Skip to main content
Normal View

Seanad Éireann debate -
Wednesday, 26 Apr 1972

Vol. 72 No. 13

Court Officers Bill, 1972: Second and Subsequent Stages.

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

The purpose of this very short Bill is to allow time for consideration by the Government, and by both Houses of the Oireachtas, of comprehensive recommendations made by the Committee on Court Practice and Procedure in their Sixteenth Interim Report. Implementaion of the recommendations would mean a substantial increase in the jurisdiction of the Master of the High Court, within, of course, the provisions of Article 37 of the Constitution. This Article, to which the committee refer in their report, is as follows:

Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

I attach great importance to the committee's views, particularly as the committee are satisfied that if their proposals are adopted there will be a significant saving of the time of High Court judges, the hearing of actions will be expedited, the procedure considerably improved and cost of litigation reduced.

Earlier efforts to have the jurisdiction of the Master of the High Court enlarged and extended under the Rules of Court met with little or no success, with the result, as noted by the committee, that the Master has now little jurisdiction and indeed little to do. I share the view expressed by the committee that the office of Master of the High Court is potentially a most useful and valuable one in the administration of justice in the High Court and should now be given the necessary statutory foundation. I also agree with the committee when they say that the Master's jurisdiction should be conferred on him by statute.

A general scheme for a comprehensive Courts and Court Officers Bill is now being discussed with the various interests concerned. In addition to giving statutory foundation for the duties of Master of the High Court, the scheme deals with a number of other matters affecting the jurisdiction of the High Court and certain of the offices attached thereto.

Coming to the repeal of subsection (3) of section 27 of the Court Officers Act, 1926, proposed in the Bill now before the House, I should explain that the office of Master of the High Court fell vacant early in January. In normal circumstances a fresh appointment would have been made by the Government to fill the vacancy. However, I had previously requested the Committee on Court Practice and Procedure to consider the question of the duties that ought to be assigned to the Master of the High Court and, with commendable speed, the committee furnished me with their report on 13th January.

The extensive and detailed nature of the recommendations made are such that I felt justified in asking the Government to defer the filling of the vacancy pending consideration by them of the committee's recommendations and the preparation of legislation to implement them. Clearly if a new appointment were to be made in advance of legislation spelling out the much wider duties to be assigned to the office, there might well be difficulties in having the extended duties discharged by the new Master. Following Government approval for this course, I arranged for the discharge of the duties of the vacant office by a qualified officer employed in the Central Office of the High Court.

The Deputy Master is appointed under section 27 of the Court Officers Act, 1926, as occasion requires. However, there is a difficulty in that, under subsection (3) of the section, a vacant office to which the section applies may not be executed by a deputy for any period or periods exceeding in all three months in any year. Because of this restriction—which applies only to the Master of the High Court and the Taxing Masters—it is unlikely that the appointment of a Deputy Master can be continued much beyond the end of this month. In view of the comprehensive nature of the Courts and Court Officers Bill, it would not be possible to have the Bill enacted in time. In consequence the Government have approved of the introduction of this short measure to repeal subsection (3) of section 27 of the 1926 Act.

The Sixteenth Interim Report of the Committee on Court Practice and Procedure has been formally laid before both Houses of the Oireachtas. In addition I have arranged that neostyled copies are available in the Library for the convenience of Members of both Houses.

I hope that this present short Bill will be acceptable to the House as an interim measure. It only remains for me to thank the Courts Committee for their excellent report, which will, I am sure, be of great assistance to Senators when they come to consider the comprehensive legislation.

This is probably one of the shortest Bills on record. I do not wish to appear critical but I think I am correct in saying that, short as the Bill is, it is one which is quite inexplicable when read on its own. For that reason it would seem to me that a short explanatory memorandum should have been issued with the Bill.

The Minister has pointed out that in effect what the Bill is doing is removing the provision in the 1926 Act which requires that deputies acting for officers of the court will not act for any longer period than a total of three months in any one year. The Minister has explained why in this instance he wishes to have that changed. The case made by the Minister is a reasonable one. If it is intended to alter in a substantial way the duties, functions and conditions of service of the person who occupies the post of Master of the High Court, it would be reasonable to make any changes that are contemplated before the appointment is made.

I am saying that on the assumption that this situation will not be allowed to drag on indefinitely. It is quite reasonable for the Minister to say we are contemplating changes with regard to the jurisdiction, duties, and so on, of this particular officer of the court and because we will probably be implementing changes of this sort, it will not be appropriate to make the appointment now.

If there is any likelihood of that situation being allowed to linger on for six months, a year or two years, whatever it might be, then the position would be entirely different. It would not be a good idea that the post of Master of the High Court should be performed indefinitely by a deputy. If the Minister feels that there is any danger that he will not be in a position to bring about the changes in functions and duties and so on within a reasonable time, then he might be wiser to make an appointment on the basis that whoever is being appointed will know that these changes are contemplated. It is not desirable that the situation in which the work is being carried on by a deputy should be indefinitely prolonged.

I should like to ask the Minister if he can explain to the House why subsection (3) of section 27 of 1926 Act was ever introduced—why there was a time limit put on the period during which these offices would be performed by deputies in the event of vacancies? It would be appropriate for the House to know the reasons why that was not merely advocated but originally enacted as legislation when the 1926 Bill was being passed. It may be that the reasons given then are not now relevant. On the other hand it may be that there were weighty reasons for it and we should know what they were.

Generally speaking my approach is that the Minister has reasonable justification why in the present instance the appointment should not be made immediately. That being so, it is reasonable that whatever change in the law is necessary to enable the continuance of the performance of the duties by a deputy should be made.

I want to take the opportunity which this Bill offers to suggest very briefly to the Minister that when he is considering reconstituting the office of Master of the High Court he might bear in mind the possibility of appointing a Master who would be, for constitutional purposes, a judge. In other words that the office now performed by the Master of the High Court, together with whatever future functions might be performed by whoever discharges this office, would be discharged by somebody appointed as a judge in the mode prescribed by the Constitution.

The Minister, in the beginning of his statement here today, took the trouble to explain the limits which Article 37 imposes. He will be aware that Article 37 has been frequently used in litigation in order to invalidate the exercise of functions, allegedly of a judicial kind, by persons other than judges. I foresee that if the new Master of the High Court is given extended functions, litigation of this kind is a very strong possibility.

There may be difficulties which I cannot evaluate, but I suggest that the Minister might consider the possibility that the new Master of the High Court, in the new style, might be actually appointed as a judge—called perhaps, Judge-Master—and be required to take the oath which the Constitution provides; that he would have the same constitutional protection — irremovability and immunity from having his salary reduced while in office—which ordinary judges enjoy. That would mean that, whatever his functions, they could not at least be impugned on the grounds that he himself was not a judge and that the job he was doing was not of a limited kind.

It is many years since I appeared before the Master of the High Court. My recollection of his functions is vague enough, but I can visualise a litigant saying that the striking out of proceedings, for one reason or another, which is at present within the Master's jurisdiction or the refusal to order interrogatories, something of that kind, in a very important case, was not the exercise of a limited function, notwithstanding that an appeal lies from the Master's decisions. In order to save the State, the litigants and all concerned, from the possibility of having the Master's functions impugned on constitutional grounds, it would be worth considering whether the Master, in the new style, might not be formally made a judge, with the special provision in regard to the point in the judge hierarchy at which he would be established, that a right of appeal lay from him to a single judge of the High Court. I can imagine the difficulty which would arise if the new Master were given exactly the same status, salary, and the same name as an ordinary judge of the High Court. It would seem anomalous then that appeals should lie from his orders to a single judge. That would require special statutory regulations.

Otherwise I hope the Minister might bear the suggestion in mind and see if his advisers think that any advantage could be had from adopting it.

I thank the two Senators for their general acceptance of the Bill. I should like to assure Senator O'Higgins that every effort is being made to bring full comprehensive legislation before the Oireachtas as soon as possible. He will appreciate that various interests must be consulted but these consultations are almost completed and the final scheme of the Bill will be with the draftsman within the next few weeks. It is foolish to promise the appearance of a Bill for any particular date because they invariably tend to take longer than one anticipates. I am very anxious to have this particular Bill, the Courts and Court Officers Bill, 1972, introduced and passed by both Houses before the summer recess and the appointment of a Master would then be made at once. I would be very disappointed if it were not possible to appoint a Master by July. I assure the House that I will make every effort to see that this is done.

Does the Minister visualise sitting through August?

I do not think you will be sitting through August on account of the Master of the High Court with the same enthusiasm as was shown last August.

The difficulty, as will be readily appreciated, about the Government appointing a Master at present is that he would be appointed under certain legislation and rules which currently apply. This would mean that his duties would be as near to nil as almost makes no difference. We have had some figures in the Dáil on the amount of work done by the Master and it seems to amount to less than 100 hours a year, which is almost incredible in this day and age, considering the high salary being paid for this job. Without wishing to cast any doubts on anybody's bona fides, I would be fearful of taking the risk of appointing someone on the present terms and conditions, which no doubt whoever was appointed would find very attractive; then when the legislation was passed and the extended powers given, we might find that he did not propose to fulfil those functions as his appointment was in relation to much more limited functions. I would then find myself in the situation where, in order to get the work done, I would have to appoint a second Master on the new terms. Unfortunately, in the history of the law there have been one or two instances of such a situation having arisen and I cannot, in the public interest, take the risk of its arising again.

With regard to Senator Kelly's point that we might contemplate the appointment of a judge, I do not know whether the Senator has seen the Sixteenth Interim Report, which is in the Library, but Mr. Dermot Shaw has an addendum to the report—although he has signed the main report—to the effect that he recommends the appointment of a judge on the lines suggested by Senator Kelly rather than a Master. He envisages that the same judge would not necessarily always be doing the type of work done by a Master, that it could rotate between the judges in the way that the criminal work at Green Street rotates between them at present.

The suggestion of Senator Kelly and Mr. Shaw has its attractions because allows for greater flexibility. It would mean that actions could be tried on every working day in the courts rather than devoting one full day to the hearing of motions by a number of judges, as is the position at the moment.

I am not ruling this possibility out altogether but, clearly, there are some difficulties. One obvious difficulty is that if you make a Master such as this a judge of the High Court there would be no appeal from him to another judge of the High Court. The appeal on what might be a very trivial motion or procedural point would have to be to the Supreme Court, consisting of not fewer than three judges. There are fairly considerable arrears of work at the moment in the Supreme Court and, while that would be an administrative problem, it would seem to rule out the possibility of operating in that way. However, it is a suggestion to which we will give consideration between now and the introduction of the Bill.

Again I want to reiterate my anxiety and the anxiety of my Department to have this Bill in as soon as possible. It does, of course, deal with other matters as well as the Master-ship of the High Court. There are technical and rather difficult problems about the position of district probate registrars at present and there will have to be several sections in the Bill, of a rather technical nature, dealing with their position. However, I hope to have the Bill introduced and circulated in about six weeks time and to have it passed before the end of July. As soon as it is passed the appointment of a Master will be made.

Might I ask the Minister, through the Chair, to bear in mind that the appointment of a Master who would have the status of a judge would not necessarily involve him having the status of a judge of the High Court. Naturally, if he has that he would be the High Court for all practical purposes and, as the Minister quite rightly said, there would be no appeal from him except upwards to the Supreme Court. He could be a judicial officer of a special kind to which no special court need be attributed. If that was done, no matter what his salary was, there could be special statutory provision for appeal from him to a single judge of the High Court in the way that that is done at present from orders of the Master.

Of course, under the Constitution and the Courts (Supplemental Provisions) Act, 1961, a man can only be appointed to a court established under the Constitution. While it would be possible to establish another court, I think that would be a fairly major and fairly radical undertaking. It would certainly need a good deal of additional legislation to implement it.

Question put and agreed to.
Agreed to take remaining Stages today.
Bill put through Committee, reported without amendment, received for final consideration and passed.