Deputy Fitzpatrick of Cavan today asked the Minister for Justice whether any direction or advice, written or verbal, has been given or conveyed by him or his Department to any branch of the Judiciary or the District Court Bench either collectively or individually as to how the Criminal Justice (Legal Aid) Act, 1962, or the Rules made thereunder should be operated or interpreted; and if any such direction or advice was given or conveyed in writing if he will lay a copy of such writing before the Dáil.
The Minister, in the course of his reply, stated that the views expressed by his predecessor in 1962 and by himself in introducing his Estimate this year were communicated in writing to the Justices of the District Court so that the Justices might adopt a uniform, practical approach to applications. He said also that the views were also communicated to the President of the Circuit Court for communication to Circuit Court Judges. Finally, he said it would be contrary to established practice to publish communications of this nature and he did not propose to do so.
I gave notice that I proposed raising this matter on the Adjournment and I do that not out of any desire to embarrass either the Minister or his officials but simply because I believe there are two principles of fundamental importance involved in the disclosures which the Minister made here today. I believe it is a matter of vital and fundamental importance to all of us and to all citizens of this country that we should ensure through our actions in the Dáil that there will be a completely free and independent judiciary who will function without any interference whatever from the Minister for Justice, the Government or any State officials.
I believe also that it is a matter of fundamental importance, particularly to Deputies and to the general public, that if communications of the sort disclosed in the Minister's reply here today are made the contents should be disclosed when they are requested by any Deputy by way of parliamentary question. It was disclosed by the Minister today in connection with what is commonly called the free legal aid scheme that certain communications were made to the District Court Bench and to the Circuit Court Bench as to how that scheme was to be operated.
When the Bill on which that scheme is based was going through this House, a number of Deputies, including myself, expressed the gravest concern that the particular machinery proposed would be Civil Service machinery, that it would be operated not by the courts, not by the legal profession but by the Civil Service functioning under the Minister for Justice. I raised that point on the Second Reading of the Bill, I quote from the Dáil Debates of 15th February, 1962, volume 193, column 240:
It seems to me that under the scheme as outlined in the Bill this is to be a Civil Service administration and I think that is wrong and I think it is dangerous.
The Minister's predecessor, who is now Minister for Agriculture, dealt with that in his reply on the Second Reading. At columns 257 and 258 of the Dáil Debates of the 15th February, 1962 he said:
As I see it, the only function the State will have in the matter will be to pay. The Civil Service will not enter into the scheme in any way whatever once the original regulations are prepared except to foot the bill. In any social service that is the State's duty but certainly it is absurd for Deputies to suggest that this is a Civil Service administered scheme. It is a scheme administered by the courts and they are the correct people to administer it.
That was the assurance the Minister for Justice at that time gave across the floor of the House. The fear expressed from these benches was that the set-up in the proposed scheme in the Bill would be one which would be operated by civil servants; that the courts would not get an opportunity to function as they should function freely and independently of any of these matters. The assurance given by the Minister then was, as it had to be, accepted by this House. The scheme was passed through this House on the basis of that assurance.
It was disclosed today that that is not the case and that the scheme has been operating without the free functioning of the judiciary in this matter. I hope the Minister will be able to dispel the fears I have because it seems to me to be a deplorable situation. When a Bill has been passed by this House, signed by the President and promulgated it becomes law. It is the Bill, as passed, which becomes law. It does not rest with the Minister or anyone else in the House to make addenda to the Bill. It does not rest with the Minister or anyone else in the House to interpret the Act or to say what way it is to be administered through the courts. The job of interpreting the Act is a job to be performed by the courts and by no one else. I, myself, have endeavoured to make that position clear to successive Ministers in the House. I discussed that on the Committee Stage when the Bill was going through the House. I quote from the Dáil Debates, volume 194, column 137 of the 20th March, 1962:
I do not think it can be said too often in this House that what we do here is open to construction and interpretation by the courts which must have regard to what is written into the Act, not to anything the Minister or anyone else may say in explanation of the measure as it passes through the House. The courts may not have any regard to any remarks the Minister may make or any explanations issued by means of a White Paper.
That is the position and that is the position which must be accepted. If we do not do our job properly when legislation is going through the House we cannot mend our hand afterwards and give directions or advice to the courts. If the Minister made his communications innocently to the District Court Bench for the purpose, as I understand from his remarks here today, of conveying to them the views and the feelings of the Oireachtas in this matter, then it was his job to convey the views and the feelings of all the members of the Oireachtas, not merely Ministerial pronouncements. There were many matters in relation to this Bill upon which Deputies expressed different views. Were all those views communicated to the District Court or the Circuit Court? I do not believe it was right to communicate any of those views to any of them but if any were to be given, then all should have been given. As matters stand, unless the Minister can give an extremely good explanation to this House he is deserving of censure for the action he has taken in this matter.
Deputy T. J. Fitzpatrick of Cavan asked this question jointly with me and is equally interested in this matter and I propose to give the remainder of my time to him.
