Before we take up consideration of the Committee Stage, I should like to indicate that I have ruled amendment No. 6, standing in the name of Senator Lenihan, out of order on the ground that it implies a charge on State funds.
Juries Bill, 1975: Committee Stage.
I should like to ask the Minister if the order made dividing counties into jury districts is a statutory instrument, which would be published, or if the order setting out the present rating qualifications for various jury districts is a statutory instrument?
Yes, it is a statutory instrument.
The Minister takes power here to divide a county into two or more jury districts. Would that also apply to an urban area, say Dublin or Cork?
An urban area or a county borough will not be a separate district for the purpose of the Act. We are starting off with counties as being the districts. When we see how the Act works administratively we may then have to subdivide the county into districts. That might include puting an urban district by itself as a district within a county or it might even—take for example the city of Limerick—involve dividing Limerick into two districts. It will be a question of observing the working of the measure and whether there is any need to divide and possibly subdivide.
This concerns the First Schedule and it is open to debate it either on the section or the Schedule but there should not be two debates.
We will leave it to the Schedule.
We can take it that points in regard to this section will be raised on the Schedule itself if necessary?
I move amendment No. 1:
In line 25, after "detained", to insert "for a term of at least six months".
I will wait to hear what the Minister has to say.
Senator Robinson's amendment is acceptable to us in a redrafted form. As redrafted, we propose to delete subparagraph (ii) of paragraph (b) of section 8 and to substitute a new paragraph as follows:
"served any part of a sentence of detention in St. Patrick's Institution or in a corresponding institution in Northern Ireland, being a sentence for a term of at least three months."
The intention is that if a person is sentenced to St. Patrick's Institution or to any other place of detention—in particular a prison—the sentence must be for at least three months. If that person then serves any part of that sentence he will become subject to the ten-year disqualification. If a person was sentenced to a week or two months in prison he would not suffer this disqualification. You may ask: "Why three months rather than two months? Surely a person who serves any time in prison should be disqualified for ten years?" We had to take a cut-off point and we decided that three months represented the type of seriousness of the crime that should disqualify a person. Anything less than that would be minor and would not disqualify a person from serving on a jury and would not denote a person who would be sufficiently biased or of sufficient criminal proclivities to be a bad juror.
I should like to thank the Minister for this amendment which, I think, goes some way to meet the points I wanted to make in my own amendment. I am prepared to withdraw that amendment in favour of the one outlined by the Minister. As the section read, it was a very harsh provision in that somebody who was detained for any period in St. Patrick's would then find himself disqualified for ten years from jury service. I appreciate that many people might sigh with welcome relief to find that they would be free from jury service for ten years. On the other hand, it could also have an adverse effect on a young citizen to feel that he was barred for what could be a very minor misdemeanour which had resulted in a short period of detention in St. Patrick's. My amendment proposed to give more leeway to young people by providing that only somebody detained for a minimum of six months in St. Patrick's on the basis of being convicted of an offence would be disqualified for ten years from jury service. A person should be encouraged to forget the past criminal activity for which he has paid the price and spent a period in detention and should be encouraged to play a full role as a citizen as soon as possible. The original proposal was very harsh. The Minister's amendment has gone someway to meeting the point and I would be prepared to withdraw in favour of the amendment in the circumstances.
I will now propose, from the Chair, amendment No. 1 (a), which is a Government amendment, which I am prepared to accept at short notice.
Government amendment No. 1 (a) is:
In page 4, to delete lines 25 and 26 and substitute "(ii) served any part of a sentence of detention in St. Patrick's Institution or in a corresponding institution in Northern Ireland, being a sentence for a term of at least three months".
I have a very small point, is the Minister satisfied that the designation "a corresponding institution in Northern Ireland" is sufficiently precise, given that anybody who serves on a jury and who is disqualified under the section can face substantial penalties, a fine of up to £200?
Before a person would be liable for such penalties he would have to have served deliberately knowing he was disqualified. If there was a doubt as to whether the disqualification arose and the question related to the type of institution in which he had served his sentence in Northern Ireland and it was a bona fide mistake or there was bona fide room for doubt, I cannot see that he would be guilty of any offence. A “corresponding institution” is, I am satisfied, a clear enough description to prevent the situation envisaged by the Senator happening. In St. Patrick's Institution the criterion for admission is based on age and there will be an institution in Northern Ireland with a similar criterion, which is a clear and simple criterion.
Does this new subsection specifically relate only to St. Patrick's Institution? If another comparable institution were erected elsewhere in the country would it apply to it also. We have a number of complaints that St. Patrick's is grossly overcrowded and we are short of institutions of this kind.
If another institution were provided there would probably have to be legislation or something of that nature setting it up and in that legislation we would incorporate a provision to include it in this section.
I move amendment No. 2:
In subsection (1), before line 32, to insert the following paragraph:
"(a 1) that person is one of the persons specified in Part II of the First Schedule as requiring a certificate of exemption, on production of such certificate.".
This amendment would insert a new paragraph into section 9, which relates to some persons who come under the Schedule, that they would be excused as of right from producing a certificate of exemption from the head of the Department or the chief officer of a local authority, health board, and so on. I was not satisfied that this particular provision was covered by the wording of section 9 (1) (a). Section 9 (1) (a) provides that:
A county registrar shall excuse any person whom he has summoned as a juror under this Act if—
(a) that person is one of the persons specified in Part II of the First Schedule and informs the county registrar of his wish to be excused.
On a reading of the Schedule it is open to the interpretation that a person specified there includes persons such as any civil servant. Provision is made for a certificate from the head of his Department or officer that it would be contrary to the public interest for that person to serve as a juror because he performs essential and urgent services of public importance that cannot reasonably be performed by another or postponed. There are other people in that same category.
They are persons specified. Part of the specification is that they would require a certificate of exemption. It seems to me that section 9 (1) (a) is open to the interpretation that the county registrar is not required under that section to investigate if this is a person who would require a certificate of exemption or to ask for a certificate of exemption and that the person, without having got a certificate of exemption, simply says: "I am a person specified. I am a civil servant. I am specified in the Schedule. I wish to be excused."
It seems to me that there is a possible loophole. I am aware that it is also possible to say that a person is not specified in the Schedule unless he has a certificate of exemption. There is a lack of clarity in the situation. It could give rise to difficulty. The county registrar could be in considerable difficulty if a person says: "I am specified in the Schedule, I wish to be excused." It appears to me that the county registrar has no role in relation to requesting whether or not a certificate of exemption has been obtained by such a person.
I think Senator Robinson answered that point herself when she said that a person specified in the Schedule cannot be such a person unless that person is in possession of a certificate. If the county registrar is approached to grant excusal as of right, his mind must immediately be directed to the persons excusable as of right. He goes to the Schedule and he sees the class of persons there and asks the person making the application, "Which of these persons are you?" The person says: "I am a civil servant performing essential and urgent services that cannot reasonably be performed by another or postponed." The county registrar must then say, "Yes, you may be such a person, but you have to be certified to be such." Then he must ask for the certificate.
I am quite satisfied that there is no doubt but that the county registrar could not grant excusal as of right unless the person had a certificate, that the person entitled to be excused as of right does not come into being until he has a certificate. It is a condition precedent to making the application which would have to be fulfilled and to which the county registrar's attention is drawn specifically in the Schedule. He is very clearly described in the Schedule. On the reading of the section this is clear and I do not think that there is any need for this amendment.
I submit that the section and Schedule together are open to the interpretation, which certainly was the first interpretation I would give to the section, that the county registrar shall excuse any person specified in Part II of the Schedule and that various persons are specified including any civilian employed by the Minister for Defence. There is the further qualification on a certificate from the secretary of the Department of Defence. I feel that the amendment clarifies the point that the county registrar has a function of looking at the Schedule and saying that there are two categories of person there. There are persons exempt as of right. There are persons exempt on production of a certificate and there should be a subparagraph for that.
There is only one class of person there, persons excusable as of right. Some of those are excusable by virtue of their position simpliciter. Others are excusable by virtue of their position so certified. But there is only one class of persons, that is, persons excusable as of right. With respect, I do not think that the section as drafted could be open to any other interpretation but that the county registrar can excuse as of right only people set out in the Schedule. When he looks at the Schedule there will be no question of a civil servant seeking to be excused as of right without a certificate. He does not come into the class of persons excusable as of right until he has a certificate and consequently he is not relevant as far as Part II of the Schedule is concerned or as far as an application to the county registrar is concerned I am satisfied that, as drafted, the section can have only one meaning.
If the Minister is satisfied that the section covers it that is all right. I think there is an ambiguity and I would prefer if it were clarified by the addition of a new paragraph in section 9. On the assurance of the Minister that there is no doubt about it, I am prepared to withdraw the amendment.
I move amendment No. 3:
In subsection (2), line 42, to delete "that person shows" and substitute "it is shown"; and in line 43 to delete "he" and substitute "that person".
This amendment arises out of the point which was made by Senator O'Higgins yesterday, which I think was a very good one, that very often the person making the excuse might not be the person concerned but somebody acting on his behalf if he was out of the country, or something of that kind. It also applies in another way, on the assumption that the Minister might accept amendment No. 7, removing the various people who can be excused from getting a certificate from the department and so on. If that amendment is accepted, or even if it is not accepted, the same kind of situation may apply where the head of some institution, body or firm may have very good reasons why a person should be excused. It may just happen that the person concerned may not be a very responsible person and may not care very much whether or not he is excused. He would just as soon serve on the jury as do the essential work that the head of his institution feels it necessary to be done.
In these situations it may arise that somebody else would have to make the case or would want to make the case to the registrar why a person should be excused. It should be possible, for the two reasons, the reason which Senator O'Higgins brought up and the reason which I have mentioned now, for somebody else to make the case as well as the person himself. If you have the wording as I am suggesting, if it is shown to the satisfaction of the registrar, it gives more flexibility and provides for the kind of situations I have mentioned in a way that could not be done as the sections reads at the moment.
There have been two arguments made in support of this amendment, one made by Senator O'Higgins yesterday and the one now made by Senator Ryan. Senator O'Higgin's argument, which I referred to when I was replying to the Second Stage, was based on apprehensions that the person summoned might not be available to make application for his excusal. Senator O'Higgins was not aware that it is intended to give four to six weeks' notice to jurors. I am satisfied that that length of notice would allow adequate time for a person to make application for excusal. If the person is out of the country then of course there is no service and the question of excusal does not arise.
Senator Ryan's amendment would be very far-reaching in its implications, so far-reaching that it would have to be unacceptable. In effect, he is saying that an employer of a person in that category would be entitled to go to the county registrar and say: "My employee X is needed for urgent and important business in connection with my affairs; I want him to be excused." Employee X's view of the necessity of his presence might differ from that of his employer. Employee X might say: "No, I want to do my civic duty as a citizen; I want to serve on a jury." In effect, the amendment would give a third party a power to intervene so as possibly to interfere or prevent a good citizen carrying out his civic duty. That would be very far-reaching indeed. The fact that a person may not want to be excused while his business might need him is a consequence that we have to accept as part of the incidents of jury service. It goes without saying that serving on a jury causes inconvenience to a greater or lesser extent, depending on each individual case, to the person serving or to people affected by his absence. This is a necessary incident of jury service and to attempt to cure it by giving a right to a third party to come in and make representations for a juror to be excused would be very far-reaching and could open the way to all sorts of undesirable situations. The most objectionable feature of it is that a third party would have the right to interfere with the person's wish or duty to carry out his civic duty as a juror.
I am advised that while the section as drafted does not exclude the person arranging for somebody on his behalf to show to the county registrar that he has grounds to be excused, if it had to be changed I would be inclined to tighten it even to exclude that because I would be apprehensive of representations—we all know what that word implies—being made to county registrars. There will be enough pressure on them without having that happening. I am advised that, as drafted, a person may show through a third party to the county registrar that he has grounds to be excused. It has gone far enough. I would not like to go any further by putting in the passive voice there. As drafted, it is better to have the positive requirement that a person shows and that does not exclude a person being able to show by a third party. That would meet Senator O'Higgins's position—that, in the unlikely situation of a juror being unable for good reason to write or to get in touch himself with the county registrar, somebody on his behalf, who knows of the impossibility of his being present to serve on the jury could get in touch with the county registrar and arrange for him to be excused. That is as far as it should go. To go any further and admit of the course contemplated by Senator Ryan would be dangerous and could be too far-reaching. The justice of the situation can be met by the section as drafted.
The Minister is ignoring the provision in this subsection that it must be shown to the registrar's satisfaction. If an employer comes along and says: "Look here, Joe is very busy these times, he is badly needed in the company" and so on, I would have thought that any sensible registrar would not look upon that as a satisfactory proof that the person concerned ought not to be called for jury service. I would imagine that if this amendment were accepted a registrar would decide and indeed could be instructed to decide, that he would not be satisfied that it was a good reason why a person should be excused unless he had heard from that person or knew that there was a good reason why that person was not in a position to make representations himself.
The obvious instance that strikes one is if the man is ill. He need not be dying. He could be seriously ill and not in a position to write letters, or to call on the registrar or to phone him, if he had a telephone. In these cases the man's wife would ring up the registrar and say: "Look here, Joe is very ill at the moment. He is not able to get in touch with you so I am doing it." This is the kind of situation one would envisage arising.
The Minister says that in spite of the fact that the Bill says if that person shows to the registrar's satisfaction and so on, that this does not really mean that at all but that it means that anyone can make representations. If the man is very ill he may not even know that the representations are being made on his behalf. The Minister says that this is comprised in the terms of the Bill which says: "if that person shows." It does not make sense to me. It makes me wonder why we spend our time passing legislation like this at all or why we worry about the small print if we are to be told that when it says "that person shows" it does not mean that at all, that it can mean "any person shows".
I am satisfied that the Minister's advice is to this effect and that the parliamentary draftsman is satisfied to this effect but one wonders what we are doing looking at these Bills at all because the plain ordinary meaning of these words is "if that person shows to the registrar's satisfaction", meaning the actual person involved, the man who has been called for jury service, not his wife, his employer or anybody else.
With regard to the Minister's worries about accepting the amendment that lawyers, Deputies, Senators or anybody else could come in, I think that one has to leave this to the common sense of registrars. It must be to their satisfaction. With their local knowledge, they should be aware whether a person was able to come for jury service or not. A registrar would be derelict in his duties if he did not insist on getting a message directly from the person concerned, unless it is proved to the registrar's satisfaction that he was not in a position to attend to this and his wife or somebody else had to do it.
The Minister is inconsistent in the argument he is using against this amendment. On the one hand he says that he would be afraid of this amendment because it would allow third parties to intervene and make a case to the registrar, and that this would be instrumental in preventing people from doing their civic duties. On the other hand, he argued that this amendment is not really meant to be, because anybody—the person's wife, for instance—can go in on behalf of the person and say he is away or sick, or give some other reason why the person cannot act on the jury. We cannot have it both ways. Either this does permit a third party to make a case to the registrar, or it does not. If only the person himself can make representations, then it is unduly restrictive and will give rise to difficult situations of one kind or another. It will prevent a person who has a genuine excuse from making the excuse through his wife or somebody else. On the other hand, if anyone is making a case to the registrar, then of course what the Minister fears can be done. The employer or anybody can go along and suggest that the person should not serve.
Perhaps the Minister is right, and is properly advised by the draftsmen who say that this section as it reads does permit somebody else to make the case. However, will a registrar look at it the same way as a draftsman and accept that it does permit somebody else to make the case? As it reads it certainly does not look as though somebody else can do it. Even if, technically, the draftsman is right, a registrar may not know that he can interpret that section in that way.
The Minister is also inconsistent when he says he would be apprehensive of anybody being able to interfere with a person performing his civic duty. I agree with Senator Yeats that a registrar would use his common sense if an employer or somebody like that came along and tried to prevent somebody from doing jury service. Apart from that, the Bill at the moment permits heads of Departments and various others to prevent people from doing their civic duty. There is a wide number of people covered in Part II.
No, I think, with respect, it does not do that. It enables those people to seek exemption, but it does not prevent them from attending. If the civil servant in that category who might be entitled to a certificate of exemption refuses to be exempted, there is no way in which he can be prevented from serving. It is not intended to do that. He has to take initiative himself and seek excuse. Then he must get and produce the certificate. That is what is intended. It would be wrong to take power to prevent them.
I thought it meant that the head of the Department could prevent the person even if the person wanted to serve.
Perhaps that is not correct.
If we use the words "it is shown" that admits of a third party coming on the scene without reference to, or in opposition to, or in spite of the juror. That is opening the door to far-reaching and undesirable consequences. If we retain the word "show", then the juror may show to the county registrar his reasons to be excused, but the use of the word "shows" in that positive sense does not exclude the juror showing through a third party—for example, his solicitor. A normal thing to happen would be that a person would receive a jury summons—a legal document. He calls on his solicitor for advice and says: "Look, I am in a terrible fix and I cannot answer this summons for reasons A, B and C. Will you write on my behalf?" That would satisfy the county registrar. That situation would be perfectly proper under the section as drafted. It does not exclude the juror showing through somebody else the reasons why he wants to be excused, but it does exclude somebody else coming in and deciding that he does not want his employee on the jury. It might be thought right to tighten it to exclude political representations or that sort of thing. In its operation we will have to wait and see if there are any abuses and we will have to keep in touch with county registrars to see are they being subjected to undue pressures by any particular types of representation. If that should be the case we will have to look at it again.
But I think that, as drafted, the section is adequate to meet the needs that will arise and that it is sufficiently tight to exclude abuses of representations being made to the county registrar. I sympathise with what is in Sena-or Ryan's mind, but I think that to put the section in the passive voice, so that a person may approach the county registrar without reference to or without the knowledge of the juror, would be wrong. To accept the amendment could open the door to that situation. It is unlikely but, nevertheless, as Senator Ryan said, there might be a situation where an employer might decide that his employee ought to be excused and that he, the employer, should be entitled to go to the county registrar. As the section is drafted, if the employee agrees, the employee may go, or may ask his employer to go for him; but if we amend the section as Senator Ryan wants we could have the employer going in spite of the employee. That would be undesirable. As regards a person who is ill that would not arise. If a doctor sends in a certificate that Mr. X is on the broad of his back, that is clearly envisaged by the section.
Is the amendment withdrawn?
Before the amendment is withdrawn, I propose to put down on Report Stage an amendment to add after "person" in line 42 the words "or someone acting on his behalf in the event of his incapacity through illness". That would clear up the matter and would also have the effect that, no matter how the draftsman might read this, nobody could make representations other than the man himself or somebody in the case of his being ill.
Or someone acting on his behalf in the event of his incapacity through illness.
Or someone acting on his behalf in the event of his incapacity through illness.
Section 9 is connected with Part II of the Schedule and it is open to the House to discuss the actual listing in Part II of the Schedule either now or on the Schedule. What is the wish in this regard? It might be no harm to refer in passing to the listing in Part II but there should be no discussion at this stage of the inclusion or exclusion of any category from the list.
Subsection (1) states:
A county registrar shall excuse any person whom he has summoned as a juror under this Act if—
(b) that person shows to the satisfaction of the county registrar that he has served on a jury, or duly attended to serve on a jury, in the three years ending with the service of the summons on him.
I take it that the purpose of this provision is that, because jurors are going to be picked at random, a person might find his name taken out of the box within a comparatively short time of having served before. The position according to Mr. Justice Walsh's report is that a person serves on average, under the present panel, about once every three or four years. Under the proposed system those eligible will be at least ten times as many as those existing at the moment. That means that if the average incidence of jury service at the moment is every four years, in the future it will be something nearer to 40 years. In effect, it means that the average person will probably serve only once in a lifetime.
Three years is a very short term. Even though jurors are picked at random, to attempt to ensure that any person should not have to serve more often than is reasonable, that figure should be about ten years. I have not put down an amendment on it, but I just mention the point for the Minister's consideration.
Senator Ryan is quite right. The incidence of jury service will be much less frequent now because of the extended panel. Until the Act is in operation it will be difficult to see, but I would imagine that a person will probably be called upon to serve on a jury only every ten years or thereabouts. But if through some fluke of the selection process a person's name came out after so short an interval as three years, he should not be asked to carry the burden of jury service again. That is what the section is intended to cover. A person should not get more than his fair share, and if his name came up sooner than three years after he last served he could be excused as of right. It is unlikely that a person would be called on to serve twice in ten years, but it seems sufficient to entitle him to be excused if he shows to the satisfaction of the county registrar that he attended during the past three years.
Something in between.
I think it is going to be a very rare thing. Until we see it in operation and see how often people come to be called, it is hard to know what will be the position; but it would not be an injustice on a citizen to have to serve, say, every four years. That would not be a real injustice. If he has attended within the three years, he is excused; if it is more than that, he has to take his chance. But the chances of it are practically nil.
I mention subsection (2) of section 9 which provides that:
A county registrar may excuse any person whom he has summoned as a juror from attendance during the whole or any part of the sittings in question if that person shows to the registrar's satisfaction that there is good reason why he should be so excused.
The words "good reason" are, I hope, open to wide interpretation. In a case of, say, a small shopkeeper who is called to act as a juror and it means possibly shutting his shop and going off for at least one day, would that be regarded as a good reason? Or take the case of a farmer who is called at a time when he is doing essential work or when his work would have to be completed on that day, or a small tradesman operating on his own who possibly could not leave particular work, perhaps essential work involved in a house that could not wait without causing very severe inconvenience. Would they be regarded as good reasons? I mention these types because with other Senators I have shared concern for the self-employed, the people who are not paid if they attend as jurors and thereby exercise rightly a civic duty. We should be concerned to ensure that they do not suffer any loss either. I hope that that section would be interpreted fairly and liberally by the registrar.
I cannot anticipate whether the examples put forward by Senator Russell would be deemed good reasons by the registrars involved. I can only say that as a body of men they are experienced and in touch with community affairs. Most of them, indeed all of them, were practising solicitors in their own areas, and would be aware of the demands on persons called for jury service. It could well be that the examples mentioned by Senator Russell would be deemed by county registrars to be good reasons for granting excusal. On the other hand, what a county registrar in one county might take as a good reason, his counterpart in the next county might not. We cannot here lay down any objective criteria. We have to leave it to the subjective judgment and good sense of the registrar in question. I have no doubt that the provision will be applied with good sense and sound judgment and full knowledge of the community circumstances in which the person looking for exemption finds himself.
Senator Russell mentioned that the shopkeeper running a business single-handed might have to close his shop, and that would be obviously something that would have to weigh with the county registrar. But if it were to weigh with him to the extent that he granted excusal on it, would the next person on the list be someone who was going to suffer equal hardship? The line must be drawn somewhere. Fairly strict standards would have to be applied. The county registrar would have to be compassionate in dealing with the applications to him without being sentimental. This is the constant difficulty of people having to adjudicate on anything such as this. We cannot lay down ground rules for him; we can only direct him to apply good reason. Knowing the way county registrars do their work, I am satisfied that good reason will be applied and that no injustice will be done.
I think it is proposed to use the existing register for the first juries, or will the Minister wait until the new register is available in April?
The existing one, because this is urgent and we are anxious to get this Bill into operation immediately. Of course, we will then use the existing register.
On section 11 I would welcome some indication from the Minister of what might be "a random or other non-discriminatory selection". I welcome that phrase but I would like some clarifications of what precisely it means. Is it envisaged that it would be possible to meet one of the recommendations of the Committee on Court Practice and Procedure, that a particular juror should not have to serve for more than two weeks at a time, and preferably that they be two consecutive weeks?
I meant to mention earlier that administrative instructions are being drawn up. The method of random or other non-discriminatory selection will be indicated in those instructions. Senator Robinson asked about their availability. What I propose to do, when they are complete, is to put a copy in the Library for the information of Members of the Oireachtas so that the type of selection procedure decided on can be seen. The fine details of the selection procedure are being teased out. It would not be apt for me yet to indicate what precise method is to be used. It might, for example, be every second page of the register, or the people on the bottom half of every third page, so as to get a random and non-discriminatory selection of citizens. I take the point Senator Robinson made. I will ensure that as far as possible the instructions will be drafted so that people will not have to come to court and spend several weeks waiting on a jury panel. That hardship should be eliminated by reason of the wider jury franchise.
Might I suggest to the Minister that he ought not to adopt any of the methods he has suggested for a random process. The effect of what he suggests—the bottom half of every second or third page—would be that complete families would be called for juries. You could have nine voters in a house and they would all have to go to the county court, which would cause a certain amount of unnecessary chaos. A much more sensible way would every tenth name or something of that kind. What the Minister suggests could dislocate whole households.
I agree that that would obviously have to be avoided. If you took the last ten people on every fourth page you should get a representative selection provided that they are not all of the same family or of the same address.
Why not say every tenth name or fifth name according to the numbers required.
The precise nature of the selection has not been finally settled. All these points are being taken into account or will be taken into account to ensure that whole families would not be serving on juries. The Senator will be satisfied when he sees the book of instructions that the procedure will indeed be random and non-discriminatory, and will not lead to anomalies. That is our ambition.
I move amendment No. 4:
To add at the end of the section the following:
(c) of his duties and responsibilities as a juror and of the role of the jury in any criminal or civil trial".
This amendment would provide for written instructions for jurors which would accompany the jury summons, giving them an outline of their duties and responsibilities. I raised this matter on the Second Stage. The Minister replied that he would prefer to rely on the trial judge to give the jury instruction as to their role. What happens in the majority of trials— this was mentioned by the Committee on Court Practice and Procedure—is that the judge does not instruct the jury as to their function, and as to the distinction between the role of judge and jury, until the end of the jury trial. Indeed the committee, which was chaired by Mr. Justice Walsh and consisted of judges and members of the legal profession, said at paragraph 33 of the report:
The Committee note that, although the functions and duties of jurors are explained to them by the trial judge, this is usually done in his summing-up at the conclusion of the case.
They referred to the practice in the United States, and then they made a positive recommendation:
They recommend accordingly that a brief explanatory list of instructions and of information concerning jury service be issued to each juror, either at the time he receives his preliminary notice or his summons for service. Such instructions might, if feasible, be printed on the back of the notice or summons.
It is appropriate that the jury summons contain not only the possible penalties if a person either evades jury service, or is a person who is ineligible or disqualified and serves on a jury, but also a non-legal outline, in the sense of a non-technical outline, of the role of any jury in a civil or criminal trial and the duties and responsibilities of the jurors. The effect of this Bill will be to broaden very dramatically the categories of people who would be liable for jury service. For a very large number of citizens it will be a very new responsibility. Some of them will be young citizens, under 21. We should accept recommendation No. 8 of the Committee on Court Practice and Procedure, which states:
That jurors should receive written instructions as to their duties and functions.
Therefore, I propose that this amendment be inserted to provide for that.
I indicated in the Second Stage on this point that it is our intention to send out with jury summonses an explanatory leaflet to jurors about their duties, explaining generally what jury service is all about. I quite agree that because all citizens will now be coming on juries it is important that people, and especially young people, who would be included in the jury summonsing system would be informed of what it is all about. The legal obligation remains on the court of trial to charge a jury and direct a jury as to its duties in regard to that trial. We cannot substitute any explanation by the executive for that legal duty of the judge. That is the legal position.
Under Senator Robinson's amendment, if by any chance the explanation did not go with the jury summons it could possibly vitiate the summons. Again, too, it could be open to challenge on the grounds that it was not a proper and full legal explanation of the duties and responsibilities of the juror and the role of a jury in a criminal or civil trial. We would possibly have to draft a treatise on juries in order to make sure that our explanatory leaflet was not attacked afterwards and the jury summons attacked as being inadequate or defective. The proper way to deal with the point—and I quite accept the argument Senator Robinson made —would be to issue an explanatory memorandum as part of this new procedure, and it is our intention to do so, an explanatory leaflet in layman's terms explaining to the juror what jury service is all about, giving an indication of their obligations, of the rules as to challenge, swearing in, selection of jurors and what happens at the trial, the verdict, the need for secrecy and so on. I think it would be better that it would be done that way rather than it be made a statutory obligation to do it because any breach of the statutory obligation could vitiate the summons or vitiate the trial and that would be undesirable.
In the light of the Minister's undertaking that the jury will receive this form of instruction accompanying the jury summons, I withdraw the amendment.
As we all know only too well there are numerous errors traditionally in the register of electors. People's names and addresses are very often misstated, misspelled and so on. Would it be open to someone who did not particularly want to get involved in jury service to say: "This is not me at all, this is somebody whose name has been spelled wrongly or whose address has been wrongly stated"? People usually want to vote and therefore they will turn up to vote even though their name may be on the electoral register in a very strange form. I have a feeling that quite a lot of people may be able to evade jury service simply because of such errors.
You are speaking, for instance, of a person who says: "Look, I am not John S-M-I-T-H, I am John S-M-Y-T-H". Strictly speaking it might be open to such a person to say that. The occasions on which that would happen would be very rare and it would be corrected, I am sure, for the next register and the procedure of random and non-discriminatory selection would make sure that that citizen would be caught the next time.
That would be one way of getting your name registered correctly for the next election.
It would be similar to political parties checking the draft registers.
I understand that this is to provide for circumstances where there is not a sufficient number of jurors on the jury panel but I am wondering whether there might be a certain arbitrariness about the section where, in paragraph (2) it states:
The judge shall specify the area from which persons may be summoned (which may be the area in the vicinity of the court) and the method of summons, whether by written notice or otherwise.
One has a vision of somebody running out of the court and stopping every citizen in the area of the Four Courts and that citizen would need to know his rights very well and know that he can be excused. Is this a reality? Is it likely with the very much larger catchment area of jurors that there would be a problem of shortage and that it could not be coped with in the normal way?
It is most unlikely, and this provides for a very remote contingency indeed. I do not think we should worry about it. One can imagine a situation where there might be, perhaps, five defendants and each of them decides to exercise his full right of challenge without cause and then perhaps challenges with cause and then the panel becomes depleted. As I say, it is such a remote contingency that I do not think we need worry about it.
On a point of clarification, I should like to have some indication from the Minister of how this system of balloting by the jury in selecting their foreman would work. I note, under subparagraph (4),
The foreman shall be such member as the jurors shall choose and the choice shall be made at such time as the judge may direct or, in the absence of a direction, before the jury bring in their verdict or make any other communication to the judge.
This seems to be a little loose. It would be preferable if the foreman of the jury were chosen at the beginning of each trial because the jury may wish to make a communication at an early stage with the judge and I am not satisfied that that situation is dealt with adequately there.
Again, on the question of the foreman, I am a little puzzled as to how the foreman is going to be selected by the jurors. In a rural area most people will know the other members and there will possibly be a member who is well known and respected whom the jurors would be quite happy to have as foreman. But in a city such as Dublin it is quite likely that there would be 12 who would be strangers to each other on the jury and how they are to go about selecting a foreman rather puzzles me. I know the present system is even more haphazard, that the first person picked is the foreman. But the mind boggles a little at how 12 strangers will select a foreman.
I was nearly inclined to be swayed by Senator Yeats's reasoning when coming to decide on this provision, because I could see a situation in a large urban or metropolitan area area where there would be 12 strangers thrown in together and, to give an extreme example, they might end up in contention as to which would be the foreman. But I think that is very unlikely. The very fact that it crossed our minds might almost drive us to going back to the old system where the first out of the hat became the foreman. I imagine that is what 12 people would probably do anyway: they would probably put the names into a hat if they could not decide and say that the first name out would be the foreman.
Of course the word "foreman" is a term of real power in the industrial world, but being foreman of a jury does not give any power whatever over and above the other members of the jury. All it means is that he is the spokesman to announce the verdict or to ask a question, nothing more than that. Indeed, in most cases there is no need for a foreman as such. In England, at the end of a trial the judge asks for one member of the jury to tell the result and that person who stands up is thereby the foreman. It is as informal as that. Should there be any need for the jury to ask questions, or if they wished to communicate with the judge, then the foreman would have to do so. The question of choosing would have to be left to the jury and we cannot direct them how to choose because it will vary with each particular body of 12.
With regard to when they should be directed to do it, the subsection provides that:
...the choice shall be made at such time as the judge may direct or, in the absence of a direction, before the jury bring in their verdict or make any other communication to the judge.
That is fair enough. The presence of a foreman is not essential for the efficient running of a trial. If there are 12 people there a foreman is not necessary in order to validly constitute the jury. A foreman is only necessary to stand up and announce the verdict or if the jury want to make a communication. So that, if the judge says to the jury after they are assembled: "When you break for lunch, select your foreman," that is fine. If he does not say that, there is no harm done: when the verdict comes along the judge may say "When you retire or before you come back I want one of you to be a foreman to tell me your verdict or if you have any questions to ask." That is fair enough and there is no need to go any further than that. The foreman has no precedence over his fellow members.
Just a small point of clarification—the Minister has indicated that the occupation of the jurors would be stated in the list of the jury panel. Would any other information be available?
No. Of course we will have to rely on the returns of the jurors as to their occupations. We would have no accurate way of checking them nor will we seek any other way.
You may get "lady" where you now get "gentleman".
It is appropriate that the jurors be sworn separately rather than altogether. It is an improvement.
Again, it is an improvement on the procedure for swearing under the 1927 Act. In particular, subparagraph (3) is an improvement where it says:
A juror who states that he has a religious belief but that he is neither of the Christian nor of the Jewish faith may, if the judge so permits, be sworn in any manner that the juror states to be binding on him.
On the question of challenges for cause shown I have never been quite clear on how much discretion is left where a challenge for cause shown is made. Obviously, the judge will decide whether the challenge is allowed or not, but is it proposed that this be in any way elaborated on or to qualify the sort of challenges for cause shown that may be made?
No change is proposed. It is the same procedure as at present.
I move amendment No. 5:
In page 9, line 51, to delete "may issue" and substitute "shall make regulations incorporating".
The purpose of this amendment is to require the Minister when exercising his power to give instructions to county registrars with regard to the practice and procedure to be adopted by them in discharge of their duties under this Act, to do so in regulations which would be automatically made public and which would be clearly binding on the county registrars.
I accept that the Minister has gone a considerable way to meet the purpose of this amendment when he says that the instructions he would issue under this section to county registrars would be available in the Library of the Oireachtas and that it would be possible to know what standards were required. This type of procedure, although it does have the merit of flexibility, is a bit ambiguous. It is not binding on county registrars and yet it will be considered by county registrars to be binding on them. The difficulty is that this type of procedure can become an administrative secret. It may not be known if new instructions issue. This is a very important function which the Minister will exercise; it is a way of standardising the procedures under the Act and therefore of standardising the procedures under which a person may be excused from jury service.
It is important that the form used should be that of the regulation and that we should sacrifice a little flexibility in favour of visability and openness of procedures. In particular, it will be of interest to categories of people who might seek to be excused to know what the general standards are. I am thinking of mothers of young families, pregnant women and so on. They would prefer to know in advance what the parameters are. I appreciate, under section 27, the Minister is excluding the possibility that he would issue in-instructions in relation to any particular person or persons. That is very appropriate. It would help a person in approaching the registrar to be excused for a reasonable cause to know what the general instructions to county registrars on this point would be. It would also be helpful for those who may be summoned for jury service to know what the general instructions to county registrars would be. This could be more easily achieved if the Minister exercised his power in the normal way by regulations.
One thing which will not be in the instructions will be any indication as to what will be the parameters for excusing because we would have to leave that to the county registrar, to grant or refuse for good reason. I do not think I could even attempt to lay down parameters for him, nor would I attempt to do so. The instructions will be administrative instructions relating to the empanelling, the summoning, the balloting and principally the procedure of random and non-discriminatory selections of names. That is the main import of the instructions.
It is very important that, when we are starting an entirely new system of summoning and empanelling juries, we should retain flexibility because we will have to watch its operation from time to time, and watch it frequently especially in the first months of its operation so that any administrative difficulties can be communicated between county registrars and me so that they can be ironed out and new instructions issued and changes made that will be consistently observed throughout the country.
If I were to accept the Senator's amendment every single change we would want to make, every "t" we would have to uncross or re-cross, would have to be a statutory instrument with all that goes with it. It would seriously inhibit the flexibility which is what is needed at this stage of the new procedure. The Senator is worried about dangers she thinks would be overcome by having regulations, as to whether there would be consistency and whether these instructions would be obeyed. I have no doubt whatever that instructions issued by the Minister for Justice to county registrars throughout the country would be carried out in the letter and in the spirit. County registrars will be involved in the devising of the instructions and, as I said before, they are men of common sense and experience; they will not wilfully disregard or neglect to carry out instructions which they, themselves, or their representatives were a party to framing. I have no doubt whatever that the instructions, when issued, will be carried out accurately and conscientiously.
The other point is the secrecy. There is nothing secret about these instructions. They will be in the Library of the House and if any citizen wants to look at them I have no doubt they can be made available for his inspection. But the dangers of the inflexibility which making these instructions into statutory instruments would bring would far outweigh the advantage that might come by making them statutory instruments.
With respect, I think the Minister in his reply has put an auto-limitation on his powers because as I read section 27 it is broad enough to set down the parameters of the reasons why a county registrar should excuse a person for reasonable cause. Section 27 reads:
With a view to securing consistency in the administration of this Act, the Minister may issue instructions to county registrars with regard to the practice and the procedure to be adopted by them in the discharge of their duties under this Act; but nothing in this section shall authorise the Minister to issue any instruction as to whether particular persons should or should not be summoned for service as jurors or, if summoned, should or should not be excused from attendance in accordance with the summons.
As I said, I accept that as a very proper limitation on the Minister's power. It is quite possible that the first type of standardisation which will be required will be precisely in the areas where the county registrar exercise discretion. Within what parameters will that discretion be exercised? The Minister may find that it will be necessary to issue what I would prefer to be regulations. I do not think the regulation procedure is all that inflexible. Just as the Minister can issue a regulation, he can issue a regulation amending a regulation. These are obtainable to lawyers, for example; they are indexed and so on. The problem with the method of issuing instructions is that it is difficult to know whether they have been issued and if they have, where to obtain information about them. I do not want to press this point but I think it would be preferable if the procedure were by the normal method of regulation rather than by the informal instruction procedure.
With regard to the parameters for excusing, I cannot see how they could be defined. I take the Senator's point that, as the section is drafted, the Minister could lay down parameters but the definition of them would, I think, defy me. The only parameters are those set out in section 9—"good reason". How does one start to define "good reason"? I do not think it can be done. It will have to be left to the good sense of the person who has to consider whether there is good reason and he will apply it in the context of the particular case. For example, we cannot say that all self-employed shopkeepers who have no assistance in the shop could be excused. You would be getting down to dealing with particular persons.
The only parameter that can be prescribed is that of good reason and within that you have to leave it to the county registrar. It could be that in time to come the county registrars may have difficulties and a code may evolve. But it would have to evolve from the situations that they meet rather than from any attempt by me to impose it at the outset.
I take it the instructions will be available in the Oireachtas Library?
Amendment No. 6 has been ruled out of order.
I put down the amendment, which has been ruled out of order, on the basis that in the Seanad we cannot insert an amendment that puts a charge on the Exchequer. The same applies in the other House also. The sense of the amendment can be discussed by the Seanad on the section. The amendment clearly suggests that for each day or part of a day that a person serves as a member of a jury, he should be paid the sum of £5. The reasoning behind that amendment and on the section also, is quite clear in that it follows directly in train on the recommendation of the Committee on Court Practice and Procedure under the chairmanship of Justice Brian Walsh who as far back as 1965, 11 years ago, put in a specific recommendation inter alia that jurors be paid at a rate of £2 per day. I do not care what you call it, but I shall use the word payment. In fact there is very great inconvenience, serious disruption involved in people giving up their time to do this very important public duty. If we think seriously about it and have a sense of public duty, which the Minister mentioned in his opening speech, and really have a sense of public duty, then the very least we can do in a civilised society is to discharge the basic out-of-pocket expenses and no more than that. There is no remuneration involved as such. There is a payment involved which I suggest is only right, equitable and reasonably adequate. The payment is in lieu of basic out-of-pocket expenses that arise for any person, man or woman, serving on a jury. The figure of £2 was suggested by a level-headed committee back in 1965. I do not think it is in any way stretching the situation, having regard to the fall in the value of money since and in the sense that we are legislating now for the future, to insert a figure of £5 a day or something of that order.
The Minister would say this represents a massive charge on public funds. Does it? I suppose at any given time there would be no more than ten juries sitting with 12 members. That is 120 multiplied by five about £600 roughly and multiplied by five days a week would mean approximately £120,000 a year. That is just a quick calculation. That is about it and that is what we are thinking in terms of. I am taking the extreme view. That is the most we would have in this country today. Assuming that the courts are working flat out, criminal and civil, we would have about ten juries operating. Ten juries working five days a week giving them £5 a day comes to something like £120,000 subject to correction.
That is the height of the charge the Exchequer would be involved in for doing a very important public service. It would probably be much less than that, probably in the region of £100,000 or £80,000, because I do not think we would have ten juries working flat out five days a week throughout the country every day. Somewhere between £80,000 and £120,000 a year represents the cost of adequately and basically—not remunerating —giving a reasonable payment in lieu of out-of-pocket expenses to the jurors for performing a very great public service.
What the Minister proposes in this section is welcome in so far as it goes; I am not opposing the section. The section does ensure that as far as employees are concerned they will not suffer any hardship vis-á-vis their remuneration or conditions of service. An employer cannot in any way discriminate against employees by reason of jury service. So, they must be paid their daily pay. They are hired by their employers when they are on jury service. That is all right as far as it goes and to that extent there is no opposition. The main motivation behind the Bill is to extend the franchise to women. There are other matters involved, vis-à-vis to property qualification and so on but the main motivation is to extend the franchise to women, to give them the right to act as a juror.
It is precisely this female category that is discriminated against in this section because it is precisely in the category of women that you find the highest degree of what may be called self-employment. The self-employed are excluded by this section. All that is included in this section by way of compensation is the employed person whom the employer must pay. There is no charge on the State involved; the employer must pay under the section what the employee is entitled to. The highest proportion of self-employed people on the register between the ages of 18 and 70 who now qualify for jury service are housewives. I have not had time to go through the electoral register for the whole country but it is quite evident that it is this particular category—now ostensibly being given a right to serve on juries—which is being discriminated against by not being given some form of monetary compensation for absence from their homes during each day of service.
What I say applies equally to male self-employed people, to people in small businesses, to people running farms, to professional people who are not excluded by the Schedule. All self-employed people, whether farmers, businessmen or housewives, are excluded from any compensation by the narrow drafting of section 29. The Minister must be aware that the Walsh Committee suggested a monetary sum per day as being the right form of compensation for jury service. They had to consider the question: how do you assess adequately the method of compensation for these people? I am sure they considered travelling expenses and subsistence allowances on the civil service scale, but that would not be adequate for Dublin jurors, for instance, who would not be adequately compensated in that way.
No matter how you examine the problem, the most adequate way of providing some degree of compensation for jury service is a payment per day. Indeed, that was the original idea back in 1927, when it was fixed at 5s per day. If you are sincere and serious about getting people to discharge a public service in this manner, the practical way to do it is to make a payment per day, a payment that is related to the current economic and monetary situation and £5 per day should be about right having regard to the £2 a day fixed 11 years ago. What I would like to emphasise again is that it is the women who are being discriminated against here. This is the important aspect of it. This Bill appears to be giving women the right to serve on juries but in practical terms that right is more apparent than real. They have the legal right but in practical terms how many women are going to opt for a situation of going on juries and sitting on juries for X number of days free of charge? Women will opt for a situation of going on juries and sitting on juries for X number of days free, gratis and for nothing, away from home duties, away from the problems of their children, away from their day-to-day problems without any compensation. Let us be practical about it. Women are very practical people I am very glad to say, as they have shown recently in their very positive opposition to Government measures in another area. They are very concerned about equal pay for equal work and they are also very concerned about being compensated for their services. I find women most practical, more practical than men in this sort of area, and rightly so. If they are going to discharge a public service of this kind the very least they might get in return is not a remuneration but an evaluation, and a very modest evaluation of their value in discharging a public service, at £5 per day. If one was really to assess it one would double it. But at a modest evaluation this does to some degree offset out-of-pocket expenses, disturbance, removal from duty and so on.
Being a housewife is a wholetime job and the Minister is purporting to allow housewives and women generally this right and yet at the same time he is depriving this major sector of the self-employed section of our community of any form of monetary compensation and is confinding compensation purely under this section to the people who happen to be employed and he is shifting the compensation in respect of them on to the shoulders of the employer. The State is doing nothing. The State is passing a Bill and is putting something into legislation but is not taking one penny of financial responsibility on its own shoulders in this measure, not one penny of financial responsibility in respect of extending juror rights.
We may talk here about principle and about the desirability of this extension but there should be a reasonable degree of compensation for out-of-pocket expenses, disturbance and removal from job, be it in the kitchen, in the shop or on the farm. The people in these categories represent the responsible elements in our society. These are the people who one would expect on a jury to exercise the proper sort of contribution and these people are being discriminated against under this section.
As I said, the amount of money involved would be £120,000 a year at a maximum. If more conservative sums are made, this sort of compensation would be in the order of £70,000 or £80,000 a year. It is rather significant that this is the only outstanding recommendation of the Walsh Committee that is being ignored. I suspect that the Minister for Justice in his recommendation to the Government did have what I propose included. I suspect that because of the present financial exigencies the Minister for Finance probably shot it down, that the Government, because of their cheese-paring and thinking in narrow terms said no to this, that they could not afford £80,000 or £100,000 in this area. This is narrow thinking because this is a basic piece of legislation. I paid tribute to the Minister and his Department in my opening remarks in that regard.
This is a basic codification Bill embodying juries legislation that has been picked up from various Acts over the years, in particular the Juries Act, 1927, so this legislation will last for 40 or 50 years. This is a fundamental Bill and unless we include compensation for jurors now, we are not likely to have the opportunity of doing so for a long number of years ahead. The financial exigencies of the Exchequer should be a very small element in a mature consideration of this matter. It is elementary that there should be a basic monetary consideration written into the Bill for all people, apart from employees, and with a provision enabling the Minister to adjust accordingly in line with the cost of living, the consumer price index, or something of that kind, a basic escalation clause enabling the Minister by order to increase the amount during the years ahead but to incorporate a basic figure of £5 at this stage with the right to increase in the years ahead.
That sort of thinking would be proper legislation. Because of the financial situation I am certain that I am pushing a closed door, not an open door, but at least there is a certain rationale in what I say and it follows directly from a major recommendation in the report by Mr. Justice Walsh in 1965.
We would not have this problem at all if that report had been accepted by Senator Lenihan with the enthusiasm that he displays now for the recommendation in it when he had the opportunity as Minister for Justice in 1965 to accept it and implement it. I do look a little cynically on his anxiety and his distress for jurors 11 years later.
Let me say first that it is not true to say that I formed the opinion that jurors should be paid and to say that it was the Minister for Finance that rejected the view that they should be paid. It is not my belief that they should be paid and consequently, I did not make any recommendation to the Government in that sense. I recommended that they would not be paid and that the provision which appears in section 29 is as far as the Bill should go.
Senator Lenihan thought that the burden of jury service will arise for a citizen now, perhaps, every 20 years. Senator Ryan thought, it would be every 40 years. It seems to be making a lot out of a burden that will fall so infrequently to suggest that it is grossly unjust to ask a citizen to perform this rare duty without at the same time paying him. It seems to me that in modern life there is far too much of the hand-out, that nobody will do anything for nothing, that everybody wants to be paid for everything. This is not an attractive trait in modern Irish society. For a jury service that will fall as infrequently as every decade or every two decades I do not think it would be any hardship on a person to carry out a civic duty that infrequently for nothing. That is about the size of it. Again, too, there is no logic in the argument proposing a payment of £5. Why not £10 or £4 or £3? This is a figure plucked out of the air but to pay for what? It cannot compensate for loss of earnings. It probably will not compensate for inconvenience. It may buy meals or may be excessive to buy meals. It is purely an arbitrary figure and there is no logical reason behind it. People have been reluctant to say that jurors should be compensated for their loss of earnings. Nobody has said that but that would be a logical stance to take. Nobody has said that jurors should be paid subsistence and travelling allowances. That, too, would be a logical stance to take. Instead we get this arbitrary figure of £5 and that is dangled in front of citizens to encourage them to do their duties.
I think that because of the infrequency of the jury service and because it is a civic duty it is not asking the citizens too much to do it for nothing and that is what the Bill proposes.
First, one should say that there is no arbitrary element about the figure of £5. This figure is arrived at in a quite simple way. In 1965 the committee unanimously recommended that £2 should be the payment.
That was in 1965.
What is arbitrary? Is anything in life not arbitrary on that basis? It was fixed upon by the 13 members of the committee unanimously as a reasonable figure in the conditions of those times. In looking at the £2 figure, bearing in mind that prices have altered quite a bit since then, we decided that on the whole, without going into it in any scientific way, it is reasonable to suggest that £2 in 1965 is equivalent to £5 at present. That is the reason for it. It is essentially the same figure in real purchasing terms as was recommended unanimously by that committee in 1965. That is the arbitrary element. The committee considered the matter, one assumes, at some length and with considerable care. It is not really fair to describe it in those terms as a purely arbitrary figure.
The Minister in this section has very fairly provided that, in effect, anybody who is an employee will be paid his wages by his employer for any time he is absent on jury service. This is an excellent provision and we do not quarrel with it in any way. But, as Senator Lenihan pointed out, even people who do benefit from the provisions of section 29 will have other expenses. They may have travelling expenses, meals to buy and so on. Far more important, there is the very large proportion, particularly in Irish conditions, of the population who are self-employed or, in the case of women, perhaps not employed at all. With very few exceptions those employed in farming do not have an employer who is able to pay their wages under these conditions. There are carpenters, and other kinds of tradesmen and businessmen who work for themselves. There is a large number of people who do not earn wages in any sense of the term as used in section 29. Therefore, they have an actual loss of their day's earnings which they would otherwise earn on their behalf through engaging in jury service.
As I understood the Minister, he suggested yesterday that in such cases they could always apply to the county registrar and say "I cannot afford to go on jury service". I would be very sorry to envisage a situation where the entire farming population and all those who are self-employed would be effectively omitted from the jury lists because they had to go to the county registrar and say they could not afford to carry out this duty. I would have thought the county registrar would not look upon that as a good reason why they should be excused. If he is going to start interpreting the section to mean that there is a good financial reason for people not having to comply with a summons, it would be an outrageous situation, and a large section of the population would be excluded from jury service. In that case the Minister should agree to some form of amendment as we propose.
As the Minister says, the figure could be £6, £10 or £2 but it is fixed at a level which obviously does not make jury service particularly attractive. If one spends five days a week on a jury, £25 per week will not get one very far these days, but at least it is something. It is not fixed at a level which would suggest that people ought to rush to sit on juries as a means of making money. It is some relatively minor form of compensation for expenses in the case of people who benefit from the provisions of section 29 and to make up some of the loss of earnings for all the other people who do not benefit from the provisions of that section.
It is difficult to see why the Minister should be so rigid on this. He has a sort of perhaps 19th century attitude to this which in a way one can only admire—that people should be doing things for nothing. So they should, but, for example, we in Ireland have long since given up the notion of a voluntary unpaid magistracy, and very rightly too. In countries where they have this system it does not seem to work very well. It is sort of an amateur system of law-making. We have long since decided that judges at all levels should be paid. It is difficult to see why the jury system should be the only remnant of this concept of the 19th century, that the ordinary person should engage in these activities for nothing.
It is not so very long since Members of Parliament were expected to act without any kind of compensation. It is a natural human desire to have some sort of compensation for what one does. There is inevitably going to be a certain reluctance when the new people are brought into the jury list, not merely with women but with men also, to serve on juries. That reluctance will become much greater if there is no sort of compensation for serving. If only from the point of view of ensuring that these new provisions work well the Minister would be well advised to provide some figure for compensation.
I might just support this amendment in so far as I do not consider it to be an arbitrary provision.
The amendment is out of order.
The amendment was ruled out of order. We are speaking on section 29.
I should like to support the principle of the amendment which was ruled out of order. I do not regard it as arbitrary and I think the Minister is wrong in saying that it is an arbitrary provision. The criteria on which the remuneration would be based were well set out in the Committee on Court Practice and Procedure which reported on this question. In paragraph 28 of the report there is a provision for remuneration of jurors and this states:
The Committee are agreed that jurors should be remunerated on a reasonable basis and recommend that this should be at the rate of £2 per day for those who have been sworn as jurors. This cost should be borne by the State. For ease in administration, they recommend that this payment should be at the flat rate mentioned, rather than on the basis of reimbursement for loss of earnings, which would necessarily vary according to the circumstances of each individual juror. The Committee are also of the opinion that, where the trial judge is satisfied that a juror is obliged to seek accommodation overnight, the cost of such accommodation should be borne by the State.
So it is not, in fact, an arbitrary approach.
It is not an arbitrary expedient but it for ease of administration.
Ease of administration is a logical reason. It is not arbitrary.
It is a good reason.
It is not arbitrary. The precise figure one might say is to some extent arbitrary. I think it would be unreasonable to fix the figure as low as £2. I admit there is a slight element of arbitrariness in the precise fixing of the figure. £5 is reasonable. It would be equally reasonable to fix it at a higher figure given the rate of inflation we have. The idea of having a remuneration of jurors and the idea of having it at a flat rate is not arbitrary. It is perfectly reasonable and justifiable. I regret that the Minister has not seen fit to introduce this amendment, that Senators are handicapped by the Standing Orders of this House and are unable to put forward an amendment to this section.
It was the figure of £5 that I said was an arbitrary figure. It has to be taken out of the air. In the absence of having a rational basis on which to assess compensation, whether it be loss of earnings, subsistence, travelling or some other rational basis, the figure has to be arbitrary, I repeat what I said before. I do not like repeating myself but I will do it briefly. This incidence of jury service will fall so infrequently, maybe once in 20 years—Senator Ryan thinks once in 40 years—that to suggest that that will be a hardship on a person is unreal. It appals me to think that we are arguing about giving people, if you like, a handout for doing a civic duty. I would not thank a citizen for doing a civic duty once in every 40 years for nothing. There has been far too much of the handout attitude in this country. Nobody is prepared to do anything for nothing. A civic duty that is going to fall as infrequently as 20, 30 or 40 years should be done for nothing.
Because of the operation of the random procedure of selection the Minister envisages a person being selected after three years. One person might never be called and another person might be called four or five times. The Minister himself allowed for this by saying that if by some chance you are called within three years you do not have to attend.
You can be excused.
But after three-and-a-half years you are stuck.
On section 31, a point of clarification in relation to liability to serve on coroner's jury. I am not clear whether the persons in Part II of the First Schedule are persons exempt from any possibility of serving on a coroner's jury. I checked the explanatory memorandum but it has not clarified the point. Section 31 says that:
Every citizen of the age of eighteen years or upwards and under the age of sixty-five years residing in a coroner's district shall be qualified and liable to serve on the jury at any coroner's inquest held in that district unless he is ineligible or disqualified under this Act for jury service or is among the persons specified in Part II of the First Schedule.
Is there a different meaning in this instance? Are they outside the range of people who would be called to serve on a coroner's jury?
The same people would be liable for a coroner's jury as for an ordinary jury with the exception that those aged between 65 and 70 and the other people in Part II would be exempt, not excusable as of right.
I am glad to have that clarification.
I should like to know how the Minister fixed on this arbitrary figure of £50?
It is a figure that would deter any would-be law breaker.
The arbitrary nature of this figure is particularly evident in view of the fact that the committee recommended it should be increased by £10. Even allowing for the operations of inflation and so on it would appear that the Minister has about doubled the real value of the committee's recommendation.
I have possibly a harsher mind than that of the committee.
It is typical of the ministerial mind, all ministerial minds, that in relation to fines which bring the State money the sky is the limit, but when it comes to handouts that might help some of the ordinary citizens there is a quite different attitude.
That is a maximum figure.
I move amendment No. 7:
In Part II, page 13, to delete lines 21 to 53.
Before discussing this amendment I should say straight away that I accept completely that the provisions are a considerable improvement on the existing position which, as I understand it, is that no civil servant could act on a jury in any circumstances. This was outrageous so one is happy to see this change. Now that we have got to the end of the Bill almost, one ought to say how pleasant it is to be able to meet the Minister with such a general measure of agreement. One recalls that the last time he was with us he dealt with a Bill on which there was not entire agreement on all sides.
While the change proposed here is an improvement on the existing position, it seems to re-enact yet again the sort of unnecessary and outdated privileges that Government Departments tend to take on themselves. The position is that in the case of, shall we say, Guinness's or Waterford Glass or indeed any company or semi-State company in the country, such as Bord na Móna, or the ESB, if the managing director of one of these firms writes and says that so-and-so is vitally needed for the business of our concern, that it would be highly undesirable that he should be absent because of jury work, and if the employee concerned goes along with this document to the registrar, the registrar can decide whether he will accept that. In most cases he probably would, but it is a matter for the registrar. But when it comes to a Government Department, to the Minister for Defence, to local authorities or, for that matter, to the head teacher of a college or university or school or other educational institution, this document is insufficient in itself but where the registrar does not wish or would prefer not to accept this as an explanation, the person concerned must serve; whereas the civil servant, the employee of the local authority or whatever goes along with this certificate and immediately he is entitled to be excused from jury service.
I cannot see the point of this. On a first reading I thought that this certificate was binding whether the employee wanted it or not, but I am satisfied on looking at it again that that is not so. All it is is a document that an employee can bring along to the registrar as a means of getting exemption. I cannot see why the Department of Finance should not be in the same position as Bord na Móna or Guinness's or any company of the land: that the Secretary has to write a letter saying "I would much prefer if so-and-so was not called because he is performing urgent and essential services of public importance that cannot reasonably be performed by another or postponed." In those cases I am clear that if the person concerned went to the registrar he would be a very foolish registrar who would not accept this as a reasonable excuse. It is giving a sort of privilege to the civil servant and local authority employee which nobody else in the country has and it seems unnecessary and undesirable.
When the Minister is replying I should like him to clarify what is intended by lines 46 to 53 in Part II of the First Schedule. Up to now teachers were not obliged to sit on juries, but they could be obliged under the terms of the lines referred to in the Schedule unless the head teacher indicates that the teacher concerned must be present at school. But in the event of the head teacher not giving such a certificate and if the board of management insist that the teacher who is absent should employ a substitute teacher, who will be responsible for the payment of that other teacher?
First, to deal with Senator Yeats's point, the curtailed exemptions set out in Part II follow the recommendation of the Second Interim Report of the Committee on Court Practice and Procedure. It is dealt with in paragraph 22. Indeed it is a much tighter exemption than was recommended in that report because the exemption can be available only on a certificate that the services are such that they cannot reasonably be performed by another or postponed. I would envisage that it would be in only very rare circumstances that such a certificate would be given. One might have for example an important international conference at which the country has been represented at official level.
It might be a matter requiring such special knowledge or experience that only one particular official might be qualified to represent the country. That would be an example of a situation where the duty could not reasonably be performed by another or postponed. But that would be rare. I can envisage certain key personnel in a Government Department who might be involved in an activity relating to their particular bailiwick. For example, in my Department there might be a serious security situation requiring the presence of someone who could not be spared for the time of the summons.
Such situations will be very rare. I do not anticipate that it will be abused. In effect, the exemption of civil servants has been removed, with these rare exceptions. We go farther than the Committee on Court Practice and Procedure recommend. It said that people in departmental grades should be exempted. We only exempt people whose work can justify the giving of this quite rare certificate.
With regard to Senator Brosnahan's point that if a teacher is summoned as a juror, the provisions of section 29 would apply to him. It states:
For the purpose of any contract of service
—that incudes a teacher—
a person shall be treated as employed... during any period when he is absent...
I presume that would be the normal position of a substitute teacher. I am not au fait with this but I understand that the missing teacher pays the substitute and that the funds to do so would come under that section. If they do not, there is no provision for them. I cannot envisage a situation where a board of management would look around for a substitute teacher while a teacher was on jury service. I imagine that by the time a suitable substitute would have been got the jury service would have ended and the teacher would be back in his job. If the situation should be such that somebody else cannot be got or that duties cannot reasonably be performed by another or postponed, then the head of that institution or school is entitled to give a certificate of exemption for the teacher and he would be excusable as of right. I cannot see the situation the Senator worries about actually arising.
I can quite see the circumstances in which the Minister says that a certificate would issue, but these are precisely the circumstances where the managing director of Guinness's or the ESB or Bord na Móna would issue a letter of this kind. It would not be a certificate but a letter saying that the employee was going to a conference in Brussels, was engaged in work of a very urgent importance, or perhaps he might have access to confidential information which might come into question in the particular case coming up. All these matters could come up. One could make an exception for somebody employed in the Department of Justice who might have confidential work to do. But, generally speaking, all the circumstances the Minister proposes as reasonable for the issue of a certificate could also apply in the private sector or the semi-State sector.
The Senator is making the mistake of equating the importance of a commercial undertaking with the importance of an activity of the State. There is no comparison here. The affairs of the State are of such importance that they have to get this special position. The commercial affairs of a company, while very important to that company, cannot be ranked in importance with the affairs of the State. That distinction has to be made.
What about local authorities? Are they of such fundamental importance—the office of a county manager in some provincial town or in Dublin?
It is a public matter. It is a matter affecting a large number of citizens. It is an affair of State. The affairs of some company could have very large implications, but they are after all private commercial undertakings. They will have to be dealt with under section 9 (2). Presumably an employee of that rank would have a sufficient sense of responsibility that he would see what his absence could do to his company and would then seek exemption. It seems to me, although I cannot prejudge, that the county registrar as a matter of common sense would see good reason for granting an exemption or granting excusal. We have to put private companies on that footing: that they would have to come and seek relief.
This is clearly a very great improvement on the existing provisions. While this is essentially yet another example of the State services taking things upon themselves which nobody else is able to take, it is obviously an improvement, so I will let it go. I will withdraw the amendment.
In fairness, I should deny that the State services are taking something on themselves. We are following in a limited degree a recommendation from the Committee on Court Practice and Procedure. In fairness to the public service I think I should say that.
They know that they would not get away with anything more far-reaching than that.
It is proposed to debate amendments Nos. 8, 9 and 10 together.
Amendment No. 8 is a drafting amendment. Amendments Nos. 9 and 10 can be taken together. They are introduced to avoid confusion as to the last words in lines 52 and 53 on page 13. Some confusion has arisen as to whether whole-time students were exempt per se or were exempt on a certificate from the head of their institution. The intention is that they be exempt per se. Therefore, we are giving them a line for themselves. That is the whole point of the amendments.
That clarifies that.