Courts Service (No. 2) Bill, 1997: Committee Stage (Resumed).
Debate resumed on amendment No. 15:
In page 8, line 24, after "judges" to insert "or County Registrars".
— (Senator Connor.)
This section is a fundamental and important part of the Bill and a number of amendments to it have been tabled. Amendment No. 18 seeks to insert a new section. It states:
The appointment of County Registrars shall remain as in accordance with section 35(2) of the Court Officers Act, 1926.
It is most important that the status quo is maintained. It was stated earlier that county registrars have administrative and quasi-judicial functions. This aspect was debated at length on Second Stage. Proposals to transfer their administrative functions, in so far as they relate to the Circuit Court office, are acceptable to county registrars. However, the position regarding their quasi-judicial functions is a horse of a different colour. It is most important that the independence of county registrars is fully maintained and in no way interfered with, inhibited or restricted by the Bill.
The fundamental issue is that democracy supersedes bureaucracy. Under the current legislation, the appointment of county registrars is a ministerial function. The Minister's predecessors appointed registrars and I hope, with his help, his successors will also do so. It is most important that the quasi-judicial functions of county registrars are maintained. The quasi-judicial functions of the Master of the High Court were recognised and accepted on Second Stage and in the Bill. Provision is made for them. Unfortunately, the Minister did not recognise the quasi-judicial functions of county registrars on Second Stage or in the Bill. I hope he will rectify that position during this debate.
Most county registrars are qualified solicitors with many years experience as practising lawyers before their appointment. Barristers are also eligible for appointment as county registrars. It is important that people appointed as county registrars in the future come from the practical end of the legal profession and have experience of working on the ground with the public and fellow legal practitioners. They should be familiar with all aspects of the law at all levels. At present county registrars come from this area.
As part of their quasi-judicial functions, county registrars act as county sheriffs and adjudicate on various issues which are obviously within their remit. It is important that they retain these powers and are not subsumed in the overall Courts Service proposed by the Bill. It would be a retrograde step to subsume county registrars. It would not in any way assist the judicial system or the administration of justice.
The administrative functions of country registrars are different from their quasi-judicial functions. There is no clear indication in the Bill who will appoint the county registrars once the Bill is enacted. I raised this issue on Second Stage and it has not been addressed. We have tabled an amendment seeking to ensure that the status quo is maintained and that appointments continue to be made under the Court Officers Act, 1926. The situation of those already appointed and those to be appointed in the future will be somewhat different. The Minister must address this issue to our satisfaction.
A number of amendments have been tabled and one might suggest that the matter might be dealt with by the amendments. However, those amendments are open to a variety of interpretations. We want a clear and specific provision which does not alter the status quo. As a professional lawyer and a politician the Minister must recognise the value of the arguments put to him and the importance of addressing the issue.
Politicians should not constantly pander and react to the media profile of them which seeks to diminish our power as Members of Oireachtas or Government. The Minister and his colleagues should not reduce the powers vested in them. It is not good for democracy to take power from elected public representatives sitting at Cabinet. The Minister should keep his powers in this regard.
The general administration is a different issue from the matter in hand. The party allegiance of the Minister who makes the appointments is irrelevant; it is sufficient that they are elected Members of the Oireachtas. The power should not be given to a bureaucratic commission or board which is only accountable to the Oireachtas through the Committee of Public Accounts or another Oireachtas committee. That is not satisfactory. As public representatives we are accountable to the people and the Cabinet is accountable to the Oireachtas. In the final analysis, that is where accountability rests as defined in the Constitution and it should remain so with regard to this issue. I hope the Minister sees the wisdom of our arguments and ensures that the status quo is maintained.
The Bill suggests that future appointments of county registrars would be made by the Civil Service Commission. That would not be satisfactory. Since there is a quasi-judicial function in question, that must be dealt differently. It requires recognition similar to that of the Master of the High Court. The independence of county registrars must be maintained and I depend on the Minister to respond positively on this matter.
I support the amendments proposed by Members on this side of the House. Amendment No. 34 from the Labour Party proposes to allow county registrars to make limited orders in proceedings subject to appeal to the Circuit Court. There is a similar provision in the 1995 Act with regard to the Master of the High Court. Our amendment would extend the same principle to the Circuit Court. I agree with Senator Taylor-Quinn's comments on the role and function of county registrars.
I support the arguments put by my colleagues. The independence of the county registrars should be maintained. As Senator Taylor-Quinn and Senator Connor pointed out, they carry out quasi-judicial functions. They have carried out several roles to great effect over many years, including those of county sheriff, compiling registers of electors and acting as returning officers at elections. In my experience they have always acted independently when carrying out those functions. I urge the Minister to accept our amendments.
The third report of the working group on the Courts Service, chaired by Mrs. Justice Denham and comprising other eminent judges, recommended that established statutory positions such as the Master of the High Court, county registrars, taxing masters and examiners should be maintained, except where, to date, they had a formal statutory relationship to the Minister for Justice, Equality and Law Reform. The working group set up by the previous Minister, Deputy Owen, recommended that the office of county registrar should be on the same basis as taxing masters and the Master of the High Court.
I urge the Minister to accept our amendments and maintain the right to appoint county registrars. If not, will he outline who will appoint them?
I thank Senators for their contributions. These amendments relate to the position of county registrars under the Bill. I listened carefully to Senators' contributions on Second Stage, in particular, to the concerns expressed on all sides about the position of county registrars. In the main two concerns were expressed — first, that the Bill conferred the status of civil servants of the State on county registrars for the first time and, second, that the Bill may not have safeguarded adequately the independence of county registrars, particularly in the exercise by them of their quasi-judicial functions and their non-court functions.
The amendments I propose take account of the arguments made by Senators and the amendments they have tabled. They also follow from discussions between the Department and the representatives of county registrars, with whom I met. Amendment No. 45 has the effect of removing the reference to county registrars from the First Schedule. This has the effect of disapplying in respect of county registrars section 24 of the Bill which transfers staff to the Courts Service on the establishment day. Amendment No. 31 deletes the provision of the Bill which confers the status of civil servants of the State on county registrars. The combined effect of these amendments is that county registrars will not be categorised as staff of the service and that their current status as non-civil servants will be maintained.
Without the addition of further amendments, the effect of these two amendments would be to exclude county registrars from the operation of the Courts Service. That would be inconsistent with the thrust of the Bill which is to bring the management and administration of the courts into a single, cohesive structure, namely, the Courts Service. The exclusion of county registrars would not be satisfactory as it would exclude a substantial area of court administration from the scope of the Bill.
Senators will be aware that, in addition to courts administration work, county registrars exercise a wide range of quasi-judicial functions as well as certain functions such as returning officers which are unrelated to court functions. The purpose of amendment No. 38 is to ensure that county registrars will be part of the Courts Service but only in so far as their functions relating to the administration of their court offices are concerned. Their quasi-judicial functions are excluded from the effect of this provision by reference to section 9 which ensures that the service, the board or the chief executive will not be in a position to impinge upon the independence of a person who exercises such limited judicial functions conferred on them by law. A county registrar is such a person. The amendment also safeguards the independence of county registrars' non-court work as it makes it clear that they will be part of the Courts Service only in so far as their function is related to a function of the Courts Service. This excludes non-court work.
Amendment No. 28 provides that county registrars will be answerable to the board through the chief executive only in so far as their court related administrative functions are concerned. The overall effect of my amendments is to confer no change of status on county registrars. The only change in relation to their functions is that their courts administrative work alone will become part of the work of the Courts Service and in that connection alone would county registrars be responsible to the board of the Courts Service. This represents the minimum change necessary in respect of the position of county registrars which is consistent with the thrust of the Bill. The amendments proposed by Senators Connor, Cosgrave, Taylor-Quinn and Burke seek to achieve the same objective as my amendments in a slightly different way. For that reason I ask them to withdraw their amendments.
Senator O'Meara's amendment does not directly address the relationship between county registrars and the Courts Service. However, I accept that it attempts to recognise the special position of county registrars. Her amendment seems to restate the position under the Constitution and the law that county registrars may exercise quasi-judicial functions and that in the exercise of these functions their decisions will be appealable to the Circuit Court. The Court and Court Officers Act, 1995, provides for a wide range of quasi-judicial functions which county registrars may exercise and which are appealable to the Circuit Court. Subsection (2) of the Senator's amendment would confer additional powers on county registrars corresponding to the powers of the Master of the High Court. The powers of county registrars in the area of quasi-judicial business are being kept under review. The Court and Court Officers Act, 1995, represented a major overhaul and extension of the functions of county registrars. It would be premature to further extend these powers until the full impact of the powers conferred under the Act can be assessed. It is also doubtful that additional quasi-judicial powers could be conferred by way of rules as the amendment seeks to do. I ask the Senator to withdraw her amendment.
The Bill, with my amendments, will make no changes to the arrangements for the appointment of county registrars. This power is conferred by the Court Officers Act, 1926. It would be superfluous to repeat the provisions of that Act in this legislation. What is now proposed is that county registrars would be part of the Courts Service only in so far as their powers and functions in relation to courts are concerned. They would maintain their independence in so far as their quasi-judicial and other powers are concerned. They will not become civil servants and will continue to be appointed by the Government. This meets the concerns expressed by Senators on Second and Committee Stages. It also meets the concerns of county registrars. My amendments are illustrative of democracy at work in this House.
I welcome the Minister's remarks.
He has gone a long way to meet our concerns. However, we are concerned to ensure that this clearly appears in the Bill. Section 9 states:
.
(a) a judge in the performance of his or her judicial functions, or
(b) a person other than a judge in the performance of limited functions of a judicial nature conferred on that person by law.
Amendment No. 15 states:
In page 8, line 24, after "judges" to insert "or County Registrars".
If adopted, this would clearly indicate that section 9 specifically refers to county registrars.
The Minister could improve on his own amendment No. 38 which states:
In page 18, before section 30, but in part VII, to insert the following new section:
Subject to section 9, every County Registrar shall, on the establishment day, be transferred to the Service in respect of those functions of County Registrars which relate to a function of the Service.".
The Minister should word this amendment as follows:
Subject to section 9, every function of a County Registrar shall, on establishment day, be transferred to the Service in respect of those functions of County Registrars which relate to a function of the Service.
We are very concerned that the doctrine of the separation of powers in relation to a judicial function is fully protected and that this is specifically stated.
I appeared before a county registrar exercising a judicial function when a former member of this House sued me for libel. I made an application in the Circuit Court for discovery of documents against the individual. This application was not dealt with by a Circuit Court judge as I expected. The order for discovery was given to me by the county registrar carrying out a judicial function. Both I and the other party to this suit wished to know that the county registrar, acting in such a manner, was fair and impartial and acting in the same independent manner as a judge. Will the Minister consider my position on amendments Nos. 15 and 38?
The Minister is making a serious attempt to meet the concerns expressed. However, the issues addressed by Government amendment No. 38 are already addressed by Government amendment No. 28, which proposes to delete subsection (1) of section 20 and substitute the following new subsection:
"(1) Notwithstanding any other enactment, the Chief Executive shall manage and control generally the staff, administration and business of the Service, including the functions of County Registrars in so far as such functions relate to a function of the Service, and shall perform such other functions as may be conferred on him or her by or under this Act or by the Board.".
The administrative aspect of county registrars is already dealt with here. There is a danger in introducing amendment No. 38 because it proposes to transfer the post of county registrar for inclusion under section 9. This difficulty could be resolved if this amendment were amended to read as follows:
In page 18, before section 30, but in part VII, to insert the following new section:
30.—Subject to section 9, every function of a County Registrar shall, on the establishment day, be transferred to the Service in respect of those functions of County Registrars which relate to a function of the Service.
This transfers the function rather than the post. As it stands, the transfer of the post is inherent in the amendment, subsuming it completely under the service. That is dangerous. What the Minister seeks to achieve here is already achieved by amendment No. 28 to section 20. I do not see the necessity, therefore, for amendment No. 38. The matter can be addressed by being specific on every function of a county registrar in so far as it relates to the function of the service. In this way the post is kept separate.
If the Minister's proceeds down this route, the post of the county registrar is subsumed under the service. The question then arises as to who appoints the next county registrar, say in County Kerry, when the present registrar retires or resigns? Who will appoint county registrars in the future? As the Minister's predecessors made such appointments, I hope he and his successors will. The matter rests in his hands.
This amendment is fraught with danger because the post rather than the functions is being subsumed. If the Minister insists on proceeding with amendment No. 38 he should include the functions of the country registrar. The administrative aspect is dealt with here.
This is an important matter. It is also important to note the meetings that have taken place in the Minister's Department, especially with Mrs. Justice Denham who presided over the special report commissioned by the former Minister for Justice, Deputy Owen. Mrs. Justice Denham is of the view that the current manner of appointing county registrars should remain.
The Minister must reconsider amendment No. 38 in addition to our amendments, which are specific and straightforward. One of them would easily resolve the problem. Amendment No. 18 is clear with regard to the appointment of county registrars. It provides that "The appointment of County Registrars shall remain as in accordance with section 35(2) of the Court Officers Act, 1926". The Minister has not addressed this aspect.
I have outlined what the package represents and I have explained what I am trying to achieve. Why can it not be said that while the functions of the county registrar in so far as they relate to the Courts Service should be transferred to the Courts Service, those not related to the Courts Service should not be so transferred? We must tell the dancer from the dance. I have no alternative but to transfer the county registrar, in so far as the powers relating to the courts are concerned, to the Courts Service. Not to do so would be anomalous.
To a large extent it does not matter whether the amendments are in Swahili provided they achieve the objective which I, the House and many county registrars have set. I have made it clear that the power of appointment of a county registrar is pursuant to the Court Officers Act, 1926. I have also made it clear that I intend to retain the provision of the 1926 Act in so far as they relate to the appointment of county registrars. It is axiomatic that the power to appoint county registrars into the next millennium, and certainly under this legislation, will remain with the Government of the day in accordance with the provisions of the 1926 Act. There is no need for me to repeat those provisions in this legislation because following upon these amendments, it does not amend the provisions of the 1926 Act. It would be repetitious, naive and foolish of me to enact into law that which was enacted into law 72 years ago. Perhaps I did not express the point as clearly as I should but I trust that Members now accept that this is the effect of what I am doing.
The independence of county registrars is inherent in their appointment as they exercise quasi-judicial functions. A county registrar who would not exercise such functions independently would not be worthy of the name, irrespective of which political party was in office at the time that individual was appointed. There may be small concerns among sections of the Seanad regarding the proposed amendments, but I propose that amendments Nos. 31 and 35 be accepted as well as Government amendments Nos. 28 and 38. These proposals meet the concerns of county registrars and Members in a reasonable way.
I ask Senators to accept the package I have presented. If, on reflection, they still have concerns, they would be very welcome to express them on Report Stage. They will obviously have the opportunity to table further amendments to the legislation at that stage. We share the same approach to this issue and I have met the concerns of Senators on all sides of the House. I believe the amendments I have tabled are solid, reasonable, achieve the desired objective and reflect the concerns of Senators as expressed before Christmas and here this evening.
The small print in legislation can sometimes be different from its initial objective. We witnessed that recently with the appointment of judges in drug cases. We tabled two amendments as did the Minister and it would seem that we have all set out to reach the same goal. The Minister's amendments are confusing to a degree. I cannot understand why he has tabled two amendments to two different sections to reach the same conclusion. Is the Minister saying that a county registrar will report directly to the chief executive officer on the court functions he or she would carry out? In regard to the other quasi-judicial functions concerning the register of electors, returning officer and the sheriff, will the registrar carry these out independently and will the chief executive officer have no function whatsoever in that regard? I understand that the registrar will report to the Minister and Government of the day on these matters. That is my interpretation of the Minister's comments.
I am somewhat disappointed that the Minister did not specifically refer to my question on section 9. The Bill is very clear and specific on protecting the independence of a judge in the performance of his judicial functions. Why not add "or County Registrars" in section 9 to ensure they are also protected? Amendment No. 43 to section 39 also deals with this and, again, we ask the Minister to insert "or County Registrars" at that point.
The Minister mentioned that amendment No. 31 would somehow remove county registrars from part of the Courts Service as far as their administrative functions were concerned. We are willing to withdraw that amendment as we realise that county registrars must be answerable to the Courts Service for their administrative functions. However, in relation to judicial functions, we want to ensure that the Bill states that when county registrars are acting in their quasi-judicial roles, they are independently protected. We want to protect the doctrine of the separation of powers. That is a fundamental point. We will gladly forego the amendments which the Minister feels may, in some way, attack that part of the Bill which transfers the functions of a county registrar to the Courts Service as those functions are essentially court services and are non-quasi-judicial or non-judicial. I urge the Minister to add, by amendment, "or County Registrars" following the word "judges" in sections 9 and 39.
I do not doubt that the Minister is attempting to meet the concerns which have arisen. When we are all six foot under and this legislation is on the Statute Book, people will have to examine and interpret it. The Minister has clearly stated that nothing in this Act amends the Court Officers Act, 1926 and that he intends to retain the power of appointment of county registrars within his ambit through the relevant section of that Act. There is nothing to suggest that, if the Minister's amendment No. 39 to section 30 proceeds, not only will the administrative functions of the county registrar be encompassed but the actual post of county registrar will be encompassed under the auspices of the service. That would move the goal posts significantly and create a whole new ball game. The Minister's earlier amendment No. 28 to section 20 also deals with that and Senator Burke correctly pointed out that there does not really seem to be any necessity for the second amendment.
Thirty or 40 years from now there will be a different Minister and different advisers in the Department of Justice, Equality and Law Reform. Will this legislation be open to a different interpretation then from that which the Minister has outlined this evening? We must ensure that this issue is clearly copperfastened and that the position on the appointment of county registrars is clearly stated in this Act. As things stand, it is not. Where the chief executive, membership of the board and others are concerned, all of these positions and their manner of appointment are clearly identified but the position of the county registrar is not.
Senator Burke made an important point on the administrative and quasi-judicial functions of the county registrar. There is no problem with the administrative functions as these refer to the Courts Service. What is the position in relation to the quasi-judicial functions? Are they strictly a matter for the Minister and the Cabinet or will they also be referred to the commission? That is not clear. These are basic flaws in the Bill as it stands. While the Minister is attempting to go part of the way, there are inherent dangers in his amendments, particularly in amendment No. 38. The matter needs to be addressed.
Senator Burke's interpretation of the situation is, for the most part, correct. The functions of a country registrar, in so far as they relate to his or her court role, are transferred to the Courts Service as it is being set up to manage the courts. One of the integral parts of the management of the courts relates to the functions of county registrars in so far as they relate to the courts and it is appropriate that these functions be transferred to the Courts Service. It would be ludicrous to do anything else.
In regard to the independence of county registrars in their quasi-judicial role, the independence of the Judiciary and those exercising quasi-judicial roles, such as the Master of the High Court and the county registrars, is protected under article 35 of the 1937 Constitution. In the same way, this legislation, in so far as powers and functions are conferred on the board and the chief executive of the Courts Service, ensures the exercise of those powers will not interfere with that independence. Section 9(b) states that the section applies to a person other than a judge in the performance of limited functions of a judicial nature conferred on that person by law.
Why not include county registrars?
It follows that county registrars and the Master of the High Court are covered by that because of the quasi-judicial functions conferred on them by law. What Senator Connor is seeking to achieve, that is, an expression of the independence of county registrars in the exercise of their quasi-judicial role, is contained in the Bill in section 9(b) because county registrars are quasi judicial personages in that they exercise quasi-judicial powers in some instances.
(Interruptions.)
I hear Senator Connor saying "nonsense". I do not understand why he would say that——
I said "not specifically".
—— when all I am saying is that the legislation contains what I am describing. We are really arguing about semantics. What Senators Connor, Burke and Taylor-Quinn are trying to achieve is already achieved in the Bill. The whole question of the independence of a county registrar in the exercise of a quasi-judicial role is covered, in any event, under the Constitution. We have had a full and comprehensive debate on this matter and have achieved the objectives which we sought to achieve.
I am quite willing to acknowledge the role played by Members of the House in that regard. There is nothing between us now.
Except the title "county registrar".
If people perceive there is, it just proves the old adage that perception is reality, but I do not believe that. People who have been involved in political life as long as the Senators will accept that protestation.
What exactly is the Minister's objection to inserting "county registrar" after "judges" in two sections to make it more specific? That is all we are asking.
My only objection to the Senator's suggestion is that, in the immortal words of the former Leas-Cheann Comhairle, Jim Tunney, I have already achieved that which he is now seeking to achieve.
We must reach a decision on the amendment at this stage. We have debated the matter at length and I do not think Senator Taylor-Quinn will achieve very much by debating it further.
Perhaps we are a little dense on this side of the House but we do not seem to comprehend the Minister's recipe whereby we are all at one on this issue.
The Senator should cook it for a while.
The ingredients are there but the recipe for mixing them is not clear. The Minister's recipe and our recipe are not coming together.
It is a simple matter. What is the Minister's inherent objection to inserting the phrase "or county registrars" after "judges"? What is his objection to reaffirming the position in the Bill? The same formula is put into technical Bills and annual reports.
What is his objection to inserting a section to state specifically state that "the appointment of County Registrars shall remain as in accordance with section 35(2) of the Court Officers Act, 1926"? It would not hurt him to include it or cause him any major distress. It would just mean an extra few lines would have to be typed in the Department. It would not take in any way from the Bill but would strengthen it and do a great deal of good. It would make the Bill much clearer.
The Minister is in the glorious position of having both a legal and a political background. The problem is that legal people sometimes make the matter more convoluted for ordinary people by using legal terminology. If the section is inserted it will make it easier for ordinary people to read.
The problem with inserting the section is that it would not be able to stop there; I would have to specify the Master of the High Court and goodness knows where it would end. I have made provision for what the Senators are seeking. Senator Taylor-Quinn seems to be arguing it is a biscuit while Senator Connor seems to be arguing it is a bar. It is a biscuit in a bar. I hope that establishes the position.
I am sorry the Minister is trivialising the debate.
The Minister must be allowed to reply.
With regard to Senator Taylor-Quinn's statement that I am in the glorious position of being both a lawyer and a politician, in a survey of people's opinions on professions some years ago politicians and lawyers polled lowest of all. I do not remember in which order.
I am not trying to be facetious; I am trying to resolve the matter. In my humble opinion, what the Senators are seeking has been achieved in the amendments which have been tabled. I suggest they resubmit the amendments to which they refer on Report Stage when we can continue this fascinating debate with an even greater level of enlightenment.
Is the amendment being pressed? We have progressed the matter.
I agree the Minister is trying to meet us but the Department is probably the obstacle in his way. If the Minister cannot accept Senator Connor's amendment he should accept that amendment No. 38, which states ". every County Registrar shall, on the establishment day, be transferred to the Service in respect of those functions of Country Registrars which relate to a function of the Service", should be deleted.
He seems to be advising us to resubmit some amendments on Report Stage. Should we take his advice and table an amendment to amendment No. 38 on Report Stage? I believe the Minister believes in his heart that amendment No. 38 should be deleted. However, if he cannot delete his amendment, he should accept Senator Connor's proposal to include county registrars.
I understand where Senator Burke is coming from, but I put it to him that the new section inserted by my amendment No. 38 reinforces my assertion that section 9 protects the independence of county registrars. It refers directly to that independence. It states:
30.—Subject to section 9, every County Registrar shall, on the establishment day, be transferred to the Service in respect of those functions of County Registrars which relate to a function of the Service.
Section 9 (b) refers to county registrars by virtue of the fact that it refers to people who exercise quasi-judicial functions conferred on them by law. I hope that explains the situation. I am convinced I am right, and I would be very foolish if I thought otherwise, but the Senator seems to be convinced he is right. If the Senator wishes to bring his amendment forward on Report Stage, I will re-examine it. However, a man convinced against his will is of the same opinion still.
Amendment put and declared lost.
Amendments Nos. 16 and 17 in the name of Senator O'Meara are out of order.
Amendments Nos. 16 and 17 not moved.
Section 9 agreed to.
NEW SECTION.
I move amendment No. 18:
In page 8, before section 10, to insert the following new section:
"10.—The appointment of County Registrars shall remain as in accordance with section 35(2) of the Court Officers Act, 1926.".
Amendment put and declared lost.
Section 10 agreed to.
SECTION 11.
Amendment No. 20 is an alternative to amendment No. 19, amendment No. 21 is related and amendment No. 22 is an alternative to amendment No. 21. Amendments Nos. 19 to 22, inclusive, may be discussed together, by agreement.
I move amendment No. 19:
In page 9, subsection (1)(k), line 28, to delete "nominated by the Chairman" and substitute "elected by the members".
Amendments Nos. 19 to 22 relate to the membership of the board of the Courts Service. They attempt to allow for a situation where the representatives of the Bar Council and the Law Society are elected by their members rather than appointed or nominated as provided for in the legislation.
I seek "consultation with the Council of the Bar" in my amendment No. 20. Amendment No. 22 reads: "In page 9, subsection (1)(l), line 31, after "Ireland" to insert "following consultation with the Council of the Law Society".
Section 11 sets out the composition of the board of the Courts Service and includes a practising barrister nominated by the chairman of the Bar Council and a practising solicitor nominated by the president of the Law Society. Amendments Nos. 19 and 21 propose that, rather than using the nomination procedure provided for in the Bill, it should be specified that the members of the board concerned should be elected by the Bar Council and the Law Society. Amendments Nos. 20 and 22 propose that it should be stated in the Bill that nominations would be made after consultation with the respective councils of the two bodies.
The current provisions are of the standard form used in other legislation and I see no reason to depart from that approach. For example, they mirror the provisions in the Courts and Court Officers Act, 1995, concerning appointments to the Judicial Appointments Advisory Board. It seems reasonable to me that it should be left to the Bar Council and the Law Society to make their own arrangements concerning their representation on the Courts Service board. In those circumstances, I do not consider it appropriate that the legislation should specify that these people should be elected.
It also seems unnecessary to include in the legislation a requirement that the chairman of the Bar Council and the president of the Law Society consult with their respective councils. It is clear from the Bill that these people would not be operating in their personal capacities but as the heads of the organisations they represent. It would be fanciful to suggest they would make the nominations concerned without carrying out the necessary consultation within their organisations. If there was dissatisfaction among the members of the Bar Council or the Law Society as to how these organisations nominated people to serve on the board of the Courts Service, members could pursue it within their respective organisations.
In the circumstances, I prefer to use the standard formula which is used in the section.
Amendment, by leave, withdrawn.
Amendments Nos. 20 to 24, inclusive, not moved.
Government amendment No. 25:
In page 9, after line 43, to insert the following new subsection:
"(2) The Minister may, after consultation with any recognised trade unions or staff associations concerned, make such regulations as are considered necessary or desirable in order to provide for the election of a member of staff for the purposes of subsection (1)(m).".
Section 11(1)(m) provides that one of the members of the Courts Service board will be a member of staff of the service elected by staff members. However, the Bill does not provide any mechanism to regulate the manner in which the staff member is to be elected to the board. It is appropriate to provide for such a mechanism by way of regulation. The need for such regulations could be reviewed in light of agreement among members of staff of the Courts Service about the person to represent them. I will monitor developments in this regard in the context of industrial relations discussions involving my Department and unions representing courts staff which are ongoing in connection with the establishment of the service.
Amendment agreed to.
Question proposed: "That section 11, as amended, stand part of the Bill."
As regards the composition of the board of the Courts Service, one group has been left out — social workers — although the Minister may have provided for it under section 11 (1)(m), where a member of staff of the service is elected by the staff members for that purpose. Social workers provide a great service to the courts and carry out much work given to them by the courts. They should have an appointee on the board because that would be worthwhile. When appointing the board, the Minister might consider allowing the social workers to make some input.
The exclusion of social workers is by no means meant to demean their role. The Probation and Welfare Service has provided a tremendous service and we are examining ways and means by which its role can be extended.
The board is quite large at the moment; there is provision for 17 members. The more members on a board, the more unwieldy it becomes. In this case the balance is right and I am satisfied the board will be able to carry out its functions in an effective and efficient manner. On balance, I do not believe I would add to the effectiveness or efficiency of the board by including further members on it.
I intend to see how best the Probation and Welfare Service can be extended to ensure it plays a fuller role in the criminal justice system. To that end, I recently appointed a Probation Service Review Board, under the chairmanship of Mr. Brian McCarthy, to investigate this matter. I trust that is an adequate response to the Senator's query.
Question put and agreed to.
Sections 12 to 15, inclusive, agreed to.
SECTION 16.
I move amendment No. 26:
In page 12, subsection (1)(a), line 15, after "expenses" to insert "to enable them to carry out their functions effectively".
This portion of the Bill discusses the allowances and expenses to be paid. This line should be added in order to state that people are paid to enable them to carry out their functions effectively.
Section 16(1) provides, inter alia, that specified members of the board should be paid such allowances, if any, as the Minister, with the consent of the Minister for Finance, may from time to time determine. The formula in the Bill is a standard one and I see no good reason to depart from it. By definition, allowances for expenses are intended to compensate for expenses incurred. I see no point in specifying that these enable functions to be carried out effectively. Who is to be the judge of that? The section specifies that these allowances will be determined by the Minister after consultation with the Minister for Finance, which is also a standard provision. If the amendment is intended to tie their hands, that would also be unacceptable. Such allowances as would arise would be based on public sector practices, and I have indicated that the provision is in standard form and I would not be happy to make the amendment. If it were made, a similar one would have to be made in subsection (1)(d) which deals with expenses for other members of the board.
Amendment, by leave, withdrawn.
Section 16 agreed to.
Sections 17 and 18 agreed to.
NEW SECTION.
I move amendment No. 27:
In page 13, before section 19, to insert the following new section:
"19.—(1) The Chief Executive shall be an ex-officio member of the Superior Courts Rules Committee, the Circuit Court Rules Committee and the District Court Rules Committee.
(2) An ex-officio member of a committee referred to in subsection (1) may delegate his or her membership of the committee—
(a) in the case of a judge, to another judge of the court of which the judge is a member; or
(b) in the case of the Chief Executive or another member of staff of the Courts Service, to another member of staff".
The amendment is self-explanatory. It allows for delegation, which was recommended by Mrs. Justice Susan Denham's court commission.
The second report of the Working Group on the Courts Commission recommended that in the proposed Courts Services, the chief executive, together with his or her nominee, and a senior member of the staff of the relevant jurisdiction nominated by the chief executive officer be members of each of the rules-making committees. It also recommended taking the necessary legislative steps to enable this to happen. The Government accepted that recommendation, which envisaged that the necessary legislative steps would be taken after the Courts Service had been established. In this context it was intended to address the matter in a future courts Bill. However, as the present Bill deals with the functions of the chief executive I see merit in including a provision making the ehief executive or his or her nominee an ex-officio member of the rules committee. Any further changes in the operation of those committees will have to await another Bill. Accordingly, if the Senator withdraws her amendment, I will table an amendment dealing with this matter on Report Stage.
Amendment, by leave, withdrawn.
Section 19 agreed to.
SECTION 20.
Government amendment No. 28:
In page 13, lines 7 to 10, to delete subsection (1) and substitute the following new subsection:
"(1) Notwithstanding any other enactment, the Chief Executive shall manage and control generally the staff, administration and business of the Service, including the functions of County Registrars in so far as such functions relate to a function of the Service, and shall perform such other functions as may be conferred on him or her by or under this Act or by the Board.".
Amendment agreed to.
Amendment No. 29 cannot be moved as amendment No. 28 has been agreed.
Amendment No. 29 not moved.
Section 20, as amended, agreed to.
SECTION 21.
Government amendment No. 30:
In page 13, subsection (1), line 29, to delete "Courts Service" and substitute "Service".
This is a technical amendment intended to ensure consistency in the references.
Amendment agreed to.
Section 21, as amended, agreed to.
Section 22 agreed to.
SECTION 23.
Amendment No. 31, in the name of Senator Connor, is a Government amendment.
I move amendment No. 31:
In page 14, lines 40 and 41, to delete subsection (5).
Amendment agreed to.
Amendment No. 32 was discussed with amendment No. 9.
Amendment No. 32 not moved.
Section 23, as amended, agreed to.
SECTION 24.
I move amendment No. 33:
In page 15, subsection (2), line 4, to delete "member of the staff of the Department of" and substitute "officer of the Minister for".
This is a drafting amendment.
Section 24 deals, inter alia, with the transfer of staff of the Department of Justice, Equality and Law Reform to the Courts Service. The amendment would remove the reference to a member of staff of the Department and replace it with a reference to an officer of the Minister. I am not sure much hinges on the amendment, but it could happen that temporary unestablished staff who might want to transfer to the Courts Service would not technically be officers of the Minister. They would not then be encompassed by the amendment proposed. I have noted the points made and if the Senator agrees to withdraw the amendment I will have the matter discussed with the parliamentary draftsman between now and Report Stage.
Amendment, by leave, withdrawn.
Section 24 agreed to.
NEW SECTION.
Amendment No. 34 has already been discussed with amendment No. 15.
Amendment No. 34 not moved.
Section 25 agreed to.
NEW SECTIONS.
Government amendment No. 35:
In page 15, before section 26 but in Part VI, to insert the following new section:
"26.—(1) (a) The Minister may by order appoint a vesting day in respect of any land (or a part of any land) used solely for purposes to which the functions of the Service relate or partly for the purposes of the Commissioners and partly for the purposes to which the functions of the Service relate and which immediately before the vesting day was vested in or leased by the Commissioners.
(b) On the vesting day, the land, the subject of the order, and all rights, powers and privileges relating to or connected with such land shall — (i) where used solely for purposes to which the functions of the Service relate — after consultation with the Commissioners, and
(ii) where used partly for the purposes of the Commissioners and partly for purposes to which the functions of the Service relate — with the consent in writing of the Commissioners,
but without any further conveyance, transfer or assignment, be vested in the Service for all estate, term or interest for which immediately before the vesting day it was vested in the Commissioners, but subject to all trusts and equities affecting the land subsisting and capable of being performed.
(2) (a) The Minister may by order appoint a vesting day in respect of any land (or part of any land) used solely for purposes to which the functions of the Service relate or partly for the purposes of the local authority and partly for purposes to which the functions of the Service relate and which immediately before the vesting day was vested in or leased by a local authority.
(b) On the vesting day the land, the subject of the order, and all rights, powers and privileges relating to or connected with such land shall —
(i) where used solely for purposes to which the functions of the Service relate — after consultation with the local authority, and
(ii) where used partly for the purposes of the local authority and partly for purposes to which the functions of the Service relate — with the consent in writing of the local authority,
but without any further conveyance, transfer or assignment, be vested in the Service for all estate, term or interest for which immediately before the vesting day it was vested in the local authority, but subject to all trusts and equities affecting the land subsisting and capable of being performed.
(3) The Minister may, by order, appoint a day on which land which is vested in the State or an organ of the State and which is used for purposes to which the functions of the Service relate shall become subject to the occupation, management and control of the Service for the purposes of its functions and on that day it shall accordingly become so subject.
(4) The Minister may on his or her own initiative, and shall on the application of the Service, issue a certificate in respect of specified land stating, as the Minister thinks proper, that such land vested in the Service under this section, or did not so vest, and the certificate shall be evidence of the facts so stated.
(5) Every right and liability transferred to the Service by this section may, on or after the day it has been transferred, be sued on, recovered or enforced by or against the Service in its own name and it shall not be necessary for the Service to give notice to a person whose right or liability is transferred by this section of the transfer.
(6) Section 12 of the Finance Act, 1895, shall not apply in respect of the transfer under this section of land to the Service.
(7) (a) Subject to paragraph (b), on the establishment day the Courthouses (Provision and Maintenance) Act, 1935, shall stand repealed.
(b) Notwithstanding paragraph (a), where immediately before a vesting day appointed under subsection 2(a), a person stood appointed as a caretaker or an assistant to a caretaker in respect of courthouse accommodation under section 5 of the Courthouses (Provision and Maintenance) Act, 1935, which accommodation is the subject of that vesting, then that section shall continue to apply to the person as if he or she had been so appointed by the Service.
(8) In this section—
‘the Commissioners' means the Commissioners of Public Works in Ireland;
‘local authority' means the council of a county, a corporation of a county or other borough, a council of an urban district or commissioners of a town.".
The new section replicates the policy underpinned to substitute a section with a number of changes mainly of a minor, technical or drafting nature. The changes are easily assimilated in the new section rather than by way of piecemeal amendments.
The first change is the substitution of the term "land" for all references in the substituted section to "premises" and "property". The section is dealing with court buildings as distinct from other types of property, which are dealt with in section 27. The most satisfactory definition is of the term "land", as this would allow for the vesting in the Courts Service of not just the court building but also the grounds, including car parks and green areas attaching to the court building. The substituted section provides for the transfer of courts from the Commissioners of Public Works and councils to the Courts Service but dealt only with buildings vested in those authorities. It is necessary to also take account of court buildings which are leased as opposed to vested in those authorities. The second change extends the scope of the Bill in that regard.
Section 26(1)(a) now makes it clear that land vested in or leased by the Commissioners will vest in the service, and section 26(2)(b) makes it clear that land vested in or leased by the local authorities will vest in the Courts Service.
The third and fourth changes relate to the manner of the transfer of properties vested in or leased by the Commissioners of Public Works to the Courts Service. The new section 26(1)(b) now distinguishes between a court building vested in or leased by the Commissioners of Public Works which is used solely as a court and a building which houses a court but which is also used for different purposes by the Office of Public Works.
This is similar to the distinction made in the next subsection in respect of property vested in or leased by a local authority. This part of the new section also provides that a court building vested in or leased by the commissioners will vest in the service after consultation with the commissioners. In the case of a building in mixed use, the consent in writing of the commissioners will be required to the vesting in the services of the land.
This amendment introduces provisions which correspond directly with the consultation provisions of subsection (2) relating to property vested in or leased by local authorities. I am satisfied that it is reasonable and wise to provide for similar arrangements relating to the vesting of all court buildings in the service.
New subsection (4) is an essential technical amendment. The section being substituted makes provision for the issue of a certificate by the Minister stating whether property or premises, now to be referred to as land, did or did not vest in the Courts Service. Such certificates may be required in connection with proceedings relating to the ownership of court buildings, and in this context such provision is desirable. Corresponding provision is made in the Bill in relation to certificates of evidence in respect of the transfer of property other than land to the service under section 27 and the transfer of contractual rights and liabilities under section 28. Furthermore, the amendment is consistent with similar provisions of other enactments transferring property to State agencies.
The final change is contained in new subsection (8) which substitutes a definition of local authority for the definition of council contained in the Bill as published. The revised definition is a more appropriate description of the various local authority entities concerned with the vesting of court buildings.
Amendment agreed to.
Acceptance of this amendment involves deletion of section 26 of the Bill. Is it agreed that section 26 of the Bill be deleted? Agreed.
Amendments Nos. 36 and 39 are related and may be discussed together by agreement.
I move amendment No. 36:
In page 15, before section 26 but in Part VI, to insert the following new section:
"26. The Board will establish that every office to be rented in the Service has the appropriate planning permission to enable the functions to be carried out therein.".
The purpose of this amendment is to ensure that the embarrassment caused recently when courts were held in buildings which did not have proper planning permission does not recur. We remember what happened in Donegal when courts were held in community halls without proper change of use planning permission.
Perhaps the Minister is trying to accommodate us on this matter through amendment No. 39. It is important that what is stated in amendment No. 36 be included in the legislation.
The purpose of amendment No. 39 is to provide that temporary courthouses will be exempted developments for the purpose of the planning Acts and that it will be necessary to make a notification only once regarding the use of temporary courthouses.
Section 2 of the Local Government (Planning and Development) Act provides for the developments which are exempted from requirements relating to planning approval. Such developments include courthouses but the Act does not explicitly include temporary courthouses. Recent planning decisions have pointed out the desirability of ensuring the exemption which already applies to permanent courthouses should equally apply to temporary courthouses. The amendment achieves this by redefining courthouses to include temporary courthouses. The 1993 Act provides, by way of regulation, for public notification procedures in respect of exempted developments such as courthouses. The Government amendment also provides that, in relation to temporary courthouses, it shall be necessary to comply with these notice procedures only once. The effect of this amendment is to ensure there will be no requirement to make public notice regarding the use of a venue on each occasion a temporary courthouse is used. I am satisfied that this is a highly practical and necessary change.
Amendment No. 36 also relates to planning matters in the context of court offices rather than courthouses. The law only provides for exemption from planning in respect of courthouses. Amendment No. 36 appears to do no more than reinforce existing planning requirements in relation to non-exempt developments and, as such, I suggest it is unnecessary. Accordingly, I ask the Senator to withdraw the amendment.
Bells start to ring in one's head on hearing about exempted developments and temporary courthouses. Concerns are constantly expressed on the Order of Business about masts and exemptions from planning permission. Senator Connor's amendment is very worthy and we should pay great attention to it. How long is a temporary courthouse a temporary courthouse? There is no time limit. How long can a prefab, erected as a temporary court building while a permanent building is being constructed, be considered a temporary building? Nobody would be too bothered if the period was a month or six weeks. However, a much longer period to time would be a matter for concern. Perhaps the Minister will clarify this matter.
It was the view of the Government that the Burren interpretative centre was an exempted development. Somebody took the matter to court and it was found that the Government had no right to embark upon a development of such scale without planning permission. Mr. Justice Costello said the Government should apply for planning permission for all developments on the same basis as private citizens. On that basis the Burren project failed at huge cost to the State.
Somebody will bring the issue of temporary courthouses being exempted developments before the courts and probably prove, as was proved in the case of the Burren interpretative centre, that the provision is constitutionally wrong. Planning permission should be applied for in the normal manner to ensure there is not a repeat of what happened in Donegal. Developments there necessitated emergency legislation being brought before the House to give legal effect to decisions in cases over a period of years which had been heard in community halls, etc., which did not have planning permission.
It is desirable that court sittings be held in courthouses which have planning permission. Holding court sittings in temporary buildings should be avoided as far as possible. We are proposing this amendment to ensure we do not have a repeat of the occurrences outlined.
This is a worthwhile amendment. Having listened to what Senators said, I strongly suggest they defer further action at this stage and that the Minister, with the Senators' approval, revisit this matter on Report Stage. From the views expressed, it seems there is food for thought and we should be cautious. Raising it on Report Stage would give the Minister and his officials an opportunity to provide the various assurances necessary in the context of this amendment. I ask the Senators who have spoken and who have tabled the amendment to defer the issue until Report Stage. Perhaps the Minister will agree.
Senator Connor's amendment refers to offices and not courthouses. I will convey the points made by Senators O'Meara and Connor to the Minister.
Amendment, by leave, withdrawn.
Section 26 deleted.
SECTION 27.
Government amendment No. 37:
In page 17, subsection (1), line 5, after "Minister" to insert ", the Commissioners or a local authority within the meaning of section 26 (as the case may be)".
This amendment inserts a reference to the commissioners and the local authority in section 27 of the Bill which transfers property other than land to the Courts Service. The section as published would only allow for the vesting in the service of property other than land which, before the vesting day, was vested in the Minister. An example of the property in question would be equipment such as court furniture located in courthouses. It is more consistent with the general principle underlying this Part of the Bill that all such property should vest in the service. It would be somewhat incongruous if, for example, the Bill provided for transfer under section 26 of a particular courthouse to the service but not the transfer of other property attaching to that courthouse. I, therefore, move this amendment as being necessary for consistency with the general policy of this Part of the Bill and for all practical purposes.
Amendment agreed to.
Section 27, as amended, agreed to.
Sections 28 and 29 agreed to.
NEW SECTION.
Government amendment No. 38:
In page 18, before section 30, but in part VII, to insert the following new section:
"30.—Subject to section 9, every County Registrar shall, on the establishment day, be transferred to the Service in respect of those functions of County Registrars which relate to a function of the Service.".
Amendment agreed to.
Section 30 agreed to.
SECTION 31.
Government amendment No. 39:
In page 18, after line 44, to insert the following new subsection:
"(2) (a) Notwithstanding section 2 of the Local Government (Planning and Development) Act, 1993, or any regulations made under that section which provide for notification in respect of development consisting of the provision of temporary courthouses, it shall be necessary to notify such development once only.
(b) In paragraph (a) ‘courthouses' means buildings, or other premises or installations, or other structures or facilities, whether provided on a temporary or permanent basis, used for the purpose of or in connection with the transaction of any business relating to a court, tribunal, inquiry or inquest established by statute.".
Amendment agreed to.
Section 31, as amended, agreed to.
NEW SECTION.
Amendment No. 40 is out of order.
Amendment not moved.
Section 32 agreed to.
NEW SECTION.
Amendment No. 41 is out of order.
Amendment not moved.
Sections 33 to 35 inclusive, agreed to.
SECTION 36.
Government amendment No. 42:
In page 19, subsection (1), lines 27 and 28, to delete "the date of the passing of this Act" and substitute "the date of the coming into operation of this Part".
Amendment agreed to.
Section 36, as amended, agreed to.
Sections 37 and 38 agreed to.
SECTION 39.
Amendment No. 43 not moved.
Section 39 agreed to.
Sections 40 and 41 agreed to.
FIRST SCHEDULE.
I move amendment No. 44:
In page 20, between lines 35 and 36, to insert "The Master of the High Court.".
This amendment states expressly that the Master of the High Court will be a member of staff of the Courts Service. I should like to hear the Minister's response.
The Schedule sets out details of officers who will be transferred to the Courts Service on its establishment. The Schedule includes every principal officer within the meaning of Part 1 of the Courts and Court Officers Act, 1926. I am advised that the formula would include the Master of the High Court and to that extent the Senator's amendment would be redundant. Given the changes which have been made today in the Bill in relation to county registrars, particularly to take into account their quasi-judicial functions, it would be appropriate to reconsider whether the Master of the High Court, whose functions would be largely quasi-judicial, should continue to be included in the Schedule. This may be inconsistent with the approach which is being taken now with county registrars. This is a matter I would like to consider further between now and Report Stage. I would ask the Senator, in that context, to withdraw her amendment.
Amendment, by leave, withdrawn.
This amendment is in the name of Senator Connor. It is also a Government amendment.
I move amendment No. 45:
In page 20, to delete line 38.
Amendment agreed to.
First Schedule, as amended, agreed to.
Second Schedule agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 11 February 1998 at 2.30 p.m.
When is it proposed to sit again?
