Vol. 35 No. 7
This amendment merely cuts down the period in order to bring the section completely into harmony. "Six" months is substituted for "twelve" months in one sub-section, because "six" appears in all the other sub-sections. I accordingly move:—
"That the Committee agree with the Seanad in the amendment."
I would ask the House to accept this amendment as it stands. I put forward my own views before this House some time ago to the effect that I thought that there was no need, in regard to applications made under the Bill, for any departure from the ordinary principles of our Courts, these ordinary principles being that cases should be heard in public and should, subject to certain limitations under the Censorship of Publications Act, be fully reported by the Press. The House took a different view, and an amendment was carried which, I think I may say, was not a very satisfactory one. The Seanad dealt with the matter very fully and they have brought in an amendment which provides for a hearing in camera, but a reasonable hearing in camera — that is to say, they follow out the provisions of the Children Act and, I must admit, that the provisions of that Act seem to have worked satisfactorily so far as the Act itself is concerned. Therefore, though I myself would prefer to have these cases heard in public Courts and reported in the ordinary way, I recognise that the feeling of both the Dáil and Seanad is the other way, and it seems to me that if you are going to have any in camera hearing this particular method of hearing, with the safeguard contained in the section — namely, the safeguard of the presence of the Press — is the best kind of hearing in camera you can have. Accordingly, I move: "That the Committee agree with the Seanad in the amendment."
I move the following amendment:—
In amendment No. 2, in sub-section (6) of the proposed new sub-section to add after the word "party" in paragraph (a) the words "except where the Judge decides to exclude such names."
It is of interest to examine the history of the controversy which has arisen over the question concerning a hearing in camera. It was first suggested by the Poor Law Commission. They recommended that cases of this sort should be taken in camera. Here is the whole of Paragraph 258 from the Report of that Commission: —
"We recommend that the District Court be given power to make an Affiliation Order on the application of the mother, and that the Board of Health be also given power to apply for an Order, if the mother and child are in receipt of public assistance. All cases of this character should, we think, if possible, be tried in a Special Court by the District Justice without the presence of the Press or public. When the mother is young and friendless, the District Justice should have power to arrange for a suitable woman to accompany her to Court and remain with her while she is giving evidence."
That recommendation has been carried out almost entirely by the Minister, except the one item about the exclusion of the public and Press. When the Bill was introduced a considerable amount of opinion was expressed in the public Press by institutions and social workers to the effect that cases of this sort should be tried in camera. The main argument put forward was that in cases of girls who were first offenders — persons who had such a sense of shame in the matter that they did not like coming into court — it would be very difficult to get them to come to court at all if their names were to appear in the Press. On the strength of that argument, this House, which is fairly strongly in favour of trials being held in public courts, decided, despite the eloquence of the Minister, in favour of the amendment, directing that the cases be heard in camera, and it was carried. The opponents of the amendment, having been driven out of the front door, came in by the back, and this amendment, coming down from the Seanad, really defeats the object of the in camera clause because the names are mentioned. It is essential that it should be possible, in some way or other, to exclude the names. I would much prefer to see the amendment withdrawn altogether.
If we cannot defeat the Seanad amendment then at least we ought to try to make it possible that such cases shall be tried in camera, and for that reason I put down two amendments. I put them down separately on purpose because each of them involves a different principle. The original sub-section in the Bill reads as follows: "All applications to the District Court and all cases under this Act shall be heard in camera, and publication of such cases shall be limited to the statement of the fact that an affiliation order has been granted in a particular court against a person whose name and address shall be included." The amendment is a lengthy one. I need not go into in detail, but the part of it which I wish to deal with first of all is as follows: "On the hearing of any case under this Act in the District Court or on appeal in the Circuit Court, the Judge shall order the exclusion from the court of all persons... except the Press." Then under sub-section (6) it lays down that "it shall not be lawful to print or publish anything concerning the case except the following." The first of the exceptions is the names of the parties, the second is the court in which, or the Judge before whom, the proceedings were tried, and the names of the solicitors and counsel professionally engaged, etc.; the third is a concise statement of the charges, the defence and counter-charges; the fourth is particulars of any point of law arising, and the fifth, the decision of the court and the observations of the Judge.
I think if all these details are published, certainly in the country, it is tantamount to publishing everything about the case. For that reason I regard the whole amendment as unsatisfactory, but in case we cannot defeat the amendment as a whole, we want to reduce the mischief it may do to a minimum so as to make it possible for these persons to avail of the court in some shape or form. We propose to amend the first of the exceptions, that is to say, that the names of the parties shall be published. The first of my amendments is that the names of the parties shall be published except where the Judge decides to exclude such names. This gives a power of discretion to the Judge, and it is a type of case which requires a certain amount of discretion. It implies a considerable amount of prudence and ability on the part of the District Justice.
I think the Minister will agree that there has been on the whole no dissatisfaction found with the District Courts in the country and that they are quite competent to deal with cases of this kind and to exercise certain discretion, because it is not merely the question of the application of a rigid law. I have been told that in a great many cases the litigants as a result of the proceedings get married in cases of this sort where the responsibility is brought home to the parties. It may not always be a happy marriage, but that is not an argument against attempting to get the parties to repair the damage that has been done and to prevent persons from becoming second and third offenders. By having full discretion to exclude the names, the Judge has a better opportunity of getting questions like this settled in the best possible way. Then the persons who are not hardened sinners are more likely to come into Court. If you insist on keeping the names in, you will be legislating for the hardened types of people who are indifferent as to whether the names are published or not and who may very likely make use of the Bill for blackmailing purposes, because, of course, the greater the publicity the greater the possibility and the value of blackmail. Then, again, this principle of affiliation orders is new to the law. It is not exactly a criminal proceeding. Formerly the only action that could be taken was either criminal proceedings or the action was such as to be much closer to criminal proceedings than this. This is somewhat in the nature of civil proceedings. It amounts to an action for damages. There will be — or at least I hope there will — a different atmosphere in dealing with these cases than in dealing with the ordinary trial for seduction.
Of the two amendments which I propose, the first involves the principle of giving the judge an opportunity to decide. It may be found in the course of applying the new principle contained in the Act that it is a far better thing to have the case tried in camera or from experience the judge may find that it is a good thing in first offences to have them tried in camera or that afterwards it may be a severe punishment to have publicity. For that reason, I think the Minister would be well advised to accept this principle in order that the judge may have the amplest opportunity to find out from experience the best way to handle cases of this kind. On the bigger issue, the principle upon which the Minister has been standing pat all through the controversy — namely the publicity of the court — we are in agreement in general, but we are in disagreement with it in particular. For instance, the Minister was entirely against upholding that principle on the Juries Act because he held that, under certain temporary circumstances, if you like——
I beg your pardon, I provided very carefully that the Press would be present under the Juries Act. I provided that very carefully.
But the Minister himself must admit that there were severe restrictions on publicity as to the names of jurymen, and so on, and that members of the Press would not be allowed to be present nor the members of the public generally.
Only a very objectionable type of Press would be objected to.
The point I am making is that the Minister has made a breach himself in the principles of complete publicity of proceedings in court, for reasons best known to himself. On that Bill we fought tooth and nail, and not only was our opposition strong, but the opposition of other parties in the House was so strong that the Minister was obliged to limit the period of the Bill. On that matter the Minister was on one side and we on the other. Now we have changed about, and we do think there is a limitation to the principle of publicity. It is not a question of principle itself. Every great principle, no matter how valuable and sound it is, has its limitations and history is strewn with the wreekage of the extravagant application of good principles. This is simply a particular instance of where you have that. I think I need hardly mention an instance of it, but I think we might take the purity of the Puritan iconoclasts. That is a good illustration of a good principle wrongly applied and causing damage. The Minister has taken up an attitude which is as dry as dust on a question that requires real human treatment. We have the evidence of social workers and authorities who understand this matter, and, after all, the Minister should bow to the superior authority of persons who know the problem at first hand. A lawyer is not an authority upon all the human subjects that come up. In other cases I think the Minister would lean towards allowing a certain amount of secrecy in the case, for instance, of the Moneylenders Bill, because he would consider it a matter of public policy to do so.
I have not said so.
I have indications that the Minister would think it a wise thing to do. Even good principles may be carried too far. This is the case where one should press very strongly. I hope the Minister will see the wisdom of giving the judge the fullest discretion of deciding whether a case should be heard in camera or not. In a very short time the judges will be able to say whether one particular line is a wise and discreet line or not, and they can change later; if it is found that the law is not satisfactory it will be very easy to change it. I think it would be absolutely essential to change it. In another case that we pressed here the Minister would not give way, for instance, in the publication in the general Press of the names of books censored. He already admitted that he has no power to prevent that and that it is doing a great deal of damage. He is putting us in the painful position of being able to say "We told you so." In this case I hope the Minister will take a little advice from those best qualified to speak on this matter.
I go a little bit further than Deputy Little. I hope the House will definitely reject the Seanad's amendment, because it undoes the good work we did when this House passed an amendment proposed by Deputies Little and Law. I do not approve of giving discretion to the judge, and I sincerely hope the House will reject the amendment.
I take up a slightly different position again because I prefer to accept the amendment put forward by the Seanad with one exception, and that exception is the section to which Deputy Little refers. I think the whole seriousness to our view of the Seanad amendment lies in the publication of the names of the parties. I take the same view that I took when this Bill went through the Dáil before, namely that in the important cases to which we want this Act to apply no proceedings will be taken by the girl in question, or even by her parents, if the name is to appear. I do not see the advantage of publishing the names of the parties at all. I am afraid if you accept the amendment suggested by Deputy Little the same disadvantage will lie.
There are very many cases, I am sorry to say, where very respectable girls fall the victims, possibly through impulse, and afterwards they are so repentant for it and so much ashamed of themselves that if their names are to appear as a result of the proceedings in court, they will refuse to take proceedings. I fear if the names are to be published it will make the utility of this Bill very little in its application. That is what Deputy Little says. It seems to me the right thing is to adopt the Seanad's amendment, leaving out paragraph (a) in sub-section 6. If that were done I would be quite prepared to accept the amendment.
I do not propose to discuss the Juries Bill, I do not propose to discuss the Moneylenders Bill, and I do not propose to discuss whether an iconoclast is a Puritan or not. I would just like to get down to the Illegitimate Children Bill, and I would like to point out to Deputy Murphy that if this amendment of the Seanad is rejected the amendment passed by the Dáil will stand, and that amendment, I recollect, is such an undesirable embodiment of the principle of partial hearing in camera that Professor Thrift, who believes in hearing in camera, voted against it. It is as follows:—
"All applications to the District Court in all cases under this Act shall be heard in camera and publication of such cases shall be limited to the statement of the fact that an affiliation order has been granted in a particular court against a person whose name and address shall be included."
I do not think that section will get one single person to stand up for it. If you have publication you shall have the name of the defendant and his address and you will have nothing else. You have got, in fact, now to choose between two amendments — between the section as it stands — the amendment passed by the Dáil and the Seanad section. Delete the Seanad's amendment and you fall back on that; you fall back on an impossible state of affairs. Let me come to the second amendment. The main objection that was put up here in public against hearing in camera was this: that a girl should not be brought into the witness-box and made to tell her story before a crowd of loafers, before anybody who happened to come into the court out of curiosity. That was the main argument. That was the whole weight of the main argument. By the Seanad's amendment the ordinary loafer — any person in court who has no business there — is excluded from the court during the hearing of the case. Therefore, any shyness that the girl might have, arising from the fact that she was telling her story before a crowded court, is gone. On the other hand, the newspapers can, under this amendment, be present and they can report the names of the parties and certain minor details about the case.
I might point out to Deputy Thrift that no paper would report a case in which it could not give the name of the parties. It would be like this: that A to-day in court sued B and that she got a decree for 5s. a week against B. A report of that kind would never be published. That would be doing away with any reason for publication. After all, there is no very great interest in this class of case that A got a decree against B for, say, ten shillings a week on an affiliation order. That would not be of any interest at all. I do not believe that such reports would appear. Deputy Thrift has not an amendment to this effect and there is no amendment to the effect that the names of the parties should be left out. There is no such amendment before the House at the moment.
Does the Minister suggest that my amendment does not exclude the names of the parties?
I have not dealt yet with the Deputy's amendment. There is no amendment to the effect that Section 4 should be deleted; there is an amendment in connection with sub-section 6 (a). The object of publicity is that a person who has been wrongly charged should have it made perfectly clear that he is vindicated, and a person who has brought a wrong charge, a charge which has been dismissed by the court, should also have her name thoroughly known. Deputy Little goes on to say that it would keep girls out of court, and that there is authority from social workers that it would do so. I will point out to Deputy Little that the social worker is not the best person to give you advice in a matter like this. A social worker is a person who looks on the whole question from one angle and one angle only. A social worker simply sees that one particular girl has been betrayed, and looks at the case precisely from her point of view, not considering all the other cases in which there are women who deliberately fling themselves in the way of temptation, or rather who are themselves the temptresses. I do not believe that any single girl will be deterred from taking proceedings by the fact that her name would be published.
Deputy Little suggests that on the first occasion her name should not be published; that the judge should have discretion that her name should not be published the first time. But the time when she appears in court need not of necessity be the first time that she has had an illegitimate child. She may have had two or three, and have made settlements out of court, and then she might have brought one case into court. It is highly advisable in such circumstances that her name should be known. If nice girls who have been betrayed were deterred from bringing their cases into court because of being examined in public, then surely some evidence might have been collected from a country where a similar Act has been in force for many years in order to show that it has had that effect. It has never been suggested in England, and surely there must be girls there in exactly the same position as any Irish girl. It has never been suggested there that there has been any weakening through cases not being heard in camera.
The Deputy has nothing more to go on except the suggestions of certain charitable workers and the report of the Poor Law Commission. The report of that Commission is, of course, a document of very considerable weight. It is not a document which should be lightly brushed aside. But that is not one of the main matters which the persons who constituted the Commission which made that report, considered. I do not believe they called any witnesses with knowledge of legal procedure and of what has actually happened in courts in such cases. The persons who really have experience in this matter are the persons who are acquainted with legal proceedings in these cases. We must bear in mind that in most cases in which an affiliation order could be made an action for seduction would lie. I have never heard it suggested and, though I have asked again and again, nobody has ever been able to give me one concrete example, of a girl who could have brought an action for seduction and who refused to bring it because of the fear of publicity. Under this Act she would have a great deal more privacy than she would have if she or her parents were bringing an action for seduction because in this instance she would have none of the ordinary public present at the hearing.
I do not see that there is any necessity to give discretion to the judge. Even if there were, I do not see how the judge could carry out an amendment in these terms —"except where the judge decides to exclude such names." How is the judge to make his decision known? The Deputy does not give us any indication. I suppose the Deputy means that the judge shall by order direct that there shall be no publication of the names of the parties; but "where the judge decides to exclude such names" appears to me to be rather a meaningless collocation of words. It is not the judge but the Press that excludes names. What the Deputy means is that the judge shall order that the Press shall exclude the names. I suppose that is what he means.
Would the Minister accept his own wording?
No, but if the House accepts this amendment you have really a meaningless amendment. It is not only to the wording but to the principle lying behind it that I am opposed. If you put in the wording of the amendment it means nothing because it is not the judge who excludes names. The suggestion apparently is that the judge should order the exclusion of names.
The meaning is perfectly obvious from the wording —"except where the judge decides to exclude such names." He can exclude the names.
It is not the judge who excludes the names but the Press.
It is only splitting hairs to make a point like that. I am quite prepared to agree to any change in the wording if the Minister likes to make a change.
I am opposed to the principle of the amendment.
The Minister has asked how would the judge decide.
I did not say anything of the kind.
The Minister asked me on what grounds would the judge decide to exclude the names. I took down his words. The Minister asked me how would the judge make a decision of this kind and how would he decide whether the names should or should not be excluded. I think it would be perfectly within the ability of an experienced man in the position of a judge to be able to form an opinion. He would know whether it was the first time a person came to court; he would know from the evidence whether it was a case of a first offence; he would utilise his experience in forming an opinion of the persons coming to the court and he would be able to decide whether or not the names should be published. It is the practice to substitute A and B or any other letters in place of the names of persons. That has been done in famous cases elsewhere. And there is no reason why letters should not be substituted. This amendment provides for the setting out of the charges, the main facts, the decision and any question of law that arises, so that all these matters will be on the records and will be in the public Press. The only thing is that the names will be excluded. Except for the curiosity mongers, everything is achieved that can be achieved. It would be hard to know how the ends of justice are not achieved if curious people are disappointed. The Minister suggests that inquiries should be made as to how the Act has been working in England. Really, I think with the machinery the Minister has at his disposal, it was for him to find out through the ordinary official channels how the Act had been working in England. It would be very difficult for an ordinary individual to find that out.
I said no complaints seemed to be made about the working of the Act in England, and if any complaints had been made that they ought to be brought forward.
The Minister might have instituted some inquiries. He has the machinery for doing that and nobody else has. I saw some complaints about the working of another Act — not this measure. It was by the merest accident I came across it. It is not easy for people to find out these things in an authentic way. Private individuals are not entitled to write to courts about such matters. They have not the authority the Minister has to find out. Social workers have been at this for a number of years. It is not individual cases. What they have before them is the larger problem. They endeavour to meet the whole situation and find out the best method of giving back to people their self-respect. All these essentials are present to the mind of the social worker. On the other hand, the lawyer's attitude is very restricted. He is applying the letter of the law and the letter killeth the spirit. The lawyer has to apply the law too strictly; he is very limited in his outlook. The social worker is the person who should be referred to, and in forming a judgment we should allow them to influence us. It is easy enough to arrange the matter so far as we are concerned if the Minister is agreed on the principle, but, apparently, he is not agreed on the principle, and so I suggest that the House should vote in favour of this amendment to the amendment of the Seanad — if, indeed, the best way would not be to vote down the whole Seanad amendment.
I do not at all agree with the Minister when he says a newspaper would not print these reports if the names were not available. With the great majority of latter-day newspapers, the names are of no consequence. It is the facts that afford the spice, and when the Minister said that they would print nothing about the case, I think he drew a wrong conclusion. Even if a point of law should arise it makes it important that the newspapers should print something about it, and, therefore, I say we should accept the main purpose of the Seanad amendment, but I say it is a mistake to regard the insertion of the names as vital to the publicity of the case.
If the spice is left out they will not print it.
The spice lies in the facts.
Only a certain amount of them will be published.
I move amendment 2:
In amendment No. 2, in sub-section (6) of the proposed new sub-sections to add after the word "parties" in paragraph (a) the words "and except where the parties consent to have their names excluded."
This amendment applies to the same sub-section. I do not know whether it is necessary to argue this case, or whether the Minister is willing to accept the principle involved and allow, where the parties wish their names to be excluded, that they should be excluded.
I think this amendment is wrong in principle and would be utterly unworkable in practice. It is obvious that the word "and" in the proposed amendment should be struck out and that the words the Deputy proposes to add are "except where the parties consent to have their names excluded." To whom are they to signify their consent?
To each other.
The Press is going to publish their names unless they consent not to have their names published. Suppose no question is asked; there is nobody to propose that they give their consent. The amendment seems to me to be completely unworkable. Let us take another point. How are they to carry this out? Let us assume that they have been asked to consent. What is the machinery by which they are to carry it out? Is the consent to be in writing? Is it to be lodged in Court and made a Rule of Court? How is all that to be done? There is no suggestion how it could possibly be carried out by this amendment. I suggest it is completely unworkable. But let us get away from the amendment and try to get at what is in the Deputy's mind. I think it is entirely undesirable. It might be very much to the advantage of the man in some cases to have the names published. If there is no decree made against him and that the verdict is in his favour it might be greatly to his advantage to have the name published. In a great many other cases it would not be of the slightest disadvantage to the man to have his name published, but it might be of very great importance to the community to have the names of the parties published. I have already explained on the last amendment how it will stop blackmail and let undesirable persons, both of the male and female sex, be known to the public. A man may be the father of many illegitimate children. He would be a man for girls to avoid. A girl may be the mother of illegitimate children, and she would be a person to be avoided also. So that it is in the interests of the public that the names of the parties should be published.
The Minister asks how is a consent to be arrived at. I do not know if the Minister has forgotten about the way in which consents are arrived at in courts, but the consent could be made an order by the court. It is a very simple thing. It could be made clear to the judge by the lawyers on each side that a consent has been arrived at between the two parties that the names should not be mentioned in the public Press. In any case it is a matter of such minor detail that if we got agreement in principle on it there would be no difficulty whatever in getting words to please the meticulous taste of the Minister. There would be no trouble about that part. But as it is the amendment is perfectly clear. A consent implies that the two parties to the action must consent to having the names excluded. This question of publicity seems to have obsessed the Minister. He would never suggest for a moment that in a case which in some ways has a similar type of feeling attached to it, namely, the case of a person of unsound mind, the whole matter is kept out of the public Press. That is a case where regard is had for the dignity of human nature and the feelings of the parties concerned. Cases of that kind are kept from being published. I suggest that in these cases, at least where both the parties desire that the names should not be published, it is proper that the court should have power to prevent the names being published. I am very sorry that the Minister should have made this a Party matter, because it has vitiated a fair consideration and decision by the House. There are Deputies who are loyal members of their Party, and on account of the Party discipline they have had to sacrifice their individual judgment in this matter, simply owing to the whim of the Minister, who has put on the Party Whips.
Did the Fianna Fáil Party not vote together on the last division?
It is not a question of whether any Party votes on one side or the other; the question is whether it is a matter of confidence from the point of view of the Government. It is a very natural thing that any Party, or any mixed group of members from various parties, should form a committee, discuss the thing among themselves, and come to a common decision. It happens that various Parties do have their own committees, and having formed a particular view, vote together on a matter, because they think it is the proper way to vote. But that does not involve a question of confidence. This is not a Party matter in the ordinary sense of a main political issue, and I think it is most unfair to put on the Party Whips. Not only were our Party Whips not on, but if any members of the Fianna Fáil Party were strongly against our view on this question they would not have been obliged to vote with us, because you cannot have dogs tied and stones loose; what is good for one side must be good for the other. A Party's committee may make a decision and the members of the Party may be convinced by that.
Which is the dog, and which is the stone?
Apparently the Minister made a decision, and members of his Party were not entirely convinced by his decision, but it was not a main political issue and it should not be made a question of confidence. I hope that the Minister will not continue to vitiate legislation on matters like this where people hold different views by introducing a political atmosphere which is entirely alien to the problem.
I thank the Deputy very much for his lecture.
On the question: "That the Committee agree with the Seanad in amendment No. 2," I suggest that we should reject this amendment altogether. It would mean a complete defeat of the Bill, and the time we spent on it would have been wasted. The Bill will be useless, because the only people who will come into Court under it are those who have lost all sense of shame. We are now legislating, not for the people whose self-respect can be restored — the first offenders — but for the blackmailers and the people who will use the courts for their own purpose. This is a compromise which is not a compromise, because it sacrifices the only principle we care about — the keeping out of the names. I suggest that the Minister should not put on the Party Whips on this occasion. This has nothing to do with party politics, and we should have an open vote on the matter.
This matter has been very fully discussed and the Seanad has come to a reasonable compromise on it. The Seanad put in an amendment which goes very much further than I think it ought to go. But I have given way on this Bill to a very great extent; I have accepted a principle which I am inclined to think is going too far. I have recognised, however, that there are two schools of thought. One school thinks that there should be the utmost publicity for all litigation of this kind, and that is the school to which I belong, but the other school thinks that there should be no publicity at all. A via media has been found between those two schools of thought, and I suggest that the House should follow that middle path. Middle paths may satisfy nobody, but they are very often the embodiment of common sense.
I differ from the Minister; I do not think a via media has been found. If an unfortunate girl's name is published, or if she thinks her name is going to be published, she would be deprived of some little commercial solace that she might have got otherwise. It is not a question of Fianna Fáil or of Cumann na nGaedheal; it is a question of what people think is best for the protection or the help of the girl who goes wrong, and I would appeal to the Minister to take off the Whips for this vote.
I would also be inclined to ask the Minister to give that suggestion his consideration.
But do Deputies understand that if this amendment goes out we drop back on the utterly impossible amendment, which nobody stands over, which the Dáil passed, the amendment which provides that the name of the man should be, and must be, published and nothing else?
Is it not possible that the amendment might come back to us in a modified form?
