Progress was reported yesterday afternoon when amendment 23 to Section 78 had been disposed of.
DÁIL IN COMMITTEE. - THE COURTS OF JUSTICE BILL, 1923. THIRD STAGE RESUMED.
Amendment 24 to Section 78(Mr. BEAMISH) not moved.
I beg to move amendment 25:—
In Clause B (iii), page 16, line 7, after the words "in camera" to add the words,
"provided, however, that in any case of indecent assault upon a female person there shall be at least one woman present in court during a hearing in camera."
The object of the amendment is, as it states, to ensure that there should be at least one woman present in the Court during the hearing. There is no need to say much on the amendment; it speaks for itself.
I do not know whether it is proposed that a person should be there for hire or on voluntary terms. Is it intended that someone should be invited in from the road to hear the case? As put in the amendment the thing is impracticable.
Is it not a fact that in some Courts such a practice has already been established? I am given to understand that in such cases it is laid down as a rule that a woman should be present. I do not know whether it applies in this country, but I think that in England, America, and some other countries there is such a rule, and if it is found practicable there I have no doubt it will be found practicable here, too.
I can see the object of it, but the thing, as it stands, is wholly impracticable. It would really amount to having a wardress in court all the time. How far Deputy Johnson thinks that would be sufficient protection I do not know.
I think the Clause, as it stands, leaves no discretion or power to have a woman present in court. I quite agree that you could not send a wardress, because the District Court might be fifty miles away from a prison. As the Clause stands it says "the case may be heard in camera." It should be made clear that "in camera" does not exclude having a woman present in this court. Suppose a woman goes to court with her sister to support her, they should not be able to exclude the sister. I agree there is no compulsory power to have a woman in court.
On that line I think something might be done; that is to say, in preparing the rules of court dealing with the question of hearing such cases in camera, it could be provided that the person preferring the charge during the hearing should be entitled to have a female friend in court. I will consider the matter on that line.
Would not that require some addition to this particular part of the Section, and would not such addition be met by a change in the wording of the amendment from "shall be at least" to "may be at least"?
I think the rules of the court will quite adequately provide for that.
I think if the Minister in charge of the Bill gives some assurance on that point, it will be satisfactory. The point of the amendment, I understand, is that it is within the discretion of the court to say that these cases shall be heard in camera, and you would have the person preferring a charge present in the company of a man hearing a case of this kind, and no woman present except herself, unless there is some rule or obligation that an opportunity shall be provided for a woman to be present during the hearing of the case.
It really turns on whether the words "in camera" are really exclusive, and would prevent a rule being made. I am not at the moment certain that they do, but I will consider it, and see whether the person preferring the charge would be enabled to have one woman present in court during the hearing.
Under these circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment 26:—
"In line 27, page 16, to delete the words `licensing cases' and to insert in lieu thereof the words `granting certificates for spirit and other licences.' "
Amendment put and agreed to.
Amendment 27 (Mr. Duggan) not moved.
Question—"That Section 78, as amended, stand part of the Bill"—put and agreed to.
SECTION 79.
There shall be transferred to the District Court all Jurisdiction which at the commencement of this Act was vested in or capable of being exercised by District Justices under the provisions of the District Justices (Temporary Provisions) Act, 1923, or under any Act now in force, and also all Jurisdiction which at the commencement of this Act was vested in or capable of being exercised by the Divisional Justices of the Police District of Dublin Metropolis, and also all Jurisdiction which at the commencement of this Act was vested in or capable of being exercised by the Court of Conscience, and the provisions in Section 21 and 22 of this Act contained shall applymutatis mutandis to the Jurisdictions by this Act vested in and transferred to the District Court.
On behalf of Deputy Hewat, I desire to move the amendment standing in his name, and which is, to insert before Section 79 a new Sub-section, as follows:—
"Provided that in the City of Dublin Justices shall sit for the hearing of Civil and Criminal cases as separate Courts and on different days, and shall have no jurisdiction in Criminal matters when sitting as a Civil Court, and vice versa.”
The main intention of this new Section is quite obvious. The District Court under the new regime will be the present Metropolitan Police Court, and as we know, the business in these Courts, at the moment, is fairly congested, and if we are to add to that business a large number of debt cases that will arise in the District Courts, it is obvious that some arrangement must be made whereby the Civil cases will be kept separate from the Criminal cases, and that is the object of the amendment I now move.
This amendment deals with what would be a quite obvious matter of organisation of the business of the Court. I think the probability is the Justices will divide it amongst themselves, and that one will take civil cases and another criminal cases. It is a matter of arrangement of the business and of the rules. It is not a matter for this Bill, and in the drafting of the rules I undertake that that matter will be properly attended to.
On this Rules Committee, as I understand it, there is no commercial representative at all. Upon the original Commission which enquired into this matter and upon whose report this Bill is based, we had a commercial representative, and I would like to ask the Attorney-General if he would not now consider the necessity of having a commercial representative on this Rules Committee when considering these matters, which are of very great importance to the commercial community.
Of course, that will arise on Section 91, where the Constitution of the Rule-making Authority is dealt with. The Rule-making Authority is purely a legal body that deals with the matter from a point of view of the ordinary legal procedure and rules of court. These will be laid upon the Table of the Dáil when the full force of commercial knowledge will be, I take it, applied to examining and correcting them.
I should think if it was necessary to have a commercial representative on the original Committee, it is obvious that the Rules Committee cannot be discharging work of greater importance than the original Committee had to discharge, and, therefore, I hold it is equally necessary we should have a commercial representative on that Committee if that is at all possible. I understand some similar question was raised yesterday.
The Deputy can raise that point on Section 91 when we reach it.
Quite so, and I accept the assurance of the Attorney-General, and I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move Amendment 29—in line 42, after the word "conscious" to insert the words "or by a person acting as Justice of the Peace under the Towns Improvement (Ireland), 1854."
The person who usually exercises that jurisdiction was the Chairman of the Town Commissioners, and in the drafting of the Bill the transfer of that jurisdiction from him was omitted.
Before passing from this might I ask who will be the person who is now to act in a similar position?
If the Deputy will read the Section he will see the effect is to transfer the jurisdiction of these peculiar Town Courts, that are only in operation in a few places, to the District Justices. That will have the advantage from the point of view of the Minister for Finance that the revenue from these Courts, which does not reach the State Treasury now, will reach it in future.
Will the Minister say where it goes now?
It is applied purely locally. There is no stamp required, which is from one point of view an advantage, but a disadvantage from another point of view.
Question put and agreed to.
Amendment No. 30 (Mr. P. F. Baxter) stands in the same position as 22 and 23.
It is in the same position as the amendments proposed to Section 78.
Then amendment No. 30 is not moved.
I beg to move Amendment 31 to add at the end of the Section the words: "nothing in this Section shall be construed to affect injuriously the status, salary and tenure of office of the existing Dublin Metropolitan Divisional Justices and the provision of Section 44 of this Act shall apply equally in the case of these existing Divisional Justices."
The Dáil will recollect that at the end of Section 70 yesterday we altered the wording to read that "the number of District Justices is not at any time to exceed 30" into "33" so as to include the three Dublin Divisional Magistrates; and the operation of this early Section has the effect of making the Divisional Magistrates District Justices. Now in this Section the jurisdiction vested in, or capable of being exercised by, the Divisional Police District of Dublin Metropolis and so on, is transferred, and the purpose of my amendment is to secure that after and when these Magistrates take on the character of District Justices their present rights shall be safeguarded. It is an interesting fact that outside the City of London there are no other Magistrates of this type, and, in fact, the existence of these is the mark of the character of Dublin as a capital city of a nation. If in the interests of administration these changes are to be made I hope they will be made without affecting the status of the City Magistrates. I think the question has only to be brought under notice to be dealt with satisfactorily.
I do not know what the Deputy refers to, precisely, by status. The scheme of this Bill is to supersede all existing Courts by establishing other Courts in their places. The existing Dublin Metropolitan Magistrates, as such, will give way to the District Justices of the city. It would be inconsistent to say that their position is to be preserved in the way proposed in this Sub-Section. It is intended to propose a further clause in the transitory provisions which will enable any of these Justices or Judges, who are disqualified by reason of age in the Bill as it stands, to be continued, and suitable provision will be made there for that contingency. In the meantime, they have their existing pension rights, and their existing position which cannot be touched under the Treaty. It would be impossible to accept the amendment on the lines proposed.
The point is this: that one of the three is the Senior Magistrate, and has a superior salary in consequence, and that all three will be simultaneously reduced to the same common level. The purpose of the amendment is to draw this under the notice of the Attorney-General. I quite realise that all the existing Courts are being replaced by those of a new model, and that that reform will extend to the City Magistrates' Courts inevitably. At the same time I think the peculiar position of these magistrates does require special treatment.
If I might suggest it, Section 70 has been amended so as to delete all questions of salaries, and the question of the salaries of District Justices will have to arise separately. Could not this matter be raised when that question comes to be discussed?
Yes, I am quite satisfied to withdraw the amendment.
Amendment, by leave, withdrawn.
Question: "That Section 79, as amended, stand part of the Bill," put and agreed to.
SECTION 80.
"Provided that the Jurisdictions by this Act vested in and transferred to the District Court shall be exercised by the Justices severally as follows:—
"In civil cases, by a Justice for the time being assigned to the District wherein the defendants reside or carry on any profession, business or occupation.
"In criminal cases, by a Justice for the time being assigned to the District wherein the crime has been committed or the accused has been arrested or resides.
"In licensing cases, by a Justice for the time being assigned to the District wherein the licensed premises are situate."
I beg to move the following amendment, which stands in the name of Deputy Hewat:—
In line 50, after the word "wherein," to insert the words "the plaintiff or," and at the end of the Section, line 56, to add the words "Provided that, if the case comes for hearing in the District Court where the Plaintiff resides, where a bona fide defence can be shown, the Court may transfer the hearing of such case to what appears to be a more convenient venue, having regard to the convenience of witnesses or any good considerations which may occur to the Court.”
I am sorry that Deputy Hewat is not here. As you know, he is engaged at Geneva, and I am sorry he is not here personally to move this amendment, because I feel that the insertion of the word "plaintiff" in this amendment strikes at what we may be told is the basis on which this Bill is built. We have been told in the discussions on this measure, that under this Bill the plaintiff has to follow the goods for payment, and all the difficulties under the Bill, if one may call them such, have been cast on the plaintiff in trying to recover his debt. The object of this amendment is to give some small assistance to the plaintiff in the collection of small debts in the District Courts.
Now, the position at the moment is this: Under this Bill, take the case of a debt over £20, which is for goods sold by a merchant in Dublin to a trader, say, in Wexford; if there is a disposition, as there is sometimes in Ireland, to get rid of liabilities, the merchant will have to proceed in the District Court in Wexford to recover his debt. That means that he will have to bring his staff and his witnesses there to recover a small debt. The merchant may consider, seeing that the debtor will be a local man and that the Court, possibly, will be composed of local people who will have more sympathy with the defendant than with the plaintiff, that it is much better for him to cut his loss in the case of that debt rather than to follow it, because, while he may recover the original amount of the debt, he may not succeed in recovering the costs, and thereby be at a disadvantage instead of at an advantage in proceeding in the District Court. That is the position under the Bill. Take the present position of such merchant who has a case for over £20. If the Wexford man fails to make payment within a reasonable period a writ can be issued in the High Court here and judgment marked in ten days for the amount of the debt, and he can also recover his costs.
You can see from the two cases that I have put before you the position of the merchant. Under the new regime, he will be more severely handicapped in the matter of collecting his debts than he is at the moment. Bearing on this point, let me read a paragraph from a letter which I have received within the last few days from a very large Association of wholesale merchants in the city. They sent me the following resolution, of which I will only read a portion. The resolution states: "That the Judiciary Bill before the Dáil, if passed in its present form, will create a great hardship on merchants in Dublin owing to the difficulty in recovering debts throughout the country and the inconvenience and expense in sending witnesses to attend the hearing of Civil Bills in remote districts, and we respectfully submit to the Dáil that in the event of the Bill becoming law that merchants will have the right to elect to proceed in the High Court, and that the costs of such proceedings be allowed as heretofore."
I read that paragraph to show the feeling—because I think that fairly represents the feeling—which exists at the moment amongst a large body of the commercial community with regard to this Bill. It is with the object of giving some help to that large section of traders that this amendment is put forward by Deputy Hewat, who was a member of the Committee that dealt with this matter, on whose report the Bill is based.
I am anxious to intervene on this amendment, before it is further discussed, in order to deal with this point which has been persistently made in various quarters against the Bill. I believe that this particular criticism is largely due to people confining their reading to one or other comment, whether in speech or newspaper, instead of studying the text of the measure. Deputy Good has mentioned that at present one can proceed by a writ in the High Court and recover judgment in ten days. That is the procedure to which I referred yesterday—the procedure on affidavit in simple cases where there is no genuine defence. Let the commercial community take it from me, and from the Bill, that that procedure remains. They will still be able, in a straight case where there is no genuine defence, to move for judgment and have their judgment within ten days or so on a simple affidavit verifying the account. The only cases which proceed are those in which the defendant has not been able to disclose to the Court a genuine defence to the claim. In some of these the defence is a matter of accountancy. In that case the Court commonly sends the account before an official of the Court to have the account examined, and if the matter still remains in doubt it comes back on some point before the Court to decide. That procedure will remain.
But I must say this: some of the people who are very anxious about this particular procedure are anxious because they see a particular form of revenue, which I think has not been justified, disappearing. It has been the practice—I consider to an unjustifiable extent—to issue writs in the High Court for small debts of from £5 to £10 and so on, and recover judgment with full High Court costs—the costs that are allowed under the High Court rules. Certain persons in Dublin have found that a very profitable source of revenue. In future the High Court— if it is the Court in which the application is made for this summary judgment—will consider whether the application should not have been made in the Circuit Court and, inasmuch as the application can be made on an affidavit without witnesses, there is no reason why it should not be made in the Circuit Court and at the Circuit Court rate of expense to the defendant who is mulcted. The general principle of this amendment cuts across a well-established principle that the venue should be laid where the defendant resides. We have not heard in any of the discussions on these various Sections any reason why that principle should be dislodged. The only argument has been an argument which, as I say, is founded upon an erroneous reading of the Bill. It will still be possible to recover in cases where there is no real defence on a simple affidavit and get judgment within as short a period of time as at present.
If there are misunderstandings as to the Bill, and I think there are, those misunderstandings are very largely the fault of the Government themselves, because on the Second Reading the President did not give any general sketch of the scope of the Bill. If the Attorney-General had been in the Dáil and had been able to make the statement he made to the Press on the Second Reading of the Bill these misapprehensions would not have arisen. We are a House very largely of laymen—the world outside is largely composed of laymen—and it is very hard to read a long and complicated measure of this kind and take in every detail. The Government should have treated the Dáil to a fuller exposition of the principles of the Bill and shown exactly how the business community would be affected by it. Business people have had a very bad time. Business in the city of Dublin has suffered enormously in the last two or three years, and the business community are naturally apprehensive of anything that will disturb trade further, and their apprehensions have a right to be met. I think what the Attorney-General has stated, both on this amendment and in his statement to the Press, will reassure them. I think that some of the President's statements in reply to amendments I have moved have also tended to reassure people. It was because the Government in the first instance did not fully meet their responsibilities in explaining the Bill to the Dáil and the country that these misapprehensions arose.
Do I understand from the reply of the Attorney-General that in a case where a defence is put in as against a writ issued in the High Court the case must go to the District Court to be decided? If that is the position, there is practically no use in saying that the plaintiff has the same redress as he has at the moment, because if it is only necessary to enter a defence in order to bring a debt to the District Court, and to bring a plaintiff with his witnesses and his staff down to some distant part of the country, then a defence will be entered in every case where a writ is issued, and in all cases the matter shall be heard in a District Court with the result I have mentioned.
No, the practice now, and I see no reason to apprehend that it will be changed, is that if a defence has been actually filed before the hearing of a motion for summary judgment the nature of the defence is examined by the court. It has to be substantiated by the defendant on affidavit, and unless the court is satisfied that it is a genuine defence, and there is a case to be fought out, the court gives judgment. If the defence appears not to be a genuine defence, and that the defendant's affidavit in support shows that it is of no substance, then the court gives judgment, and that, of course, purely on affidavits, and without the attendance of witnesses.
I think it will be agreed that the Attorney-General's statement has allayed a great deal of the misgivings that were felt, due to a misreading of the Bill, a misreading that was perhaps natural under the circumstances, and which, as Deputy Cooper has stated, could have been dispelled had the Government realised its responsibilities earlier. So far as that element of it is concerned I leave it. But there is a further case that I would like to bring to the Attorney-General's attention, which has been urged upon me by influential circles in this city, and is one, I think, to be very carefully considered. Assuming that an adequate defence is entered in a case, such a case would be carried down to the local court. The Attorney-General justifies that procedure on what he claims to be a well-accepted principle, that the case should follow the goods—that the case should be heard near the defendant rather than near the plaintiff. It is in respect of that that I wish to put this consideration before him. Let us assume, and the assumption is a very natural one in the circumstances, that in the given case 75 per cent. of the documents that are required and 75 per cent. of the witnesses that it will be necessary to bring into court are to be brought from the plaintiff's side. Why then should not the case be heard in the plaintiff's city rather than in the defendant's town? It would create a great deal less inconvenience, it would be a great deal less expensive ultimately for both sides, and would lead to a quicker and better administration of justice.
One particular case that has occurred within quite a short time was brought to me as an illustration, where it would have meant the taking down of very costly ledgers to a remote town in the west. Clearly, if there is to be a great deal of removal of persons or of documents it would be better that the case should be heard where that removal would cause both sides the least amount of inconvenience. Behind the case that has been made, I put it to the Attorney-General, that the court should have the option, even where an adequate defence is entered, if it be for the lesser inconvenience of all parties concerned that a case should be heard in the city of Dublin rather than in a local town, of causing the case to be heard in Dublin rather than removing all books and persons some distance into the country.
I just want to put in a word in favour of the plan, which, as I understand is in the Bill, that the plaintiff must sue in the place where the defendant lives. I have confessed my ignorance of these legal matters very often in the Dáil, but looking at the matter plainly from the commonsense point of view, it seems to me that the debtor in the remote districts has been pressed to buy by the central selling organisation in Dublin. In nine cases out of ten the selling organisation has pressed the defendant to purchase, and I contend it has the responsibility that that pressure involves. The plaintiff should therefore sue, if it is a case for suing, at the place of residence of the debtor. One can quite understand that the big central organisations, the big wholesale merchants, would very much rather arrange that some firm like Stubbs or some of these other debt collecting agencies should do the job of debt collecting in a wholesale way, and do it cheaply and throw the onus of big expenses upon the defendant. Notwithstanding the fact that I represent a Dublin constituency I am prepared to stand for the rights of the poor debtor as against the rights of the big wholesale merchants in the city of Dublin, and it seems to me that is the issue in question between this amendment proposed by Deputy Good and the Bill itself. I cannot enter into any of the technical discussions as to the procedure, but apart from the question of procedure, it seems to me that the purport of the amendment and the object of the criticism directed against the Bill is to facilitate the big wholesale merchants in Dublin to sell in the country parts to the disadvantage of the country traders, and at the expense, when a dispute arises, of the poorer debtor.
I believe that the small debtor ought to be protected in this Bill as against the big wholesale merchant.
May I point out, before the Attorney-General replies, that I do not think what Deputy Johnson has outlined will exactly follow. In a great many of these cases the customer writes from the country to a wholesale house to supply him with so-and-so, and as a result of fulfilling that order trouble arises in collecting the debt. In some cases there is a certain amount of anxiety on the part of travellers to secure orders, and to that limited extent Deputy Johnson is justified in his view, but what will be the result of putting this difficulty in the way of the wholesale houses from collecting debts from the small debtors? The wholesale house will come to the conclusion, in view of the cost of litigation, that it is unwise to risk the collection of small debts and will cut them off. The small shopkeeper, having had the advantage of buying from wholesale houses, will be unable to buy in the future, and will have to buy from a larger house than his own, in, possibly, his own town. Thereby the cost of the article is increased to the small trader and, as many of the customers of these small traders through the country are of the working class, it is obvious that by the action of this particular clause in the Bill, the price of the goods will be increased to the poor people, and the cost of living will be raised thereby.
I cannot accept the last pronouncement of Deputy Good. I do not know what the position would be if Deputy Figgis's suggestion of the plaintiff city were accepted as the city of trial when, from another point of vantage, in this Dáil, I find that the city he was most concerned with was the city of Manchester.
I would like if the Attorney-General would state exactly when he discovered that solicitude of mine. Seeing that I based the case I made at that time on special Irish grounds, and inasmuch as action was taken by Manchester merchants to insert a clause derogatory to our Courts, I protest strongly against the perversion of my argument, and seeing that the Attorney-General was present, or was at least in the precincts of the Dáil, I cannot help saying that this was a deliberate perversion.
I am afraid it must have been due to the less advantageous position in which I then was that I misunderstood the Deputy. I am not greatly impressed by this matter of ledgers. In the first place, if there is a genuine defence, it is important that the ledger should be produced in Court. I have often seen in the country claims ruled out, when the ledger was produced, under the Tippling Acts, Truck Acts, and so forth. The modern system of ledger lends itself to conveyance, even in parts, to various districts in the country because, I think, the loose-leaf system of ledger has established itself in all the big commercial concerns which seem to be concerned in this particular matter.
Perhaps, I may further allay the anxiety of Deputy Good in this respect. When motions for summary judgment are made to the court it is a common procedure on the part of the defendant, if he has a show of defence, to serve a cross-motion to have the hearing of the action transferred to his own venue. One of the considerations which under the existing rules, and presumably under the new rules, the court must look to is the comparative cost and convenience of hearing in the local venue as compared with the hearing in the Dublin venue. I really think that all the points which have been made by Deputies in the supposed interests of the commercial community are really covered either directly or indirectly in the Bill. They will still have their summary judgments. They will still have the question of comparative cost and convenience considered when the question of the transfer of hearing arises, and it will be open to the High Court or the Circuit Court to have the hearing in Dublin or locally as these considerations affect the mind of the Court.
I would like to ask the Attorney-General one point. I had an amendment down to Section 49. It was to insert a new Section before Section 49. The amendment was in effect that where there was an action pending in the Circuit Court which might have been commenced in the District Court, any party to the action might move to have the action removed to the District Court. I understood the spokesman of the Government to say that that was already provided for in the Bill. Be that as it may, I would like to ask the Attorney-General whether, supposing an action was pending in the District Court, it would be possible for any party to that action to ask to have it sent forward or transferred to the Circuit or to the High Court. It is for information I desire to ask this question.
I will not say at the moment that it is actually so, but I will examine the provision as it stands and see whether it is possible to transfer to the Circuit Court. I think the power of transferring these very small cases to the High Court should be of the most restricted character.
I am very much obliged. Perhaps when the Attorney-General is looking into this matter he might have regard to this amendment put down to Section 49, and assure me it is provided for in the Bill.
Leave is asked to withdraw amendment 32.
Amendment, by leave, withdrawn.
I move in line 50, in Section 80, to delete the words "defendants reside or carry" and to insert in lieu thereof the words "defendants or one of the defendants ordinarily resides or carries." Obviously there is a case in which all the defendants will not reside in one district, and the object is to provide for such cases.
Amendment put and agreed to.
Question—"That Section 80, as amended, stand part of the Bill"—put and agreed to.
SECTION 81.
A Justice of the District Court shall sit once a week, if requisite, in a special Court in the City of Dublin, to be called "The Children's Court," and shall deal with such charges against children as he may consider to be of a trivial nature in such manner as may seem just. Children herein shall include young persons of either sex under the age of 16 years.
Mr. O'CONNELL
I move, in Section 81, to delete the words in line 58 "City of Dublin" and to substitute therefor the words "Cities of Dublin, Cork, Limerick and Waterford." The effect of it is that a Children's Court should be set up in Cork, Limerick and Waterford, as well as in Dublin. The provision is only made for the setting up of a Children's Court in Dublin. It is highly desirable that all charges against children should be held in a special Children's Court. The probability is that it would create difficulties at first. I think it would be highly desirable to extend the provisions of this Section to the other three cities mentioned. Those Courts are specially desirable in cities where very many of the offences arise from street trading and matters of that kind, and I urge that the provision should be extended to those other three cities.
I agree with the Deputy that this is a matter affecting the city population, or a large town population particularly, and it is, perhaps, not justifiable to confine it to Dublin. Of course, we have not been able to develop the subject of the Children's Court beyond the point shown in this Bill, namely, the providing a hearing for cases against children in special surroundings other than the formal courts and have them dealt with in a paternal rather than a judicial manner. I am prepared to accept the amendment of Deputy O'Connell, applying that provision to Cork, Limerick and Waterford, as well as Dublin.
Might I point out that in places even apart from these large cities it would be very desirable if any arrangements could be made, when it is necessary to bring children and their mothers to court, whereby there should be the absence of any connection with the criminal proceedings in this court, so that there should be no mixing up of criminals and children and their mothers in the same court. If separate courts cannot be provided in small towns, separate days and hours should be at least provided.
I do not think it is feasible to do anything on so wide a line at present, as Deputy Good suggests. The problem is, of course, a very difficult one. If one were to deal with all cases of a criminal character in which children are involved it would become an extremely difficult matter, but at present we are dealing simply with a case where children have charges preferred against them. I understand that the District Justices are, wherever possible, trying to deal with children's cases apart from other cases. I have spoken to a number of them on the subject, and I believe they are actually doing so, but it is not possible to make any provision here save in respect of these cities.
Of course, it is only trivial cases we are considering. I take it that some of the charges dealt with here would be where schools have not been attended. Surely in such cases it would be highly undesirable that the children should mix with criminals in the same court.
I think what we might ask the Attorney-General to do in this case would be, as far as possible, to see that the procedure he has stated, as taking place in some courts, would be adopted in all courts. I am aware of the fact that in my particular district the District Justice brings all these children into what was formerly the magistrates' room and deals with them previous to the other court proceedings.
Amendment put and agreed to.
I beg to move:—
To delete all after the words "deal with," in line 59, down to the words "just," line 61, and to substitute therefor the words:—
"charges against children in any case which he may consider, by reasons of the age of the child, or of the nature of the charge, should be dealt with in a Special Court, and shall deal with such charges in such manner as may seem just."
The object of the amendment is practically to extend the authority of the Children's Court to cases which may not be of the trivial nature referred to in the Section, as drafted, but even more important cases, at the discretion of the Justice. The reason for removing the child from the atmosphere of a criminal court is, I think, just as great when the charge is more serious than contemplated in the Bill and designated to be of a trivial nature. If there is a more serious charge it is still desirable, I submit, that the atmosphere of the criminal court should be avoided where possible, and the object of the amendment is to give the discretion to the Justice to say that by reason, either of the age of the child or the nature of the charge, the case shall be dealt with in a special court; "And shall deal with such charges in such manner as may seem just." That is, of course, the phraseology of the amendment, as it is drafted. The real change suggested is that the discretion of the Justices should be used as to whether it is the kind of case that could be dealt with in a Children's Court, and not to confine it to a case of a trivial nature. I hope the Attorney-General will agree to accept this amendment.
I am inclined to agree that the word "trivial" is not a very happy one. I will undertake to consider the amendment or some other form of words that perhaps would meet the case better than the word "trivial."
In connection with this matter. I would like to remind Deputy Johnson that the clause to which his amendment applies intends to carry out the recommendation of the Judiciary Committee, as set out in page 14. There, what is recommended is that on one distinct day in a separate court charges preferred against children shall be heard. I perhaps misunderstood Deputy Johnson to suggest that it should be in the discretion of the Justice whether he would hear a case when it came forward, in this particular way, or not. But the clause of the Bill is better in that respect, because it provides for a special day and a special sitting in a separate court, but the words used in the Judiciary Committee Report are better than the word "trivial." They are: "Except those of an aggravated or heinous nature." What to me is more important still is why the recommendation of the Judiciary Committee is not followed here: "The court to be separate and disconnected from the Police Courts"—this is the case of the Dublin City jurisdiction—"And the presiding Justice to be one or other of the two Junior Metropolitan Justices, with an assessor selected from a Panel of women who consent to act." That, at the time that I first studied this important Report, struck me as exceedingly valuable, and yet, for some reason, not explained, it is omitted from the Bill. It seems to me that when the clause in question is being reconsidered, to meet Deputy Johnson's suggestions, the opportunity should be afforded for considering the Judiciary Committee's suggestion as well.
I would like to make clear to Deputy Magennis that if the amendment were to be adopted as drafted the Section would read: "A Justice of the District Court shall sit once a week if requisite in a special Court in the Cities of Dublin, Waterford, Cork, and Limerick, to be called `The Children's Court,' and shall deal with charges against children in any case which he may consider by reasons either of the age of the child or of the nature of the charge, should be dealt with in a Special Court, and shall deal with such charges in such manner as may seem just." The Special Court will be maintained; the only change that will take place is that the charges may be more serious than contemplated in the Bill as drafted and yet may be dealt with in the Special Court.
I sympathise entirely with what Deputy Magennis and Deputy Johnson said with regard to separate courts for children. I think not only should there be separate courts in the big towns and cities, but also through the country. I have a long experience, of between 30 and 40 years, of jurors' and grand jurors' work in county towns, and I have been shocked, beyond measure, on many occasions, by seeing children brought for trial before crowded courts, upon cases varying from trivial things to very heinous offences. I thought long ago, and I think still, that it has a most demoralising effect on them and on their after life. I thoroughly sympathise with this, and I think not only the towns but the country districts should have a chance of having separate courts for children. It is in the interests of the nation. After all, we look to the children to carry on the traditions of the nation. If they are demoralised what can we expect?
As I understand the Attorney-General is prepared to consider some alteration of the clause which will embody the ideas expressed, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put: "That Section 81 as amended stand part of the Bill."
Agreed.
SECTION 82.
A Justice of the District Court shall have power to make such orders under Section 6 of the Debtor's Act (Ireland), 1872, and any Act amending the same for the enforcement of any decree of the District Court as may seem just.
I beg to move the amendment standing in the name of Deputy Hewat:—
To insert before Section 82 a new Section as follows:—
"Where any documents which would, if duly proved, be admissible in evidence are produced to the Court from the proper custody, they shall be read without further proof if in the opinion of the Judge they appear genuine and if no objection is taken thereto.
"If the admission of any documents so produced is objected to the Judge may adjourn the hearing for proof of the documents and the party objecting shall pay the costs caused by such objection in case the documents are afterwards proved, unless the Judge otherwise orders."
I moved a similar amendment yesterday to the clauses dealing with the Circuit Court, and the Attorney-General on that occasion was unable to agree with the object of this new Section, but I think the Section applies with much greater force in the District Courts where the sums are small, and where it is very desirable that the expenses of recovering them should be kept as low as possible. I would ask him if something could not be done to meet cases here outlined in the District Courts. It was pointed out yesterday that it was possible to deal with these documents in another way, but of course that would mean an action or motion in another Court, which possibly would be out of all proportion to the expense involved. The intention of this proposal is fairly clear: In the case of a letter or some document of some importance being produced, and which satisfies the Judge with regard to its genuineness, he should have the power to admit that document as evidence without the necessity of calling for proof of that document, as I understand is the custom. I say that procedure would apply with particular force in the case of the District Court where the sums are small, and where it is exceedingly desirable, for the reasons I have stated in another clause, that the expense should be kept down, and I would be glad if the Attorney-General could see his way to accept these proposals in connection with these Courts.
The amendment, as it stands, I think cuts into the law of evidence in a way that it is difficult at the moment to estimate, but as regards the suggestion I made yesterday, I see no reason why that should not apply to District Courts as well. I take it that in suggesting this method of admitting documents the Deputy is only referring to civil cases and not criminal cases.
Civil cases.
But the amendment is not so qualified. The Deputy must have misunderstood me yesterday, because I did not intend to convey that a motion is required in any court for the particular procedure to which I was referring. A document can be made the subject of notice to admit without any motion under the existing rules of the High Court. It is a matter of form. A printed form is served, and in the schedule to that form is set out the documents and the other party is compelled to bear the costs of proof, if he does not succeed. I see no reason why that procedure should not be applied by the rules of the District Court to civil cases in the District Courts also. That is the best way to provide for it.
Amendment, by leave, withdrawn.
I move the following:—
To insert a new Section before Section 82 as follows:—
"Wheresoever any District Justice shall in any proceedings brought under and by virtue of this Act grant a decree, dismiss or order the same shall be with such costs as are provided by this Act."
This amendment is of a similar nature to the last. I understand that the clause, as proposed, is taken entirely from the present Civil Bill Act, which, of course, applies to smaller cases of debt as will come under the jurisdiction of the District Court. I am told by those who have a good deal to do with debt collecting that it is very desirable that the decrees, dismisses, or orders, shall be with such costs as are provided, and they shall be embodied in the Act. I am told it is of great advantage in the Civil Bill Act, and it will be looked upon by the large section of the community dealing with commercial matters as a great advantage if incorporated in this Bill.
That particular Act does provide for costs, and this amendment which, referring to this present Bill, says "shall be with such costs as are provided by this Act," will hardly do, because this Bill does not provide for costs. It provides that costs shall be the subject of rules, and consequently this amendment could not apply.
Is it then the rule-making authority that will deal with this?
Yes.
That being so, I am satisfied, but this being already enacted at the moment, one thought that there should be some strong reason why it should not appear in the new Act.
Amendment, by leave, withdrawn.
Motion made and question proposed, "That Sections 82 and 83 stand part of the Bill."
Agreed.
SECTION 84.
A Justice of the District Court shall (if requested by any party to any proceedings before him unless he consider the request frivolous) and may (without request) refer any question of law arising in any case before him to the High Court for determination, and the determination of the High Court thereon shall be final and conclusive and not appealable.
I move: To insert before Section 84 a new Section as follows:—
"Any action in the District Court may be registered as a `Lis Pendens' and the judgment in any action for any sum exceeding £20 over and above costs may be registered in the Central Office of the High Court in like manner as Actions and Judgments of the High Court.”
The object of this amendment deals with the rights of registration, which are obvious, and which need no remarks of mine.
I do not know who is responsible for suggesting that actions of the District Court be registered as a lis pendens. It cannot have been any person who really understood what lis pendens is. The process of registering a lis pendens is one which relates to land. It enables actions which deal with land to be registered so that if a person is about to buy land, he has to ascertain whether there is any lis pendens; that is to say, whether there is any pending action affecting the title. The person is put upon search as to whether there is any lis pendens. There is no object whatever in registering for little actions for debt as a lis pendens; it would have no purpose. The only things now registered in the High Court or anywhere else are actions for specific performance of a contract, a sale of land, probate actions affecting land, in some cases matrimonial suits where alimony is granted against land, or administration suits.
Under the new procedure will there be any registration of judgments?
Do you mean registration of judgments by way of a judgment mortgage? I do not know whether the Deputy is referring to registration for the purpose of subsequently converting the judgment into a mortgage against land. If so, that procedure can be made applicable to the judgment of the District Court where it exceeds £20. I do not know what other purpose of registration he has in mind.
At the present moment there are registrations of judgments which are very useful to the commercial community, and we want to know under the new regime will there be any similar registration. Of course, as the Attorney-General can understand, they are very useful in matters of credit.
Perhaps the only other form of registration would be for the purpose of bankruptcy. Under the present law a judgment must be registered within 21 days of its having been obtained in order to be made effective in bankruptcy. That is under the bankruptcy law. If I knew what exactly the Deputy was pointing to——
At the moment it is possible to register a judgment for debt, and, of course, that is useful to the commercial community. It guides them as to whom they will give credit and to whom they will not give credit. I was anxious to know under the new regime will there be any similar registration.
I take it, it is for the purpose of two well-known Gazettes. Do I understand that is the purpose of registration that the Deputy has in mind?
Yes. Might we know, under the new regime, whether it would be possible to have that information obtained even by those two bodies and circulated among the commercial community?
Yes.
That is all I want to know.
Amendment, by leave, withdrawn.
Amendment by
Mr. P. HOGAN
—
"To insert before Section 84 a new Section as follows:—`In any proceedings against any person in the District Court in respect of an offence triable by such court, the accused, or his or her husband or wife (as the case may be), shall be competent but may not be compelled, to give evidence.' "
PADRAIC O h-OGAIN (An Clár):
Ba mhian liom an leas-rún seo do chur os comhair na Dála. Uaireannta thuiteann sé amach nach mbíonn acht beirt duine a thabhairt fiadhnaise i gcúis éigin sa Chúirt agus do réir an t-sean-fhocla, bíonn dhá innsint ar gach sgeul. Ba cheart go dtabharfaí an oiread aire do sgeul aon fhir amháin agus a d-tabharfaí do sgeul an fhir eile.
In moving this amendment I am merely asking the Dáil to sanction a very old principle of justice, that is, hearing all sides involved in a dispute. It does not require much knowledge of things in general to know that often cases will arise where there will be only two people capable of giving adequate or accurate information to a court, and in these cases where it is proposed to set up courts and where cases will be decided without any jury, there is the danger that if you concentrate on one side of the evidence you will very often lose your proper perspective. You will have before the court, plaintiff and defendant, or accused and accuser, and if you hear one side and neglect to hear the other you will be giving an unfair advantage to one and you will not do justice to the side of the accused. I do not know whether it is an advantage to say that this principle has been accepted across the water, but whether it is an advantage or not the fact remains that it is an accepted principle in other countries; even the English Military Courts accepted it during the Reign of Terror here, when the accused were entitled to give evidence on their own behalf. The legal luminaries opposite indicated a little while ago that it enabled the Judges in arriving at a decision to examine the accused, and to ascertain from his demeanour whether he was telling the truth or not. From that point of view it would be to the advantage of the Judge to hear the second side of the case. If I understand the function of a Court of Justice aright it is to secure the maximum amount of information for the Court, so as to give the maximum amount of justice, and I, therefore, consider it is to the advantage of the Judge and of the Court to have the maximum amount of information, and so be in a position to give the maximum amount of justice.
I think that Deputy Hogan has done a great service by proposing this amendment to this particular Section. I also think that it is a great pity that both he and others of us Deputies overlooked this principle before, and did not propose it in regard to the previous portions of the Bill. This principle here enunciated should, if adopted with regard to District Courts, certainly be adopted all through the legal system. The proposed amendment raises a much larger question than appears upon the face of it. In this Bill we have already adopted the Court of Criminal Appeal from across the water. It was only quite recently enacted there. It met with considerable opposition at the time it was proposed. However, it seems to be working satisfactorily now. We did not adopt in this country the principle that an accused person should be entitled to give evidence himself in all cases, nor that his wife (or the husband, as the case may be) should also be entitled to give such evidence. Now, I think that it would be very advisable, indeed, if the Attorney-General would consider the possibility of inserting, if not at this stage of the Bill, or in regard to this particular Section, a similar Section to that embodied in the Criminal Evidence Act which now obtains in England. There it is possible for an accused person in a criminal case to give evidence. He is not compelled to do so, but it is thought that in the interests of justice it is advisable that he should not be prohibited from doing so. Therefore, I would urge upon the Attorney-General, at least, the advisability of seriously considering whether in this Bill we could not at some stage, not necessarily this one, embody the principle of the Criminal Evidence Act which now obtains in England, as we have already embodied the principle, and actually have set up a Court of Criminal Appeal which obtains there now, and which has not until now been brought into existence in Ireland.
Deputy Redmond has stated that this matter was overlooked by the Deputies up to this. I am happy to be able to inform him that it has not been overlooked by us because we have a Bill under consideration at present which I hope will be introduced fairly soon, containing this principle which in present circumstances is, I think, a beneficial reform. The extension of the Act for enabling prisoners to give evidence to Ireland, was for many years opposed by Mr. Redmond and others at Westminster. It was at that time properly opposed.
Give the reason.
Because the manner of prosecutions at that time and the general atmosphere of prosecutions were of such a character that it was not considered advisable that prisoners, particularly political prisoners, should be subjected to what they would have to face in the witness-box. I hope we have changed the atmosphere and manner of prosecutions. I think that we have. We certainly have tried. For my part I have, in dealing with various persons responsible under me for prosecutions through the country, told them frequently that their programme is not to bag the largest quarry possible, but to administer justice fairly and equitably. I think that with the new atmosphere, and the new manner of prosecution that this particular reform is now ripe. A Bill will shortly be presented to the Dáil providing for it with such safeguards as would be proper in relation to such a matter. I consequently suggest that the amendment should be withdrawn in this Bill as it is not a proper subject nor a proper way to achieve what the Deputy desires.
I would like to say that the fact that this amendment only deals with the District Courts and might well have been inserted in some previous Sections in reference to the higher Courts was not through advertence. We felt that there were technical difficulties, that we were not perhaps in a position to deal with; and that such amendments as Deputy Redmond thinks ought to have been suggested, would better have come from those who are able more effectively to deal with them with a full legal knowledge. We thought that if the District Courts were put into the position of receiving evidence from an accused person that it might very rapidly lead to a similar reform in regard to the higher Courts. I think that Deputy Hogan will gladly agree to the withdrawal of the amendment on the promise of the Attorney-General that this reform is under consideration with a view to adoption.
Amendment by leave withdrawn.
Motion made and question put: "That Section 84 stand part of the Bill."
Agreed.
SECTION 85.
An appeal shall lie in Civil Cases and licensing cases from any decision of a Justice of the District Court to the Judge of the Circuit Court within whose Circuit the District of the Justice lies, and the decision of the Judge of the Circuit Court on any such appeal shall be final and conclusive and not appealable.
I beg to move amendment 40:—In line 14 to delete the words "civil cases and licensing cases" and to insert in lieu thereof the words "all cases other than criminal cases."
This is merely a drafting amendment and it is really consequential upon amendment 26.
Question put and agreed to.
Amendment 41 (Mr. Richard H. Beamish) not moved.
Question—"That Section 85, as amended, stand part of the Bill"—put and agreed to.
Section 86 ("Appeal in Criminal Cases") agreed to and added to the Bill.
Section 87 ("Case stated, or appeal, to be in form, etc., prescribed by Rules") agreed to and added to the Bill.
Section 88 ("Appeal in Licensing Cases") agreed to and added to the Bill.
SECTION 89.
(1) The Minister for Home Affairs may from time to time by warrant under his hand appoint and remove such and so many fit and proper persons as he shall think expedient in each District to be called "Peace Commissioners" and to perform and exercise within such District the duties and powers of Peace Commissioners under this Act.
(2) A Peace Commissioner shall have all the powers and authorities which immediately before the commencement of this part of this Act were vested in a Peace Commissioner under the District Justices (Temporary Provisions) Act, 1923, in respect of the several matters following, that is to say:—
(a) signing summonses;
(b) signing warrants;
(c) administering oaths and taking declarations, affirmations and informations;
(d) committing dangerous lunatics and idiots to Lunatic Asylums under Section 10 of the Lunacy (Ireland) Act, 1867;
(e) signing certificates for the admission of lunatics and idiots to Lunatic Asylums;
(f) signing the certificate required by Section 2 of the Registration of Clubs (Ireland) Act, 1904.
Provided always that any summons against any member of the Civic Guard shall be signed by a Justice of the District Court.
(3) Whenever any person charged with having committed an indictable offence shall be arrested by a member of the Civic Guard, such person shall, unless a Justice of a District Court is immediately available, forthwith be brought before a Peace Commissioner, who, after hearing such evidence as may be offered shall remand such person either in custody or in such bail as the Peace Commissioner shall think fit and remit the case for hearing before a Justice of the District Court on a date not later than the next sitting of the District Court to be held in the District where such person was arrested.
I beg to move amendment 45:—
Before Section 89, to insert a new Section, as follows:—
"At or before the commencement of proceedings in a District Court, the District Justice may, with the consent of all parties to the proceedings, endeavour to effect a settlement of the case by way of conciliation. In the hearing and determination of such a case the District Justice shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal form, and shall not be bound by any rules of evidence, but may inform his mind on any matter in such manner as he thinks fit. The hearing and determination of any case by way of conciliation shall be without prejudice to the right of any party to institute formal proceedings in the District or other Court unless all parties to the case agree to accept the determination as final, when the determination shall be recorded as and shall have full force and effect as if it had been a formal decision of the Court."
The introduction of the principle of the conciliator that is sought for by this amendment is perhaps a new principle in form, but I think in fact it has been not at all unusual, and it is a desirable submission that the statutes should allow the District Justice to act as Conciliator with a view to a void continuous legal proceedings, and to avoid the bad blood that very often follows legal proceedings. This is not a new principle; it has been adopted in many other countries and with great success. It is being strongly advocated in Great Britain by experienced judges, and I hope it will not require very much argument to secure the support of the Dáil. The actual language of this amendment is taken from an Act of the Australian Commonwealth Parliament in reference to a similar office, and I think it defines clearly enough the kind of case and the manner of dealing with it that should be embodied in this Bill. I daresay there will be objections from the legal gentlemen because of the removal to the atmosphere of conciliation and the reference to discuss the merits of the case without regard to legal technicalities or legal forms. But I do not think the legal profession will object as a whole. They do, very often, themselves act in their own practice as Conciliators, and do not allow cases to go to the Courts very often. This new clause desires to give the District Justice the power to act with the consent of both parties as Conciliator, and so avoid the expense, ill-will and possible vendetta that very often follows adverse decisions against one party or another. I think the proposal speaks for itself, and may not require very much further advocacy.
I had the advantage of reading the suggestions already made on the part of the Labour Party to the Judiciary Committee, and in substance stated here to the Dáil on previous occasions. I think it will be found that in countries where this functionary, the Conciliator, operates you have a Code system of law with a rather bureaucratic system of judicial tribunal. Under the Code system you have a very rigorous cast-iron method of dealing with cases, and the functionary who administers the law simply declares the sentence prescribed, or the decision prescribed by a particular clause of his Code. The Conciliator in these countries means rigidity of the Code, and rigidity of the bureaucratic tribunal.
Here we have inherited a different system in which the Judge has wide discretion and range, in which he may decide the case according to the merits and justice as it appears to him. I do not think the setting up of a separate Conciliator is one that is called for by the system that we have here. Deputy Johnson does not propose a different person. He proposes that the District Justice should, in the first place, act in the capacity of Conciliator, that he should first hear the case, disregarding all the rules of evidence, and then if he failed to conciliate he should assume the ermine and rigidly bind himself by the rules of evidence as regards the facts.
Will the Attorney-General read the amendment? It says "at or before the commencement of the proceedings the District Justice may with the consent of the parties to the proceedings——"
But then should he fail to conciliate he has already had his mind opened to matters that it would not be legitimate for him to consider were he approaching the subject from the judicial point of view as a tribunal, and how is he to discharge his mind of matter that he has admitted to it in his futile effort to conciliate? Speaking from my own experience of agreed settlement of disputes, I really do not think that on the whole settled disputes meet with the satisfaction of either parties. Fixed decisions of the Court in the settlement of affairs between people are better, whereas the settlement of the affairs between people compelled to agree leads to this, that for the rest of their lives they never cease to regret what they might have got had they fought the case out. Now, save that this Section purports to authorise the District Justice to entertain matters which he could not legitimately entertain as a judge, it really does not do anything new in principle. This Section, I think, only enables him to do what he may now do. He is now at liberty, with the consent of both parties, to bring them together and reconcile them and arrive at an agreed solution of the dispute if he can, and I think when these District Courts develop with this extended jurisdiction, close to the people and with their disputes known and thoroughly understood by the District Justices moving amongst them, that there will be a tendency in this direction. It is not necessary to authorise the District Justice to do a thing with the consent of both parties. He can do that as the matter stands now and enter it down in his book as the matter stands, but it is very inadvisable to invite him to consider matters that he is not otherwise at liberty to consider for the purpose of settlement, and then, if he failed to settle, to approach the case with his mind charged full of those matters that should not legitimately be present to his consciousness. For these reasons I cannot accept the amendment.
I think the Attorney-General has taken the correct view on this matter. At least the opinion he has expressed agrees with our view. As far as we are concerned, we have no objection to Arbitration or Conciliation Courts. I do not see very much distinction between these courts, but as we know very good work has been done both by Arbitration and by Conciliation Courts. However, I do not think they can be at one and the same time Arbitration and Conciliation Courts and also District Courts. For myself, I could not understand a District Justice being also a Court Arbitrator. The position, I think, has been very clearly explained by the Attorney-General, and I might say that our views agree with his. We do think, if it were possible, outside of the District Courts Bill, to have Conciliation or Arbitration Courts, they might serve a very useful purpose. As I have stated, they were in operation in recent years, and they did a lot of good, but at the same time I do not think you could have them linked up together with the District Courts.
I would like to ask the Attorney-General if there is anything in this Bill that would prevent a decision arrived in an Arbitration Court being registered in High Court?
Under the existing law, in the ordinary case of arbitration with proper submission, the submission and award can be made a rule of the High Court, and can take effect as a judgment of the High Court.
Can the same practice follow, then, under the new procedure?
The whole law of arbitration in this country has not been developed as it should. There is an up-to-date Act in England, the Act of 1889, and probably if opportunity arises soon we could consider introducing an Arbitration Act. We still depend upon the provisions of the Act of 1856.
I am not convinced of the impracticable character of this amendment, but it is a layman's amendment, and I am not going to try to put the layman's view before that of the Attorney-General. He says it is impracticable and unnecessary. Then I cannot help that, and I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move the following amendment:—
"In Sub-section 1, to delete the word `District' in lines 44 and 45, and to insert in lieu thereof in each line the word `County.' "
It is a purely verbal amendment, and I do not think there will be any trouble about its acceptance.
Amendment put and agreed to.
I beg to move the following amendment:—
"In Sub-section (2), lines 48 to 50, to delete the words beginning `commencement of' and ending `Act 1923' and to insert in lieu thereof the words `6th day of December, 1922; were vested in a Justice of the Peace.' "
As it stands, the Bill refers to the District Justices (Temporary Provisions) Act, 1923, and it is considered undesirable that permanent powers should be conferred under a temporary Act. That is the object of the amendment. It does not alter the Section in any way.
Amendment put and agreed to.
I beg to move the following amendment:—
"In Sub-section (2) (c), line 55, to delete the word `and' and to insert immediately after the word `informations' the words `and recognisances.' "
This amendment is really only a correction of a clerical error.
Amendment put and agreed to.
I desire to ask the Attorney-General if he would reconsider the position of Peace Commissioners, and if it would be possible to extend their jurisdiction, excluding the hearing of cases under the Licensing Acts and cases of serious assault?
I am afraid it cannot be reconsidered.
Question: "That Section 89, as amended, stand part of the Bill," put and agreed to.
SECTION 90.
Section 90—(No further appointments under District Justices (Temporary Provisions) Act, 1923)—was agreed to and added to the Bill.
SECTION 91.
The Rule-making Authority for the District Court shall be the Minister for Home Affairs with the concurrence of the Minister for Finance in respect of matters affecting public revenue or expenditure and the assistance of such of the Justices of the District Court as the Minister for Home Affairs may from time to time nominate for this purpose.
On this Section, I desire again to bring forward the question of the Rule-making Authority, and to ask the Attorney-General why in the District Courts alone the Rule-making Authority contains no representative of those who practise in these Courts. In the High Court, you have that transient phantom, the President of a private corporation, the President of the Incorporated Law Society, and in the Circuit Courts you have two barristers and two solicitors on the Rule-making Authority, but in the District Courts the Rule-making Authority is the Minister for Home Affairs "with the concurrence of the Minister for Finance in respect of matters affecting public revenue or expenditure and the assistance of such of the Justices of the District Court as the Minister for Home Affairs may from time to time nominate for this purpose." On the Rule-making Authority for the District Courts there is no solicitor and no representative of the general public. There is no representative either of the commercial community, but I am certain that is an aspect of the question that Deputy Good will speak on. I am speaking now for the general public, and I suggest that the Rule-making Authority in these District Courts should have on it a representative of the general public. The majority of those appearing in the District Courts will attend in person, and, as we know, the vast majority of defendants in criminal cases are usually not represented by a solicitor or by counsel. They attend to answer the charge made against them, pay the fine if they are fined, and then go out. I think that some machinery should be set up to give the general public representation on this Rule-making Authority. I admit it is not easy to devise machinery required to do that, but still I think if the Attorney-General set his mind to it that something could be done to give the general public representation. Perhaps it might be possible to allow some solicitor to act on the Rule-making Authority on behalf of the general public, and possibly some person might be nominated by the Minister for Industry and Commerce to look after the interests of the people represented here by Deputy Good. If the suggestion I make were adopted I think it would lead to greater confidence in these Rule-making Authorities. The Section states that the Minister for Home Affairs may, from time to time, call in the assistance of District Justices to act on this Rule-making Authority, but presumably he would not select District Justices who would be likely to disagree with him.
On this Section I beg to supplement what has been said by Deputy Cooper by a few remarks on the whole purport of the Section. We have had Rule-making Authorities set up for the High Courts. We have had Rule-making Authorities set up for the Circuit Courts. We have arrived at the final stage and are setting up a Rule-making Authority for District Courts. In the matter of the High Court the framers of this Bill followed, more or less, the proposals laid down in the Judiciary Committee's report. In the matter of the Rule-making Authority of Circuit Courts, they were not so particular. In fact, the Minister for Home Affairs was to be the sole Rule-making Authority in the Circuit Courts, because the word "assistance" was used in the original draft of the Bill. But I am glad to say that the Government saw their mistake in time and by a Government amendment have substituted the word "concurrence," thereby not making the Minister for Home Affairs the sole Rule-making Authority for the Circuit Courts. But here we have, in regard to the District Courts: "The Rule-making Authority for the District Court shall be the Minister for Home Affairs with the concurrence of the Minister for Finance in respect of matters affecting public revenue or expenditure," but with only the assistance of Justices, and such Justices as the Minister for Home Affairs chooses to nominate. Therefore, it comes to this, that the Rule-making Authority for a District Court is to be the Minister for Home Affairs. The Minister for Home Affairs may be, and possibly is at the present time, a very able and energetic person, but certainly this Bill confers upon him not only powers but duties which no other Judicature Bill has ever proposed to confer upon any Minister in any country in the past. But the importance of it is more than that. This Rule-making Authority is to be constituted of a Minister of the Executive of the Government of the day, and in this respect, as in many others throughout this Bill, the Government, while purporting to introduce a measure on the lines of the Judiciary Committee's Report, have disregarded the report wherever they disagreed with it, and have upheld the report wherever they agreed with it—a very accommodating sort of report indeed.
The Judiciary Committee reported in favour of the setting up of a Rule-making Authority for District Courts, and the Rule-making Authority that they suggested was to consist of five District Justices to be nominated, but not by the Minister for Home Affairs. In fact, this Judiciary Committee, of which the Government have such a high regard, I do not think have mentioned the Ministry of Home Affairs from cover to cover in their Report. Certainly they say that the Rule-making Authority is to consist of five District Justices nominated by the general body of Justices, two practising barristers, to be nominated by the Bar Council, and two qualified solicitors to be nominated by the Council of the Incorporated Law Society. Then they go on about the tenure of office and so forth. They suggest that no rule is to come into operation unless it has been submitted to and approved by the Rule-making Authority of the Circuit Court, and they also add that the authority is to select its own Chairman. Here we have the Government proposing, in the face of their own Committee's report, in the face of the Committee which they have been throwing at the head of everyone who has dared to criticise any proposal which they have made in conformity with the views of the Committee, to throw the Committee's suggestion upon one side, and putting forward something entirely and distinctly apart.
took the Chair at this stage.
What is the object, I would like to know, of making the Minister for Home Affairs the sole Rule-making Authority for the District Courts? That cannot be denied, because the Government themselves amended the Section in regard to the setting up of a Rule-making Authority for the Circuit Courts by substituting the word "concurrence" for "assistance," because they know as well as I do that the word "assistance" conveys nothing more or less than acquiescence, whereas the word "concurrence" means, in legal parlance, that the Minister for Home Affairs could not frame any rules without the consent of the other parties. Therefore, I think I am entitled to ask from the Government an explanation in the first place as to why they have departed from the proposal of the Judiciary Committee in this respect; in the second place, why they have appointed the Minister for Home Affairs to be the sole Rule-making Authority for these District Courts; and, above all, why they have not, as Deputy Major Cooper has said, placed upon this Rule-making Authority some representative of the professions which will be engaged in pleading before these Courts? Why is the distinction drawn between the District Courts and the Circuit Courts and the High Courts in this respect? I certainly think that it is due not only to the professions but to the public that we should get this explanation. The Rule-making Authorities in all these courts will have a very large say indeed as to the future of this Bill. The Rule-making Authorities will have very large and very wide powers. In fact much as we hear about the eagerness of country solicitors for the passage of this Bill, I can assure the Attorney-General that, from what I can learn—and I do know a few country solicitors—the country solicitors are very anxious indeed to know certain details. I will not mention what ones in particular, but probably the Attorney-General will be able to follow me when I say that they are anxious to know certain details of the rules to be made by the Rule-making Authorities in connection not only with the High Courts and Circuit Courts, but in particular with regard to the District Courts. To say that solicitors themselves are to have no representatives on the Rule-making Authority for the District Courts—a body which shall provide rules which shall have such a force and such a bearing upon the future of their interests—certainly requires some explanation on the part of the Government.
We have heard that there is a great demand for the extension of the jurisdiction, both in the Circuit and District Courts. Well, I have found it very difficult to discover that demand, either among the public or among the members of the legal profession, because I think their interests are one. But, however great the demand may be, I certainly believe that the Rule-making Authority, in the opinion of all classes, whether legal or non-legal, should not be confined to a Minister of the day, whether he be Minister for Home Affairs or anything else, or even the Attorney-General himself for that matter. I think, certainly, if any solitary Minister of the Government is to be the sole Rule-making Authority for the District Courts, the Attorney-General should have been that authority. I do ask seriously if the Attorney-General can give the Dáil an explanation as to why this departure has been made, in regard to the Rule-making Authority for the District Courts, both from the Judiciary Report itself and from the nature of the authority set up in regard both to the High and Circuit Courts.
The most objectionable line in the Section, as it at present stands, is that which provides that the rule-making authority is to be assisted by such Justices of the District Courts as the Minister for Home Affairs may, from time to time, nominate for this purpose. I had expected that Deputy Duggan would have introduced an amendment modifying that, so as to keep this Section in line with the reforms already made since the Bill came into Committee. Before the measure came into Committee it was quite obvious to anyone who studied the Bill closely that the District Justices were to be depressed into an unfair position. Deputy Redmond was not a member of the last Dáil, and it may, therefore, have escaped his attention that the District Justices were created by the Minister for Home Affairs in the last Dáil under a temporary measure, and they have been under the control of the Home Affairs bureau ever since. We have changed the status, very much for the better, of the District Justices in the last few days. Section 70 provided that they were to be set up at such salaries as the Minister for Home Affairs might fix. We have removed these words and have left the Section over for further consideration to make that as it ought to be. Likewise, the wording which seemed to suggest that these judges— for judges they are unmistakably— were to have the status of Civil Servants has been modified. Now, I think a modification was due that would prevent even the semblance—even the merest suspicion—of interference by a bureau with these men in the discharge of their duties. If the representatives of the District Justices, who are to figure on the Rule-making Authority, are not to be elected out of their own body, as recommended by the Judiciary Committee, but are to be nominated by the Ministry of Home Affairs —I do not at all suggest that the public would rashly conclude that there was something in the services of those men which recommended them to the favourable notice of the Minister—undoubtedly as years go on, and as there is less and less of this devotion, that at present exists, to Ministers in the country, it is easily conceivable that something like suspicion would arise that these were favourites of the Minister, and when the probing, the enquiry would be set about, various grounds or reasons could easily be found in support of this suspicion, and then the well springs of justice were poisoned. I stand here as I stood in the last Dáil to resist every encroachment of a Ministry upon the administration of justice. We are all here as defenders of democratic rights and liberties, and we should all be equally strong opponents of bureaucracy. I hold seriously that to allow the Minister for Home Affairs to nominate the District Justices who are to take part in the making of the rules for their courts is to open the door—I will not say the back door—for bureaucracy. There is no reason that I can discover why the District Justices should be treated differently in this regard from any of the other judges in their respective domains. It is a small matter. Some people may say I am creating a tempest in a teapot, but though it may be a small matter, from the point of view of the printer or the amount of time it takes to read what is printed, there is a very, very important principle involved.
I want to support the views expressed by Deputies Magennis and Redmond on this matter. I think this Section and the two following Sections carry on their face the idea that there was the intention to subordinate the Justices in some way to the Ministry for the time being. Perhaps I should not say there was the intention, but it is certainly capable of that interpretation, and more so, when one notes the fact, that whereas the rules for the Circuit Courts and for the High Court are to be laid on the Table of the Oireachtas, the rules for the District Courts are not to be so laid upon the Table. That is added evidence of a difference in status and a difference in relationship between the Judges of the High Court, the Circuit Courts, and the Ministry, and the Justices of the District Courts and the Ministry.
I think the sense of the Dáil has been clearly expressed that in respect to the relationships of the various Judges in the three Courts to the Ministry, they should be identical—that is, they should be independent. I think that the objection to the form of this Section is valid, inasmuch as it fails to maintain that independence, and especially, as I said a minute ago, it failed to provide for the laying on the Table of the Dáil rules which are to be made and which may be amended by the Ministry of Home Affairs from time to time with the concurrence of the Ministry of Finance, with the assistance only of certain chosen Justices. That I think is defective and, while there are no amendments down, I am sorry to say, affecting this point, I hope the Attorney-General will give us an assurance before we pass this Section that there will be an alteration made in the name of the Government in this Section, and that the independence of the Justices will be made secure in every possible way, both in the rule-making and the validation of the rules by the Oireachtas before they come into operation.
We have had a good deal of discussion on this Section without, however, having any amendment proposed. The reason why the solicitors' profession was not specifically mentioned in this case was that the District Justices are chosen practically equally from both professions, so that a Rule-making Authority would almost of necessity contain solicitors. I am quite willing to consider the question of having practising solicitors added to the rule-making authority. I do not think that the suggestion conveyed by Deputy Magennis is just. The Government has not, nor have I personally, ever attempted to subordinate the position of the District Justices. We regard the District Justice as being one of the best things that the Government has done, and as being on a par with the Civic Guard— something which the people ought to trust and look to. It is undoubtedly the intention of the Government to maintain the Courts as something that the people can look to as their own and can understand. Anything that will make that position more assured will certainly receive every consideration. I am satisfied that the rules should be laid on the Table of the Dáil, and I will undertake that an amendment to that effect will be added. In referring to this word "assistance" in Section 91, Deputies have ignored the fact that in Section 93 the Rules cannot take effect until they are approved by a majority of the Justices on the Rule-making Authority.
Nominated by the Minister for Home Affairs.
Certainly, and why not? The reason is obvious. The District Justices are in somewhat a different position from the other Justices, who will be in Dublin from time to time, and in choosing Justices for the Rule-making Authority one must have regard to those available, because the drafting of Rules is a matter to which one must give consecutive thought and consecutive time, and it will be necessary to choose men accessible for a sufficient period to give sufficient attention to technical clauses of this kind, and men of standing and experience. If the Rules are laid on the Table any defect will certainly be discovered by one or other of the critics to whom we have been listening. I will consider the question of adding solicitors to the Rule-making Authority.
I am indebted to the Attorney-General for what he has said in regard to laying the Rules on the Table of the Dáil, but my principal objection to this Section is that it is departing from the Report of the Judicial Committee. I want to know why they made such departure. Secondly, they have differentiated from the structure of the Rule-making Authority in regard to other Judges, and I want to know why. Further, it is perfectly true, as the Attorney-General said, that according to Section 93 such rules shall be approved by a majority of the Justices nominated by the Ministry. My objection is that they are to be nominated by the Ministry. No matter what the Attorney-General may say about not having time at their disposal to frame the Rules, surely in an important matter like this, it would not be impossible to find substitutes for the present Justices to take their places while they did consider what proper Rules should be adopted in regard to their own Courts. I think it would be fit and proper that they should be given time, and the time need not necessarily be too great, and facilities for the election of five of their number, as has been suggested by the Judiciary Committee, and these five Justices, in conjunction with two solicitors, whom the Attorney-General is now willing to recommend on the Authority, should act also in conjunction with two practising barristers. He, himself, has said that some of the Justices will be solicitors and some barristers. Why should there not be two practising barristers also, as suggested by the Judicial Committee, on this Rule-making Authority? Therefore, I would submit that it would be far simpler if the Attorney-General could see his way to adopt the suggestion of the Judiciary Committee, or, at least, that portion of it where it is proposed that there should be five District Justices elected by the District Justices themselves, and that there should be two practising barristers and that those should constitute the Rule-making Authority. Of course, if the Government want to have the Minister for Home Affairs there, I presume we will not be able to interfere with their intentions. Let the Minister for Home Affairs also take his part, but in conjunction, at least, with those other parties proposed by the Judiciary Committee, and not with the assistance of those parties, as is proposed in this Section, but with their concurrence as is proposed and approved by the Government in the Section regarding the setting up of a Rule-making Authority both for the High Court and the Circuit Court. I do not think it will be in any way a climb-down or submission on the part of the Government. It will only be doing what they profess to want to do, and that is to make sure that by this Bill they are exhausting every endeavour to put on foot and set up a proper judicial system, both in regard to the limited and High Court jurisdiction, for the people of this country.
I fear I have failed to make my position intelligible to the Attorney-General. I pointed out elements of the Bill which, by amendment or promise of amendment in Committee, have been already removed. I argued that to retain this phrase or clause is to retain something which is discordant with the spirit of the creation of the District Justices—the conferring of enlarged jurisdiction upon them and the effort made by the Dáil to secure them the status that comes of a superior remuneration. It is not good policy to bring the Minister and the Judges into the possibilities of conflict So long as the Minister is the Rule making Authority, with the assistance of certain District Justices to be nominated by him, and those do not become Rules of Court and operative unless they are approved by a majority of the District Justices, there is the possibility of collision. That is one of the objectionable features of making Minister the Rule-making Authority namely, that it is contrary to public policy and highly undesirable. Further more, these enlightened and able representative men of all the various branches of the profession and its work recommend that the District Justices should select five of their number. Nothing has been said to show that that is not a feasible and wise proposal. We have been told of the inconvenience and the taking away from their work. That inconvenience was there no matter who was the selector. Let the District Justices themselves select from amongst their members those whom, from age, experience or ability they know to be the best qualified for this duty. If the Minister is to select them it will provoke a suggestion of bureaucratic interference. I am most anxious we should do nothing that would create a bureaucratic spirit in the least degree.
Might I say another word on the necessity of having a commercial representative on this Rule-making Authority? In the case of the District, 75 per cent. of the work coming before that Court will be matters of the very greatest concern to the commercial community. It is obvious, therefore, that this Bill should have the confidence of that community. We are all anxious when the Bill passes through here that we should, as far as possible, mould it so that it will carry with it the largest measure of the confidence of the people. As has already been pointed out, there is in the minds of a very large section a suspicion with regard to this measure. We all recognise, as commercial men, that much, if not all, of the success of this measure will depend upon the work of the Rule-making Authority. I would, therefore, impress on the Dáil, and especially on the Attorney-General, the necessity of appointing a representative of the commercial community on that Committee so that we may thereby get the confidence of a large section in the Committee and in the Bill.
I have really very little to add. I am surprised it should not be proposed that the President of the College of Surgeons, the President of the College of Physicians, and all the archbishops and bishops of the churches should be members of this Committee.
And the farmers and the beggars.
Yes.
And the criminals.
Yes, a very large class. These Rule-making Committees are persons employed to do entirely a piece of technical work. When the task is done the result will be laid here on the Table of the Dáil. All the classes represented here, except the one referred to by Deputy Johnson, will be able to criticise the Rules and point out their defects if they should continue. It is essential that it should not be a very large body, and that certain members should be chosen for their ability in draughtsmanship, and technical work of the kind. Some also must be chosen who will have a knowledge of the language which is so largely used in a portion of the country in which the Courts are functioning and which has come into such considerable use, particularly along the western seaboard. I am not accepting the proposition to enlarge this Committee. I believe there is an honourable organisation in England called the O.B.E. which has come in for some criticism recently. It looks as if appointment on this Committee will become a violation of the Articles of the Constitution with regard to the conferring of titles of honour. The undertaking I gave is that the Rules will be laid on the Table of the Dáil. I will consider whether two practising members of the two professions might be added to the Committee.
I must trespass once more on the Committee. Step by step the Attorney-General is softening and softening. Perhaps we may succeed before we finish in bringing him the whole way, but I am indebted to him for acknowledging the senior branch of the profession by considering the placing of two practising barristers on the Rule-making Authority. I was not proposing an omnibus committee at all, and probably when the Attorney-General was making those exceedingly humorous references he was not referring to my remarks. What I was proposing was that we should adopt the Judiciary Committee's Report, and I want to know for the third time—and I suppose it is the last time I shall have the right to ask it—why we have departed from the Judiciary Committee's Report in regard to the District Justices and not in regard to the other Judges. No answer has been given to that question. Very well; that being so, we have been promised that a report is to be laid upon the Table of the Dáil. I know something about reports upon Tables of Houses, and I know that often very little attention is paid to them. All I can say is this, that the idea, because the District Justices themselves would have the power to select five of their number, that therefore they would not select among that five men who had as good a knowledge of Irish, required, as the Attorney-General says, for certain parts of the country, as the Minister for Home Affairs would, or that they would not select from among their number as learned members as the Minister for Home Affairs would, I think that is rather too much to ask me to acknowledge. I cannot see why the principle of nominations by a Minister from among a number of District Justices should be pressed upon the Dáil by the Government and why the principle of election, such as is admitted and proposed by the Government themselves in regard both to the Circuit Court and to the High Court, should not be admitted in the case of the District Justices. No reason whatever has been given for departing from this principle and for engaging in this purely bureaucratic proposal. The Minister for Home Affairs is being placed upon all these Rule-making Authorities, but why should he have to perform the whole of the duties of the District Courts Rule-making Authorities? I would suggest from the point of view of the Minister for Home Affairs himself that it places him in a rather invidious position, and it would make it far easier and better for him if the District Justices were to be selected by that body than to be chosen by him.
Furthermore, the Attorney-General has not answered another of my questions, which I shall put again for the third time, and that is why the word "assistance" is used here instead of the word "concurrence." Why was the word "assistance" deleted at the incidence of the Government, and the word "concurrence" substituted in regard to the Rule-making Authority for the Circuit Courts, and why is the word "assistance" insisted upon here and the word "concurrence" rejected? The answer is perfectly obvious but the Government will not give it. It is that the Minister for Home Affairs is to be the Rule-making Authority, otherwise there would be no point whatever in the attitude adopted by the Government differentiating from their attitude in regard to the other courts, and from the Judiciary Committee's Report in regard to all the courts. Once again— and I am afraid it is the last time I will have the power, according to the rules, at this stage at any rate—I ask these questions of the Attorney-General in the hope that, this being the third time, I may be more successful in obtaining a reply.
It is not every day that we can cross-examine an Attorney-General, and I want to add one more item to the catechism. He has been good enough to say that he will consider whether he cannot add two practising solicitors to the Rule-making Authority, but I should like to ask him in what capacity they are to be added? Are they to concur or are they merely to assist? If they are merely to assist they will be very little use; if their concurrence is necessary then that would be a very valuable concession indeed.
That would be a matter for consideration.
Careful consideration, I hope?
Careful consideration.
Is the Minister obdurate as regards insisting upon the presence only of District Justices who have been named by the Minister instead of District Justices who would be elected out of their own number? He has taken no notice of that whatsoever. He was careful to repudiate what it was unnecessary to repudiate, that the Government had a desire to depress the District Justices. I allege, and I repeat that the wording of the Bill, until it was amended by the Government in the last two days, did give ground for that suggestion. Why do they cling now so desperately to the one phrase in the entire measure which is the spirit of the desire to depress, when they have shown that they are anxious to carry out the idea of the Constitution and make these men judges in every sense of the word? Why do they, as I say, cling so desperately to the one phrase? Either it is because they have conceded so much already to proposers of amendments that the spirit of obstinacy has now set in, or they have some solid and good reason. I am willing to be convinced, but I have heard no good reason. These Rules are of the last importance, because the whole success of the administration of the District Justices' courts depends upon them. The confidence of the people in these is of vital importance also. We have not been told why the Minister for Home Affairs is to be a sort of demigod in this connection. There has been no attempt whatever to persist in making the Minister for Home Affairs the central figure in regard to the other courts. But the origin of the District Justices must be taken into account. They were created by the Minister for Home Affairs under a temporary measure. Their administration has been controlled by the office of the Minister for Home Affairs from the time they began to administer the laws, and now if at the last moment we are to retain words that make the Minister for Home Affairs the central figure a situation is to be created in which it is conceivable at least that there would be collision between the District Justices and the Minister in regard to important Rules. These are things that have not been elucidated, if it is the desire to make this Bill as good a Bill as it can possibly be made. We are proud of the measure. We have approved most heartily and agreed with the Minister, not merely in passing it but in bettering it. But here is an unmistakable blot upon the Bill, and one word from the Attorney-General can remove it. We are still waiting for that word to be said.
I only hope that the Attorney-General will stand firm in his resistance to this proposal. The Dáil and the nation are not to be stampeded by the fusilade of oratory which we have heard here. I think the Minister for Home Affairs should have some control so far as this selection is concerned, because the control of the Minister for Home Affairs is the control of the Dáil, and the Dáil represents the people. I do not see why the Attorney-General should allow himself to be stampeded by any fusilade of oratory about an attempt to set up a bureaucracy, a form of bureaucracy which pertains to law and the control of law. I think the Ministry should take care that they will not be stampeded in any shape or form into doing something that the Dáil would not be allowed to wink at in the future. I think that is the object that inspires all the oratory that has been directed against the Attorney-General.
The doctrine enunciated by Deputy McGoldrick compels one to protest against the very expression of the notion that the administration of justice should to any extent be controlled even by the Dáil, and it is perhaps well that there should be some disavowal that any such notion is in the minds of Deputies. The pride with which the Attorney-General looks on the establishment of the District Justices, coupled with the pride in the establishment of the Civic Guard, rather suggests what has been hinted at, that it is the pride of parentage that makes him stand firm on the proposition that in making the Rules for the conduct of the District Courts the Ministry of Home Affairs shall be the over-riding authority. Deputy McGoldrick and any, if such, who think with him, ought to remember that the Rule-making Authority of the Circuit Courts is the Minister for Home Affairs, plus other people whose concurrence must be secured, and similarly with regard to the High Court. No answer has been given to the question raised as to why there should be any differentiation. It is unfortunate that no amendments have been sent in to this Section. It is not, of course, too late. It is desirable, I think, that the Dáil should insist upon the same kind of authority in respect of District Courts as has been agreed on in respect of Circuit Courts—the same kind of authority, possibly with some slight differences in numbers, though I do not know why even there should be that difference— but it should not be an authority which is purely a political authority, whether of the Ministry or the Dáil. I hope that the Attorney-General will, on behalf of the Ministry, give us an indication before this Section passes that he is prepared, in this as in other respects, to make the District Courts harmonise with Circuit Courts, as regards the relations between these Courts and the Ministry of Home Affairs.
I do not know whether I am in order or not, but in concurrence with the idea suggested to me by the Attorney-General, I propose to move an amendment now to this Section, if I get permission.
I think the Deputy must have the permission of the Dáil to move an amendment without notice.
May I ask for the permission of the Dáil?
On a point of order, Deputy Redmond has spoken three times already.
That is why I want to move the amendment, as I wish to speak again.
You are speaking for the fourth time.
On a point of order, may I ask whether I am speaking a fourth time when I am raising a point of order and asking you may I move an amendment?
I would like to put this point, that never previously in the experience of the Dáil when a desire has been expressed to move an amendment in Committee that has not appeared in the Order Paper has the leave of the Dáil been refused.
I think there is a Standing Order which gives An Ceann Comhairle the discretion.
That is quite so. The Deputy is within his right in speaking again if the amendment is in order.
May I point out that any undertaking I have given must now be taken as cancelled. You cannot have it both ways.
With your permission and the permission of the Dáil I desire to move the following amendment:—
Section 91—To delete the Section, and to substitute therefor the following:—
"The Rule-making Authority shall consist of five District Justices to be nominated by the general body of Justices; two practising barristers to be nominated by the Bar Council; and two qualified solicitors to be nominated by the Council of the Incorporated Law Society, with authority to select its own Chairman."
I may say these words are taken literally from the Judiciary Report.
On a point of order, is the Deputy moving the amendment now?
Has he got the permission of the Dáil to do so?
It is within the discretion of the Ceann Comhairle to allow an amendment to be proposed or to refuse it.
On a further point of order, is it not the case that you have that discretion with regard to a Deputy who has not exhausted his privilege of speaking three times? If on the occasion of his speaking in Committee one of his speeches took the form of moving an amendment then he might move that amendment, I submit, without notice, with your permission; but can the limitation of a Deputy's right to speak more than three times in Committee be extended notwithstanding the Standing Orders?
Perhaps I might supplement Deputy Magennis's suggestion, that the limit of speaking three times is a limit of speaking three times on one particular amendment, or on one particular Section. There is no limit to the number of times either the Deputy himself or any other Deputy may address the Dáil on various amendments or on various subjects.
My point of order is this: we have debated a Section of the Bill. In the debating of that it takes any form it pleases, and a Deputy is entitled to make three speeches not exceeding ten minutes each. When he has done that, I submit he has exhausted his right of speech on that Section. After making three speeches he proposes an amendment, which is in effect to speak four times on it, and there will be no end to that, because someone else who has spoken three times could move an amendment to that amendment, and so on ad infinitim.
Might I suggest that if there were twenty amendments to one section each Deputy would have the right to speak three times on each of the twenty amendments, and on the Section afterwards.
I must rule in favour of the view put forward by Deputy Magennis. If the amendment is proposed by another Deputy, it would be open to Deputy Redmond to make three speeches on it.
I beg to move the amendment.
I beg to second.
Does the Leas-Cheann Comhairle now accept this amendment from Deputy Cooper?
I accept this amendment.
Before this matter proceeds any further I wish to draw attention to a decision which you have already given. You gave Deputy Redmond permission to move this amendment. Now, a private member stands up and questions your ruling and puts forward a new case. I want to know whether a private member has the right to question your ruling and make you reverse it on a new point raised by another Deputy?
Deputy Byrne has made a mistake; I did not accept the amendment from Deputy Redmond. The matter was under discussion, and there was no ruling given on it.
I presume that at long last I am in order. I do not know really why various Deputies have been so anxious for me not to be in order.
For the sake of order.
Deputy Professor Magennis says it is for the sake of order. I am glad he is a custodian of order, and I hope he will always remain so. I have really nothing further to add to what I have already said in regard to this Section. The amendment that has been proposed by my friend, Deputy Cooper, contains wording which is taken directly word for word from the Report of the Judiciary Committee. Now I am glad to see there is a fuller Front Bench than there was during most parts of the discussion of the Section, and perhaps I may once more repeat, in as short a manner as possible, the various questions I have asked and which have been unanswered.
I notice there is now an exodus from the Government Benches, and no wonder, because they have refused to reply to one of my questions. If that is the way that they think they are going to carry on Government, even in this country, they will very shortly find out their mistake. However, the questions are briefly these: Why have they departed from the Judiciary Committee's Report in respect to the Rule-making Authority of District Courts, and not in regard to the Rule-making Authority of the other Courts? Why are the District Justices who are to be on this Rule-making Authority to be nominated by a Government Minister and not elected by the District Justices themselves? Why is it that it is only their assistance that is asked for, and not their concurrence? Why is it, in effect, that the Minister for Home Affairs is to be made the sole Rule-making Authority for District Courts? I am entitled to ask these questions. Members of the Government may smile, if they like, but one cannot carry on Government in that fashion. The Government have got to answer questions, reasonably-grounded questions, and I say that there is grave reason for these questions.
In the first place, District Justices are Judges under the Constitution, and under the Constitution Judges are to be independent of the Executive of the day, and the Rule-making Authority to set up the rules in the Courts, over which these Justices are to preside, should be equally as independent in authority as the Government have thought fit to make a Rule-making Authority in regard to the High Court and the Circuit Court. What, again, is the reason for the differentiation in regard to the District Courts? That question has been left unanswered, and I ask once more for an answer to it. We are entitled to an explanation. If we think the explanation is a sound one, and if we think it is one that merits the distinction of the change, why, therefore, we are in a position to determine our action in the matter; but is the Dáil to be asked seriously to pass a Section of a Judiciary Bill differentiating in principle from other Sections in regard to the setting up of other Courts, and to the creation of other Judgeships, without being told why that is the case? I think it is asking too much, even of an assembly where the Government have—or think they have—such an enormous preponderance and weight. I think it is only fair that Deputies and the country should know why this distinction is made. That is all I am asking. It is not a very large request. It is not a very unreasonable one. It is not an impossible demand. It is not a trivial demand. It is not a cheap demand. It is a demand pertinent to the matter we are now discussing, and which should and must be cleared up by the Government before they proceed with any further stage of the Bill.
Perhaps I should explain why I propose the amendment or became its sponsor. I do not think the Government is treating us quite fairly. It is quite possible some of Deputy Redmond's questions are unanswerable, or could not be answered without the careful consideration that the Attorney-General has promised to give to questions which have arisen here. But surely the Government know why they departed from the Report of the Judiciary Committee. Whenever anybody moved an amendment at variance from that Report, the Report has been used to belabour the mover of the amendment. Surely we can ask the Government to give some sort of reason why they have taken this action. I am not anxious to obstruct the Government. I want to see them getting this Bill through to-night. I think they would be treating the Dáil much more fairly by giving an explanation.
I thought I had made the matter very clear. The Minister for Home Affairs, as I explained on a previous occasion, is brought into these Rule-making Authorities in order that the Rule-making Authority may be exposed to the questions of Deputy Redmond and others. If he were not brought in as part of the machinery for making rules, Deputy Redmond and other Deputies could not ask questions.
Part of the machinery?
He is here responsible to the Dáil, and he is the link between the expert technical people who draft these Rules and the Dáil. Having satisfied himself that he can stand over those Rules, he lays them on the Table here, or would lay them on the Table if my offer had been accepted. Then they would be here for the Dáil to criticise, and Deputy Redmond can ask three or more questions if he wishes.
Why the whole authority?
He is the responsible authority. If Captain Redmond were part of the constitutional machinery elsewhere he must appreciate what the functions of Ministers in relation to these matters are, or the manner in which they become responsible, or assume responsibility for the purpose of criticism in a representative assembly. The departure in other respects I have already explained, so that as regards solicitors, as the District Justices include both Barristers and Solicitors, it was not thought necessary for that reason, as both professions were represented, that additional representation should be given. I had undertaken to consider that matter before this amendment was moved. As regards the method of selection I had already explained, and I think the explanation is a reasonable one, and must appeal to every reasonable person, that the matter in hand is not the control of the District Justices. It is the drafting of technical rules of procedure, and the choosing of persons to draft documents by election from a body of 30 or more persons is an unheard of thing. We choose technical persons for their technical skill and their selection is not to be a tribute of respect to be paid to the father of the body of District Justices, or to any other particular persons amongst them. They were to be chosen only for their capacity to draft rules. The rules, if my offer had been accepted, would be here at the mercy of Deputy Redmond or Deputy Magennis to criticise them. But to chose persons for technical work by election, if that is to be an understanding of democracy, well——
The Attorney-General has surely forgotten Part I. of Section 36 and Part II., of Section 66, 67 and 68. Everything he said in regard to this proposition of Deputy Redmond is contradicted by the practice set out in these other rules regarding the other Courts.
May I interrupt for a moment? I explained previously in regard to these that we were dealing with Judges who were accessible. Here we are dealing with District Justices scattered all over the country. Regard must be had to their accessibility and the possibility of their giving time and attention to making arrangements perhaps to fill the vacancy while the man is away. In dealing with the High Court you have the Judges here. In dealing with the Circuit Courts you have a small number of Judges easily accessible. But in dealing with 30 District Justices all over the country, to suggest that ballot papers be sent to them to select persons who are capable of drafting rules is certainly a most original proposition.
There may be difficulties that the Attorney-General can see on the part of the various District Justices, in selecting somebody to act for them. I think if he will consult with some of those who have been acting as Ministers for a year or two, he will learn that they have found it possible to get over even greater difficulties than that. But that is not the point. The point is not the particular method of selection. The point is that there is to be a difference in status— no, not status, because that is quite understood—but a difference in the relations indicated in respect of District Justices as compared with Circuit Judges and the High Court Judges in their relation to the Ministry. The proposal that I would like to see adopted is that some such machinery —I am not very particular whether it is five Justices or two practising Barristers, or who it may be—but I want to see something approximating to the method of appointment of this Rule-making Authority—approximating to that in operation in respect of the other Courts. I think it is unfortunate that the suggestion should be there, that there is a distinction between this class of Court and that class of Court. We are concerned in this because of the fact that it is the Court which will affect the great majority of the people, more so than the Higher Courts. I think we ought to endeavour to ensure in every way, that the District Justices' position in the State will be as independent of political authority as the High Court or the Circuit Court. As to how that is to be done I am not very much concerned. As to the constitution of that authority, I am not very much concerned, provided that the Rule-making Authority is not to be confined to the Minister for Home Affairs or any other Minister for the time being. I recognise the importance of having the Minister for Home Affairs represented on that authority. But the Bill, as drafted, says that he is the authority and the Rules that may be made to-day may be annulled and altered at some future time. Consequently I feel strongly that some change should be made, and a really radical change should be made in the Bill as presented, so as to make it conform to the plan outlined in respect of the Circuit Courts. Now, in respect to the amendment that has been put forward, I think it is too important a matter to be decided without the amendment having been placed in our hands. It is unfortunate that amendments have not been put forward to this Section. I think it would be very much better that any amendment should be deferred until we come to the Report Stage in this matter, so that the terms of the amendment will be in our hands before we are asked to vote. Otherwise, I do not think it would be wise. I would not be prepared to vote upon the amendment which has been read out, because I would like to consider it much more carefully than one is able to do by merely hearing its phraseology. I think the whole matter can be discussed fully and the amendment can be considered quite effectively, and with much more chance of due consideration been given to it, if it is deferred until the Report Stage. Meanwhile, notwithstanding the threats or withdrawal of his offer, the Attorney-General may possibly submit an amendment of his own, and I think any Deputy interested in the matter can well put forward suggestions on the Report Stage.
There is one question which has been addressed to the Attorney-General, not three times, but four times, which he has not answered at all. One noticed the Attorney-General stepping rather nimbly among the questions put to him and definitely avoiding some of them, but there was one question put to him and it is important that the Dáil should have an answer to that question, and that is: Why was the recommendation of the Judiciary Committee changed? Why was a change made in the report of the Judiciary Committee in the drafting of this Section of the Bill? That is important. There has been a clear and very definite change, and if the reasons prompting that change were given to the Dáil they might appear to be good and sufficient; but whatever these reasons were the Dáil should be made acquainted with them, and the Dáil could be acquainted with them by no better person than the Attorney-General, because he was a member of that Committee. The Attorney-General is responsible for the wording of the amendment which Deputy Redmond moved. He signed the very words by which that recommendation was made to the Government, and now he comes here and is standing for a form of words that means a change upon the original proposal he himself made. If there be such a change made by him surely the Dáil should be told by him why he has seen reasons to change his own opinion, because the amendment now before the Dáil is one to which he originally put his signature.
The Attorney-General will be, perhaps, surprised to know that a thing which he says was impossible to be done was actually done. He says it is impossible to ballot District Justices and to get them to appoint their representatives. This thing was done for the purpose of making Rules about five years ago, when there was discontent among the Resident Magistrates and when some felt that they were about to enrol themselves under Deputy Johnson. To avoid this the Government set up a sort of Whitley Council, and the Resident Magistrates elected representatives and sent them here to discuss their conditions of employment. Now if it was possible for Resident Magistrates to do that, why should it not be done by District Justices? I am much impressed by what fell from Deputy Johnson, and if the Attorney-General will give an undertaking that we will have an opportunity of discussing this on Report, I will withdraw my amendment. We would all like to have an opportunity of considering this matter. I am afraid we all spoke on this subject with rather more force than was desirable, and if the Attorney-General gives an undertaking to bring the matter up on the Report Stage, when we shall have a full opportunity for discussing it, I will ask leave to withdraw my amendment.
I have offered to bring up on the Report Stage, a new proposal submitting these Rules entirely to the Dáil, and I offered to consider on the Report Stage other propositions in regard to associating other persons with the Rule-making Authority. These offers have been rejected none too graciously. However, I take it this amendment is withdrawn, and if that is so I shall revive my offer, and the matter will then be open for discussion again on Report Stage. In answer to Deputy Figgis, I thought I had explained the reason it was considered more feasible in choosing technical persons to choose them by this method of selection rather than by election. This is a very different thing, choosing people for technical skill in legal matters, from the Whitley Council.
Amendment, by leave, withdrawn.
Question: That Section 91 stand part of the Bill, put and agreed to.
SECTION 92.
Such Rule-making Authority may at any time and from time to time after the passing and before or after the commencement of this Act make Rules to be styled "District Court Rules" for carrying into effect this Part of this Act (except the hearing by the Circuit Court of appeals from the District Court and the hearing by the High Court of Cases stated by the District Court), and may annul or alter such Rules and make new Rules. In particular Rules may be made for all or any of the following matters, viz., for regulating the Sittings and the Vacations and the Districts of the Justices and the places where proceedings are to be brought and the forms of process, summons, case stated, appeal or otherwise, and the conditions which a party who requires a case stated or an appellant must comply with on the Civil side or the Criminal side or in Licensing cases as the case may be and the Practice and Procedure of the District Court generally including questions of costs and the times for taking any step in the District Court and the use of the National language of Saorstát Eireann therein and the fixing and collection of fees and the officers and offices to be attached to the Court with the adaptation or modification of any statute that may be necessary for any of the purposes aforesaid and all subsidiary matters.
I beg to move an amendment. In lines 41 and 42, to delete the words "and the officers and offices to be attached to the Court."
The effect of the amendment is to exclude from the operations of the Rule-making Authority the control of the officers and offices for the reason, that it is felt they should be properly under the control of the Oireachtas rather than the Rule-making Authority.
Question put and agreed to.
Question: "That Section 92, as amended, stand part of the Bill," put and agreed to.
Amendment 50 (Deputy Hewat) not moved.
Section 93 (Sanction of Rules) was agreed to and added to the Bill.
PART IV.
APPEALS PENDING TO JUDGE OF ASSIZE.
SECTION 94.
"All appeals and other applications to Judges of Assize pending at the commencement of Part II. of this Act shall be heard and determined by such Judge or Judges of the High Court as shall be nominated for the purpose by the President of the High Court, and at such times and places as the Minister for Home Affairs shall, by order, prescribe and direct."
The following amendment is in the name of Deputy Duggan.
Schedule 1. Before the schedule to insert a new Section as follows:—
PART IV.
MISCELLANEOUS TRANSITORY PROVISIONS.
"Unless and until otherwise determined by the Oireachtas, all Registrars, clerks and other officers attached to the existing Supreme Court of Judicature or to the Lord Chief Justice in the exercise of the jurisdiction in Lunacy vested in him and to the Courts of existing Recorders, County Court Judges and District Justices shall continue to discharge their duties as heretofore or duties analogous thereto and shall have the same rank and hold their offices by the same tenure and upon the same terms and conditions and receive the same salaries and, if entitled to pensions, be entitled to the same pensions as if this Act had not passed: Provided that the distribution of business among such officers and the duties to be discharged by them severally and any re-arrangement connected therewith shall be regulated, controlled and directed in each case respectively by the Rules of Court, Rules of the Circuit Court, and District Court Rules, to be made under this Act. Nothing in this section shall prejudice the rights of any officer under Section 10 of the Articles of Agreement for a Treaty between Great Britain and Ireland signed at London on the 6th day of December, 1921."
The amendment is the heading to the schedule, and as a matter of fact it contains a number of misprints. It is to be read before Section 94, and it is to delete the heading Part IV. "Appeals pending to a Judge of Assize," and to insert a new heading and a new Section, "Part IV. Miscellaneous Transitory Provisions," then Section 94 becomes Section 95, and then comes this new Section, which is intended to transfer to the Courts, pending the reorganisation of the staffs and establishment, the existing staffs of the Courts.
I move that amendment.
With reference to the operation of the Act which is now somewhat extended, as will be observed from the new heading on the Report Stage, it is proposed to bring up a new Section dealing with existing Judges and Magistrates whose age might disqualify them under the Bill from serving so as to enable their services if considered well to be retained.
Question put and agreed to.
Question: "That the new Section stand part of the Bill," put and agreed to.
Section 94 put and agreed to.
I beg to move the following amendment to the Schedule: "To add `Sligo' to Section 4." I think I might also take the following amendment, which is consequential on this one. It is to delete "Sligo" in Circuit 5, and to insert in lieu thereof "Longford." The object of the two amendments is to take Sligo from one Circuit and put it into another. When I read the Schedule, I discovered that those responsible for it had left out altogether the County Longford. The Attorney-General talked the other day of some people not having read the Bill. Well, I think there must have been someone in his office who neglected to read the last draft of it, otherwise I do not see how the County Longford could have been omitted. The point is that Longford has to be fitted in somewhere now. It must be put into some Circuit, and the object of these two amendments is to make a case for the re-arrangement of Circuits 4 and 5. What I suggest is to take Sligo out of Circuit 5 and put Longford into that Circuit, which, in my opinion, would be the natural one for it. Longford borders on Roscommon and Westmeath and would, I think, fit in suitably with these two counties. Then, what I suggest is that you put Sligo in with Mayo and Galway. Already, even without Longford, No. 5 Circuit is a very large one. It stretches from Sligo to Leix. The President, the other day, remarked that the Circuit Judges would be kept moving about. Certainly the Judge on this Circuit will have a big area to cover, and will have plenty of moving about to do. In the old days there were about twenty-three Petty Sessions Courts in the area comprised in Circuit 5, so that a Circuit Judge spending a fortnight disposing of business in each of these places would be occupied for practically the whole year. The second reason that I have in mind for taking Sligo from Circuit 5 is that Sligo has very little in common with Leix and Offaly, which are inland counties. Leix, as Deputy Davin told us some weeks ago, is a great barley growing county, and its interests are altogether different from Mayo and Galway, which are seaboard counties. I think that Sligo would fit in more suitably with these counties than with Leix or Offaly. If Mayo and Galway were to comprise one Circuit, the Circuit, I am afraid, would be a poor one, and on the whole it would not offer great rewards to the Bar. By putting in Sligo with these counties it would be possible to make the Circuit a fairly prosperous one. I suggest that the arrangement I propose is a very practicable one, because if you take Claremorris as a convenient centre in the Circuit it is quite easy to reach Sligo, Galway, or Mayo from it. A two hours' railway journey from Claremorris would take you to any of these places. I would earnestly urge the Government to accept these amendments which I am now putting forward.
As regards the omission of Longford, I am afraid the printer must have thought that Longford was still a matter for the Minister for Defence. The Judiciary Committee included Longford in Circuit 5 in the Schedule to their report, and that report was sent to the printer with this draft of the Bill. The population set out in the Schedule includes Longford. As regards the other matter, whether Sligo should be in Circuit 4 or Circuit 5, Mayo and Galway are pretty large propositions in themselves. We have gone more or less on a population basis, but I am quite willing to have the matter examined and to discuss it with Deputy Bryan Cooper, who, I believe, is familiar with that part of the country.
I think it would be a very good idea if the Attorney-General were to discuss the matter with the present County Court Judge for Sligo. He lives in the King's County and knows how far he has to travel.
The matter has already been very carefully considered. We have had maps and plans before the Judiciary Committee in drawing up this scheme.
I accept the Attorney-General's assurance, and I beg to ask for leave to withdraw my two amendments.
Amendments, by leave, withdrawn.
I beg to move the following amendment to the Schedule: "In Circuit 5, to add `Longford' and re-arrange into ten areas instead of 8."
In moving this amendment, may I say that my intention was to place the Schedule in conformity with an amendment which I had hoped might have been carried to Section 37, Part 2. As that amendment was not carried, and as the Circuit Judges are now limited to 8, contrary to the Judiciary Committee's report, which did not propose a maximum of 8, but which proposed a minimum of 8, but as they are now limited to 8, contrary to the Judiciary Committee's report, I do not see the purpose of proposing 10 Circuits. When proposing an amendment that the Circuit Judges should not be limited to 8, I did get an assurance from the President that should the necessity arise the Government would come to the Dáil and would ask for powers to create new Judgeships, and would not, as I feared might happen, go in for creating posts of emergency men, who would be nothing but the minions of the Government of the day, and who would not be in any respect independent of the Executive as they should, and are supposed to be, by our Constitution. That being so, I would ask for leave to withdraw the amendment.
You withdraw the amendment in so far as it proposes to create ten Circuits, but not so far as it includes Longford.
Amendment to add Longford to Circuit 5 agreed to.
Amendment to "arrange into ten areas instead of 8" by leave withdrawn.
Question—"That the Schedule, as amended, stand part of the Bill"—put and agreed to.
Some time ago the Minister for Home Affairs promised that he would put before us a financial statement in connection with this Bill, but so far it has not reached us.
I have not forgotten the promise. The statement will be circulated shortly.
TITLE.
"An Act for the establishment of Courts of Justice pursuant to the Constitution of Saorstát Eireann and for purposes relating to the Better Administration of Justice."
Agreed to.