The motion is "that Sub-section (1) stand part of the Bill."
SEANAD IN COMMITTEE. - DISTRICT JUSTICES (TEMPORARY PROVISIONS) BILL.
SECTION 1.
(1) It shall be lawful for the Governor-General of the Irish Free State on the advice of the Executive Council from time to time to appoint fit and proper persons being Barristers-at-Law in Saorstát Eireann or Solicitors of the Supreme Court in Saorstát Eireann to be Magistrates with the title of "District Justices" and to perform the duties and have the powers prescribed by this Act.
(2) Every person appointed to be a District Justice may be dismissed or removed at the pleasure of the Governor-General of the Irish Free State on the advice of the Executive Council.
(3) Every person so appointed to be a District Justice shall while he holds that office be paid out of moneys provided by the Oireachtas such salary and allowances as the Minister with the concurrence of the Minister for Finance shall appoint.
(4) No person shall while holding the office of District Justice be capable of holding any other office or position of emolument or of being elected to or of being a member of either House of the Oireachtas.
(5) Every person so appointed to be a District Justice shall before entering on his office subscribe and make a solemn declaration in the form contained in the First Schedule to this Act.
AN CATHAOIRLEACH
I beg to move, in Section 1, Sub-section (1) to omit the words "on the advice of the Executive Council." I am rather diffident in proposing this, as this is only a temporary measure. I believe, unless there is some strong reason for it, which there may be in a temporary measure, or in a permanent measure appointing Justices in the way that this Bill proposes to do, that the Executive Council as a body render themselves liable for the responsibility of the appointments, and that if at any time the Houses should challenge one of these appointments, and if a motion should be carried against the appointments, it would be a vote of censure upon the Executive Council, that is, upon the Government. I believe that the practice is that the Governor-General must act on the advice of a Minister or of the Executive Council, so that I think the words "on the advice of the Executive Council" are not really needed. It is quite sufficient to say that it is lawful for the Governor-General of the Free State to appoint fit and proper persons. He can only make the appointments on the advice of his Executive Council or of a Minister of the Executive Council. If such a state of affairs arose as I am suggesting, and that a vote of the Houses should go against the appointment, if a Justice had done something which the Houses disapproved of, and if a motion to reduce his salary was carried, it would be a real vote of censure on the Executive Council. If the words are omitted there is no difference in the responsibility of the Governor-General to act, but when the responsibility came to be argued it would lie on the Minister alone who recommended the appointment, and not on the whole Executive Council.
It seems probably quite absurd to raise such a question on a Bill that is only to last for 12 months, and the probability may be that the Executive Council feel perfectly safe in taking the responsibility during the year, as none of these appointments are in the least likely to be challenged in the way I suggest during that time. I am really putting forward the amendment more for the future, because it does seem a bad practice to quote collectively the whole Executive Council as being required to give their advice when, as a matter of fact, they have to give it in all cases, and it is to be implied in the action which the Governor-General takes. I have no doubt that the Minister in charge will tell us why it has been done, but I propose to omit these words largely with the object of extracting that information.
AN CATHAOIRLEACH
Before the Minister replies I think it would also be a great advantage to the Seanad if he would kindly tell us whether it is the distinct intention of the Government in bringing in this Bill that it should be a purely temporary measure, because looking at some of its provisions they would seem to contemplate permanence over a substantial period, yet, at the end the last clause says: "This Act shall continue in force for one calendar year after the passing thereof, and shall then expire." The reason I am anxious that the Seanad should get a distinct assurance on that point is that a good deal of discussion, which otherwise would take place, might become unnecessary if the Seanad was satisfied that this Bill was intended to last for a year, and a year only, more particularly in view of the fact that the Judiciary Committee has been very busily occupied in considering this very question, and we propose to make an elaborate report upon it, that is to say, as to the duties, constitution, etc., of these District Justices. Of course the report will only make recommendations, but if this Bill is intended to be anything in the nature of a permanency our recommendations would be too late.
I beg to second the amendment.
The Bill at present before the Seanad is a temporary measure. The Judiciary Committee will report to the Executive Council, and legislation will follow on that report, reviewing and overhauling the entire system of administration of justice in the country. This is a temporary Bill to meet the necessities of the situation existing at present. As to this amendment by Senator Jameson, neither House could move to reduce the salary of an individual District Justice. The salaries of District Justices come before them en bloc, and it would not, I think, be entertained that a motion could be put down for the reduction of a particular District Justice's salary. That is not the way in which the misconduct of a District Justice would be dealt with. It would be dealt with in a straightforward frontal attack on the Minister responsible for the activities of the District Justices. It is rather in that way that a District Justice's conduct in his office will be challenged. The constitutional position of the Governor-General is not as well known to everyone as it is to Senator Jameson, and, I am sure, to all the members of the Seanad. The fact that it is set down that these people are appointed by him on the advice of the Executive Council is simply to make it clear to the meanest intellect in the country that these are not patronage appointments made by the Governor-General of his own will, but that they are appointments made by a Minister who is responsible to the people through the Dáil. And in that sense these Justices go out amongst the people with a popular mandate. That it should be the Executive Council should be there rather than the Minister for Home Affairs is, I think, obvious. The Governor-General does not act, that particular piece of machinery does not move, at the instance of an individual Minister, but moves only at the instance of the Executive Council as a whole. As I am the Minister responsible for this Bill I would not approve of the amendment, although there is no very vital matter at stake, and I think it is well to have set out in that section that these appointments are made at the instance of a responsible Minister and submitted to the Executive Council, approved by them, and put up by them to the Governor-General.
I am glad Senator Jameson moved this amendment, if only for the purpose of getting the statement that was so clearly made as to the constitutional position of the Governor-General in regard to the making of these appointments. At the same time, I hope he will not press the amendment. I think it would be a mistake to have it go out without a proper understanding, without the explanation that has been made fairly clear to us by Senator Jameson, that we were removing words that made it perfectly clear the way the Governor-General could act and on whose behalf he acts in making appointments. For that reason I hope the amendment will not be pressed on this occasion. I gather that the object Senator Jameson has in mind will not be lost sight of in the future, as I think it is one of very considerable importance. I gather that this Bill, being only for one year, the appointments have virtually already mostly been made by the Executive Council, and that there is no vital principle involved in letting it pass through. At the same time, I take it that what Senator Jameson desires is to obviate any semblance of party political appointments in future appointments of District Justices. If that is what he is aiming at I think his aim is one we could all unite on. I hope that will be taken into consideration by the Committee considering future judicial appointments, and that the moving of the amendment will bring this matter to a head, so that it will be carefully considered and suitable machinery found by which the appointment of District Justices will be made on the grounds of competency and suitability, without any reference to politics. I think what Senator Jameson is aiming at will be achieved without pressing the amendment.
I am very glad that Senator Jameson brought forward the amendment, if it was for no other reason than to bring out the statement made by the Deputy Chairman. Under the old regime magistrates or District Justices were appointed because of political services rendered, and not because they had the necessary qualifications for the position. We know that justice was not meted out in every case, but was meted out according to the political spectacles worn by the presiding Justice. It is common knowledge that in this City of Dublin a couple of years ago a raid was made on a house for a young man. He could not be found, but his younger brother was in the house and was arrested, because the brother could not be found, and was brought before the Divisional Magistrate in Dublin. There was no evidence against him only that he had a fountain pen and pencil in his pocket. The magistrate could not at first swallow at a gulp the request to sentence this young man for committing no crime, and he had to think over the matter overnight. It is known to most people who take an interest in these matters that the magistrate receives his orders overnight, and this young man was sentenced to six months' imprisonment next morning. That is what comes from appointing magistrates for political services rendered. I am not suggesting that the present Executive Council would be guilty of appointing such men, but I think we should always provide against the possible consequences of people being appointed to responsible positions like this because of political services rendered. I think the Judiciary Committee ought to be able to devise a scheme whereby competitive examinations would be held and men and women would be appointed to these responsible positions because of their qualifications and fitness alone.
On the whole, I think it is better to leave the appointment of those Justices to the Ministry. They are responsible appointments. The Justices discharge responsible duties, and the full responsibility for their appointment ought to remain with those who make them. One difficulty may arise, judging from the remarks made by the Minister for Home Affairs. It is possible that it may be necessary to defeat a Government in order to remove a magistrate. It might be difficult to defeat a Government, and therefore the magistrate would be practically irremovable. However, I am prepared to agree it is better to have those appointments made on the authority of the Government of the day. I am particularly glad to see that these appointments are made practically permanent under this Bill. It does not follow that the appointments will be permanent, but I take it that the purport of the legislation that the Government favour is that these appointments should be permanent ones. Of course, that makes a good deal for the better administration of justice. A judge should be permanent and independent, and should not be liable to be influenced by any consideration as regards security of tenure, or a consideration of a political nature. The clause is good as it stands, and perhaps Senator Jameson, having elicted a statement from the Minister, will not press his amendment.
In the event of Senator Jameson not withdrawing his amendment allow me to point out that it is the intention of some of us to vote against it. Even the Senator himself admits that the amendment is rather absurd. We agree it is absurd. In our opinion it is an attempt to place an amount of patronage where it ought not to be. We are in favour of the clause as it is, and we think the amendment should not be pressed.
I quite agree with the last speaker. It has been made perfectly clear by the Minister that the words are very useful, and if the amendment has served no other purpose than drawing such a statement as we have heard from the Minister it has done good.
Some of the speakers we have heard latterly totally misunderstand the object of the amendment and everything connected with it. I think the Minister thoroughly understands that, so I do not propose to deal with the speeches. The words "advice of the Executive Council" being inserted there are really put in, as the Minister has told us, temporarily to explain what this is. If it was a permanent Bill we were discussing I really think it would be worth while pressing the amendment. I believe the Ministers would take a different view of the matter if we were passing anything except a temporary Bill. I thoroughly agree with the Minister, and with your leave I will withdraw the amendment.
Amendment by leave withdrawn.
I move: "After the word ‘Eireann,' in line 20, to insert the words ‘of at least two years' standing.' " It defines the standing of barristers-at-law. The words "Solicitors of the Supreme Court" means that you are getting a man who has had at least five years' study of his profession. A barrister has, I am told, only three years when he is called, and when appointed he might be two years junior in the practice of his profession to what a solicitor might be. In appointing District Justices we would be more satisfied to have men of some experience. It would be well if we knew that they had at least two years' practice at the Bar. That is putting, quite shortly, the whole object of the amendment. It is to make certain that no barrister is appointed who has just been called, and that we will have men who have had some practice in the profession.
Mr. O'HIGGINS
If the Seanad were inclined to be enthusiastic about this amendment I would not persist in any opposition, but I would like to suggest just a few reasons why they might hesitate to adopt it. If those appointments are, in fact, made at the discretion of a Minister appointed by the President, and approved by the Dáil, the Minister is assumed to have sufficient discretion to enable him to decide who is, and who is not, a proper person for those positions. The person who he thinks is to be appointed has to run the gauntlet of the Executive Council. Appointments of this kind are very carefully considered. The Senator's object is obvious. He does not wish inexperienced men appointed to positions. They would be going out among people with the responsibility of administering the law, and the law should not be brought into contempt owing to the indiscretion of such young men. There is this side of it. Very frequently in this country, at any rate, you would have men who would be for over 10, 15, or 20 years, managing clerks of a solicitor's office. Clerks of that kind get special facilities to graduate and become members of the solicitors' profession. You might have men who had all the responsibilities of management in a solicitor's office for 10 or 12 years passing their final solicitor's examination, but who if this amendment were adopted would be ineligible for appointment as District Justices, though they might be extremely capable, level-headed men, and have had 15 or 20 years' close experience.
I beg to point out that my amendment only applies to Barristers-at-Law of Saorstát Eireann. It does not bring in Solicitors at all.
Mr. O'HIGGINS
Arguments against accepting it in the case of Barristers are not so strong except that it might happen that a man who was advanced in years might go for the Bar. A man who was a reporter on a paper handling semi-legal work for a great many years would make up his mind in middle age to try his chance at the Bar. Such a man would be ruled out under this amendment. Whether the Seanad feel that this is not a matter which should be left to the discretion of the person who happens for the time being to be Minister for Home Affairs is for themselves to decide. If they adopt this amendment with enthusiasm I will not press any opposition to it.
I beg to second the amendment.
I support the amendment, not because we have not a full feeling of confidence in the Minister for Home Affairs, but rather to inspire people with a feeling of confidence that young inexperienced Barristers would not be appointed over them. I think it is more to ensure a feeling of confidence in the courts that the amendment is moved, and accordingly I support it. We know, unfortunately, a huge crop of young men are thrown on the market without any practice of law or experience whatsoever. I think the public generally would feel more confidence in the Courts if they knew that Barristers appointed would have a certain amount of experience.
AN CATHAOIRLEACH
The Judiciary Committee have already come to the conclusion to recommend that the period should be six years.
I was going to state that I would vote against the amendment because of the fact that two years only are stated. I think it would be more preferable to leave out the time altogether than to suggest that a Barrister with only two years' experience should be appointed as one of those District Justices when the profession is crowded with men of higher ability and greater service than that. I think it would be far better to leave out the time altogether unless five or six years is inserted.
AN CATHAOIRLEACH
I was not suggesting that to influence the Seanad in any way. We are legislating for permanent appointments. This is only for a year. I thought it best that the Seanad should know all about the matter.
Amendment put and agreed to.
I move an amendment to Section 1, Sub-section 2, "to delete the words "at the pleasure of," and to substitute therefor the words "for reasons stated by." My object in moving this amendment has really been argued a great deal by Senators who spoke to the last amendment. Several Senators speaking to the last clause stated that it was very necessary that these Judges shall be independent. We all remember in past times the slur that was implied on Removable Justices. They used to be appointed by the English Government and sent round the country with orders to do certain things, and to punish people for certain things, and if they did not do so—sometimes they were independent men—they were subject to removal by the Government, and they required a good deal of pressure. I knew a man myself who did not like carrying out these orders, but people were forced by the threat of dismissal to do so. I do not say for a moment that the present Government is likely to do any such thing. I am perfectly sure they would not, but when we are passing a Bill it ought to be laid down that it should not be in the power of any Ministry—it may not be this Ministry, but a totally different Ministry in the future—to adopt the principle that was established in old times of dismissing Judges because they displeased them. Therefore, I suggest that instead of putting down "at the pleasure of the Governor-General" to substitute "for reasons stated"; that means that the Minister who represents the Governor-General shall give some reasons why he is dismissing a man Again, I need not say that I am making no slur at all on the present or any future Ministry, but it is a discretion that ought not be allowed. It is of the greatest importance that Judges ought to be independent of the Ministry, and that they should not fear the displeasure of any man. They should be able to give their sentences without regard to what any Minister might think of them. Remember that crimes are sometimes political, sometimes so-called political crimes, and a Ministry may be in power at the time who would have an object to gain by insisting on certain punishments being made. For that reason I propose my amendment.
I beg to second the amendment.
AN CATHAOIRLEACH
I wish to remind the Seanad that when we are in Committee it is not necessary that an amendment should be seconded.
Mr. O'HIGGINS
If Senator Colonel Moore's amendment were accepted the section would then read "every person appointed to be a District Justice may be dismissed or removed for reasons stated by the Governor-General of the Free State on the advice of the Executive Council." Now, to whom should the Governor-General state the reasons, and is it right that the Governor-General should state reasons for any action that he takes solely on the advice of the Executive Council? Against the general principle that there should be some statement by the responsible Minister when a District Justice is being removed from his office there is really very little to be said. It would probably, no doubt, at all times be easy to give such a reason, and to give the exact reason, but whether it is advisable to set that down in a Bill as a hard and fast rule is another question. Men are sent out to administer the law, and it is reasonable to expect from them that going out in that capacity they will maintain a standard of personal conduct fitting men who are sent out to administer the law. One does not expect them to be plaster saints in their areas, or anything like that. Still one does expect a high moral standard, a high standard of decency and respectability. A person who would fail either flagrantly or frequently to maintain such a standard would be a proper case for dismissal or removal, and yet it might be a very unfair thing to that man to state openly in the Parliament of the country the reasons for his dismissal. It would certainly give him very little chance in after life, or in seeking other positions. Senator Colonel Moore spoke of Removables, and the odium that attached to them, and to the position generally in the past. I should hope that we realise that the Removables of the past could not by any stretch of the imagination be said to be responsible to or removable by people who were responsible to the Irish nation and the Irish people. Just therein lies all the difference that we have now, although some people have difficulty in realising it, a responsible Go vernment in Ireland, and the people are in the saddle, and any Governmental functions exercised in this country in the future will be exercised by the will and with the authority of the people. A man who is removable by the Executive Council, because that is what it comes to, by the Governor-General acting on the advice of the Executive Council, with that Executive Council responsible to the people's representatives sitting in Parliament, is in a very different position from the Removable of the past, who simply stayed or went at the wish of people in offices in Dublin Castle. That is the change that has come, and it is a change which people are slow to realise, just as a man coming out from a dark tunnel is blinded by excessive light, but it is a change that makes all the difference, and it is not a fair or just comparison to speak of the District Judges of to-day as comparable to the Removable Justices of the past.
In discussing Senator Moore's amendment we were again up against the question of a temporary Bill, but I think the Senator is probably perfectly right, if this was a permanent Bill, in asking that Justices should not be made dependent for the tenure of their positions on the Ministers of the day, but I believe that that will certainly be one of the matters that the Judiciary Committee will inquire into. In looking through this Bill one saw this clause, and saw that it meant that a certain branch of the Judiciary depended upon what—great though the trust we have in them—is still a political Government. In a permanent measure that would probably not be wise. There is no question that an authority with power of dismissal must be over these Justices during the continuance of this Bill, and I cannot possibly see how any better authority could be placed over them than the Governor-General, acting on the advice of the Executive Council. I believe in this that the Government have acted perfectly correctly; they must have some authority over the District Justices, and I cannot think of any better authority that could be put in this temporary measure.
Amendment put and negatived.
Question put: "That Sub-section 3, as amended, stand part of the Bill."
Agreed.
Sub-section 4:—"No person shall while holding the office of District Justice, be capable of holding any other office or position of emolument or being elected to or being a member of either House of the Oireachtas."
I move as an amendment to add at the end of the Sub-section the words "or of practising in his profession of Barrister or Solicitor." The wording of the sub-section does not prevent him from carrying on his profession either as a Solicitor or a Barrister, and it seems to me that the clause really meant to give him no duties except those of his District Justiceship. I propose that the words be added to make it quite clear that he has only one thing to do, to give his whole time to the District Justiceship.
Mr. O'HIGGINS
The Senator's point is very sound. I raised this matter myself with the Attorney-General as to the advisability or necessity for confining the District Justices strictly to the duties of their offices, as, of course, in fact and practice they are restricted. The only reason for not putting in such an explicit restriction as that embodied in the Senator's amendment is a reason which An Cathaoirleach will probably appreciate better than most of us. It is simply so that those men who, after all, have no security of tenure, and who are acting purely in a temporary capacity at the moment, would not lose seniority in the profession. It applies, I think, solely to those of them who are barristers-at-law rather than to solicitors, but in practice no person acting as a District Justice would be allowed to carry on other work, and, of course, all of them have from 20 to 23 or 24 days actual work per month, and are not likely to attempt other work.
In view of what the Minister has said as to the object of leaving out the words I am sure he is quite right. As a temporary measure none of us would put in any words that would damage a barrister in his profession, so that again it is the temporary nature of the measure we are dealing with, and again the Government, in my opinion, are quite right. I withdraw the amendment.
AN CATHAOIRLEACH
I do not know if the Government have considered whether it would not be more advisable to accept this amendment, but to add to it the words, "providing the period of service of any barrister so acting as a Justice under this Act shall be counted as practice." You will see that it might be suggested afterwards that during the tenure by any particular Justice of this office he ceased to be a practising barrister, and that might militate against him in the future, whereas, if you accept Senator Jameson's amendment, but add to it some words to state that his service during his period as a Justice shall count in his service as a practising barrister, then you accomplish the purpose of Senator Jameson and of the Government.
Mr. O'HIGGINS
I would undertake to consider that, and to discuss it with the Attorney-General. With reference to these amendments generally, I think it right to say that I had no opportunity of considering them in any detailed way. I only received them about ten minutes before the Seanad sat to-day.
AN CATHAOIRLEACH
Then, Senator Jameson, are you satisfied? I am sure you do not press the amendment?
Oh, certainly not, on the undertaking given by the Minister.
AN CATHAOIRLEACH
You see the point I had in my mind. I think it is one worth while for the Government to attend to.
Amendment, by leave, withdrawn.
Question put: "That Sub-section 4 stand part of the Bill."
Agreed.
Question put: "That Section 1, as amended, stand part of the Bill."
Agreed.
Sections 2 and 3 were agreed to, and added to the Bill.
SECTION 4.
(1) The Minister may from time to time, by warrant under his hand, appoint and remove such and so many fit and proper persons as he shall think expedient in each county to be called "Parish Commissioners," and to perform and exercise within such county the duties and powers prescribed by this Act.
(2) A Parish Commissioner shall have all the powers and authorities which immediately before the passing of this Act were vested in a Justice of the Peace in respect of the several matters following, that is to say:—
(a) Signing summonses.
(b) Signing warrants.
(c) Administering oaths and taking declarations, affirmations, and informations.
(d) Committing dangerous lunatics and idiots to Lunatic Asylums under Section 10 of the Lunacy (Ireland) Act, 1867 (30 and 31 Vict., ch. 118).
(e) Signing certificates for the admission of lunatics and idiots to Lunatic Asylums.
Provided always that any summons against any member of the Civic Guard shall be signed by a District Justice.
(3) Whenever any person charged with having committed an indictable offence shall be arrested by a member of the Civic Guard, such person shall forthwith be brought before a Parish Commissioner, who, after hearing such evidence as may be offered, shall remand such person either in custody or in such bail as the Parish Commissioner shall think fit, and remit the case for hearing before a District Justice, on a date not later than the next District Court to be held in the Court District where such person was arrested.
(4) Whenever any person charged with having committed an indictable offence is brought before a District Justice it shall be lawful for such District Justice to remand such person to a date not later than the next District Court to be held by him in the Court District where such person was arrested.
I beg to move as an amendment to substitute in Sub-section 2, and throughout the Bill, for the words "Parish Commissioner" the words "Peace Commissioner." It is a very small point, but it occurred to me that there is more dignity about the description "Peace Commissioner" than "Parish Commissioner." A Parish Commissioner, somehow, sounds of the days of Oliver Twist, and, in any case, I do not see that the area of these gentlemen will be coterminus with the parish, and it is for that reason, and, of course, to add, if possible, dignity to the position that I suggest the words "Peace Commissioner" for "Parish Commissioner."
Mr. O'HIGGINS
It is entirely a matter of taste, and I would like to test the taste of the Seanad upon the matter.
They will have nothing to do except the signing of warrants and of summonses.
Is it not possible to have some other words besides "Parish Commissioner or "Peace Commissioner." If they are described by either of these titles they will be known for short as P.C.'s and will be confounded with Privy Councillors or Police Constables. I suggest to the Minister that he could find some other term besides that in the Bill or in the proposed amendment.
AN CATHAOIRLEACH
Perhaps District Commissioners would do.
Then they would become D.C.'s, and confounded with District Councillors.
AN CATHAOIRLEACH
Does the Senator press the amendment?
It is a small point, but I really think it might be passed.
Amendment put and agreed to.
Sub-section as amended agreed to, and added to the Bill.
I beg to move as an amendment to delete Sub-section 3.
I would invite the consideration of the Minister as to whether or not if this sub-section is retained in the Bill there would not be a temptation to the District Justice to postpone the consideration of the case until it suited his own convenience. That is the only point I wanted to make. He might postpone it until he was coming to the district again where the case was to be tried, and the prisoner might be held up longer than was necessary, and I suggest that the District Justice should be compelled to hold a special court, and not to leave the prisoner in custody for a long period, but to deal with him as quickly as possible. If the Minister thinks there is nothing in the Bill which renders any danger of that I will not press the amendment, but I just merely want to call attention to the matter, and I will be quite satisfied if I get a satisfactory assurance.
Mr. O'HIGGINS
This amendment is one which I have been advised by my Department to oppose strongly. It is a very serious amendment. It arises from a reluctance to allow a prisoner to be remanded by a Parish Commissioner for a very long time, perhaps one month, which would be possible under this section as it stands at present. The objections to the amendment are: Although under the Bill as it stands the Parish Commissioner has power to remand for a period sometimes as long as a month, it is not to be assumed that he will use that power except when absolutely necessary. The prisoner will in practice be produced from the custody into which he is remanded on the first convenient opportunity—that is, as soon as a District Justice finds it at all possible to pay a visit to the locality in question. The District Justice will be informed by this Ministry that it is highly undesirable that any remand should be allowed to extend in practice over more than fourteen days. It must not be imagined that even if the amendment passes the prisoner cannot be kept in custody on remand for a very long period. The only difference will be that under the amendment it will be necessary to produce the prisoner for remand every eight days, and to send him back again as many times as may be necessary. That is hardly any great benefit to the prisoner. The period proposed by the amendment (8 days) is too short. One District Justice took great pains to impress on the Ministry the fact that he could not work his district on an eight-day remand system once the work got normally heavy Apart from the length of the remand, this amendment proposes to confer on the Parish Commissioners the power to refuse informations. It is the unanimous opinion of those to whom this Bill was submitted, and of the District Justices themselves, that such a power should not be conferred on a Parish Commissioner. Our conception of the duties of a Parish Commissioner in this connection is that he should do as little as possible. He should leave the question of guilt or innocence entirely to the District Justice; he should act merely as a first rough intermediary between the police and the public, so as to prevent the police from keeping people in custody without the consent of an independent civilian. If the amendment is passed, people will insist on going fully into the evidence and merits of their case before a Parish Commissioner in the hope of informations being refused. Our Parish Commissioners will not be fit, for a long time anyhow, to hear evidence properly, and to decide the prima facie question of guilt or innocence. Besides that, they will be, in general, neighbours, and perhaps friends, of the accused, and they should not be subject to the ordeal of having the option of release. The responsibility and odium attaching to refusing release ought not to be placed upon the Parish Commissioner. The idea was to get away definitely also from the old honorary magisterial system—from the idea of having people administering the law who were subject to local odium and local pressure of many kinds. In the past you had as magistrates administering the law people who were dependent on the goodwill of the public for their means of livelihood. They were not independent, and they were not happy. They realised that themselves, and would tell you so—that it was almost too big a burden to place on a man, to administer the law strictly, impartially, and impersonally in a neighbourhood where he was depending on the public for his livelihood and the maintenance of his family. Dispensary doctors, shopkeepers, and so on were placed in that position; and that happened which inevitably might be expected to happen. This Bill which is now before you proposes a clean cut with that idea, and you send out amongst the people professional men who know the law, who are in an independent position, and who will give the people a cleaner and more impartial and a more impersonal administration of the law than they ever had before. This amendment would constitute a slight departure, but a departure, from that idea to the extent that it would place on these Parish Commissioners the onus—would put into their hands the power of refusing informations in a particular case. We do not propose to give the Parish Commissioners that power yet; the amendment involves it, and it would mean that these men would frequently have to face that position in the case of prisoners brought before them. The question whether they would release or imprison them would lie in their discretion. We think that local people, subject to local pressure, ought not be placed in that position.
On the Minister's statement, I withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move an amendment to Section 4, Sub-section 3, to insert after the word "before," the words "a District Justice or." I would like to ask the Minister why he has disqualified District Justices from acting as Parish Commissioners under this clause. My proposal is that the clause should read that "Such person shall forthwith be brought before a District Justice or a Parish Commissioner."
AN CATHAOIRLEACH
I think there is a misconception in your mind about this. This clause is intended to deal with places where there is no District Justice at the moment available.
Is that so?
AN CATHAOIRLEACH
Yes; the District Justices will hold Circuit or District Courts, but a man might be arrested miles away, and could not be brought before a District Justice on that particular day. This is a provision in favour of having him brought before a Peace Commissioner, who may, if he likes, allow him out on bail pending the hearing of his case.
But my point is, that the clause as it stands disqualifies, so to speak, a prisoner from being brought before a District Justice if one is available. That is what I gather from Sub-section 4 of Clause 2, and also from Sub-section 3 of Clause 4. There may be some reason for that, but I think, if the words I suggest were put in the clause, a prisoner could be brought before a District Justice if he were available instead of before the Parish Commissioner.
AN CATHAOIRLEACH
If you were to add the words "or in his absence" before "Parish Commissioner," I think it would meet the case.
Mr. O'HIGGINS
It was intended in the Dáil, I am almost sure, to move an amendment on the lines suggested, and to insert after the word "shall," such words as "unless a District Justice is immediately available."
AN CATHAOIRLEACH
That would meet the position.
Mr. O'HIGGINS
I am prepared to accept the amendment.
AN CATHAOIRLEACH
The Minister will have the clause amended as suggested in the other House.
On a point of order, could the amendment be made in the other House?
AN CATHAOIRLEACH
It could, or it could be done here. It might be simpler if the insertion were made in the Seanad.
It is for the Minister to say that.
If the amendment is made in the other House, the Bill will have to come back here again. That would mean double trouble.
I move that the Clause be amended as suggested by the Minister.
AN CATHAOIRLEACH
I think we might leave the actual phrasing of the amendment over until we reach the Report Stage, which will be a little later on. The Minister will then have the amendment ready in proper form.
Question put: "That Section 4, as amended, stand part of the Bill."
Agreed.
SECTION 5.
(1) From and after the passing of this Act the existing offices of Clerk of Petty Sessions shall cease to exist, and every existing Clerk of Petty Sessions shall cease to hold his office.
(2) From and after the passing of this Act the Minister shall and may from time to time as occasion requires appoint fit and proper persons to be District Court Clerks in the several Court Districts constituted under this Act, and may appoint each such person to be District Court Clerk in one or in any greater number of such Court Districts.
(3) Each District Court Clerk appointed under this section shall hold his office by such tenure as the Minister shall prescribe, and shall be paid such salary as the Minister shall, with the concurrence of the Minister for Finance, appoint.
(4) The salaries of the District Court Clerks appointed under this section shall be paid out of the same funds as the salaries of the existing Clerks of Petty Sessions have been heretofore paid, and any deficiency in such funds to meet the amounts of such salaries shall be made good out of moneys provided by the Oireachtas.
(5) Each District Court Clerk appointed under this Act shall perform in respect of his District or Districts the like duties as have heretofore been performed by the existing Clerks of Petty Sessions in respect of the existing Petty Sessions Districts, and shall also perform such other duties as shall from time to time be allotted to him by the District Justice.
(6) The existing office of Registrar of Petty Sessions Clerks shall from and after the passing of this Act be called "The Registrar of District Court Clerks," and such Registrar shall perform in relation to the District Court Clerks appointed under this section the like duties as he has heretofore performed in relation to the existing Clerks of Petty Sessions.
(7) In this section the word "existing" means existing on the 6th day of December, 1922.
I beg to move an amendment to Section 5, Sub-section 2, to add at the end of the sub-section the words "provided that such person shall have previously served as Clerk of Petty Sessions or as Registrar of a Dáil Court." This is not a very important amendment, but as I raised the question before I desire again to raise this question about the Petty Sessions Clerks. There are a great number of them who have a considerable claim to any offices that may be available of the same sort. There are also the Registrars of the former Dáil Courts to be considered. They also consider they have a certain amount of claim, and if the Minister can see his way to give either of these two classes a preference over new people I think it would be only fair to these men.
I think there will be general agreement with the reasonableness of giving clerks who have already acted as Petty Sessions Clerks, or as Dáil Court Registrars, preference in the making of future appointments for the District Courts. While agreeing with that principle, I do not think it would be advisable to lay it down as an absolute condition that any clerk appointed to one of these Courts should have functioned in that capacity in the past. If such a condition were adopted I am afraid it would tend to restrict the range of selection too much, and that it might considerably hamper the efficiency of the staffs to be appointed to these courts in future. While agreeing, generally, with the principle, and while hoping that the Government will, subject to efficiency, give preference to those existing officials, I should not feel justified in voting for an amendment which would make all the appointments absolutely restricted to these men.
Mr. O'HIGGINS
That about sums up the attitude of the Department to this amendment. It simply puts a fence around the position, and in practice, says that either of the two classes of men shall be appointed. In many areas the truth of the position is this: that those who were Dáil Court Registrars are in arms against the Government, and, occasionally, here and there throughout the country you have the position with regard to the old Petty Sessions Clerk, that, in the strenuous times that are past, he took an attitude which made him absolutely obnoxious to the majority of the people in the district. It is simply a matter of facing facts, that you would destroy your courts—respect for your courts and their prestige—by making such an appointment. Now, things may be right in the abstract, and utterly out of the question in practice. In the face of concrete facts, I certainly would not like to have political responsibility for appointing certain of the old Petty Session Clerks to be Registrars of the present courts. It would not be good for the courts, and because it would not be good for the courts, it would not be good for the country or for the people of the country. The whole stability of the country depends on these courts, and on the extent to which their writ runs, and on the respect and obedience they get from the people. They have to be handled very delicately, and I can assure Senators that the number of factors and considerations that have to be weighed in making the most insignificant of these appointments, is very considerable. You have to balance one thing against another all the time, and you have to strike a medium. We have not gone out to victimise or to declare war on any section of the community, but we have had to consider public feeling and popular feeling in the district in which these appointments had to be made, and that was a very relevant factor in the making of them.
If the Senator's amendment were accepted it would simply add more difficulties to what is already, and, at the moment, a delicate question enough, and the question that has given quite a lot of trouble to the Department, and is likely to give quite a lot more.
I was desirous of supporting Senator Moore in his amendment, but, after hearing the statement of the Minister I quite realised how difficult and delicate the situation is, and I think if he can find a person who has acted in the office in this capacity to satisfy his neighbours and the district generally, the Minister might be disposed to utilise his services in the future. But, in view of the delicacy of the situation we had much better to leave the matter in the hands of the Minister, and give him every latitude in these appointments.
I am not at all inclined to press this amendment. I brought it up mostly to call the attention of the Minister to it. There are about 200 Clerks of Petty Sessions in Ireland, and only about 40 appointments as Clerks to the District Courts. It would be only in the proportion of 1 in 5, but as the Minister wishes it, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put: "That Sub-section 2, Section 5, stand part of the Bill."
Agreed.
I move to delete in Section 5, Sub-section 3, the words "by such tenure as the Minister shall prescribe," and to substitute therefor "subject to good conduct and the usual regulations as to retirement."
AN CATHAOIRLEACH
I might suggest that, in view of the operation of the Bill being confined to one year, this amendment would be rather destructive of the principle, because the appointment or removal only for misconduct would make the appointment one of a permanent character.
I withdraw it.
Amendment, by leave, withdrawn.
Question put: "That Sub-section 3, Section 5, stand part of the Bill."
Agreed.
AN CATHAOIRLEACH
Senator Eyre, you have an amendment to Section 5, Sub-section 6.
Yes. I was anxious to know, in moving this, whether there was any objection on the part of the Department to add the words "administer oaths, including affirmations and declarations." It occurred to me that it would save a great deal of time for the District Justices. If the Minister says there is any objection to it I will withdraw the amendment.
Mr. O'HIGGINS
The official bureaucratic view of this matter is that the amendment is unnecessary and should be opposed. If we think any Clerk should have these powers, he can get them in the ordinary way in which a Commissioner for Oaths is appointed. There is not any reason for making every Clerk a Commissioner for Oaths by Statute. It was not done with the old Petty Sessions Clerks. My memorandum says: "If the amendment passes it will do no serious harm."
AN CATHAOIRLEACH
Do you move it, Senator Eyre?
No.
Amendment, by leave, withdrawn.
Sections 5, 6, and 7, agreed to, and added to the Bill.
SECTION 8.
All fees which are at the passing of this Act payable by law at or in connection with Petty Sessions or are payable to or collectable by the Clerk of Petty Sessions, or are denoted or paid by Petty Sessions Stamps (in cluding the Dog Tax) shall continue to be payable at the like times and in the like manner as heretofore but with the modifications that all such fees except the Dog Tax shall from and after the passing of this Act be charged and paid at double the rate at which same were heretofore charged and paid, and that the District Court, the District Court Clerk and District Court Stamps shall be substituted respectively for Petty Sessions, the Clerk of Petty Sessions and Petty Sessions Stamps.
I beg to move an amendment to Section 8, to delete the word "double," and to substitute therefor the words ‘the same". I am just raising the question of doubling the fees all round. Anybody who has anything to say to law will know that he has to pay a good lot already if he is foolish enough to engage in a law suit, or is drawn into it against his will. I do not know why all these fees should be doubled this time. Perhaps the Minister will explain it himself.
Mr. O'HIGGINS
These fees were fixed 60 years ago. They have never been altered. The Senator is no doubt aware that within these 60 years the purchasing power of money has decreased considerably, and these fees were in fact utterly inadequate to meet the running expenses of the Courts. That section was not included in the Bill without going into the matter very thoroughly. The doubling of the fees was found a quite reasonable and modest proposal. They were fixed as long ago as 60 years, and they were never changed.
I wish to withdraw the amendment.
Amendment by leave withdrawn.
Question put:—"That Section 8 stand part of the Bill."
Agreed.
SECTION 9.
(1) Each of the persons named in the Third Schedule to this Act having been appointed under the Constabularly (Ireland) Act, 1836 (6 & 7 Will. IV., ch. 13), by the Governor-General of the Irish Free State to be a magistrate under that Act shall be deemed to have been appointed and to be a District Justice under this Act.
(2) Every act, matter and thing done after the 28th day of October, 1922, by any of the said persons named in the Third Schedule to this Act in exercise or purported exercise of any authority purported to have been at the time of his doing such act, matter or thing vested in him by reason of his having been appointed or purported to have been appointed by the late Provisional Government of Ireland or any Minister thereof to be a District Justice shall notwithstanding any failure (whether by way of commission or omission) to comply with any statute, rule or order or any other irregularity be as valid and effective as if the same had been regularly done by a magistrate duly appointed under the Constabularly (Ireland) Act, 1836 (6 & 7 Will. IV., ch. 13), or (in the case of acts, matters and things which are by law required to be done by two magistrates appointed under the Act aforesaid sitting together) by two such magistrates sitting together.
(3) No action shall lie against, and no penalty shall be incurred by any of the said persons named in the Third Schedule to this Act for or on account or in respect of any act, matter or thing done by any such person after the 22nd day of October, 1922, in exercise or purported exercise of any such authority as is mentioned in the preceding sub-section or any failure (whether by way of commission or omission) to comply with the terms of any statute, rule or order or any other irregularity in the doing of such act, matter or thing.
I beg to move an amendment to Section 9, Sub-section 2:—After the words "two magistrates" to omit the words "appointed under the Act aforesaid," and after the word "magistrates" to omit the words "sitting together."
The only point is the use of the words "appointed under the Act aforesaid."
AN CATHAOIRLEACH
You object to the words "appointed under the Act aforesaid?"
Yes. I thought there were two Acts involved. Magistrates sit under the Constabularly Acts, and in their ordinary capacity. In that respect some difficulty might arise. If there is nothing in the point I will not press it very strongly.
AN CATHAOIRLEACH
I think it would be desirable if these words were left out. They may create confusion. If appointed under the one Act these words are not necessary.
Mr. O'HIGGINS
We consider the amendment is undoubtedly an improvement, and we would accept it.
Amendment agreed to.
Question put:—"That Section 9 as amended stand part of the Bill."
Agreed.
Sections 10, 11 and 12 were agreed to and added to the Bill.
Bill ordered to be reported.