Does the Attorney General foresee a judge coming out of the High Court or the Supreme Court to act on the commission?
SECTION 14.
Question proposed: " That section 14 stand part of the Bill."
I would hope so. It would add greatly to the status of the commission.
Would he be losing pension rights?
No, he remains a judge.
The situation could well arise under this section where, assuming a judge of the Supreme Court goes out as a member of the commission and another is appointed in his place, the Commissioner may get fed up with the commission work after a year or two, resign from the commission and go back to the Supreme Court. There would then be a chief justice and six judges in the Supreme Court. I am aware that is not precluded by the Constitution, but are consequential provisions necessary for a situation like that?
I do not think so. In my view it is covered by this section. In theory we could have a situation, if a Supreme Court judge was appointed to the commission and another Supreme Court judge appointed in his place, if the original appointee returns to the Supreme Court and another Supreme Court judge was not appointed to the commission, where there would be six Supreme Court judges. I do not think any consequential amendment is necessary to deal with that. In fact, I believe it is well covered by this section. This could be a perfectly reasonable and, indeed, desirable situation.
The situation in regard to the President of the High Court is covered and I presume it would never arise that the Chief Justice would be taking a position of this nature?
I do not think so.
Chief justices are great fellows for moving around. Assuming that the position I postulate there happens what would be the position of the six judges of the Supreme Court afterwards? When we were trying to clear arrears we thought of having two Chambers of three, which is not precluded.
There is some controversy on that. If it is possible we could have two chambers of three and I believe it would help to get reserved judgments finished much quicker. We would also have an extra Supreme Court Judge who could work in the High Court if he were needed. Far from being a problem it could well be an advantage if this happened.
Where it is constitutionally necessary to have a court of five judges at present there can be no dispute as to whom the five judges will be because there are only five and if one is not available a judge is brought up from the High Court.
These are matters for the Chief Justice.
Has he discretion to pick any five judges out of the six or must the five most senior judges sit?
The Chief Justice has discretion.
At the moment it does not arise very often because there are only five but one can envisage, where the tendencies or outlook of individual members of the Supreme Court on particular topics tend to be known to some extent in advance, it could have a great bearing on the constitutionality of a Bill as to which five of the six sit. A judge known to have strong views one way or another could be deliberately excluded because his views are known.
These are matters for the Chief Justice to decide. He directs someone to sit in the High Court and this is how it will be working in practice.
It has never happened before that we had six and that the Chief Justice would have to exclude one from the hearing of what could be a very important constitutional action. The Chief Justice is put in a rather difficult position because if he excludes a judge who is known to have views in a particular direction he may well be accused of doing that in order to get a Bill through or a Bill stopped.
Obviously, one cannot have six sitting and this will only arise if the six judges are there. There is no question of them ceasing to be judges when they act on the Commission.
With regard to (c), the President of the High Court if he is appointed a Commissioner can appoint a judge of the High Court to act as President. I should like to point out that the appointment of the President has always been a matter for the Government under existing legislation. However, it now appears that the Government are giving this power of appointment of the President of the High Court over to the out-going president of that court. Is this desirable? It may well be desirable but, as a matter of principle, is it right?
Power exists for the President of the High Court when he is absent to designate someone in his place.
That kind of absence is temporary, absence due to illness and so on, but presumably the appointment to the commission will be a comparatively long-term matter. The term of appointment envisaged appears to be five years, and an appointment for a few weeks is a different matter to an appointment for five years.
I agree, but such a person is still President of the High Court and we want to make it clear that if he acts on the commission he is still a judge.
The wording of the section is to the effect that in case he is President of the High Court he may, . . . appoint an ordinary judge of the High Court. In other words he may not also appoint another judge. He may continue to act as President of the High Court in the administrative functions of that Office.
Yes.
The President of the High Court has administrative duties.
He has.
Question put and agreed to.
Section 15 agreed to.
Title agreed to.
The suggested report of the Committee is as follows:
The Special 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.
The Committee concluded its business at 12.15 p.m.