I beg to move that Article 74 (of the draft) be added to the Bill:—" If any judge of the said Supreme Court of Judicature or of any of the said County Courts resigns as aforesaid, or if any such judge, or the establishment of Courts under this Constitution, is not with his consent appointed to be a judge of any such Court, he shall, for the purpose of Article 10 of the Scheduled Treaty, be treated as if he had retired in consequence of the change of Government effected in pursuance of the said Treaty, but the rights so conferred shall be without prejudice to any rights or claims that he may have against the British Government." This Clause is perhaps a little complicated and if we went through it, it might be useful for Deputies. It provides that with regard to the judges of the existing Judicial System, that if any such judge is not, with his own consent, appointed to be a judge of the new Court, that by the Judicial Committee set up or recommended to be set up, he shall be treated as if he had retired, as provided for under Article 10 of the Treaty, in consequence of the change of Government. "With his consent" there means, that we could not, for economy sake, or for any other reason, appoint one of the existing judges to the new Courts and compel him to carry on in that way; if we appoint him, it must be with his consent. But if we do not wish to appoint him, or while we wish to appoint him, he does not wish to act in that capacity, then he is entitled under Article 10 of the Treaty and to the proviso that "this shall be without prejudice to any rights or claims he may have against the British Government," which means that it is perhaps possible for these judges to take the view that their office continues, even though their Courts go, and that is a matter they must thrash out with the British Government, and it is no concern of ours. As far as we are concerned, their rights are those set out in Article 10 of the Treaty, and if they consider they have further rights, these will lie against the British Government.
In Committee on the Constitution of Saorstat Eireann Bill. - ARTICLE 74.
Mr. KEVIN O'HIGGINS
Mr. GAVAN DUFFY
I do not see why it is necessary to put this into this Article at all, considering Article 10 of the Treaty, as it stands, and if it be necessary, and I fail to see that it is, you have this extraordinary distinction, we are extremely flaitheamhail in the way we treat the judges serving under the old English system. We are anything but that when we come to treat gentlemen serving under our own system.
Mr. McGOLDRICK
I think these judges along with all other Civil Servants get, under Article 10 of the Treaty, the option to resign, and if they did, they get a number of years added to their service, which makes it worth their while to resign. Now these judges continued on, and we come to a time when it is beyond that, and we are seeking to put into an Article here a proviso which enables them to stay and single themselves out for some advantage by addition to their years of service, which, I think, is not right. I suggest that the words "resigns as aforesaid, or if any such judge" should be taken out of the clause. I think, if these words were taken out, the clause would be more sensible than it is, and would comply more with the intention of those who, at the time, arranged the matters in the Treaty. I think the Government might agree to take these words out, and I suggest that they should undertake to take the matter up, and that would meet the thing, and leave this clause right.
Professor MAGENNIS
I think Deputy McGoldríck is under some slight misapprehension. The Article here deals with cases which might arise because of the earlier Article. In Section 4 of the Judiciary there is much said about the Courts of first instance, and the High Courts of Judicature, but there is nothing whatever said as regards County Court judges, or if there is an equivalent office —which is quite conceivable—I am not in the secrets of the Ministry, it is quite unnecessary for me to explain—but it is quite possible, in the new Judicial System, there may be courts of a higher or more extended jurisdiction than is at present enjoyed by the County Courts, or there may be inferior courts, or local courts not up to the level of the County Courts as at present existing. As I read the original Article, once the Constitution of the Free State has been enacted, these judges may be offered positions of a judicial character, and the condition is that they should consent to accept these. In other words, "shall regard it as an equivalent office, and be satisfied with it as an equivalent office." Now, it is left by the wording of the Article to the option of the judge who wishes for an equivalent office to decline it. If he so declines, by the operation of the Article, he is deemed to have retired. You will observe that in reality that would be a very polite thing, in polite fiction, because he will have been discharged by his own act of regarding the new system of Courts as not in consonance with his ideas of what he would like. I would like to ask the Minister, is there any difference, as regards the monetary position, between an official who is discharged and an official who retires, because the Judge in this case, that I contemplate, is deemed to have retired. He resigns by not accepting the post offered to him, whereas if he had been expressly discharged he comes under another Clause. It is a mistake to say that the Judge can make his election now. As I read the Free State Agreement Act, the time for these things has not come. It is only when the Constitution is enacted that these elections are to be made. Consequently, this provision Clause is taking measures to prevent any sort of a deadlock or hitch that might arise. The only thing that I forget for the moment is what exactly would be the different position if the Judge were declared discharged. I have a recollection that in the earlier arrangements for the retirement of officials there was a special bounty given to those who lost office through, as it was technically called, the abolition of office. That is when the new arrangements were made, so that when an official was no longer required his office was declared to be abolished, and he was at liberty to add a certain number of years' service and get compensation.
Mr. O'HIGGINS
Deputy McGoldrick's suggestion appeals to us as being worthy of looking into. We would be inclined to put the Article, as it stands, with an undertaking to consider the leaving out of the words from "County Courts" to "Judge." That would be "resigns as aforesaid, or if any such Judge." With that promise of that reservation we are inclined to put the Article as it stands.
Mr. J. LYONS
There is one question that I desire to ask the Minister before the Article is put. It is whether the judges who have acted in the Irish Courts since 1917 will now have an opportunity of becoming judges under the Free State Parliament? Do I understand that those judges who have acted in the English Courts, if they so wish to resign, will have the privilege of putting forward a man to act in their place? If that is so, I would not at all agree with it. I think we must give some little privilege to the men who have taken risks since 1917, in the Irish Courts. I think it would be only right, and I would like to know whether it is possible that those men will get an opportunity, provided they are qualified, of acting as judges under the Free State Parliament?
Mr. O'HIGGINS
I do not know how the Deputy managed to read all that into Article 74. Under the new system of Justice that will be hammered out those men would not automatically become judges, but it is provided if we particularly wanted to appoint one of those judges to the new system, that his consent would be necessary. I think there is nothing there to the effect that they must be appointed and there is nothing in that Article which gives an eligible person—that is, I suppose, any Barrister—any claim or privilege before any other eligible person.
Mr. LYONS
If that is so, I am satisfied.
AN LEAS CHEANN COMHAIRLE
Is Deputy McGoldrick prepared to withdraw his amendment?
Mr. McGOLDRICK
Yes. I accept the Government offer.
Motion made and question put: "That Article 74 be added to the Bill."
Agreed.
AN LEAS CHEANN COMHAIRLE
The Agenda for the day is now completed.