Last night, when speaking on this, I had been diverted away from the main arguments that I wanted to use on this Bill by Deputy Corry's unfortunate divagations into pedigrees and such things. I felt, however, that it was useful to point out that Deputy Corry was only treading along a path the track of which had been well beaten and marked out by such people as the Minister for Industry and Commerce, the President and other members of the Government when, from time to time, they seek to destroy any institution of the State. The first attack always comes by way of an allegation that those who compose that institution are remarkable for their anti-Irish views and for their treachery to this nation: for old-time and continuing hatred to all things Irish. That gets the atmosphere: that is the cloud that has to be raised around discussion so that the facts of a particular measure, when put before the House, will not be realised. The smoke-screen having been laid, what did the President say yesterday as to his reasons for abolishing not the present group of Senators—that must be insisted on—but for abolishing the institution of the Seanad? What were the arguments with which he fortified his contention that a single House is not merely suitable for the conditions of this country, but is the only institution that can suitably represent the people of this country in carrying out legislative duties. He gave us the amazing argument that it was merely an accident that a bicameral system existed and was continued anywhere. In answer to that, it is only necessary to say this: that the combined wit of mankind operating in all the diverse circumstances that hold all over the world has, at any rate, come to this conclusion, except in the case of a few of the smaller republics, that the double-chamber system is useful and has not outlived its day. If the President at this time can tell us that it is merely an accident that the two-chamber practice has survived, he should fortify himself with examples to show how and by what accident it has survived against, apparently, what he thinks is the trend of modern opinion in so many States of the world.
That was one argument. The second argument was that the Government had been held up in what he called its march—what might better be described as its progress—down a steep slope to the sea. In what respect has the Government been held up? The two matters alluded to were the Seanad's refusal to accept the Blue Shirt Bill; and, secondly, the request of the Seanad, which appears daily on our Order Paper, for a committee of both Houses to consider what the functions of a Second Chamber should be and what the composition of a Second Chamber should be. Let us consider these matters only from the angle of time. When, by the ordinary expiration of time, will the Bill limiting the powers of the Seanad become law? Many months earlier than this Bill can become law if the Seanad holds up this Bill. When will the Bill, making illegal the wearing of a blue shirt, become law? Many weeks, at any rate, earlier than this measure will become law if it is held up by the Seanad. If, when the Bill limitating the powers of the Seanad becomes law, the Government then finds that the Seanad operates its limited powers upon some later measure, which the Government can present to the people as necessary and as unjustly held up by the Seanad, the Government know that they can then abolish the Seanad in three months and can even make the Seanad in three months agree to its own dissolution. Where, then, is the argument, from the point of view of time, in relation to any of these measures that makes the President so fast in his progress in regard to the abolition of the Seanad? That is not, of course, what his motive is.
Let us leave out of question the personnel of the Seanad. Let us admit for the sake of argument that the Seanad is hopeless in its personnel —I do not admit it, in fact, at all—but let it be admitted for the sake of argument that there is not a member in the Seanad who should be there if it were properly constituted. Let it also be admitted, although again, in fact, this should not be admitted, that there were many measures held up by the Seanad without a shadow of argument and most unreasonably. Do either of these two facts, if facts they were, provide any argument for the wiping out of an institution, for the disappearance of the two-chamber system in this country and for the handing over of control in relation to finance, judges, the making of crimes and so on, to a single House? Sometimes we get a better view of the Government from the Minister for Industry and Commerce than from anyone else. We get from him a closeup of the Government in operation, a sort of slow-motion picture, at times, of what the Government is at. Let us take one vital matter on which he spoke yesterday. As the Constitution is at the moment the independence of the judges is secured by this Constitutional provision, that they may only be removed for stated reasons, that these reasons are limited to certain matters, and removal for these reasons can be achieved only by resolution of both Houses. It was pointed out yesterday that if the Seanad abolition measure goes through, then a simple majority here, operating on any resolution that commends itself to that majority, can remove judges from time to time, as those judges become objectionable to the Ministry in power. The Minister for Industry and Commerce lent emphasis to that point. If the Government thought it desirable to remove any of the judges, he said, they would exercise that power. Now, the present Government did think it desirable earlier to utilise the powers they had in relation to the Chief Commissioner of the Gárda Síochána. They were asked why the Chief Commissioner had been removed. It is peculiar that there should be such an echo by the Minister for Industry and Commerce of the phrase used in reply to that query. Questions were put on March 1st, 1933, with regard to this removal when the President replied:—
"No charge was made against General O'Duffy. He was removed from office because, in the opinion of the Executive Council, a change of Commissioner was desirable in the public interest."
Are we to have similar questions asked and similarly answered about judges, after a resolution has been passed? Are we to have questions like this put down? Was there any real charge of misconduct or inefficiency against a named judge? Are we going to get the answer that such and such a judge was removed from office because, in the opinion of the Executive Council, a change of judges was desirable in the public interest? That particular reason as applied to General O'Duffy's case was analysed somewhat later, when on March 14th on a motion put down about his removal from his office. Then the President went into some more details than were given on the earlier question. He still admitted that there was no charge laid against General O'Duffy, that there was no question of inefficiency and no question of disregard of duty, but there was, to the President, one damaging and conclusive argument against General O'Duffy—it was this:—
"Deputy Cosgrave asked me was there any characteristic in the quality of the new occupant of the office that the old occupant did not have"
and the President answered:—
"I say yes, one; that he was not Chief of Police for ten years under the last Administration."
Is that the test that we are to apply hereafter? The Comptroller and Auditor-General will suffer if ruled by that test? How many of the judges will suffer by the application of that test? The Minister said yesterday that if the Government thinks it desirable to remove judges they will do so. They did think it desirable to remove the Chief Commissioner of Police, the reason given by the President being that he was Chief Commissioner for ten years under the old Administration. That was the test he used. With that as the test removals of judges can be achieved by a simple majority of this House and with a guillotine resolution this can be achieved in the space of one afternoon, without any proper time being permitted for reflection, without even such time as would be required to bring the resolution before both Houses and to have it argued before both Houses. The Minister for Industry and Commerce wipes all these considerations aside. The combination of his and the President's arguments comes to this. If you have two Houses in agreement, then the Second House is a futility. If there is disagreement between the two Houses then, clearly, according to their view the Seanad must be wrong and can cause nothing but confusion. There is nothing valuable in delay, in giving time so as to allow for a little better deliberation in order to permit second thoughts, perhaps, to occur about the removal of either a judge or a Comptroller and Auditor-General. So, if the Ministry have power in this House and not in the other, then that Second House is intolerably stopping their progress and should be abolished. If they have control in both Houses what does it matter that there is a Second House? Let us reduce that to an absurdity.
The Government have a majority in this House; that majority is represented by the Executive Council. Why should the Executive Council have to submit a resolution to this House in which they have a majority? Why come near the House? Why not have instead a resolution of the Executive Council? Take that a point further. We know that the present Executive Council is bossed by the President because he controls his own special newspaper, holds, if not all, certainly the majority of their Party funds and he has all their propaganda under his sway. Is there after all any reason why a President with such funds and such propaganda should consult the Executive Council at all? Has the President at that point not realised his ambition? May he not complain: "With my newspaper, my funds and my new propaganda servant, why should I ever bring in a resolution condemning a judge and possibly have to state reasons?" Remember that with regard to General O'Duffy it was stated that "it is not desirable in all cases to give reasons." That was stated on the 1st March, 1933. Why should the President be put to the trouble of stating a reason even to the Executive Council? That is, at any rate, a reduction to the point of absurdity of the sweeping argument of the Minister for Industry and Commerce. "We have control in this House and we can do what we like. Why should we go to another House? Why, alternatively, come here at all?"
This is not an attack on a particular body of men in whose pedigrees Deputy Corry finds nothing sustaining, expert as that Deputy is on pedigree matters. This is not an attack on this body of men because they held up measures that the Government deem to be necessary and because these necessary measures can be rushed to the Statute Book more speedily under the new procedure. The question has not been seriously argued that any obstruction has been put on progress, even as progress is understood by the present Government. This is simply an attack on liberty. It is an attempt at half truths and false arguments in order to destroy an institution. The institution is to be destroyed not because it is either objectionable or unworkable as an institution, but because President de Valera does not take kindly to the thought that there shall be anybody to whom he will have to reveal his true reasons when it is a matter of removing from a post or office anyone he wants to remove from that position, anybody who has authority, which he thinks they should not have, or anybody likely to become powerful in opposition to him.
We have a Constitution at the moment, a written Constitution, and Constitution amendment measures have to go before the Second House. Under the new conditions that will be changed. Bills to change the measures of the Constitution may, if brought in here associated with a guillotine resolution, possibly get passed into law at one sitting of the House. This Constitution, abused as it has been from time to time, at any rate, contains certain fundamental clauses. Here is one:—
"The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law. Upon complaint made by or on behalf of any person that he is being unlawfully detained, the High Court and any and every judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained...."
The Government knows that recently that particular Article was relied upon in a Constitutional case and relied upon against them and to their discomfiture. Will the Article remain? It can be abolished afterwards by a simple measure which may be passed through this House in one day. Article VII says:—
"The dwelling of each citizen is inviolable and shall not be forcibly entered except in accordance with law."
Is that likely to remain? We know that the Blue Shirt Bill was going to make certain inroads into that, and that the right to search premises on suspicion had been given to a police officer. The Bill with that encroachment has been held up. The Article itself may become objectionable. The Minister for Industry and Commerce may decide that it is desirable in the public interest that police officers should have the right to enter the dwellinghouses of citizens. What security is there that a measure to delete that Article will be subjected to any lengthy process of argument with a view to discovering if there is any virtue in the Article before we bid farewell to it. Article VIII guarantees freedom of conscience and the free profession and practice of religion. Is there likely to be trouble that way? Can it be said that there is no likelihood of trouble in that way? Under Article IX the right of free expression of opinion, as well as the right to assemble peaceably and without arms, is guaranteed for purposes not opposed to public morality. Wipe out that Article and there develops a situation which may please the Government but will please them only as long as they are a Government.
The control of finance is an important matter. So much importance is attached to it that you have, in most countries, this scheme of the appointment of a person free from political control to examine the accounts, and report as to whether or not the moneys have been appropriated in accordance with the financial measures passed by Parliament. Under our Article LXIII the Comptroller and Auditor-General is put in a privileged position. He
"shall not be removed except for stated misbehaviour or incapacity——"
At the moment, on resolutions passed by both Houses, but, in future, on a resolution passed by a simple majority here. Supposing it is discovered that the Comptroller and Auditor-General wants to call attention to something which he thinks has been wrongly done. That independent officer, appointed under the terms of the Constitution as at first passed, is under the new system, to be subject to removal by the Government which, being a Government, controls for the time the majority in this House, and is, therefore, on the argument of the Minister for Industry and Commerce sure of its majority for any purpose. He can be removed, possibly, for the reason that he is going to criticise some action of that particular Government in relation to finance. He may have his report in draft. If its contents are discovered, a simple resolution passed here will remove him and take away from him his power to reveal the irregularities he has discovered. Articles LXVIII and LXIX deal with the judges. The judicial power is by these to be exercised in particular ways, and the phrase occurs in Article LXVIII:—
"The judges of the Supreme Court and of the High Court shall not be removed except for stated misbehaviour or incapacity and then only by——"
As it stands at present, resolutions passed by both Houses, but, as it will be in the future, by a simple majority resolution of this House, brought in, possibly, on notice given in the House only on the day on which it is introduced. Article LXIX is complementary to that. It says:—
"All judges shall be independent in the exercise of their functions and subject only to the Constitution and the law."
If there is in modern times one thing firmly held to and regarded as a rare and precious possession, it is that judges have been given an independent position and that they cannot be removed except by a process which was thought, at any rate, to necessitate a statement widening either in capacity and misbehaviour, and widening it to the point of securing approval of a majority of both Houses. The Minister says that if the Government think it desirable to remove judges, they will do so. It may be pointed out that, at the moment, judges can only be removed for stated incapacity or misbehaviour. But how long will that last? If the present Government want to remove that phrase from the Constitution, is there any obstacle to their doing so if this Bill becomes law? If they suffer no check in the process of removing that phrase, what becomes of Article LXIX, which provides that all judges shall be independent in the exercise of their functions?
Let us consider this point from another angle. Certain people may regard some of the present occupants of judicial posts as unsuitable or, at least, not as good as they themselves would be in those posts. They may be thinking of themselves as the partners in this triumph of the dissolution of the Seanad and not as objects of the triumph. How long will the triumph last? Already, I have seen resolutions passed by clubs and a letter from a Deputy with regard to some of the judges. These were probably inspired by the same mood which moved the Minister for Industry and Commerce when he stated that if the Government thought it desirable to remove judges they would be removed. Supposing there are a few vacancies created and that new appointments are made, what tenure of office will these new occupants have? Only as long as they please the Government that put them in. Will they last one day longer than the Government that put them in? If that is the situation that is to be created, will good men be got to accept the precarious position of judgeship for a few years with the prospect of then disappearing? If this business is persisted in of removing people because it is thought desirable in the public interest and of arguing that it is desirable in the public interest because the men concerned had served for ten years under another Administration—if that starts, you will not stop it for a long time. If one Comptroller and Auditor-General is removed, others will follow. If one judge is removed, others will follow. That is easily understood. If judges are removed because a political majority in this House does not like them, the men who will succeed the judges so removed will be poor types because they will know, first of all, that they have succeeded in an unworthy way and, secondly, that they cannot put many years' purchase on their own judicial lives.
The principle of the independence of the judges was long fought for. It is recorded in many books dealing with the Irish Parliament that one of the things Irish Parliaments fought for— and fought for for many years unsuccessfully—was that the judges should be removable only by resolution of the two Houses of the Irish Assembly. Year after year, when Bills were sent over to England containing that phrase, they were returned. The English Government of those days thought that, while it was desirable that judges in England should be independent in the exercise of their judicial functions, the judges appointed by these Englishmen to preside over legal matters in this country should be dependent for their judicial lives upon the English Government.
Year after year for many years Irish Assemblies exhausted themselves in sending Bills to England containing the provision that judges would not be removable except on resolutions passed by the two Irish Houses and that nobody else would have power to remove them except the particular people who voted in those Assemblies. Somewhere earlier than 1800 at any rate that principle was established, and the principle then established has lasted until now. There is now made for the first time the proposal to put the judges on the bench at the mercy of a political majority in one House and the proposal that that political majority alone is to have any say. The Minister for Industry and Commerce tells us that that power is there at the moment and will be exercised if it is thought desirable.