Under the Standing Orders, the Dáil will go into Committee to consider the Seanad amendments to the Courts of Justice Bill.
DÁIL IN COMMITTEE. - COURTS OF JUSTICE BILL, 1923.—FROM THE SEANAD.
There are 44 amendments on the Paper to this Bill. With the exception of two, and a slight alteration in a third, I am proposing that the Committee agrees with the amendments inserted by the Seanad. It will not take very long to go through them seriatim. I do not know if it is proposed that they should be taken singly or that approval should be given, to those agreed to, as a whole.
I think individually. Perhaps the Attorney-General would indicate those to be dissented from.
Those dissented from are numbers 22 and 25, and subject to amendment No. 27. It is proposed to agree to the rest.
Motion will be made to agree with all the amendments except three. A motion will be made to disagree with two— that is No. 22 and No. 25—and to agree with No. 27 with an amendment. Is that correct?
Yes, sir. The first amendment on the Paper is purely a formal change from the figures 1923 to the figures 1924. The second amendment is in the Definition Section, and the object of it is to enable Commissioners who might be sent out in special circumstances to try criminal matters, also if necessary, to hear special cases which, being only within the High Court jurisdiction, it might be desirable to hear locally with a local jury. The Government agree to that amendment. It does not imply that any such Commissioners will be sent out at any particular time or that the old system of Circuits will at any time be renewed. I move, therefore, that the Committee agrees with amendments No. 1 and No. 2 as follows:—
Section 1. The figures "1923," line 19, deleted and the figures "1924" substituted therefor.
Section 3. Line 35. The words "civil or" inserted after the words "of any."
Question put and agreed to.
SECTION 12.
Amendment 3. Section 12. The figures "70," line 2, deleted and the figures "72" substituted therefor.
Amendment 4. All the words after the word "years" in line 2, deleted.
In connection with these two amendments I might mention relative amendments in other parts of the Bill. The first deals with the age of retirement. When the Bill went up to the Seanad certain retiring ages were fixed with the power to the Executive Council on certain advice to extend those retiring ages. That provision was one which the Government had agreed to rather as a concession, lest hardship might fall upon particular individuals, for it is said that hard cases make bad laws, and some evils of this particular arrangement were stressed. It was decided to accept the Seanad amendment, that no such powers of extension should be given to the Executive Council, and in lieu thereof there is now fixed a retiring age which varies to some extent from the retiring ages that were in the Bill when it went up to the Seanad. Originally the retiring age in this section for Supreme Court Judges was 70, with power to extend the age to 75. Now, there has been substituted a compromise retiring age of 72, with no power of extension, and similar provisions have been made with reference to Circuit and District Court Judges.
I think that originally the optional increase in age was inserted on my amendment, or rather the Attorney-General adopted my amendment. Since then, I have seen there is objection in principle to leaving a judge dependent upon the Executive Council as to whether he will get this extension or not. Personally, I think I should have preferred to have 75 kept as the age throughout and not have it reduced to 72, but if this is a compromise which the Seanad has approved of, I am not going to oppose it now. I think it is better that the judge should be free from any dependence on the Executive, and the extension of the age to 72 will prevent too heavy a burden being placed on the Pensions Fund, which was my object to avoid.
I wonder whether the Attorney-General has taken any actuarial valuations as to the possibility of life in the matter of judges, and if he has worked it out to show what the financial cost of this amendment would be as to the difference between 72 and 75?
I am happy to say that actuarial valuations do not fall within my particular Department. Perhaps the Minister for Finance, if he were here, would be able to enlighten the Deputy.
I gathered from what the Minister for Home Affairs said last week that the actuarial calculation as to the life of a County Court Judge in Cork would show that it was not likely to be a long one if he performed his normal duties. That is the information the Dáil has up to the present.
Question—"That the Committee agrees with Amendments 3 and 4"— put and agreed to.
SECTION 19.
I beg to move agreement with Amendment 5 as follows:—
The following words added at the end of the sub-section (1):—
"An appeal shall lie to the Supreme Court from the exercise by the Chief Justice of the jurisdiction transferred by this section."
This amendment is necessary by reason of the transfer to the Chief Justice of jurisdiction in lunacy which hitherto has been exercised in a particular way under the Royal Sign Manual. In future this will be exercised as a Statutory Jurisdiction under this Act, and it is necessary for the purpose of providing the method of appeal. This amendment provides that there shall be an appeal to the Supreme Courts.
Question put and agreed to.
SECTION 23.
I beg to propose that the Committee agree with the Seanad in the following:—
Immediately before Section 23 a new section inserted as follows:—
The judges to be placed on the rota for the trial of election petitions in Saorstát Eireann in each year under the provisions of the Parliamentary Elections Act, 1868, shall be selected out of the judges of the High Court in such manner as may be provided by any rules of court to be made for that purpose, and in the meantime and subject thereto shall be selected out of the judges of the High Court in like manner as they have heretofore been selected out of the judges of the King's Bench Division of the High Court of Justice in Ireland.
This amendment deals with the subject of election petitions. When the Bill was originally drafted, the matter was not dealt with deliberately, for the reason that the procedure under the old Election Petition Act is of a most complicated nature, and it was then anticipated that it would be possible to pass the Act completing the whole electoral code enacted by the Oireachtas. This subject of election petitions may be dealt with in a separate Bill. It will be necessary, until such Bill is passed, that jurisdiction under the Act of 1868 should be provided for. It is provided that there shall be a rota of judges under the High Court as in that Act.
Question put and agreed to. New section ordered to stand part of the Bill.
I beg to propose that the Committee agree with the Seanad in the following amendment:—
All after the words "Provided always" in line 9 deleted and the following words substituted therefor:—
"That no judge shall sit upon the hearing of an appeal in an action tried before him whether with or without a jury, or upon an appeal from a judgment or order made by him or to which he was a party whether concurring or dissenting."
This, I think, is only a drafting amendment, which makes the original wording clearer, but makes no difference in the provision.
Question put and agreed to.
SECTION 24.
The next amendment from the Seanad is as follows:—
The words "in which the same might have been commenced or to any court that may appear," lines 20-22, deleted and the following words substituted therefor:—"or (where the action might have been commenced in the District Court) the District Court, to be prosecuted before the judge assigned to such circuit or (as the case may require) the justice assigned to such district, as may appear to the High Court."
This amendment is really a drafting amendment, though it does alter the section in one particular. The section, as it stood in the Bill, would not enable the High Court to remit to a District Court. This amendment, while improving the wording, also provides that the High Court may, in appropriate cases within the District Court jurisdiction, remit to the District Court.
Question put and agreed to.
SECTION 35.
The next amendment is:—
After the word "generally," line 54, the following words inserted:—"(including the entering-up of judgment and the granting of summary judgment in appropriate cases)."
This is one of three similar amendments dealing with each of the three courts. It is in substitution for Section 56 which, as it stood, was really not very happily drafted, and instead of Section 56 we are proposing to accept this amendment, having a similar amendment dealing with each of the three courts. The object of it is to enable rules to be made for the entering-up of judgments in default of defence and for summary judgments in all courts equally.
Question put and agreed to.
SECTION 39.
I beg to propose that the Committee agree with the Seanad in the following amendment:—
All from the words "but the Executive" in line 53 to the end of the section deleted.
This amendment is a corresponding amendment as regards the age of Circuit Court Judges. It deletes the clause which gave the Executive Council power to extend the age, and it leaves the age-limit at seventy.
I would like to have from the Attorney-General some explanation as to why the age of retirement of Circuit Court Judges should be earlier than the age of retirement of High Court Judges. I think it was said that certain judges would be perambulating, and therefore more would be taken out of them, but I do not think that there is very much in that. After all, they were not judges from childhood in either case, and the extra wear and tear upon a judge on circuit could not naturally be held to shorten the judge's life by three years, as compared with a High Court Judge. If this proviso is to be deleted, which I am inclined to agree with, I think it is better that the age should be fixed, but I think that the age should not be lower than the age of the High Court Judges. I would ask the Attorney-General if he would give some explanation or justification for making the alteration removing the discretion from the Executive, but leaving the maximum age for retirement of Circuit Court Judges at seventy.
The Government do not propose to agree to alter that particular age limit nor the age limit for the perambulating District Court Judges. There are two reasons. One is, that it is believed that men who are moving about through the country should have a somewhat earlier age limit for retirement, as they cannot continue to render efficient service beyond a certain age. They are likely to become, perhaps, crabbed by the conditions of life in the country, and by passing from hotel to hotel, and the manner of disposing of their business would be affected by conditions of that kind. In fixing the age limit for High Court Judges one ought to remember that they are likely to be appointed at a later age, and that the appointments in the other courts are more likely to be made at an earlier age, and the judges will consequently qualify for full pension at an earlier date. We cannot agree to alter the age of 70 unless there is power of extension.
I am rather surprised at the statement of the Attorney-General. In Committee, the Attorney-General admitted that there were cases in which the Circuit Judge over 70 could render valuable service. He accepted an amendment making it possible to extend the age to 75, but now he comes and takes away what he gave in Committee. I am going to oppose that. Let us take a case in point. The Recorder of Dublin is in the position of a County Court Judge. The Recorder of Dublin, as the President told us before the Christmas Recess, has been doing most valuable work, and has been a credit to the Bench. If this Bill, however, had been law during the last year, with this amendment included in it, the Recorder would have been compulsorily retired a year ago, and it would have been impossible for him to do this valuable work. It is impossible to lay down the age of 70 for compulsory retirement without hitting men doing valuable service, and pensioning them off while they are still in a position to do valuable work. I prefer the original arrangement, to make it possible to extend a valuable man's tenure to 75 years of age, and so I shall oppose the adoption of this amendment.
I am rather surprised at Deputy Major Bryan Cooper's resentment at what I have said in this matter. When the Bill was before the Dáil formerly we agreed, in consideration of the fact that there might be exceptional cases, to take power in favour of these exceptional cases, to extend their tenure, but no one ever undertook—I certainly never undertook—that there would be an extension. This is where the difficulty comes in if one speaks of particular individuals, that because there might be particular individuals, we are to inflict on the whole country a number of persons who might not be efficient, competent, or suitable to continue in office.
With regard to particular individuals, I do not like to make an estimate of people's age, but it will be found that there is a new proposal dealing with the case of persons who have actually reached the retiring age named in the Bill, and enabling the Government to appoint such persons, and giving them an automatic extension of three years. That would meet most of the individual cases that are in the minds of Deputies. But the general principle is that some power of extension is given in some particular cases which the Seanad is unlikely to agree to, or that the age limit capable of being applied all round with advantage has to be adopted.
I do not think the Attorney-General can have read the section closely as it passed this House.
Is it necessary to be rude?
As it reads, the age of retirement of a Circuit Judge shall be 70 years, and the Executive Council may, after consultation with the Chief Justice and Attorney-General, extend that to 75 years. The word used is "may" and, therefore, there is no possibility of any undesirable people in the shape of County Court Judges, being inflicted upon the community without the consent of the Executive Council. Hence, the opening remarks of the Attorney-General do not apply. This section, as it stands in the Bill as it left this House, is merely an option given to the Executive Council that they may extend the age from 70 to 75 years, and in no sense is it in any way compulsory or mandatory that the age shall be 75. I do not really see why in this matter, as in so many others, the Executive Council could not be trusted to make a wise and discreet choice in the personnel of the new judiciary that they may appoint in regard to retaining them up to the age of 75. Therefore, I cannot see how the Attorney-General has made any further case to-day than he endeavoured to make in a previous discussion in this House as to necessarily limiting the age of retirement to 70 years.
The Attorney-General has referred me to an amendment which, I presume, is Amendment 43. Why should there not, in the future, be some desirable person that they may wish to extend the age of? This is really a vote of censure on the generation to which the Attorney-General and I belong. It is assuming that those appointed in the past are so virile, so competent and so wise, that they are good for work three years longer than anyone who may be appointed now. That does not meet my case in the least, and I continue my objection.
Deputy Major Bryan Cooper has never followed the course of a County Court Judge at Quarter Sessions. If he had pursued a judge from town to town, he would have felt the years mounting up against himself, to say nothing of the judge, who would have a considerable lead. Those judges will have constant travelling in the country and will have to put up with considerable inconvenience and a greater strain than men who were formerly nourished to a hearty old age by the Liffey. Their chance of being fit for ardous work beyond the age of 70 is not considered sufficient to justify the Government in adopting a higher fixed age limit. The Government was prepared here to accept a power enabling the Executive Council, at the time, to extend that age limit, but once that power was attacked in the manner in which it was attacked the Government would not, for a moment, stand over, or ask for it. The position they take up now is to say that the conferring of such power of extension upon the Executive might affect the administration of justice, and, accordingly, the Executive Council does not ask the House to confer that power.
I regret I am not in agreement with my own benches here in the matter of the age limit. The view I take is that a man having done strenuous service and having arrived at the age of 70 has completed his cycle, and ought to be in a position to retire, and spend the rest of his time in good works.
And qualify for the old age pension.
Yes. I dislike the idea of any option in the matter being exercised. Rather I am in favour of a definite line, by which the age of 70 will be the time when a man has completed his service. Looking upon it from the point of view of the good of the general community, we all know of instances where men will never admit they are getting old and carry on in their offices long after their efficiency has come to an end. Looking upon it from the broad national point of view, I do not think it is good that those offices should be occupied indefinitely to the detriment of younger men. I think the age limit is necessary, even though the man who has been retired is in full use of his powers. It may be so in one case; it will not be so in all cases. In the one case where a man is in that happy position, to extend the period might be wise for him, but would be very bad as a general practice. After all you cannot discriminate between individuals and say one man must retire at 70, inferring that his capabilities have depreciated, and that another man should continue beyond the period because he is virile. I think it is safer to limit the age to a fair age, which is the age of 70.
My difficulty in this matter is that I cannot reconcile the two ages, notwithstanding the case made by the Attorney-General regarding wear and tear of the County Court Judges, as compared with the High Court Judges, and bearing in mind that the High Court Judges very often had plenty of wear and tear before they became judges. I cannot reconcile the difference between these two ages, and I am surprised that Deputy Hewat allowed the amendment to Section 12 to pass. I think, with him, that a fixed age is best.
If I had any power I might have objected to it, too.
I think that possibly if Deputy Hewat had used his eloquence he might have persuaded the majority of the Dáil to agree with him. I think that if extension of the age is justifiable in the case of the High Court Judges, it is equally justifiable in the case of the County Court Judges.
Amendment put.
The Committee divided: Tá, 60; Níl, 3.
Tá.
- Pádraig F. Baxter.
- Earnán de Blaghd.
- Séamus Breathnach.
- Seán Buitléir.
- Seoirse de Bhulbh.
- Próinsias Bulfin.
- John J. Cole.
- Sir James Craig.
- Louis J. D'Alton.
- Máighréad Ní Choileáin Bean Uí
- Dhrisceóil.
- Patrick J. Egan.
- Darrell Figgis.
- Desmond Fitzgerald.
- John Good.
- William Hewat.
- Connor Hogan.
- Tomás Mac Artúir.
- Seosamh Mac Bhrighde.
- Domhnall Mac Cárthaigh.
- Liam T. Mac Cosgair.
- Séamus Mac Cosgair.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Pádraig Mac Fhlannchadha.
- Risteárd Mac Liam.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Liam Mag Aonghusa.
- Patrick McKenna.
- Patrick J. Mulvany.
- James Sproule Myles.
- Martin M. Nally.
- Tomás de Nógla.
- Peadar O hAodha.
- Ailfrid O Broin.
- Criostóir O Broin.
- Seán O Bruadair.
- Próinsias O Cathail.
- Aodh O Cinnéidighe.
- Partholán O Conchubhair.
- Aodh O Cúlacháin.
- Séamus N. O Dóláin.
- Eamon O Dubhghaill.
- Peadar S. O Dubhghaill.
- Pádraig O Dubhthaigh.
- Eamon S. O Dúgáin.
- Seán O Duinnín.
- Mícheál R. O hIfearnáin.
- Séamus O Leadáin.
- Thomas O'Mahony.
- Pádraic O Máille.
- Domhnall O Mocháin.
- Tadhg P. O Murchadha.
- Séamus O Murchadha.
- Pádraig O hOgáin (An Clár).
- Patrick K. Hogan (Luimneach).
- Seán M. O Súilleabháin.
- Caoimhghín O hUigín.
- Seán Príomhdhail.
- Liam Thrift.
Níl.
- John Conlan.
- Bryan R. Cooper.
- William A. Redmond.
Motion declared carried.
SECTION 43.
The next amendment states:—
Immediately before Section 43, a new section inserted as follows:—
So far as may be practicable, having regard to all relevant circumstances, the Circuit Judge assigned to any Circuit which includes a district where the Irish language is in general use shall possess such a knowledge of the Irish language as would enable him to dispense with the assistance of an interpreter when evidence is given in that language.
I move that the Committee agree with the Seanad in this amendment.
Question put and agreed to.
SECTION 44.
The words "In case," line 36, deleted and the following words substituted therefor:—
"Whenever within three years after the commencement of this Part of this Act."
The following words added at the end of the section:—
"Provided also that no temporary Assistant Circuit Judge appointed under this section shall continue to hold office after the expiration of three years from the commencement of this Part of this Act."
These two are parts of the same amendment. They arise on the section which enables appointments to be made of temporary Assistant Circuit Judges in case accumulation of business might require that course to be taken. It was explained here originally that, first of all, there is business in relation to the Damage to Property Compensation Act which, for the time being, is causing a heavy pressure of business, and, second, the fact that one is not quite sure yet how far the number of judges provided for will be exactly equal to the business.
One of the amendments proposes to limit that power to a period of three years. The first limits the power of appointments to three years after the commencement of that part of the Act. The second amendment provides that no such temporarily appointed assistant judge shall continue to hold office after the expiration of three years. I move that that be agreed to.
Question put and agreed to.
took the chair.
SECTION 46.
Amendment to Section 46.—"The following words added at the end of the section:—`and an appeal shall lie under Section 59 of this Act from the exercise of the discretion of the Circuit Judge in making or refusing to make such an order.' "
This amendment adds a clause at the end of Section 46. The proviso at the end of Section 46 enabled a Circuit Judge, of his own motion, to change the venue for the trial of an action, and lest that might be exercised capriciously, the judge having power to do it of his own motion, it is provided in this amendment that an appeal shall lie from the exercise of that discretion. I propose that that be accepted.
Question put and agreed to.
SECTION 50.
"Immediately after clause (iv) a new clause (v) inserted as follows:— `(v) If the plaintiff so elects, in any action founded on contract, whether the claim be to enforce, rescind, dissolve or annul the contract, or for damages or other relief for the breach thereof, by the judge for the time being assigned to the Circuit within which the contract was made.' "
The origin of this amendment is the contention that was put forward that the defendant's venue should be the venue for the trial of actions, a principle that we could not accept. On consideration, it was seen that there had been under the existing procedure a jurisdiction given, for instance, in relation to cases as between the jurisdiction in Ireland and the jurisdiction in England under the former regime in matters of contract that was determined by the place where the contract was made. It occurred to us that we might accept the proposal that the place where the contract was made was, if the plaintiff so chose, a venue which could not be objected to on any substantial grounds. Otherwise, there is no alteration.
Question put and agreed to.
I would like to ask the Attorney-General where would it be said the contract was made in the case of a traveller going from Dublin to Ballina, pressing upon a shopkeeper the desirability that he should purchase certain goods, getting orders for those goods, subject to approval, when he got back to his base, that approval being in the form of an acknowledgment or confirmation of the order. Would it be said that the contract in such a case was made in Dublin? I rather suggest that it would, and the result of this amendment would be that all contracts of that kind would be made in Dublin, and debtors would be obliged to come to Dublin to defend any action. If I am wrong in my assumption, my objection to this amendment will be modified. But as I think it is intended to give exceptional powers to wholesale houses, to protect the big man against the small man, and to impose obligations upon the small man to come to Dublin to defend actions, I will oppose the amendment and ask the Dáil to support me.
Before dealing with the hypothetical case put by the Deputy, it is important to remember one matter in relation to this amendment. This provision only applies to Circuit Courts. We were urged but did not see our way to accept a similar provision for the District Courts. Consequently, the case the Deputy has in mind of small people with small contracts and small debts, does not fall within this provision. It deals only with the larger contracts which are within the jurisdiction of the Circuit Courts. That is the first point. Secondly, it should be pointed out that the powers of changing the venue which existed both in the Circuit Court and the High Court remain. There must be rules to cover these applications for change of venue, and if a case can be made the venue can be changed and the case sent to another circuit— the circuit of the defendant, for instance. I rather hesitate to interpret any particular instance because this question of where the contract is made is one of argument. The broad principle is that it is made where it is accepted. So that if the contract is accepted in Dublin the contract will be made in Dublin. As I say, however, this only relates to the larger cases within the Circuit Court jurisdiction and not to the small cases within the District Court jurisdiction.
I can quite see that if the evil is not quite as grave as I thought, nevertheless, it is there. It simply means that within a given area smaller than the country as a whole— within the circuit—the firm which gives the credit which seeks the order and persuades the purchaser is to have the advantage. I submit that when a person goes out to secure orders he should be obliged to take some of the risks and not to impose upon the buyer the responsibility of having to follow the seller to the court which the seller chooses. If the seller goes to a place and persuades a man to purchase certain goods he has a right to go to that place to secure payment for those goods. Whether it is a large area or a small area I am not prepared to agree to this proposition, and I ask the Dáil to refuse to accept the amendment.
In the hypothetical case now put by the Deputy, that is to say, of a traveller going and offering goods to a local trader, and the trader then and there accepting the offer, of course that contract will be made locally.
Yes, we know how it is done. We know that printed at the bottom of the order form are the words "subject to confirmation by headquarters." That is easily done. Headquarters are up to all these little tricks and will certainly protect themselves, so that in case of need they will be able to compel the defendant to go to the court chosen by the head office of the firm in question.
I do not want to intervene too often, but in the cases of larger dealings, I suggest that the local trader who is able to enter into these large contracts is able to stipulate to a large extent his own terms. He may refuse to accept the condition that the contract is made in Dublin. It is quite a common thing to have provisions in contracts determining jurisdiction.
Similarly, I suppose it would be the case on the other side. The seller could do the same.
When the Attorney-General speaks of these traders engaging in large contracts, does he know that £26 would be considered a large contract? In the District Court the limit of jurisdiction is £25. A £26 case would go to the Circuit Court. You would not by any stretch of the imagination say that a trader would be in a large way who gave an order for £26. It is only right to show that there is a case of hardship in the smaller cases.
Deputy Wilson has made the point I was going to make. So far as a trader is concerned, I admit that the little notice at the bottom of the order may technically be an acceptance on his part of another jurisdiction. Would it not be better if it was the duty of a wholesale firm here in Dublin to state that, rather than get it in by a side wind against traders, who will not know that the little note that Deputy Johnson suggests might be put in, binds them to have the case tried in Dublin? Imagine the hardship it would be to a large number of small traders in the country to have to come to Dublin to defend these cases, and consider the amount of work it would throw on the Dublin District Court.
These are not District Court cases at all; they are Circuit Court Cases.
From £25 up.
They are Circuit Court cases from £25 to £300. There still remains the power to change the venue in any substantial case. In a large number of these cases there is no contest. It is entirely a matter of time. People want time to pay, and put in a defence simply to gain time. The majority of contract cases are not fought at all. In a comparatively small number, which are substantially contested, it will always be open to the party to apply to the High Court to change the venue to his venue, as being the more convenient and more suitable in the circumstances.
But that means more cost.
That is the objection. He has to apply to the High Court.
Question—"That the Committee agree with the Seanad in its amendment"—put.
The Committee divided: Tá, 28; Níl, 17.
Tá.
- Earnán de Blaghd.
- Seoirse de Bhulbh.
- Próinsias Bulfin.
- Louis J. D'Alton.
- Máighréad Ní Choileáin Bean Uí Dhrisceóil.
- Patrick J. Egan.
- Osmond Grattan Esmonde.
- Desmond Fitzgerald.
- Tomás Mac Artúir.
- Seosamh Mac a' Bhrighde.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Liam Mag Aonghusa.
- Martin M. Nally.
- Peadar O hAodha.
- Mícheál O hAonghusa.
- Criostóir O Broin.
- Seán O Bruadair.
- Aodh Ua Cinnéidigh. Partholán O Conchubhair.
- Peadar S. O Dubhghaill.
- Pádraig S. O Dubhthaigh.
- Eamon S. O Dúgáin.
- Thomas O'Mahony.
- Séamus O Murchadha.
- Seán M. O Suilleabháin.
- Seán Príomhdhail.
- Séamus N. O Dóláin.
Níl.
- Pádraig F. Baxter.
- Seán Buitléir.
- John Conlan.
- Connor Hogan.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Risteárd Mac Liam.
- Patrick J. Mulvany.
- Aodh O Cúlacháin.
- Liam O Dáimhín.
- Eamon O Dubhghaill.
- Seán O Duinnín.
- Donchadh S. O Guaire.
- Mícheál R. O hIfearnáin.
- Domhnall O Mocháin.
- Tadhg O Murchadha.
- Patrick K. Hogan (Luimneach).
Motion declared carried.
Is it not objectionable for a Deputy to leave the Chamber before the result of the division is announced?
No Deputy should leave until after the result of the division is announced.
Mr. C. BYRNE
I apologise for doing so.
SECTION 56.
Immediately before Section 56 a new section inserted as follows:—
A Circuit Judge shall have the same powers for procuring the attendance of witnesses in the Circuit Courts as a judge of the High Court of Justice in Ireland formerly exercised for procuring the attendance of witnesses in the High Court.
There was a doubt in regard to this matter, and this amendment removes the doubt. I propose that it be agreed to.
Question put and agreed to.
The next amendment from the Seanad is to have Section 56 deleted. That section, as it stood, was not satisfactory in form and, instead of it, we have now introduced under the new provisions of each of the three courts provisions equivalent to those mentioned in Section 56.
Question—"That the Committee agree with the Seanad in the amendment"—put and agreed to.
SECTION 58.
The section deleted and the following new section substituted therefor:—
The rules to be made under this Part of this Act shall provide for the service of all originating or other documents or notices both inside and outside the circuit of the judge before whom the matter is intended to be brought or is pending. Any judgment or order of the Circuit Court may be enforced in any part of Saorstát Eireann in any of the modes in which a like judgment or order of the High Court might be enforced.
The purpose of this amendment is to ensure that the jurisdiction to issue originating documents, processes, writs, and so on may not be limited by the Circuit. If one may borrow a phrase from the Minister for Home Affairs, the object of the amendment is that the writ of the Circuit Court will not run spanceled to the geographical limit.
Question—"That the Committee agrees with the Seanad in the amendment"—put and agreed to.
SECTION 59.
The following words added at the end of the section:—
"The appeal under this section shall be on law and fact or upon either, save that where the appeal from the exercise by the County Court of any particular statutory jurisdiction transferred by this Act to the Circuit Court is expressly or by implication limited by statute to an appeal on questions of law, the appeal from the exercise of that jurisdiction by the Circuit Court shall be similarly limited."
This amendment is for the purpose of clearing up any doubts that may arise, or that it was suggested existed, in the section as it stands in the Bill. It provides that the appeal may be on law and on fact, or on either, save where only an appeal is limited on matters of law.
Question—"That the Committee agrees with the Seanad in the amendment"—put and agreed to.
SECTION 63.
After the word "Ireland," line 48, the following words inserted:—
"of whom one shall be a solicitor having his office and carrying on the practice of his profession outside the City and County of Dublin."
The object of this amendment, which was introduced in the Seanad on behalf of the Government, is to ensure that in drawing up the rules for the Circuit Court there shall always be, as a member of the Rule-making Authority, at least one solicitor who is a country practitioner and familiar with country practice. It will prevent representatives of the solicitors being selected from men practising in or around Dublin.
I am in entire agreement with the purport of this amendment. It is a rather surprising reversal of all that the Government told us when the Bill was going through the Dáil. Then it was thought most important to have all the members of the Rule-making Authority in or near Dublin, and it was stated that it would be impossible to bring up Circuit Court Judges and District Justices living in distant districts to officiate on the Rule-making Authority. That is what I was standing out for. Of course I do not object to the amendment.
This amendment does not deal with the District Justices, but with solicitors' representatives on the Rule-making Authority.
The Attorney-General has no objection to the solicitors, but he only objects to the judges and justices being brought to Dublin.
They would only come from Bray or Navan.
I do not think I have objected. On the contrary, the Circuit Judges must necessarily come from their localities.
Question—"That the Committee agrees with the Seanad in the amendment"—put and agreed to.
SECTION 64.
Immediately after the word "costs," line 6, and within the bracket the following words inserted:—
"and also the entering-up of judgment and granting of summary judgment in appropriate cases."
This is one of the three amendments consequent on the deletion of Section 56.
Question—"That the Committee agrees with the Seanad in the amendment"—put and agreed to.
SECTION 66.
The word "Justices" deleted and the word "Judges" substituted therefor. The words "District Justice" and "District Justices" deleted wherever they occur and the words "District Judge" and "District Judges" substituted therefor.
This is one of the two amendments that it is proposed we should not agree to. The amendment, as it stands, is quite unworkable, because it could have most extraordinary effects through the Bill if it were accepted. However, I would like to discuss this amendment again in connection with amendment 25. I suggest that with the permission of the Dáil consideration of it would be postponed.
Consideration postponed accordingly.
SECTION 69.
Immediately before Section 69 a new section inserted as follows:—
So far as may be practicable having regard to all relevant circumstances the Justice of the District Court assigned to a District which includes an area where the Irish language is in general use shall possess such a knowledge of the Irish language as would enable him to dispense with the assistance of an interpreter when evidence is given in that language.
This amendment provides that, so far as possible, the Justice of any District Court assigned to a district which includes an area where Irish is spoken, shall possess a knowledge of the language sufficient to enable him to dispense with an interpreter.
Question—"That the Committee agrees with the Seanad in the amendment"—put and agreed to.
The Section (69) deleted and the following new section substituted therefor:—
The age of retirement of a Justice of the District Court for the time being assigned to the Police District of Dublin Metropolis or to a district comprising or including the City of Cork shall be 70 years, and the age of retirement of every other Justice of the District Court shall be 65 years. Provided that in the case of a Justice of the District Court who shall have been a District Justice under the District Justices (Temporary Provisions) Act, 1923, and at the date of his appointment to the last mentioned office was over 55 years of age and under 60 years of age, the Chief Justice may, if he thinks fit, extend the age of retirement of such justice to such date as will enable him to complete a period of service sufficient to qualify him for a pension.
This amendment deals with the age of retirement of District Justices. As the provision stood in the Bill, the age was limited to 65 in all cases, with power to the Executive Council to extend the age to 70 in special circumstances. This amendment of the Seanad, which the Government proposes should be accepted, provides that in the case of the District Justices in Dublin City and in Cork, who will not have the amount of perambulation that the other District Justices would have, the age limit be 70, and the ages of retirement of every other Justice of the District Courts be fixed at the limit of 65. In view of the same consideration that moved the Government not to agree to ask for the power of extension in these cases, they suggest that the Dáil should agree with the deletion of that power of extension. There is a proviso here dealing with certain special cases. When the temporary District Justices were appointed there were a few of them who were of an age which would make it practically impossible for them under this provision to qualify for a pension. These men took up the position at a time of danger, and at a time when their willingness to assist certainly deserved special consideration. The proviso in the new sub-section enables the age in their cases to be extended by the Chief Justice if he thinks fit, without the intervention of the Executive, to such an age as would qualify the District Justice to complete a period of service sufficient to qualify him for a pension. It must be remembered in the case of District Justices that their qualifications require a shorter period of practice in their respective professions, and that they will be appointed at a considerably earlier age than the judges of the other courts. Consequently, they will normally be qualified for a full pension at a very much earlier age.
I would prefer that this amendment would be amended so that the age should be normally 70, but that if necessary there should be an option to the District Justice to retire at 65 or earlier. Again, I am not satisfied that perambulation is so wearing and tearing as the Attorney-General would suggest. The Dáil has agreed that a little variation adds occasionally to one's years. This is a matter of fixing the age, but leaving two or three District Justices in the Police District of the Dublin Metropolis and in the City of Cork the right of not retiring until 70, but that in all other cases 65 should be the age.
Again, I am not satisfied at all as to the reason for the discrimination. I suppose we have not very much option. We have either to agree or disagree with this amendment, unless the Attorney-General is able to put forward an alternative amendment and carry it, as he can, raising the age to 70 in all cases. I would much prefer that, in view of the proposition that the other judges shall retire at 70 in one case and 72 in the other. I think there is a provision made that where a judge or justice is infirm and unable to carry on his work, he will be allowed to retire. We are now assuming that a man is unable to do his work at 65 years of age, but that we may in some cases allow the Chief Justice to extend that age. As for the Attorney-General, he is not willing to say that he believes the District Justices are quite capable of carrying on this work as well as Circuit Judges, and for as long a time. I think it was argued that they may have a more wearying occupation. But they are not quite as liable to be worn and wearied with abstruse legal problems as the higher judges. Some people tell us that it is this wearying, mental work that brings age and decrepitude upon men. If that be true, we should not cut down the age to 65 in the case of District Judges.
resumed the Chair.
It should be remembered in relation to the District Judges that their sitting in a particular place rarely lasts more than a single day. They go to out-of-the-way places in a county; they travel a good deal by car, and there is considerable wear and tear involved in the life of a District Justice. The Circuit Court Judge, on the other hand, will sit in the principal town. That office will, while it involves moving about, at any rate provide a longer period of halt in that particular district. The Circuit Judge will probably sit for a week or a fortnight in a certain place, but the District Court involves constant moving on the part of the judge. He rarely sits continuously for two days in any particular place. The experience, I understand, is that the age-limit of 65 is necessary and desirable in the case of persons who have to carry on their work in such circumstances. I would not propose an amendment or alternative, because this new section, as it stands, is a proposal of the Government which was accepted in the Seanad, after various controversies had arisen on this matter. The Government consequently proposes that this amendment be agreed to.
I do not know what the Attorney-General's personal tastes are, but I personally would find it less weary spending my time in my own house than spending a week or a fortnight in a country hotel, as the Circuit Judge will often have to do. I cannot remember what was the retiring age of the old Resident Magistrates, but I think it was 70, and they were appointed, and worked under conditions which would produce far more wear and tear than those prevailing at present. When they were appointed, there were no motor-cars available, as there are now, and they had to travel long distances by train, and on outside cars. I well remember some of them hail and hearty at 70, and not at all anxious to retire. The District Justice, with the allowances which he has for expenses, will be able to provide himself with a motor-car, and he will have far less wear and tear than the old Resident Magistrate. That being so, and in view of the urgent necessity of relieving the Pension Vote, which is a non-productive Vote, and of giving the Minister for Finance the assistance he desires, I cannot understand what can be said in favour of this compulsory retirement at the age of 65 in the case of men who are healthy and capable of discharging their duties for a much longer period. It is not a case of keeping reluctant men on after the age of 65. It is merely the case of not keeping men who feel fit and well for work and anxious to continue their work. If it were possible to move an amendment to this amendment I certainly would do so, but I do not merely want to divide the House again.
I would like to know on what information the Attorney-General is acting. Has he himself a doctor's qualification? We do not know. I know his advice is altogether different from that of medical officers whose advice is to keep out in the open country. The Attorney-General's doctrine is a new doctrine to me and something I never heard before. I would like to know the Attorney-General's reason for advancing the theory he has advanced that these men cannot work in the country to an age equal to that which men can who work in the towns. I think it is altogether in favour of the District Justice in the country that he should have the option of operating there. If any distinction is made at all, it should be made in favour of the District Justice in the country, and I would make his years of service up to 75. I cannot understand how the Attorney-General can explain the advice he has got on this matter or how he will explain it, and I cannot understand how any doctor in any country could give such advice.
I do not know whether I am expected to answer the inquiries as to all my sources of information or to state from what quarters I have had expressions of opinion. The Government, having taken the best advice it could get, has formed the opinion that the age of 65 should be recommended as the age of retirement for District Justices. I understand that in the course of inquiries made, for instance, amongst civil service people, having knowledge of outdoor workers and indoor workers, the opinion was strongly expressed that the age of 65 is found to be the generally necessary retiring age for civil servants who have pursued an occupation of this kind, involving considerable amount of travelling from place to place in all weathers. I am not bound to express any expert opinion upon a matter of medical science. What I say is that the Government, having taken the best advice it could get, recommends to the House to agree that the age of 65 is a suitable age limit for District Justices. These matters must always be matters of opinion. Opinion may be informed, or it may be ignorant opinion, but the Government is trying to obtain the best opinion it could, and this is the submission which it makes in the light of that opinion.
I cannot see why this discrimination in ages should be brought into an Act of Parliament— that Supreme Court Judges should retire at 72, Circuit Court Judges at 70, and District Court Judges at 65. To anyone who looks into the matter the retirement of such a large body of justices as will be required in the Saorstát—26 or 30—at the age of 65 is going to place an undue weight upon the finances of this country. Having regard to the fact that we should do everything to relieve taxation, I do not see that any case is made out at all that these men should retire at 65. The Attorney-General says that the Government has got the best advice possible. It is reasonable to expect that they have taken some advice, but whether it is the best possible advice is another thing. The old R.M.'s were not retired at 70. Did they show inability at 70? Their ability was exercised in accordance with their instructions, and they carried them out to the letter. It was not a question of want of ability or knowledge. I think the Attorney-General ought to amend the Seanad's amendment in this case and have the figure of 70 inserted as the retiring age of those justices, whether in Dublin, Cork, or elsewhere. To my mind, the matter is put the wrong way about. I believe the District Justice, living in the conditions of a city like Dublin, could not be expected to live nearly as long as a Justice living in the garden of Ireland, touring the country and enjoying the fresh air.
Following out my recent exposition on the question of County Court Judges, I would like to take advantage of this opportunity to say that the speakers on this question have drawn attention to the difference in the ages of retirement for the judges of the different courts. Essentially I think there is a very great difference in the occupation of the three different sets of judges. In the first case, you have the High Court Judge, whose occupation is distinctly studious and who can carry on efficiently for a longer period than can those engaged in the more active occupation of the County Courts, the Circuit Courts and, incidentally, the District Courts. Now, coming down to the District Courts of Justice, I visualise, rightly or wrongly, a state of affairs as regards those District Courts which does not apply to the High Courts or the County Courts at all. As a matter of fact, in connection with the District Justices I would rather avoid calling them judges. They will preside over courts which function on lines rather like those of the head of a family in correcting children and in intimate association with the life of the people of the district, acting as a kind of lawgivers, if you like, and giving fatherly advice such as Deputy Wilson will well understand. Now in the operation of his duties, which I think will be rather strenuous, I certainly think that the individual would not be as active at the age of 70 as he ought to be. I think it is quite right that there should be a difference of ages marked as between the different courts. What we want in the District Courts is comparatively young, extremely active and live persons who will move about amongst the people, with intimate knowledge of the surroundings and the people themselves. I think in the discharge of such duties, when he has reached the age of 65 he might well transfer his activities to his successors to carry out the duties in connection with such courts.
I do not think we ought to let the gospel that has been preached here pass without some challenge. First of all, the Attorney-General referred to the fact that the Government had taken the best advice on this matter. I admit that it may have taken advice, but in my opinion it did not take the best advice. This matter has been argued as if we were dealing with machines in a factory. The argument seems to be that these human machines used in the courts will get run down and will become useless in the case of the High Court Judges at 72 or the Circuit Judges at 70 and of the District Justices at 65. That argument would be all very well if we were dealing with machines, but we are not. I heard Deputy Hewat support that contention. I wonder what would some members of the Dáil, or some men outside who have ambitions of becoming members later on, think if they were told that at the age of 65 they would be worn out and would not be fit to give useful service here or anywhere else. The arguments that have been used from the Government side on this matter have been very foolish in my opinion. I know men myself, 65 years of age, who are as capable and as active as men a good deal younger. A man's capability does not depend on circumstances. It depends rather on the individual's state of health and his constitution, and I suggest you cannot make any hard and fast rule in this connection at all. The arguments that are being put forward are simply ridiculous for the reason that at 70 years of age you may get a man who would be quite active and capable, while at 50 years you might get a man who would not be capable of much service at that age. I think the suggestion that one man is capable at 72, another at 70 and another at 65 is too ridiculous for anything.
I think a good many of the circumstances of these cases have not been referred to. The facts are, that the High Court Judges will be in a place where lack of accommodation will not affect them. To that extent, we think that the ordinary comforts of life contribute somewhat to longevity. If abused, of course, I will admit that it may be in the other direction, but I hesitate to think that a Judge of the High Court would abuse these things. Now, with regard to the District Justices, in Dublin or in Cork they are in much the same position as the High Court Judges, but in the country they will have either to motor or to drive on a car from town to town, and to spend a night, or many nights perhaps, out of their own houses.
Gallivanting about the country.
I would not say that, but I do say that we have heard of persons who, having to sleep in strange beds, cannot sleep in the late or early hours of the morning. There is a strain on the physique there which must be admitted. Therefore the District Justices will not have the ordinary comforts of domesticity, if I may say so, and some allowance must be made for that. What is the position of a man who has to drive four or five miles, say, in a snow storm, a shower of sleet, or on a cold day such as we are having now, and of that of the man who walks, say, from Fitzwilliam Square down to the Castle and takes his seat on the Bench, where he remains at work until 4 o'clock in the evening, when he drives home in a carriage or a motor-car. Take these two cases. Surely the circumstances are against the District Justice in such a case. One, I think, will readily admit that there are occupations which call for a big strain on the physique. In estimating the longevity of the judges, their usefulness and capacity, we have taken into consideration that these District Justices, going about the country from town to town, having perhaps to sleep away from home two or three nights a week, there is unquestionably something asked from their physique not asked for from a High Court Judge, and to that extent there is a big justification for a difference in the age. Now we have had experience of men living beyond 70 years of age and occupying very high places in the public confidence even though far beyond these years. There were other cases in which men did not warrant public confidence after a certain age. All that has to be taken into account. What we have endeavoured to do here is to restore public confidence in the Judiciary even at a little higher cost to the State. The amount is not much more in the long run than if we were to extend the age from 65 to 70.
Take the case, let us say, of a District Justice of 70 years of age who has to travel 10 miles on a bitterly cold day. One would naturally expect that at 70 years of age a Justice would not give that consideration to a case that you could expect from a younger man, and in these circumstances we thought that, even if it were a little more costly on the State, there would be very good value got for the extra cost involved by fixing the age at 65.
The President's comparison between the High Court Judge and the District Justice is extremely adroit, but if he were here earlier in the discussion he would have heard a comparison between the Circuit Judges and the District Justices, and would have heard that the Circuit Judges do their work under much greater discomfort than do the District Justices. Outside, perhaps, of Tirconaill and Kerry, I do not think there is any district in Ireland where a District Justice has to sleep away from home two or three nights a week. I have not heard of any such cases. It is certainly not the case in Sligo. The District Justice is allowed £300 a year travelling expenses, out of which he can provide himself with a motor-car and reside in his own home all the time. The longest journey he would have to go would be about 40 miles. That is about the distance from Sligo to Ballina, and the Justice with a motor-car could easily do that in a day. In the case of a Circuit Judge, his work is carried out under conditions of much greater discomfort. He has to stay in a little country hotel, and yet he is not allowed to retire until he reaches the age of 70 whereas the retiring age for a District Justice is 65. I cannot see any justification for that distinction. As regards the President's other point, dealing with the cold and the fatigue that the District Justice has to endure in the performance of his duties, that, I suggest, has not been found to be so in the past. I have already referred to the old Resident Magistrates, and I will not refer to them again except to say that they did good work up to and after 70 years of age. I know that my grandfather at the age of 72 used to go from near Sligo to Ballina by long-car and sit on the Diocesan Council—upon which I believe he did good work—and go back by long-car again at night, a distance of 40 miles each way, but it did not incapacitate him.
He had not a motor car.
It was before the days of motor cars.
Or steam rolled roads.
They were the old District Council roads. I cannot see the reason for the differentiation between Circuit Court and District Court Judges. They both function under the same conditions which are, if anything, more favourable for the Circuit Judges.
Deputy Cooper has argued from the particular to the general. Undoubtedly it is a matter of some notoriety that men of 70 and over do perform great feats, but these are rather exceptional. When taking into consideration 25 or 30 persons, I do not think we would be entitled to assume that at 70 they would be capable of doing what certain particular persons could do. I say that the case of District Justices, who are employed for 5 days a week and who have long journeys to travel, deserves some consideration. These journeys may be 10, 15 or 20 miles.
In a good car, on a steam-rolled road, they would do it for pleasure.
Everybody cannot afford a car, and some people who have cars have not good ones. They may break down on the country roads 10 miles from where they are supposed to report at a particular time. That is rather serious.
The President's case grows stronger at every turn.
If that is so, I need not pursue the matter further.
Question put and agreed to.
SECTION 71.
The next amendment on the Order Paper is:—
Section 71, lines 3 and 4, page 16, deleted and the following words substituted therefor:—
"The remuneration payable to every judge of the District Court under this Act shall be charged upon and paid out of the Central Fund of Saorstát Eireann or the growing produce thereof."
The same idea underlay both of these amendments, and it will be remembered that in the Bill as it left the Dáil the salary of the District Justice was to be provided by annual vote, and the argument which was made here in support of that provision was that, certainly for a while, it would be necessary to be in a position to discuss the number of Justices until one had arrived at any rate at a settled decision as to what the number ought to be, having regard to the new jurisdictions given and the jurisdictions transferred to the District Court. Though that case was made for the manner of providing for the salaries of the District Justices there seemed to be an idea in some quarters that there was a sinister intention behind that provision, and that that sinister intention was that the District Justice should not rank as a judge. Now, one can say quite honestly and frankly that that is not so. There was no such intention in the provisions in the Bill as it stood and as it was carried here. The amendment which was proposed in the Seanad gave rise to another matter, a question as to the effect of the provision of the Constitution, which requires a message from the Governor-General on the advice of the Executive Council before money can be appropriated for a particular purpose. The form of the message and the form of the resolution founded on that message were the subject of considerable discussion in the Seanad as to how far the action of the Seanad was limited by them. The matter was referred to a special committee of the Seanad, as a result of which they came to the conclusion in the Seanad that the message and resolution as they stood exceeded the powers of the Governor-General and did not hamper the power of amendment of the Seanad.
Did they decide on the resolution as well?
Yes. I think I may say that, in so far as the form of the message is concerned, I do not think that the Government would say that it was such as could be considered the best form, and the form of this message will have to be reconsidered for the future. As regards this particular amendment, we did not accept it in the Seanad. We contended that there was not in the circumstances power to carry such an amendment, but it is questionable whether, having regard to the form of the particular message, it is desirable to pursue any constitutional controversy on this particular amendment, particularly having regard to the fact that the Government's intention was that only for a certain short period there should be freedom of discussion as to the number of Justices required to discharge the duty of that office. The Government is prepared to consider now binding themselves, having allowed first for a short period during which the matter should be tested that, after that short period— say three years—for the future, the salaries of the District Justices shall be a charge on the Central Fund.
The position of a District Justice is recognised by the Government as that of a judge under the Constitution. There is no desire to interfere with the District Justices in the exercise of their official functions in so far as they derive protection by having their salaries a charge on the Central Fund. The Government intended that that shall be the case after a short period during which the exercise of their functions shall not be discussed. It is intended to submit to the Dáil that this particular amendment, in the form in which it stands, should not be agreed to, but that another amendment in another form which will give effect to what I have said should be sent up to the Seanad. That will involve another message, and it is suggested, therefore, that the consideration of this amendment should stand over until to-morrow. The other amendment, the real object of which is undoubtedly to attain the same purpose as was attained by this amendment, would really become unnecessary once the security of the position of the independence of the District Justices is established by a charge on the Central Fund. The Seanad amendment 22 is quite impracticable as it stands and quite incapable of being given effect to. It would have the most extraordinary effect on the text of the Bill. Wherever the District Justice Temporary Act, 1923, is referred to, it would change the title of that Act into District Judges Temporary Act of 1923. Under this Bill we speak of the Justice of the District Court. This amendment quite fails to recognise that under the Temporary Act we had the title of District Justice, and fails to recognise under the present Bill that these are justices of the District Court. To carry out an amendment of this kind in the way which must have been before the mind of the mover of this amendment, it would be necessary to move upwards of twenty amendments in the text of the Bill—that is in order to avoid those particular things to which this amendment could not apply, and in order to give effect to it without upsetting the whole Bill as it stands.
The matter was here discussed at full length as to whether those Justices should be called District Justices or District Judges. It was pointed out that this position had become a position of credit to those who held it, and that there was no sufficient reason for causing an upheaval there where you had swept away the old regime and set up a court which was recognised, established, and accepted with goodwill everywhere. The Dáil approved of the retention of the title "justice of the District Court," with the Irish equivalent for judge as applied to judges for all the courts. It is now submitted that this amendment 22 should not be agreed to, and it is intended, if the Dáil will consent, to postpone number 25 until to-morrow. It is intended to propose an alternative for submission to the Seanad, which will secure that position of judicial independence to the District Justice.
The exact proposal is, if I understand it aright, to leave over amendments 22 and 25 until to-morrow, and then move an amendment that the Committee disagree with the Seanad in amendments 22 and 25, and to move an alternative amendment to 25. That will necessitate a new money resolution.
It is in order to have a new money resolution and equivalent message that I suggest it should be left over.
Is not 22 to be dealt with to-day?
No. Both will be discussed to-morrow, when the alternative is produced. Does the Committee agree to the postponement?
Agreed.
SECTION 74.
The next amendment is in Section 74 to delete the words in page 16, lines 53 and 54, "for a declaration of title or in ejectment." This is really in the nature of a drafting amendment. It was thought as the proviso stood that its effect was narrowed by the words "for a declaration of title or in ejectment," in relation to such lands, and the amendment provides that the decisions of the District Justice in matters of trespass or tort are not to operate as estoppel in any action dealing with the land. I move that the Committee agree with the amendment.
Question put and agreed to.
The next is, after the word summarily, page 17, line 4, to insert the following words "and the accused (inquiry having been made of him by the judge) does not object to being so tried." This amendment arises on head (b) of Section 74, which defines the jurisdiction of the District Courts. The matters which are collected under heading (b) would in a certain degree be capable of being considered minor offences within the terms in the Constitution, but it has been considered well to have the attention of the accused directed to those in particular so that he may be in a position when charged to object that in his case the matter is not a minor offence, and to require that he be sent on for trial by jury. Consequently it is proposed that in cases arising under those headings two conditions precedent are requisite; first, that the justice shall be of opinion that the facts proved against the accused constitute a minor offence fit to be tried summarily, and secondly, the accused, inquiry having been made of him by a Justice, does not object to being so tried. It is proposed that that amendment be agreed to, subject to the substitution of the word "justice" for the word "judge."
Does not this depend very much upon what the decision may be to-morrow?
Only in that particular.
Yes, but if we pass it now where shall we be? I suggest this also should be left over.
If the other amendment of the Seanad stood it would restore "justice" there. It is important to dispose of this as far as possible. The Seanad is taking up this to-morrow, and there may not be any opportunity of dealing with it until another legal term has started.
You will not have finished this until after the Seanad has met to-morrow. The Attorney-General is proposing to amend the amendment by substituting the word "justice" for "judge."
I would rather that some way would be found whereby the Dáil would not be asked to come to a decision on this change of title until it has been decided on the direct question.
I certainly do not want to bind the Deputy or to ask for any decision that would hamper the matter to-morrow. If the word "justice" is inserted here now I will hold myself open to restore "judge" if that is the effect of the decision to-morrow, or I would suggest that the Deputy would hold himself equally open to my view in case the decision is the other way.
On the other hand, if we leave this amendment now it will only take a minute to insert the word "justice" to-morrow.
Provided I am not bound in a decision now.
That we take no decision now, but leave it over until to-morrow?
You will take the amendment as passed?
No; we will take amendments 22, 25 and 27 to-morrow. The discussion will really take place on 22 and 25. If the Attorney-General's point is agreed to on them, 27 is decided on. There is no other controversy except the words "judge" or "justice."
I am satisfied with the constitutional position.
Amendment postponed.
I move that the Committee agree with the Seanad in the following amendment —After the word "circuit," page 17, line 30, the following words inserted: "or of one of the circuits (to be determined by the justice)."
This amendment is a necessary drafting amendment by reason of the fact that in some cases the District Justice's district cuts into more than one circuit.
Question put and agreed to.
SECTIONS 81 & 82.
I move: That the Committee agrees with the Seanad in the following two amendments:—
Section 81. After the word "district," line 24, the words "or any part of the district" inserted.
Section 82. After the word "district," line 30, the words "or any part of the district" inserted.
Question put and agreed to.
SECTION 85.
I move that the Committee agrees with the Seanad in the following amendment: Section 85. Immediately after the word "county," page 18, line 54, the following words inserted "and (if so expressed in his warrant of appointment) within the counties immediately adjoining such county."
The Peace Commissioners are appointed for a county and the proposal in this amendment, which is a Government amendment, is that they should be enabled to act in matters arising from counties immediately adjoining that for which they are appointed.
Question put and agreed to.
I move that the Committee agree with the Seanad in the following amendment:
Immediately after sub-section (1) (Section 85) a new sub-section inserted as follows:—
"(2) So far as may be practicable having regard to all relevant circumstances, every person appointed to be a Peace Commissioner in a county which includes an area in which the Irish language is in general use shall have a knowledge of the Irish language adequate for the transaction of the business of his office in that language."
This is the same with reference to the Peace Commissioners, that they should, as far as possible, have a knowledge of Irish in Irish-speaking districts.
Question put and agreed to.
I move that the Committee agree with the Seanad in the following amendment. Immediately after the word "informations," page 18, line 63, the word "bonds" inserted. This rectifies an omission. The word "bond" should have been included. It is a matter of utility that they should be in a position to take bonds if the District Justice is not there.
Question put and agreed to.
I move that the Committee agree with the Seanad in the following amendment:—
The following words added at the end of sub-paragraph (d), page 19, line 3:—
"and providing for the remuneration of the medical officer and the examiner of lunatics under Section 14 of the Lunatic Asylums (Ireland) Act, 1875."
This is an amendment which enables an order to be made for the payment of the medical officer who certifies in cases of lunacy before committal to an asylum. Without some provision of this kind there would be no method of complying with the statute and providing for a certificate upon which a local authority can make a payment.
Question put and agreed to.
I move that the Committee agree with the Seanad in the following amendment:—
Immediately after sub-paragraph (f), page 19, a new sub-paragraph (g) inserted as follows:—
"(g) condemning or ordering the destruction or disposal of any article intended for the food of man which appears to him to be diseased or unsound or unwholesome or unfit for the food of man under Section 133 of the Public Health (Ireland) Act, 1878, as amended by Section 28 of the Public Health Acts Amendment Act, 1890."
This amendment is considered necessary in the interests of the public health. If it were not inserted the position would be that there could be no destruction of unwholesome food which had been exposed, until the District Justice returned, and it is proposed that the Peace Commissioner may be in a position to order the destruction of material that has been exposed for sale as human food which is unsound or unfit for food.
Does not this rather impose upon the Peace Commissioner the duties of inspector?
No.
It appears to me to suggest that he must have personal knowledge.
This is an application of a section of the Public Health Act. He acts first upon a certificate of an inspector, and if upon the certificate of the inspector it appears to him that it is a case of unsound food, then he may make an order for destruction.
Question put and agreed to.
SECTION 87.
I move that the Committee agree with the Seanad in the following amendment:—
After the word "purpose," line 30, the following words inserted: "being not less than five, including one at least of the justices for the time being assigned to the district, including the Police District of Dublin Metropolis."
I rather expected to be pounced upon by Deputy Cooper for this amendment. It fixes the number, which was not previously fixed, of the District Justices to act on the Rule-making Authority at five, and it provides a rather important matter, that one of them must be a justice of the Police District of Dublin. There are special police laws and regulations dealing with the city of Dublin, and it is important that one of the justices on the Rule-making Authority should be a Dublin justice.
Question put and agreed to.
I move that the Committee agree with the Seanad in the following amendments:—
The word "one," line 30, deleted, and the word "two" substituted therefor, and the word "solicitor" deleted, and the word "solicitors" substituted therefor.
After the word "Ireland," line 31, the following words inserted:—"of whom one shall be a solicitor having his office and carrying on the practice of his profession outside the City and County of Dublin."
These two amendments have the same purpose. They provide that on the Rule-making Authority for the District Courts there are to be two solicitors, and that one of them should be a solicitor practising in the country.
Question put and agreed to.
SECTION 88.
I move that the Committee agree with the Seanad in the following amendment:—
After the word "court," line 50, the following words inserted: "the entering up of judgment and granting of summary judgment in appropriate cases."
This is an amendment in substitution of Section 56, which was deleted.
Question put and agreed to.
SECTION 91.
I move that the Committee agree with the Seanad in the following amendment:—
After the word "contract," line 10, the words "or in an action for the recovery of land," inserted.
This amendment applies the provisions of Section 91 to actions for the recovery of land in the same way as they apply to actions in contract. Many actions in relation to the recovery of land raise questions of construction of documents and title of a kind that are not jury matters but purely matters for judicial ruling.
Question put and agreed to.
SECTION 93.
I move that the Committee agree with the Seanad in the following amendment to Section 93:—
At the end of Section 93 (after the full stop) the following words added:—
"In any appeal to which this section applies the appellate tribunal may, in lieu of ordering a new trial, set aside the verdict, findings, and judgment appealed against and enter such judgment as the court considers proper."
This amendment clears up a matter of doubt. A doubt was raised as to whether on the terms of Section 93 there was any option for the Court on the hearing of an appeal to do otherwise than order a new trial. It is quite a usual thing, on examination of evidence taken on the hearing of an action to deal with it otherwise than by ordering a new trial to make perhaps an amending order that meets the situation and avoids the expense of a second hearing. This amendment will enable orders to be made in such cases.
Question put and agreed to.
SECTION 94.
I move that the Committee agree with the Seanad in the following amendment to Section 94:—
Immediately before Section 94 a new section inserted as follows:—
"Whenever under this Act an appeal is required to be grounded or heard on the report of an official stenographer, such report shall include both the original shorthand notes and the transcript thereof, and shall be certified by the judge of the court of first instance to be such report."
The object of this amendment is in the case of appeals founded upon stenographers' notes to provide that the report of the stenographer shall be identified as a document in the case by the judge who tried the action, and that the report shall include both the transcript and the original shorthand record.
Question put and agreed to.
SECTION 96.
I move that the Committee agree with the Seanad in the following amendment to Section 96:—
The section deleted and the following new section substituted therefor:—
"Where any person who is at the passing of this Act a Judge of the Supreme Court of Judicature in Ireland, a Recorder, County Court Judge, or District Justice in Saorstát Eireann, or a Divisional Justice of the Police District of Dublin Metropolis is appointed to be a judge of any court under this Act after he has attained the age of retirement prescribed by this Act for the judges of such court, such age of retirement shall in his case be extended by the addition of three years thereto."
This amendment deals with the possibility of any existing judge being appointed to office under this Act, such existing judge having exceeded the age limit imposed by the Act. The fact that a man who had exceeded that age-limit would be selected would show that he gave indications of being able to continue to discharge his duties, and it is provided in such case that there shall be an automatic extension of three years.
I would like a little more light on this, because the way it is phrased points almost to a particular case or cases. "Any person who is at the passing of this Act a Judge of the Supreme Court of Judicature in Ireland, a Recorder, County Court Judge, or District Justice in Saorstát Eireann, or a Divisional Justice of the Police District of Dublin Metropolis is appointed to be a judge of any court under this Act after he has attained the age of retirement." It seems to say that the intention of the Ministry in regard to the ages of retirement are not to have effect in some cases. I am at a loss to understand the attitude of the Attorney-General on this matter. He has argued, and the President has supported him, in such a way as to persuade the Dáil that it is not desirable to have any relaxation of the age limit, and now he says that a person, provided he is already a judge in one court, may be appointed to be judge of another court, notwithstanding age limits; that is to say, the age limit may be extended by three years. I am not able to appreciate the point, unless the Attorney-General will tell us that he has specific cases in mind, and let the Dáil judge as to those cases. I would ask first whether this word "is" on line 1 should be retained?
I may assure the Deputy that the Government has no specific cases in mind. The Government field of choice in filling these positions is, I think, still unexplored, if that will allay any anxieties. The intention of this rather was to prevent exclusion from the field of choice of persons who might be of assistance, but who had reached the age limit. Whether it will ever be put in practice I cannot say. It does not relate to any case or cases in particular. Without taking any executive power of extension, it enables a person who has reached the age limit to be appointed with a three years' fixed extension beyond that age limit. If no provision of this kind was contained, and the other power of extension having been cut out with the consent of the Government, there may be persons who would be excluded from appointments in the first instance by reason of the age limit.
Question put and agreed to.
SECTION 97.
I move that the Committee agree with the Seanad in the following amendment to Section 97:—
The section deleted and the following new section substituted therefor:—
"No rules of court made under this Act shall come into operation unless and until they have been laid before each House of the Oireachtas and have been approved by resolution of each such House."
This amendment is in substitution for Section 97, but the essential difference between the two is this, that under Section 97 the rules became operative and of full effect unless a motion had been made annulling them in whole or part. Objection was taken to that on the ground that the matter might be overlooked. People might not bother, and it is said that people do not bother, with these documents laid on the Table or read them with that detail or interest that perhaps some of them deserve. Under the new section it would be the duty of a Minister to come in and propound the rules to each of the Houses, explain them, and get a positive agreement with them. The Government recommends that that proposal be accepted.
I think this is a great improvement on the section originally passed by the Dáil. I hope it will be the practice, and I think it must inevitably be, that the rules will not merely be laid on the Table, but that they will be circulated as a Bill would be, and that line by line, section by section, and paragraph by paragraph amendments may be moved and debated, so that they will be discussed just as a Bill may be discussed, perhaps having only one reading. I think that is the effect of this new section. It is an improvement, and meets most of the criticisms that were made against the original section.
Question put and agreed to.
I move to report progress.