Seanad Éireann debate -
Wednesday, 3 Nov 1971

Vol. 71 No. 9

Courts Bill, 1971: Report and Final Stages.

Professor Kelly

I move amendment No. 1:

In page 3, to delete section 6, lines 16 to 20, and substitute therefor the following:

"( ) Notwithstanding sections 3 and 38 (2) of the Act of 1936 and section 48 of the Act of 1961, every appeal from a judgment of the Circuit Court in an action tried by a judge and jury, or from any other judgment of the Circuit Court founded on the verdict of a jury in a civil case, shall be made by way of motion before the High Court for a new trial, and the allegations on which such motion may be grounded shall include the allegation that the verdict of the jury was against the weight of the evidence or was otherwise perverse; and in any such appeal, the High Court may, in lieu of ordering a new trial, set aside the verdict, findings, and judgment appealed against and enter such judgment as the Court considers proper."

Last Wednesday the Minister defended section 6 of this Bill which proposes to do away with jury trials in civil issues in the Circuit Court by relying on the argument that he thought it anomalous that an issue which had been decided by a jury of 12 citizens should be subject as it is to an appeal by way of rehearing before a single judge of the High Court on circuit. I agreed with the Minister, in commenting on his speech, that this was an anomaly; and although we pressed to a vote our amendment which proposed to delete this section, I indicated that I would put down an amendment seeking to remove this anomaly which I thought was the correct way to deal with it rather than by doing away with the right of the litigant to trial of a civil issue by jury in the Circuit Court, however seldom that right has been exercised in recent years.

I have tried to do that by means of the first amendment here to day. I do not claim that it is a perfect piece of drafting but I copied it as well as I could from the provision in the 1934 Courts of Justice Act, which provided for the original kind of appeal taken against findings of the Circuit Court, whether in jury matters or otherwise. That section in the old Act was repealed; and the way I have drafted this amendment, whether effectively or not, seeks to except from the effect of those appeals such judgments of the Circuit Court as are founded on the finding of a jury.

There is no issue between this side of the House and the other side on the question the Minister here emphasised, namely that civil actions have been very rarely tried in recent years before juries. We are agreed about that. But what we said here the last day was that we could see no reason why the mere rarity of such appeals should provide a reason for doing away with them altogether.

Let me point out while I am on the subject that the old Courts of Justice Act of 1924 speaks in terms similar to those that we use—the right of trial by jury of an issue of tort, even in a civil case. We feel that this right, even though it may be used very seldom, is being taken away unnecessarily.

The Minister said that he felt his position would be misrepresented. Everybody on this side, I think, was careful not to misrepresent it. We have accepted that he does not intend what I thought originally he might have intended—a frontal attack at some later date on the jury system in civil actions in the High Court. Of course there was no question of the jury system in criminal cases being under attack. We have accepted that unreservedly. We still see no reason why having a civil issue tried by a jury in the Circuit Court should be taken away. We do not see that the mere infrequency of such cases is any reason for doing away with it.

One of the arguments which we advanced the last day in favour of deleting this section was that the new jurisdiction of the Circuit Court going up from £600 to £2,500 in cases of contract and tort meant that litigants would be having fairly serious matters of perhaps personal injury decided by a judge sitting by himself, whereas heretofore for the same money they would have them decided by a jury in the High Court. That, I think, is a substantial argument and nothing the Minister subsequently said persuaded me that we were wrong in our point of view.

Since we met here last week I looked at the Third and Fourth Interim Reports of the Committee on Court Practice and Procedure in which the suggestion was originally made, I think, that the jurisdiction of the lower courts should be increased and also, as the Minister himself said, that the trial of a civil issue by jury in the Circuit Court should be abolished. It is true, that as the committee say on page 22, the recommendation that the right to jury trial should be taken away takes into account consideration the committee have already given to the question of increasing the jurisdiction of both the District Court and the Circuit Court. That does not seem to me to add up to a reason why in cases of a kind where a litigant might particularly wish to have a jury, the entire right should be destroyed.

The amendment which Senator O'Higgins and I have put down seeks to restore so far as concerns jury trials of civil issues in the Circuit Court the old position whereby appeals against such findings will not be by way of rehearing of the whole thing from start to finish by a judge of the High Court but on a criterion similar to that used today in appeals to the Supreme Court from a finding of a High Court jury: it will be an appeal by way of motion before the High Court for a new trial and grounded on allegations of the same kind as, so far as I understand the position, appeals to the Supreme Court against High Court jury findings are now based, including the allegation that the jury finding was perverse.

This will mean that, if the Minister will accept this amendment, of if there is something imperfect in this amendment if he accepts the principle of it and produces something of the same kind himself in the Dáil, the anomaly will be removed, litigants will still be able in the rare cases where it is desired, to have a civil issue tried by juries in the Circuit Court and to have an appeal against the jury finding not by way of rehearing but on a criterion similar to that which now obtains in appeals to the Supreme Court against a finding of the High Court jury. In other words, the appeal judge will not just substitute his own views for the jury's view—he will have a note of the proceedings in the court below in front of him for which, of course, rules will have to provide, and he will decide then not whether the jury were right in awarding £2,000 or £2,500, but that their award, whatever it was, was within the limits of what a jury might reasonably have come to the decision to make.

I do not want to be arrogant about this, but it seems to me that the case we have made is nearly unanswerable. I cannot see the necessity for doing away with this right, little use though there may have been made of it, and certainly no reason for doing away with it simply on the grounds that it is an anomaly merely because of the appeal system. I think it would be far more reasonable to reform the appeal system so far as these jury trials are concerned.

The last thing I want to say on this section is to draw the attention of the House to the last sentence which the Minister, I think, did not refer to. I do not say it was disingenuous of him not to do so but I should like to draw the attention of the House to the last sentence in the paragraph in which this committee said that their recommendation that civil juries should be done away with in the Circuit Court was based on the assumption that the jurisdiction of the Circuit Court would be increased. The committee said this:

In actions other than negligence actions, such as actions of defamation, false imprisonment, malicious prosecution and assault, we feel that, as the importance and seriousness of this type of case is not necessarily reflected in the damages, proceedings in the High Court with a jury should be available on the basis of the present limited jurisdiction of the Circuit Court, namely, £600.

I did not know the committee had recommended that—I admit it frankly —and I should have liked to have heard the Minister's comments and the feelings of his Department on it before this, because this is the very point I was trying to make the last day. You could have a case—and I gave the instance of the case where a citizen sued a police officer who had loosed a savage dog on him—in which not a negligent action but an action based on some deliberate fault was taken in which the plaintiff might want to have the feelings of 12 citizens and their adjudication on his case rather than that of a judge, without having to go to the expense of bringing his action in the High Court.

Unless I have misunderstood what this committee mean—and admittedly their language in the last part of the sentence is not too clear—it seems to me to amount to a recommendation that, even if the right of trial of a civil issue by jury is taken away in the Circuit Court, something as good as it should be left behind in the High Court. What I take that to mean is that there should be a special scale of costs of Circuit Court dimensions applicable in the High Court to cases of this kind in which the damages will not be very large, and that an unsuccessful plaintiff who sues in the High Court and recovers damages of less than the Circuit Court ceiling should not be stuck with having to pay costs on the High Court scale to his adversary.

I concede that I have been allowed to go somewhat far from my amendment. I put this amendment to the House on its own feet. Even if the House rejects it I urge on the Minister to bear in mind what seems to me to be the substance of what the committee suggested when they reported some years ago, and that, if he does insist on doing away with civil juries in the Circuit Court, he will make some special provision whereby citizens can still have actions of the kind I have outlined—deliberate torts— litigated in the High Court with a special provision as to costs in case they do not recover damages above the ceiling of the Circuit Court jurisdiction.

Mr. Nash

In ordinary civil cases there is nothing whatsoever sacrosanct about the jury case, if we are having a jury trial. In criminal cases the circumstances are completely different. In criminal proceedings the case is by the State against the accused because the accused is alleged to have committed a crime against the State. Therefore, the power, or the absence of power as the case may be, reflected in the minds of the people as shown or evidenced by the views of the 12 jurors is most important. Furthermore, in a criminal case before a person can be convicted the decision of the jurors must be unanimous. Therefore, there can be no doubt whatsoever as to a man's guilt if 12 ordinary citizens find he is guilty and it leaves the people in no doubt that he is guilty. For that reason a jury in a criminal case is most important.

A jury in a civil case is a completely different matter altogether. Litigation in a civil case is between two private citizens to ascertain certain rights. Those rights depend on fact and on law. If any two ordinary individuals have a dispute and wish to have justice done between them and if they were appointing an arbitrator, would they appoint a jury of arbitrators or would they appoint one individual? Let us forget the courts for the moment and put that question to ourselves. Would any two people who reasonably want to come to a fair decision between them put the matter to an independent arbitrator or would they put it to a group of ten or 12 people? I think there is very little doubt about the answer to that question.

There is nothing whatsoever sacrosanct about juries in civil cases. Among lawyers themselves I should say a very large percentage deprecate that it is necessary to have juries in civil cases, for many reasons—in the interests of justice, because with a judge you are dealing with a man who is trained to evaluate, who is trained to form an opinion as to whether a person is, or is not, telling the truth, how he stands up to cross-examination or how he falls down in his evidence. You are dealing with a man who is skilled in such matters. A very high percentage of lawyers believe that it is better to have a case decided by a man who is skilled in those matters than by a jury who have no legal training, who have never before had to evaluate evidence and who, perhaps, never again will have to do so.

However, there are a certain number of lawyers who would admit that it would be better to have juries in civil cases because in such cases sympathy is very important. But sympathy might be the very opposite of justice. If you have juries in civil cases why not offer the same arguments and have juries in contract cases? Up to some years ago there were juries in contract cases but it was found that such juries were not doing justice between the citizens of the State so the use of juries in contract cases was abolished. In England, today, the use of juries in cases of tort is, to a great extent, abolished and it has been found that the abolition of such juries has led to a situation where a person can have his rights decided at less expense, that he can have greater certitude in advance as to what the result will be and that his case will not drag on so long.

Senator Kelly has referred to the fact that juries in the Circuit Court heretofore were not much used. That is so and there is no doubt about it. It was a very exceptional matter to have a jury in a civil case in the Circuit Court and there was more than one reason for that situation. There was the reason that the Circuit Court judges frowned on them but, in my view, there was a more important reason. That more important reason was that the speculative litigant who did not have justice on his side felt: "My case will not necessarily be decided on emotive principles because if I get a decision which is not justified by the law and the facts the other side have a right of appeal to the High Court where a judge will decide, in accordance with the law and the facts, and therefore I do not gain anything". But if you had a system, such as is set out here, where on appeal all the judge decides is the question "Is there any scintilla of evidence whatsoever on which a jury could so hold?"; and, if he finds that there was a scintilla of evidence on which the jury could so hold and that, therefore, their verdict is not perverse, he must confirm their decision.

That is the position on an appeal from a jury in the High Court and that is the position which we are asked to have on an appeal from the Circuit Court. To my mind this would be, in the interests of justice, a most retrograde step. In doing justice between man, between citizen and citizen, it will mean an increase in expense and it will result in delay in the ordinary running of the courts. There are no jury cases which can be disposed of in one day.

At the outset the jury are called, they are empanelled and objections are stated and so on. That can take up to half an hour. That done, the plaintiff's counsel addresses them in an emotive manner and that will take another half hour or an hour. It is only at the end of that hour that you get down to the business of giving evidence and having cross-examination. At the close of the plaintiff's case and again at the close of the defendant's case the jury are addressed for half an hour or an hour by each side.

If one realises that our courts sit only for four hours each day one will realise that it will cost one or the other of the unfortunate litigants in a case in the Circuit Court before a jury involving, say, £300, about £480 for the four hours and the whole matter becomes utterly absurd. I calculate that between witnesses, counsels' fees and solicitors' fees it will cost something in the region of £2 per minute at the very least and I would say that is a conservative calculation. I am also taking into account in that figure the loss to the State of 12 jurors having to leave their work for the entire day and their expenses for travelling and so on. I think it would be a most retrograde step and I sincerely hope the Minister will not accept this amendment.

Mr. O'Higgins

I find it difficult to understand the definition of a retrograde step when one is merely trying to preserve the status quo. I do not know whether Senator Nash fully appreciates that there was, and has been for a considerable length of time, a committee sitting, studying and making recommendations, namely, the Committee on Court Practice and Procedure. It might have been an interesting experience for that committee had Senator Nash opted to give evidence before them. On my reading of the observations of that committee in relation to the matters which Senator Nash has just spoken of, their views do not seem to bear out in any way the arguments which Senator Nash made.

These were questions which were considered by the committee. In the sections dealing with jury matters, on page 17 of the Third and Fourth Interim Reports—I do not intend going into the reports in detail—I want to call Senator Nash's attention to some passages which seem to be particularly relevant and appropriate to the kind of argument he made a few minutes ago.

Dealing with the question of length and the expense occasioned by having juries, the committee say that they are satisfied that trial by jury is inherently likely to be longer and for that reason to be more costly than trial by judge alone on the same case. However, they go on to say:

It is not, however, possible to state with any accuracy, nor has any evidence been shown to be available on the point, the degree by which the trial is lengthened when it is a trial by jury instead of by a judge alone.

Senator Nash apparently feels that he is in a position to break down into fractions the costs of a trial by jury and to decide exactly what percentage increase is occasioned by reason of the fact that a trial takes place before a jury. But according to this report they say:

It is not, however, possible to state with any accuracy, nor has any evidence been shown to be available on the point, the degree by which the trial is lengthened when it is trial by jury instead of by a judge alone.

Later on in this particular section they also say:

There is also no evidence that the system by trial is in any way disproportionately longer.

They go on:

It is, however, important to bear in mind...

And I think that this is the important thing in relation to Senator Nash's remarks:

It is, however, important to bear in mind that while a litigant desires to have his case tried as cheaply as is consistent with a proper hearing and examination of the case, his first requirement is a satisfactory trial rather than a speedy or cheap trial. Few litigants have more than one lawsuit in a lifetime. It becomes a matter of close personal concern to the litigant to have his case painstakingly examined and tried and to feel that he is being treated as an individual rather than a statistical digit in litigation. The outcome may affect his health, fortune or reputation for the rest of his life. To the judge and the counsel who are professionally engaged in litigation every day of their working lives, one case may appear to be not dissimilar to another but to the litigant his case is the only one which matters.

Then they go on to say:

The trial, which on occasion may appear to be unduly long to the professional observer, does not appear so to the person whose fortune or reputation is at stake. Whether a case be tried before a judge alone or by a judge and jury, every practitioner knows that the most frustrating experience a litigant can have is the experience of not having his case fully examined, and the most bitter feeling of injustice, and one which may rankle with a litigant for a lifetime, is the feeling, whether justified or not, that his case had not been fully heard.

And this is the relevant portion:

Jury trial is inherently less likely to give this feeling to the average litigant than trial by a judge alone.

That is what this committee had to say about it. That is what this committee had to say in effect about the arguments that Senator Nash has been putting up here.

So far as I am personally concerned, I should prefer to consider this amendment in the context of the arguments which were used by the Minister on the Second Stage and Committee Stage discussions of this Bill. Those are the only relevant arguments to the action which the Minister is taking in this Bill by disallowing jury trial in civil cases in the Circuit Court. As I understood his arguments, the Minister made a simple and what might appear to be a logical case: (1) the simple case that the right to trial by jury in civil matters in the Circuit Court was very seldom availed of; (2) that an anomaly existed in that, while a right to trial by jury existed if an appeal was taken from that to the High Court, it was to a judge sitting alone in the High Court.

As regards the first argument—and I think these were the only relevant arguments—certainly we cannot consider this in the context of a tirade against the conception of jury trial in civil cases at any time: that simply is not in question. It may be fair to argue on another occasion the merits or demerits of the jury system; that is being considered by the committee whose report I have quoted. However, it does not seem to me that that is relevant here, because all that we are concerned with is the question of the abolition of the right to trial by jury in civil cases in the Circuit Court for the reasons that the Minister gave, that is, that the right is seldom exercised and that in any event an anomaly exists.

As regards the argument that the right is seldom exercised, I cannot for the life of me—and I considered this—persuade myself that the fact that a right is seldom exercised is adequate justification for confiscating that right and for taking it away altogether, as the Minister is now doing. I could give various examples, and I am sure that the Minister would be shocked to think that in other cases, because people do not insist on their rights, those rights should be taken away.

For example, the Minister is entitled to stand for election at a general election—and, please God, he may do so before long. The fact that he may choose not to do so, and that he may only once in his life decide that he will stand for election, does not give anyone the right to take away from the Minister his right to stand as a candidate at a general election. Any Minister would feel very shaken at the idea that because he prefers not to stand at the next election he should be deprived of his right to stand thereafter. The Minister and myself and others who hold a driving licence, for example, have the right to drive cars. If we choose not to drive a car during the currency of our licence, is that any reason why our right to drive the car should be taken away from us. That is the kind of thing that is being done in this Bill under that argument of the Minister. Because the right has not been exercised to any great extent, therefore, the way to deal with it is to withdraw the right altogether, even though for all we know, because of the increased jurisdiction or for any other reason, people in the immediate future may wish to exercise what has heretofore been a right. The quotation Senator John Kelly gave of the committee's report in relation to an alternative being provided if what the Minister seeks to do is in fact done, if the right to a trial by jury in the Circuit Court were taken away, is, I think, very important. It shows that the committee appreciated fully that, whatever might be said about some types of actions, there were other types of actions where the right to trial by jury in civil matters in the Circuit Court was of such importance that if there was to be any interference with that right something should be put in its place. The suggestion of the committee was that, in effect, the High Court should be entitled to deal with these cases, even though they were within the Circuit Court jurisdiction.

Therefore, I do not think that in any sense can the report of the committee be relied on as giving carte blanche to any Minister or any Government to take away the right of trial by jury in all civil cases in the Circuit Court. To my mind, the recommendation made by the committee in this matter not only shows how seriously they regard that right in certain cases and are concerned to see that it would be preserved in some shape or form. But it emphasises the case that has been made on this side of the House both on the Second Reading and on the Committee Stage. Their recommendation might, in itself, create something of an anomaly in that, if it were adopted, you would have cases proper to the Circuit Court being heard in the High Court. Once we recognise, as the Minister recognises, that there is an anomaly in the present situation, the right approach to this is to try to get rid of the anomaly.

I strongly suggest that the method being proposed in this amendment would be preferable to the method suggested by the committee because it would retain the right of trial by jury in the Circuit Court and, at the same time, would remove the anomaly of an appeal being taken to a judge sitting alone in the High Court against the Circuit Court verdict arrived at by a jury. While the Minister is probably committed to the course on which he has embarked, I think it is a wrong course. It is not a course which is likely to help the administration of justice. There might be different arguments for and against the whole concept of trial by jury, but that is a different matter. It does not arise in relation to this amendment.

The reason I dealt at some length with Senator Nash's contribution was that the Third and Fourth Interim Reports of the committee contained the answers to the arguments he was making. Were it not for that reason I would have felt that in relation to this amendment and in relation to this Bill, Senator Nash's arguments were totally irrelevant. We should consider this Bill and we should consider this amendment in the context of the arguments the Minister has put up for taking away the present right of trial by jury in civil cases in the Circuit Court, and this amendment provides the Minister with an answer to the argument based on the anomaly which exists. I hope that on reflection the Minister will be convinced that there is little to be said, either by way of logic or otherwise, for his other argument that, because the right is not exercised, it should be taken away.

Mr. E. Ryan

I wonder whether Senator O'Higgins is not pushing his point too far when he presses that, merely because a right is not used very much, this is not a good reason for abolishing it. Surely the history of the evolution of the legal system is a history of rights, of causes of action, of legal procedure, of rules and regulations which have fallen into disuse. Again and again on looking at textbooks you will find that such and such used to be the way in which this problem was approached but this particular procedure fell into disuse and eventually was abolished. Surely this is the history of the evolution of the legal system. You could get hundreds, even thousands of causes of action, of rules, of procedures and laws which have fallen into disuse and been abolished and you could say about all of them, if you wanted to use Senator O'Higgins's argument, that there is no reason why a particular right of the citizen should be abolished merely because it is seldom, if ever, used. If you did accept that argument over the years, you would have a vast complex of law, procedures, 90 per cent of which were never used, but kept there on the basis which Senator O'Higgins has argued that they should not be abolished merely because they were seldom, if ever, used.

The fact that, over the years, the jury system has seldom, if ever, been used in the Circuit Court is a good argument for saying that the public have had the opportunity of using it but obviously do not use it and in the interests of bringing our legal system up to date and consolidating it, it should be abolished. One of the arguments used by Senator O'Higgins in favour of the jury system was that litigants liked the jury system because it gave them the appearance, the illusion, in many cases that they were getting justice and to that extent——

Mr. O'Higgins

I hope Senator Ryan is not purporting to quote me.

Mr. E. Ryan

I am analysing what the Senator has said.

Mr. O'Higgins

Senator Ryan will appreciate that I was quoting the report of the committee.

Mr. E. Ryan

With approval.

Mr. O'Higgins

With approval, certainly.

Mr. E. Ryan

It is true that justice must not only be done but also appear to be done, and Senator O'Higgins was quoting with approval this argument in favour of juries, that litigants would have the feeling because the cases went on so long and because there were speeches to the jury and so on, that they were obtaining justice, which in many cases was possibly an illusion. The important thing in considering whether or not we should have juries is to consider what is the most effective, the most efficient and the fairest way to ensure that litigants get a fair hearing and that they get a just verdict. To say that we should have a system which, in my submission, very often merely gives the illusion that they are getting justice, when in fact they are not, is not a good argument in favour of juries.

The other arguments which have been put forward both on the last Stage and today were on the basis that juries were more sympathetic and more generous from the plaintiff's point of view. These are improper arguments, because juries have no right to be sympathetic and no right to be generous. They are human beings and are entitled to be sympathetic with one or other of the parties but they must not allow that sympathy to interfere with their verdict. If they do allow their sympathy to interfere with their verdict, they are not acting in accordance with the oath which they have taken, which is to hear the evidence and to make a finding in accordance with the evidence. Secondly, if they are allowing their generosity to run riot, if they are being generous with somebody else's money, again they may be acting in a very human way, but they are not acting in accordance with their oath and they are not acting in the interests of justice.

Some of the arguments put forward in favour of juries are not arguments in favour of a better legal system. They are irrelevant to a proper legal system and, in fact, show that the jury system is often distorted. The only thing I have to say about this amendment is that, if the Minister and the House was disposed to allow juries to continue in the Circuit Court, then this is a logical and consistent amendment and one which has a lot to recommend it, but I do not think we should have juries in the Circuit Court.

Mrs. Robinson

I should like briefly to support this amendment for the reasons which have been given, many of which have been re-stated from the Second Reading and the Committee Stage. There is one argument which has not been raised in support of the retention of the jury in civil cases in the Circuit Court and that is the practical reality of the circuit. I discussed this with a number of what are called circuit lawyers in the Law Library who go out on circuit every week and they emphasised that by the nature of the circuit it is the same circuit judge over a period of a long number of years who goes round and that in the type of case to which Senator Kelly has referred or perhaps a more political type of case or in a defamation case, a circuit judge might have rather fixed ideas. A judge is human and he would be applying a lay person's judgment to the assessment of the facts as well as being a judge of the law and this might be very much to the disadvantage of the litigants in the circuit. Certainly, the lawyers were of the firm opinion that, if the option was left open, the litigants would have the option of applying to have a jury try the case.

It was admitted that this is not done very often but that it is an important safeguard. Once again it was emphasised that because we are increasing the jurisdiction to the larger sum it is not sufficient to look at the present practice in the Circuit Court. We ought to look also at the practice in the High Court at that level when juries are quite often asked for. Therefore, I wish to raise this argument in favour of the present amendment which meets the only cogent argument of the Minister: that the position as it at present exists is an anomaly, that you can have an appeal from a trial in the Circuit Court with a jury to a judge sitting alone. This amendment will very adequately meet that argument. Very strong and substantial reasons have been given by the Senators on this side to retain the present system and I add to them the rigid nature of the circuit, the fact that a judge may over a period of 20 years be the circuit judge and be the arbiter of the position and that this could give rise to problems on the circuit.

Minister for Justice (Mr. O'Malley)

For a variety of reasons I would ask the House not to accept this amendment. First of all, I should like to say that I do not want to enter into a general discussion on the merits or demerits of civil trial by jury. I made my position with regard to that clear the last day. I accept the committee's recommendation for the reasons that they give. I have no intention of abolishing or seeking to limit the right to trial by jury in a civil action in the High Court, notwithstanding the fact that I am well aware of what Senator Nash has said with regard to the situation in England where civil juries in the High Court are comparatively rare. Indeed, I might almost say very rare. One has to go to some lengths to get a jury. A special application must be made. No injustice has been complained of there. Indeed, the alleged benefits of not having a jury have often been commented on. Fairly substantial High Court actions in England can be disposed of within a day in contrast to our position. However, from the point of view of this amendment to this section that whole argument is somewhat academic and, having made my position clear, I do not propose to go into it any further.

In order to examine properly the amendment that is before the House it is necessary to deal in some slight way with the historical development of the present situation with regard to appeals. Under the 1924 Act and until the passage of the Courts of Justice Act, 1936, all appeals from the Circuit Court in civil cases, whether jury or non-jury, were heard by two judges of the High Court sitting together in Dublin. That was irrespective of where the case was heard. If the two judges were in agreement their decision was final, unless they certified an important question of law was involved when an appeal lay to the Supreme Court. If they differed in their decision they were required to affirm the decision appealed against, but an appeal lay to the Supreme Court at the instance of either party. That appeal was heard on the official stenographer's report; but there was power to admit additional evidence, oral or on affidavit, and to re-hear evidence contained in the report. There was also power to order a new trial.

That system clearly was a ponderous, long-winded one and very unsatisfactory, because it meant that in most cases where there was any doubt at all you had to have two appeals and you ended up in the Supreme Court in any event. The expense of it was considerable and litigants were also faced with the situation that, while their case was perhaps heard in Killarney or Letter-kenny and possibly involved only some very moderate amount of money like £50 or so, they had to go to Dublin for their appeal. In many cases they had in practice to appeal to two courts in Dublin—a court of appeal of two judges and a Supreme Court of three or five. That situation was changed in 1936 because it was obviously very unsatisfactory.

The present situation was achieved by part IV of the Courts of Justice Act, 1936. In the case of civil actions in the Circuit Court, where no oral evidence was given at the hearing, an appeal lies to the High Court sitting in Dublin with a single judge, and this arrangement also applies to appeals in civil actions with oral evidence heard in Dublin. In the case of actions heard in the provincial circuits, whether they are jury or non-jury actions, the appeal lies to the High Court on circuit in accordance with the machinery in part IV of the Act and falls to be heard and determined by a single judge.

This amendment was not discussed in any great detail on the debate today. It was not scrutinised to any great extent. Most of the speeches were directed in more general terms to the value, or otherwise, of juries. The amendment itself does not stand up to very great scrutiny. Notwithstanding that, even if it were drafted in a way that did, I still could not accept the principle underlying it for reasons I will go on to later.

The effect of this amendment would be to introduce a new form of appeal in the case of jury actions in the Circuit Court and that appeal, under this proposed amendment, would be to the High Court in Dublin regardless of what circuit is involved. I know this probably was not the proposer's intention, but it has been discovered on a careful reading of the amendment that this is the effect of it. Part of the reason for this may be due to the fact that at least one of the sections which are referred to in the amendment has in fact been repealed. That is section 3 of the 1936 Act. There would, therefore, in consequence of this, be two appeal systems running together. One would be for non-jury appeals from the Circuit Court to the High Court, and they would be to the High Court on circuit or the High Court in Dublin, as the case might be, with a full re-hearing in each case. The second appeal system which would arise under this amendment, if it were accepted, would arise only in the case of appeals from the decision in jury actions. In this latter type of case—the appeal from jury actions—the transcript would be required, which would involve the attendance of an offical stenographer at a civil jury trial, wherever it might be held in any of the circuits in the country. Apart from the difficulty that is experienced at the moment, has been for some time and no doubt will be to an even greater extent in the future, of getting official stenographers, this also involves the appellant in very heavy expense for the transcript. As a matter of general policy I have always sought, as have the Government, to try to reduce as much as possible the undoubtedly heavy costs of litigation. I have experience myself, in appeals from the High Court to the Supreme Court, of paying several hundred pounds for a transcript. The top copy, which is the first one, the appellant must lodge in the court to which he is appealing, is extremely expensive. In a case of some length the cost of it runs regularly to several hundred pounds. This money must be paid and the transcript put down before any steps can be taken by the appellant.

Professor Kelly

That was the workmen's compensation.

Mr. O'Malley

The cost of the workmen's compensation was very different. There was a special way of doing it. What I am saying, and I cannot be contradicted on it, is that in any sort of a heavy High Court case the cost of a top copy of a transcript can run to several hundred pounds. That is an appalling burden on a litigant and may very often be a deciding factor as to whether or not he appeals. It should not be a bar in any way and it would be one of the consequences of the acceptance of this amendment.

Professor Kelly

I should like——

Mr. O'Malley

I did not interrupt the Senator. He has a right of reply which I have not got. I have waited for almost an hour to speak. If the Senator found it possible to restrain himself it would be a help. In effect, this amendment is a return in part at least to the pre-1936 system of appeal from the Circuit Court, which was deliberately abandoned in favour of the present system, which has proved to be much more efficient.

Senator Kelly and Senator O'Higgins mentioned in the course of their speeches on the amendment that I referred on the last occasion to the rehearing by a single judge of an appeal from the decision of a jury in the Circuit Court as an anomaly. I made a close examination of the Official Report on the last day which shows that I did not refer to it as an anomaly. It was referred to a number of times by Senator Kelly and Senator O'Higgins as such, and in one sense it could be regarded as that. But I do not think that an anomaly is a correct description of it, because an anomaly, as I understand it, would be something which came about through the drafting of a section but which was not intended by the drafters of the section—something which came about in a limited number of cases through inadvertence.

This right of appeal to a judge sitting alone was established in 1936 and was intended quite clearly by the Legislators at that time to apply to appeals from civil juries. It is not correct to say therefore that the situation which we have at the moment and which I am seeking to rectify is an anomaly. It is a fact of the existing procedure. I am not saying in any way that it is wrong. I am just saying it is a fact and that, because it is a fact, it is a bit pointless having a jury system that is not used for the very reason that the appeal is by way of full rehearing.

One of the consequences of Senator Kelly's amendment here today would be to give one type of appeal to those who are appealing from a non-jury decision of the Circuit Court but to give a different type of appeal to those who are appealing a jury decision. That, to my mind, would be the creation of a very definite anomaly, because I cannot see why a man who has not had a jury should be entitled to what must be the superior type of appeal, or the preferable type of appeal—an appeal by way of full re-hearing—whereas a man who has had a jury in the Circuit Court is limited solely to a motion for a new trial.

As I understand it, the amendment in Senator Kelly's name is broadly analagous to the type of appeal by way of motion for a new trial from the High Court to the Supreme Court, but it seems to be somewhat broader than that because it gives the High Court, unlike the Supreme Court, the right, in lieu of ordering a new trial, to set aside the verdict findings and judgment appeal against and to enter such judgment as the court considers proper. The Supreme Court except by consent, as I understand it, has no right to do that. In the absence of consent on an appeal it must remit for a new trial if it decides to upset the verdict of the jury or the judge in the High Court. Quite clearly there would be at least one, if not two, very serious anomalies as a result of this amendment. You would have the extraordinary position that a man who did not ask for a jury could have his case retried, whereas a man who did ask for a jury could end up with a new trial, but would be by no means certain of getting one. If he appealed by way of motion for a new trial he might or might not get that under the amendment.

Unlike the Supreme Court powers, the High Court would be given power to decide without sending it back for a new trial. This would give rise to such a serious anomaly that it could, for one thing, cause great resentment among litigants. They would find it very hard to understand why one type of appellant should be entitled to a full rehearing, which is generally what they want and what suits them better, and another type of appellant should be confined to an appeal by way of motion for a new trial based on a transcript which costs him a great deal of money.

In that type of appeal to the Supreme Court the litigant is usually never there, because he cannot follow what is going on in any event. He finds it very confusing and very difficult. The sort of appeal that they want and like is an appeal by way of full rehearing. Quite clearly that is not feasible in the Supreme Court, but it has been found to be feasible in the High Court on circuit. It would be anomalous in the proper sense of that word to deprive such an appellant of that right which he has enjoyed, in not just the technical but also the literal sense of the word, since 1936.

Again, I want to reiterate that, unfortunately by virtue of the way this matter was drafted—by quoting a section that is repealed and because of the way it is worded—there is the further anomaly that an appeal of this nature, as proposed here in the amendment by Senator Kelly and Senator O'Higgins, without that intention on their part, would in fact have the result of having all those appeals heard in Dublin. I have said enough to convince the House of the fact that this amendment of Senator Kelly's would create serious anomalies where there really are none at the moment and would cause a lot more difficulty and hardship than exists under the present situation or under the situation as proposed by me in the Bill. For these reasons I would ask the House to reject this amendment.

Professor Kelly

The Minister is clearly determined to push this section through. I do not like to speak in a severe tone about it because I want to acknowledge that, unlike the last occasion the Minister was here, he has come a good distance to meet us on several of the points we have raised. I presume that his refusal to meet us on this point is based not on the political necessity of having to go back to the Dáil but on his sincere conviction.

In regard to what Senators Nash and Eoin Ryan said, it was they, I think, who opened up the scope of this discussion, and almost everything they said amounted to an attack on the jury system as such. I do not want to do either of these gentlemen an injustice, but neither of them dealt with the point at issue, namely whether the attempt being made by the Minister to remove juries from the Circuit Court for the reasons he had given was fair or not. Senator Nash spoke about the waste of time taken up in swearing a jury and the length of time it took to explain issues to them. All these matters are equally applicable to the existence of a jury in the High Court and to that extent Senator Nash's remarks were irrelevant.

Senator Ryan joined him in attacking the entire jury system but he added a few footnotes based on what he supposes to be the history of the law, saying that it could very largely be described as the history of the disuse of various courses of action. It is perfectly true that various legal forms fall into disuse but the process has been one, generally speaking, in which a legal form has fallen into disuse only because it has been replaced by a better one.

The Senator must know perfectly well that, no matter where he looks, he will find that the history of various parts of the law has been a history of improvement, of greater sophistication and, in most areas, of greater liberalisation. All he has to do is look at the history of criminal appeal, the history of the rights of an accused person to defend himself, to give evidence on his own behalf, to be represented by counsel. These are matters, of course, in which there have been changes in procedure, in which old forms have gone by the board and new forms have replaced them, but these have been improvements.

The reason why there was so much trouble in this country three years ago with Deputy Moran's Criminal Justice Bill was because that Bill proposed to take away from people rights, or something which could be nearly described as rights, which they had enjoyed for a long time, and to put nothing in their place. That is the reason why there was an outcry about the Criminal Justice Bill and that is the reason—although I do not want to make an outcry about this, I recognise there is no such intention here—why we object to section 6 of this Bill.

Senator Ryan obviously dislikes juries either in the Circuit Court or in the High Court. It is plain from his desire that they should be abolished—and from his coupling with that desire his remarks about their tendency to show sympathy—that he believes that, if they were abolished, the people who would benefit from it would be the defendants and the people who insure defendants, That, to me, is a poor reason for abolishing juries. It seems to me that we should drag that reason out into the open and look at it. We should do that if the matter were strictly relevant here today, which it probably is not. The question of whether a jury is a fit organ to decide issues of negligence is one which, I suppose, is relevant to the amendment here. I cannot see that a jury, even if it may consist of 12 citizens who tend to sympathise with people who are injured, should be thought to take the wrong view of an issue of negligence, or an issue of the measure of damages.

Leaving aside these questions, which mostly consider the kind of tort in which the defendant is either insured or insurable, I want to remind the House and Senator Ryan that my objection to section 6 is not so much based on the question of plaintiffs in actions of negligence being deprived of what formerly had been a right which was almost never exercised, but is connected with their rights in other kinds of tort which are not insurable. Senator Ryan would have done better if he had concentrated on this argument, which is central to our case, that in matters of assault, defamation, of false imprisonment, malicious prosecution, conspiracy —things like that in which the defendant in the typical case is not insured and cannot be insured. These are typical of the kind of case in which the plaintiff might wish to have a jury. We see no good reason to take that right away from him.

To come to what the Minister has said. He did not explain—that may have been out of consideration, for my feelings—why it was that the High Court in my amendment necessarily meant the High Court in Dublin. My understanding, which may be wrong, is that the High Court can exist in a number of places. The intention certainly was that the appeal here should be taken to a single High Court judge travelling the circuit as High Court judges do twice a year. That, however, is a small point. If the Minister had been disposed to accept the principle behind this amendment it is a matter which could easily have been cured, and still could be cured, in the Dáil later on.

So far as the other matters raised by the Minister are concerned, they fall basically under two headings: first of all, the question of anomaly; and, secondly, the question of expense. I have looked quickly through the Seanad Report of the last day and I cannot find the word "anomaly" being used by the Minister; but, nonetheless, he spoke of what he called the right being illusory and illusory because, once exercised, it was subject to rehearing by a judge sitting by himself. Probably I condensed that into the word "anomaly", but I think that is an anomaly; and it should have never have been allowed to have come about that civil issues tried by a jury were subject to appeal by way of rehearing by a High Court judge sitting by himself.

The Minister said that, were this amendment or something like it to be accepted, what he described as "a real anomaly" would then result, because one kind of person in the Circuit Court —namely, the man who had opted for trial by a judge alone—would be entitled to what he described as a better kind of appeal than the man who had opted for trial by jury. That is entirely a matter of opinion—and a matter, perhaps, of the accident of the judge's temperament—whether of not it is going to be a better kind of appeal.

It also depends on whether you are looking at it from the plaintiff's point of view or from the defendant's point of view. If I were a plaintiff and had brought an action for assault of defamation in the Circuit Court with a jury, had recovered damages as a result of that jury's award, I know what kind of appeal I would think better. I would far sooner have my appeal heard by a judge, who was limited to deciding whether or not the jury's finding had been perverse, than to have my appeal heard by a judge who could rehear the entire evidence from start to finish and replace the jury's point of view with his own. I would not be in any doubt about which of these two appeals would be the better.

The Minister is not only making a large assumption but, perhaps unintentionally, confusing and misleading the House when he says that an appeal by way of rehearing is better than an appeal of the kind which this amendment suggests. It depends entirely on the point of view of which litigant you have in your mind. A plaintiff who has got a jury award given, will not think that an appeal by way of rehearing is better. He will think that it is worse. Therefore, that argument is utterly without foundation. If it is true, it is only 50 per cent true. It depends entirely on what side of the case you are looking at the question from.

Finally, the Minister harped, loudly and long, on the question of expense. I know this is something—I hope he will not mind my saying this—which is a favourite theme whenever legal matters are being discussed between these two sides of the House. The Fianna Fáil Party like to create the impression that the Fine Gael Party consist of lawyers who are milking the public of their hard-earned money. A simple head count will show that the front bench of the Fianna Fáil Party in both Houses contains more lawyers than the Fine Gael Party. Even if that were not the case, to represent the matter as something—

Tomás Ó Maoláin

What has it got to do with the amendment?

Professor Kelly

That is what I should like to ask the Leader of the House every time it is mentioned, and it is frequently mentioned.

Mr. O'Malley

I was talking about the expense of transcripts.

Professor Kelly

The Minister and myself know that perfectly well. But the public, whom the Minister is hoping to reach through the Third Estate or the Fourth Estate, perhaps do not realise it. They may be in a situation where they say to themselves "There is a Fine Gael man trying to bring in legal costs again. Even if it is not for himself, it is for his pals." The Minister, of course, did not say that and perhaps he has not got it in his mind, but I want to knock it on the head. That is the reason why I committed the discourtesy of interrupting the Minister.

There is no question in my amendment of compelling litigants to use juries, and the Minister knows that perfectly well. This is not a question of obliging litigants to resort to juries in civil cases in the Circuit Court. All we are trying to do is to keep for them, if they see fit, their right of recourse to a jury which they have had up to now. Let them make their own minds up as to whether or not the expense is too great for them. Let them make their own minds up as to whether they can bear the expenses of a transcript. Let them make up their own minds about whether the issue is so important to them that they will put their hands in their pockets and pay for a transcript. I do not want to make that decision for them. Let them make that decision for themselves.

The Minister, perhaps not intentionally, has conveyed the impression in what he said here a few minutes ago that the effect of this amendment would be to oblige the incurring of expense or to inflict the incurring of expense on litigants who, if the Minister is able to protect them, will not have to undergo that expense at all. That is a completely false way of presenting the picture.

Mr. O'Malley

They would not have it if they did not have a jury.

Professor Kelly

If they do not want a jury they need not incur the expense. I am trying to keep the right and the option open for a litigant to say: "I want my action tried by a jury. I have reasons of my own for thinking that a jury will give me a better day out than a judge, a fairer hearing and a more satisfactory trial, and I am going to incur the necessary expense as a result. I intend to make that free choice." It is a free choice. This amendment does not seek to oblige a litigant of any particular class to resort to a jury. Even a defamation plaintiff or an assault, seduction or conspiracy plaintiff can still have his action tried by a judge if this amendment is accepted. If he wants a jury and is ready to pay for them I think he should be allowed to do so.

The Minister harped for some time on the expense of a transcript. Admittedly, a transcript is expensive; but in this country we operated from 1906 until five years ago in workmen's compensation cases with transcripts. It is true that the average workmen's compensation case might not have taken very long but many of them took up half a day and sometimes a whole day in the Circuit Court. Every word of the evidence about how he came to slip a disc or how he came to rap his knee went into the transcript and had to be written down before an appeal could be taken by either side. That situation was tolerated for 60 years in this country, expensive though it was; and to represent this question of the transcript as being an insurmountable impediment to accepting what is only an option is not far from being disingenuous. The Minister may not have meant it like that, but that is how I feel about it.

I shall not waste any more time of the House. The Minister is determined not to accept anything like this amendment. All I can do is appeal to him to think the matter over and to consider whether when this Bill reaches the Dáil he may be open to persuasion from somebody more persuasive than myself.

Amendment put and declared lost.

Government amendment No. 2:

In page 3, lines 37 and 38, to delete "Minister or Government Department" and substitute "State authority (within the meaning of the Act of 1961)".

Mr. O'Malley

This is a drafting amendment prompted by the remarks of Senator Kelly on the Committee Stage. The wording in this clause is a repeat of the wording in clause 4, paragraph A of section 77 of the Courts of Justice Act, 1924. This provision in the 1924 Act has not given rise to any problems. However, in more recent legislation it has been the practice to refer simply to proceedings by a State authority and to define "State authority" in the legislation. This was done in the Courts (Supplemental Provisions) Act, 1961, and this amendment proposes a similar approach. The 1961 Act defined "State authority" as being each of the following:

(a) A Minister of State,

(b) the Commissioners of Public Works in Ireland,

(c) the Irish Land Commission,

(d) the Revenue Commissioners, and

(e) the Attorney General.

The examples I gave on the last day of "Government Department" in the section as it originally stood were, in fact, correct.

Amendment agreed to.

Government amendment No. 3:

In page 4, after line 47, to insert the following subsection:—

"(5) An order under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder."

Mr. O'Malley

This amendment provides for the laying before each House of the Oireachtas of any ministerial order under section 15 specifying summary offences for early trial in the District Court and for the annulment of the order should either House pass a resolution to that effect. The amendment arises out of a suggestion by Senator O'Higgins on Committee Stage. It will achieve the same end result as the amendment of Senator Kelly on Committee Stage, which proposed that a draft of the order be first approved by the Oireachtas. The Government amendment has the advantage that the involvement of the Oireachtas will not result in delay in bringing these urgent cases of summary jurisdiction before the court. Any such delay would, of course, defeat the whole purpose of the section.

The amendment provides also that any annulment of the ministerial order will be without prejudice to anything previously done thereunder. This reservation is necessary as otherwise the annulment could cause severe upset in the judicial process.

Mr. O'Higgins

Does the Minister contemplate that it would be possible to annul it?

Mr. O'Malley

Well, in theory.

Mr. O'Higgins

The Minister has met this fairly.

Mr. O'Malley

I hope Senator Kelly will be able to agree that I have been reasonably open on this Bill.

An Leas-Chathaoirleach

He would be out of order in doing so.

Amendment agreed to.

Government amendment No. 4:

In page 5, after line 56, to insert the following subsection:—

"(6) In this section ‘child of the husband and wife' includes—

(a) a legitimate or illegitimate child of the husband or the wife, and

(b) a child adopted by the husband and wife or either of them under the Adoption Acts, 1952 and 1964,

who immediately before the desertion of the wife by the husband, was wholly or partly supported and maintained by the husband and wife."

Mr. O'Malley

This amendment is designed to meet the point raised by Senator Kelly on Committee Stage that the section, as it stands, is restrictive as it refers only to a child of the husband and wife. The amendment proposes that a deserting husband shall be liable for the support of a legitimate child, an adopted child or an illegitimate child of either himself or his wife provided that immediately before the desertion the child was being supported by the husband and wife.

Professor Kelly

I should like to welcome this amendment and thank the Minister for taking this point into account, which, I think, is a substantial one.

Mr. O'Higgins

I, too, think the Minister has met the point raised by Senator Kelly. However, I am still a little bit troubled as to whether the Minister's amendment covers adequately all the cases that may arise. It deals with the position of an illegitimate child or a child who is the child by one or other of the spouses by a previous marriage. But I can visualise a case where there might not have been a legal adoption—for example, where a family, through a tragedy, are bringing up the children of a brother or sister of one of the spouses, such as a nephew or a niece, and might have reared the children from the time they were infants. Such a case does not seem to be covered even by the Minister's amendment.

Supposing it was the nephew of the deserted wife who was in question the husband might possibly make a case— I do not think it would be a reasonable case—as follows: "It was no concern of mine. She opted, out of the goodness of her heart, to take on the burden of caring for and rearing this child and it is no concern of mine." Supposing it was a case where a relative of the husband was in question, that the husband and wife when united agreed to rear a son of a brother of the husband who, with his wife, was killed in a car crash and supposing the husband, with his wife's agreement, took in the child and reared it and cared for it from babyhood onwards and then the husband deserts the wife leaving that child in the care of his wife?

Mr. O'Malley

I do not want to interrupt the Senator, but I think normally, in that situation, there would be an adoption order made.

Mr. O'Higgins

I agree that there should be, but I prefaced my remarks by referring to the case where there was not a legal adoption. The Minister has done his best to meet it, but it occurs to me that there is still that possible weakness there. The Minister might think of it between now and the time when he is considering it in the Dáil. I suggested to him a phrase which seemed to me to cover even such a case as I am talking about now, that is, by making reference to a child to whom the husband or wife have been in loco parentis. That kind of phrase would cover even the kind of case I am talking about now and the Minister might consider it when he is bringing this legislation before the Dáil.

Mr. O'Malley

I considered the use of the phrase in loco parentis but we found that it was extremely wide. It undoubtedly covered the sort of cases about which Senator O'Higgins is talking. It also covered a large number of other cases that one could reasonably include. One type of obverse case of which Senator O'Higgins has given an example is where, as often happens, a man takes over the care and custody of a child, say, of his brother who has perhaps fallen into bad habits. However the brother, who is the father of the child, is liable for the legal maintenance of the child. Notwithstanding that, the brother who now has custody of the child would be in loco parentis to the child. I think that the Senator would agree it would be inequitable to make him liable for the upkeep of the child, even though he is in loco parentis, because that liability would remain on the natural father.

That is only one example of where the use of the phrase in loco parentis would be too wide.

Mr. O'Higgins

I can see it has difficulties.

Mr. O'Malley

I think that almost every possible case is covered. I agree with Senator O'Higgins that the sort of example he gave may not be covered. However, in 95 per cent of this type of case there would be in practice an adoption order, because the adoption of nephews or nieces in those circumstances, say, after a tragedy in which both parents are killed, is frequent.

Mr. O'Higgins

Before he concludes, may I just put this idea into the Minister's mind? I am wondering if it might not cover it if specific reference was not made to the Adoption Acts if it was a child adopted by the husband and wife or either of them. The reason I am suggesting that is that the kind of case I have been talking about would probably be regarded as practical adoption, even though not adoption under the Acts.

Mr. O'Malley

I am afraid we must draw the distinction between the sort of practical adoption of that kind and the formal adoption under the Acts. One must highlight the adoption under the Acts, because it brings in its train certain rights to the child.

Professor Kelly

Perhaps a good way would be to accept Senator Robinson's Adoption Bill.

Mr. O'Malley

The Senator is never happy.

Amendment agreed to.

Bill, as amended, received for final consideration.

Question proposed: "That the Bill do now pass."

Professor Kelly

I want to speak on only one section at this Final Stage. I hope that I shall not be straying too far from order in doing so. I want to draw the attention of the House to section 17, which deals with the right of audience of solicitors and to draw the attention of the House again to the manner in which the Minister introduced this section, and defended it. In addition, I should like to draw their attention to things which he has said outside either House which are closely relevant to this point.

In his opening speech on this Bill in this House the Minister frankly put section 17 forward as being a step on the road towards the rationalisation—I am not sure if he used that word, but this is probably what he had in mind—of the legal profession by way of the merger of the barristers' profession with the solicitors' profession. He supplemented this by saying that this was something which we would have to face up to increasingly because of the demands which the approaching membership of the European Economic Community would make on us. This was a theme on which the Minister has spoken on a couple of occasions outside Parliament.

On the Second Stage debate I asked him if he would indicate in his reply to that debate just what there was in the Treaty of Rome, or in the regulations made under it, which required or pointed towards an amalgamation of the professions here. He did not deal with this point in replying to the Second Stage, nor has he dealt with it since. However as recently as last Friday, speaking in Cork, the Minister came back to this again and said that the Treaty of Rome contemplated a unified profession, and that a single practitioner would carry on a particular case before the Community's court from beginning to end.

I do not want this matter to stay hanging in the air. If he speaks on this Stage the Minister should tell us exactly what he has in mind about this, because he has left the House under the impression that section 17 is the first step in a process which will be necessary if this country adheres to the European Economic Community. I, myself, cannot see where the necessity lies. So far as litigation within this jurisdiction is concerned, there is nothing in the Treaty of Rome, or any regulation made under it, as far as I know, which requires the amalgamation of the professions. So far as litigation involving the Treaty of Rome or any instrument made under it or any instrument connected with it is concerned, there seems to me to be no reason whatever why litigation before our courts cannot be conducted in the same way as heretofore, namely, by counsel instructed by solicitor, or of course now by solicitors themselves, if they so wish, in the superior courts.

However, so far as the court of the Community is concerned, the Minister seems to fear that, unless we amalgamate these professions, no Irish barrister or solicitor will be able to——

An Leas-Chathaoirleach

The Senator is now going on to discuss courts other than courts mentioned in the Bill, and this is not appropriate on the Fifth Stage of a Bill.

Professor Kelly

I do not want to argue with your ruling on this. However the Minister expressly puts section 17 forward in the close context of a necessity made urgent for us by approaching membership of the European Economic Community. My understanding is that most litigation before the European Court is done by a small bar of virtually resident advocates at the court, and that the likelihood of Irish advocates, barristers or solicitors, being retained to plea there is virtually nil. Even if that were otherwise——

An Leas-Chathaoirleach

Repetition of these remarks does not make them any more relevant to the Fifth Stage.

Professor Kelly

The fact that this Bill is entitled The Courts Bill surely does not limit the material relevant to it to the courts of this country.

An Leas-Chathaoirleach

The Seanad is concerned only with what is in the Bill. The Senator has managed repeatedly to calm the Chair's conscience by reference to section 17. As long as he continues to talk about section 17, and what is in it, he is in order. As soon as he departs from section 17 and the other sections of the Bill, he ceases to be in order.

Professor Kelly

Senator O'Higgins has prompted me by pointing out that section 16 reads as follows:

A solicitor who is acting generally for a party in an action, suit, matter or criminal proceedings in any court.

An Leas-Chathaoirleach

Is the Senator now suggesting that courts outside the legal system of this country are covered by any clause in section 17?

Professor Kelly

I must ask the Minister in connection with the argument which, so far as I can see, is the principal argument in favour of his promotion of section 17, what there is in this instrument to support his point of view. I have with me here the Rules of Procedure of the Courts of Justice of the European Communities, and the chapter which deals with the rights and duties of agents, counsel and advocates shows——

An Leas-Chathaoirleach

As far as the Chair is concerned the Constitution at the moment lays down certain courts as being the courts in regard to this jurisdiction. The Senator is not entitled to talk about any other courts on the Fifth Stage of this Bill.

Professor Kelly

I will not make any more demands on the conscience of the Chair but I appeal to the Minister when he is replying to be specific. It is possible that I have overlooked something or that I have not understood him properly, but I should like to know just what he means by putting forward section 17 on this basis and in general what he means by saying in so many words that the approach of membership of the European Community virtually implies or requires a progressive fusion of these two professions, both of which seem to have a concensus that no such fusion is required.

Mr. O'Malley

The first point is that section 17 has nothing directly to do with the EEC. If there was no question of EEC membership being imminent, as I sincerely hope it is, I would have section 17 in the Bill anyway. It is highly desirable in its own right. It is ridiculous that trivial applications in the High Court must be made by barristers.

I referred to the provision in the Treaty of Rome. I do not know what the rules of court of this European Court are, but the provisions of the Treaty set out the qualifications necessary to practise before the court. There is no official translation into English yet of the Treaty of Rome but the phrase used as translated into English is "Members of the Bar of member states". A solicitor is not a member of the Bar in the sense that we know either here or in England, but I think he is put in a stronger position by this section. I am happy to state that one of the results of this section is that a solicitor's position vis-à-vis the European Court is strengthened, but it is not correct to say that this section is here simply because of the EEC.

I should like to draw the attention of the Seanad to the recommendation of the Committee on Court Practice and Procedure which has come to hand since the Bill was decided upon and which recommends by a majority of ten to two a step which we had already taken in section 17. So far as the European side is concerned, if I had sent a copy of the speech which I made last Friday and which is fairly detailed, to Senator Kelly, he could satisfy himself on these points.

Professor Kelly

I have got a very comprehensive report on it in the Irish Times. It seems comprehensive enough.

Mr. O'Malley

It was much longer than that. I take it that nobody objects to section 17. So far as this vexed question of the fusion of the legal profession or, as they like to call themselves, the two legal professions, is concerned, it is probably as much outside the scope of the Bill as the question of the European Court. I have my view and Senator Kelly is entitled to his. There are conservatives and conservatives. Some are unnecessarily so. We can have that out some other day. What I did make clear on a number of occasions, and particularly on last Friday in Cork, was that I was not trying to enforce this on anybody and that I envisaged it as being a gradual evolution as a result of the amalgamation or fusion of the educational facilities. In the light of the incredibly fragmented state of the educational facilities at the moment I do not think anybody could object to my efforts to try to bring them together and make them a good deal more effective.

Professor Kelly

The main log-jam is in the Minister's Department.

Mr. O'Malley

No.

Professor Kelly

The Solicitors Act is to be amended and it is in the Department.

Mr. O'Malley

The question of what is to be amended depends greatly on what agreement can be come to—for example, agreement between the Law Society and the Benchers—and I have them talking to one another on that point at the moment.

Professor Kelly

The solicitors are very anxious to divest themselves of their statutory obligations in regard to teaching and all it requires is an Act of the Oireachtas to allow them to do so.

Mr. O'Malley

The solicitors are not anxious to divest themselves of their statutory obligations. In fact, they want to give themselves more flexibility, but their own control would be better from their point of view if we make them independent of everybody. A lot of this is bound up with the physical question of buildings. If we can sort that out to everybody's satisfaction we will have gone a long way.

Question put and agreed to.