This amendment is consequential on certain amendments which happen to be after it.
In Committee on Finance. - Courts of Justice Bill, 1934—Recommittal.
Sections 1 and 2 agreed to.
SECTION 3.
The following amendment was on the Order Paper:—
1. In page 4, Section 3, line 26, to delete the words "as from the passing of this Act" and substitute therefor the words "as from the dates respectively fixed therefor either by the order or orders of the Executive Council bringing into operation Part II or Part III of this Act or by a prior general order of the Executive Council referring solely to enactments repealed wholly or in part by reason of matters contained in Parts V, VI, VII or VIII of this Act.—George Bennett; Richard Curran.
Amendments Nos. 1, 2, 14, 27, 28, 29, 32 and 43 are much the same.
The others you have mentioned deal with the postponement of the operation of the Bill until certain dates set out. They are not all the same, nor are the arguments in favour or against them the same, but if any of them was passed, something in the nature of amendment No. 1 would be required, because Section 3 simply repeals certain enactments scheduled, and if those enactments are to be repealed there must be something to take their place. They cannot be repealed unless there is something to take their place. I suggest that amendment No. 1 should not be moved at this stage, but it will have to be resurrected in the event of any of the ones you have mentioned being passed, but the discussion had better proceed on the separate items. Amendment No. 27, for instance, is completely distinct from amendment No. 2, which sets out that:
This part of the Act—
that is, the part dealing with the Supreme Court and High Court—
shall come into operation on such day not earlier than the 1st day of October, 1938, as may be fixed therefor by an order of the Executive Council.
Amendment No. 27 is that the next part, the Circuit Court part, shall come into operation on a certain date, and the arguments for bringing into operation the part dealing with the High Court are entirely different from those to be urged in opposition to the date of operation of the section dealing with the Circuit Court.
Could amendment No. 1 not be withdrawn at present?
I propose not to move it.
Amendment No. 1 not moved.
I move amendment No. 2:—
In page 4, before Section 4 but in Part II of the Bill to insert a new section as follows:—
This Part of this Act shall come into operation on such day not earlier than the 1st day of October, 1938, as may be fixed therefor by an order of the Executive Council.
The part of the Act to which this amendment refers consists of the sections dealing with the Supreme Court and High Court. The changes to be made in the Supreme Court and High Court amount to an increase in the number of judges of the Supreme Court, with the removal of certain jurisdictions at present held by the Chief Justice to some member or members of the High Court, together with certain matters pertaining to the Constitution of the Court of Criminal Appeal, two detailed sections dealing with patents and fishery by-laws and two matters as to remittal, one dealing with costs. The big matter that is outstanding in Part II is the appointment of two new judges. There is no necessity, if we leave the Circuit Court and Circuit Court appeals and new High Court circuit system out of consideration, why there should be two Supreme Court judges appointed. I think there was evidence given by only two people before the Commission as to the necessity of appointing extra judges to the Supreme Court, leaving out of consideration the question as to whether the increase in the Supreme Court would be necessitated by the establishment of the new High Court Circuit system. Leaving that out, I think the Chief Justice himself, and possibly the President of the High Court, were the only people who thought the Supreme Court should be strengthened. There is, therefore, no immediate urgency about that matter.
The cost is going to be something fairly big, and it is a cost which was objected to by members of the present Government Party when they were sitting on this Commission. They said that there should not be any increased expenditure in the courts, and they adverted to that with special reference to the Supreme Court, until the prosperity of the country warranted it and the urgency of the business of the courts made it necessary. It cannot be said that there is any special urgency at the moment with regard to the business of the courts. The High Court business has failed; it has gone down by one-third.
The prosperity of the country certainly cannot be said to warrant any extra expenditure at the moment. The amendment now being moved on behalf of Deputy Bennett states that it shall not come into operation until a date to be fixed by the Executive Council, but with the overriding consideration that that date cannot be earlier than the 1st of October, 1938. In other words, if we are to consider this in a sort of abstract way, and agree that there is some change necessary in the Supreme Court, we can, having recorded our views on that, postpone the operation of it until a date three years hence when the country may have had a chance of recovering some of its old time prosperity. An entirely different set of arguments are to be used on this matter than on the Supreme Court or even on the High Court system. Different considerations will apply. I can see no reason whatever warranting the introduction of the cost of two new judges to the Supreme Court. It has never put up anything more than that the court needed strengthening, and that by analogy with other places the court in personnel was limited.
There has been used a mathematical argument which I could not understand, a calculation worked out which would go to show that, in certain cases, you may actually have a person a victor in a case where the view is a counting of heads, that as between the Supreme Court and the High Court judges who may have heard the case there would have been a minority in favour of the victorious party and a majority against him. This mathematical calculation is possible and may result whether the Supreme Court is composed of three or five judges. If, for instance, something has been accepted by a bench of judges—three in number—in the High Court, and if that happens to go on appeal and is accepted at the moment by two of the Supreme Court judges, with one objector, it may be said that there is a complete majority in favour of the individual. You can get that situation the other way. If, say in a case of first instance, there happened to be two judges against a person who takes an action—two judges sitting together —and that that case is appealed to the Supreme Court and there is a majority decision there, you have three against that individual and two for. Exactly the same result will follow as far as a majority is concerned if you have five in the Supreme Court. I could never see what force there was in that argument. I do not know what argument is going to be used to say that at the moment there is a necessity to increase the personnel of the Supreme Court. At most two people gave evidence in favour of it and they were not urgent as to the date.
The purpose of the Bill, so far as it can do, is to make an effort to implement the Report of the Joint Committee. The Joint Committee did not state that there should be a Supreme Court of five, but it did definitely state that it should be greater than three. The Chief Justice, I think, in his evidence mentioned five, and it is to implement that proposal that this section is in the Bill. The Supreme Court has to be regarded now as the ultimate and final court of the country. There is no appeal from it.
How many appeals were there ever?
On the basis that it is the final Court of Appeal I think it is the view now that there should be five judges. It was certainly the view of the Chief Justice. He was the responsible witness who gave evidence on the matter, and his views should be taken into consideration. I do not see any point in postponing this except, as I understood, when it was introduced first, that it was an attempt by a sort of a side-wind to raise the whole question of the economic war. I think that was the object of the amendment when first put in by Deputy Bennett. My view is that there is no point in the Deputy's suggestion that it should be postponed for three years. If it is going to be done let it be done now.
There is no force in the suggestion that the country may be able to bear it at one time and may not be able to bear it at another.
If this was going to impose enormous expense on the country, I could see the force of the Deputy's point.
Whatever it is going to impose, it was regarded by members of the Committee on your side and they have reported on it.
We suggest that the country has improved very much since then.
Would not the postponement of this give us at least a chance of repealing the provision altogether if we came to the conclusion later that it was desirable to do that. The Minister for Justice is asking a lot in asking us to accept this on the "say so" of the Chief Justice. It is up to the Minister to make a case for this, but so far as I know he has not made any case in regard to congestion. There is a good deal of delay, very undesirable delay, in giving judgments, but that I think arises rather from faults in the judiciary themselves than from any under-staffing of the bench.
Let us get clear on one point. The Minister says that he is following the recommendation of the Courts of Justice Committee.
So far as strengthening the Supreme Court is concerned.
He forgets entirely one recommendation, that the judges of the Supreme Court should not be called upon to assist in the work of the High Court. Deputy Costello said that in hardly any respect do the proposals of the Bill follow the recommendations of the Joint Committee. Only two people gave evidence in favour of strengthening the Supreme Court and both expressed themselves more definitely on this point than on strengthening the numbers in the Court: that the judges of the Supreme Court should not be called upon to assist in the work of the High Court. The Minister tells us that there is not going to be a great deal of expense in this. Whatever it is, it weighed on the mind of the present Parliamentary Secretary to the President and on the mind of Senator Comyn, both of whom were on that Committee. One of them proposed, as an amendment to the report dealing with this:
That the Committee are, however, convinced that the considerations which it is stated in evidence weighed against any recommendation by the Judiciary Committee in 1923 for an increase in membership of the Supreme Court are even more compelling to-day. The Committee are of the opinion that there should be no increase in the cost of the Supreme Court until the increased prosperity of the country warrants it and until the volume of business in the superior courts urgently requires it.
Now, I would like to have some figures showing that from the decreased number of cases at present running through the High Courts there is greater urgency in regard to appeals taken to the Supreme Court, or at any rate something more than the cynical phrase that the country is better off now; that there is increased prosperity in the country. At any rate, Deputy Little, as he then was, and Senator Comyn continued:
Further, they recommend that any changes made in the Supreme Court should be accompanied by a revision of salaries in the light of a comparative study of the salaries paid to judges of equal rank in other European countries, for instance, in France, where the scale of judicial salaries is much lower than in the Free State.
That, of course, is rubbish with regard to the two eminent members of the Committee who signed it. I do not think that they themselves made any comparative study of the salaries and other emoluments that are paid. At any rate, these two people were impelled by the then situation in the country and reported that there was no great urgency in the case of the Supreme Court and recommended definitely against any increase in the Supreme Court. I do not know whether the Minister has thought out this question of salaries. The Minister, although a member of the legal profession like his colleague the Attorney-General, did not scruple to use the flaring poster that was issued during the General Election. In the forefront of this poster was the amount of judicial salaries. Both of the gentlemen opposite used that in the elections. Despite the fact that their colleagues, I suppose with Party support, recommended against any increase in the Supreme Court, we are now told it cannot even be postponed until 1938.
The Attorney-General
I gathered from the Deputy that only one or two witnesses gave views in support of the strengthening of the Supreme Court. Let us look at the evidence of Mr. Price, K.C., on page 288 of the Minutes of Evidence, question 4295. The Chairman asked Mr. Price: "Have you any recommendation to make regarding the constitution or work of the Supreme Court," and the answer was:
"We did not, as a Bar Council, formulate any, but I know the opinion of the Bar on the subject and I know my own opinion and can sive it for what it is worth. It is this: The Supreme Court is right enough for trying matters of, say, practice and matters of importance, perhaps, to litigants themselves, but not matters of very general and universal importance in the Free State. It is too small a court when you come to a big question of constitutional importance or very big important actions. It is too small a court as a Supreme Court of the country and we think that there should be some power taken either to increase its number permanently, or to enable the Chief Justice to assemble a larger court to hear the more important cases."
Exactly, as an alternative, which I have put down as amendments.
The Attorney-General
Does the Deputy stand for the alternative rather than against any increase?
I have amendments down which aim at the alternative.
The Attorney-General
Some of the arguments to which I have listened have been directed to show that our Bill really appoints High Court judges at Supreme Court salaries, and the method adopted is the method of allowing the court to be increased for important cases, and otherwise allowing two members to do High Court work.
Not necessarily two extra men.
The Attorney-General
I shall deal with that in a moment. The answer of Mr. Price went on:—
"For instance, if there were the President of the High Court, if it were possible to bring him in in addition to the three judges and some other selected judge. I do not mean a judge selected by Statute, but the Chief Justice could find out some other High Court judge who is not involved in the particular case; he might bring him in also so as to constitute a court of at least five or six judges. That would mean having five judges of the Supreme Court, three of them sitting regularly, and the other two being available for other work—something of that kind."
Is not that the proposal in the Bill?
Does it do only that?
The Attorney-General
The Deputy is a master of quibbling and evasion. He stated here that no case was made by any witness for the increase or strengthening of the Supreme Court. He and some of his colleagues also have attacked the method by which we seek to provide a Supreme Court of five, and yet allow the Supreme Court to be drawn on for other work. Here is the representative of the Bar Council——
Not speaking as such.
The Attorney-General
Excuse me, speaking as such.
He began by saying, "We did not as a Bar Council formulate any." He says he speaks his own opinion.
The Attorney-General
He said: "I know the opinion of the Bar on the subject."
That is only his opinion. He is not speaking for the Bar Council.
The Attorney-General
Everybody knows that Mr. Price is a senior counsel of long standing and considerable experience and even his sole judgment on the matter is well worth having.
Undoubtedly.
The Attorney-General
He offers it, not only as his own judgment, but the opinion of the Bar. Here is the practical suggestion made by him, which is almost exactly what is in the Bill:
"That would mean having five judges of the Supreme Court, three of them sitting regularly and the other two being available for other work—something of that kind. I think in the important cases there ought to be a larger court, however you may arrive at it. The Supreme Court, being the Supreme Court of Appeal in this country, it sometimes happens that a previous decision of theirs, perhaps ten years ago, on more careful review of the Statutes is not right; they come to the conclusion that they were wrong. They ought to have the power of reconsidering that decision, there being no further appeal from them. In the old days what was done was this: The Supreme Court or the corresponding court consisted of three judges. They could bring in as many as six or seven justices, the Chief Justice, the Chief Baron, the Master of the Rolls, and sometimes they had the ex-Lord Chancellor, making the total up to about seven. They sat as a kind of Appeal Court on their previous decisions, which they revised in order to prevent the Statutes being wrongly construed. There is no such thing now; they are absolutely bound by their decision no matter how wrong it is."
Let us turn to the evidence of the President of the High Court, not so much for his evidence, because I think he also takes the stand that he had not considered the matter, but for the statement contained in Senator Brown's question to him. At question 5104, page 350, Senator Brown says to the President of the High Court:
"You would perhaps be able to give us your view of whether it would be desirable to increase the number of permanent judges in the Supreme Court, in view of the fact that it is for all practical purposes the only final court. We have had that question already before us here, and the suggestion is that the number ought to be increased either to five or four, because it is important to have the majority of judges in favour of the ultimate decision, which might not be the case if there was an appeal from three judges to two. What would be your views on that matter?"
The answer of the President of the High Court was:
"If the Supreme Court is to be a final court, there is a great deal to be said for making it as strong as possible. Speaking for myself and for my colleagues of the High Court, I do not think that there is at present any feeling of dissatisfaction with the Supreme Court as constituted."
Senator Brown then said: "There has been no suggestion of that," and the President of the High Court said: "I can quite appreciate that the final Court of Appeal for the Free State ought to be a very strong one." Then the questions went on:—
"Chairman: Would you suggest four or five judges at present?— Well I do not know that I have given very much consideration to the question of the number.
Senator Brown: Would it help you if we gave you this assistance as to the number of judges in other Dominions? The Supreme Court and the Court of Appeal in Canada has the Chief Justice and five other judges, that is six judges. In South Africa the Supreme Court has three judges. Those are the only precedents we have had?—My own personal view—and it is only my own view, because I have not considered this matter and I have not discussed it at all with any of my colleagues — would be rather in favour of a Supreme Court of five than four judges. Five would be more satisfactory than four. I am aware that some of the judges are of opinion that the advantage of four was that if the judges were equally divided, two and two, that then the decision of the judges below would stand. I do not think that that is a satisfactory way. I think the decision come to by the Supreme Court in deciding a point at issue should be the decision of the majority of judges in that court. That would be my own view.
Would it be your view that if the number of judges in the Supreme Court were increased to five they should be confined to the Supreme Court—that is, that the two extra judges should be confined to the work of the Supreme Court and not be available for work in the High Court?—I am very anxious that the number of judges in the High Court should be increased. I would prefer that the judges in the Supreme Court were confined to the work of the Supreme Court. I do not think having judges in the Supreme Court who are also judges in the High Court would be very satisfactory."
And so the evidence goes on.
At a later question, he is against the idea of taking up High Court judges to be Supreme Court. He is definitely against that.
The Attorney-General
I am aware that that is so. Mr. Binchy, K.C., gave evidence at question 5032, page 345. The question asked was: "How many extra judges would you say would be required in the High Court?" and the answer was: "At least two." Then, the question was: "And you think it desirable that the number in the Supreme Court should be increased to five?" The answer was: "That five should be available if required, not five for every case."
That is right.
The Attorney-General
Well, although it is the other way in practice, that at least is provided for here.
Yes, but by two new judges.
The Attorney-General
Yes, but does the Deputy suggest that the scheme which is provided in the Bill, of increasing the Supreme Court to five, could be carried out, with the number of judges available in the High Court, by drawing on them for two judges in important cases? My opinion definitely is that that would not work, even if you were to continue the present system. You have the evidence of the President of the High Court, who all through his evidence stressed the need for extra judges in the High Court to discharge the business there, even if the present system were to continue.
One judge. He asked for one additional judge.
The Attorney-General
Very good, one judge. Well, is it possible to argue that, if the President of the High Court asked for at least one judge—I think Mr. Binchy suggested two, but let us take the President's suggestion and he suggests that, as the business stood in the High Court at the time of his evidence, it would require an extra judge merely in order to carry out the work efficiently and keep it up to date—is it possible to argue—or does the Deputy suggest, that, if the two judges of the High Court were to be made available to sit in the Supreme Court from time to time, that would not require a further addition of two judges in the High Court? I cannot understand how they can say that in practice it would be possible to carry out a scheme for increasing the Supreme Court by taking two judges from the High Court, and not increasing the strength of the High Court by at least two, if not three.
Now, on the question of the strength of the Supreme Court, as the President said at the time, there is no complaint about the Supreme Court as it stands at the moment. There is the feeling, however, which Mr. Price there expressed in his evidence, that a Supreme Court of five would be a much more satisfactory and desirable tribunal, particularly in view of the fact that, without any doubt whatsoever, it is now the final Court of Appeal. I think, too, that most members of the Bar and most judges would agree, that, in theory, the Supreme Court ought to number five. I follow Deputy McGilligan's argument that the argument which was used in support of that was based on the possibility at the present moment of having a majority of judges overruled by two Supreme Court judges: that an analogous danger exists even if you increase the number to five, and in that event you may have three overruling four. That, possibly, is an argument for making a quorum of four judges. Well, it is not quite easy to see how that difficulty can be got over, but as to the general opinion of those who were interested in having a strong court system and a system which would appeal to everybody and give satisfaction, I think there are no two opinions on the question as to whether it would be better to have a Supreme Court of five than one of three.
Some of the Deputies, I think, accept the position, apart from the arguments they advanced, that there is no urgent necessity to do it now or that there are reasons why it should be postponed. They do say that if the Supreme Court is to consist of five, the judges thereof should not be assigned to the High Court. The President of the High Court gives that as his opinion very strongly. I have the greatest respect for the President of the High Court. Apart altogether from that, I quite agree that it is desirable, and that it would be desirable, that the Supreme Court should be a Supreme Court and nothing else. I think that, on the Second Reading, I accepted that position but pointed out that if we are to carry out the scheme of the Bill, with regard to the strengthening of the High Court and the provision of sufficient judges to hear the civil Bill appeals, unless the judges of the Supreme Court are to be available to hear Circuit Appeals the system would not work. Deputy Costello says: "Why not frankly meet that position and add two judges to the Supreme Court; have a Supreme Court of five and have the High Court strengthened by the addition of two judges?" While, in theory, it is desirable to have a Supreme Court aloof and away from any business of such a nature, I do not at all feel that the arguments which were advanced here, against allowing Supreme Court judges to be assigned to ordinary High Court work or to go around the country, have as much weight as apparently, the speakers who have advanced these arguments consider. I do not quite see how it disables a judge from being an excellent member of the Supreme Court that he should have experience of trying common-law actions in the High Court, or dealing with chancery work in the High Court, or dealing with Civil Bill Appeals. I cannot agree that there is so much force in the argument that we are not entitled to endeavour to make this experiment and see if, by allowing the Supreme Court to consist of three or of live, according to the opinion of the Chief Justice as to whether the cases are of such importance as to require a court of five, and allowing the judges of the Supreme Court to be assigned to do ordinary High Court work and to go out around the country — I cannot see how their ability or capacity to deal with such Supreme Court work as they are called on to do will be affected. While it may be desirable in theory, I imagine that, in practice, it will be found that a judge, who has from time to time to do High Court work or to go around the country and hear Civil Bill Appeals, will in no wise lose the respect of the practitioners who appear before him, and will in no way have lost any of that acuteness of mind which he requires for the hearing of the cases which come before him in the Supreme Court.
Deputy Costello stated on the Second Reading that we were taking a middle course. We are taking a middle course because we believe that the present system of appeals should be changed and that there should be a return to the old system of civil bills re-hearing. In order that that should be workable, we must have more judges available for the hearing of these appeals than would be available if we were only to draw upon the present personnel of the High Court. We also considered that the arguments in favour of strengthening the Supreme Court are sufficiently strong to justify a strengthening of that court.
We seek in the Bill to achieve two objects—one, to provide enough judges to enable the change to the old system of hearing appeals to be carried out and at the same time to provide that in the ordinary way there should be five judges in the Supreme Court. How it will work out is left in the hands of the Chief Justice. Presumably, how it will work out is that when the President of the High Court finds it necessary for him to call upon the Supreme Court to assist in discharging business of the High Court or, when the Supreme Court judges are required to go out on circuit, the least important cases will be heard in the High Court and the more important cases will be reserved for the full Supreme Court. If I may prophesy or venture my opinion as to how it will work out, I believe that it will work out with the goodwill of everybody concerned. The ideal was to have a position in which we would have two extra High Court judges and two Supreme Court judges additional. That was I will not say impossible, but from the point of view of cost it is considered undesirable to go that far. The middle course will in the practical working out justify itself and it will give the results which we hope from it.
I was rather glad to hear the latter part of the arguments of the Attorney-General. What he has said is a complete departure from what he started with. At one time we were hit over the heads with the report of the Joint Committee. It was held over our heads and there was an attempt made to stun us with it. I agree with what the Attorney-General now says. We should have freedom in these matters. I am all for that. All I am saying just now is—why cannot we look at the evidence and see what certain eminent people saw and see whether that evidence is in accordance with the facts as we know them? We should not be paralysed or stunned by the report of the Joint Committee. That is more especially the case when we now find that the Attorney-General gets away from the report. What is the report? It reported in favour of a Supreme Court consisting not of three members. That is the extreme of the recommendations of the Joint Committee—that it should not consist of three members. The Deputy's colleagues on the Committee reported against an increase in the Supreme Court on the grounds that the finances of the country could not stand it and that there was no urgency in the business.
The Attorney-General
The Deputy might look up what his colleagues said.
Looking back at it one can feel, considering what the economic position of the country was then and what the economic facts staring us in the face now are, how much stronger are the arguments to-day against an increase than they were then. The members of the Fianna Fáil Party on the Committee at that time argued that the appointment of those additional judges was undesirable on the ground that the finances of the country did hot warrant their appointment. Yet these are the same Deputies who are now coming up here to vote for this additional expenditure. Surely the Government are closing their eyes to the facts of the situation. The only condition then contemplated before the Committee was as to whether the judges should be four or five. There was one thing at any rate which the Committee did advert to and that was that there should be no taking away of the Supreme Court judges to do High Court work. I do not say that is a specific recommendation. That was brought in and pushed forward by one eminent witness. There was a recognition of the case for an increase in the Supreme Court with, at the same time the Fianna Fáil Deputies on the Committee crying out "we cannot afford it." One point made before the Committee was: "Do not let your Supreme Court judges do any High Court work." I was wrong in saying that only two witnesses gave any evidence on this point. The only witness who appeared and went in to give evidence in a representative way in favour of the enlargement was the Chief Justice. The President of the High Court said that none of his colleagues thought that the Supreme Court was not to be cavilled at in any way. They were Satisfied with its personnel. It was only after a bit of leading by the members of the Committee that the President of the High Court could be got even to discuss whether or not there should be an enlargement. And the most he said was this: "If you are going to enlarge it, enlarge it to five, not four." There was the question raised of a divided judgment and the idea was that if the court was divided evenly the view that prevailed in the lower court, would then prevail in the Supreme Court.
There were three other persons who mentioned strongly the question of the High Court. As far as I could discover from a detailed leading of the recommendations and the evidence, Mr. Price referred to it, so did Mr. Moloney and Mr. Binchy. These were the only ones outside the Chief Justice and the President. The only one of the lot who advanced arguments of his own without being led to do so in cross-examination was the Chief Justice. He said that he always had the idea that there should be a Supreme Court of four or five and that he was originally overruled on the grounds of economy. You will find from that, that though it is considered a light matter now to increase the Supreme Court by two judges, in 1923-4-5 and onwards it was considered rather an important matter on the grounds of economy. The Chief Justice, when he was Attorney-General, had some strong views on this matter, but he found himself overruled and gave in. Perhaps, though that had an Analogy, he did not pursue it very far, but it is clear that the Chief Justice's mind ran to an increase in the Supreme Court. Why he wanted that is another matter. The President of the High Court was asked his view and he said that he was satisfied with the Supreme Court as it was, and in reply to a question he said: "Well, make it five rather than four," and he added, "Do not let your Supreme Court judges do any High Court work." Mr. Price said he was not there for the Bar Council in that matter, but he gave his own view. For what he called the ordinary routine of cases, he thought the court of three was sufficient, but in an odd constitutional or commercial case he would like to see the court enlarged. How did he propose to enlarge it? By calling in two High Court judges. Mr. Moloney said he agreed with Mr. Price. There was an argument based on the analogy I have talked about, and I do not think it should count for very much. The other person was Mr. Binchy, who thought there was a feeling that it would be better if the Supreme Court was increased in number. There is the entire evidence as well as the recommendations.
That is the first point—strengthen the court. Are we to add to the numerical strength? The second point is how are we to get the added strength? The Chief Justice accepted a proposal and it was this, have a Supreme Court of three, but take power to call in in association with the Supreme Court the President of the High Court. Then there was the scheme of bringing up from the High Court for a special occasion a judge of the High Court. I do not think the President of the High Court gave any evidence on that point. He objected to Supreme Court judges doing High Court work. He did not say he objected to High Court judges doing Supreme Court work on occasions. Mr. Price and Mr. Moloney thought that was the way to meet it and Mr. Binchy had no proposal on that matter. You either appoint extra Supreme Court judges and say: "You will do High Court work when the Chief Justice likes you to," or you can say: "Leave it at three ordinarily and we recognise the court may need to be enlarged." Increase the power you now have in regard to the President of the High Court and take power to call in extra people from the High Court. That can be done without expense. Mr. Price said it would be a very infrequent occasion when it would arise. That is a suggestion I will make in a series of amendments later. You have one distinctive thing, the strength of the court, and there was nothing very definite other than from the Chief Justice in favour of an increase.
I regard the argument of the Privy Council as not of any great weight. Anybody can see that the cases that went to the Privy Council, or in regard to which an attempt was made to bring them there, were not of such number or importance that their disappearance adds an extra burden to the Supreme Court. The Privy Council was never an effective court of appeal here. It was stamped on from the very beginning and it never operated. The Supreme Court from the start was and must be regarded by the people as the final court of appeal for litigants. There is only one person strongly in favour of an increase in the numbers and that person, the Chief Justice, was equally strong that Supreme Court judges should not be sent to the High Court. I think that view is to be found expressed by a great many other people although it only arose incidentally. Phrases did come in, but you did get definitely that viewpoint which the Attorney-General says he objects to.
The Attorney-General
Objects to what?
The view that Supreme Court judges should not be sent to do High Court work.
The Attorney-General
I said I accepted that. I said if it were possible so to provide, I was in favour of that.
This Bill is a compromise following out the different views expressed.
The Attorney-General
It combines the two great objects——
There is another way of combining and that is to appoint your judges from the personnel of the High Court. People who have experience, speaking on this matter, said they would prefer that to the other system—bringing in people occasionally from the High Court to do Supreme Court work.
The Attorney-General
The position which will be created by the change of the system of appeals——
I am against the change in the system of appeals. I do not think it will work for the good of the people. I do not think, with the decrease in the business that is showing, that there is going to be such stress upon the judges of the High Court. If the business remains at its present level, I do not see why they could not do the odd cases in which they will be likely to be called into the Supreme Court while doing any other duties that may be put on them. Let us assume extra business by reason of the appeals system being changed. It may mean the addition of one or two judges to the High Court bench. You will then have a new number in the High Court different from the present number. Why cannot some of that new number be called in to do Supreme Court work, but left definitely and clearly as High Court Judges? The Bill says we want an increase in the High Court because of the change in the Circuit Court system and therefore we will appoint Supreme Court judges. It is not logical, but that is the scheme in the Bill. We want an increase in the High Court and the way we will get the new personnel is we will appoint two to the Supreme Court. Is not that, in fact, what the Bill is? That is clearly the Bill.
The Attorney-General
I tried to explain what I thought the Bill was, to strengthen the Supreme Court and at the same time provide for the High Court work following the change in the Circuit Court appeal system.
Is not that the situation—that we are going to have two new Supreme Court judges?
The Attorney-General
You are having two new judges in the Supreme Court made available in order to avoid the necessity of appointing High Court judges for the purpose of carrying out the appeals work.
Are the new appointments likely to be two in number and are they going to be to the Supreme Court? I think that is clear from the Bill. What are the two judges going to do? They are going to do the extra work thrown on the High Court because of the new system of appeals. That is against the recommendations of the Committee. The recommendations were that if you want extra High Court judges for extra High Court work, appoint them. If you have an extra personnel or only the present personnel in the High Court you can draw on it to do the odd cases in the Supreme Court that will require more than three judges. The illogical view is taken here and yet the Attorney-General tells us they are following out the recommendations of the Committee. They are not.
The Attorney-General
I did not refer to the recommendations of the Committee.
The Attorney-General read the statements of about four people. The report refers to the evidence of two of the witnesses to whom the Attorney-General referred. The Committee point out that efficient as the Court of Appeal is, they do not think it ought to consist of only three members. You have to go to the evidence to find out what else there was there, and I suppose I have said that ad nauseam. As regards the increase of the Supreme Court, there is no great necessity for it. There is a strong view expressed right through the evidence, do not let Supreme Court judges do High Court work. I do not know why that was so strongly held.
The Attorney-General
I do not know why, either. I do not understand the real point.
I am not so very conversant with that to say what the reasons are and whether they are sound or otherwise; but men of eminence have spoken in that way and we should consider their point of view until we are able to get better arguments in its place.
The Attorney-General
These were statements, not arguments.
It is not fair to say they were merely statements. There were numbers of questions, and this was a clearly-got expression of opinion not to allow Supreme Court judges but High Court judges to do the work. We apparently are not going to do what these people were in favour of. I am asking merely, at this moment, that this change, proposed in the strength of the Supreme Courts, if we agree to it now, in terms, should not be operated until, at the earliest, the 1st October, 1938. Then we will be able to see what the new scheme is and what sort the social standard of the community with which it is to fit is.
The Attorney-General
That is after the next election.
That would be a suitable opportunity to take a decision on it; it was the very reason why October, 1938, was put down.
The Attorney-General
I thought so.
Is that any reason why people, amongst other things, should not be allowed to pronounce upon this? Surely it is not because the tide is going to wash that certain limpets should be clinging to the rocks.
I look upon this amendment from the point of view of the ordinary man in the street; and the obvious fact is that litigation is declining progressively, and that only for sweepstakes disputes, and actions of a political nature, and murder cases, its decline would be more apparent. That is an obvious fact. Now with regard to strengthening the Supreme Court, it is my honest opinion, no matter what anybody else may think, that three judges if efficient could decide the ordinary cases that come before them as well, or as badly, as 33 judges. Mr. Justice Bridlegoose, of whom Deputies have heard, was a most satisfactory judge and, Sancho Panza, who never heard of Coke's Institutes or Blackstone's Commentaries, or the great Roman jurist Ulpian, was, at any rate, a good judge. There is, in my humble opinion, at the present time, no necessity for increasing the number of judges in this country. All I say, and I say it as briefly as I can, is, that the present financial condition of Ireland, and the present decrease in legal business does not justify this indecent haste in trying to appoint new judges, who are not in my humble opinion required in the present circumstances.
Amendment put.
The Committee divided: Tá, 36; Níl, 55.
Tá
- Anthony, Richard.
- Belton, Patrick.
- Bennett, George Cecil.
- Bourke, Séamus.
- Brennan, Michael.
- Broderick, William Joseph.
- Burke, James Michael.
- Coburn, James.
- Costello, John Aloysius.
- Curran, Richard.
- Daly, Patrick.
- Davitt, Robert Emmet.
- Desmond, William.
- Dillon, James M.
- Dockrell, Henry Morgan.
- Dolan, James Nicholas.
- Doyle, Peadar S.
- Esmonde, Osmond Grattan.
- Fagan, Charles.
- Finlay, John.
- Haslett, Alexander.
- Keating, John.
- Lavery, Cecil.
- MacDermot, Frank.
- McFadden, Michael Og.
- McGilligan, Patrick.
- McGovern, Patrick.
- Morrisroe, James.
- Mulcahy, Richard.
- Murphy, James Edward.
- O'Donovan, Timothy Joseph.
- O'Higgins, Thomas Francis.
- O'Leary, Daniel.
- O'Neill, Eamonn.
- O'Sullivan, John Marcus.
- Wall, Nicholas.
Níl
- Aiken, Frank.
- Beegan, Patrick.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Daniel.
- Brady, Seán.
- Briscoe, Robert.
- Carty, Frank.
- Concannon, Helena.
- Corbett, Edmond.
- Corry, Martin John.
- Crowley, Timothy.
- Daly, Denis.
- De Valera, Eamon.
- Flinn, Hugo V.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Andrew.
- Gibbons, Seán.
- Goulding, John.
- Harris, Thomas.
- Hayes, Seán.
- Houlihan, Patrick.
- Keely, Séamus P.
- Kehoe, Patrick.
- Kelly, James Patrick.
- Kelly, Thomas.
- Kennedy, Michael Joseph.
- Keyes, Michael.
- Kilroy, Michael.
- Kissane, Eamonn.
- Lemass, Seán F.
- Little, Patrick John.
- MacEntee, Seán.
- Maguire, Ben.
- Maguire, Conor Alexander.
- Moore, Séamus.
- Moylan, Seán.
- Murphy, Patrick Stephen.
- Murphy, Timothy Joseph.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Grady, Seán.
- O'Reilly, Matthew.
- Pattison, James P.
- Pearse, Margaret Mary.
- Ruttledge, Patrick Joseph.
- Ryan, James.
- Ryan, Martin.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
- Ward, Francis C.
Tellers:—Tá: Deputies Doyle and Bennett; Níl: Deputies Little and Smith.
Amendment declared lost.
SECTION 4.
(1) So much of Section 5 of the Principal Act as enacts that the Supreme Court shall consist of three judges is hereby repealed, and in lieu thereof it is hereby enacted that the Supreme Court shall consist of five judges, of whom the president shall be the Chief Justice.
(2) The provisions of Part I of the Principal Act in relation to the Supreme Court and the judges thereof (including the provisions of Section 5 thereof in relation to the respective titles of the Chief Justice and of each of the other judges) shall, save as expressly repealed by this section, continue to apply and have effect notwithstanding the increase made by this section in the number of the said judges.
(3) Notwithstanding the increase made by this section in the number of the judges of the Supreme Court, any appeal to or other matter cognisable by the Supreme Court may be heard and determined by such number, not less than three nor more than five, of the judges of the Supreme Court (including judges who are, by virtue of Section 6 or Section 7 of the Principal Act, additional judges of the Supreme Court) as the Chief Justice or, in his absence, the senior ordinary judge of the Supreme Court for the time being available shall determine in respect of each such appeal or other matter.
(4) Section 2 of the Courts of Justice Act, 1928 (No. 15 of 1928), is hereby amended by the deletion of all words from the words "or in the event" where they secondly occur to the end of the section and the substitution therefor of the words "who is for the time being available," and the said section shall be construed and have effect accordingly.
I move amendment No. 3:—
In page 4, Section 4, to add at the end of sub-section (1) the words "and two shall be such judges as are, by virtue of Section 6 or Section 7 of the Principal Act, additional judges of the Supreme Court."
This is an attempt to move along the lines of the evidence that was given, and to allow the scheme which was outlined by Mr. Price, amongst others, to take effect. In other words, instead of having a Supreme Court with a nominal strength of three, as it is in the Principal Act, there would be a Supreme Court with a nominal strength of five. Under the Principal Act, when the number was three, the President of the High Court was ex officio an additional judge of the Supreme Court. Section 7 of the Principal Act says:
Whenever owing to the illness of a judge of the Supreme Court or for any other unavoidable cause, the number of judges of the Supreme Court requisite for the transaction of the business of that court is not available, the Chief Justice may request any ordinary judge or judges of the High Court to sit on the hearing of any appeal in the Supreme Court, and any judge so requested shall sit on the hearing of such appeal and be an additional judge of the Supreme Court for such appeal.
I want to achieve that while establishing a Supreme Court with a nominal five as its number, it would still be the same three as before, the President of the High Court ex officio raising it at times to four, and with the Chief Justice given power to call on two judges of the High Court from time to time so that he could make the number of the court up to the requisite five when he considers that five are necessary. That is definitely moving away from the scheme that is in the Bill, in this detail, that it is trying to prevent Supreme Court judges as such being appointed and sent out to do High Court work. It is allowing of the Supreme Court being strengthened by the calling in from time to time of two judges from the High Court. It does not say whether the High Court is to be enlarged in its numbers or not. That is left for another amendment. If there are people who think that the Supreme Court should in certain cases be enlarged to five, but should ordinarily continue with the number three, then this would enable the Chief Justice, whenever he thought the number ought to be five, to call on the High Court to supply him with two of its personnel, and thus he would make up his full number. It is definitely in accordance with the view-point which was expressed by certain witnesses. It is better surely to have power to draw on the High Court instead of increasing the number in the Supreme Court for all cases. It is better to have power to call on the High Court in the odd case, seeing it was the odd case of constitutional or commercial importance that was emphasised in the evidence.
The Attorney-General
I think we have been over all the ground already in the last amendment. The Deputy apparently thinks a good thing cannot be repeated too often.
I think it ought to be repeated until it is answered.
The Attorney-General
Again referring to the evidence of Mr. Price, I see here that he was in favour of sending Supreme Court judges out on circuit to do High Court work. The Deputy seems to suggest that his view as to how the strengthening of the Supreme Court should be carried out was by more members. I do not think that is so.
Let me read——
The Attorney-General
Let me read first. Question 4314 and the following questions are:—
"You suggested that if the mode of appeal were altered Supreme Court judges might go on circuit?—Yes, some of them.
And try appeals?—Yes.
That would be better than letting the High Court judges go out and making the Supreme Court judges do the absent judges' work in the High Court?—The idea is that the High Court should break up and spread over the country and the Bar would follow. There should be very little High Court work done in Dublin during that time. Under a system by which the High Court should break up and go out to the country you can get a good strong Bar. They will follow the judges. Experienced men will appear for two or three guineas——"
This is, apparently, the bit of evidence to which the Deputy referred a moment ago, as coming from an experienced member of the Bar.
"——whereas if you want the same man in the Circuit Court at the moment you will have to give him 25 gunieas, because he cannot come away from Dublin under a smaller fee."
I do not know if that is quite the question I meant to refer to, but it is clear from Mr. Price's answers that he was in favour of Supreme Court judges going out on circuit. In one answer, on which I thought I could lay my hands, he said that he could not see why Supreme Court judges should not go out on circuit. The Deputy's amendment I interpret as being an attempt to meet any requirement there is for strengthening the Supreme Court by utilising the sections which at present exist, extending them and allowing the Supreme Court to be strengthened from time to time by taking on judges from the High Court. I have already given my views on that and explained that, although I do not quite appreciate the reasoning for it, I agree that it is more desirable that the High Court should be drawn on to strengthen the Supreme Court than that the Supreme Court should be drawn on to do High Court work. In the Bill, as I have said over and over again, we attempt to achieve two objects (1) to strengthen the Supreme Court and (2) to enable the system of circuit appeals, which is the main object of the Bill, to work satisfactorily. It is a compromise solution and the only way in which we will be able to see who is right, on the question of how it should be worked, is by seeing how it does work.
That is why I suggest leaving it over until 1938 when we could see it even as a scheme.
The Attorney-General
How will that do it? If it is not to work until 1938, how would you know how the scheme is working?
We can look at it as a scheme and view it in the light of the part of the Circuit Court that might then be operating with the Supreme Court part held over. The Attorney-General wanted to refer me to what Mr. Price said. I should like to read to him the bit I wanted to refer him to. It is:
"It is too small a court as a Supreme Court of the country and we think that there should be some power taken either to increase its number permanently or to enable the Chief Justice to assemble a larger court to hear the more important cases. For instance, if there were the President of the High Court, if it were possible to bring him in in addition to the three judges and some other selected judge. I do not mean a judge selected by statute, but the Chief Justice could find out some other High Court judge who is not involved in the particular case; he might bring him in also so as to constitute a court of at least five or six judges."
That was the point that my amendment was really going on and that was because Mr. Price went in there as sneaking for the Bar Council. Of course, he did definitely say, and I prefaced my remarks previously with this, that "as a Bar Council we did not formulate any opinion regarding the constitution of the Supreme Court"—but then the Attorney-General threw Mr. Price as a makeweight into the scales in his previous argument, that, at any rate, he had his opinion. There is his opinion— let the court be constituted by getting in the President of the High Court and the Chief Justice selecting some other High Court judge.
The Attorney-General
Question 4274 is the question I was referring to:—
"If the Supreme Court were increased to five, there is no reason why three could not hear unimportant cases while the circuits were out and the other two go on circuit."
"If the Supreme Court were increased to five"—that is, increased permanently. But then, surely, he comes back to it that his suggestion is: "Do not increase the Supreme Court to five except in this ad hoc way; increase it by letting the Chief Justice call in the President of the High Court and some other selected judge from time to time.” Mr. Price has a contribution to offer later on. He says he would rather have members of the Supreme Court, if the Supreme Court were added to permanently, sent out on circuit than to send out High Court judges on circuit and letting these new adherents of the Supreme Court do High Court work in the absence of the High Court judges. The only people appearing before the Committee and giving evidence on the point were the four or five I have mentioned. They were all against Supreme Court people doing High Court work and none wanted a permanently increased Supreme Court excepting only the Chief Justice. Some did want it increased from time to time. The suggestion was that that increase from time to time could be done in the way I have suggested.
Amendment withdrawn.
I move amendment No. 4:
In page 4, section 4 (3), line 46, to delete the word "three" and substitute therefor the word "four."
The object of the amendment is to give effect to the recommendation of the Chief Justice in the evidence he gave before the Joint Committee. It is quite clear from that evidence that the Chief Justice was in favour of a Supreme Court of five permanent members and that the quorum of that court should be four. I stated on the Second Reading of the Bill that I was entirely in favour of a Supreme Court of five members,, with a quorum of four. Any other recommendation in connection with that court, to my mind, is not merely impractical but entirely objectionable. The purpose of the amendment is to insure as far as possible that the object of the Chief Justice will be carried out, to have a Supreme Court of five with a quorum of four.
I have listened to-night to the Attorney-General stating that the proposals in this Bill were a compromise solution—I think that was the expression he used—for the purpose of achieving two objects. In my view, that so-called compromise solution achieves neither object and is wholly objectionable in principle. I can see nothing to be said for a Supreme Court, consisting nominally of five members, three of whom would only be more or less permanent members and the other two engaged on High Court and Assize Court work.
Now, the work of a High Court judge and the work of a judge hearing civil bill appeals from a Circuit judge is entirely and fundamentally different from the functions and work of the Supreme Court. The nature of the work is different and the mentality that has to be brought to bear on the problems that come before it are entirely different. I am not in the least impressed by any evidence brought either before the Joint Committee or repeated here from practitioners of the old school with reference to what happened in the case of the old civil bill appeals, or in reference to the fact that the old members of the Court of Appeal in Ireland used, in fact, to travel on Assize. Most of the evidence of that kind is based merely on conservative and professional feeling and very largely on personal experience. If you happen to be on one circuit you have one view, and if on another circuit you have another view. If you meet one set of judges at one assizes, and another set of judges at another assizes, that may change your view. Evidence of that kind is entirely without any great weight at all.
You have to look at this from the point of view of principle, and you start with the admitted basic principle that there ought to be in this court a Supreme Court consisting of five permanent members. Any departure from that principle must be wrong. I understand it is admitted by the Attorney-General that that is a principle which he himself would like to hold, but as far as I can gather either the Department of Justice or the Department of Finance or probably both together came and said: "Not on your life; you have too many judges already; the judges have too soft a time; they are too highly paid and we will not allow that at all." In order to try and get the assistance of both the Department of Justice and the Department of Finance, this mongrel provision is introduced into the Bill. It is brought in as a compromise solution. In my opinion it is not a solution. It is a menace to the administration of justice and will bring disrepute on the administration of justice. It bears on its face a so-called solution which, as far as I could gather from the observations the Attorney-General made on the Second Reading of the Bill and on this stage of it, he does not approve of in his heart. It bears on its face a solution put forward by people who have no experience of the practice or the administration of the law. That will bring into disrepute the administration of justice—the spectacle of two judges who will be Supreme Court judges only in name and salary, but High Court judges in fact. They will be doing, for the most part, High Court work. It is admitted that there is work for additional judges in the High Court. It is clear that if the new system of civil bill appeals and of the travelling judges is brought into operation there must be additional judges in the High Court. If this House is so foolish as to allow this compromise solution to go through, the result must be that these two Supreme Court judges will spend 99 per cent. of their time doing High Court work either in Dublin or in the country.
I cannot see any justification whatever for that. I think it would be far better for the Government to face up to the problem and say: "We are of opinion that five Supreme Court judges are necessary and that we want two additional judges," but it is quite clear that apparently the Government were not able to drag from the Department of Finance or the Department of Justice, from both or either, support for the proposals which they wished to advance of permanent High Court judges or a permanent Supreme Court of five judges in it, as well as of the new system of rehearing. Therefore, in order to get something across they bring in these mongrel provisions which are entirely unjustifiable. They can be justified only on what the Attorney-General has said, that they wanted to get two things and could not get them, so they tried to get half of one and half of the other. The result, in my opinion, will be that they will get neither. They will also bring into disrepute the administration of justice and the Supreme Court itself. We have heard a lot about strengthening the Supreme Court. I think that is a rather inappropriate expression. The country, as a whole, has been satisfied with the Supreme Court which has commanded the respect and admiration of the country. As was pointed out by the Joint Committee:
They were convinced that the peace and credit of the country will depend more than anything else on the impartial and efficient administration of the law by courts which will have the confidence and respect of the people and of the legal profession.
Because they were so convinced they made the recommendation that there should be more than three permanent members of the Supreme Court. Now, if you have a Supreme Court of the mongrel character such as is put forward at the present time, you will have the position that there will be three members of the Supreme Court there more or less permanently. There will be two members of the Supreme Court very seldom there, and other colleagues of theirs in the High Court perhaps will be sitting in the Supreme Court hearing appeals from them. The thing reduces itself to a rather ludicrous state of affairs. I think that even at this time the Government ought to face the fact that in principle they ought to have a Supreme Court with five judges or leave the thing as it is. They ought not to try and put across this so-called compromise solution combining two objects merely for the purpose of bringing in the new system of rehearing — that appears to be at the back of it—and in order to get back to the old system of Civil Bill Appeals for which there is really no public demand, as distinct from the partial demand from members of both branches of the legal profession, they go through the elaborate farce of having two Supreme Court judges who will be paid the salaries of Supreme Court judges and will be acting for 99 per cent. of their time as High Court judges. The thing is indefensible in principle and will, as I have said, bring the administration of justice into disrepute.
The only difference I can see between the section as it stands and the amendment is to substitute "four" for "three."
Not at all. Sub-section (1) of the section says that the Supreme Court shall consist of five judges and that four of those at least must sit, thereby providing for the contingency that one of the judges may be ill.
I understood the amendment suggested that four should be the limit.
At least four.
The section suggests three and leaves a discretion to the Chief Justice to call in another or two more—the court to consist of four or five.
The Chief Justice himself in putting forward the argument for five said that if the number was to be five the quorum should be four. He did not suggest that the quorum should be left to himself.
The section leaves a discretion to the Chief Justice to have it either four or five—I mean anything over three.
The Chief Justice had the view that in his own time only should there be a Supreme Court of four as a minimum, but that the regulation made by the State should be that the Supreme Court should never consist of less than four, that is if it is to be enlarged. Under the Minister's proposal it never can be less than three, and can be such as the Chief Justice will determine. Why not put three out altogether. The Minister attempts to answer Deputy Costello's amendment by saying that the Chief Justice thinks that four ought to be the quorum. The phrase in the Bill is three or such number as the Chief Justice shall determine. Therefore, the Chief Justice will make it four. Why does the Minister put in three?
The Chief Justice has a discretion under the section.
Why put in three? If we think that the Supreme Court ought to consist of four judges let us say so. That is for the hearing of ordinary cases. Let us give one extra —ordinary to call on as well as having the President of the High Court. If we put in four the Supreme Court can never meet unless there are four. Why not make that the provision? Why should we not say so legislatively? Let us say that the Chief Justice, as a witness, impressed us with the necessity for four judges in the Supreme Court. There may be other Chief Justices to come, and they may not have the same view. Why should we say that the number of judges in the Supreme Court, above the minimum, should be whatever the Chief Justice of the day says it ought to be. Or, if we are going to say that, let us take out "three" and leave the matter entirely to his discretion. The Minister says that he will leave it to his discretion, provided the number be not less than three. Deputy Costello says that the number should be not less than four. The Chief Justice adverted to this question and stated that, if he got his way and the Supreme Court was increased in number, it would never sit with less than four judges. That is what the proposal is in the amendment.
This amendment bears out and follows the recommendation of the Joint Committee. The members who constituted the Joint Committee recommended that the court should consist of more than three judges. I say the minimum should be four and that, in my view, the number should be five. There may be illness or something of that kind. If there were a cast-iron rule that in every case the Supreme Court should consist of five judges, in the event of illness of one judge, the court might be held up. Therefore, there must be a certain elasticity in the matter. That is provided for in my amendment. The quorum should be four but, ordinarily, there should be five judges.
The Attorney-General
Deputies appreciate, though they have not said so, that to accept the amendment and make the quorum four would be to put a difficulty in the way of what I have referred to as the "compromise solution."
That was one of the objects of the amendment.
The Attorney-General
So I thought. Although the Deputy attributes to me a belief in my heart in his arguments and complete disbelief in the practicability of the scheme of this Bill, what I made clear was that, while I am prepared to accept the view that it would he ideal to have a Supreme Court of five judges and provide sufficient High Court judges to carry out the new appeal system, I yielded, just as readily as anybody else concerned in the preparation of this Bill to the argument of economy. Deputies have been hammering us with arguments for economy and, yet, they say that, if we are to give practical effect to the new proposals, we ought to demand that the Minister for Finance and his officials should not stand in our way, but should do the thing decently. I think it was the President of the High Court who was quoted this evening as saying that on the original Judiciary Committee, in 1923, he was anxious for a Supreme Court of five judges, but yielded to the argument of economy. I yielded to the argument of economy, and I am sure that that is what the Minister yielded to also.
I have already made clear that I do not at all agree with the strictures passed by Deputy Costello on this arrangement. He has used very strong language. He has described this as a "mongrel court." He has gone the length of saying that it will bring justice into disrepute, that it is a menace to justice, and that two judges will spend 99 per cent. of their time in the country. I think that Deputy Costello is carried away by his own oratory, and I doubt if his belief is as deeply seated as his words would suggest. Section 5 lays down the occasions on which the Supreme Court is to be drawn upon in aid of the High Court. Section 5 states that whenever, owing to the illness of a judge of the High Court or for any other reason, the full number of the judges of that court is not available for the transaction of the business or when, for any other reasons, it is expedient to increase temporarily the number of judges available for the purposes of the High Court, the Chief Justice may request any ordinary judge of the Supreme Court to sit in the High Court as an additional judge thereof. I do not agree with Deputy Costello that, during the ordinary term, the President of the High Court will be constrained to apply to the Supreme Court for the loan of judges to carry on the business of his court. No statistics that I have examined would justify the Deputy in stating that for 99 per cent. of the period, or anything like it, the full quota of five judges will not be available. The provision is designed to enable the Supreme Court to be called upon if the necessity should arise. As the Minister has pointed out, it is left to the Chief Justice to say whether, in particular cases, a court of three judges would be sufficient to hear the appeal.
We have heard a lot from Deputies opposite as to the absence of any complaint against, the present Supreme Court of three judges. I cannot appreciate the force of the argument that four is such a wonderful improvement on three. Its only virtue is that in case of a division of opinion, the judgment in the court below would stand. If the type of case which the Chief Justice will decide can be properly dealt with by three judges, I suggest that a tribunal of three judges will be found just as effective as a tribunal of four. Again, in theory, it would be desirable to say that, even if it is expedient to allow the Supreme Court to be drawn upon, at no time should more than one judge be taken away from the Supreme Court. But, again, the object is to create a sufficient number of judges to carry out the objects which the Minister and the Government have in view—to add to the strength of the Supreme Court and enable the appeal system to work and, at the same time, to enable the pressure of business in the High Court to be relieved, from time to time, by the taking of a judge from the Supreme Court.
I really think the fears of Deputy Costello, for whose views I have the greatest respect, are not justified. Neither is there any menace to justice in these proposals. In theory I suppose the work judges in the Supreme Court are called upon to do calls for a different attitude of mind, and a different approach than that called for in judges doing civil bill appeals and ordinary High Court work. At the same time I doubt if the Supreme Court attitude of mind will be in any way an evil influence on any judge called upon to do High Court work. On the other hand I doubt if any one who is practising at the Bar will think that the fact that a High Court judge has been used to doing the ordinary work of the High Courts, disables him from sitting as a judge of the Supreme Court from time to time. At the present moment you have a Court of Criminal Appeal which, for all practical purposes, is the final Court of Appeal in relation to criminal matters. There has been only one instance where a case was taken from the Court of Criminal Appeal to the Supreme Court.
But the Supreme Court is always there.
The Attorney-General
The Privy Council was always there, and the Deputy did not think much of it.
That is a completely wrong answer.
The Attorney-General
My argument was based upon this, that we have had, since the Courts of Justice Act came into operation, a Court of Criminal Appeal, consisting of two High Court judges and one Supreme Court judge, and I think it will be admitted that in dealing with criminal appeals they hold just as serious and as important a position, and ought to have the attitude of mind of Supreme Court judges in approaching the hearing of appeals. Yet for ten years that has worked satisfactorily. I heard no serious complaint that High Court judges were disabled or unfitted from acting as judges in the Court of Criminal Appeal by reason of their being familiar with the work in the Central Criminal Court. In fact, probably quite the contrary is the case. I should say that just as strong a case should be made in opposition to what Deputy Costello said for his point of view. Probably the truth lies midway between the two. There has been no serious evidence given to support the fears which have been hinted at, that there is anything in the proposal we put forward which will tend towards bringing justice into disrepute, or in any way to lower the prestige of the courts. It is hardly necessary for me to say that there is no doubt whatever that the courts set up in this country since 1924 have inspired confidence in the public. It is almost universally agreed that they have won respect for the administration of justice beyond that which was attained by any other courts. I do not think it is reasonable for Deputy Costello to suggest that the Minister is being driven by the officials, or by the Minister for Finance in this matter; and that we accepted this compromise arrangement under pressure of officials. There is not the slightest basis for that suggestion. The Minister has to be just as much alive to considerations of economy as the Minister for Finance. If my attitude of mind was that depicted by Deputy Costello I would certainly be ashamed to stand behind this Bill. I would much rather have no change in the system than to bring about the state of things he fears. I would much rather allow the present system continue than support any change if I did not think the provisions of the Bill were workable, and would not lower the respect of the public for those charged with the administration of justice. I said that over and over again. I think the scheme will be workable and will not be found to contain the evils suggested by the Opposition.
I want to direct the attention of the Attorney-General to one aspect of the Bill which, perhaps, he overlooked. In a further part of this Bill there is a proposal to take away from the Chief Justice a certain portion of his jurisdiction, and the reason that is proposed to be done, as I understand it, is that it is not considered right that there should be an appeal from the Chief Justice to the Supreme Court. There is inconsistency on the part of the Government in that proposal. While they say that there should not be an appeal from one member of the Supreme Court to his colleagues in this Bill they provide and contemplate the contingency, that there should be an appeal from four members of the Supreme Court to their colleagues. I should like to hear the Attorney-General on that.
The Attorney-General
How do you justify the Chief Justice as a judge in the High Court?
I am not called upon to answer that now.
The Attorney-General
You say it is a terrible evil that a Supreme Court judge should be a High Court judge. The Chief Justice is one.
I said nothing of the sort. I said there should be a system by which judges should be called in name but be paid salaries of Supreme Court judges; whereas the fact is they are High Court judges. The Chief Justice is a member of the High Court for the purpose of confirming in him additional jurisdiction, nothing else. I agree with the suggestion of the Attorney-General that there is nothing to be said for a Supreme Court of four. My amendment to put down four in this part of the Bill is merely to provide for the contingency which I think would not happen very frequently, of one member of the court being absent. It is not put forward in justification of the view that there ought to be four members of the Supreme Court habitually sitting there. I think there should be five habitually sitting there, and in order that there should be flexibility, and not a cast-iron arrangement, the amendment is that there should be a quorum of four. It is also put down for the purpose of endeavouring to hamper the other portion of the Bill which prescribes that Supreme Court judges shall go on circuit. The Attorney-General stated that I used strong language and that I was carried away by oratory. Whatever carried me away it was not oratory. I feel very strongly on the subject of these proposals. I think they are entirely wrong in principle, and ought to be abandoned by the Government.
Progress reported. The Committee to sit again to-morrow.