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Seanad Éireann debate -
Wednesday, 14 Dec 1988

Vol. 121 No. 12

Courts Bill, 1988: Second and Subsequent Stages.

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

As the Seanad is aware, the Minister for Justice is attending a meeting of the Anglo-Irish Conference today and unfortunately is not available to be here this afternoon.

The main purpose of this Bill is to enable the position of Mr. Seamus Noel Mahon of the District Court bench to be regularised, and to validate his court decisions.

The normal retirement age of a district justice is 65 years under section 30 (1) of the Courts (Supplemental Provisions) Act, 1961, but the Courts of Justice (District Court) Act, 1949, provides a procedure under which a district justice may be continued in office year by year up to age 70. The power to grant an extension is exercised by a committee, comprising the Chief Justice, the President of the High Court and the Attorney General. Where a justice satisfies the committee that he is not suffering from any disability which would render him unfit to continue to discharge efficiently the duties of his office, the committee may, if they so think proper after consultation with the Minister for Justice, make a continuation warrant. A warrant is required for each extension year and must be made before the year commences.

The responsibility for seeking an extension of service in good time rests with each district justice although the standard practice is for the Department of Justice to advise a District Justice about nine months in advance of his 65th birthday of the need to apply to the committee for a formal extension of service under the 1949 Act if he wishes to be continued in office beyond that date. The request for an extension of service is made to the committee by the justice. The committee normally consults the Minister for Justice by formal correspondence.

Under the Bill the committee which I mentioned would be empowered to make a warrant retrospective in a case where through error or oversight a warrant was not made in due course. The following are the circumstances in which the oversight occurred in Mr. Mahon's case. He was appointed as a temporary justice of the District Court in October 1976 and as a permanent justice in May 1977 and reached the normal retirement age of 65 years in January 1984. He should before that date, have applied for a continuation warrant but did not do so and a warrant was not made. As I have already indicated, normal practice is for the Department to remind a district justice well in advance of the need to apply for a warrant. A reminder was not given in this case, however, because of a mistake in departmental records.

Mr. Mahon first applied for appointment in April 1973 and in his application form he gave his year of birth as 1920. This was recorded in departmental records. In January 1977 Mr. Mahon submitted a birth certificate which showed his year of birth as 1919 but the discrepancy was not noticed and the incorrect year of birth remained in departmental records. Warrants were, in fact, made for subsequent years but I am advised that these have no effect because of the critical absence of a warrant to cover the first year after Mr. Mahon reached his 65th birthday. The mistake was not discovered until about the middle of 1988.

I am advised that in the absence of a valid continuation warrant for each year after his 65th birthday Mr. Mahon has not been duly appointed district justice since he reached his 65th birthday. Consequently, his decisions in court since then are invalid and his service since then cannot count for pay, superannuation or other service benefits. I am also advised that, under the law as it stands, the committee I mentioned have no power to issue a certificate retrospectively and hence the provisions proposed in this Bill.

In the period since January 1984 Mr. Mahon has dealt with some 8,000 criminal cases, 74,000 Road Traffic Act cases, 1,100 family law cases, 11,000 liquor licensing cases and 17,500 other civil cases. Penalties he imposed included approximately 40,000 fines, imprisonment-detention in relation to some 1,250 offences, and disqualifications or endorsements for some 3,700 Road Traffic Act offences. Clearly the public interest would be served best by enacting legislation to allow for validation of such a wide range of cases. There may be questions about the wisdom of doing this for criminal cases. I am satisfied, however, that it would not be in the public interest to make an exception. The convictions in criminal cases must be presumed to have been decided in good faith on the evidence presented and, since the normal appeal mechanism was available to any person dissatified with the decision, there can be no valid argument as to the merits of any convictions which were not appealed or, if appealed, upheld on appeal.

Apart from criminal cases, there is a range of decisions made in civil cases, including family law cases. It is clearly in the public interest that decisions made in such cases should stand on the basis that they were made in good faith on the evidence presented. Otherwise serious hardship could result. There is, however, in the Bill a specific saver for the possible infringement of a constitutional right. This is similar to a provision in the Garda Síochána Act, 1979, which was also in the nature of validating legislation. The effect of the provision is to emphasise that it is not the intention of the Bill to deprive anyone of a constitutional right.

The Bill, if enacted, would enable the committee to make retrospective warrants in relation to Mr. Mahon. The procedure in the Bill would preserve the concept that all extensions of service of district justices should be considered and granted, if appropriate, by the committee set up under the 1949 Act. The principle that a committee should be empowered to grant extensions of service even though the original appointment was made by the President is already established in the 1949 Act.

The Bill as drafted would enable errors made in the future to be corrected without the need for new legislation. It is impossible to guarantee that no error or oversight of any kind will be made in the future at any stage of the proceedings, whether by a district justice, the Department, the committee or any other body and it is to provide against that eventuality that I consider this Bill should be adopted. So far as the Department are concerned I have directed that certain steps be taken to ensure that the kind of mistake which occurred in this case will not recur.

The Bill has a provision under which Mr. Mahon's service since January 1984 can be validated for pay, superannuation and other service benefits. He has sat as a district justice for more than four years and performed all the duties required of him and, in the circumstances, it seems only fair that he should be given credit for this service for pay, superannuation and other purposes.

In case there should be any doubt in the matter I should like to emphasise that the approach being adopted in this Bill has the endorsement of the Attorney General. A general question arises here about the extent to which the Oireachtas should have regard to the possibility of a successful constitutional challenge. Of course, the Oireachtas should not knowingly enact legislation which is clearly unconstitutional but, by the same token, I believe it should not hold back from taking reasonable action just because it may be argued that there is a remote possibility of a successful constitutional challenge.

I am advised that the provisions in this Bill ought to stand up to challenge and, as Senators will appreciate, the Bill itself, by the inclusion of section 1(3), gives a clear signal that it is not the intention to deprive anyone of a constitutional right. There are numerous examples of validating legislation of this kind so that, while we may regret the circumstances which have given rise to the need for this measure, we can at least acknowledge that it is not altogether unique.

I am satisfied that there are convicing reasons, both public interest and humanitarian, for adopting this measure and I, therefore, commend the Bill to the Seanad.

The purpose of this Bill is to enable the committee set up under the Courts of Justice Act, 1949, to make a warrant retrospectively in a case where such a warrant was not made through error or oversight as the Minister has indicated. Section 2 of the 1949 Act provides a mechanism whereby a district justice, on reaching the normal retiring age of 65 years may be continued in office on a year to year basis until the age of 70 years. This power to grant an annual extension is exercised by this committee, set up under the 1949 Act comprising the Chief Justice, the President of the High Court and the Attorney General.

This committee, if they think proper, may after consultation with the Minister for Justice make a continuation warrant. The district justice must satisfy the committee that he is not suffering from any disability which would render him unfit to continue to discharge effectively and efficiently the duties of his office.

What happened in the District Justice Mahon case was that no warrant was made when the district justice reached 65 years of age in 1984. Warrants were made for subsequent years but it now transpires, as the Minister has indicated, that these warrants have no effect because of the absence of a warrant to cover the first year after Mr. Mahon had reached his 65th birthday. Because Mr. Mahon had not been duly appointed a district justice since he reached his 65th birthday, and the committee have no power to issue a certificate retrospectively the Government in this Bill are proposing to enable the committee to make a warrant retrospectively and to validate a wide range of cases both criminal and civil.

In the unauthorised period since 1984, Mr. Mahon has dealt with a staggering 111,500 cases comprising 74,000 Road Traffic Act cases, 1,100 family law cases, 11,000 liquor licensing cases and 17,500 other civil cases. Penalties he imposed included some 40,000 fines, imprisonment and detention in relation to some 1,250 offences and disqualifications or endorsements for some 3,700 Road Traffic Act offences. It appears that clearly a major mistake has been made in the Department of Justice in relation to this matter. Every effort must be made to have it rectified.

However, there must be serious doubts about the wisdom of using retrospective validation, in particular as the Minister has indicated for criminal cases, and using two judges of our superior courts for this process thereby, it can be argued, breaching one of the fundamental tenets of our Constitution, namely, the doctrine of separation of powers which provides for the tripartite division of the powers of government into legislative, executive and judicial.

There are serious doubts about the constitutionality of this Bill. The Minister more or less conceded in his speech here and in the other House that there is a constitutional doubt when he stated that it would be open to any person who considered that the Bill did conflict with a constitutional right to seek redress in the courts. Because a constitutional question mark hangs over this Bill I believe that the Government should indicate to the President that they would have no objection to him referring this Bill to the courts under the Article 26 procedure in order to test its constitutionality. It may well be that the courts would decide that these decisions were ultra vires— the Minister used the word “invalid” but ultra vires is perhaps stronger — unauthorised by law, outside jurisdiction, null and void from the outset and consequently of no legal effect, and that such nullities or voidness cannot be retrospectively validated.

On the other hand, it may well be that the courts will apply the well known and long established maxim, communis error facit ius and that they will accept, as was decided in De Burca and Anderson v. the Attorney General in 1971, that there can be no refunnelling up the river of the water which had flowed down and passed under the bridge. There is, of course, a limit to the extent to which that can be done in an orderly society. There can be no umbrella absolution for illegality and every irregularity that can be imputed to the State. Indeed, in the words of Professor John Kelly, TD, recently:

People must be in principle entitled to redress but when their entitlement to redress to be relieved from an irregularity or illegality has not occurred to them before, so to speak, and only emerges as a possibility in consequence of a development which involves not only them but countless other people in numbers so large that were they all to get justice in the technical sense of the word — because they may, in fact have had substantial justice — could the structure of the State sustain it and could ordered society sustain it?

In spite of that commonsense approach by Deputy Kelly, it seems to me that it is the sheer weight of the cases, 111,500, which were determined by Mr. Mahon which prompted the Government to enact this legislation to allow for the validation of these decisions and cases. Otherwise, why was no legislation enacted to validate decisions made by Mr. Murphy? In a case which is mentioned, the State (Walsh) v. Murphy and the Attorney General, reported in the Irish Reports, 1981, at page 275, the prosecutor as defendant was convicted in the District Court by the first respondent Mr. Murphy. The High Court per Finlay P. Gannon, J. and Hamilton J. held inter alia:

(1) The validity of the conviction of the prosecutor by the first respondent depended upon the validity of the respondent's appointment.

(2) That once it had been challenged, the appointment of the first respondent could be and must be reviewed by the court.

(3) That at the date of his appointment as a temporary District Justice, the first respondent had not been eligible for appointment to that office because:

(a) he had not practised as a barrister for an aggregate period of ten years and;

(b) because he had not been a practising barrister at the time of his appointment.

That finding by the High Court operated to disclose that his appointment was invalid from the beginning, or void ab initio. The apparent Mr. Murphy was not there of course for very long to build up the staggering and titanic score of 111,500 cases which were built up by Mr. Mahon. As soon as these proceedings involving his status were initiated, he was more or less put in abeyance, so to speak. There then appeared on the scene Mr. Murphy, No. 2, the real Mr. Murphy, whom the Department of Justice, I understand, have alleged should have been appointed in the first instance. I raise this point today because I think there is a similarity here. Indeed, it is only the sheer weight of the cases which were determined by Justice Mahon which has prompted the Government to take this decision, and no such decision was taken in the Murphy case. We could indeed flesh out quite a number of other cases which point to the slipshod approach in procedure adopted by the Department of Justice in such matters.

I do not like to detain the House too long today but I believe that it would be most unjust, given the background to this case, to deprive Mr. Mahon of his right to pay, superannuation and so on. A person sat on the District Court bench for more than four years and performed all the duties required to be performed by him as a district justice. I think this is a separate issue. I do not think it is beyond the wit of the Government or their advisers to have produced the appropriate regulations or, indeed, legislation to have dealt with the personal service and indeed the personal remuneration which is due to Mr. Mahon.

In conclusion, I am sorry to say I believe that there has been a major mistake once again made by the Department of Justice — a major cock-up may I say? Unfortunately, this Bill opens up what has been described in the other House as a fascinating range of legal problems. However, I hope the Minister for Justice has got the formula right and that the public interest will be served best by the enactment of this legislation. This side of the House will not be tabling any amendments and will not be opposing the Government on this matter because we believe it is in the public interest. I hope the Bill, however, will be referred to the President so that its constitutionality can be tested.

This is a Bill to rectify a problem brought about by a district justice. A district justice has to retire at the age of 65 but on application can be kept on until he is 70 years of age. The power to grant an extension is exercised by a committee comprised of the Chief Justice, the President of the High Court and the Attorney General. He has to satisfy the committee that he is not suffering from any disability which would render him unfit to carry out his duties efficiently. The committee may consult with the Minister for Justice re the appointment. A warrant is required for each year of extension for which the district justice applies. It is the responsibility of the district justice to notify the Department of Justice nine months beforehand if he is seeking an extension. Indeed, in some cases the Department of Justice advise the district justice that if he needs an extension he should apply.

The purpose of this Bill is to enable the committee to make a warrant retrospectively. One district justice who had been appointed did not apply for an extension of service when he reached the age of 65 years and no warrant was made. The Bill is designed to remedy that by providing a means of having a warrant made now. The district justice in question was appointed as a temporary district justice for 12 months and was appointed a permanent district Justice in 1977. He was 65 years of age in January 1984. The district justice should have applied for a continuation of a warrant which is normal practice and the district justice is normally notified by the Department of Justice as well.

When the district justice applied for the position at first he gave on his application the information that he was born in 1920 when, in fact, he was born in 1919. He did submit a birth certificate giving his correct age eventually. The district justice had not a valid continuation warrant since his 65th birthday. I believe that, under the law as it stands, the committee had no power to issue a certificate retrospectively and this is necessary. The district justice handled a big number of cases in the period from 1984. He dealt with 8,000 criminal cases, 74,000 Road Traffic Act cases, 1,100 family law cases, 11,000 liquor licensing cases and 17,500 other civil cases.

Penalties he imposed included approximately 40,000 fines, imprisonment — detention in relation to some 1,250 offences and disqualifications or endorsements for 3,700 Road Traffic Act offences. Therefore, this Bill is necessary. The public interest would be served best by enacting legislation to allow for validation of all the cases he heard since his 65th birthday. I hold that this Bill is necessary to ensure that all the cases he heard during his four year term are valid.

I wish to support the Bill, the whole purpose of which is to regularise the problem that arose in connection with District Justice Séamus Noel Mahon. The Government and the Minister are handling the matter correctly. I do not wish to go into it in detail. The Minister has covered the history of the event. He went in great detail into the number of cases the district justice has dealt with and so did the previous speaker. I support the view that decisions made by him should stand. I am sure they were made in good faith and in the public interest they should certainly stand. It is an extraordinary case and at the end of the day if we learn from the mistakes that were made we should be satisfied. The Minister mentioned that corrective action has been taken.

The question of constitutionality has been raised. That is something we have to be careful of but the Attorney General and the advisers to the Government consider that it is not unconstitutional. I support the Bill.

I would like to thank Senators Kennedy, McEllistrim and Fallon who contributed to the debate on this Bill. As I said in my opening remarks, this Bill attempts to meet the practical problem of what to do when a routine mistake is made in the procedures for extending the appointment of a justice after he reaches his 65th birthday. Of course the mistake should not have occurred but, in the nature of things, mistakes will happen despite the best efforts to avoid them. I think we should recognise that fact and provide the means to deal with the consequences.

Changes have been made in administrative practice in the Department which should at least avoid the kind of mistake which occurred in this case and which contributed to the difficulty we are dealing with in this Bill. In future it will be necessary for a candidate to have submitted two items before he is considered for appointment — a birth certificate and a statement from the Bar Council or Law Society, as appropriate, verifying that the candidate has the necessary statutory practice experience, that is, ten years practice as a barrister or solicitor. There remains, of course, the possibility of other mistakes including mistakes on the part of justices or even the committee, and hence the need to provide the means to deal with them on a continuing basis.

Senator Kennedy raised the issue of the constitutionality of the provisions of the Bill. It is fair to say that many Bills can have their likely constitutionality questioned. It is right that the Oireachtas should be conscious of the need to do so. In this instance the Bill has the endorsement of the Attorney General and my advice is that it ought to stand up to constitutional challenge. I have no hesitation, therefore, in recommending the enactment of the Bill.

Reference was made to the inclusion of a specific constitutional right saver in the Bill. I accept that there are arguments for and against this. The point can be made that it is unnecessary since Article 15.4 of the Constitution provides that the Oireachtas shall not enact any law which is in any respect repugnant to the Constitution. It also provides that any such law shall, to the extent of such repugnancy, be invalid. The argument goes that there is no need, therefore, to except from legislation what would be unconstitutional since the Constitution already does that.

On the other hand, it can be argued that without a saver a person who had a legitimate cause of action might be deprived of that right by legislation validating a justice's actions. By including a saver the Oireachtas is indicating clearly that this is not the intention. Furthermore, by including the saver the Oireachtas is indicating its concern not to legislate across constitutional boundaries but, on the contrary, it is recognising its responsibility under Article 40.3 not only to respect but to defend and vindicate the personal rights of citizens. The Minister accepts as he did in the case of the Garda Síochána Act, 1979, that the balance of the argument is in favour of including the saver.

Reference was also made to the case of Michael K. Murphy where no retrospective validing legislation was introduced. The circumstances of that case were, however, different. Mr. Murphy was appointed a temporary district justice in April 1981. In June 1981a certiorari proceedings were commenced in the High Court by a defendant alleging inter alia that Mr. Murphy, when appointed, did not have the necessary statutory qualifications for appointment. Mr. Murphy ceased immediately to sit on the Bench. The High Court decided in December 1981 in favour of the defendant and Mr. Murphy's appointment was ceased with effect from the date of the judgment.

To be eligible for appointment a person must be a practising barrister or solicitor of not less than ten years standing. The court held that while Mr. Murphy had practised at the Bar for the necessary qualifying period of ten years, he was not at the time of appointment a practising barrister, being at the time employed as an examiner of title in the Land Commission. His appointment was, therefore, null and void. To have introduced legislation to validate Mr. Murphy's appointment retrospectively would have meant making a change in the statutory qualification requirements for appointment. This would have been a far more radical step than that proposed for Mr. Mahon in the Courts Bill, 1988. An alternative would have been to confine the validation of Mr. Murphy's court decisions. Since Mr. Murphy had sat on the Bench for only a short period the number of cases he disposed of was small and manageable. There was not the same need as in the Mahon case, therefore, to validate his decisions.

On the question of whether or not this Bill should be confined to the Mahon case, there are good reasons for taking the broader approach suggested in the Bill It is desirable first to abide by the mechanism established under the 1949 Act for any retrospective extensions of service. By doing this we will be avoiding any suggestion of undue interference with the independent nature of the proceedings under which extensions may be granted. Thus on the enactment of this Bill the committee established under the 1949 Act would be required to consider the making of the necessary extension warrant in Mr. Mahon's case. Under the Bill any future remissions to make extension warrants because of error or oversight could be dealt with in the same way.

While every reasonable step must be taken to avoid mistakes in the future, we have to accept that in the nature of things it is not possible to guarantee that no mistakes will ever be made again. The prudent course would seem to be to acknowledge that fact and make provision accordingly. Again I thank Senators for their contributions.

Question put and agreed to.
Bill put through Committee, reported without amendment, received for final consideration and passed.
Sitting suspended at 3.20 p.m. and resumed at 3.25 p.m.
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