Section 7 enables Judges of the High Court to be called in to act as Judges in the Court of Appeal, and the purpose of this amendment is to limit that power to cases of illness or the unavoidable absence of Judges from the Court and the motive of the amendment is to preserve the position of the Court of Appeal as something supreme and standing in a position by itself and to prevent Judges of the High Court being called unnecessarily or too frequently into the Supreme Court. I move.
DÁIL IN COMMITTEE. - DAIL IN COMMITTEE.
I do not really see the force of this amendment, because during the course of the Committee Stage of this Bill I proposed that all the High Court Judges should be paid equal salaries with possibly one or two exceptions, and I had more than one ground for that proposal. In England at the present time that obtains, and I think it is a very useful fact that all High Court and Supreme Court Judges should be co-equals, and I cannot see why if the necessity were to arise there would be anything against the calling in to the Supreme Court of a High Court Judge. I really do not think that there would be that great difference between either their intelligence or capacity, or that there should be that difference between the status of the two Courts, and, therefore, I think that this amendment would require a little more explanation than the Attorney-General has given. What is the objection either from the legal or the civil state point of view to Supreme Court Judges seeking the assistance of their own brethren in the High Court. That is a question I would like to have answered if the Attorney-General would be kind enough to explain.
I have been more than once surprised by the line taken, in the way of criticism of proposals, by my friend, Deputy Redmond but never more surprised than on the present occasion. The amendment here goes as nearly perfecting the original proposal as an amendment could well do. Deputy Redmond must be fully alive to the fact of every barrister's experience that a Judge of first instance, a Judge of the High Court, is dealing not merely with questions of law, but with considerations of what I might briefly describe as of a psychological character.
He estimates, from the manner and bearing and general behaviour of the witness, his credibility. He has control of his Court, he deals with counsel, and he exercises a variety of qualities that are altogether different in their nature from that of being a profound or subtle lawyer. That he should receive the same salary as the salary of the Supreme Court Judge does not arise here. If that were the question, I should agree with Deputy Redmond that both should be paid alike as being judges of a High Court, but the point that this amendment seeks to deal with is that the Judge of first instance should not be unnecessarily brought in to be a member constituting the Supreme Court. It is a Court really of specialisation of function, and it is only where there would be a deficiency in the number of Judges available to make up a Supreme Court for the hearing of a particular appeal, that it should be necessary at all to requisition the services of a Judge of the Supreme Court of first instance. I think Deputy Redmond overlooked the fact that in line 19 the amendment seeks to delete the words "from time to time," so that the result is that it is only when the illness of a Judge of Appeal makes it necessary, or some other unavoidable cause of a similar nature, that the Judge of the other Court is to be brought in to complete the number. I think this is a most useful amendment, and one that will commend itself to the Bar of Ireland.
I am exceedingly indebted to my learned friend on my right for having more fully explained this amendment than did the Attorney-General when he said that High Court Judges should not be unnecessarily called in to aid their brethren in the Supreme Court. If that is the intention of the amendment, of course, I am in complete agreement with it, but it did strike me that it was unnecessary, to use the expression again, to have a limitation of the powers of the Judges of the Supreme Court. However, I am now satisfied that that is not the case, and I require no further explanation on the subject.
One inaccuracy crept in, on an earlier stage of this Bill, as regards equal payments. The Court of Appeal in this country is intended to be, as far as possible, the final Court of Appeal. In England the Judges in the final Court of Appeal do not receive the same salaries as the other Judges; they receive considerably larger salaries. It is desired that this Court of Appeal, which is to be the final Court of Appeal and which is to be unlike the existing Court of Appeal constituted as a separate Court, should stand apart and should be constituted by men specially chosen for their fitness for that particular Court, and that it should not be possible to rush in High Court Judges in order to give a day's golf or a day's holiday to Judges of the Supreme Court. It is the opinion of the Bar that, in the present existing régime, Judges of the High Court have been unduly called into the Court of Appeal, and it is a constant complaint of the Bar. I do not know whether Deputy Redmond has conferred with representatives of the Bar, but I do know myself that this amendment is in accordance with the best opinion of the Bar, and I should think with a long way the majority of the Bar, that Judges of the High Court should not be called into the Court of Appeal, and that the Court of Appeal should be made a stable institution to which people can look with respect and which should not be simply a scratch collection of Judges got together to hear cases from time to time.
Amendment put, and agreed to.
Section amended accordingly.
Amendment 2. — In Section 12, line 3, page 6, to delete the words "on the advice of" and substitute in lieu thereof the words —"after consultation with the Chief Justice and."
I move this amendment. It gives effect to an undertaking of the President, given on the Committee Stage, with reference to the extension of the age of retirement. The Section will now read:—"The age of retirement of all Judges of the High Court and Supreme Court shall be 70 years, but the Executive Council may, after consultation with the Chief Justice and the Attorney-General, extend the age of retirement in the case of any Judge to 75 years."
Amendment agreed to.
Section, as amended, agreed to.
Amendment 3. — To delete Section 13.
This amendment is for the purpose of inserting at the end of the Bill a comprehensive declaration applying to all Courts. This amendment is also in pursuance of an undertaking, and I move it.
Amendment agreed to.
Amendment 4. — In Section 15, lines 26 and 27, page 6, to delete the words "or vacates his office owing to age or permanent infirmity," and insert after the word "judge" in line 29 the following words:—"There shall be granted to each judge of the High Court and the Supreme Court who vacates his office owing to age or permanent infirmity after having completed five or more years' service and less than fifteen years' service a pension calculated at the rate of one-sixth of his salary at the time he vacates his office, with the addition of one-twentieth of his said salary for every completed year of service in excess of five such years, such pension to be continued during his life."
Mr. O'HIGGINS
I move amendment 4.
It will be remembered that, on the Committee Stage, a question was raised as to whether, under the provisions as they stood, a Judge might not retire within a few weeks of his appointment on full pension. I think that particular defect was pointed out by Deputy Magennis. This amendment has been drawn to meet that weakness in the Clause. It prevents any Judge vacating office with pension unless he has five years service.
Amendment agreed to.
Section, as amended, agreed to.
Amendment 5. —In Section 17, line 43, page 6, to insert immediately before the word "but" the following words:—"or a Judge of the Dáil Supreme Court as defined in the Dáil Eireann Courts (Winding-Up) Act, 1923 (No. 36 of 1923), or a Judicial Commissioner appointed under that Act."
The object of this amendment, which I move, is to correct an oversight in failing to set out as a qualification for appointment to the new Courts the judicial record possessed by certain persons. Judges appointed to the Dáil Supreme Court and those who are acting on the Dáil Courts Winding-up Commission were omitted, and I think it will be agreed that that omission should be rectified.
Amendment agreed to.
Section, as amended, agreed to.
Amendment 6. — In Section 20, line 13, page 7, to delete the words "of the High Court and Supreme Court."
This amendment, which I move, is really only a drafting amendment. It was unnecessary to insert the names of the Courts. It is better to leave it in the general form, that the Commissioners referred to shall be simply Commissioners and not limited to particular Courts.
Amendment agreed to.
Section, as amended, agreed to.
Amendment 7. — To delete Section 21.
The intention of this amendment is to transfer the Clause to the end, inasmuch as the Commissioners and Solicitors, respectively, will be Commissioners and Solicitors for all the Courts set up under this Bill. I move the amendment.
Amendment agreed to.
Section, as amended, agreed to.
Amendment 8. — To insert immediately before Section 22, page 7, a new section, as follows:—
"From and after the commencement of this Act the Reference Committee for Saorstát Eireann mentioned in sub-section (5) of Section 33 of the Finance (1909-10) Act as adapted by the Adaptation of Enactments Act, 1922 (No. 2 of 1922) shall consist of the Chief Justice, the President of the High Court, and the Chairman of the Surveyors' Institution (Irish Branch), in lieu of the persons named in the said sub-section."
This amendment is necessary by reason of the fact that under the Bill as it stands the Reference Committee that appointed Referees for appeals under the Finance provisions of the Finance Acts of 1909-10 could not be constituted. The persons who were made ex-officio members of that Reference Committee cease to exist under this Bill, and it is proposed to substitute for them the persons named in the amendment, who are: the Chief Justice; the President of the High Court and the Chairman of the Surveyors' Institution (Irish Branch). I move the amendment.
Amendment agreed to.
Motion made and question put—"That the new Section be added to the Bill."
Agreed.
Amendment 9 — To delete Section 25.
The object of this Amendment is to transfer the Section to a more comprehensive Clause, which it is proposed to add at the end and which will make these provisions with reference to juries apply to all Courts. I move the amendment.
Amendment agreed to.
Amendment 10:—In Section 37 (viii.), line 22, page 10, to delete the word "and" where it secondly occurs and insert in lieu thereof the figures "(ix.)".
This Amendment is merely a drafting Amendment and for the purpose of inserting the figure 9. Otherwise the terms at the end of Clause 8 might be limited by the new words which were put in as regards the fixing and the collection of fees. I move the amendment.
Amendment agreed to.
Amendment 11:—In Section 37, line 26, page 10, to add immediately after the word "majority" the words "of a committee consisting."
This gives effect to an undertaking given during the Committee Stage, prescribing the concurrence which is required in the making of rules for the Superior Court and High Court.
Amendment agreed to.
I move: "In Section 37, page 10, to delete lines 31 to 40 inclusive." It is proposed to apply the clause to all rules in all the Courts, and it is provided that they be laid on the table of the House.
Amendment agreed to.
Section, as amended, agreed to.
I move:
"In Section 38, line 50, page 10, to add immediately after the word `Court' the following words:—`The Minister for Home Affairs may, with the consent of the Chief Justice, and the Judges for the time being of the respective Circuits affected, at any time and from time to time transfer any county or part of a county from one Circuit to another Circuit, or otherwise alter the areas comprised in the several Circuits as he shall think proper, but not so as to alter the total number of Circuits.' "
This amendment enables the Minister for Home Affairs to alter the Circuits. Deputy Cooper pointed out that in his view, one of the Circuits, at least as constituted, would not be workable. Really, it is not possible to arrive at a final view in that matter. Experience will teach us more.
This is a wise provision, but I should like to ask what does "part of a county" mean? It is not clear, and it seems to me that you would require a more exact definition than simply "part of a county."
All I can say is, it means part of a county. It will presumably be some identifiable part — barony or townland, as the case may be.
Will the Attorney-General say whether there is intended to be a prohibition against decreasing the total number of circuits by agreement, as provided. The last line but one prevents the possibility of decreasing the total number of Circuits. Is it intended that, no matter what the conditions may be, there shall be no change in that number?
It is not intended that this provision shall be used for that purpose. It is inconceivable that they could be reduced as a matter of fact.
I distinctly welcome this amendment, and also the remark which has just fallen from the Attorney-General, that it is inconceivable that the present number of Circuits could be reduced. I am very glad to hear also that this amendment does not limit the possibility of a future increase in the number of Circuits, which I personally think will have to be made to make the scheme a workable one. As regards the transferring of one County, or part of a County, from one Circuit to another, I notice that the Minister for Home Affairs, the Chief Justice, and the Judges for the time being, of the respective Circuits, are to have the sole say in this matter. I certainly think that they should be consulted, and I think they should have a considerable voice in the question, but I must also give expression to my view that the residents of those Counties, and the people directly concerned with the operation of these courts, might also be consulted in this matter. I think this is a matter of vital importance to the people, say of a County like Louth, which is included in a Circuit extending to the County Wexford, through the counties of Meath, Kildare and Wicklow. It is an important question to the people concerned, as to whether Louth should or could be advantageously transferred to another Circuit. Therefore, if it were at all possible, I would suggest to the Attorney-General that the proposed change, if any, should not be necessarily limited to the consent or to the approval of the people mentioned in this amendment. If it be possible to get the opinion — as I think it might be — of the would-be, future or potential litigants in those various areas directly concerned, I certainly think they should have a voice in the matter. I would, therefore, ask the Attorney-General, if possible, to consider this matter, and if he comes to the same conclusion, perhaps he might be able to extend and widen the amendment.
I do not know how Deputy Redmond proposes exactly that all future litigants' views are to be taken as to alteration of the Circuits. I do not know whether he proposes to send snowball resolutions round to Board of Guardians. Of course, all representations and views locally that may be sent forward will be fully considered, and a change of this kind will hardly be made in face of opinion that should be given weight to. I think the amendment as it stands is a good one and a reasonable amendment.
It may be a perfectly reasonable amendment, but, without being hyper-critical, I might suggest that there is one slight flaw in it. It has been the practice with regard to County Court Judges not to remove the Judge from one area to another without his consent. One can easily see here if a portion of a district were to be removed from a Circuit Judge, he might feel aggrieved, and create considerable difficulty in blocking what, in the public interest, would be a desirable amendment.
The amendment says that "the Minister may, with the consent of the Chief Justice and the Judges of the Circuits involved." That implies, as I take it, the unanímous consent. If one of them be a dissentient then the Minister cannot make this alteration. Yet the alteration may be very necessary in the interests of better judicial administration. Then there is a deadlock, and it will become necessary to introduce a Bill to deal with it. There would have to be a short Act doing this in spite of the dissentients. Why not have a majority vote in the matter, or restrict in some way the vetoing power of a Circuit Judge who might feel himself aggrieved? In other words, we are giving too much blocking power to the sense of grievance of men who might have no other objection but merely that he felt his importance diminished by having the area of his Circuit diminished.
It is essential that the consent of the Judges affected, should there be Judges in occupation of the Circuits at the moment, should be required before their position would be affected in this particular way. Otherwise it could be suggested that things of that kind were done with ulterior motives, or to bring pressure of one kind or another on the Judges. If a more workable arrangement is in view the probability is that the Judges would be only too happy to fall in with it.
Might I ask may a Circuit Judge be changed from one Circuit to another or is this the only method? It ought to follow, as a corollary, from the fact that there is only one Court, and that all these constitute the Court that he could be changed.
Amendment agreed to.
Question: "That Section 38, as amended, stand part of the Bill"— put and agreed to.
I move to report progress.