Dáil Éireann díospóireacht -
Tuesday, 16 Nov 1971

Vol. 256 No. 11

Courts Bill, 1971 [Seanad]: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Bruton

I notice that one of the provisions of this Bill is a restriction of the right to trial by jury in respect of the Circuit Court. The Minister in his speech referred to the third interim report of the Committee on Court Practice and Procedure. It is significant that in that very report it was stated that not only was the solicitors' profession evenly divided on the question as to whether there should be any restriction of the right to trial by jury but the Bar were overwhelmingly against any restriction of the right to trial by jury. So also were the law schools of both UCD and Trinity College, who were consulted.

It is somewhat disturbing, therefore, that the Minister should come into the House to introduce a provision which involves a restriction of what is a very fundamental right. One would have thought that if there were any serious doubt at all expressed the Minister would not have moved in this matter. Not only was there doubt expressed but the overwhelming body of authoritative opinion which was consulted on the question expressed itself against a restriction of the right to trial by jury.

This is probably a subject which does not set the public imagination alight because most members of the public are fortunate enough not to have to come in contact with the courts in the course of their lives. However, those few who have will probably realise with considerable force the value of the jury system as it operates in this country at the moment. It is a protection for the ordinary member of the public against a completely ingrown legal profession laying down its own rules and interpreting those rules often within fairly wide limits set by Parliament.

I think it is fair to say that the jury system, being probably one of the only methods whereby the ordinary member of the public, the non-lawyer, can directly participate in the legal system, serves to make the law intelligible to the ordinary member of the public. It is very important that we should preserve and be seen to be preserving the fundamental right of the ordinary member of the public, who is not a lawyer, to participate in the judicial process.

It is important that the legal system should not become a professional ritual solely performed by the legal profession. The ordinary member of the public should be allowed to participate and any restriction of this right is, to my mind, wrong. Where there is a jury trial a number of different minds are brought to bear on the determination of a question. The people who are serving on the jury may not be geniuses but there are a variety of different people there and there is less likelihood that they will be wrong than there is that one individual will be wrong, no matter how brilliant he is, because he is acting alone and they are acting as a panel of 12 men. There is less likelihood that they will make a mistake.

There are also many cases coming before the courts which require a practical knowledge of business— questions like the assessment of damages. Somebody who has been involved in business, either as an employee or as an employer, will know exactly the extent of damage caused to a person by a particular injury in regard to jeopardising, or minimising, his prospects of employment. If one is involved in this sort of work or involved in employing people, one is likely to know the effect of a particular injury much more than if one is just a man sitting on the Bench who more than likely has never done manual work in his life and more than likely also has never even been in the position of employing manual workers at any time in his life. Jurymen are much more in a position to assess the real impact of a particular injury on a man's employment prospects than are judges.

There are also many cases where the common law lays down that the criterion should be the judgment of a reasonable man. One should note that the common law does not lay down that the criterion should be the judgment of a reasonable lawyer. It is the judgment of a reasonable man, an ordinary man, not somebody who has been schooled in law and whose judgement is possibly canalised into particular lines of thought but the judgment of an ordinary reasonable man who has been open to many influences to which lawyers, due to some form of occupational myopia are not likely to be open. The implementation of that maxim is something which can only be properly carried through if there is full and frequent access to jury trial. Although it is true that the present provision for jury trial in the Circuit Court which it is now proposed to abolish, is not availed of to a very great extent that is no reason for removing that right. It is very important that that right should be there.

The other point is that while people might not have felt the necessity to avail of this right of jury trial, with its present financial limits for jurisdiction in the Circuit Court, it is proposed in the Bill that these jurisdictional limits should be widened considerably. It is likely with the increased financial jurisdiction involved in the Bill that actions of a sufficient seriousness will be dealt with by the Circuit Court. People who from now on will be involved in Circuit Court cases may feel that the seriousness of their case warrants a jury trial yet as well as widening the jurisdiction of the Circuit Court this Bill proposes to remove the basic right to jury trial from people appearing before the Circuit Court. This should not happen.

One thing which is absent in the Bill, and which should not be absent —although I recognise the financial limitations involved—is some provision for civil legal aid. In many civil actions there is not true equality between the litigants: one side may be a wealthy corporation or a wealthy individual and the other side may be a very poor person. Very often cases do not come to trial, although if they had it might well have been the case that the persons through whose fault they had not come to trial would have won. This is because the people concerned do not feel sufficiently confident about their case to be prepared to take the risk of employing counsel, although if they had employed counsel they might have won. They are not prepared to take this risk because there is no provision whereby they can get State funds to enable them to insist on their rights. There should not be a financial bias in favour of wealthy litigants in that they are in a position to take risks and employ very good counsel.

Reference is made in the Bill to maintenance orders. It has been a matter of comment for a considerable time that courts are not empowered to make reasonable maintenance orders. Up to now the courts could not order the putative father of an illegitimate child to pay more than £1 a week towards the maintenance of that child. In terms of the present cost of living the figure of £1 is unrealistic; so also is the £4 a week limit in respect of a deserted wife. While the new limits are a definite improvement the case can be made that £15 is not enough as a limit. I am not saying that in every case this figure of £15 should be reached but we must remember that what we are setting out here are limits to the court's powers to order the payment of maintenance. There may well be exceptional cases where a figure above £15 is necessary.

Minister for Justice (Mr. O'Malley)

That is provided for in the section.

Mr. Bruton

I was relying on the Minister's speech, I have not read the Bill.

Mr. O'Malley

The speech sets out that.

Mr. Bruton

I could not have read the speech properly then. I apologise to the House. What was the significance of mentioning the figure of £15?

Mr. O'Malley

That is for the District Court.

Mr. Bruton

What steps are being taken in regard to having Irish maintenance orders enforced abroad and foreign maintenance orders enforced in Ireland? I was talking to a Member of the British Parliament only two weeks ago and he said that in Britain there is provision for the making of international agreements whereby British maintenance orders would be enforced abroad and the maintenance orders of other countries with whom they had made this agreement would be enforced in Britain. That seems a very sensible provision. However, although there is provision for making such agreements by Britain they have made very few and certainly I do not think they have made one with us.

A man who deserts his wife here goes over to England. The fact that he can escape a maintenance order merely by going over to England makes a mockery of the whole thing. There is a common labour market between Britain and Ireland at present and it is very easy for a man to go to England. This trend will become even more marked when we enter the EEC because there will be a common labour market without immigration barriers throughout the ten member countries of the EEC. People will be able to skip from one country to the next if they want to avoid paying maintenance orders. They will have a choice of eight other countries in Europe as well as Britain to which they can go and thereby avoid paying maintenance simply because our maintenance orders are not enforcible in those countries. Before entering the EEC we should initiate a multilateral agreement for the mutual enforcement of maintenance orders throughout the EEC.

With the expansion of the jurisdiction of both the District and Circuit Courts there is a strong case for having extra judges in the Circuit Court. The existing judges are already overtaxed and many cases are being held up for an unduly long time because it is impossible to get a judge to deal with them. The Minister should have a very close look at this because if we are going to expand the jurisdiction still further without increasing the number of judges it is clear there will be an even greater backlog of cases.

The Minister stated that he is extending the right of audiences to solicitors to all courts in the land. He stated that this is intended to go some way towards the removal of the rigid distinction which exists in the legal profession between barristers and solicitors. We all agree that this division is a fundamental one. It is my opinion that this division between solicitors and barristers is operating in some ways as a restrictive practice and is providing a less than good service to the public. We should approach this problem in a more fundamental manner than that adopted by the Minister. The provisions in this Bill are worthwhile but these reforms should not be carried out in a piecemeal fashion. It is not desirable that this whole question should be approached by carrying out some minor reforms now and waiting until a future date to carry out further reforms. We should take a long hard look at this division in the legal profession and try to evolve a comprehensive approach to the problem rather than adopt the piecemeal method we are adopting at the moment.

I should like to re-emphasise the great value of the jury system. There is one objectionable aspect in this Bill in that it will involve restriction in the operation of the jury system. With regard to eligibility for jury service, I do not think there is provision in the Bill for an extension of eligibility. Women should be eligible to serve on juries. We are moving in the direction of women's rights in many areas and their right to serve on juries should not be excluded. It is surprising that the Bill does not contain some provision in this regard.

Mr. M. O'Leary

The Committee on Court Practice and Procedure recommended, some years ago, the extension of jurisdiction of these inferior courts and the point was made in the lengthy Seanad debate on this Bill that there has been very tardy progress on law reform in general. Points of reform were unanimously recommended many years ago, notably in the programme of law reform in 1962 and reference was made to this in the Seanad debate. While this Bill is welcome in several respects, its appearance now is evidence of the kind of hesitant approach of the Government on matters of reform of law. There are a number of such reforms which have been agreed by a number of committees on which little progress has been made.

The principal feature of this Bill— extension of jurisdiction—was recommended some years ago and most Deputies would be in favour of that change. The point was made also that the extension of jurisdiction for these inferior courts will mean a great additional burden of work devolving on the people in these courts. This is a particular problem in the Dublin area where there is a considerable delay in cases going through at Circuit Court level.

There may be some debate about the factors contributing to this delay. One factor which contributes to it is the factor of insufficient number of Circuit Court judges and this must be considered with regard to this Bill. If we are going to increase the jurisdiction to a figure of £2,000, which will mean a greater workload, we must consider seriously how we are going to tackle this increased workload. I do not know if the Minister gave some indication about this matter to the Seanad but I hope he will give us some information on this point here in reply.

The increase to £250 in regard to the District Courts will mean that these courts will be occupied with work that previously was conducted at Circuit Court level. This matter also needs urgent consideration, particularly having regard to the delays occurring at present. It is a difficult and arduous process in many instances to get a rapid hearing in the Dublin Circuit Court at present. I am not blaming the people working in these courts. The major factor contributing to that situation is the insufficient number of Circuit Court judges.

In considering this extension of jurisdiction, which most people agree is worthwhile and necessary, the only controversial matter entering into this debate is the question of the abolition of juries in these inferior courts. I do not think the debate need necessarily concentrate on the relative merits of jury versus specialist lawyer in cases of this kind. The point has been made by the Minister that at present juries are rarely used at these inferior court levels and this is true. The question may fairly be put: why it is necessary to eliminate them in this Bill? If they are rarely used why is it necessary to legislate for their removal? I do not think the Minister has proved his case for the necessity for legislating for the abolition of juries at this level. The point has been made that with the new financial jurisdiction up to £2,000 in cases of defamation, slander or libel, the juries can perform a worthwhile service and may be helpful in these cases.

The suspicion may reasonably remain that the intention is to abolish juries up to High Court level in civil actions and I think this was mentioned by Senator Ryan in the Seanad debate. I know the Minister at a later stage denied there was any such intention in his mind. Nevertheless, there remains an unhappy impression that, to some extent, in the Minister's mind, and perhaps in the minds of certain of his advisers, there is the idea that juries should be axed where they are not considered necessary. This is a dangerous tendency. I think Senator Ryan mentioned the advisability of getting rid of them up to High Court level. They have been rarely invoked in cases up to now and the necessity devolves on the Minister to explain why it is necessary to sign their obituary, as we do for these inferior courts, in this Bill.

Regarding the aspect of the Bill which gives a solicitor a right of hearing in the courts, that right is there already but is rarely utilised and it is probable that it will be used just as rarely in the future. However, it is right that it be written into the Bill. This, of course, leads to the question of the amalgamation of the professions of solicitor and barrister. I have no definite views on this matter but there has been a great deal of superficial talk from Government circles on the so-called advantages of such amalgamation. I am not convinced that such amalgamation would result in any great advantages either to litigants or to the legal profession generally. Some years ago the Minister for Justice of the day told us here that it would be a matter of not longer than a year before amalgamation took place. I wonder if there has been any fresh appraisal during that period at departmental level of the so-called advantages of amalgamation. I should like the Minister to tell us, when he is replying what his mind is on this matter. I suppose there could be certain advantages in the short term to people practising in the capital. One could foresee the growth of certain large legal firms—there may be advantages in that—but I am not convinced that amalgamation would result in any great advantages to the public in general. The least compelling part of the Minister's argument in favour of amalgamation is that in some way or other it would be necessary in the event of our becoming a member of the EEC. From what I can see this unfortunate group, the EEC, are being used for every unwelcome innovation over the past three or four years. The latest in that litany of necessary changes which must be undertaken is the proposed introduction of a value-added tax. We are not concerned during this debate with that matter but I am merely making the point that we seem to take very literally and more rigorously than any other applicant member the changes which must follow on accession to the EEC. I am not influenced by the argument that this particular amalgamation becomes an automatic necessity on entry to the EEC.

The Bill deals, also, with the question of deserted wives. The suggested increase in the allowance for deserted wives from £4 to £7.50 with an additional allowance for each dependent child of £2.50 is inadequate by any standards in today's conditions. I am aware that the Minister has power to vary this level but I do not think that the suggestion that allowances for deserted wives should be related to the incomes of their husbands would have the backing of all of us here because I do not see how this would work out fairly in practice. Perhaps the proper thing to do would be to arrive at an allowance that would bear some relationship to the cost of living and to current income levels. I cannot foresee legislation going through here that would relate simply to the previous status of deserted wives. This is not in any way denying the hardship caused to women who are deserted by their husbands and who have heavy commitments in relation to the education of children and so on. The Minister's proposals are inadequate in the circumstances of 1971. I do not know when the previous figure of £4 was fixed but I am sure that whenever it was costs in general have advanced in the interim by more than £3.50 a week.

Mr. O'Malley

I am afraid the Deputy must be reading the Bill as it was introduced in the Seanad rather than as passed by the Seanad.

Mr. M. O'Leary

All I have here is the explanatory memorandum.

Mr. O'Malley

There is no limit on the amount that may be awarded to a wife.

Mr. M. O'Leary

Will the Minister tell the House how much he would award to them?

Mr. O'Malley

I could not award anything to them. It is a matter for the courts.

Mr. M. O'Leary

Is there any upward ceiling?

Mr. O'Malley

No.

Mr. M. O'Leary

I am glad to hear that because it would have been wrong for us to have fixed a ceiling of £7.50. It is my opinion that without having to go to court, women in this position should be granted a particular sum related to incomes in general. For my own information, can the Minister say whether any upward ceiling was fixed in respect of affiliation orders for illegitimate children?

Mr. O'Malley

No.

Mr. M. O'Leary

This matter of deserted wives may not be considered again for a number of years and, consequently, it was wrong to have even considered setting a figure.

It can be said that everybody is agreed about increasing the jurisdiction of inferior courts. This will mean that more cases can be heard in the localities of origin and this is a good development both for the litigants and for the general community in the different areas. On the question of the abolition of juries, I am not convinced by the arguments put forward. In many of the cases in which it is said in this Bill they will not feature any more, they were rarely availed of anyway. I should like a definite indication of what is the Minister's own attitude on this question of amalgamation in the legislation. There has been a lot of loose talk about the matter for a number of years. In the Seanad, the Minister spoke of the necessity of inaugurating a debate on these matters. This House would welcome such a debate so that we might hear what are the socalled advantages of the amalgamation of the professions. I hope that the Minister will take the opportunity of the debate on this Bill to let us know what is his thinking on these matters at present.

Minister for Justice (Mr. O'Malley)

I should like to thank the Dáil for what I think I can say was, generally speaking, a welcome for nearly all the provisions of the Bill, if not all of them. I will endeavour to deal with the points that were raised. I may not deal with all the more detailed ones as I can deal with them on Committee Stage. As the House knows, the Bill has already been fully debated in the Seanad where quite a number of amendments were made to it. Many of the points raised here were raised and threshed out in the Seanad. As Deputy Fitzpatrick said, the Seanad debate was very useful. The Bill which left the Seanad was an improvement on the Bill that was introduced into it. The Seanad debate was conducted in the right sort of spirit. It was a constructive effort on the part of everybody to improve the Bill.

There has not been a great deal of disagreement about the Bill here. The first point I should like to deal with is the question of the general increase in jurisdictions which is the main matter involved in this Bill. In so far as there may have been any criticism of the proposed figures here it was possibly on the lines that they may not be sufficiently great. In fact, the only criticism in the Seanad was to the opposite effect, that the figures were too great. Senator Mrs. Robinson had an amendment or amendments down to reduce the figures fairly substantially. I could not accept that at all.

My view is that the figures reflect pretty accurately the majority opinion of the Committee which advised on this matter, taking into account the fact that the committee reported several years ago and that, of course, the value of money has fallen somewhat in the meantime. Therefore, it was necessary to set a figure somewhat above the average of the figures recommended by various members of the committee. The average recommendation of the committee when they reported in 1966 for the Circuit Court was £1,500. The feeling of the Government was that that was several years ago and that, if you were to take account of inflation and probable future inflationary trends, the figure would want to be somewhat above £1,500. We finally settled on a figure of £2,000. There were members of the committee who thought that perhaps £1,000 would be enough.

There were others who were strongly of the opinion that it should be as much as £5,000.

I want to draw the attention of the House to the power which exists under the Courts of Justice Acts for a litigant to sign a consent beforehand, if both parties are prepared to do that, to have any action tried in the Circuit Court irrespective of the amount involved. Unfortunately that procedure is not used as much as one would like to see it used. One would hope that, with the extra jurisdiction given, a proportion of claims for more than £2,000 will in fact be heard by consent in the Circuit Court. The increases are substantial. In the District Court they amount to 400 per cent and in the Circuit Court to 233? per cent. There have also been very substantial increases in the equity jurisdiction in the Circuit Court. This will have the effect, I suppose, of bringing 95 per cent of property within the jurisdiction of the Circuit Court, which is as I think it should be.

I hope to give early consideration to the recommendations in the fifth interim report of the committee in regard to the introduction into the District Court of similar machinery to the consent machinery in the Circuit Court. In that instance the committee were not in agreement on the particular form which that procedure should have in the District Court. Obviously some limitation will have to be placed on the consent jurisdiction in the District Court if that proposal is eventually accepted by the Government, unlike the situation in the Circuit Court where there is no limit at all.

So far as problems may arise in the Circuit Court due to its increased jurisdiction and the increased business that will be created there by the provisions of the Bill, I should like to say that, so far as one can judge—and one cannot anticipate these things with a great degree of accuracy—in approximate terms the amount of business which the Circuit Court will acquire will be equal to the amount it will lose at the other end. It will lose the £50 to £250 type of case which, of course, is very much more frequent than the £600 to £2,000 type of case which it will acquire. One must balance that by saying that the £600 to £2,000 action is a more substantial one and takes a good deal longer to hear. We do not anticipate that there will be such an abnormal increase in the work of the Circuit Court as to create severe difficulties.

That brings me to the point that in the Circuit Court in Dublin at the moment there are difficulties, as quite a number of Deputies mentioned here and quite a number of Senators mentioned in the Seanad. There are delays which I regard as longer than one can tolerate. I decided accordingly some months ago that it would be necessary to appoint a further Circuit Court judge in Dublin. I have not yet been able to approach the Government to ask them to make this appointment because I had accommodation difficulties and I felt I could not justify appointing an additional judge unless we had a suitable place in which he could sit. I am glad to be able to tell the House that I now appear to have overcome the accommodation difficulties and that this appointment can and will be made in the very near future.

Mr. M. O'Leary

Does the Minister think that the appointment of one more Circuit Court judge will be sufficient?

Mr. O'Malley

I think one more judge should clear the arrears. If a situation arose after the enactment of this Bill—and it will have a somewhat delayed effect because the extra cases will not come on for hearing for about nine months or so, after it has passed —in which the work of the Circuit Court had increased to an appreciable extent I would ask the Government to appoint another temporary Circuit Court judge. I might explain to the House that existing legislation envisages the appointment of ten permanent judges only in the Circuit Court and there are ten there at the moment. Therefore any additional judges would have to be temporary judges.

While saying this I should like to draw the attention of the House to a speech I made and, to a greater extent, to a speech made by Senator Alexis FitzGerald in the Seanad on the Second Reading of this Bill. This suggestion had been put up to me and I said to the Seanad at that time, as was the case, that I was considering it. Senator FitzGerald said he did not think I should consider the question of the appointment of extra judges. He felt, if I may paraphrase him, that the existing judges should do more work. He set out the facts and figures of the sittings of the average Circuit Court judge. Certainly, I could not take it on myself to disagree with him but, at the same time, unfortunately, I cannot enforce longer hours on the judges.

The general sitting week of a Circuit Court judge in a provincial Circuit Court is: he does not sit on Monday; he sits on Tuesday for four hours; he sits on Wednesday for four hours; he sits on Thursday for four hours; on Friday he sits usually for two hours, sometimes three hours. I am not saying that this is the sitting week of every circuit judge; it is not; but, it is a fair average of the sitting week of most of the provincial judges.

There is one provincial judge who does sit on Mondays, I understand, and the Dublin judges sit on five days a week. At the same time, I do not think anybody could suggest that that working week is excessive and I do not think that anybody could suggest that judges generally could not undertake longer sittings. It is really, I am afraid, a matter for themselves rather than a matter for me. I cannot dictate the sittings, nor do I wish to. One must allow a certain flexibility because, of course, there are many occasions when a judge may have to sit late into the night. There are possibly, to compensate for that, occasions when a list collapses and a judge may sit only five or ten minutes in a day. That, of course is not his fault because the collapse of lists is not foreseeable. But, one could say that judges in general could, perhaps, sit longer hours and I think greater productivity, if I may express it in those terms, could be achieved in this direction, not just from the Circuit Court but, indeed, from all our courts.

Deputy Fitzpatrick raised the point of who should keep a record of the decisions made by the District Court in view of the fact that an order would, of course, quite clearly be required only in a small minority of cases. It would be a matter for the rules committee to prescribe what type of record should be kept and who should keep it but I do not anticipate any difficulty whatever about this. A very informal note in a book, either by the clerk or by the justice, will be sufficient. Deputies will be aware that in the Circuit Court there are no rules laying down what type of record should be kept and no difficulty is experienced by the county registrar afterwards in having an order made up. In particular, of course, in civil cases the orders have to be made up by the solicitors and approved by the county registrar and no problem has been found in that respect and I would not anticipate any problem in that respect in the District Court.

I feel that it is necessary to retain the liability of the district justice to sign his orders. I do not think it is quite a correct analogy to draw with the Circuit Court where you have a somewhat different situation in that you have a legally qualified man as registrar of that court, a man with a minimum of either eight or ten years practical experience since qualification.

Deputy Fitzpatrick went on to make what I think is quite a valid point with regard to the registration of District Court decrees as judgment mortgages. The Committee on Court Practice and Procedure have, in fact, made a recommendation to the same effect in their fifth interim report, namely, that the machinery of sections 3 and 4 of the Circuit Court (Registration of Judgments) Act, 1937 should be available in the District Court, particularly in the light of the extended jurisdiction, because while there were doubts as to whether in many cases it was worth registering as a judgment mortgage a decree for £50, it would be worth registering a decree for £200 or £250. This recommendation is under consideration at present together with the committee's further recommendation made in their tenth interim report dealing with the subject of interest rate on judgments, which was also raised by Deputy Fitzpatrick. When decisions have been reached, the necessary implementing provisions will be included in a suitable Bill. I might add that the committee recommended in their tenth interim report that the interest rate should be 1 per cent above the prevailing Central Bank rediscount rate. This would, of course be a very great improvement on the existing rate of interest.

Mr. T.J. Fitzpatrick

(Cavan): What is that at the moment?

Mr. O'Malley

Four per cent.

Mr. T.J. Fitzpatrick

(Cavan): I know it is four but what is the rediscounting rate?

Mr. O'Malley

In or about eight. It would be 1 per cent above that. Of course, Deputy Fitzpatrick again, I think it was, made the point that interest should run from an earlier date than it does at the moment and we have had situations that have been brought to my notice where insurance companies have appealed against large awards although they felt they had little or no hope of success but they did this because the price of the money was such that it paid them to hold on to their money until the latest possible date. They were going to have to pay the plaintiff only 4 per cent, whereas they might be able to get 9 per cent or possibly 10 per cent for their money elsewhere. This is something that I feel is very unfair to a plaintiff and it is something that I would wish to remedy.

Mr. T.J. Fitzpatrick

(Cavan): Another point that has struck me since is that there is very often several thousands of pounds lodged in court with the defence and it can be there for a considerable time and nobody gets any interest on it. I wonder what happens that.

Mr. O'Malley

I do not think it is correct to say that nobody gets any interest. So far as I understand the position, it lies in current account in the Bank of Ireland.

Mr. T.J. Fitzpatrick

(Cavan): Does somebody get a set-off?

Mr. O'Malley

Well, I am afraid the litigant does not get any benefit from it and the State does not get any benefit from it but undoubtedly it is not doing the bank any harm to have it there. What I should like to see is a situation where these moneys might be put on deposit receipt.

Mr. T.J. Fitzpatrick

(Cavan): Exactly.

Mr. O'Malley

This is done every day of the week very successfully by solicitors in closing sales where there may be a delay for a month or so. The solicitors put the balance of the purchase money on deposit receipt in their joint names and the parties are then entitled to whatever interest would have accrued on it in that short period. This applies, of course, even more to a lodgment which may lie in court for as long as 12 months or even 18 months before it is eventually paid out and one would like to see the plaintiff or, indeed, whichever party is successful, having the benefit of interest on that money in the meantime.

I think I am probably right in saying that the only aspect of this Bill, or section of this Bill, which did not seem to find favour with the Dáil and also did not find favour with some Members in the Seanad, is the proposal in section 6 to abolish the right of a civil jury in the Circuit Court. We threshed this matter out at great length in the Seanad and I assume we will be threshing it out at great length on the section on Committee Stage. If I were to deal with it in any detail now I would be repeating what I said in the Seanad, which is on record, and would be repeating what, more or less, I will be saying on Committee Stage and I do not, therefore, propose to go into it in any detail now. But Deputy Bruton and, I think, Deputy O'Leary, referred to the fact that there were various law schools and other interested parties who had recommended against any change at all in relation to juries and I think Deputy Bruton gave us a list of those who were not in favour of any sort of change at all. I would draw his attention and the attention of the House to the fact that a committee which was set up to examine this particular problem, among others, recommended by a large majority what we are doing here and set out the reasons why they thought it was foolish to allow the existing situation to continue. There were a number of dissenters from that recommendation but the significant thing is that at least one if not two, of those who dissented did not dissent on the point that they disagreed with the main recommendation but dissented on the grounds that the main recommendation, which we are now implementing, did not go far enough and that all civil juries should, in fact, be abolished. I made my position quite clear in relation to that in the Seanad, that I did not propose now, or at any time certainly in the foreseeable future, the abolition of civil juries in the High Court. I think they perform a valuable function there. I do realise that to some extent they slow down the course of justice a little, but, on balance, it is in the public interest that they should be there. However, I cannot accept that it is in the public interest that they should continue to exist in the Circuit Court when, so far as one can ascertain, they have been utilised throughout the country at the rate of about one a year. A number of ex-practitioners, including myself, in the Seanad tried to think of the number of such cases we come across. All I could think of was one in seven years practice.

Mr. T.J. Fitzpatrick

(Cavan): The reason is obvious, because there is an appeal——

Mr. O'Malley

That is one of the main points, but I could not accept that there is any logic in what I assume Deputy Fitzpatrick will be suggesting on Committee Stage, and already has been suggested by Senator Kelly, that we should have a different form of appeal from a jury decision.

Mr. T.J. Fitzpatrick

(Cavan): We could have the same sort of appeal as we have——

Mr. O'Malley

That would be a very different type of appeal from what other Circuit Court litigants would be entitled to, and I would find it very hard to justify that. However, I shall leave a more detailed discussion of that matter over until the Committee Stage when I assume it will be raised again.

There has been a fair amount of talk about legal aid in civil cases from most Deputies who have spoken here. I appreciate the problems that are involved and I sympathise with what causes them to urge this. It simply boils down to a question of money. The cost is very substantial, and, as I said before, at the moment, with so many things competing for benefits from the Exchequer, this is one to which we simply cannot give priority at the moment.

At the same time, I do not want anyone to get the impression that there is not, in effect, a civil legal aid system here. Due to the generosity of solicitors and barristers, which is a tradition in the Irish legal world for many years past, I think it is fair to say that no plaintiff with a reasonable case has ever been turned down or has ever failed to get a full hearing of his case in the High Court or, if it needed it in the Supreme Court; and he has never failed to get the best brains at the Bar and the best of solicitors to argue that case for him, too. I know this is not satisfactory and that it has overtones of charity about it, if you like, which one would prefer not to see; one would prefer to see a man have this as of right. At the same time, the fact of the matter is that, at the moment, we cannot afford, it. There are many other social welfare schemes—because this is basically a type of social welfare scheme—that do appear to be more pressing and for which there appears to be a far greater need.

Mr. T.J. Fitzpatrick

(Cavan): What the Minister says certainly applies at the moment to claims for damages, but I wonder would it apply in a case for a plaintiff wanting to enforce a right, say, a constitutional right, against a man of straw.

Mr. O'Malley

Of course, one of the most powerful men in the law, as Deputy Fitzpatrick knows, is the man of of straw, because if you are a man of any substance at all you cannot afford to fight a man of straw in case he beats you.

Mr. T.J. Fitzpatrick

(Cavan): He is a powerful man if he is fighting a man of substance, but if you have a man of straw who wants to fight a man of straw——

Mr. O'Malley

One would assume that neither man of straw would get very far in those circumstances. Reference has been made to courthouse accommodation. This does not strictly arise on this Bill, but I just want to make my position clear, that I am not the responsible authority, that the responsible authority is the local authority. There is some provision in the Act of 1935 that if the local authority fail to fulfil their obligations I can be mandamused to get the Board of Works to do the job, and, unfortunately, it seems that I then have to pass on the bill in full to the local authority for payment. However, I do not intend to go into that matter other than to say that I am not the responsible authority, but I do wish that local authorities would fulfil their obligations. I say this particularly because several local authorities, to my knowledge, not least the Limerick Corporation and the Limerick County Council have fulfilled their obligations in an excellent way. There is a splendid courthouse in Limerick that cost the local authorities and the rate payers a good deal of money when it was built ten years ago or so. It seems to me to be very unfair that some local authorities have faced up to their responsibilities while others refuse to do it. There is an inter-Departmental committee sitting on this matter at the moment and I expect to have its report within a few months. We may be able to make further progress when I hear from them.

Deputy Fitzpatrick suggested a commencement date of 1st August, 1972, but in my opinion this would unnecessarily delay the coming into effect of the new jurisdictions. It is desirable that the new jurisdictions would come into operation at the earliest possible date. The Bill now provides that the commencement date would be 1st March, 1972. I put the date back in the Seanad from 1st January to 1st March, and this should allow sufficient time for the various rules committees to make new rules in relation to the higher jurisdictions in so far as matters such as cost are concerned. The Bill has, of course, been published since June of this year, and I sent word to the committees of the necessity, even at that time, of getting down to do the work of drawing up the rules. I am satisfied that 1st March will give them ample time to do it.

Deputy Bruton referred to the question of the reciprocal enforcement of foreign maintenance and affiliation orders. So far as we are concerned in this country that problem is almost exclusively one with Britain, because our deserting husbands almost invariably go to Britain. Early last year discussions took place between representatives of my Department and the Lord Chancellor's Office in London, who are the responsible authority there. A very high degree of agreement in principle was reached, and both sides set about drafting the necessary legislation. That drafting has reached an advanced stage, but the matter has now been complicated somewhat, unfortunately, by the EEC situation. We find when we examine the existing EEC conventions that the Convention on Jurisdiction and the Enforcement of Civil and Commercial Judgments, which provides in detail for the reciprocal enforcement of civil judgments as between member States of the EEC, applies to maintenance and affiliation orders. It has so far been ratified by Belgium, France and Italy and will come into force following its ratification by the remaining member States. It is at present the subject of adaptation negotiations in Brussels with the applicant countries. This is one of the few existing legal conventions that apparently will bind us on our accession and it precludes member countries entering into or enforcing bilateral agreements either with one another or with outsiders. For that reason both the British and ourselves have now come to realise that, as between the two of us at any rate, both being applicant countries and hoping to enter on 1st January, 1973, there may not be any great future in a bilateral agreement by legislation here and in Westminster

We are looking into this aspect of the matter to see whether it would be worthwhile now to finish off the Bills and introduce them, a great deal of work having been done on them. It may really prove to be a bit of an academic exercise because the Bills, or Acts as they would be, would have to be repealed or would become repealed automatically by this convention on the enforcement of civil and commercial judgments. I might say that the provisions of the convention mentioned are very thorough in so far as enforcement is concerned and that we would not have any difficulty after our accession in enforcing maintenance or affiliation orders in Britain or in any other member country of the EEC.

I want to say something about the proposed fusion of the legal profession which has been raised by a number of Deputies. Deputy Bruton claimed that the approach to this problem was a piecemeal one and he felt that the problem would continue to be approached in a piecemeal way. The Deputy wanted an overall plan towards fusion adopted and worked on. Another speaker, also a student at the Inns, Deputy M. O'Leary, did not seem to be in favour of it at all. This is why we have to work in this manner. It is extraordinary how many of what we would regard as obvious, necessary reforms of the law are strongly resisted on the grounds that the existing position has worked well for 200 years and that, therefore, there is no need to change it. I find that sort of thinking on matters difficult to accept, but even though I am not in agreement with it it poses a very practical problem. Strangely enough, practically every attempt to modernise the law is resisted. One would have thought that the proposal in this Bill to give a right of audience in all courts in the country to solicitors was an obvious change and was clearly in the public interest and that scarcely anyone would object to it. In fact, this proposal brought strenuous and strongly expressed objections from the Bar Council who regarded it as a retrograde step. I do not share this opinion.

Mr. M. O'Leary

Would the Minister agree that the case has yet to be made for amalgamation?

Mr. O'Malley

I am not talking about amalgamation. I am simply talking about the proposal in this Bill to give solicitors a right of audience in the superior courts. So far as the whole general question of amalgamation or fusion is concerned, I have expressed myself fairly clearly on this subject more than once. I do not want to impose fusion or amalgamation. Since it is against the will of so many members of the Bar it would be practically impossible to achieve it in this way. I should like to see gradual fusion. I should like that to begin in a common educational system. I see in that a key to the whole thing. If a common educational system is established, inevitably the two branches of the profession must gradually tend to fuse with one another over the years. This will happen in ten or 15 years time as a result of the establishment of a common educational system. At the moment the various systems of education pertaining to law are unsatisfactory, to say the least of them. The overall total number of students of law in the State is about 600-650. There seem to be about six different institutions teaching law with the result that no one of them is of the calibre that it should be or has the resources it should have. It would not create too large a school to bring all the 600 students together. Many of the medical schools in the country are bigger than that. I would envisage that legal education would not be simply professional training. I hope to see the day when everybody undertaking legal professional education would, before he became an apprentice or a bar assistant, already have a primary degree.

Mr. M. O'Leary

Would the Minister see his way to providing subventions so that the educational facilities could be improved?

Mr. O'Malley

I would put it the other way. If the educational facilities were improved and if those concerned with them gave an indication of their willingness to rationalise the present indefensible position I would be happy to come forward with a subvention, but I will not subvent the existing position because if I were to do so I would only allow it to continue longer.

Mr. M. O'Leary

Is this not a wrong approach, if one is looking for co-operation?

Mr. O'Malley

That is the point. I should like them to co-operate, and to give them their due the vast majority of law teachers both in universities and elsewhere agree in broad outline with what I have suggested. Unfortunately, we are in the position that it is not sufficient to have 90 per cent agreement. We have to have everyone agreeing. If all agree we can do wonders.

I have covered all the points raised. If there are any points I have over-looked I can deal with them on Committee Stage.

Mr. T.J. Fitzpatrick

(Cavan): What about appointing solicitors as Circuit Court judges?

Mr. O'Malley

I will deal with that on Committee Stage.

Question put and agreed to.

Committee Stage Ordered for Tuesday, 30th November, 1971.