I move: "That the Bill be now read a Second Time." The necessity for this Bill arises from the fact that, in certain circumstances, the power to appoint new trustees, and the exercise of certain powers by trustees, is vested in the holders of certain offices, which offices have now been abolished. For instance, the office of Master of the Rolls, Lord Chief Baron and various other offices of that kind, have been abolished. It is proposed by this Bill that, where the power of appointment of trustees was vested in the holder of an office, which office has now become extinct, that appointment should now be made by the High Court. Similarly, where the appointment of new trustees was vested in the holder of a particular office, which office has now been abolished, the High Court, under the terms of Section 4, can either appoint a new trustee itself or can nominate the holder of some office to appoint a new trustee, the reason for that being that it would save numerous applications to court. Of the charities affected, several are comparatively small. In cases where it is necessary to get the consent of the holder of an office, which office is now abolished, to exercise powers of sale and leasing and the like, authority is given to the High Court to appoint trustees with these powers.
Trustee Bill, 1931 (Seanad)—Second Stage.
The principle of this Bill seems to be a reasonable one in so far as it is an enabling measure giving certain powers, which originally were exercised by certain officers, mostly judges in reference to certain charitable bodies. I rather expected that the Minister, when introducing this Bill, which I assume he is more or less adopting now that it has come from the Seanad, would have given the House, upon such a technical measure, an idea of the number of charitable bodies which were involved and how much it is likely to amount to. Some of the charitable trusts, I understand, are of very considerable size and some of them are very small. I do not know whether the Minister has read the debate in the other House. Certain objections were raised there with reference to Sections 4 and 5. It was admitted it was a proper thing that the High Court should have power to appoint trustees, but objection was taken to the High Court having power to delegate that power to appoint trustees. It seems to be against a very fundamental principle of law that a delegate should have power further to delegate his power.
Again, in a case where a judge appoints a trustee, he exercises his judicial powers. He has to examine certain documents, such as an affidavit of fitness, and, altogether, the exercise of the power of appointing a trustee must be regarded as a judicial function. I do not know whether the Minister has examined how far that impinges upon an Article of the Constitution which requires that only a judge can exercise judicial functions. This is a matter of considerable importance, from the point of view of principle. It is really a compromise on the principle that the High Court would never have power to appoint someone in a judicial capacity. I do not say any judge of record, because that is too inclusive, but someone who has a judicial capacity. The Minister mentioned that it was because offices like those of the Master of the Rolls and the Lord Chief Baron had been abolished that these trustees had lapsed. It might be well to put in the names of those judges— Circuit Court, High Court or Supreme Court judges—who could be appointed to carry out these functions.
I hope the Minister will examine that question closely before we come to the Committee Stage. We should have an idea of the number of bodies affected by this measure, and, if possible, we should have a list of the names of those bodies. This House consists of persons who cannot be expected to know much about a matter like this, which is extremely technical. The whole Trustee Act of 1893 is an extremely technical Act. Therefore, the Minister should put the House in the position of having as much information as possible. When he is dealing with this matter he ought to amend the list of securities that are regarded as trustee securities. It is a very antediluvian document. There are numbers of securities mentioned as trustee securities which no sane trustee would ever invest in at the present moment. On the other hand, there are other securities which might be included as being proper for the purposes of investment.
Deputy Little's questions seem to be quite reasonable. He wants to know the area and the size of the problem which is involved; whether this is a big matter or a small one. I am sure the Minister will be able to give us all the information we require, and the House will be glad to get plenty of information. The Minister speaks of this Bill as dealing with offices which have already been abolished. I do not know whether there are any other offices which have not yet been abolished, but which may possibly, later on, come within the ambit of this measure. We would like to know whether the Minister is now taking anticipatory powers in relation to subsequent abolition of offices, or is he merely confining this measure to offices which up to now have been abolished.
As far as Deputy Little's point is concerned about trustee securities and the revision of the list of trustee securities, I agree with him that it is a matter to be inquired into. A certain revision is, no doubt, necessary. However, that does not quite arise under this Bill. That is a matter that is under consideration at the present moment.
It is a matter that is connected with the original Act and that is why I mentioned it.
As to the question of the particular charities involved, I would not be able to get the particulars of the cases. It would involve visiting the various offices to investigate the documents they hold. It is sufficient that there is a large number of charities. If a Bill of this nature did not become law, it would be necessary for each charity when its trustees had ceased to be and when no new trustees could be appointed to have a provision of this kind made or they could not sell or lease their property. In that case, it would be necessary for each of them to go forward and promote a Private Bill. That, of course, would be ruinous to a charity and even if there are only one or two charities it would not be fair to them. When we are abolishing offices, as they have been abolished, it would be very unfair to the charities if they had to suffer any pecuniary loss by reason of that.
Deputy Little asked if I had read the debates of the other House. I have. It appears to me that the answer to the argument of the Senator who brought in an amendment to Section 4 was very conclusive. Deputy Little says that the appointment of trustees is a judicial act and that the judge should not delegate it. Surely the Deputy is not putting up the case that all new trustees are appointed by the court? They are appointed under new deeds and the power of appointing trustees is vested in some individual. I am sure the Deputy himself has drafted many deeds where the power is given to appoint new trustees. The court under Section 4 of this Bill has certain powers. If the court thinks that the holder of some office would be the most appropriate person to appoint a new trustee, the court can delegate the powers. That person would have no more power to appoint new trustees than, say, a person in an ordinary deed of settlement would have. To go into court to appoint new trustees is not normal. It is abnormal. The normal way is by the power for the appointment of trustees contained in the settlement.
Would I be in order in developing this? I want to point out that there is a very big difference in dealing with new trustees and giving those trustees powers to appoint other trustees. Then there is a matter of property being taken over by the courts and dealt with. Then it becomes a judicial matter, whereas it is an ordinary, private matter in these individual cases.
It is a judicial matter to appoint a person with power to appoint new trustees. That is a judicial act—appointing a person with power to appoint trustees.
I ask the Minister if in this Bill he is taking anticipatory powers in regard to subsequent abolition, or whether it is confined to offices already abolished?
If the Deputy reads the section, he will see that it is when the office ceases to be.