present situation, which is a bit artificial. I do not see it being used to alter existing practice all that much. Most wise solicitors would not feel themselves competent to go in and argue an important running-down action in the High Court. They would not feel themselves competent to argue an important appeal in the Supreme Court. But there are a lot of instances of comparatively minor and straightforward cases where it is very much in the interest of the client that a solicitor alone should appear for him. There is a lot of routine matter. I have no wish to take anything away from the Bar. I am sure it will not take all that much, in any event, but it seems very hard to justify the present situation. The lay client finds it hard to accept that quite small things, purely routine things, like applying for adjournments and things of that kind, cannot be done unless one instructs a member of the Bar.

Question put and agreed to.

An Cathaoirleach

Next Stage?

Mr. O'Higgins

I suggest there should be at least a fortnight. I do not want to hold up the Minister in view of what he has said, but I should like an opportunity of considering it. We had not much opportunity for the Second Reading. I mentioned this at the start.

Committee Stage ordered for Wednesday, 21st July, 1971.