Special Committee Law Reform Commission Bill, 1975 debate -
Tuesday, 18 Feb 1975

SECTION 3

Mr. O’Malley

I move amendment No. 1:

In page 3, subsection (7), lines 11 and 12, to delete " or by reason of other experience or of other special qualifications or training" and to substitute " or such persons as shall be recommended to the Government by the Commissioners as having suitable qualifications for such appointment."

Deputy Collins and I feel that the phrase we propose to delete is too general and rather vague. " By reason of other experience" could literally be any form of experience not necessarily confined to anything to do with law reform. " Or other special qualification or training" is less vague, but still allows a very wide interpretation to be put on the type of people the Government could appoint. We may well be accused of trying to stir up controversy, but I must say that the experience this country has had over the first 23 months, and to which Deputy Andrews has adverted on an earlier section, of appointments to judicial or quasi-judicial bodies, is distinctly unhappy. We want to ensure that this commission will not be used as a place of refuge for disused hacks, as unfortunately some even more eminent places have been used. We would like, therefore, assuming, in the first instance, that judges and lawyers of experience are appointed, that they would recommend to the Government when vacancies arise, people they consider of standing who would add to the stature of the commission rather than lower it.

It has been suggested to me that the phraseology used may be designed to cover civil servants, but if that is what it was designed to do, it should be so stated, but not put in such a way that it is left open to the Government to appoint people who do not know anything about law, which is how it stands at the moment.

Mr. Andrews

With reference to the phrase "by reason of other experience", what type of qualifications or training has the Attorney General in mind?

Mr. Costello

In relation to the points raised by the Deputies, may I say this: there is a controversy in England and elsewhere as to who should be commissioners, and under the English Act it is legally qualified personnel who are commissioners. It has been debated as to whether or not this is too restrictive and whether an expert in another discipline, for example, sociology or social science, should not also be commissioners. There are arguments for and against this. In Australia—in fact, this wording is taken very closely from the Australian statute—it is provided that the commission should consist of certain people, and their qualifications are listed, and then it says :

A person who, in the opinion of the Governor General, is by reason of his special qualifications, training, or experience, suitable for appointment to the commission.

I appreciate the point being made that these are very wide terms, but when you realise what the commissioners are going to do, you will see it is very important that the commission would have available the assistance of experience in fields other than law. The presence of a person on the commission with qualifications other than legal ones would depend to a considerable extent on the availability of the right person, but if there was not a person available who could be appointed as a commissioner, I am sure there must be people available who could be appointed on a part-time or consultative basis from the social sciences. What is envisaged here is not to rule out the possibility of non-legal qualified people being commissioners. The commissioners have to produce reports. They are responsible for draft legislation that may be included in the reports, so that it will not be every expert in social science that will be suitable to be a commissioner, but a lot of experts who may not have any legal experience could well be suitable to act in an advisory capacity to the commission. Therefore in answer to the question raised by Deputy Andrews, what is envisaged by this is to leave open the possibility of appointing non-legal experts to the commission and, in particular, social scientists.

In relation to the amendment, I would not favour the limitation on the discretion which is being suggested. What is being suggested is that if a non-lawyer is to be appointed, this is to be on the advice of the other members of the commission. I would ask Deputies to consider this: The Government have available to them the names of many persons with qualifications practising social science who may be suitable. They get this knowledge from many sources, through Government Departments, through work done by non-legal people on commissions, through examinations which Departments do on the publications of outside experts.

This knowledge is available to the Government, and the Government are in a position to know what outside experts would be suitable people for the commission. No matter how legally qualified the other members of the commission would be, it is not possible to see how they would have the same knowledge of outside experts as that which would be available to the Government. The effect of this amendment would be to restrict the area of choice. It will be difficult to get the right person, who will be qualified in social science, who will be a non-legal expert and who will be available to assist the commission. If this cannot be done, I would hope that assistance of this sort would be got by means of membership of the staff of the commission on a consultative basis or otherwise.

Major de Valera

I agree with Deputy O'Malley there is extreme risk in the phrase "by reason of other experience," as it does leave it open to Government action.

That would be open to Government action—and I am not talking about the present Government. We have had over 50 years' experience in this State under all Governments. This is one of the least desirable features of democracy.

Other features come into the picture when making an appointment. Deputy O'Malley is perfectly right: there are dangers here. I would like to know the precise form the limitation would take. To make the accommodation the Attorney General wishes for outside expertise, we may have to choose between the lesser of two undesirables. or political turpitude. There is the undesirability epitomised by Deputy O'Malley's point and, on the other, there is the undesirability mentioned by the Attorney General of confining it to lawyers. If we have to choose, my view—and I am not a practising lawyer—is that it should be confined to lawyers. After all, it is a legal job.

I support Deputy O'Malley when he says there are too many temptations here. When I say that I am not suggesting anything in the line of moral or political turpitude. There is the temptation to appoint a civil servant who probably would not be the right person for the job. I have the greatest admiration for civil servants but I am not satisfied, for instance, with the practice of appointing civil servants as chairmen of State bodies. We are opening the door to that kind of thing here.

If we cannot precisely express the ideas of the Attorney General, then we must face that this is a legal job and the expertise he talks about will have to be supplied in an auxiliary or consultative way. A legal job should be done by lawyers. If there is no other answer. I would say confine this commission to people properly trained in this area, namely, lawyers in the broadest sense of the term.

I cannot say I am completely happy with Deputy O'Malley's amendment, because I fear it might create a self-perpetuating corporation. We can work out tortuous, theoretical situations, to see what could happen, but, as I said, I am not altogether satisfied with the amendment.

This is a committee of the House, and it has been traditional that we express ourselves freely and in the best interests of our party, without over-stressing party considerations. We were appointed to give the best opinions we can. In attempting to interpret my duty in this way, I see Deputy O'Malley's amendment as being too restrictive. If we cannot find an answer, we should take part of Deputy O'Malley's amendment and delete "or by reason of other experience or of other special qualifications or training".

Mr. Enright

We should not confine ourselves to the holder of a judicial office or a person with experience as a barrister or a teacher of law in a university. The commission would be better balanced if we went outside that very restricted field. When framing laws, it is desirable that members have some judicial training and experience. Of course, the commission could often benefit from the viewpoint of somebody experienced in another walk of life. The majority of the commission would have judicial or legal experience. Nevertheless, it would be desirable to have maybe a sociologist or a person with a degree in social science or other field on the commission. This could only benefit the commission.

With regard to the Bill as it stands and Deputy O'Malley's amendment, would the Attorney General consider the following change to the last line: "or by reason of other experience and of other special qualifications or training"? This would mean that a person must have a qualification or training. This might seem a minor point but it would considerably strengthen the section. This is my own idea which I have not discussed with the Attorney General.

Major de Valera

There are only five members on this commission. If this were a big commission, it would be a different story.

Mr. Esmonde

It is interesting to note that the majority of members of this commission are legal men. This section is very heavily biased in favour of persons with that experience. We must not lose sight of the fact that the members of this commission are not sitting here because they are lawyers and are amending the law. One can obtain technicians and skilled people in any part of the world. While legal experience is of great assistance when it comes to reforming the law, it is also necessary to have a wider range of skills available. In my view, law reform could not be adequately dealt with by relying on people in a subsidiary capacity, as referred to by Deputy de Valera, to give assistance or evidence to the commission or any proposal. It might be necessary to have somebody with a great deal of agricultural skill or knowledge to sit on the commission.

The same thing could arise in relation to medicine, social welfare and other aspects of national activity where law reform may be called for. I also agree with Deputy de Valera's point. I find myself in some difficulty in relation to Deputy O'Malley's amendment which seeks to change part of the subsection to read: "or such persons as shall be recommended to the Government by the Commissioners as having suitable qualifications for such appointment". You first of all have to appoint people to the commission before you can have commissioners to recommend to the Government. I can see a real difficulty if there are only five members on the commission. It is a rather stultifying situation. I agree with some of the criticisms which have been made about the section. The purpose of the framers of the Bill is to get in outside people, to bring in fresh views.

Mr. H. P. Dockrell

I feel that perhaps there is something in what was said on the Opposition side of the table that the subsection, as drafted, is too wide. I also feel the amendment is too narrow. I go along with the Attorney General when he says he wants the power to appoint outside people. Could we amend the amendment by adding after "recommended" the words "either by the Government" so that is would read: "such persons as shall be recommended either by the Government or to the Government by the Commissioners"? The Government would then have power along with the commissioners to appoint people with suitable qualifications. If that is acceptable it might cover what the Attorney General wants, namely outside people, and also what the Opposition want.

Mr. O’Malley

In the light of the discussion we have listened to I accept the amendment is less desirable than it appeared to me at first. There is danger of perpetuation which is undesirable and also, as Deputy Esmonde pointed out, the commission would first have to be appointed and it could only apply to appointments subsequent to the initial appointment, which is the most important of all. In the light of that would the committee agree to my withdrawing the amendment and suggesting something more in line with the general discussion which has taken place? In line 11 I should like to insert "relevant" before "experience" and to delete the words: "or of other". Then, at the end of line 12, after "training" I should like to add the words: "in any of the social sciences, explicitly stated in the announcement of appointments".

Amendment No. 1, by leave, withdrawn.

Mr. O’Malley

I move amendment No. 1a :

In subsection (7), page 3, line 11, before " experience " to insert " relevant " and to delete " or of other " and substitute " and "; and in line 12, after " training " to insert " in any of the social sciences, explicitly stated in the announcement of appointment ".

I would have left amendment No. 1, as originally drafted, but Deputy de Valera rightly suggested to me that it would be no harm to have such training explicitly stated in the announcement or document of appointment.

Major de Valera

The suggestion is that the reason for appointing the person should be explicitly stated in the document of appointment and that explicit statement should be public. These are difficult to draft.

Mr. Esmonde

This appears to relate purely to the social sciences. Are any skills contemplated other than law and the social sciences? Is this the effect of the redrafted amendment?

Major de Valera

Deputy O'Malley has tried to meet the Attorney General. There are two distinct points in the amendment. One is the limitation queried by Deputy Esmonde; the other is that in any omnibus clause of that nature, at the end of such a section we should provide that the reason for such an appointment be set out in writing in the terms of appointment, and that it should be public—in other words, that the Government making that appointment will have the onus of saying why they appointed this person a commissioner.

Mr. Costello

We gave a lot of thought to this at the drafting stage. The idea behind it is the principle that the Government should not be restricted in appointing a legal person. For instance, there has been difficulty in getting a person who is not a legal person. The concept is to appoint a person not in a legal position who could assist in the work of the commission. That is why I mentioned the social sciences. The problem about that is it is limiting a bit, it is a vague term, and if it pushes in such training or qualifications in any of the social sciences it may be limiting the scope, the availability. I suppose economists are included, but experts on local government might not be covered. An expert on agricultural economics might or might not be covered.

Mr. O’Malley

What business would he have in law reform?

Mr. Costello

There might be some work in relation to land reform.

Mr. O’Malley

Surely the Attorney General is thinking in terms of a short term appointment. We are talking about full-time permanent people.

Mr. Costello

You want legislation to be as suitable as you can get it so you do not want to limit it too much. We have gone into the point about explicitly stating the reasons for the appointment but that would seem to me to overstate the position. The week after the appointment a parliamentary question could be put down querying the qualifications. It if is desired to find out the qualifications, is can be done by the Government at the time of the appointment or later in the Dáil. To do as suggested in the amendment would be a departure from normal practice. It does not meet the problem we are discussing if we move forward the words " special qualification or training " in front of " experience ", getting " or by reason of other special qualification, training or experience ".

Mr. O’Malley

One of the groups I should not like deliberately to exclude would be those with experience of public administration. Apart from lawyers who are in it already, it seems to me the only other to be categorised. I do not mean experts who would be brought in for a month or two.

Mr. Costello

I am reluctant to use phrases which are ambiguous. It may be known what is meant but once you write it into a statute, difficulties can arise. As regards the fears that have been expressed here that a wrong person could be appointed, all I can say is that the Government will have to justify the appointment by a parliamentary question. I would not favour limiting it too much by language which is imprecise and would be difficult to define, which could run us into trouble later on.

Mr. O’Malley

I am not certain that the social sciences are ill-defined. I cannot undertake to give an exact list of what they are, but I think they are fairly readily recognisable, as law, being the principal one, certain aspects of philosophy, sociology, social work, which can be considered a practical offshoot of sociology, and certain para-medical work. That would seem to me to exhaust the list. You could add also the general sphere of public administration which is usually defined for the purposes, for example, of the Seanad elections, and the three main categories of places where experience would be appropriate would be in a Department of State, in a local authority or in a health board.

Mr. Esmonde

Could you include people with administrative experience in private enterprise?

Mr. Enright

As regards the phrase "special qualifications or training in any of the social sciences," there is a distinction to be drawn between qualifications and training. I may have training in social science but not qualifications.

Mr. O’Malley

On the other hand, you may have neither qualifications nor training but you may have experience, and the way I have worded the amendment it would be " of other relevant experience and special qualifications or training."

Mr. Enright

" Or training in the social sciences. " You could have a person with training but no qualifications.

Mr. Costello

You start running into difficulties if you add words which have not got a precise meaning. Could I draw Deputies ' attention to the wording of the Australian Act, which says at sub-paragraph (f) (12) (i):

A person who, in the opinion of the Governor General, is, by reason of his special qualifications, training or experience, suitable for appointment to the commission.

The words in that subsection would be preferable to those that are in the draft we are considering.

Mr. Enright

I think the very simple amendment I put forward at the beginning puts it in a nutshell: "by reason of other experience."

Mr. Costello

" By reason of other special experience ".

Mr. Enright

Yes. That ties in with " and special qualifications or training ". In other words, a person would have to have experience and qualifications.

Mr. O’Malley

I dislike the phrase " special experience ". I am not clear at all what that is. I think the expression " relevant experience " is much better.

Mr. Brosnan

You could leave out the word " other ". You would have to specify what it is relevant to.

Mr. O’Malley

Relevant to the aims of the Bill and to the purposes of the commission.

Mr. Esmonde

The suggestion is to remove the word " other " and put in the word " relevant ", and leave it as it stands?

Mr. Brosnan

You would want to distinguish between legal qualifications and the other, and I think you must leave out——

Mr. Costello

The wording of the Australian Act is: " by reason of his special qualifications, training or experience, suitable for appointment".

Mr. Brosnan

You must be specific and state what the qualifications and the other experience would be relevant to.

Mr. Costello

It is very difficult. You could exclude an accountant if you just say " social scientist ". I am not saying an accountant would be appointed, but you are excluding him.

Mr. Brosnan

I am not saying it should be confined to social scientists.

Mr. Costello

It is difficult if you start specifying.

Chairman

In order to avoid cumbersome phraseology, could we say, " or by reason of special qualifications or relevant experience and training"? Much as I agree that one should have the phrase "social sciences and public administration" nevertheless, as the Attorney General points out, you exclude other people, for example, an expert in company law, because he might not necessarily be deemed to be a person qualified in social science or in public administration. While I share Deputy O'Malley's desire in regard to the section, I do see major difficulty in the definition of "social sciences and public administration" because "social sciences" could exclude, for example, an outstanding public servant.

Mr. O’Malley

That is why I added the words " public administration".

Mr. Costello

Could we get an amalgam of what you said, Mr. Chairman, and what Deputy O'Malley said in relation to what is relevant? Could we say: " Special qualifications, training or experience relevant to the discharge of the functions set out in section 4 of the Bill"?

Mr. O’Malley

Yes.

Mr. Costello

I would like the parliamentary draftsman to look at it. Will the Deputy withdraw his amendment on the basis that it will be amended on Report Stage?

Mr. Brosnan

Would the Attorney General agree that the reasons should be specified?

Mr. Costello

I would prefer not to have that in the Bill. If we could agree on this proposal, we could then put down an amendment on Report Stage.

Major de Valera

Surely the reasons for the appointment can stand the light of day. Deputy O'Malley talked about acts and said that the possibility of leaving the temptation for a sinecure there—and I am not making accusations, past, present or future—is wrong. It is not too much to expect that the qualifications needed be made public. Otherwise, we could have a repeat of what happened on the Senate Panels some years ago when ridiculous applications were made. It is to avoid such a situation that I press the reasons for the appointment be made public.

Chairman

Do we agree that the Attorney General will endeavour to bring in the appropriate amendment on Report Stage?

Mr. Costello

I propose: "special qualifications and training relevant to the discharge of the functions set out in section 4 hereof." I would not like it to be amended on that basis. I will have to get the views of the parliamentary draftsman.

Mr. O’Malley

My experience of getting things back for Report Stage on either side of the House is that it is unsatisfactory. It cannot be discussed properly unless it is totally agreed in advance. Everyone can only speak once on Report Stage. There is a procedure whereby we could move on from this section and come back to it in a recommittal procedure. Could we avail of that to enable it to be discussed more thoroughly?

Chairman

The House would have to do the recommitting to us. We would be in a very difficult situation.

Mr. Costello

This is only a question of drafting.

Mr. O’Malley

There are some matters of principle involved. Some people feel that a limitation of qualifications and experience to the social sciences and public administration should be named. Others say they should not. There is Deputy de Valera's point as to whether the precise reasons for the appointment of a non-legal commissioner should be set out.

Mr. Enright

Deputy O'Malley has had experience as Minister but in my view it would not be wise to insert something of that kind in legislation.

Mr. Brosnan

Would it be wrong?

Mr. Enright

I cannot see what benefit it would give.

Mr. O’Malley

That is a matter of opinion.

Mr. Enright

I see no real benefit if it is inserted in one certain Act of the Oireachtas. It might lead to the stage where we would never be able to make appointments without giving reasons. There must be a reasonable approach to a matter of this nature. By and large this might prove to be the wisest approach. I cannot see any benefit in tying the hands of future legislators.

Chairman

Perhaps I can allay Deputy O'Malley's fears. When the Attorney General puts forward his amendment on Report Stage, the House could agree to have the Bill recommitted in respect of the amendment. This would enable a free discussion on it in the House. It would be very cumbersome, but it could be done.

Mr. Costello

As Deputy O'Malley said, there are two matters of principle here. The first is whether we could put in words such as "social sciences". I do not hold the view that this is good drafting. The second is that we insert words to the effect that the reasons for the appointment must be given. I would not favour that for the reasons I have given earlier. I thought we had more or less reached a point where Deputy O'Malley was putting forward phrases in substitution for his amendment and I put forward words which I thought were agreed on the assumption that we were not going to put in other points.

Mr. Brosnan

The amendment does not ask that the reasons for the appointment be set out, but that the qualifications be set out.

Major de Valera

We are going beyond the social sciences by saying that so-and-so by reason of his expertise in such-and-such a line will be appointed.

Mr. Enright

When announcements were made concerning appointments to State bodies and commissions in the past, it was normal practice for qualifications to be set out.

Chairman

Not in statutory form.

Mr. Brosnan

In line 11 it says:

By experience as a barister or solicitor or as a teacher of law in a university,

Under the new proposals recently announced by the Government there are numerous other third level institutions with many highly qualified teachers in law. Are these excluded?

Chairman

The HEA is an advisory body and we are discussing statutory advisory services.

Mr. Brosnan

We will have two universities in Dublin, a further university in Cork and Galway and many other third level institutions all over the country which will have equal importance with the universities.

Chairman

We must concentrate on amendment No. 1a before us.

Mr. Brosnan

Surely my question is more relevant?

Chairman

When we finish this amendment we will be able to discuss the section as a whole.

Mr. O’Malley

Arising out of Deputy Brosnan's point and taking it a step further, not alone are all these cases already mentioned, and others in the process of being set up, being excluded, but we have the unusual situation that anyone who lectures in the Kings Inns or the Incorporated Law Society is excluded also.

Mr. Costello

They could come in under the general omnibus clause dealing with relevant qualifications.

Mr. Brosnan

Do we all agree that it is our intention to include people from the social and other sciences?

Chairman

Let us deal with that point when we come to it. I think we are getting on to another area.

Mr. Brosnan

We are not getting on to another area. I would like to have this thing settled here and now. There will be at least a dozen institutions where law will be taught as a subject.

Mr. Costello

The Deputy is right that such a person would not be teaching law in the university. A person teaching in the Law Society or Kings Inns could not be appointed under that part of the subsection but he could be appointed under the latter part.

Mr. Brosnan

Surely the intention of the latter part is to include people other than lawyers? It would be construed by any courts as such.

Mr. Costello

Not if we phrased it in the way suggested. If you had a part-time lecturer in one of the institutions he could come in.

Chairman

I think the amendment down in the Attorney General's name would include such persons.

Mr. Brosnan

I think it would exclude them.

Chairman

I make the point that if one specifically concentrates on social sciences and public administration one excludes others whereas the amendment of the Attorney General, which he has suggested bringing in at Report Stage, would open up the field for such persons.

Mr. Brosnan

Then you would exclude teachers in universities as well as barristers and solicitors.

Chairman

Would Deputy O'Malley be prepared to withdraw amendment 1a on the basis that the Attorney General will have an amendment in on Report Stage?

Mr. O’Malley

The thing is a bit unsatisfactory. It would be better to see the amendment before we went on as there would be the problem of putting it into Committee again. We have been sitting for one-and-a-half hours and we are a bit bogged down at the moment. Two of our people have had to leave and I am afraid I will have to go too. I thought perhaps after one-and-a-half hours we might report progress.

Mr. Costello

I took it we would continue on.

Chairman

We should try to deal with a number of amendments.

Mr. O’Malley

Could we skip this amendment and go on to amendments Nos. 2 and 3?

Mr. Costello

We will have to make some progress on this amendment. I would prefer if the Committee did not accept amendment No. 1a and I give an undertaking to the Committee that I will put down an amendment for Report Stage.

Chairman

The Bill could be recommitted in respect of the amendment.

Mr. Costello

It need not necessarily be recommitted.

Mr. Brosnan

I would like the Attorney General to consider the point I raised.

Mr. Costello

I will when we come to the section.

Amendment No. 1a, by leave, withdrawn.

Mr. Costello

I move amendment No. 2:

In page 3, subsection (9), line 21, to insert " under statute " after "duties".

The point about this is that under Article 40, 4.2� of the Constitution every judge of the High Court to whom a complaint has been made that a person has been unlawfully detained has a duty forthwith to enquire into the complaint. This Constitution provision could not be removed by statute. The amendment is proposed for the purpose of showing that section 3 (9) does not purport to do so. A person appointed to this could still be a judge and so a person could apply to him for habeas corpus and he would hear him.

Mr. O’Malley

As a matter of interest has the president of the Circuit Court power to hear habeas corpus applications?

Mr. Costello

That is an interesting question.

Mr. O’Malley

I know it is interesting. That is why I asked it. I am interested in the answer.

Mr. Costello

The Deputy knows the value of Capel Street opinions.

Mr. O’Malley

In such eminent company one does not expect Capel Street opinions.

Mr. Brosnan

Is there a case in that?

Amendment agreed to.

Mr. O’Malley

I move amendment No. 3:

In page 3, subsection (9), line 22, after "Commission", to insert "and if a person who holds judicial office is appointed, he shall be appointed as President".

It seems to be envisaged in the Bill, because of numerous references to judges serving on the commission, that at least one judge would serve on it. There are at least two, to my knowledge, who would be very suitable. If either of those or any superior court judge were appointed to the commission he should automatically become president of it. That is why we put down this amendment. He will not get any extra pay. He will continue to draw whatever is the appropriate salary for a Supreme Court or High Court judge. Presumably the other commissioners would not be paid at the same rate as either a Supreme Court or High Court judge. It would be invidious if some other commissioner with a substantially smaller salary was appointed president and one of the ordinary members was a superior court judge.

Mr. Costello

Perhaps Deputy O'Malley was not here at the beginning of the meeting when I referred to this matter, which was raised by Deputy Andrews on section 1. I agree with Deputy O'Malley that as a general principle it would be desirable if a judge is appointed a member of the commission that he should be president. I would be very surprised if it did not turn out as it did in other countries, that where a judge has been appointed he has been president. The point I made earlier is that I did not think it was desirable to make this provision in a statute because there might be circumstances in which a judge was appointed who was not president. This may not arise in practice, but I would prefer not to have the position completely tied by statute.

You could have a newly appointed judge who might prefer to allow the existing president, who has a year to run, to finish his presidency. This may or may not happen. There might be a situation where a judge was appointed part-time. You might have a situation where a judge was president and he retired from the bench, when he ceased to be a judge, and a new judge was appointed to the commission. The new judge might prefer to allow the retiring judge to remain president. Those are possibilities which may not arise. I agree with Deputy O'Malley that generally it would be desirable and very likely that the president would be a judge who was appointed. I would prefer not to have it in the statute.

Mr. Brosnan

If there are two two judicial persons what will happen? Would you have two presidents?

Mr. O’Malley

If a judge is appointed he should be president.

Mr. Brosnan

What happens if another person is appointed?

Chairman

There are difficulties here.

Mr. O’Malley

It will be the senior of the two.

Mr. Brosnan

We will have to provide for that.

Mr. O’Malley

I have a horrible suspicion that some judge will get walked on and that some person will be made president.

Mr. Enright

They are well able to look after themselves.

Mr. Costello

I do not think Deputy O'Malley's fears are well grounded.

Mr. Brosnan

I agree completely with Deputy O'Malley for the reason he has given, that a judge should be president—apart from the question of status.

Mr. Costello

I am not in favour of providing for it because there may be circumstances in which, for one reason or another, a judge might prefer not to be president. I would be amazed if this commission did not have a judge as president if there is a judge member, but I would prefer if it were not set down in the section.

Mr. Brosnan

Who will appoint the president?

Mr. Costello

The Government.

Mr. Brosnan

The other commissioners will not have any say in it?

Chairman

There are very considerable consequential questions of overlapping. The wishes of the people concerned might be asked for, and so on——

Mr. O’Malley

How would overlapping arise?

Chairman

One man might reach the point of retirement and another be appointed. A judge might be asked by the Government to become a member; he might be willing to become a member but not necessarily become president.

Mr. O’Malley

It is all the same to a judge from the point of view of remuneration whether he is appointed president or not because he will be paid his judicial salary, but from the point of view of status I do not think he should be put in the position in which someone who has half his salary——

Mr. Costello

I think that is most unlikely.

Mr. O’Malley

Then the Attorney General should agree to the amendment.

Mr. Costello

Seriously to put into a section something which could in certain circumstances create difficulties in the future——

Mr. Brosnan

Could we not qualify that by setting down " If he so desires " or "unless he indicates otherwise"?

Mr. Costello

I think that is what would happen in practice. I do not think it is necessary.

Mr. Esmonde

It has happened that a person has been asked to go on the Bench and has declined.

Mr. Enright

And there have been those who have waited for years but have never been asked.

Amendment put.

The Committee divided: Tá, 2; Níl, 6.

Tá

• Brosnan
• O’Malley

Níl

• Costello
• B. Desmond
• H. P. Dockrell
• Enright
• Esmonde
• Pattison

Amendment declared lost.

Question proposed: " That section 3, as amended, stand part of the Bill. "

Mr. H. P. Dockrell

Can the Attorney General give any idea of the envisaged remuneration?

Mr. Costello

No, but obviously it would be highly desirable to get persons with the highest possible qualifications and the remuneration would have to be commensurate. I could not indicate otherwise.

Mr. H. P. Dockrell

There would be no ceiling?

Mr. Costello

No.

Mr. O’Malley

I take it all members will be paid the same.

Mr. Costello

There may be some part-time members.

Mr. O’Malley

Does the Bill envisage part-time commissioners? I know there can be part-time officers.

Mr. Costello

Yes—they can be appointed part-time.

Mr. Enright

Will there be pensions or anything like that?

Mr. Costello

Yes.

Mr. O’Malley

Will they be likely to be paid as much as High Court judges?

Mr. Costello

I could not say, but if you appoint judges to the commission you get an idea of the standards that will be there.

Mr. O’Malley

Assuming the president not to be the holder of a judicial office, is it envisaged that he would be paid more than the ordinary commissioner?

Mr. Costello

Nothing is envisaged at the moment.

Mr. O’Malley

Is it suggested a bargain would be struck with an individual?

Mr. H. P. Dockrell

I was about to ask about that—that one commissioner would be paid more than the others?

Mr. Costello

We would have to see what is available—the persons available for appointment. I would hope we would get highly qualified people, and, of course, their salaries would be commensurate.

Mr. O’Malley

It would create an impossible situation in the commission if A were aware he was getting £2,000 or £3,000 less than B because the Attorney General had a higher opinion of the latter.

Mr. Costello

A very practical point has been raised but I cannot give a definite reply. I would be very surprised if full-time commissioners are not paid the same remuneration.

Mr. O’Malley

Why not ensure that they will?

Chairman

This is surely a conventional section: " shall be paid such remuneration as the Government determines ". One cannot be more explicit than that.

Mr. O’Malley

That is 11.

Mr. Brosnan

It might militate against the quality of the people offering. A person who is offered a part-time appointment at £2,000 or £3,000 would be influenced by the fact that he was not going to be paid fully.

Mr. Costello

The experience in Britain, particularly in Scotland, is that it has been found useful to have part-time people, and they pay them suitable remuneration.

Mr. O’Malley

Subsection 11 says : " A commissioner shall be paid such remuneration. . ."

Mr. Costello

This is the normal form.

Mr. O’Malley

What the Courts Act says is that each judge of the High Court shall be paid £X.

Mr. Costello

I do not think it would be desirable——

Mr. O’Malley

Why not say: " Each commissioner, other than a commissioner who holds judicial office, shall be paid such remuneration . . ."?

Chairman

It is unduly restrictive, because one may have commissioners at different salary levels.

Mr. O’Malley

It is wrong that one should have commissioners at different salary levels. It could lead to all sorts of tensions inside the commission.

Chairman

The salary of one commissioner might be different from that of another, depending on the profession. This conventional section should be in line——

Mr. Enright

As a trade unionist, would you not find that hard to justify?

Chairman

The commissioners will ensure that there is no excessive differential among them. Could we take it that section 3, as amended, stand part of the Bill?

Mr. O’Malley

It is very unsatisfactory. I came here today, as I explained the last day, at great inconvenience. Deputy Collins could not come at all, and Deputy Andrews and Deputy de Valera had to leave after a short time. Therefore, this Bill is not being discussed in the way it should be.

Chairman

We have had two solid hours.

Mr. O’Malley

I know we had, but it is full of open-ended commitments and it should not be. If our other members were here they would probably express themselves very strongly about a situation where you are going to appoint a man to whom you may pay £1,000 and another man to whom you may pay £10,000. It is not enough for the Attorney-General to say that it will not happen in practice. The fundamental aim of legislation is not to allow it to happen. Here is an open invitation for it to happen. I do not know whether this discussion will be published or not, but if it is, potential appointees can read it and see what is, in fact, an open invitation to haggle with the Attorney General or whoever will do the appointing on behalf of the Government, and say: "Doesn't everyone know I am better than so-and-so? If you are paying him £5,000, you ought to pay me £7,000." That kind of licence is not in any other legislation relating to appointments of this kind, to the best of my knowledge. In the case of judges, masters and so on, the specific salaries are laid down and each one is paid the same.

Chairman

These are not lowly-paid people, and no Government would want to place one commissioner at a disadvantage against another.

Mr. O’Malley

Why not let us ensure that? The provision we are suggesting will ensure that it will be the same as the Courts Acts in relation to judges.

Mr. Costello

You could not lay down exactly what the level would be.

Mr. O’Malley

I am not saying the level should be laid down but that it should be the same level for all.

Mr. Costello

This is on a par with the provision in the English Act.

Mr. Brosnan

What would be the position of a commissioner whose salary might be £4,000 a year and he gets promotion which increases his salary by £2,000 or £3,000? Will his salary in respect of the commissioner-ship be reduced?

Mr. Costello

It is a question of how he is appointed. I do not think those difficulties will arise.

Mr. Brosnan

They are arising every day of the week.

The Committee adjourned at 4 p.m. until 10.30 a.m. on Wednesday, 19th February, 1975.