Dáil Éireann díospóireacht -
Wednesday, 21 Jun 1961

Vol. 190 No. 5

Courts (Establishment and Constitution) Bill, 1959—Committee Stage (Resumed).

Debate resumed on amendment No. 2:—

In subsection (2) (a), page 2, lines 27 and 28, to delete "An Príomh-Bhreitheamh" and the brackets enclosing the next three words.—(Deputy McGilligan.)

Question: "That the words and brackets proposed to be deleted stand", put and declared carried.

Mr. McGilligan

I move amendment No. 3:

In subsection (2) (b), page 2, to delete all words in line 29 after "number" and substitute "of other judges".

In this matter, there is a certain amount of nomenclature but there is also a matter that may be of some substance. The subsection is in these terms:

(2) The Supreme Court shall be constituted of the following judges—

(a) the president thereof, namely, An Príomh-Bhreitheamh (The Chief Justice), and

four ordinary judges. Then we come to a matter of the titles by which they will be styled.

There are two points I am aiming at in this amendment. One is that I do not see why we should say "not less than four." A full court is required in the Supreme Court on two occasions only and for that reason there has to be a court of five. That, I suppose, is why this was built up in this way—the Chief Justice plus four others. There is no necessity to impose that on Dáil Éireann. Dáil Éireann could make it any number it likes, so long as there are five judges. There need not necessarily be four Supreme Court judges as well as the Chief Justice because subsection (3) says that the President of the High Court shall be ex officio a judge of the Supreme Court. So that there need not be actually five members of the Supreme Court, namely, the Chief Justice and four others. It has been built up in this way.

The second thing I am aiming at is this. There is a distinction which runs through this proposed legislation—a distinction between Supreme Court and what are called "ordinary" judges. That phrase nowhere occurs in the Constitution. Two or three times in the Constitution, the Supreme Court is referred to and then the Chief Justice is picked out as a particular member of that and after that, the Constitution refers to "other" judges, not "ordinary" as opposed to extraordinary judges. I aim at getting rid of this phrase for which there is certainly no constitutional demand. I do not say it is unconstitutional to put it in but I think we might as well keep close to the Constitution when there is nothing really that turns on the matter. Therefore, we should have "other judges" instead of "ordinary judges."

I also feel that we should not have this prohibition of "not being less than four." That may not arise, because, as I say, as long as the next subsection is added, permitting the President of the High Court to be a judge of the Supreme Court, then you could have actually appointed only three members of the Supreme Court and they with the Chief Justice and the President of the High Court would give a court of five.

An Ceann Comhairle

There are a number of amendments which seem cognate to that—Nos. 11, 15, 17——

Mr. McGilligan

Amendment No. 11 takes in the matter of "ordinary" as opposed to "other" but there is an extra point in amendment No. 3 which is cutting down the members. What did you say, Sir, after No. 11?

An Ceann Comhairle

No. 15.

Mr. McGilligan

Yes.

An Ceann Comhairle

No. 17.

Mr. McGilligan

Yes—on that point of "ordinary".

An Ceann Comhairle

No. 26.

Mr. McGilligan

Yes.

An Ceann Comhairle

And No. 33. These would be consequential?

Mr. McGilligan

They would be governed by a decision on "ordinary" as opposed to "other".

An Ceann Comhairle

We could discuss them together?

Mr. McGilligan

This amendment includes the matter about the numbers as well, but they are very much the same.

Mr. Haughey

I cannot accept this amendment. First of all, on the point of the number of judges, it has been decided that the Supreme Court should consist of five, namely, the Chief Justice and four other judges—ordinary judges, as they are described. This use of the term "ordinary" is simply a matter of drafting procedure and it is to distinguish the Chief Justice from the other judges of the Supreme Court. I think it is easily the handiest way of proceeding. It is purely a matter of drafting technique. There is no suggestion that ordinary judges are in any way different. In the No. 2 Bill, it is clear that the term "judge" covers both the Chief Justice and the ordinary judges, but it could lead to complications if we were to drop this use of "ordinary", because there are some instances in different Acts covering courts where, in describing membership of committees, the words "ordinary judges" are used.

Mr. McGilligan

On the point of numbers, it is agreed that because of two points—declaring the permanent incapacity of the President and the declaring of the constitutionality of a Bill referred to the Supreme Court— on those two occasions, there must be what is called a full Supreme Court consisting of five members. These are the only cases in which it arises. Is it necessary to say "it shall have a president and such number (not being less than four) of ordinary judges"? It seems so in order that you may get five judges, a Chief Justice and four others. Very good. The next subsection says: "The President of the High Court shall be ex officio an additional judge of the Supreme Court.”

Mr. Haughey

Additional.

Mr. McGilligan

It does not matter whether he is additional, extraordinary or anything else. He is a judge of the Supreme Court. You have the Chief Justice and the President of the High Court. Why then insist on having four others appointed? The Court of five can easily be made up of the President of the High Court, the Chief Justice and three members of the Supreme Court. Is that not right? Why, therefore, say "not less than four?" That is in regard to the mere matter of numbers. The Court of five can be achieved by having two people with titles, the Chief Justice and the President of the High Court and three others. That is clear, is it not?

Mr. Haughey

Yes, you can make up a court of five that way.

Mr. McGilligan

Why, therefore, say "not less than four" when you can get five by the other calculation or the other system? You always have five.

Mr. Haughey

Only by calling on the President of the High Court.

Mr. McGilligan

But he is a judge of the Supreme Court.

Mr. Haughey

We do not want to have to call on him——

Mr. McGilligan

I am only saying, that by leaving out "not less than four," you do not prevent the Government from appointing four. Why lay it down? There might occur a situation in which, say, the business of the Supreme Court became scanty and where it would be possible to carry on, say, on the death of a member of the Supreme Court with the three judges of that Court plus the Chief Justice plus the President of the High Court. All the time, remember, there are only two occasions on which it is compulsory under the Constitution to have five judges. One of these occasions is the permanent incapacity of the President and that has never yet arisen. That is the first case. The second is the reference of a Bill to the Supreme Court. Counting the present reference, that is the third. In other words, there have been three instances in 25 years; only three cases in 25 years on which it would have been necessary to have a Supreme Court of five.

In a later amendment I am trying to secure that any constitutional question will require five judges. I have an amendment down to that effect. If it is accepted, and I think it should be, that will mean that a constitutional question will require five judges. There certainly has not been one such case each year for 25 years; if there is one every second year that is probably the number of occasions that cases have come to the Supreme Court that under my amendment would require five. At any rate you can get five. I do not like the idea of saying to the Dáil: "You must appoint so many people, not less than four." That is one point.

The second point is that there is nothing in the Constitution dividing judges into one type of judges and "ordinary judges." That phrase does not occur in the Constitution. The phrase "other judges" does occur in the Constitution. I shall give one example. Article 34, Section 5, speaks of the declaration that has to be taken by the various members of different courts and having set out the formula to be used, subsection (2) of Section 5 of Article 34 says that this declaration shall be made

...in the presence of the President, and by each of the other judges of the Supreme Court.

In any event, you have sanction for the word "other" in relation to what is here called "ordinary judges" of the Supreme Court. There is no sanction except in law for the distinction between ordinary and what I suppose you will have to call extraordinary judges of the Supreme Court. I suggest the Parliamentary Secretary should keep as near as possible to the terms of the Constitution when there is nothing to be gained by going outside the terms of the Constitution. There is no clarification obtained by making a distinction between the Chief Justice and the other judges. That is all I want to say.

Mr. Haughey

First of all, let me explain why we stipulated that there should be the President and four ordinary judges. This, after all, is a Bill to establish the courts and, as the long title says, to specify the constitution of those courts. I am quite certain that Deputy McGilligan would be the first to criticise me if I came in here with a Bill to establish courts and specify the constitution of those courts and did not stipulate the number of judges that should be in the Supreme Court. It has been decided as a matter of policy that there should be five judges in that court for the adequate and prompt discharge of its business—the Chief Justice and four ordinary judges. As a matter of fact, we would prefer that the Supreme Court would always sit as five. Indeed, the provisions in the No. 2 Bill are that it must sit as a full Court of five and only in certain circumstances may it sit as a court of three——

Mr. McGilligan

I do not think that is right.

Mr. Haughey

We do not want to visualise a situation where, when we want to have the Supreme Court sitting as often as possible as a full court of five, we will have to call upon the President of the High Court to make up that number. I suggest that would be completely unworkable and undesirable in every way. We want the Supreme Court to sit as a court of five as often as possible. We specify that in these Bills—to have the Chief Justice and four other ordinary judges.

As I have explained, the use of the word "ordinary" in respect of the other judges of the Supreme Court, apart from the Chief Justice, is purely a matter of drafting technique. It is desirable, for the purpose of the construction of the Bills, from time to time to refer to the Chief Justice and then, from time to time, to refer to the other judges, or as we describe them, the ordinary judges as distinct from the Chief Justice. It is simply a matter of drafting technique. From the construction point of view it is the best way of achieving what we want to do and I, for one, cannot see any objection to it.

Mr. McGilligan

Reference has been made to the second Bill, the Courts (Supplementary Provisions) Bill, and possibly the section to which the Parliamentary Secretary refers is Section 7 which deals with the Supreme Court in regard to jurisdiction. Subsection (3) states that "subject to subsection (4) of this section, an appeal to or other matter cognisable by the Supreme Court shall be heard and determined by five judges, including judges who are by virtue of subsection (3) or (4) of Section 1 of the Principal Act additional judges of the Supreme Court." That brings in the President of the High Court.

Mr. Haughey

Yes.

Mr. McGilligan

Yes, very good. There is of course a reservation in regard to what matters are to be heard by five judges including the President of the High Court. There is another reservation which says that "the Chief Justice or, in his absence, the senior ordinary judge of the Supreme Court may determine that an appeal to or other matter cognisable by the Supreme Court..." and there are two left out. The appeal or other matter shall be determined by three judges of the Supreme Court including judges who are brought in and that again includes the President. So that the matter to which the Parliamentary Secretary refers does not impose any great necessity for having five. The Bill refers to two Articles of the Constitution, Article 12 and Article 26. Article 12 deals with the President and has never arisen yet and is not likely to arise.

Article 26 deals with the reference of Bills to the Supreme Court. That has arisen a few times in 25 years. Those are the only things which even under the new legislation, in Section 7, are recognised as requiring a full court of five. The question of the validity of the law, where a constitutional point is involved, would require to be tried by five judges but—as I say, I have not made any exact calculation—I doubt if in 25 years there were more than 12 to 15 cases of a constitutional type.

To come back to the point that the Parliamentary Secretary has made, that you must state what constitutes the court, of course you must but if the amendment I propose were accepted the number of judges could, from time to time, be fixed by Acts of the Oireachtas.

Mr. Haughey

This is the Act of the Oireachtas.

Mr. McGilligan

Why then say something in the Act which may be changed? This is a Bill which could be changed only by another Act. It is not the Constitution. Why stipulate a number of people when the number is not necessary except in certain circumstances and if five were required the number would be made up by bringing in the fifth. Putting in not less than four does not give any real sanction to the numbers because the numbers can be changed.

Mr. Haughey

But as of now it establishes it.

Mr. McGilligan

But why put in a number as if it were something completely irrevocable?

Mr. Haughey

Would the Deputy leave it to the option of the Government to determine?

Mr. McGilligan

Why determine anything as if for all time? "Such number...may from time to time..." The number actually has to be five on two special occasions and with five you do not require the Chief Justice and four other judges of the Supreme Court. You require the Chief Justice, the President of the High Court, and three other Judges of the Supreme Court. For the limited number of occasions on which the full court of five will be required the President could easily officiate. I do not see why we should make this distinction in terms. The Chief Justice is singled out as President of the Court of Final Appeal by his title. The Constitution refers to other judges and "other" is a sufficiently distinguishing adjective. To say there are judges in addition to the Chief Justice or to talk about the judges as "ordinary" seems to be slightly derogatory. The term only comes from law. It is not in the Constitution. The Constitution makes a distinction between people who are singled out and other judges and I think we should stick to that.

Mr. Haughey

Deputy McGilligan said that it was not necessary to have five judges appointed to the Supreme Court so that we may have a full court of five because we can always call on the President of the High Court to make up the fifth. We want as a general rule, as a matter of ordinary practice and as often as possible, that the Supreme Court will sit with a court of five. That is the purpose of the provisions of Section 7 in the No. 2 Bill. We clearly direct that as a normal rule the Supreme Court shall sit with the full court of five and only in a case where the Chief Justice determines otherwise can you have a court of three. If, as we must assume, the President of the High Court will normally be occupied with his own duties as President—and they are onerous enough—we cannot possibly proceed on the basis that we shall only have four Supreme Court judges and whenever we want a court of five send for the President.

Mr. McGilligan

You are not tied to the President.

Mr. Haughey

We must assume that any other judge of the High Court——

Mr. McGilligan

Look at subsection (4).

Mr. Haughey

We must assume that the President or any other judge is fully occupied as a judge of the High Court and only in exceptional circumstances should we have to send for him to make up the number. I think Deputy McGilligan has gone off on the wrong track with regard to our stipulating the number. The number of judges must be stipulated by law and that is what we are doing. We are deciding in these Bills the number of judges to constitute the Supreme Court. I think we certainly would not be carrying out this function in accordance with the Constitution, if we did not stipulate what number of judges there should be in the Supreme Court.

There is nothing derogatory in the use of the words "ordinary judge" of the Supreme Court. Throughout the course of these two Bills it is necessary to refer on the one hand to the Chief Justice, the President of the Supreme Court and, in a different context, to such judge of the Supreme Court who is not the Chief Justice. It is purely and simply for drafting convenience that we distinguish between the Chief Justice and an ordinary judge. Otherwise, if we were to adopt Deputy McGilligan's phraseology, when we wanted to indicate in the Bill later on that we were referring to a judge other than the Chief Justice, we would have to say "such number of judges other than the Chief Justice" and repeat some such cumbersome phrase throughout the Bill. This is purely a matter of drafting technique, and we obviate all these difficulties by saying there will be the Chief Justice and four ordinary judges and it will be recognisable as such simply by that appellation later on throughout the Bill.

Mr. McGilligan

When the Ceann Comhairle referred to this amendment, he said that seven others will be ruled by it. Would the Parliamentary Secretary look through those other seven amendments and see what the situation would be? "The Chief Justice and other judges" would clarify the whole matter. There is no necessity to say "other than the Chief Justice and other judges" or "The President of the High Court or the President of the Supreme Court and other judges".

Mr. Haughey

We think so.

Mr. McGilligan

I have not finished. I asked the Parliamentary Secretary to give me one example of the seven or eight points where the words "other judges" do not fill the bill. I challenge him to say that they do not.

Mr. Haughey

They do not in any of them.

Mr. McGilligan

They do in them all. The amendment we are dealing with is to subsection (2) (b). The phrase in the Bill is "such number of ordinary judges." I want to put in "such number of other judges." How does "other" not fill the bill instead of "ordinary?"

Mr. Haughey

If the Deputy is finished, I will answer.

Mr. McGilligan

That is the point I want to make.

Mr. Haughey

The Deputy has a delightful habit of asking a question and not allowing me to answer.

Mr. McGilligan

The Parliamentary Secretary does not have to interrupt to answer me. He can answer now if he thinks it is better. I shall yield to him if he would like to answer now.

Mr. Haughey

If the Deputy will give way.

Mr. McGilligan

On "other" as opposed to "ordinary."

Mr. Haughey

If Deputy McGilligan's amendment to subsection (2) (b) were accepted, at any other part of these two Bills where we would want to refer to the judges of the Supreme Court, apart from the Chief Justice, we would have to use some such phrase as "judge of the Supreme Court other than the Chief Justice." In order to obviate the use of that cumbersome phrase throughout the Bill, we made the distinction between the Chief Justice and an ordinary judge so that they may be referred to simply as "an ordinary judge of the Supreme Court."

Mr. McGilligan

I shall read this again. The Supreme Court shall be constituted of the following judges— (a) the president therof, the Chief Justice, and (b) such number—the number is left out—of other judges.... What is doubtful or ambiguous about that?

Mr. Haughey

The Deputy should go through the Bill.

Mr. McGilligan

When does it next occur? I shall go on to the amendment in which it next occurs, amendment No. 11 to subsection (2) (b) of Section 2.

Mr. Haughey

Go to subsection (5) (a) of Section 2.

Mr. McGilligan

Subsection (5) (a) of what?

Mr. Haughey

Subsection (5) (a) of Section 2, line 20, page 3.

Mr. McGilligan

"...and every other judge of the Supreme Court so requested shall sit in the High Court." What is ambiguous about having "other" instead of "ordinary?"

Mr. Haughey

May I answer the Deputy?

Mr. McGilligan

Yes.

Mr. Haughey

"Other judge" would, by definition, include the Chief Justice himself who would be in the absurd position of asking himself to do something.

Mr. McGilligan

Let me go to line 18.

Mr. Haughey

Stick to line 20.

Mr. McGilligan

If certain things occur "...the Chief Justice, at the request of the President of the High Court, may request any other judge of the Supreme Court to sit..." Is there any doubt about what that means?

Mr. Haughey

If you leave out "ordinary" as the Deputy wishes to do, it would be completely ambiguous and nonsensical.

Mr. McGilligan

In what way ambiguous and nonsensical?

Mr. Haughey

Because a judge of the High Court would be included by definition. It would then read: "...the Chief Justice may request any other judge of the Supreme Court...and every other judge of the Supreme Court so requested——"

Mr. McGilligan

"So requested."

Mr. Haughey

That would be himself. I do not want to be difficult about this.

Mr. McGilligan

I would not mind the Parliamentary Secretary being difficult, if he was a bit reasonable.

Mr. Haughey

That is the phraseology decided upon by the draftsman who is an expert on these matters——

Mr. McGilligan

Wait a moment.

Mr. Haughey

——as the best available.

Mr. McGilligan

I have been in this House for over 35 years dealing with drafting amendments and I know where the draftsman can err. I yield to their undoubtedly great talents in many respects but when it comes to deciding constitutional phrases, there must be some backing for it in the Constitution. I believe that putting in "other judges" would meet all the difficulties. I cannot argue any further for that point of view, since we both have our own minds on it. Let us get back to the numbers. Let us start off with the fact that on two special occasions, and on two special occasions only, the Constitution requires five judges in the Supreme Court. They are very rare occasions. One is where the Court have to determine the permanent incapacity of the President.

Mr. Booth

The Deputy has said that before.

Mr. McGilligan

The subsection says "such number (not being less than four)". You do not require that it shall be four. Here is something new if Deputy Booth will permit me to draw his attention to it.

Mr. Booth

Good.

Mr. McGilligan

Subsection (4) provides that where owing to the illness of a judge of the Supreme Court or for any other unavoidable cause the full number of judges of the Supreme Court is not available, then the Chief Justice may require an ordinary judge or judges of the High Court to sit on the hearing. I forget how many High Court judges there are. I think there are about seven, leaving out the President.

Mr. Booth

That is not new. The Deputy said that before

Mr. McGilligan

The Chief Justice can call in any of those seven if he is so busy with his other duties. The Parliamentary Secretary thinks he is heavily occupied. The President has been called in to do divisional court work many times and I have never found that his duties were so thronged, so to speak, that he could not find the time. The Parliamentary Secretary is unaware of the situation in the courts if he thinks every one of the judges of the High Court is so fully occupied with his own business that he cannot be available on the rare occasion on which five must be available.

Mr. Haughey

Can the Deputy not grasp the simple concept that we want a full court of five on all occasions?

Mr. McGilligan

It is not in the Bill.

Mr. Haughey

It is in the Bill. In these matters that have to be determined by five judges of the Supreme Court, that includes the judges referred to in subsections (3) and (4). That includes the President or any one of six judges of the High Court.

Mr. McGilligan

You start off by saying that you want five but the five are to be made up either of the Supreme Court itself or such judges as they may get from time to time by calling on the President of the High Court or the judges of the High Court. There is a big reservation. This demand for five which may be made up of High Court judges as well as by the judges of the Supreme Court is subject to subsection (4) and subsection (4) then puts it in the form that the Chief Justice may determine that any appeal or other matter cognisable by the Supreme Court shall be heard by three judges. Even then it says that in relation to those three, you may call upon either the President of the High Court or judges of the High Court. There is no great demand for a court of five judges in the Supreme Court.

Mr. Haughey

I will deal with the last point first. There is a demand. The Government want a full court of five on all possible occasions and litigants want a full court of five on all possible occasions. From every point of view, it is desirable. I should say it is more than desirable. It is necessary that where possible we should have the Supreme Court sitting with five judges. It is only where some difficult situation arises that we would allow the Chief Justice discretion in certain cases to have a court of three but Section 7 envisages that that should be the exception. The rule will be that you will have a court of five judges.

I cannot see what Deputy McGilligan is driving at. This Bill purports to establish the courts and determine their constitution as laid down by the Constitution. Does Deputy McGilligan want the Bill to say that the number of the judges shall be such as may be decided from time to time by the Government? Does he want the Bill to be vague on the number of judges so that the Government can come along and say they will appoint another Supreme Court judge? That would be absurd. We must write into these Bills how many judges there shall be in the Supreme Court. It has been decided in the light of experience that there should be five judges and the five judges will be the Chief Justice and four Supreme Court judges. That decision is the right one in all the circumstances.

In the normal working of the Supreme Court, these five judges will sit as a full court. Indeed, we have provided, where one is absent or ill, that we must call upon the High Court for a judge to make up the number of five. These provisions are there to ensure that wherever possible, you will have a fixed court of five sitting in the Supreme Court. Purely for the purposes of workability, the Chief Justice could in certain circumstances, such as the pressure of business, secure that an appeal might be heard by a court of three but that would be the exception. If we think that five is the right number of judges for the Supreme Court, then we should appoint five judges surely and stipulate that there shall be five. We could not possibly visualise a situation where, in order to make up the full Supreme Court, you would have to be running to the High Court to get a judge.

Deputy McGilligan must answer two questions. Does he want the number written into the law as a definite number and, if so, what number would that be? The answer is that we must stipulate how many judges there shall be in the Supreme Court. The answer to the second question is that experience has shown that there should be five. That is the simple concept we have provided in subsection (2).

Mr. Sheldon

I am inclined to favour Deputy McGilligan's argument. He referred to the word "ordinary". With regard to the number, the Parliamentary Secretary made a mistake. He said it should be clearly laid down by an Act of the Oireachtas but that is precisely what the Bill does not do. Earlier in his remarks, the Parliamentary Secretary asked whether Deputy McGilligan wanted the position to be that the Government could appoint another judge to the Supreme Court? That is precisely what the Bill permits the Government to do. If the Parliamentary Secretary wishes to have a precise number of judges, the Bill is badly drafted.

Mr. Haughey

There is the No. 2 Bill.

Mr. Sheldon

This Bill says that there shall not be less than four. Why not do the whole thing in this Bill by changing the drafting?

Mr. Haughey

May I explain that? The reason for it is quite simple. It is intended that this Bill, which is the fundamental establishment Bill, will be there for all time. The Courts (Supplemental Provisions) Bill, 1959, which is the No. 2 Bill, will just become another Courts of Justice Bill which may at some time or other be repealed or altered. It is not intended that it should be a permanent Bill as this Bill will be. The number in regard to the Supreme Court judges is clearly laid down in Section 4 of the No. 2 Bill.

Mr. McGilligan

Two questions were put to me. I was asked if I thought the number should be stated. My answer to that is "certainly", in an Act of the Oireachtas. This is the Second Bill. I am talking about the First Bill. Why should you say "such number (not being less than four)...as may from time to time be fixed by Act of the Oireachtas" when we have a Bill running along which says four?

Mr. Haughey

May I answer that?

Mr. McGilligan

I am putting a question, first of all.

Mr. Haughey

And the Deputy will answer it as well?

Mr. McGilligan

I was asked whether I thought there should be a number stated as the proper number in respect of the Supreme Court. I certainly do. It is to be five. We are coming along with an Act of the Oireachtas which says four, plus the Chief Justice. We are told that experience has shown that a court of five in the Supreme Court was required. That is not the case. I do not think there are any statistics on the matter. Without any detailed observation, I would say that the majority of cases tried in the Supreme Court do not take five judges. It is unusual. It is more usual than it used to be but it has been very unusual for quite a while and it is still unusual that a court of five will sit. In the majority of cases, the number is three, and as far as experience goes, five would not seem to be required.

With regard to the Government view that there should be five, when reading the Second Bill, I did not see any suggestion that there should be a court of five. I take it, now that that has been put forward as a point of view, that the Government are saying there should be a court of five in most cases in the Supreme Court. It is badly expressed. Subsection (4) does not say that in exceptional circumstances the Chief Justice may call on three judges. It simply says that the Chief Justice may determine that an appeal shall be heard by three judges. When that point of view is reached, three sit in the Supreme Court. There is nothing there about exceptional circumstances or an exception to the rule, and so on. You may say "five" and then go on to say: "But it is all subject to the determination either of the Chief Justice or the senior judge of the Supreme Court." The experience of the courts is against what the Parliamentary Secretary says.

I did not advert to the fact that there was any strong direction to be given here for five, except in very rare circumstances. That could be better expressed. In addition, the original Bill, as given to us, had another exception and that was that if the parties agreed, then it could be a court of four. I gather that will be deleted.

Mr. Haughey

In the No. 1 Bill, the Establishment and Constitution Bill, we merely say "such number," not being less than four. The Establishment and Constitution Bill does not say it shall be four and cannot be more. The Establishment Bill—in pursuance of our suggestion that the Supreme Court should be, in so far as possible, and consist in so far as possible, of a court of five—stipulates that there shall be not less than five judges in the Supreme Court.

The temporary Bill, which may from time to time be amended, lays down that as for now the number in the Supreme Court will be five. It could be six, seven or eight at any time by amending legislation. The permanent Bill merely goes so far as to say: "We want it always to be at least five." We can make it more from time to time but we want it five.

Question: "That the words proposed to be deleted stand" put and declared carried.

Mr. McGilligan

I move amendment No. 4:

In subsection (2) (b), page 2, lines 30 and 31, to delete "Breitheamh den Chúirt Uachtarach" and the brackets enclosing the next five words.

It is the same argument but a different title. Briefly, in the Constitution the description all the time is "judge". There is no question of "Breitheamh" coming into it. This is all a matter of "An Chúirt Uachtarach" not being in the Constitution at all. With regard to these titles, I do not know where I am. There is a question of "Breitheamh den Chúirt Uachtarach". Elsewhere in this measure, we find that phrase used and there is a different termination—"Uachtaraighe". I do not think that is the correct genitive of "Uachtarach".

In another part of this legislation, "Uachtarach" is changed into "Uachtaraighe". My little knowledge of Irish makes me believe that may not be correct, grammatically.

Mr. Haughey

Let us have a look at that when we come to it.

Mr. McGilligan

This is when we must look at it. This is when I think it is wrong.

Mr. Haughey

Is it the suggestion that the Irish form is incorrect?

Mr. McGilligan

Yes.

Mr. Haughey

I shall have it examined by the experts.

Mr. T.F. O'Higgins

Is it the situation that the Parliamentary Secretary is not in a position to give any advice on the matter now?

Mr. Haughey

I say it is correct.

Mr. T.F. O'Higgins

Both?

Mr. McGilligan

"...ach" and "...aighe"?

Mr. Haughey

I am asking Deputy McGilligan to indicate where the other one is.

Mr. McGilligan

May I turn to the Constitution, then?

Mr. Haughey

I did not draft the Constitution.

Mr. T.F. O'Higgins

I thought the Parliamentary Secretary was redrafting it.

Mr. Haughey

No. The Deputy suggested that.

Mr. McGilligan

Let us look at Article 34 (5) (ii) of the Constitution. The English is:

This declaration shall be made and subscribed by the Chief Justice in the presence of the President, and by each of the other judges of the Supreme Court,...

Looking across at the Irish text, it says:

Is i láthair an Uachtaráin a dhéan-faidh an Prímh-Bhreitheamh an dearbhadh sin agus a chuirfidh a lámh leis, agus is insan chúirt go poiblidhe agus i láthair an Phrímh-Bhreithimh nó an bhreithimh is neasa sinsearacht dó a bhéas ar fagháil de bhreitheamhnaibh na Cúirte Uachtaraighe...

If that is right, "Uachtarach" is wrong.

Mr. T.F. O'Higgins

It can be changed.

Mr. McGilligan

I would prefer to go by the Irish version of the Constitution.

Mr. Haughey

I shall have it looked into.

Mr. T.F. O'Higgins

Is that not what the Constitution says?

Mr. Haughey

I shall have to examine it.

Mr. McGilligan

May we look at the Constitution now, Article 34 (5) (ii)?

Mr. T.F. O'Higgins

Más maith é, is mithid.

Mr. Haughey

I am not prepared to go any further at this stage than to say I will have it examined.

Mr. McGilligan

It is very bad to have something ungrammatical. Deputy MacCarthy is sitting behind the Parliamentary Secretary. He might possibly advise the Parliamentary Secretary on the Irish language.

Mr. T.F. O'Higgins

Or Deputy Booth.

Mr. Booth

I would be more than willing——

Mr. McGilligan

The Deputy might advise the Parliamentary Secretary.

Mr. T.F. O'Higgins

It does not mean that we will pass this if there is a doubt as to whether it is the correct grammatical way of expressing it. Would the Parliamentary Secretary undertake that if we pass it now, it will be considered between this and the Report Stage?

Mr. Haughey

That is exactly what I am proposing to do. I understand it is very normal procedure in this House.

Mr. McGilligan

It can be done graciously.

Mr. Haughey

If we are going to have graciousness——

Mr. T.F. O'Higgins

We have not seen much of that.

Amendment, by leave, withdrawn.

Mr. McGilligan

I move amendment No. 5:

In subsection (3), page 2, line 34, to delete "an additional" and substitute "a".

I agree with the Ceann Comhairle that the word "ordinary" to be substituted for the word "other" would be ruled by one particular division, but this is different. This is "an additional judge of the Supreme Court". Again, it is the same thing but instead of wanting to get rid of the word "ordinary", I want to get rid of the word "additional". I suggest that instead of the phrase "a judge of the Supreme Court", we make the President of the High Court, ex officio, a judge——

Mr. Haughey

If he were ex officio a judge of the Supreme Court, we would have to change the number of judges to be appointed in accordance with the No. 2 Bill. We want to have five judges, plus the President of the High Court available. If the President of the High Court were to be ex officio a judge, we would have to make him No. 6.

Mr. McGilligan

Would that make any difference? Is he not a judge of the Supreme Court when he sits there?

Mr. Haughey

But only for that limited purpose. You have a Supreme Court constituted of five ordinary judges of the Supreme Court, four ordinary and a Chief Justice, and then you may bring in the President of the High Court as an additional judge of the Supreme Court.

Mr. McGilligan

Why all this confusion? At this moment, you have the Chief Justice, ordinary judges and an additional judge.

Mr. Haughey

Yes, and that is the proper way to have it. He is not a judge of the Supreme Court. We want to make it clear that he is the President of the High Court. He may be called upon to act additionally from time to time in the Supreme Court.

Mr. McGilligan

He is ex officio a judge of the Supreme Court.

Mr. T.F. O'Higgins

The present position is that the President of the High Court is a judge of the Supreme Court and he is the two, I see, in the Supreme Court. That is his present position.

Mr. McGilligan

He ranks after the Chief Justice.

Mr. T.F. O'Higgins

He ranks after the Chief Justice as Deputy Chairman of the Supreme Court.

Mr. Booth

He does not usually act in that capacity.

Mr. McGilligan

Maybe not, but when he does act, he is a judge.

Mr. Booth

When.

Mr. McGilligan

When he is doing that, ex officio.

Mr. Haughey

The phraseology of the drafting is quite clear. He shall "be an additional judge of the Supreme Court for such appeal or other matter". In other words, he is not normally a judge of the Supreme Court. He may come in and act for particular purposes in the Supreme Court but he is established as President of the High Court, not as judge of the Supreme Court.

Mr. McGilligan

From where is the Parliamentary Secretary reading?

Mr. Haughey

Subsection (4) of Section 1.

Mr. McGilligan

That refers to any ordinary judge or judges of the High Court. Surely it does not refer to the President?

Mr. Haughey

"Ordinary judge or judges of the High Court" includes the President.

Mr. T.F. O'Higgins

No, that is an additional judge of the Supreme Court.

Mr. McGilligan

Does the phrase "ordinary judge" include the President of the High Court?

Mr. Haughey

No.

Mr. McGilligan

It does not refer to the President?

Mr. Haughey

"or judges". The Deputy should read on.

Mr. McGilligan

"The Chief Justice may request any ordinary judge or judges of the High Court"——

Mr. Haughey

"or judges" there covers the President.

Mr. McGilligan

That includes the President?

Mr. Haughey

Yes.

Mr. McGilligan

Even though the word "ordinary" is there?

Mr. Haughey

"The Chief Justice may request any ordinary judge or judges". "Judges" is the second part of the phrase.

Mr. McGilligan

It does not carry the word "ordinary". Is that right?

Mr. Haughey

Yes, and therefore includes the President.

Mr. T.F. O'Higgins

It is daft.

Mr. McGilligan

It is really daft.

Mr. Haughey

In regard to these two Bills, a judge of the High Court covers an ordinary judge and the President. An ordinary judge means some judge of the High Court, other than the President and the president of the High Court is the President. That is the phraseology that is used.

Mr. McGilligan

So that if you come to the second Bill and you talk about ordinary judges, does that include the President?

Mr. Haughey

No.

Mr. McGilligan

But it does here.

Mr. Haughey

No, it does not here. How clear can I make it? In subsection (4), we say: "the Chief Justice may request any ordinary judge", that is, all the judges of the High Court, excluding the President. Then we go on to say: "or judges of the High Court"——

Mr. McGilligan

That includes the President?

Mr. Haughey

That includes the President.

Mr. McGilligan

There will be startling repercussions of this.

Mr. T.F. O'Higgins

I would urge upon the Parliamentary Secretary that that is open to the interpretation that he is now cutting the President of the High Court loose as some sort of queer judge.

Mr. Haughey

No; he is a judge.

Mr. T.F. O'Higgins

A judge, undoubtedly but he is now being "de- ex-officio-ed.” He is not to be an ordinary judge of the High Court; he is being put in as an additional judge of the Supreme Court; whereas up to this he has always been an ex officio judge of the Supreme Court, and, in fact, up to this has been the Deputy Chairman of the Supreme Court. I would urge upon the Parliamentary Secretary to have another look at that drafting.

Mr. Sheldon

I am confused about ordinary judges, additional judges and what have you. I am not too sure which side I am on. Am I right in the assumption that there would be a Chief Justice, four ordinary judges and as an additional judge the President of the High Court; in other words, he wants five Supreme Court judges?

Mr. Haughey

Per se.

Mr. Sheldon

Per se. Is it absolutely clear from the wording? That is all I am concerned with.

Mr. Haughey

Perfectly clear.

Mr. Sheldon

The courts may not agree with that proposition.

Mr. Haughey

Deputy Sheldon must admit there are none so blind as those who will not see.

Mr. Sheldon

There are also those who are seeing so well that they refuse to be blind.

Mr. T.F. O'Higgins

The mote in the other man's eye.

Mr. Sheldon

It may very well be that the Parliamentary Secretary would need to look at this again and possibly to put in a definition of "ordinary", to say it will not include the President of the High Court, making it perfectly clear. I must say I cannot follow his reading. I should not like to say what a court would think about it. Subsection (4) provides that the Chief Justice may request "any ordinary judge or judges of the High Court...." The Parliamentary Secretary says that "ordinary" does not cover the plural. In an ordinary reading of English, it would.

Mr. McGilligan

It does, of course.

Mr. Haughey

That is not what I am saying.

Mr. McGilligan

The Parliamentary Secretary did indeed.

Mr. Haughey

I did not.

Mr. McGilligan

He definitely did.

Mr. Haughey

In regard to the last point raised by Deputy O'Higgins, subsection (3) says: "The President of the High Court shall be ex officio an additional judge of the Supreme Court.” We are not interfering——

Mr. T.F. O'Higgins

Is the Parliamentary Secretary hurt if the word "additional" is dropped.

Mr. Haughey

I am, yes.

Mr. T.F. O'Higgins

Why?

Mr. Haughey

I thought Deputy O'Higgins's latest objection was to the effect that up to now the President of the High Court had been ex officio——

Mr. T.F. O'Higgins

A judge of the Supreme Court.

Mr. Haughey

He still is ex officio. We are making him an additional judge ex officio. To come to the point of judges and ordinary judges—it does not matter whether you take the Supreme Court or the High Court— subsection (2) of Section 1 says:

The Supreme Court shall be constituted of the following judges——

Then it provides that they shall be (a) the Chief Justice and (b) ordinary judges. Therefore, it is crystal clear from that that the word "judges" includes both the Chief Justice and the ordinary judges; in other words, judges as a generic term includes both. If we come down further to subsection (4), it will be seen that I am perfectly right in pointing out that "ordinary judge" refers to judges other than the Chief Justice or, in this case, other than the President of the High Court and that "judges" means "ordinary judges and the President of the High Court." That applies whether it is the Supreme Court or the High Court which is in question.

Mr. McGilligan

In regard to line 39 "ordinary judge" does not include the President but "judges" includes the President?

Mr. Haughey

That is exactly what I have been trying to get across for the past half hour.

Mr. McGilligan

The Parliamentary Secretary has not got it across yet. Would he go on to the next line where an appeal may be made to an ordinary judge, a High Court judge, not the President, or to judges including the President. In regard to "any judge so requested", does that exclude or include the President?

Mr. Haughey

It must include the President.

Mr. McGilligan

It must include?

Mr. Haughey

I have already indicated that in Section 2 it is clearly stipulated that the High Court shall be constituted of the following judges and then stipulates the President of the High Court as one of them.

Mr. T.F. O'Higgins

If "any judge so requested" includes the President——

Mr. Sheldon

If subsection (4) has the meaning which the Parliamentary Secretary is ascribing to it, there does not appear to me to be any point in subsection (3). If the President of the High Court can act only when he is requested by the Chief Justice "owing to the illness of a judge of the Supreme Court or for any other unavoidable cause," under the Parliamentary Secretary's reading of lines 38 and 39 what is the point of making him ex officio a judge? This if far from clear to me.

Mr. McGilligan

It is all nonsense. The word "judges" could not include the President.

Mr. Sheldon

It does not need to.

Mr. McGilligan

In an ordinary reading of English, the word "ordinary" carries forward.

Mr. T.F. O'Higgins

The Parliamentary Secretary should have another look at it. Can we get some indication from the Parliamentary Secretary that he will examine this?

Mr. McGilligan

Take out the word "additional" and say "a".

Mr. Haughey

I suppose it would be very unreasonable to suggest I will not have another look at it, but purely on that ground I shall undertake to do so.

Mr. T.F. O'Higgins

That is very reluctant.

Mr. Sweetman

The Parliamentary Secretary will learn by degrees that that sort of temper does not get you through a Committee Stage.

Mr. Haughey

Deputy Sweetman has not been through what I have been through for the last hour.

Mr. McGilligan

If he had been in for the last five minutes, he would have been in much worse humour than he is.

Mr. Sweetman

Someone must have got out on the wrong side of the bed this morning.

Amendment, by leave, withdrawn.

Mr. Haughey

I move amendment No. 6:

In subsection (4), page 2, line 36, to delete "any other unavoidable cause" and substitute "any other reason".

The purpose of this amendment is to introduce into this Bill and the other Bill similar phraseology. We intend that from now on when we are talking about this set of circumstances, we shall use the phrase "where owing to the illness of a judge of the Supreme Court or for any other reason." That is the phraseology we shall use throughout the two Bills.

Amendment agreed to.

Mr. McGilligan

I move amendment No. 7:

In subsection (4) page 2, line 36, to delete "the full" and substitute "a sufficient".

An Leas-Cheann Comhairle

Perhaps the Deputy would agree that amendment No. 14 is cognate and could be discussed with this, with separate decisions, if necessary?

Mr. McGilligan

I think not. May I deal with amendment No. 7 for the moment? I am anxious to know what is meant by all this. The aim of subsection (4) is to allow judges of the High Court to be brought into the Supreme Court for Supreme Court business. The preamble to the subsection says: "Where, owing to the illness of a judge of the Supreme Court or for any other reason..." In other words, the reasons are left rather at large. First of all it was illness; then it was "any other unavoidable cause" and now it is "any other reason". That is not consistent with the next section, subsection (5) of Section 2. What are the circumstances in which a judge of the High Court may be called upon by the Chief Justice to transact Supreme Court business? It is when the full number of judges of the Supreme Court are not available. The full number is five.

When the Constitution speaks of the full number, as it does in two instances, it is the full Court of five. It is understood that where there is any reference to the full court of the Supreme Court, it is a court of five. That would mean, then, that if four judges of the Supreme Court are available, only then may the Chief Justice call on a High Court judge. Suppose the Chief Justice has determined that the case be heard by three judges, as he may under the next Bill. Is he empowered to call on a High Court judge to come up because one of the five is absent? That is my reading of this phrase.

Mr. Haughey

That is a correct reading.

Mr. McGilligan

Then I suggest it should not be the situation. Instead, I would put in "where a sufficient number of the Supreme Court judges is not available for the transaction of the business". That would mean if the court wants five and there are not five, they can call on a judge of the High Court. If the Chief Justice thinks a court of four ought to hear a particular case and there are two missing, he then calls two. But suppose he wants a case heard by three judges only and there are four available, why should he be entitled to call on a High Court judge to assist him in those circumstances?

Mr. Haughey

I am fully convinced of the necessity for this amendment and I have very great pleasure indeed in accepting it.

Mr. McGilligan

And while so sitting he is to be a member of the Supreme Court?

Mr. Haughey

No.

Mr. T.F. O'Higgins

He must be a member of the Supreme Court.

Mr. Haughey

I am accepting only amendment 7. I suggest the phrase "of such appeal or other matter" covers that.

Mr. McGilligan

I move to delete that. I put it that it would be more precise to say—leave out this word "additional"—instead of saying the High Court judge shall be a judge of the Supreme Court for "such appeal or other matter", to say that, when called upon for some business of the Supreme Court, he is sitting on that business as a judge of the Supreme Court.

Mr. Haughey

I suggest it is all right as it is.

Amendment agreed to.

Amendment No. 8 not moved.

Question proposed: "That Section 1, as amended, stand part of the Bill."

Mr. McGilligan

On the section, I want again to refer to this matter of the terminology. The Constitution says there is to be a Court of Final Appeal, to be called the Supreme Court. It says that it "shall be called the Supreme Court." In addition, the Constitution says that the President of the Supreme Court shall be called the Chief Justice. We are not carrying out the Constitution by calling the Court of Final Appeal An Chúirt Uachtarach, with a translation of three words in brackets, and calling the President An Phriomh Breitheamh, with a translation inside brackets.

I also object to the making of discrimination between judges and dividing them into judges and ordinary judges. I think we should have the situation where judges are determined according to title like Chief Justice with Justices in addition to him. I object to the section as it stands amended.

Mr. T.F. O'Higgins

I entirely agree with Deputy McGilligan. The matter has been discussed in relation to two of the amendments last night. I do not think anything the Parliamentary Secretary has said can convince any Deputy interested in this matter that this form of legislation is appropriate or proper. We must face up to the realities of our situation here. When we are talking in English we call our institutions—our courts, the Army and all the rest of it—by what they are well known as in the language we are using. If we talk in Irish, we refer to them in the appropriate Irish terminology; but speaking in either English or Irish, we are bound to accord with what the Constitution of this country lays down.

In this section, the Minister, through the Parliamentary Secretary, breaks all the conventions. He is asking us to pass a section which, as I said last night, is pidgin English. In so doing, he is asking us to legislate in the teeth of what the Constitution provides. I think this section, on all counts, is most undesirable, unhappily worded and serves no useful purpose to the courts, to the Irish language or to the prestige of the State.

Mr. Haughey

I think you will agree, A Leas-Cheann Comhairle, that I dealt fairly fully with the arguments put forward on the amendments we dealt with last night. I am still not convinced that there is anything wrong or doubtful in what we are doing. I think we are acting fully in accordance with the obligations laid on us, both by the letter and the spirit of the Constitution.

Mr. Sweetman

Is it not rather odd that, if that is so, there is no body which agrees with the Government and the Parliamentary Secretary? None of the professional bodies agrees; all are opposed. All say that it is not a proper matter for statutory law.

Mr. Haughey

May I point out in that regard that none of the professional bodies, or any body we consulted with regard to this Bill, has objected to its provisions?

Mr. Sweetman

That is not true. Does the Parliamentary Secretary not read the papers?

Question put and agreed to.

Mr. T.F. O'Higgins

Sir, nobody said "Tá".

An Leas-Cheann Comhairle

I heard the Parliamentary Secretary say "Tá".

SECTION 2.

Mr. McGilligan

I move amendment No. 9:

In subsection (1), page 2, lines 45 and 46, to delete "An Ard-Chúirt" and the brackets enclosing the next three words.

An Leas-Cheann Comhairle

I think that may be taken with amendment No. 1.

Mr. McGilligan

No. I would agree if you said that amendments Nos. 9 to 19 cover, in respect of the High Court and the President of the High Court, what was argued in connection with the Supreme Court. With your permission, I shall take the whole lot together. I presume amendment No. 14 will be accepted in the same way as amendment No. 7 was accepted. Otherwise, we will have to argue the whole lot right through. I object to calling the High Court An Ard-Chúirt. I object to calling the President of the High Court Uachtarán na hArd-Chúirte. I object to this discrimination between whatever the head of the High Court is to be called and ordinary judges. I object to the President of the Circuit Court being made an additional judge of the High Court. I think he should be made a judge ex officio of the High Court. I urge the same argument with regard to the Appeal Court. I think the points raised in relation to the Supreme Court would apply equally with regard to the High Court. The rest then is just this matter of trying to take away supreme recognition in the title of the members of the court.

There is one last point. I want to cut out subsection (5) because I do not know what it means. I think it can all be carried in simply by saying that "while so sitting he shall be a judge of the High Court". There is this distinguishing feature with regard to Section 2 as opposed to Section 1. The Constitution does set up a Court of Final Appeal and says it shall be called "The Supreme Court." It leaves everything else at large. It also says that the President of the Supreme Court shall be called the Chief Justice. There is no statement in the Constitution with regard to the High Court or with regard to any title of any person to be appointed as head of it. In fact, the President is entirely a creation of statute law, and the law that created that particular office stated that he was to be appointed by the President on the advice of the Government and he was to take precedence, or to have priority, over the judges of the High Court. I presume that will stand. It has not been cut out by any of the repeal sections of the next Act. It raises a point, however, with regard to the Court of Criminal Appeal and with regard to the District Court and, because of that, points must be raised on this.

Again, as we are here dealing largely with title, we should at least observe the Constitution in so far as there is any reflection in this matter at all. The Constitution did say, in the first instance, Courts of Final Appeal. They gave a title in English for the Court of Final Appeal; it is to be called The Supreme Court. I think the High Court should be called the High Court. There are references to the courts, but they are generally to the judges and to other courts. The only distinction made in the Constitution between the Court of Final Appeal and Courts of First Instance is that they are divided into local courts with legal and limited jurisdiction. There is no statement that the court is to be called in a particular way. The High Court is referred to in paragraph 3 of Article 34. It does not say it is to be called the High Court, but it says it is the High Court. I think we should keep to these terms.

When we come to the President of the High Court, we are at large because he is entirely a creation of statute and can be called anything. Before this debate is over, he may be called "Mon Seigneur” or something. In the English version, we should keep to the English title. If there is any Irish put in, in order to have some stereotype, then the Irish phrase should be put in in brackets. I will not weary the House with arguments but I move to delete subsection (b) of Section 5 and to substitute a phrase similar to that which I had in respect of the High Court, namely, when a judge of the Circuit Court is called to do duty in the High Court he shall, while so sitting, be a judge of the High Court.

Mr. Haughey

I think the only thing in this series of amendments is amendment No. 14. I think the House will readily appreciate why, even though we accepted amendment No. 7, we cannot accept amendment No. 14. The phraseology in paragraph (a) of subsection (5) is completely different from the wording of subsection (4) of Section 1. I should point out that subsection (5) (a) states:

Where, owing to the illness of a judge of the High Court or for any other reason, the full number of judges of the High Court is not available for the transaction of the business of that Court or, on account of the volume of business to be transacted in the High Court or for any other reason arising from the state of business in that Court, it is expedient to increase temporarily the number of judges available for the purposes of the High Court, the Chief Justice, at the request of the President of the High Court, may request any ordinary judge of the Supreme Court to sit in the High Court as an additional judge thereof, and every ordinary judge of the Supreme Court so requested shall sit in the High Court.

In the light of that phraseology, I think Deputy McGilligan might agree it is not necessary to substitute "a sufficient" for "the full". I think all possible circumstances are covered.

Mr. McGilligan

Why say "the full number of judges"? The full number of judges under the next Bill is six, plus the President, that is, seven in all. This means that, although there is only work for four, if one is ill, judges of the Supreme Court can be called on. Why should one be allowed to do that?

Mr. T.F. O'Higgins

If there is, in fact, a sufficiency of judges available in the High Court, why should the Supreme Court be appealed to for help?

Mr. Haughey

We want to give the maximum amount of flexibility.

Mr. McGilligan

What limitation is there on flexibility if we say a sufficient number are not available to transact the business? There is no limitation there.

Mr. Haughey

I think the concept of a sufficient number is covered in the remainder of the paragraph.

Mr. T.F. O'Higgins

In what way?

Mr. Haughey

The first part deals with the problem where the full number of judges are not available and, on account of the volume of business, or for any other reason arising from the state of business, it is expedient to increase temporarily the number of judges. I think that certainly covers the situation.

Mr. McGilligan

It makes it easier to call on the Supreme Court judges—"if, for any other reason," it is necessary to call on the Supreme Court judges is a very liberal allowance indeed. The first test is there are seven High Court judges, including the President; if one is ill and you have business for only four, you can call on a Supreme Court judge under this. That is certainly not a reasonable suggestion.

Mr. Booth

Surely it is governed by the phrase "it is expedient".

Mr. McGilligan

That is the second part. Look at the first part. "Where owing to the illness of a judge...or for any other reason,...the full number of judges...is not available."

Mr. Booth

Yes, but I think Deputy McGilligan will realise that it is quite improper to take out one part of one section—in fact, one part of one subsection—when the whole subsection must be read in its entirety.

Mr. McGilligan

Certainly.

Mr. Booth

It states, "Where owing to certain circumstances the full number is not available and it is expedient".

Mr. McGilligan

No, no. "Or it is expedient"—"or, on account of business". They are alternatives.

Mr. Booth

"Where a full number is not available", "or on account of business"—the whole thing is clearly based on there being a reason of expediency that there shall be an extra judge appointed.

Mr. McGilligan

Is the Deputy not arguing that you do not need the first part at all?

Mr. Booth

No.

Mr. McGilligan

Why have the first part?

Mr. Booth

It is because the stress there is definitely on the provision of a flexible system which will make a full number of judges available whenever required. If the Deputy is suggesting that the President of the High Court will make absolutely irresponsible appointments, thereby prejudicing the work of the Supreme Court——

Mr. McGilligan

I am not.

Mr. Booth

——he should at least give us some reason for believing that is possible.

Mr. McGilligan

I do not suggest that he will. Through you, Sir, I would ask Deputy Booth to attend to this suggestion. Let me read this section, with one alternative left out:

Where on account of the volume of business to be transacted in the High Court or for any other reason arising from the state of business in that Court, it is expedient to increase temporarily the number of judges available for the purposes of the High Court,

then you call in members of the Supreme Court. Does not that cover nearly everything?

Mr. Booth

Nearly everything.

Mr. McGilligan

The section says:

Where, owing to the illness of a judge of the High Court or for any other reason, the full number of judges of the High Court is not available...

The full number of judges of the High Court is seven. That would mean that if one man is ill or writing a judgement so that there are only six available, the President of the High Court can call in members of the Supreme Court. Why should he be allowed?

Mr. Haughey

Why not?

Mr. McGilligan

When he has the other alternatives:

Where, on account of the volume of business to be transacted in the High Court or for any other reason arising from the state of business in that Court, it is expedient to increase temporarily the number of judges.

That gives everything. This matter should not be poised upon temporary incapacity of one of the seven members of the High Court. If the remaining six are capable of carrying on the business, then there should be no necessity to go to the Supreme Court.

Mr. Haughey

Nor indeed would there be any recourse to the Supreme Court in fact but we just felt that it was desirable if, for any reason at all, even one member of the full High Court were not available, that the President and the Chief Justice should be in a position to go to the Supreme Court. I must say I do not get passionate as to the difference between the full number and sufficient number and if it would make the Opposition any happier, I will accept "sufficient number", in amendment No. 14. I will accept amendment No. 14.

Amendment, by leave, withdrawn.

Amendments Nos. 10 to 13, inclusive, not moved.

Mr. McGilligan

I move amendment No. 14:

In subsection (5), paragraph (a), page 3, line 10, to delete "the full" and substitute "a sufficient".

Amendment agreed to.

Amendments Nos. 15 to 17, inclusive, not moved.

Mr. McGilligan

I move amendment No. 18:

In subsection (5), paragraph (a), page 3, line 22, to add after "Court" the words "and while so sitting shall be a Judge of the High Court."

I suggest that this amendment added to the end of subsection (a) would give everything that is required and allow for deletion of subsection (b). I am suggesting that amendments Nos. 18 and 19 should be discussed together.

Mr. Haughey

That is all right.

An Leas-Cheann Comhairle

Amendment No. 19 is consequential on No. 18.

Mr. McGilligan

I am suggesting adding on these words set out in my amendment No. 18. That includes everything that is in subsection (b).

Mr. T.F. O'Higgins

It obviously does.

Mr. Haughey

It is purely a matter of drafting. In our draft, we have copied the existing law and unless there is some good reason, we would not like to change it.

Mr. McGilligan

It varies from what has been put in already in subsection (4) of Section 1.

Mr. Haughey

One comes from the 1924 Act and the other from the 1936 Act. There is no particular reason.

Mr. McGilligan

Do not you get the same effect by saying "when he is asked to sit, shall sit and shall be a judge of the High Court while he is so sitting?"

Mr. T.F. O'Higgins

We are starting off de novo, establishing courts. I think we should do it here afresh.

Amendment put and declared lost.

Amendment No. 19 not moved.

Question: "That Section 2, as amended, stand part of the Bill," put and declared carried.

SECTION 3.

Mr. McGilligan

I move amendment No. 20:

In subsection (1), page 3, lines 28 and 29, to delete "An Chúirt Achomhairc Choiriúil" and the brackets enclosing the next five words.

I am going to speak, if I may, on most of the four amendments to this section, which I suggest might be discussed together but might require separate decisions.

Mr. Haughey

Amendment No. 20 deals with the Irish forms.

Mr. McGilligan

There is more in it than that. The section deals with the establishment and constitution of the Court of Criminal Appeal. The Court of Criminal Appeal is unknown to the Constitution and when I turn to the provision of the Transitory Section of the Constitution under which the original courts were carried forward, it is in these terms—Article 58:

On and after the coming into operation of this Constitution and until otherwise determined by law,...

This is the determination otherwise, but until that happens

the Supreme Court of Justice, the High Court of Justice, the Circuit Court of Justice and the District Court of Justice in existence immediately before the coming into operation of this Constitution——

and then there is a reservation which does not matter——

shall ... continue to exercise the same jurisdictions respectively as heretofore, and any judge or justice being a member of any such Court shall ... continue ...

The courts that were carried forward were the Supreme Court, the High Court, the Circuit Court and District Court. There is no mention of the Court of Criminal Appeal. That court is in a very peculiar position; it is not a High Court proper and it is not a Supreme Court. It is certainly not a Court of Final Appeal because there may be an appeal from it but it is a court of appeal of some type. I do not know how it has been constituted. The amendments Nos. 21, 22 and 23 are an endeavour to make this court a High Court. At the moment there are references to the Chief Justice and the court is to be composed in either of two ways; three judges, one of whom is the Chief Justice and the other two may be Supreme Court judges, High Court judges, or else any two may be two ordinary judges of the High Court or else a High Court judge and the President of the High Court. It is a mixed court. As it stands here, we shall always be obliged to have on it either the Chief Justice or a Supreme Court judge.

That puts it in a very peculiar position and I cannot find where it is provided for, or even permitted under the Constitution. Its personnel is such that it is neither one thing nor the other. It is not a Supreme Court and it is not a High Court. Apart from that I do not see how you can fit it in with the description or division of courts in the Constitution, where you have a Court of First Instance. I doubt if the Court of Criminal Appeal can be described in that way. Certainly, it is not a Court of Final Appeal because there may be an appeal from it. For that reason, although it does not meet all the difficulties, I want to put in, instead of having the Chief Justice summoning or being a member of the Court, that you would have the President of the High Court being the person who would take upon himself the making of the Court, the summoning of the Court and determining who is to be on the Court. I would put that in the hands of the President of the High Court and take away this necessity for having either the Chief Justice or members of the Supreme Court on the court itself.

I think we have come to the position when we must make up our mind as to whether it is to be a High Court or a Supreme Court. It is not a Court of Final Appeal and, certainly, my amendment would not make it that. If it has to become a High Court, which I think it should be, the Constitutional ruling is there and there should be the right of appeal and by being a High Court there would be a right of appeal. That would be all right. As it stands, it is a hybrid court and I think it is not fully in accord with the Constitution. That is the substance of the amendments I have down—to change the composition of the court—and I think that matter should be attended to.

Amendment No. 20 is the usual matter of title or nomenclature. If we are to change the composition of the court we should have clarity to ourselves as to what we call the court. That is the only amendment I have in regard to nomenclature. The others are concerned with its position. It cannot be the Supreme Court; it cannot be a Court of Final Appeal and the only alternative seems to be to make it a High Court.

May I say that I do not know what is going to happen with respect to determinations. There has been a Court of Criminal Appeal of a hybrid type that has made many determinations. On the coming into operation of the Constitution, Article 58 carried forward certain courts but they were certain named courts, the Supreme Court, the High Court, the Circuit Court and the District Court. The judges of those courts were kept on as they were but there is no suggestion that the Court of Criminal Appeal was either recognised or carried forward by the Constitution. What has happened to the determinations that were made in the Court of Criminal Appeal I do not like to answer.

Mr. Haughey

The Deputy will appreciate that these amendments were put down at somewhat short notice. As regards these particular amendments I decided that I would hear the case he had to make. This is a point we ourselves are considering and if the House and the Deputy would agree to the withdrawal of the amendments for the moment I would undertake to have the whole position examined between now and the Report Stage, particularly in the light of Deputy McGilligan's remarks.

Mr. T.F. O'Higgins

Could the Parliamentary Secretary say what is governed by that?

Mr. Haughey

Amendments Nos. 21, 22 and 23.

Mr. McGilligan

These are to be considered?

Mr. Haughey

Yes.

Mr. T.F. O'Higgins

In other words, Section 3 in its present form.

Amendment, by leave, withdrawn.

Amendments Nos. 21 to 23, inclusive, not moved.

Mr. McGilligan

If No. 23 is going to be considered there is an error in it. It says "or the request". That should read "on the request".

Section 3 agreed to.

SECTION 4.

Question proposed: "That Section 4 stand part of the Bill."

Mr. McGilligan

The amendments here in my name are concerned with the same matters in regard to the Circuit Court that I have argued already with regard to the Supreme Court and the High Court.

An Leas-Cheann Comhairle

Amendment 34 withdrawn?

Mr. McGilligan

Not moved, I think, Sir. I am not objecting. My purpose is that I understand if an amendment is not moved it may be put down again on the Report Stage.

An Leas-Cheann Comhairle

Yes, so long as it is an amendment acceptable for the Report Stage.

Mr. McGilligan

It is not like an amendment that is negatived; it can be raised again on the Report Stage.

Amendments Nos. 24 to 27, inclusive, not moved.

Question put and agreed to.

SECTION 5.

Mr. McGilligan

I move amendment No. 28:

In subsection (1), page 4, lines 2 and 3, to delete "An Chúirt Dúiche" and the brackets enclosing the next three words.

Some of these amendments are much the same as those that have been discussed but there are a few extra. Nos. 29 and 32 are different and I should like to speak on them also. Particularly, I want to stress Nos. 29 and 32. Amendment No. 29 proposes to delete subsection (2) and substitute the following:

The District Court shall be constituted of such number of judges as may from time to time be fixed by Act of the Oireachtas.

In amendment No. 32 I want to delete the word "Justice" and put in the word "Judge". There is a constitutional point arising as between this and the other Bill. Apparently, there is a desire here to appoint judges, to have a court constituted of judges but to call them justices. The word "Justice" of course is completely unknown to the Constitution. The protection that is given to the judiciary in the Article that is supposed to protect them is all the time framed in terms of judges.

The protection in regard to their not being removable from office, except for stated misbehaviour, applies only to judges of the Supreme Court and the High Court but, by law, that same protection has been given both to judges of the circuit court and to justices of the district court. But what is the position under the Constitution? Article 34 says that justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution. It then goes on to say that certain matters are to be administered in public and states the requisites for the proper handling of justicial matters in courts established by the Constitution by justices appointed in the manner provided in the Constitution.

At a later stage one comes to Article 34 which refers to a person appointed as a judge who, under this Constitution, shall make and subscribe a particular declaration which is set out in clause 5 of Article 34. The Article says that the declaration "shall be made and subscribed by the Chief Justice in the presence of the President and by each of the other judges of the Supreme Court, the judges of the High Court and the judges of every other Court in the presence of the Chief Justice or the senior available judge of the Supreme Court in open court." I have not the slightest doubt that the people who are now called district justices all made that declaration in the presence of the Chief Justice or the senior judge of the Supreme Court. That declaration is obligatory on every judge. If he declines or neglects to make such declaration he is deemed to have vacated his office.

Article 35 says that the judges of the Supreme Court, the High Court and all other courts established in pursuance of Article 34 shall be appointed by the President. "All judges,"— that covers the people we are talking about—"shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law." Then there is the prohibition that no judge shall be a member of either House of the Oireachtas, or hold any other office or position of emolument. Eventually, when you come to Article 37, there is a provision that limits the functions and powers of a judicial nature which may be exercised by people who are not judges before tribunals which are not courts. There is one great reservation in that and that is in regard to criminal matters. That means that, whatever loosening up there may be of the judicial functions in respect of the terms of Article 37, there is reserved from it everything that has to do with criminal matters.

The work of the district courts has I would say, largely to do with criminal matters and their jurisdiction is mainly in respect of offences. They may try cases summarily to a conclusion, or they may have a preliminary hearing to decide whether a person should be sent forward for trial or not. In any event, criminal matters must be dealt with by people who are judges appointed, or in courts established, under the Constitution. In Section 5 I think there is an attempt to distinguish between how a court is constituted and what the members of the court are to be called. We have here that there is to be established An Chúirt Dúiche and that it is to be constituted of the following judges: the President of the District Court, and such number of other judges styled in a particular way.

When I turn to the Courts (Supplemental Provisions) Bill I see that Part IV deals with the district court. Section 28 says that the number of justices in the district court shall be not more than a certain number. That is not merely a matter of nomenclature. They are justices there and not judges. It is worse still if one looks at Section 29. It says that "each of the persons who are justices of the existing District Court"—one can not interfere with the people who, rightly or wrongly, have been called that—"immediately before the operative date shall be qualified for appointment as a justice...." There is no such appointment. The appointment must be as a judge, but here it says that where a person is qualified to be a justice "and, if and so long as there is one or more than one of those persons who is willing to accept office and has not been appointed, no other person shall be qualified for appointment as a justice of the District Court."

Paragraph (b) of the section says that paragraph (a) of the subsection applies only in relation to the qualification for appointment of the first justices of the district court. One then comes on to subsection (2) which says that "A person who is for the time being a practising barrister or a solicitor of not less than ten years standing shall be qualified for appointment as a justice of the District Court."

The whole run of the Courts (Supplemental Provisions) Bill is to have these people appointed as justices and not appointed as judges. I do not think that is constitutional. I suggest it is not. The Constitution is entirely in terms of judges. It may be said that having appointed them as judges we can call them anything we like, as we are calling one of them "Uachtarán na Cúirte Dúiche" but that is a matter of evasion. On the matter of appointment there is no doubt. They must be appointed as judges. If that point is accepted, and I do not see how it can fail to be accepted, I think it is absurd to be demeaning this particular court group by calling them out of their proper title. They are judges under the Constitution. They have the fortification of the judges and they must make the same declaration as the judges. In every way there is a similarity between judges and justices.

From the point of view of the importance of their work in the country, I think they deserve the title of judge equally with judges of the other courts. I raise this matter because it is the foundation matter and when we are establishing the court and saying that the court is to be composed of the following judges we should give them the title of judges. It is noticeable that the words used in the Irish version are the same for High Court, Circuit Court and Supreme Court, and it is only the English version that makes the difference. I raise this on Section 5 and I think we should carry this forward to their title. Having established a court as a court of justices, to be manned by justices, it will require very serious amendments of the Articles dealing with this particular court.

Mr. Haughey

I am in full agreement with Deputy McGilligan that the persons to be appointed to the district courts are judges in the full sense of that term. It is for that reason that Section 5 is phrased as it is. Section 5 states, in subsection (2), that "the District Court shall be constituted of the following judges—(a) a judge who shall be styled...and (b) such number of other judges..." There can be no question about that. Section 5 appoints these people to be judges and in that regard the provisions of the Constitution are fully complied with. Once they are appointed judges, their styling of course is a completely different matter. Once the basic and fundamental step of establishing the office of judges is carried out in Section 5, the section merely goes on to say they shall be styled as justices. The fact that we style them as justices does not in any way detract from the fullness of their appointment as judges in accordance with the Constitution. The reason we style them as justices rather than judges is quite a simple one. The matter was considered by the Government and they decided that the traditional form by which a district justice has always been addressed and styled should prevail. That form of address or styling has been there for a long time now, and it was simply a matter of the Government deciding the traditional styling should be adhered to.

Mr. T.F. O'Higgins

It appears to be more than a matter of address; it seems to be more than a mode of referring to them.

Mr. Haughey

It is styling.

Mr. T.F. O'Higgins

It goes deeper than merely referring to them as "justice" or "judge". We are creating the office of justice or judge, as the case may be. It is deeper than merely referring to them.

Mr. Haughey

I agree. In Section 5, the elementary, or basic, or fundamental thing is done, that is, the creation of the office of the District Court and of the judges of the District Court. It quite clearly and specifically says in relation to the establishment and constitution of that court that: "The District Court shall be constituted of the following judges—(a) a judge, and (b) such other judges...."

Mr. McGilligan

Such convolutions will be very confusing. They must be judges by virtue of their appointment. Secondly, the leader of that court is to be styled Uachtarán na Cúirte Dúiche. He is to be one part of the composition of the court. With him, there are to be other judges and each one is to be styled Breitheamh den Chúirt Dúiche. "Breitheamh" is the Irish word for judge and it is only in the English translation of the word "breitheamh" that the word "justice" appears.

When we come to the Courts (Supplemental Provisions) Bill, in Section 45, we find that "Each other judge and justice of the District Court shall be addressed in court as "A Bhreithimh". So we have three things to consider. First the appointment; secondly, how they are styled in Irish and in English; and thirdly, how they are to be addressed. Only in one case does the word "justice" occur. Only in the English translation of the phrase on how they are to be styled does the word "justice" occur.

I am still perturbed about Section 5 of the fundamental Bill and Section 29 of the other Bill. There is radical objection to be taken there. In Section 29 they are to be appointed justices, not appointed judges and called justices. It would be rather absurd but understandable if we were to keep to this line with Section 5. If this English phrase were wiped out, it would appear to be all right, because the appointment is as a judge, and the entitlement is breitheamh. That is entirely confined to the second Bill which must be taken in conjunction with this Bill. That causes a difficulty and I suggest it should be looked at again. I suggest that the translation of "breitheamh den Chúirt Dúiche" should be, in brackets, "judge of the district court". That is what their appointment is, and I do not see why their title should not correspond with their appointment.

In the title we have given to chief justices, there is a sort of addition. We call them chief justices or Phríomh-Bhreithimh or Uachtarán of the different courts. We now have Uachtarán na Cúirte Dúiche. There, there is something additional, but do not take away from the title that should be used in accordance with the method of appointment. I suggest that might be looked at again to see whether the translation of the word "breitheamh" could be put down as "judge".

Mr. T.F. O'Higgins

Or keep it consistent the other way.

Mr. McGilligan

I still object to the Irish phrases.

Mr. Haughey

I do not mind undertaking to look at it again. I am reasonably satisfied that it is perfectly all right as it is. In Section 5, we are establishing the office and creating the judges, and we indicate in Section 5 that after they have been created, they are to be styled in a certain way. That is perfectly in order.

In the second Bill, in Section 29, we are referring to judges who have been created and styling them justices. I have explained that we propose to keep the form of styling them district justices because it is traditional. Once we have created judges, established the office of judge of the District Court, the constitutional obligation is discharged, and it is perfectly in order to refer to them as justices. We do not in any way detract from their constitutional status as judges by styling them justices. In other words, you can call a person any name you like and he is essentially the same person. It does not matter what title you give him. It is the same here. These appointments are made and judges of the District Court are thereafter styled in a certain way.

May I at this stage point out on a point raised earlier about the Irish form of "Cúirt Uachtarach" that I understand the use of "Uachtarach", instead of "Uachtaraigh" as in the Constitution, is in conformity with the official standard grammar and spelling adopted in 1958. It appears that in the declension of the adjective the dative case is going out of use. I have no doubt that gladdens the hearts of many of us. That is the position and, indeed, I understand the current texts of the Constitution are brought up to date in this matter.

Mr. McGilligan

They have not been brought up to date.

Mr. Haughey

The current texts?

Mr. McGilligan

The last one.

Mr. Haughey

If the current text is not, it will be brought up to date the next time.

Mr. McGilligan

No text has that change.

Mr. Haughey

Next time it will have.

Mr. McGilligan

That may be. I take it from what the Parliamentary Secretary has said that Section 29 of the Courts (Supplemental Provisions) Bill is regarded as proper, and that under the next Bill, we are going to appoint people to be justices, and not appoint them as judges and call them justices. They will be appointed justices. That is the term used. I must again refer to Article 34 of the Constitution which provides:

Justice shall be administered in public courts established by law by judges appointed in the manner provided by this Constitution.

Later on, it refers to certain limited functions of a judicial type that may be undertaken by non-judicial persons. The terms in which that provision is couched are:

... limited functions and powers of a judicial nature ...

—may be handed over to a person or a body of persons—

... notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

The word used in the Constitution in connection with judges is "appointed". It deals with appointment and not with what they are called. Section 29 asks us to appoint people as justices and not as judges. Even if the word "judge" were determined by some definition section to include the word "justice", it might be better, but it would be a poor way of doing it. The operative phrase is "appointing as a justice." We are making people judges, in fact, under Section 5 and then we are going to appoint them as justices. May I read Section 29?

Mr. Haughey

Section 29 deals with the qualifications for appointment.

Mr. McGilligan

It is the operative matter. The establishment section establishes a court comprised of judges and under Section 29, it is to be filled. Each person who is a district justice at the moment is qualified. No other person will be qualified for appointment except justices of the district court. That applies only to the appointment of the first justice. Subsection (2) of Section 29 says:

A person who is for the time being a practising barrister or solicitor of not less than ten years' standing shall be qualified for appointment as a justice of the District Court.

The new district court will be comprised either of people who are already district justices or new appointments. As far as the group who are already district justices are concerned, they are to be appointed. As far as the new ones are concerned, they are to be appointed district justices so long as they are of a certain standing. I think that is unconstitutional.

Mr. Haughey

May I point out that in Section 5 of the No. 2 Bill, we say that "the existing Chief Justice shall be qualified for appointment as Chief Justice" and in paragraph (b) we say that "The existing President of the High Court shall be qualified for appointment as President of the High Court..." Surely, Deputy McGilligan does not suggest that these provisions are unconstitutional.

In regard to the district court, we appoint these people to be justices. At the same time, we go on, just as Deputy McGilligan said, to a definition section and say these people are appointed judges and this is how they shall be qualified. Section 29 of the Court (Supplemental Provisions) Bill is not an appointing section or an establishing section. It is merely the section which outlines the qualifications for appointment. In that section, when we want to refer to these people, we refer to them by the style we outline in the establishment section which is Section 5 of the first Bill.

Mr. McGilligan

That would be all right if Section 29 read that certain people shall be appointed to the district court and shall be called justices. Section 29 speaks of appointing as a justice. The title of the Chief Justice is in the Constitution. Section 4 of the Courts (Supplemental Provisions) Bill speaks of judges of the High Court and the Supreme Court and only judges. There is no question of Uachtarán.

Mr. Haughey

Will Deputy McGilligan agree that Section 29 of the second Bill does not appoint anybody to anything?

Mr. McGilligan

It says certain people are to be qualified for appointment and no others, as justices in the district court.

Mr. Haughey

It does not appoint anybody. It merely outlines the qualifications.

Mr. McGilligan

It says:

Each of the persons who are justices of the existing District Court immediately before the operative day shall be qualified for appointment as a justice of the District Court....

It then goes on to say:

no other person shall be qualified for appointment as a justice of the District Court.

Subsection (2) says that a practising barrister or solicitor of not less than ten years' standing is qualified for appointment as a justice. There is nothing in this about the appointment of a judge in the district court.

Mr. Haughey

The words about which the Deputy is complaining outline the qualifications for appointment as justice of the district court. We are not attempting to describe the character of the person appointed. It merely refers to the office established in accordance with Section 5 of the first Bill. I would agree with Deputy McGilligan if Section 29 were appointing anybody to anything. It is not; it merely outlines the qualifications.

Mr. McGilligan

Let us go on to subsection (4) of Section 29, which says that where a person is appointed a justice of the district court, he shall be deemed to have continued in office for a certain period when he is appointed a justice. Section 30 states that the age of retirement of a justice of the district court shall be 65. Subsection (1) of that section speaks of the retirement of a justice of the district court. Section 31 refers to pensions of justices of the district court. Finally, subsection (2) of Section 31 says that when a justice of the district court is removed from office on account of incapacity, he shall be deemed for the purpose of pension to have vacated his office owing to permanent infirmity. There you have the whole idea of appointment, salary, and removal in the terms of a justice. The Constitution knows nothing about justices; it knows judges.

Mr. Sheldon

I agree with Deputy McGilligan in that respect. A possible way out of this, in order to clarify the second Bill, would be in Section 28 to have judges of the District Court rather than justices. I do not agree with Deputy McGilligan in regard to Section 29. In reading out bits of it, he was emphasising the appointment. What seems to be emphasised are the qualifications for appointment. "Qualifying" is the operative word. I do not think this argument is quite fair. There cannot be any doubt that they are appointed as judges in Section 5 of the No. 1 Bill. It is very odd that the same Irish word should have two different meanings in English although that is not uncommon, I believe, in many languages. I cannot help saying that all this business of titles and their meaning reminds me of the Republic of Ireland Act, 1948, where we purported to change the Constitution without doing so.

An Leas-Cheann Comhairle

Amendment No. 29 withdrawn?

Mr. McGilligan

Not moved.

Mr. Haughey

How could we discuss it unless it was moved?

An Leas-Cheann Comhairle

The preceding amendment, No. 28, was withdrawn.

Mr. Haughey

How did we come to discuss amendment No. 29, if it was not agreed to?

An Leas-Cheann Comhairle

I understood Deputy McGilligan was discussing certain amendments together.

Mr. McGilligan

Nos. 29 and 32.

An Leas-Cheann Comhairle

No. 29 is not moved? I understand No. 28 was withdrawn.

Mr. McGilligan

No. I want to know what is the clear position if this is moved and negatived. May it be moved again on Report? If it is withdrawn, there is at least a possibility of reintroducing it——

An Leas-Cheann Comhairle

On that basis, on Report Stage.

Mr. Haughey

It seems a little bit odd to me that we are discussing amendments that were not moved.

Amendment No. 28, by leave, withdrawn.

Amendments Nos. 29 to 32, inclusive, not moved.

Section put and agreed to.

SECTION 6.

Amendment No. 33 not moved.

Mr. McGilligan

I move amendment No. 34:

In subsection (1), page 4, line 18, to delete "President of the District Court or".

I have some doubt as to what is meant by the various subsections of this proposed Section 6. We speak of a "judicial office". That is defined as meaning certain offices that are set up. There is included in that the office of the President of the District Court. In so far as this relates to something that is past——

Mr. Haughey

It does not.

Mr. McGilligan

Surely. Will the Parliamentary Secretary please permit me to continue? Subsection (2) provides:

A judicial office held by any person may be vacated by resignation in writing under his hand addressed to the President and transmitted to the Taoiseach.

Does that not apply?

Mr. Haughey

No. That is a judicial office under the new Bill.

Mr. McGilligan

Does it mean that a person who holds one of these judicial offices may not vacate it by a resignation in writing?

Mr. Haughey

We are not speaking of present offices. Subsection (2) does not deal with those.

Mr. McGilligan

It deals with judicial offices and amongst them is the office of Chief Justice.

Mr. Haughey

No, the new office.

Mr. McGilligan

It does not say so.

Mr. Haughey

It does.

Mr. McGilligan

Where? There is at present a person holding the office of Chief Justice. Is it put to me that subsection (2) could not possibly apply to him?

Mr. Haughey

Yes.

Mr. McGilligan

Could he not vacate his office by resignation in writing? Of course he could.

Mr. Haughey

The existing Chief Justice can, under the existing law, but this section refers to the new judicial office of Chief Justice to be created under this Bill.

Mr. McGilligan

It had better be defined again because it does not say so. I thought this was comprehensive, that it referred both to the existing holders of these offices and those who may hold them in the future. Amongst them is put in a President of the District Court who is a new person. That ties it as far as he is concerned to the new offices. I want to cut him out from this. I do not think that office should be created. I shall deal with that on the other Bill.

I also want to dwell on the office of the justice or judge of the district court which would refer to the future as well as the past. Those who are office holders in the district court at the moment are called district court justices. According to section 5, the new district court is to be constituted of judges, not justices. How can a person hold the office of justice when the office is that of judge of the district court? There is no such thing as the office of justice of the district court. There is the office of a judge of the district court who may be called justice. That is all. I think the Parliamentary Secretary will agree with what I have said.

I took, then, subsection (2) to apply both ways. I took it that the present holders or, if we are looking at this measure five years' hence, those who are then the holders of these offices or, maybe, those who hold them in the future, may vacate. The word "vacating" in this piece of legislation is surely appropriate to the existing office holders. As I read Section 6—

Mr. Haughey

No.

Mr. McGilligan

The vacating of office, I think, is entirely attached to existing office holders and existing offices.

Mr. Haughey

No.

Mr. McGilligan

Let me go on. Subsection (2) provides:

A judicial office held by any person may be vacated by resignation in writing under his hand addressed to the President and transmitted to the Taoiseach.

Then subsection (3) provides:

A judicial office held by any person shall be vacated by his being appointed, with his consent, to another judicial office.

I took that to mean that, say, the present holder of the office of judge of the High Court will vacate that office when he is appointed, under the new Act, a judge of the ——

Mr. Haughey

No.

Mr. McGilligan

It is open to that construction, I suggest.

Mr. Haughey

No.

Mr. McGilligan

Subsection (4) provides:

Each of the following courts, namely, the Supreme Court, the High Court and the Circuit Court, shall be deemed to be duly constituted during and notwithstanding any vacancy in the office of any judge of that Court.

Again, I took that to have this objective, that judges will be vacating their office by resignation or will be appointed to office not all on the same day, certainly not the same minute, and you would not have a properly constituted court. Subsection (4) provides, as I have said:

Each of the following Courts, namely, the Supreme Court, the High Court and the Circuit Court, shall be deemed to be duly constituted during and notwithstanding any vacancy in the office of any judge of that Court.

Then subsection (6) provides:

Where a vacancy occurs in a judicial office, a person may be appointed to fill the vacancy.

Having read it all, does that Section 6 apply to present offices?

Mr. Haughey

No.

Mr. McGilligan

Does it exclude present offices?

Mr. Haughey

Yes. You will see from one of the official amendments, amendment No. 37, that we propose to insert in this section a provision which will apply to existing office holders only.

Mr. McGilligan

It does apply to existing office holders—bring in amendment No. 37 and it does.

Mr. Haughey

Only the subsection we are bringing in will apply to existing office holders. The remainder of Section 6 will not.

Mr. McGilligan

Section 6 applies both to existing and future office holders, with the additional subsection in amendment No. 37. The section, taking all the subsections together, has the double reference.

Mr. Haughey

With the new subsection included, the section will cover both.

Mr. T.F. O'Higgins

Assuming for the moment that amendment No. 37 is in, how do we read it then? If that is called subsection (7), up to that the section is referring to the new judicial offices.

Mr. Haughey

Dealing with appointments to and resignations from them in the future. The new subsection which will be inserted by amendment No. 37 has reference more to Section 7 than it has to Section 6. The purpose of amendment 37 and amendment 41 is to ensure that a judicial office that is there at present will be vacated by the occupant being appointed with his consent to a new judicial office under the Bill. When that vacation has taken place by that appointment to a new judicial office, then the office will stand abolished.

Mr. McGilligan

In any event I will have to have another look at Section 6 because this provision is to become subsection (4).

Mr. Haughey

To become subsection (4). At the moment subsections (1), (2), (3), (4), (5) and (6) apply exclusively to offices to be created under this Bill. In these existing six subsections "judicial office" there refers exclusively to the new offices to be created. Then the new subsection (4) that will be inserted by virtue of amendment No. 37 will refer to an existing office being vacated by virtue of an appointment to a new office created under the Bill.

Mr. T.F. O'Higgins

Is it appropriate to do it in this Bill?

Mr. Haughey

It is because in this Bill we want to deal with disestablishing the existing courts and abolishing the existing offices, so we are providing in amendment No. 37 that an existing office shall be vacated.

Mr. T.F. O'Higgins

I thought the disestablishment largely takes place under the No. 2 Bill.

Mr. Haughey

No. Disestablishment takes place in Section 7.

Mr. McGilligan

I want to read Section 6 leaving out the amendment. Section 6 refers exclusively to new offices.

Mr. Haughey

Yes.

Mr. McGilligan

I shall have to look at it from that angle. I misunderstood it. It is not drafted in such a way——

Mr. Haughey

Let me explain why. Paragraph (a) of subsection (1) of Section 6 says: "the office of Chief Justice." Section 1 makes it clear who the Chief Justice is. He is the person established under this Bill and that of necessity must be the new office.

Mr. T.F. O'Higgins

Why should it be? He is called something different in Section 1.

Mr. Haughey

No.

Mr. T.F. O'Higgins

In Section 1, he is called "An Príomh-Bhreitheamh (The Chief Justice)."

Mr. Haughey

Those are just the two forms of his title.

Mr. T.F. O'Higgins

I do not want to use phrases or adjectives that might be misunderstood but it comes back to this absurdity. Section 1 says the President of the Supreme Court shall be "An Príomh-Bhreitheamh (The Chief Justice)." That is what the section says. The Parliamentary Secretary tells us that Section 6 which is, if you like, a business section, refers to the new appointments, the new holders of judicial office, that in doing so the reference is to the office of Chief Justice. There is no office of Chief Justice created by this Bill. It is just not being created. In my view it should be created. We are creating an entirely new judicial personage: "An Príomh-Bhreitheamh (The Chief Justice)." That is what we are doing and we had better realise where we are going. The same applies to the President of the High Court and all the rest of it.

Mr. McGilligan

I would like to get the contrast between subsection (3) and the proposed new subsection (4). Subsection (3) says a judicial office held by any person shall be vacated by his being appointed, with his consent to another judicial office. That means in the future.

Mr. Haughey

Once the Bill is passed.

Mr. McGilligan

That is in the future. Very good. On the other hand the new subsection (4) says:

The office held by each person who, immediately before the commencement of this Act, was a judge or justice of any of the courts of justice mentioned in Article 58 of the Constitution shall be vacated by his being appointed, with his consent, to a judicial office.

Mr. Haughey

That refers to a person who had an existing judicial office, an existing judge or justice.

Mr. McGilligan

It refers to an existing officer vacating his office on his appointment to another judicial office. I moved to delete subsection (3) because I thought it was unnecessary when subsection (4) was being proposed, referring to existing holders as well as to the future.

Mr. Haughey

Subsection (3) refers to vacation of a judicial office after the passing of the Bill. The new subsection (4)——

Mr. McGilligan

May I suggest that that ought to be put into the existing framework if it is to get the correct interpretation?

Mr. T.F. O'Higgins

How can one possibly reconcile subsection (1) (a) of Section 6 with subsection (2) (a) of Section 1?

Mr. Haughey

Very simply.

Mr. T.F. O'Higgins

The words "An Príomh-Bhreitheamh" do not appear in Section 6.

Mr. Haughey

Does the Deputy suggest that they detract in any way from the office of Chief Justice?

Mr. T.F. O'Higgins

That is not the point. The Parliamentary Secretary misunderstands me. We have been wrong in reading Section 6 as having reference to existing holders of judicial office. The Parliamentary Secretary says that is not the case, that it refers to the future. It puzzles me when I find in Section 1 that the future President of the Supreme Court shall be "An Príomh-Bhreitheamh". That is what is there. That is what he is to be known as.

Mr. Haughey

Bracket the Chief Justice.

Mr. T.F. O'Higgins

Forget the brackets for the moment.

Mr. Haughey

The brackets are very vital.

Mr. T.F. O'Higgins

Let us keep the Chief Justice in brackets for the moment and let us refer to what is outside the brackets: "The president thereof, namely An Príomh-Bhreitheamh". Section 6 (1) provides:

In this section, the expression "judicial office" means an office being——

(a) the office of Chief Justice...

There is no bracket there.

Mr. Haughey

The Deputy is basing his argument on the assumption that the Chief Justice, in brackets, does not exist in subsection (2) but he does.

Mr. T.F. O'Higgins

He does not exist. This is a future person.

Mr. Haughey

Subsection (2) says: "the president thereof, namely, An Príomh-Bhreitheamh (The Chief Justice)". Subsection (2) (a) brings into being the new judicial office.

Mr. T.F. O'Higgins

An Príomh-Bhreitheamh.

Mr. Haughey

The Chief Justice.

Mr. T.F. O'Higgins

Will we settle for "the Chief Justice" and recommit the Bill?

Mr. Haughey

We have an office with two titles, an Irish title and an English equivalent.

Mr. T.F. O'Higgins

I am afraid we will end with an office with no title.

Mr. McGilligan

I must admit that I misunderstood this section.

Amendment, by leave, withdrawn.

Amendments Nos. 35 and 36 not moved.

Mr. Haughey

I move amendment No. 37:

To insert the following before subsection (4):

"( ) The office held by each person who, immediately before the commencement of this Act, was a judge or justice of any of the courts of justice mentioned in Article 58 of the Constitution shall be vacated by his being appointed, with his consent, to a judicial office."

Amendment agreed to.

Amendment Nos. 38 and 39 not moved.

Question, "That Section 6, as amended, stand part of the Bill," put and declared carried.

SECTION 7.

Mr. McGilligan

I move amendment No. 40:

Before subsection (3) to insert a new subsection as follows:—

"(3) When a person who immediately before the commencement of this Act held the office of judge or justice of any of the existing courts has vacated that office the office held by such person shall stand abolished."

Mr. T.F. O'Higgins

Could we have a word from the Parliamentary Secretary? I am still in doubt about the previous section.

Mr. Haughey

Amendment No. 40 is not necessary now, because I think you will agree the situation is taken care of by the amendment we have made in section 6.

Mr. McGilligan

That was not my purpose.

Mr. Haughey

Anyway, the purpose of Section 7 is to disestablish the existing courts. It is proposed to go about it in the following manner. Subsection (1) defines the expression "the existing courts". Subsection (2) states that "the existing courts shall, on the commencement of this Act, cease to exercise any jurisdiction"—in other words, have no effective judicial function, because the new courts will be established.

Mr. McGilligan

But the judges might still remain.

Mr. Haughey

Yes. You then go on to deal with the judges. Subsection (3) says "When every person who immediately before the commencement of this Act held the office of judge or justice of any of the existing courts has..." Pause there and delete the words "ceased to hold" and substitute "vacated". Amendment 41 would substitute "vacated" for "ceased to hold" and subsection (3) would then read "When every person who immediately before the commencement of this Act held the office of judge or justice of any of the existing courts has vacated that office...." The new subsection (4) which we inserted in Section 6 shows how he vacates the office—by being appointed to a new judicial office.

Mr. T.F. O'Higgins

Would the Parliamentary Secretary pause there? If he does vacate the office, what happens the court?

Mr. Haughey

The court is not disestablished. It is only when every person who immediately before the commencement of the Act held the office has vacated the office that the court ceases to be established and the office stands abolished. So, unless every one of the judges vacates the office by appointment to the new courts, the court does not become disestablished.

Mr. T.F. O'Higgins

He remains in the court but has no jurisdiction.

Mr. McGilligan

I was looking at the phrase I mentioned on the Second Reading that the matter depended on every person vacating his office. I sought to meet that by saying in my amendment No. 40 that:

When a person who immediately before the commencement of this Act held the office of judge or justice of any of the existing courts has vacated that office the office held by such person shall stand abolished.

As each person vacates his office, his office is abolished; whereas this holds up the disestablishment of the courts until everybody has vacated his office. I thought that was a bad situation to have. It is met by abolishing each office as the office is vacated.

Mr. Haughey

The way we are doing it avoids any argument on the constitutionality aspect.

Mr. McGilligan

What is the difference?

Mr. Haughey

There could be some suggestion about the constitutionality of disestablishing courts with a judge in them, as it were. I am not saying it is a valid argument, but we want to obviate any suggestion of it.

Mr. McGilligan

What I had said is that the office should stand abolished. I leave the courts in the position that, once the commencement date of the Act has been settled, then there is no jurisdiction. You have to deal with the personnel. I thought the best way of doing that was to say that as each person vacated his office, that office was abolished. That is constitutional because you are not putting anyone out of office.

Mr. Haughey

We say the same. We say that when every person——

Mr. McGilligan

"When every person"?

Mr. Haughey

Yes.

Mr. McGilligan

Take 34 district justices and seven High Court judges. I do not know how many Circuit Court judges. You have to wait for the lot of them to throw in their hands. I thought that was a bad thing. Suppose you have one or two district judges on the verge of retirement. They may say: "We will not retire. We will just hang on." Then you cannot disestablish the courts.

Mr. Haughey

No, but may I suggest that the only difference between us and Deputy McGilligan is this. His amendment would propose to abolish each office piecemeal as it was vacated, but he would not be able to disestablish the courts until all the offices had been vacated. Therefore, effectively, there is no difference between us.

Mr. McGilligan

But I have made provision for that. I say "Abolish the office as each person vacates it and, when they have all vacated their offices, disestablish the courts."

Mr. Haughey

We are doing the same except we say "Abolish all the offices together and disestablish the courts all at the same time." I do not think Deputy McGilligan achieves anything by abolishing the offices step by step. He still has to wait until they are all abolished to disestablish the courts.

Mr. McGilligan

You have at least this advantage. You do not have to wait for 34 people to throw in their hands. You abolish as each goes out.

Mr. Haughey

But you still have not disestablished the courts.

Mr. McGilligan

No. You wait for the final clean-up. The alternative is to wait until everybody throws in his hand without having any piecemeal abolition of the offices.

Mr. Haughey

The important thing is the disestablishment of the courts. Both our ways of proceeding involve waiting until every office has been abolished. There is nothing to be gained by abolishing the offices piecemeal.

Mr. McGilligan

As the Bill now stands, before you can disestablish the courts or before you can abolish any single office, you have to wait until all the people have vacated their offices?

Mr. Haughey

Yes.

Mr. McGilligan

You have to wait until they have all vacated their offices before you can abolish one post? Is that right?

Mr. Haughey

Yes.

Amendment, by leave, withdrawn.

Mr. Haughey

I move amendment No. 41:

In subsection (3), page 4, line 41, to delete "ceased to hold" and substitute "vacated".

Amendment agreed to.

Amendment No. 42 not moved.

Question—"That Section 7, as amended, stand part of the Bill,"—put and declared carried.

Section 8 agreed to.

Progress reported; Committee to sit again.