Amendments Nos. 44, 45, 46 and 47 are related and may be discussed together.
SECTION 49.
I move amendment No. 44:
In page 22, between lines 45 and 46, to insert the following subsection:
"(1) Neither judges sitting in the Circuit Court, High Court nor Supreme Court nor any other court established by law shall appear in such court wearing a wig of the kind heretofore worn or any other wig of a ceremonial type.".
The Judicial Separation and Family Law Reform Act, 1989, provided for the abolition of the wearing of both wigs and gowns in most family law matters, except nullity of marriage which was omitted by accident and to which I will refer later. That proved very successful and has not given rise to any difficulties in the court system. In family law cases, barristers are also prohibited from wearing wigs and gowns. This Bill envisages barristers ceasing to wear wigs but the gowns are effectively preserved. I do not have a view on that provided it is not in family cases where people who are under enough stress should not be intimidated by lawyers.
I have no particular view about judges wearing gowns but it is an extraordinary anachronism that it is part of our judicial system that judges wear wigs of a type they were bequeathed in the 17th century. People seem to believe that the wearing of horse hair or its artificial equivalent adds some sort of dignity to the judicial process. The idiosyncratic nature of this approach is highlighted by a practice with which non-lawyers are not familiar. Judges wear their wigs and gowns during the sitting periods of the courts. During vacation sitting, the High Court is, in theory, on holiday during the months of August and September. The reality is that a judge of the High Court is available every day of the week and there are formal sittings most weeks. During the vacation period, judges do not wear wigs and gowns. Strangely, justice at High Court level is administered just as well by judges naked of wigs in the months of August and September as it is by judges wearing wigs in the months of October and November.
We should bring our courts into line at the end of the 20th century and end this rather odd practice of wearing wigs. If, in the 17th century, judges wore a uniform which required them to carry swords into court, they would probably still be bringing swords into court and putting them on top of the table. I welcome the fact that the Minister is abolishing the wearing of wigs. The framing of this section is better than that in the Bill we saw a year ago which seemed to ban people from not only the wearing of ceremonial wigs but from wearing their hair pieces in court if they happened to be bald and wanted to conceal that fact. The last Bill included a somewhat ludicrous provision.
I did not want to mediate with that particular lobby.
The Minister has got it right. I do not see it lending anything to the administration of justice that all of our judges in the higher courts continue to wear wigs. This nonsense has been abolished in a large number of courts throughout the world, including the American Supreme Court. We should take what is really only a small step in the direction of common sense by abolishing the wearing of wigs by the Judiciary — I mean wigs of a ceremonial nature as opposed to wigs that may serve other purposes.
My amendment also provides not only that barristers or solicitors not wear wigs in any court in which they appear but that no judge sitting in any court would wear a wig. My reasoning is quite simple. There seems to be no sanction on barristers or solicitors who go into court wearing wigs. It would be ironic, and even hilarious, if a judge wearing a wig in court was to tell a barrister who came in wearing a wig that he was in contempt of court. To remove that rather anomalous possibility, it makes good sense to remove the wig from judges as well.
I have no hard line view either way. The wearing of wigs seems to have emanated from the view amongst the upper middle class in the 16th and 17th century that if they did not wear wigs they might catch lice from their unfortunate clients.
Some of the wigs are so dilapidated I suspect they are infested with all sorts of creatures.
I would not for one moment suggest that. I suggest that there should be a provision whereby judges would wear a judicial gown similar to that worn in the European courts or the International Court of Justice at the Hague. This would encourage the Bar to devise a new apparel for its members.
I support all three amendments. I support Deputy Shatter's amendment which abolishes the wearing of wigs by judges and also Deputy O'Donoghue's one which addresses the same matter.
I also support Deputy O'Donoghue's amendment No. 46, which states that judges should wear a simple judicial gown. Frankly, I cannot understand why barristers, advocates and judges cannot confine themselves to a simple gown of the type worn in other countries and before the European Court of Justice.
I suspect the Minister will not accept the amendment and that will be regrettable because we are taking infinitesimal steps in the right direction. That is all very well except for the fact that we have the power to go all the way.
A section in the Bill abolishes the wearing of wigs by barristers. I agree with it, naturally, and think it is sound common sense. Surely, the same process of reasoning, by which the Minister concludes wigs should be abolished for barristers, applies to judges. If it is right to abolish barristers' wigs, why not judges' wigs?
Was it right nine months ago?
The Minister always says that but I want her to answer one simple question; what is the argument in favour of judges continuing to wear wigs?
Why did the Deputy not argue that nine months ago when his Bill was published?
The Minister seems to know about all the internal arguments which took place between various Ministers and Ministers of State in the last Government. I have views on this and I expressed them at the time and, as the Minister knows, the Bill did not go to Committee Stage. If it had gone to Committee Stage and there was an amendment of this type, I would have been disposed to accept it if permitted to do so by the Government but I cannot say what the Government would have done.
We have a different Government and Deputy Owen is the Minister for Justice. It is not a matter of great substance, unlike the earlier amendment about judges being appointed to the superior courts. It is a simple matter which I know the Minister can accept. If she is so disposed, she can take it upon herself to accept this amendment. If she is not disposed to accepting the amendment, I want to hear her reason.
In the earlier debate there were many compelling arguments in one direction and the Minister moved a tiny step but no reason was given for not going the whole distance. I want to hear a clear answer.
If the Deputy gives the Minister a chance, she may give him a reason.
I emphasise that I want to hear a clear response to the argument in favour of retaining wigs on judges heads in this day and age.
Deputy O'Dea's enthusiasm in Opposition is wondrous.
Deputies should not encourage crossfire.
Is Deputy O'Dea not aware that some of our courts are a little draughty. Some of our judges are a little elderly and might want to keep their heads warm. Maybe that is the practical reason and, perhaps, is the reason he did not provide for the removal of judge's wigs.
I was never Minister for Justice.
Another issue should be mentioned which probably needs reflection. What happens when we have solicitiors on the Circuit Court, High Court and Supreme Court benches? Will they be obliged to wear wigs?
They will be waiting for the latter two.
It is an aspect which must be examined.
We can buy all the barristers wigs.
There will be a glut of wigs on the market.
It is not politically correct to say that this move to abolish wigs is not approved universally. There is nobody present to voice that view and I mention it on the basis that everybody should have some voice. I am not in favour of the retention of wigs but a case has been made to me by the Bar students, in particular, that wigs should be optional. They say Members of the Oireachtas should not ban something just because they do not like it. There is no member of the Bar or Bar student here to argue their case——
I am a member of the Bar.
My apologies. Obviously, Deputy O'Dea is out of tune with some of his colleagues.
He is not earning their money.
He has such a fine head of hair.
It has been pointed out that nurses, gardaí, soldiers, nuns, priests, bishops, professors, doctors and Aran islanders wear different types of head gear and some barristers and many Bar students feel they are being discriminated against because they do not have the option to continue wearing their distinctive head gear. I do not accept their case but since it has been presented to me, it should be mentioned. Overall, the approach adopted by the Minister is correct and the committee should approve it.
I have no strong views on judges wearing wigs. The practice is part of an unprincipled old-fashioned notion that, like Victorian lamp-posts, they do not really offend. Deputy O'Donoghue said it would be odd if a contrary barrister arrived in court in breach of the new rules with a wig on his head and had to be told by a judge, who would be wearing a wig, that he was in contempt of court. It would be an anomalous situation which, knowing the Law Library, could well happen.
Practising women barristers have said genuinely that wigs have had a gender neutralising effect. They felt it gave them a kind of visual equlaity in their dealings with clients and it was also age neutral. Wigs have given some of the young barristers, who look like 18-year-old boys without their wigs, confidence in dealing with clients who would not have had the same degree of respect for them because of their youth. When they put their wigs on, they felt on a par with older barristers.
These arguments would not justify the retention of wigs for barristers and I am in favour of removing the wearing of wigs by barristers in the general conduct of their business. In anticipation of this Bill, the Law Library voted that the wearing of wigs should be optional. That was probably a bad day for the Bar but such is progress. I accept the Minister's stance on the matter.
I realise Deputy O'Dea may have fought a rearguard action when the Bill was being prepared at the end of last year and he managed to include the provision about barristers.
I am glad the section has been amended to ensure it does not exclude people who wore wigs for other reasons. People who wear wigs should ensure they are not of a ceremonial nature or contain adornment which could be classified as ceremonial least they be asked to leave the court. If a judge was faced with a barrister wearing a wig, the likelihood is that he would say the barrister was not properly attired and would not hear them until they were so attired. Raising the issue of contempt is a little strong.
While addressing the Magill Summer School in August 1987, the late Mr. Justice Niall McCarthy, on being attacked about the post colonial servility which tended to bedevil the Irish courts system, described the wearing of wigs as quite absurd. He said he saw the wearing of male wigs by women barristers as comical and had heard it suggested that wigs afforded barristers a sense of protection against their clients as if they were a sort of forensic condom.
It is sometimes described as a judicial prophylactic.
I happen to think the same case cannot be made for the removal of judges' wigs as can be made in relation to those of barristers'. Indeed, Members know there are certain courts and cases where barristers can not wear wigs or gowns during proceedings under the Judicial Separation and Family Law Reform Act, 1989 and section 13 of the Criminal Evidence Act, 1992.
Under these Acts, special provision was made for their removal. Under the Fair Trades Commission, emphasis was placed on the removal of barristers' wigs as distinct from those of judges. In the fullness of time, perhaps through the rules committee, when judges see how elegant, handsome and attractive barristers and solicitors look without wigs, they may wish to remove theirs. We may see a large sale of secondhand wigs to costumiers catering for stage plays, etc., as a result.
The section in the Bill which caters for the removal of ceremonial wigs from barristers is more than adequate. In relation to amendment No. 47, Deputy Shatter's aim is to have wigs removed from nullity cases. He correctly states that this was somehow overlooked in a previous case. It would be inappropriate to amend the 1989 Act in the way the Deputy proposes. There is also a related issue in that the Family Law Act, 1995, which assigns nullity jurisdiction to the Circuit Court, has yet to come into force. I will request the Minister for Equality and Law Reform, Deputy Taylor, to have such a provision included in the family law divorce Bill. I would rather not deal with the matter in relation to the Bill before the committee.
I believe that the wearing of gowns and wigs by judges is daft and outdated. However, I will not put the matter to a vote. I hope that when the Judiciary see members of the Bar before them with naked heads they will realise that the old grey matter works just as well without a wig. Perhaps they might then, of their own volition, stop wearing wigs.
In relation to the issue of nullity, the relevant section of the Judicial Separation and Family Law Reform Act, 1989, sets out a series of cases — including adoption cases — during which people do not wear wigs or gowns. This applies to judges and counsel alike. I was hoping the Minister would take that on board. I am sure the Minister for Equality and Law Reform will inform me that the matter is not relevant to a divorce Bill because divorce is not nullity. However, there is an anomaly in that in a judicial separation case judge and counsel do not wear wigs or gowns, whereas in a nullity case they do. A case may sometimes come before the courts in which a wife claims a decree of separation while the husband claims a decree of nullity. Judges will often deal with both decrees together, thereby creating an odd situation because some judges wear wigs and gowns and others do not.
This is a minor amendment. It would probably be more appropriate as an amendment to the Judicial Separation and Family Law Reform Act, 1989, rather than the divorce Bill, which will deal with the panoply of financial orders which the courts make during divorce proceedings. Will the Minister reconsider her position in this regard? The amendment does not involve any dramatic action. In the case of nullity or separation proceedings, husbands and wives are often obliged to provide evidence in relation to very intimate details of their lives, which is a very distressing process. The courts try to keep such proceedings as informal as possible and the appearance of a judge and barristers dressed in wig and gown can add enormously to the distress experienced. If the amendment is accepted, and the Bill becomes law by Christmas, it will improve the position of many of those involved in nullity cases during the next 12 months. With the advent of the High Court challenge to the result of the referendum and the passing of this Bill into law, I cannot see the divorce issue being concluded until next autumn. It will certainly not become operative until next autumn at the earliest.
I had hoped that the Minister might see fit to take this issue on board, in the context of my withdrawing the item in relation to judges wearing wigs. I believe that the paraphernalia of wigs and gowns have no place in the area of family law.
Is the amendment withdrawn?
I will withdraw it and I ask the Minister to consider the issue in relation to amendment No. 47.
Amendment, by leave, withdrawn.
Amendments Nos. 45 and 46 not moved.
Section 49 agreed to.
NEW SECTION.
I move amendment No. 47:
In page 23, before section 50, to insert the following new section:
"50.—Section 30 of the Judicial Separation and Family Law Reform Act, 1989, is hereby amended by the insertion of the following after paragraph (j):
‘and also includes proceedings relating to nullity of marriage'.".
I did not have a great deal of time to discuss this matter with the Minister for Equality and Law Reform. There is nothing incorrect about Deputy Shatter's amendment. However, officials of the Department of Equality and Law Reform have informed me that it would be more appropriate to deal with the issue in relation to the divorce Bill. If the Deputy withdraws the amendment, I will return to the issue before this legislation is finalised. I cannot say that I will definitely accept the amendment but I have no great problem with it.
This is not a matter of substantive law, it is a matter of court procedure.
I am aware of that.
At the time the Judicial Separation and Family Law Reform Act, 1989, became law, it fell within the bailiwick of the Department of Justice. I hope this matter will not become trapped between the different jurisdictions of the two Ministers. I will withdraw the amendment on the basis of the Minister's reconsidering the matter. It is a very simple provision and I do not believe it should be of any great concern to the Minister for Equality and Law Reform. I ask the Minister to reconsider the amendment for Report Stage. Perhaps she might suggest to the Minister for Equality and Law Reform that this matter could be dealt with in the context of this legislation rather than the divorce Bill.
Amendment, by leave, withdrawn.
Section 50 agreed to.
NEW SECTION.
I move amendment No. 47a:
In page 23, before section 51, to insert the following new section:
"51.—Section 35 (1) of the Court Officers Act, 1926, is hereby amended by the insertion of the following paragraph after paragraph (a):
‘(aa) a barrister of not less than eight years standing who is then actually practising or has previously practised for not less than eight years, or'.".
Amendment agreed to.
Section 51 agreed to.
First Schedule agreed to.
SECOND SCHEDULE.
Amendments Nos. 48 to 53, inclusive, are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 48:
In page 25, paragraph 1 (iii), line 8, after "order" to insert "in uncontested cases".
The Second Schedule identifies those orders, proposed under section 33, which can be made by a county registrar. I accept that these provisions are intended to accelerate the judicial process and are not intended to inhibit it. Will the Minister clarify whether, with regard to many of the provisions contained in the Second Schedule, specifically those contained in the lines referred to in the amendment, she is transferring what is essentially a judicial function, which should be reserved for members of the Judiciary, to the county registrar? The Minister will be aware that the transfer of the administration of justice cannot be carried out by consent. It can only take place through an amendment of the Constitution. Are these provisions constitutional? I doubt that they are and I would be greatful if the Minister could clarify the position.
I am transferring judicial functions and I have been advised that such action is constitutional, and that it is correct for me to do so. I am satisfied with that advice. I do not want to restrict the scope of the powers provided. Deputy O'Donoghue's amendments would restrict the powers to be conferred on county registrars to uncontested cases only.
I have certain doubts regarding the constitutionality of such action. I believe the function of a county registrar is administrative, not judicial.
Judicial functions are being transferred in this case. The Minister says it is constitutional but that is open to challenge and it may well be challenged successfully.
The Deputy knows they can all be appealed to the Circuit Court.
I do, but that an appeal could be made does not mean a judicial function had not in the first instance been transferred.
Amendment, by leave, withdrawn.
Amendments Nos. 49 to 57, inclusive, not moved.
Amendments Nos. 58 and 59 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 58:
In page 27, paragraph 8, line 5, to delete "six" and substitute "ten".
This amendment seeks to afford a party more time to comply with an order of a county registrar and I am happy to accept it.
Amendment agreed to.
I move amendment No. 59:
In page 27, paragraph 8, line 6, to delete "notice of the same" and substitute "the date of service of the order".
Amendment agreed to.
Amendments Nos. 60 and 61 not moved.
Second Schedule, as amended, agreed to.
Title agreed to.
Report of Select Committee.
I propose the following draft report:
The Select Committee has considered the Bill and has made amendments thereto. The Bill, as amended, is reported to the Dáil.
Report agreed to.
Ordered to report to the Dáil accordingly.
I thank Members for a constructive debate on Committee Stage. I thank the Chairman and Acting Chairman for their patience. I also pay tribute to the staff in the Department of Justice who have worked so hard on the Bill and on the Committee Stage.
I pay tribute to the Acting Chairman and the Chairman for the manner in which the committee was handled. I thank the Minister for accepting some amendments. I also thank her staff and the committee staff for their work. Lobby groups also deserve credit for their interest. I look forward to returning to the fray on Report Stage.
I thank the Chairman and Acting Chairman for their chairmanship and I thank the Minister for accepting some of the amendments put forward. It was a test for the committee and I am glad the challenge was accepted by the Minister to allow the committee have some influence.
However, we rushed a very important Bill. Given its importance it may well have been better served by being put to a committee of the entire House. Many Members would have liked to have contributed in a more formal way but as the Dáil was sitting at the same time as the committee many Members could not come to the committee meetings. I am concerned that such an important Bill went through Committee Stage essentially being scrutinised by about five Deputies.
I thank the Minister and her officials, and Deputy O'Donnell who showed more stamina than most by staying the course, although I realise others are rushing to catch trains.
The Select Committee adjourned at 4.45 p.m.